A-25-14 Patricia Delvecchio v. Township of Bridgewater (074936)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)
Patricia Delvecchio v. Township of Bridgewater (A-25-14) (074936)
Argued October 27, 2015 – Decided April 28, 2016
Patterson, J., writing for a unanimous Court.
In this appeal, the Court considers whether a plaintiff may rely on the testimony of a treating physician,
who has not been designated as an expert witness, to establish the existence of a disability for a claim under the New
Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 et seq.
On February 18, 1999, plaintiff Patricia A. Delvecchio commenced employment with the Township of
Bridgewater (Township) as a dispatcher for the Police Department (Department). At that time, the Township
maintained three shifts for police dispatchers, including a midnight shift, and required dispatchers to work each of
the shifts on a rotating basis. In 2003, plaintiff developed inflammatory bowel syndrome (IBS), and began treatment
with Dr. Gary Ciambotti (Ciambotti), a gastroenterologist. Ciambotti wrote to plaintiff’s supervisors and stated that
her symptoms were under control as long as she worked regular daytime hours, but would be exacerbated by an
assignment to the midnight shift.
In response to plaintiff’s requests, the Township initially provided her with a steady afternoon shift, but
subsequently stated that it was no longer possible to assign her consistently to the daytime shift due to the burden
that this imposed on other employees who covered the remaining shifts. Plaintiff asked the Township to reconsider,
and the Township then permitted her to continue working daytime shifts, but with no guarantee that she could
entirely avoid midnight shifts. The Township subsequently required her to be available for an occasional midnight
shift, as necessary.
In September 2006, plaintiff also began treating with Dr. Joseph Rochford (Rochford), a psychiatrist, who
diagnosed her as having anxiety and panic attacks. After a staffing change increased plaintiff’s concern that she
would again be required to work midnight shifts, she provided the Township with notes from Rochford, who stated
that such assignments would exacerbate plaintiff’s stress condition, and Ciambotti, who reiterated his opinion that
she should not be compelled to work midnight shifts. In March 2007, Ciambotti stated that it was absolutely
medically necessary that the Township refrain from assigning plaintiff to midnight shifts.
On December 24, 2007, plaintiff declined her supervisor’s request that she work a midnight shift, and
another dispatcher was required to remain on duty to cover the shift. This precipitated complaints by other
dispatchers, and the Township concluded that plaintiff’s unwillingness to work a midnight shift imposed an undue
burden on it. The Township asked plaintiff to resign. She refused, and accepted another position with the Township
as a records clerk, but at a lower salary. On September 16, 2009, the Township terminated plaintiff's employment
for neglect of duty and chronic/excessive absenteeism.
Plaintiff filed a complaint for disability discrimination and retaliation under the LAD challenging her
termination from employment. In response to defendants’ discovery requests, plaintiff stated that she had not
retained any expert witnesses, but identified Ciambotti and Rochford as treating physicians who were expected to
testify. Plaintiff summarized Ciambotti’s proposed testimony, but did not serve expert reports from Ciambotti or
Rochford. The trial court sustained defendant’s objection to the testimony, and did not permit Ciambotti to opine on
his diagnosis and treatment for plaintiff since he had not prepared an expert report. The court also limited
Rochford’s testimony by precluding any opinion regarding plaintiff’s diagnosis.
At the conclusion of the trial, the jury returned a verdict of no cause of action. The trial court denied
plaintiff’s motions for judgment notwithstanding the verdict and for a new trial. Plaintiff appealed. In an
unpublished decision, the Appellate Division reversed and remanded for a new trial on the ground that the trial court
1
had improperly restricted the testimony of Ciambotti. This Court granted defendant’s petition for certification. 220
N.J. 98 (2014).
HELD: The testimony of a treating physician is admissible to support a plaintiff’s disability claim under the LAD,
provided that the proponent gives notice of the testimony to the adverse party, responds to discovery requests in
accordance with the Rules of Court, and the testimony satisfies N.J.R.E. 701 and other applicable Rules of Evidence.
Plaintiff provided the information that defendants requested in discovery regarding the proposed treating physician
witnesses, and the trial court should have permitted her to present the vital testimony of these witnesses.
