January 15, 2010
KELLY ANN DALEY, PLAINTIFF-APPELLANT,
CLAIRE'S STORES, INC., DEFENDANT-RESPONDENT, AND MENLO PARK MALL, SIMON PROPERTY GROUP, INC., MARIA GONZALEZ AND JENNIFER ORTEGA, DEFENDANTS, AND CLAIRE'S BOUTIQUE, INC. AND MARIA GONZALEZ, DEFENDANTS/THIRD-PARTY PLAINTIFFS,
ANNE DALEY, THIRD-PARTY DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-3454-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 5, 2009
Before Judges Fisher and Sapp-Peterson.
Plaintiff commenced this personal injury suit as a result of developing an infection following an ear piercing at the business of defendant Claire's Stores, Inc. (CSI). In this appeal of a judgment rendered in CSI's favor after an eight-day trial, plaintiff argues among other things that the judge erred in: (1) barring plaintiff from urging an adverse inference due to the absence at trial of CSI's former employee and, then, permitting CSI's use of the absent witness's deposition, and (2) allowing the jury to consider plaintiff's negligence. We reject these arguments and affirm.
Plaintiff had the ear cartilage toward the top of her left ear pierced by Maria Gonzalez, an employee of CSI's business at the Menlo Park Mall in Edison, on Monday, August 18, 2003.*fn1
During the course of this suit, CSI's counsel produced Gonzalez for a deposition even though she was no longer a CSI employee. Notwithstanding the availability of her deposition testimony, plaintiff's counsel sought Gonzalez's attendance at trial. Because Gonzalez was a named defendant and represented by CSI's counsel, plaintiff served a notice in lieu of subpoena on CSI's counsel. When CSI's counsel was unable to produce Gonzalez, plaintiff requested that the judge either charge the jury that her absence permitted an inference that her testimony would have been damaging to CSI or permit plaintiff's counsel to make such an argument in his closing statement. The judge denied both requests. In addition, the judge determined that Gonzalez was unavailable and that either party could read to the jury from her deposition. Plaintiff complains of both these rulings. We turn first to the adverse inference aspects of plaintiff's arguments.
Certainly, it is not the absence of just any witness that may give rise to an adverse inference, but the absence of a witness who "was within the power" of the party against whom the inference is to be drawn and whose testimony "would have been superior to that already utilized." State v. Clawans, 38 N.J. 162, 171 (1962). The record fully demonstrates that Gonzalez was not a witness within CSI's power to produce. Gonzalez was no longer a CSI employee. In addition, defense counsel, who was equally desirous of having Gonzalez testify in person, represented to the trial court that his office had sent numerous letters to Gonzalez's last known address and made telephone calls to her last known telephone number in an attempt to secure her attendance. The judge acted well within his discretion to conclude from these circumstances that it was not appropriate either to instruct the jury that it could draw an adverse inference or to allow plaintiff to make such an argument during closing statements.
Moreover, the record does not suggest that Gonzalez's appearance was as crucial as plaintiff argues. To be sure, live testimony is preferable. See Neno v. Clinton, 167 N.J. 573, 579 (2001). However, even if plaintiff is correct that Gonzalez would have been viewed by the jury as incapable of sufficiently conveying important warnings and instructions, the record reveals that Gonzalez provided written instructions to plaintiff and her mother.*fn2 Because plaintiff was seventeen years old at the time of the piercing, her mother was required to consent to the procedure. Plaintiff's mother was present at the time of the piercing and executed a form, which warned of the risks of the procedure and provided after-care directions.*fn3
This document, a copy of which was provided to plaintiff and her mother upon leaving the store, contained clear written warnings regarding the potential for infections and other problems:
I, the undersigned, acknowledge that I am aware that ear piercing may carry some risks. These risks include, but are not limited to, infection, metal sensitivity, allergic reactions, inflammation, embeddings, scarring, fainting and other complications.
In addition, in larger print, the document contained the following warning:
I FURTHER UNDERSTAND THAT EAR PIERCING OF THE CARTILAGE MAY CARRY A GREATER RISK OF REDNESS, SWELLING, LOCAL AND SYSTEMIC INFECTION, PERMANENT SCARRING, THE POTENTIAL OF CARTILAGE DEFORMITY, AND MAY TAKE SUBSTANTIALLY LONGER TO HEAL.
The same form also contained "After Care Procedures," which directed the frequency and manner of site cleaning, and provided the following "Points of Caution":
* Keep hair, hair spray, soap, shampoo, cosmetics, perfumes or similar types of preparations away from the newly pierced ears.
* After shampooing, exercising, swimming, hot tubs, or use of any of the above products, rinse your ears in clear water, and then cleanse them as stated [in the After Care Procedures]. . . . .
* FOR EAR CARTILAGE PIERCING: If redness or swelling in a cartilage piercing exists more than 24 hours after the piercing, immediately remove the studs and consult a physician. Remember, cartilage piercing carries a greater risk of infection, permanent scarring, and the potential of cartilage deformity.
* Studs that are too tight can cause embeddings and infections. Check the fit of the studs to ensure the clutch backs are always positioned at the tip of the post.
