August 18, 2010
A.G. (INDIVIDUALLY) AND A.G., GUARDIAN OF D.G., PLAINTIFF-RESPONDENT,
STATE OF NEW JERSEY DEPARTMENT OF HUMAN SERVICES, NEW JERSEY DIVISION OF DEVELOPMENTAL DISABILITIES, JAWONIO FAIR LAWN GROUP HOME AND JAWONIO NJ, INC., DEFENDANTS-RESPONDENTS, AND R.C., DEFENDANT-APPELLANT, AND JANETTE WASHINGTON, ROSE (LAST NAME UNKNOWN) AND BARBARA (LAST NAME UNKNOWN), DEFENDANTS.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3745-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 8, 2010
Before Judges Grall, Messano and LeWinn.
We granted leave to appeal from an order limiting discovery in a civil case. The judge relied on N.J.S.A. 2C:14-7, the Rape Shield Statute, and N.J.S.A. 2A:61B-1, which applies in a civil cause of action involving sexual abuse of a child under the age of eighteen. Because those statutes have no application here, we reverse the order and remand for further proceedings.
Plaintiff A.G. is the mother of D.G. There is medical evidence in the record that D.G. has Down Syndrome, an I.Q. of fifty-five and behaves as if she were a six-year-old child.
D.G. was born in 1985 and became a resident of the Jawonio Fair Lawn Group Home in 2004 when she was nineteen years of age. The group home is operated by Jawonio NJ, Inc., under the supervision of the New Jersey Department of Human Services, Division of Developmental Disabilities (Department).
R.C. is an employee of Jawonio. A.G. alleges that on several occasions R.C. brought D.G. from the Jawonio Fair Lawn Group Home to R.C.'s home. R.C. has a son, and D.G. told members of her family that on two occasions when she was at R.C.'s home, R.C.'s son sexually assaulted her. A.G., individually and as D.G.'s guardian, filed a complaint to recover damages from the Jawonio defendants and its individual employees who are defendants, including R.C., and from the Department and its individual employees who are defendants.
A.G. alleged that defendants' negligence and recklessness in providing adequate security and supervision led to the sexual assaults. Jawonio and the Department filed third-party complaints against R.C.'s son seeking contribution in the event of liability, and, with leave granted, A.G. filed an amended complaint alleging a cause of action pursuant to N.J.S.A. 2A:61B-1.
During the course of discovery, defendants obtained information that D.G. had reported several incidents of sexual abuse in a variety of settings in the past. Suffice it to say that the information suggests that one report led to the deportation of the accused abuser and that the others apparently led to no action being taken against the person D.G. accused.
During depositions, a dispute about the permissibility of attempts to probe those allegations led R.C. to seek relief from the trial judge who provided direction. R.C. moved for clarification of the judge's ruling, and by order of December 18, 2009, the judge denied R.C.'s request to "obtain discovery regarding past sexual abuse of [D.G.], whether actual or only alleged and later determined to be false." At that point, the discovery end date was April 9, 2010 and trial had not been scheduled. On January 22, 2010, the judge denied R.C.'s motion for reconsideration.
R.C. filed a motion for leave to appeal, which we granted. The Department has filed a responding brief in support of R.C.'s appeal, and A.G. has filed a brief urging us to affirm the order.
Acknowledging that the information R.C. sought has some relevance, the judge reasoned that discovery should be limited because the evidence would be inadmissible pursuant to N.J.S.A. 2C:14-7, N.J.R.E. 404 and N.J.S.A. 2A:61B-1d(1) and otherwise excludable pursuant to N.J.R.E. 403.
Appellate courts "normally defer to a trial court's disposition of discovery matters, including the formulation of protective orders, unless the court has abused its discretion . . . ." Payton v. N.J. Tpk. Auth. 148 N.J. 524, 559 (1997). This deferential standard does not apply when the judge's determination is based on a misunderstanding of the law. Ibid. The orders entered in this case are based upon several misconceptions about the law.
Discovery is not limited to admissible evidence. Rather, Rule 4:10-2(a) provides: "It is not ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence." The purpose of the discovery rules is "'that judgments rest upon real merits of the causes . . . .'" Abtrax Pharms. v. Elkins-Sinn, 139 N.J. 499, 512 (1995) (quoting Oliviero v. Porter Hayden Co., 241 N.J. Super. 381, 387 (App. Div. 1990)).
Moreover, the conclusion that the evidence sought is inadmissible rests on erroneous legal conclusions. N.J.S.A. 2C:14-7 is expressly limited to "prosecutions for aggravated sexual assault, sexual assault, aggravated criminal sexual contact, criminal sexual contact, endangering the welfare of a child in violation of N.J.S.[A.] 2C:24-4 or the fourth-degree crime of lewdness in violation of subsection b. of N.J.S.[A.] 2C:14-4 . . . ." Similarly, an analogous provision, subsection d(1) of N.J.S.A. 2A:61B-1, applies in actions based on sexual abuse, and the term is defined to include acts "of sexual contact or sexual penetration between a child under the age of 18 years and an adult," N.J.S.A. 2A:61B-1a(1). Thus, neither statute applies in this case.
We recognize that the judge reasoned that N.J.S.A. 2A:61B-1 should be construed to encompass an adult whose mental capacity is equivalent to that of a child so as to effectuate the Legislature's intent to protect the vulnerable and that N.J.S.A. 2C:14-7, which applies in criminal cases to children and adults alike, should also apply here. That approach, however, is inconsistent with the well-settled principle that our courts apply a statute in accordance with its terms when there is no ambiguity. DiProspero v. Penn, 183 N.J. 477, 492 (2005). Courts are not to rewrite statutes that are clear to effectuate their perception of the Legislature's intent. Ibid.
Finally, it is clear that the request for discovery in this case was "reasonably calculated to lead to the discovery of admissible evidence." R. 4:10-2(a). The discovery requested is reasonably calculated to lead to evidence relevant and admissible to establish that the victim's knowledge of sexual conduct is based on prior incidents of sexual abuse. State v. Budis, 125 N.J. 519, 533-34 (1991). And, it is reasonably calculated to lead to the identification of witnesses who are competent to provide testimony "in the form of opinion or reputation . . . [as] to [D.G.'s] character for truthfulness or untruthfulness." N.J.R.E. 608(a); but cf. N.J.R.E. 608(b) (a rule providing for admission of evidence of prior false accusations only in criminal cases).
For the foregoing reasons, the order precluding discovery cannot be affirmed. Our decision should not be understood to suggest that a judge has no authority to limit discovery pursuant to sections (e) and (g) of Rule 4:10-2. This order was not premised on privilege or the concerns that discovery be conducted in an efficient manner that is not overly burdensome in light of the likely benefits.
Reversed and remanded for further proceedings.
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