1. The applicable standard of review requires that an appellate court not reverse a trial court’s determination of a
motion for a new trial unless it clearly appears that there was a miscarriage of justice under the law. R. 2:10-1. A
reviewing court should not disturb the findings of the jury merely because it would have found otherwise upon
review of the same evidence; a jury verdict, which is challenged as against the weight of the evidence, is
impregnable unless so distorted and wrong that it plainly constitutes a miscarriage of justice. (pp. 16-17)
2. Plaintiff’s claims are premised on N.J.S.A. 10:5-4.1, which prohibits unlawful discrimination based on a
disability unless the nature and extent of the disability reasonably precludes the performance of the particular
employment. Plaintiff offered the treating physician testimony that the trial court excluded in an effort to address a
pivotal element of the claim by establishing that she had a disease or condition that constitutes a disability under the
LAD. The LAD broadly defines a protected disability, and covers both physical and non-physical disabilities. A
claim under the LAD based on a non-physical disability, where the existence of a handicap is not readily apparent,
must be supported by expert medical evidence in the form of objective medical testimony that will allow the jury to
understand the disease or condition alleged to constitute a disability. (pp. 17-23)
3. Treating physicians have been consistently permitted to offer medical testimony regarding the diagnosis and
treatment of their patients. When treating physicians are called to offer such testimony, they are not testifying as
expert witnesses, but, instead, are offering factual evidence and opinion evidence governed by N.J.R.E. 701. The
Rule allows a court to admit testimony of a lay witness in the form of opinions or inferences provided that the
testimony is rationally based on the perception of the witness, and will assist in understanding the witness’s
testimony or in determining a fact in issue. The testimony of a treating physician must be limited to issues that are
relevant to the diagnosis and treatment of the individual patient. If a particular claim requires medical testimony
beyond the scope of such individual patient care, expert testimony may be required. (pp. 23-25; p. 27)
4. Our court rules provide for pretrial disclosure to the opposing party in discovery of information relating to
treating physicians, including by interrogatories, deposition, and provision of the treating physician’s report, in order
to allow the adverse party to explore and assess the physician’s testimony prior to trial. A party seeking to present
the testimony of a treating physician at trial must therefore disclose to the adverse party the substance of the
witness’s anticipated testimony and the basis for the testimony, if requested to do so in discovery. (pp. 25-27)
5. Prior decisions of this Court do not preclude the admission of treating physician testimony to support a LAD
claim based on the existence of a disability. The question of disability is a medical determination, and the testimony
of a qualified witness will assist the jury in making that determination. If the question of a plaintiff’s disability can
effectively be addressed by testimony limited to the plaintiff’s diagnosis and treatment, a treating physician may
provide the necessary expert medical evidence through objective medical testimony. (pp. 27-28)
6. Under these principles, the trial court should have permitted the proposed testimony of plaintiff’s treating
physician, limited to his diagnosis and treatment of plaintiff. The court’s constraint on the testimony of the treating
physician was not harmless error because plaintiff was not afforded a fair opportunity to prove that she suffered
from a disability under the LAD. The trial court also erred when it restricted the testimony of plaintiff’s treating
psychiatrist since the opinions that plaintiff sought to elicit from him were properly confined to her symptoms,
diagnosis and care. Due to the limitations that the trial court imposed on the testimony of the treating physician,
there is a miscarriage of justice warranting the grant of a new trial. (pp. 28-31)
The judgment of the Appellate Division is AFFIRMED, and the matter is remanded to the trial court for a
new trial.
2
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and SOLOMON; and JUDGE
CUFF (temporarily assigned) join in JUSTICE PATTERSON’s opinion. JUSTICE FERNANDEZ-VINA did
not participate.
3
SUPREME COURT OF NEW JERSEY
A-25 September Term 2014
074936
PATRICIA DELVECCHIO,
Plaintiff-Respondent,
v.
TOWNSHIP OF BRIDGEWATER, TOWNSHIP OF
BRIDGEWATER POLICE DEPARTMENT, CHIEF
RICHARD BORDEN, and WILLIAM CONNIFF,
Defendants-Appellants,
and
EDWIN J. SKIDMORE and CATHY HAMILTON,
Defendants.
Argued October 27, 2015 – Decided April 28, 2016
On certification to the Superior Court,
Appellate Division.
Alan Bart Grant argued the cause for
appellants (Mauro, Savo, Camerino, Grant &
Schalk, attorneys).
Brian M. Cige argued the cause for
respondent.
Thaddeus P. Mikulski, Jr., argued the cause
for amicus curiae National Employment
Lawyers Association of New Jersey, Inc.
JUSTICE PATTERSON delivered the opinion of the Court.
In this appeal, we consider whether a plaintiff employee
may rely on the testimony of a treating physician, who has not
been designated as an expert witness, to demonstrate a
1
disability in her discrimination claim under the Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -42.
Plaintiff Patricia A. Delvecchio was employed by the
Township of Bridgewater (Township) as a police dispatcher for
the Township’s Police Department (Department). She alleged that
she suffered from inflammatory bowel syndrome (IBS), and that
her condition worsened when she was assigned to work the
midnight shift. After repeatedly declining assignments to the
midnight shift, plaintiff was asked to resign from her position.