* Take extra care when removing clothing, brushing hair, sleeping, or talking on the telephone so that newly pierced ears do not get irritated.
Plaintiff's mother signed the document at three different locations and initialed at seven other locations, symbolizing her recognition of the importance of these written directions. Moreover, both plaintiff and her mother testified at trial that they were aware -- even prior to the piercing -- that infection could result and were aware that the site needed to be cleaned and other precautions taken in order to avoid the increased risk of infection.*fn4
Considering the importance of these written warnings and instructions, and considering that plaintiff and her mother acknowledged they were provided with those written directions at the time of the piercing, plaintiff's contention that Gonzalez was a witness whose testimony would have been "superior" to evidence that was in the record, Clawans, supra, 38 N.J. at 171, or superior to her deposition testimony, carries little weight and was certainly far too inconsequential to warrant an adverse inference charge or to permit an adverse inference argument.
Plaintiff also argues that the judge erred in permitting the use of Gonzalez's deposition at the time of trial. We find no error in the judge's conclusion that Gonzalez was "unavailable."
Certainly, plaintiff was entitled to use "for any purpose" Gonzalez's deposition against CSI pursuant to Rule 4:16-1(b). CSI's use of the deposition, however, turned on a different analysis, requiring a demonstration that the witness was unavailable within the meaning of Rule 4:16-1(c) and N.J.R.E. 804(a)(4). Although there are linquistic differences in the definition of "unavailability" in those rules, there are no substantive differences. N.J.R.E. 804(a)(4) states that a declarant is unavailable as a witness if, among other things, the witness "is absent from the hearing because of death, physical or mental illness or infirmity, or other cause, and the proponent of the statement is unable by process or other reasonable means to procure the declarant's attendance at trial . . . ."*fn5
As indicated earlier, defense counsel recounted at great length his office's efforts to secure Gonzalez's attendance.
The judge's finding that counsel was unable to procure the witness through reasonable means was well-supported. Indeed, defense counsel's efforts were similar to those found reasonable and sufficient for these purposes in Williams v. Hodes, 363 N.J. Super. 600, 605 (App. Div. 2003).
Because all the other elements of the hearsay exception set forth in N.J.R.E. 804(b)(1)(A) were present and because all the conditions set forth in Rule 4:16-1(c) were met, CSI was permitted to make use of Gonzalez's deposition testimony at the time of trial.*fn6 For these reasons, we find no abuse of discretion in the rulings rendered by the trial judge regarding this missing witness.
Plaintiff also argues that the judge erred in permitting the jury's consideration of plaintiff's fault or the application of that determination in the final judgment. In this regard, plaintiff argues that CSI failed to provide expert testimony to support its contention that plaintiff's failure to properly care for the piercing site was a proximate cause of her injuries. We are satisfied that the evidence regarding plaintiff's lack of care, together with the defense expert's testimony, provided a sufficient basis upon which the jury could find plaintiff negligent.
CSI called Dr. Sharon Nachman, a board certified physician and expert on infectious diseases, who testified about the particular type of bacteria that causes ear infections, pseudomonas aeruginosa. She opined that an ear infection manifests itself within three days of exposure to pseudomonas aeruginosa. Because plaintiff testified that the first sign of a problem with the pierced area was the weekend after the piercing on Monday, August 18, 2003, the jury was entitled to draw the conclusion that plaintiff's exposure to the bacteria that caused her ear infection took place after the piercing.
In addition, the record contains other evidence from which the jury could have drawn its conclusion that plaintiff was negligent in caring for the site of the piercing. First, plaintiff suffered trauma to that ear. She testified that while riding a roller coaster at Great Adventure she bumped the side of her head on a foam piece of a harness that held her in place. She recounted at trial how after this impact she felt a "sharp pain . . . [r]ight at the top of my ear where it was pierced," the first sign of any problem.
Plaintiff also acknowledged that she spent time in a swimming pool, and used hair spray, a cellphone, a Walkman radio and perfumes soon after the piercing. The jury could have found from this evidence that pseudomonas aeruginosa was introduced to the piercing site by means other than the act of piercing the ear cartilage that occurred at defendant's place of business and that plaintiff failed to follow the written precautions provided by CSI.
In contending that the evidence of plaintiff's negligence was inadequate, plaintiff argues that Dr. Nachman did not render an opinion as to what caused plaintiff's infection. It is certainly true that Dr. Nachman did not opine that it was one or the other foreign substances introduced to the area after the piercing that caused the infection. But Dr. Nachman did opine as to the time within which an infection would manifest after exposure, which, if credited, would persuade the jury that plaintiff's ear was not exposed to bacteria when the piercing occurred. In crediting that opinion, the jury could conclude from plaintiff's descriptions of her activities after the piercing that the infection resulted in some other way, perhaps as a result of plaintiff's failure to follow the after-care precautions provided by defendant.
Because there was sufficient evidence from which the jury could reasonably conclude that plaintiff was negligent and that her negligence was a proximate cause of the infection, we find no error in the judge's decision to permit the jury to make findings on those issues.
We find insufficient merit in all plaintiff's other arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).