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Estate of Grieco v. Schmidt

Superior Court of New Jersey, Appellate Division

May 19, 2015

ESTATE OF PATRICIA GRIECO, by its administrator VINCENT GRIECO, and VINCENT GRIECO, individually, Plaintiffs-Appellants,
v.
HANS J. SCHMIDT, M.D. and ADVANCED LAPAROSCOPIC ASSOCIATES, Defendants-Respondents

Submitted: April 14, 2015.

Approved for Publication May 19, 2015.

Page 278

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-10061-09.

Emolo & Collini, attorneys for appellants ( John C. Emolo, on the brief).

Marshall Dennehey, Warner Coleman & Goggin, P.C., attorneys for respondents ( Robert T. Evers and Walter F. Kawalec, III, on the brief).

Before Judges FISHER, NUGENT and MANAHAN. The opinion of the court was delivered by FISHER, P.J.A.D.

OPINION

Page 279

[440 N.J.Super. 561] FISHER, P.J.A.D.

In this medical malpractice action, plaintiffs -- the estate and husband of the late Patricia Grieco -- appeal an interlocutory order barring witnesses from recounting what Patricia said her doctor's staff told her in response to her complaints of chest pains following surgery. Because the trial judge, in applying N.J.R.E. 804(b)(6), concluded the statements were untrustworthy -- without having listened to the witnesses testify at a N.J.R.E. 104 hearing -- we reverse.

The circumstances surrounding this evidence question are relatively simple. On November 2, 2007, defendant Hans J. Schmidt, M.D., performed laparoscopic gastric banding surgery on Patricia, who, within a few days of surgery, telephoned and visited defendant Schmidt's office to complain of chest pains. On November 9, 2007, Patricia suffered a pulmonary embolism; she remained on life support until her death ten days later.

Plaintiffs filed a complaint asserting that defendants' negligence caused Patricia's death. Following discovery, a jury was sworn on December 3, 2013, and opening arguments were scheduled to begin the next day. Before the trial proceeded beyond jury selection, however, the judge entertained plaintiffs' motion to admit testimony from Patricia's husband, three children, other relatives and a friend pursuant to N.J.R.E. 804(b)(6), which permits, in civil cases, admission of " a statement made by a person unavailable as a witness because of death if the statement was made in good faith upon declarant's personal

Page 280

knowledge in circumstances indicating that it is trustworthy." Plaintiffs assert that Patricia told these potential witnesses, immediately after either a telephone call or visit to defendants' office, that in the days after surgery she was experiencing chest pain, that she told Schmidt's [440 N.J.Super. 562] staff she was experiencing chest pain, and that she was ...


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