She then accepted a lower-paying job as a records clerk for the
Township. Plaintiff used more than her allotted sick days, and
the Township terminated her employment.
Plaintiff filed a LAD disability discrimination complaint
against the Township, the Department, and individual defendants.
She contended, among other claims, that her IBS constituted a
disability for purposes of LAD, and that defendants failed to
provide a reasonable accommodation for that disability when they
set the schedule for her work as a police dispatcher. Plaintiff
disclosed in pretrial discovery that, in support of her
disability claim, she intended to present the testimony of her
treating gastroenterologist, who had diagnosed her with IBS and
had written several notes to the Township regarding her medical
condition and her work schedule. She also advised defendants
2
that she intended to present the testimony of her treating
psychiatrist to substantiate her claim for non-economic damages.
The trial court barred the testimony of both treating
physicians regarding plaintiff’s diagnosis and treatment on the
grounds that neither physician had been retained and designated
as an expert witness and that neither witness had prepared a
report. The jury determined that plaintiff had failed to
establish that she had a disability that prevented her from
working midnight shifts, and that she had not met her burden to
prove retaliation. After the jury returned a verdict in favor
of defendants, the trial court denied plaintiff’s motion for a
new trial. Plaintiff appealed, and an Appellate Division panel
reversed the trial court’s judgment. It held that the trial
court committed error when it limited the testimony of
plaintiff’s treating gastroenterologist and remanded the case
for a new trial.
We affirm the judgment of the Appellate Division. Subject
to the notice and discovery requirements of our court rules and
the requirements of N.J.R.E 701 and other Rules of Evidence, our
case law authorizes a trial court to admit the testimony of a
treating physician regarding the diagnosis and treatment of a
patient. Stigliano v. Connaught Labs., Inc., 140 N.J. 305, 314
(1995); Ginsberg v. St. Michael’s Hosp., 292 N.J. Super. 21, 32-
33 (App. Div. 1996); N.J.R.E. 701; R. 4:10-2(d); R. 4:17-4. In
3
this case, plaintiff provided the information requested in
defendants’ interrogatories regarding her proposed treating
physician witnesses, and the trial court should have permitted
her to present the vital testimony of those witnesses pursuant
to N.J.R.E. 701. In light of the pivotal role of the IBS issue
in the jury’s verdict, the trial court’s decision to limit the
testimony of the treating gastroenterologist constituted
reversible error. Accordingly, plaintiff is entitled to a new
trial.
I.
On February 18, 1999, plaintiff commenced her employment as
a police dispatcher for the Township. At the time, the Township
maintained three shifts for police dispatchers: a morning
shift, an afternoon shift and a midnight shift. The Township’s
job description for dispatchers required employees to work all
three shifts on a rotating basis, with assignments determined in
part by seniority.
In 2003, plaintiff developed a digestive condition that
would later be diagnosed as IBS.1 Shortly thereafter, she became
1 IBS is one of the “most common functional gastrointestinal
disorders worldwide. . . . with anywhere from 5 to 15% of the
general population experiencing symptoms that would satisfy a
definition of IBS[.]” Alexander C. Ford et al., American
College of Gastroenterology Monograph on the Management of
Irritable Bowel Syndrome and Chronic Idiopathic Constipation,
109 Am. Journal of Gastroenterology S2 (Supp. 1 Aug. 2014). It
is diagnosed when the patient experiences “[r]ecurrent abdominal
4
a patient of Gary Ciambotti, M.D., a gastroenterologist. At
plaintiff’s request, Dr. Ciambotti wrote a series of notes to
her supervisors at the Township. In several of his notes, Dr.
Ciambotti stated that plaintiff’s IBS symptoms were under
control as long as she worked regular daytime hours, but would
be exacerbated by an assignment to the midnight shift.
In response to plaintiff’s requests and Dr. Ciambotti’s
correspondence, the Township initially provided plaintiff with a
steady afternoon shift for six months, and extended that
arrangement for an additional year. In October 2005, a
supervisor advised plaintiff that it was no longer possible for
the Township to consistently assign her to a daytime shift, due
to the burden imposed on other employees who covered the
remaining shifts. Plaintiff asked the Township to reconsider,
and with the cooperation of plaintiff’s colleagues, she was
permitted to continue working daytime shifts, but with no
guarantee that she would be permitted to entirely avoid midnight
shift assignments. At plaintiff’s request, Dr. Ciambotti
advised the Township in November 2005 that plaintiff could work
an occasional midnight shift.
pain or discomfort,” in conjunction with two or more associated
digestive symptoms, at least three days per month over a three-
month period. Ibid.5
Weeks later, however, plaintiff sought to be excused from
work entirely until the Township limited her schedule to daytime
shifts. In response to another letter from Dr. Ciambotti, the
Township granted a further accommodation, assigning plaintiff to
afternoon shifts to the extent that such shifts were available.
The Township required that plaintiff be available to work an
occasional midnight shift, and denied her request for extended
sick leave.2
In September 2006, Dr. Joseph Rochford, a psychiatrist,
began treating plaintiff. He diagnosed plaintiff with anxiety
and panic attacks and prescribed medication. After a staffing
change caused plaintiff to worry that she would again be asked
to work midnight shifts, she obtained a note from Dr. Rochford,
who stated that midnight shift assignments would exacerbate
plaintiff’s “stress” condition, and a note from Dr. Ciambotti,
who again opined that plaintiff should not be compelled to work
midnight shifts. In March 2007, Dr. Ciambotti stated that it
2 The Township arranged for plaintiff to be examined by a
gastroenterologist, who confirmed the diagnosis of IBS, but
maintained that, with proper medication, plaintiff was capable
of working “in her normal fashion.” The Township also required
that plaintiff be evaluated by a psychologist, who found no
evidence of “significant clinical pathology” but confirmed that
plaintiff was under stress when she anticipated the necessity of
working a midnight shift.
6
was “absolutely medically necessary” that the Township refrain
from assigning plaintiff to midnight shifts.
The dispute between plaintiff and the Township escalated on
December 24, 2007, when plaintiff declined her supervisor’s
request that she work a midnight shift, complained of heart
palpitations, and was taken to a hospital. Another dispatcher,
who had already worked a shift and a half, was compelled to
remain on duty for the shift assigned to plaintiff. This
development precipitated complaints by other dispatchers. At
that point, the Township concluded that plaintiff’s
unwillingness to work a midnight shift had imposed an undue
hardship on it. After a renewed request by Dr. Ciambotti that
plaintiff not be assigned any midnight shifts, even in
emergencies, the Township asked her to resign. Plaintiff
refused, and asked whether the Township could offer her another
job opportunity. Plaintiff was then offered, and accepted, a
position as a records clerk at a salary lower than the salary
that she was paid as a police dispatcher.
On September 16, 2009, plaintiff’s employment as a records
clerk for the Township was terminated. The Township cited
plaintiff’s record of taking sick days in excess of the number
allotted to her in 2007, 2008 and 2009. It attributed her
termination to “neglect of duty” and “chronic/excessive
absenteeism.”
7
II.
Plaintiff filed a LAD complaint against the Township, the
Department and four individual defendants.3 In an amended
complaint, plaintiff claimed that she was subjected to a hostile
work environment as a result of her alleged disability, that
defendants failed to provide a reasonable accommodation for her
disability, that she was wrongfully demoted or transferred from
her position as a police dispatcher as a result of her
disability, that her employment as a records clerk was
wrongfully terminated, and that she was subject to retaliation.
Defendants denied plaintiff’s allegations of discrimination, and
asserted that they offered reasonable scheduling accommodations.
In her answers to interrogatories served by defendants
during pretrial discovery, plaintiff identified Dr. Ciambotti
and Dr. Rochford as individuals with “knowledge, information or
evidence of the incident(s)” alleged in the complaint, and
listed both witnesses in response to another interrogatory
requesting the names of plaintiff’s treating physicians. In
response to an interrogatory seeking identification of “any
expert witnesses you may use at trial” and “the substance of the
opinions to be provided” by those expert witnesses, plaintiff
3 Prior to trial, the trial court granted summary judgment
dismissing plaintiff’s claims against two of the individual
defendants.
8
stated that she had not “retained witnesses at this time,” but
identified several “treating professionals [who] have expertise
and are expected to testify[.]” Plaintiff summarized Dr.
Ciambotti’s proposed testimony as follows:
[Dr. Ciambotti] will testify regarding
Plaintiff’s diagnosis of Irritable Bowel
Syndrome, namely that it is a disability, how
it [a]ffects her everyday life as well as what
steps need to be taken to prevent and alleviate
symptoms such as a regular sleep schedule,
medication regimen, and which factors, such as
stress and constant schedule changes, aggravate
her condition.
Plaintiff also informed defendants that Dr. Rochford would
testify about her “non-economic damages, particularly how the
stress, retaliation and discrimination by Defendants caused
plaintiff stress, anxiety.” Based upon the appellate record, it
does not appear that defendants requested that plaintiff serve
written reports by her treating physicians, that plaintiff
served such reports, or that defendants deposed the physicians.
On the parties’ joint witness list, Dr. Ciambotti and Dr.
Rochford were not listed among plaintiff’s experts, but were
designated as “plaintiff’s treating doctors” expected to testify
on her behalf.
The case was tried before a jury over thirteen trial days.
The issue now before the Court arose during a discussion between
the trial court and counsel regarding the notes written to the
Township by Dr. Ciambotti, Dr. Rochford, and two other
9
physicians who were not on plaintiff’s witness list. The trial
court decided to admit into evidence Dr. Ciambotti’s notes
regarding plaintiff’s IBS, with a limiting instruction,
directing the jury to consider them only as a request for a
reasonable accommodation, and not as evidence that plaintiff
suffered from any disease or illness. The trial court commented
that New Jersey law bars a treating physician from opining about
a plaintiff’s diagnosis and the impact of a plaintiff’s schedule
on her condition, if that physician is not designated as an
expert witness. The court rejected plaintiff’s counsel’s
contention that a treating physician is permitted to testify
about the patient’s symptoms, factors that worsen those
symptoms, and the patient’s care. Following that discussion,
the trial court issued the limiting instruction.
There remained, however, a dispute between the parties
regarding the scope of Dr. Ciambotti’s testimony. During the
treating physician’s direct examination, defendants objected to
plaintiff’s counsel’s request that Dr. Ciambotti define IBS for
the jury, and argued that the treating physician was barred from
any testimony about plaintiff’s diagnosis because he was not a
designated expert witness.
The trial court sustained defendants’ objection, stating
that Dr. Ciambotti should not opine on “diagnosis and treatment”
in light of the fact that he had not prepared an expert report.
10
The trial court permitted Dr. Ciambotti to identify the
conditions for which he treated plaintiff, and discuss his notes
to the Township, but barred any testimony by the treating
physician about the impact of plaintiff’s work schedule on her
IBS. Plaintiff’s counsel confined his direct examination of Dr.
Ciambotti to two subjects: the physician’s series of notes to
the Township and his statement that he was currently treating
plaintiff for two digestive conditions, IBS and gastroesophageal
reflux disease, with no explanation about either condition.
Pursuant to Rule 1:8-8(d), members of the jury submitted
questions to be posed to Dr. Ciambotti. The trial court
permitted the physician to respond to two jury questions, one
addressing patients’ requests that physicians write notes to
employers, and the other inquiring whether plaintiff had an
ulcer. The court, however, declined the jury’s request that Dr.
Ciambotti be asked about the impact of changing work schedules
on the efficacy of IBS medications, the importance of an IBS
patient’s regular meal schedule, and the classification of IBS
as a disability.
Plaintiff also presented the testimony of Dr. Rochford. On
direct examination, the psychiatrist briefly described his
treatment of plaintiff for stress and related complaints. The
trial court admitted into evidence a letter from Dr. Rochford to
the Township recommending that plaintiff not be assigned to
11
midnight shifts, with a limiting instruction, directing the jury
to consider the letter only as a request for a reasonable
accommodation. The court reiterated to plaintiff’s counsel that
because Dr. Rochford was not designated as an expert witness,
counsel would not be permitted to elicit from the psychiatrist
any opinion regarding plaintiff’s diagnosis. Dr. Rochford
briefly testified within the limits set by the trial court.
Plaintiff later called as a witness an expert psychologist,
who opined that as a result of stress triggered by her work
schedule, plaintiff suffered from an adjustment disorder with
mixed anxiety and depression.
Defendants called two expert witnesses. Their expert
gastroenterologist opined that IBS is a functional disease not
characterized by visible structural abnormalities, that IBS
patients can work normally if they are permitted to eat at
normal intervals, that he had never treated a patient with IBS
who was disabled, and that plaintiff’s digestive symptoms were
within the normal range. Defendants’ expert psychologist
concurred that patients with IBS may function effectively
despite changing conditions in the workplace.
At the conclusion of the evidence, the trial judge repeated
his limiting instruction, directing the jury to consider the
physicians’ notes only as proof that plaintiff had requested
reasonable accommodations. The court cautioned the jury that
12
only three experts –- plaintiff’s expert psychologist and
defendants’ expert gastroenterologist and psychologist –- had
testified, and that the jury should not consider “opinions
expressed by other witnesses as evidence of the plaintiff’s
medical condition.” Plaintiff did not object to the jury
charge.
The jury returned a verdict of no cause of action,
determining that plaintiff had not proven by a preponderance of
the evidence that she suffered from a disability that precluded
her from working the midnight shift. The jury also rejected
plaintiff’s claim that defendants retaliated against her for
complaining about discrimination and for filing a lawsuit.
After her motion for judgment notwithstanding the verdict
(JNOV) under Rule 4:40-2 was denied, plaintiff moved for a new
trial pursuant to Rule 4:49-1(a). She cited, among other
grounds, the trial court’s restriction on the testimony of her
treating physicians. Defendants countered that the treating
physicians had rendered “net opinions” and that the trial court
had properly limited their testimony.
Although the trial court conceded that treating physicians
may be permitted to testify about the issue of causation, it
characterized its ruling at trial as an invocation of Rule 4:17-
4(e), based on the treating physicians’ failure to supply expert
reports. The court stated that the limiting instruction given
13
to the jury with respect to the physicians’ notes resolved any
issue regarding their testimony. It denied plaintiff’s motion
for a new trial.
Plaintiff appealed the trial court’s judgment. In an
unpublished opinion, an Appellate Division panel reversed the
trial court’s judgment and remanded for a new trial on the
ground that the trial court had improperly restricted the
testimony of Dr. Ciambotti. The panel reasoned that under
Stigliano, supra, 140 N.J. at 314, and Ginsberg, supra, 292 N.J.
Super. at 32-33, the trial court erred by barring Dr. Ciambotti
from testifying about plaintiff’s diagnosis and treatment and
when it precluded Dr. Ciambotti from explaining the reasons for
his notes to the Township. The panel concluded that the trial
court’s restriction on the testimony of Dr. Ciambotti was not
harmless error. The panel did not specifically address a second
issue raised by plaintiff on appeal -- whether the limitations
imposed on the testimony of plaintiff’s treating psychiatrist,
Dr. Rochford, constituted error.
We granted defendant’s petition for certification. 220
N.J. 98 (2014). We also granted the motion of the National
Employment Lawyers Association of New Jersey (NELA-NJ) to appear
as amicus curiae.
III.
14
Defendants urge the Court to reverse the Appellate
Division’s determination and reinstate the trial court’s
judgment. They contend that under this Court’s decisions in
Clowes v. Terminix International, Inc., 109 N.J. 575 (1988), and
Viscik v. Fowler Equipment Co., 173 N.J. 1 (2002), a LAD
disability claim must be supported by the testimony of retained
expert witnesses, not the speculative testimony of treating
physicians called as witnesses at trial. Defendants
characterize the panel’s opinion as an unwarranted extension of
this Court’s decision in Stigliano, which would authorize a
treating physician in a LAD disability case to provide opinion
testimony unrelated to either objective standards or the
physician’s treatment of the plaintiff.
Plaintiff counters that the trial court’s interpretation of
N.J.R.E. 701 contravened Stigliano and Appellate Division
decisions applying its principles. She contends that a treating
physician need not be designated as an expert witness in order
to offer a medical opinion on the cause of his or her patient’s
condition. Plaintiff argues that the constraints imposed by the
trial court on the testimony of Dr. Ciambotti and Dr. Rochford
made it impossible for her to demonstrate a disability for
purposes of LAD.
Amicus curiae NELA-NJ contends that the trial court’s
restriction of the testimony of Dr. Ciambotti constituted error
15
because the limitations imposed by a medical condition on a
patient’s activities are an integral component of medical
treatment. NELA-NJ argues that the trial court’s error
substantially prejudiced plaintiff’s case, and that plaintiff is
entitled to a new trial.
IV.
A.
We begin our analysis with the standard of review governing
the trial court’s denial of plaintiff’s motion for a new trial,
pursuant to Rule 4:49-1. An appellate court will not reverse a
trial court’s determination of a motion for a new trial “unless
it clearly appears that there was a miscarriage of justice under
the law.” R. 2:10-1; see also State v. Sims, 65 N.J. 359, 373-
74 (1974) (“[T]he trial court’s ruling on [a motion to grant a
new trial] shall not be reversed unless it clearly and
convincingly appears that there was a manifest denial of justice
under the law.”). A reviewing court should not disturb the
findings of the jury merely because it would have found
otherwise upon review of the same evidence. Carrino v. Novotny,
78 N.J. 355, 360 (1979) (“[A] jury verdict, from the weight of
evidence standpoint, is impregnable unless so distorted and
wrong, in the objective and articulated view of a judge, as to
manifest with utmost certainty a plain miscarriage of
16
justice.”). That principle guides our determination of this
appeal.
B.
Plaintiff’s claims are premised on N.J.S.A. 10:5-4.1, which
construes other provisions of LAD to prohibit unlawful
discrimination “against any person because such person is or has
been at any time disabled or any unlawful employment practice
against such person, unless the nature and extent of the
disability reasonably precludes the performance of the
particular employment.” The Legislature intended this provision
“to secure to handicapped individuals full and equal access to
society, bounded only by the actual physical limits that they
cannot surmount.” Andersen v. Exxon Co., 89 N.J. 483, 495
(1982); Zive v. Stanley Roberts, Inc., 182 N.J. 436, 446 (2005)
(quoting Andersen, supra, 89 N.J. at 495); see also Jansen v.
Food Circus Supermarkets, Inc., 110 N.J. 363, 374 (1988) (“The
import of the Law is that the handicapped should enjoy equal
access to employment, subject only to limits that they cannot
overcome.”).
The treating physician testimony excluded at trial was
offered to address a pivotal element of plaintiff’s claims for
disability discrimination. Under the statutory framework that
governs LAD disability claims, the factfinder’s first inquiry is
whether the plaintiff has proven that he or she had a disease or
17
condition recognized as a disability under the LAD. N.J.S.A.
10:5-4.1; N.J.S.A. 10:5-5(q); see Victor v. State, 203 N.J. 383,
408-09 (2010) (identifying elements of prima facie case of
disability claims based on failure to hire, wrongful discharge,
retaliation, and hostile work environment); Viscik, supra, 173
N.J. at 15 (noting that “[t]he threshold inquiry in a
handicapped discrimination discharge case is whether the
plaintiff in question fits the statutory definition of
‘handicapped’”);4 Clowes, supra, 109 N.J. at 597 (same);
Andersen, supra, 89 N.J. at 499 (same).
For purposes of determining whether an employee meets that
threshold burden, the LAD broadly defines “disability” as
follows:
“Disability” means physical disability,
infirmity, malformation or disfigurement which
is caused by bodily injury, birth defect or
illness including epilepsy and other seizure
disorders, and which shall include, but not be
limited to, any degree of paralysis,
amputation, lack of physical coordination,
blindness or visual impediment, deafness or
hearing impediment, muteness or speech
impediment or physical reliance on a service
or guide dog, wheelchair, or other remedial
appliance or device, or any mental,
psychological or developmental disability,
including autism spectrum disorders, resulting
from anatomical, psychological, physiological
or neurological conditions which prevents the
4 On January 1, 2004, the Legislature amended N.J.S.A. 10:5-5(q)
to delete the term “handicapped” in favor of the term
“disability.” L. 2003, c. 180, § 5 (eff. Jan. 1, 2004)
(amending N.J.S.A. 10:5-5(q)).
18
normal exercise of any bodily or mental
functions or is demonstrable, medically or
psychologically, by accepted clinical or
laboratory diagnostic techniques. Disability
shall also mean AIDS or HIV infection.
[N.J.S.A. 10:5-5(q).]
As this Court observed in Viscik, supra, the two categories
of disability, “physical and non-physical,” are distinct from
one another and require different forms of proof. 173 N.J. at15 (citing Rosemary Alito, New Jersey Employment Law, § 4-14:1,
170 (2d ed. 1999)); see also Clowes, supra, 109 N.J. at 594(“[A]n alcoholic might suffer from either a ‘physical disability
[or] infirmity . . . which is caused by illness’ or from a
‘mental [or] psychological . . . disability’ . . . or both.”)
(third ellipsis added) (quoting N.J.S.A. 10:5-5(q)). To
demonstrate a physical disability, a plaintiff must prove that
he or she is “(1) suffering from physical disability, infirmity,
malformation or disfigurement (2) which is caused by bodily
injury, birth defect or illness including epilepsy.” Viscik,
supra, 173 N.J. at 15 (citing N.J.S.A. 10:5-5(q)).5
5 To meet the standard for a non-physical disability, “a
plaintiff must prove that he or she is suffering (1) from any
mental, psychological or developmental disability (2) resulting
from an anatomical, psychological, physiological or neurological
condition that either (a) prevents the normal exercise of any
bodily or mental functions or (b) is demonstrable, medically or
psychologically, by accepted clinical or laboratory diagnostic
techniques.” Viscik, supra, 173 N.J. at 16 (citing Alito,
supra, New Jersey Employment Law, § 4-14:1 at 170; Clowes,
supra, 109 N.J. at 594).
19
In Viscik and Clowes, this Court addressed the evidentiary
burden imposed on a LAD plaintiff to prove a disability that is
not readily apparent. Viscik, supra, 173 N.J. at 16-18; Clowes,
supra, 109 N.J. at 597-99. The Court’s opinion in Clowes,
supra, arose from the plaintiff’s allegation that he was
unlawfully discharged from his employment due to his alcoholism.
109 N.J. at 584. The Court found that alcoholism is a
“handicap” within the meaning of the LAD’s provision as it then
was drafted, based on evidence proffered by the plaintiff, which
consisted primarily of the testimony of his expert, a recognized
authority on alcoholism. Id. at 591-93, 595.
The Court concluded, however, that the plaintiff’s proofs
“fell short of demonstrating that he was an alcoholic.” Id. at
595. It observed that “[t]he only evidence in the record
regarding Clowes’s alleged alcoholism is his own assertion that
he was an alcoholic, and a partial medical record from his
hospitalization” at a rehabilitation center. Id. at 598. The
Court noted that neither the plaintiff’s expert nor any other
witness on his behalf had conducted a physical examination or
reviewed the relevant medical records:
Conspicuously absent from the record is any
testimony from a treating or examining
physician that Clowes had been diagnosed as an
alcoholic. Given the complexity of the many
diagnostic procedures involved, expert
medical testimony is required to establish the
fact of the employee’s alcoholism.
20
[Id. at 597.]
Supported only by the generic testimony of the plaintiff’s
expert regarding alcoholism as a disease -– not by the testimony
of an expert or treating physician familiar with his personal
medical history -- the disability claim of the plaintiff in
Clowes failed. Ibid.In Viscik, supra, the disability alleged by the plaintiff
was her morbid obesity, attributed to two factors, a “metabolic
disorder that prevent[ed] [her] body from breaking down fats,”
and injuries from a car accident that triggered degenerative
arthritis in her joints, restricted her lung capacity, and
caused depression. 173 N.J. at 6. In support of her claim that
her employer discharged her because of her disability, the
plaintiff offered the testimony of her “treating physician since
1991,” who “testified about Viscik’s illnesses, including her
obesity and its complications, as a medical expert qualified in
internal medicine and weight-loss.” Id. at 10. The Court
concluded that “Viscik’s testimony, medical history, and her
expert’s opinion fully support the finding that she established
a physical handicap within the meaning of LAD.” Id. at 17.
In that context, the Court held that “[w]here the existence
of a handicap is not readily apparent, expert medical evidence
is required.” Id. at 16 (citing Clowes, supra, 109 N.J. at 591-
21
93; Rogers v. Campbell Foundry, Co., 185 N.J. Super. 109, 112
(App. Div. 1982)). It noted that courts deciding LAD disability
claims “place a high premium on the use and strength of
objective medical testimony in proving the specific elements of
each test contained in the statute.” Ibid. (citing Clowes,
supra, 109 N.J. at 591-93; Enriquez v. W. Jersey Health Sys.,
342 N.J. Super. 501, 521 (App. Div. 2001)); see also Victor,
supra, 203 N.J. at 422-23 (adhering to mandate of Viscik that
when disability is not readily apparent, “expert medical
evidence is required”); Wojtkowiak v. New Jersey Motor Vehicle
Comm’n, 439 N.J. Super. 1, 15 (App. Div. 2015) (same); Domurat
v. Ciba Specialty Chems., 353 N.J. Super. 74, 90 (App. Div.)
(same), certif. denied, 175 N.J. 77 (2002).
This Court has thus held that a LAD disability claim, in
which the plaintiff’s disability is not readily apparent, must
be supported by “expert medical evidence,” also characterized as
“objective medical testimony.” Viscik, supra, 173 N.J. at 16;
see also Clowes, supra, 109 N.J. at 597-98 (noting that
diagnosis of alcoholism entails complex determinations that must
be made by medical professionals). By virtue of that
requirement, a jury is guided by the testimony of witnesses
qualified to assist it in understanding the disease or condition
at issue in a given case.
C.
22
In that setting, we consider the trial court’s conclusion
that the testimony of a treating physician, not identified as an
expert witness, is inadmissible to support a LAD plaintiff’s
contention that he or she has a disability that is not readily
apparent.
Our courts have long permitted treating physicians to offer
medical testimony regarding the diagnosis and treatment of their
patients, pursuant to N.J.R.E. 701. That rule authorizes a
court to admit the “testimony in the form of opinions or
inferences” of a lay witness, if that testimony “(a) is
rationally based on the perception of the witness and (b) will
assist in understanding the witness’ testimony or in determining
a fact in issue.” N.J.R.E. 701.
This Court specifically addressed the testimonial role of a
treating physician in Stigliano, supra, 140 N.J. at 310-17.
There, the defendant physicians in a medical malpractice case
sought to introduce the videotaped depositions of three
physicians who had treated the infant plaintiff for seizures,
which the plaintiffs claimed were caused by immunizations
administered by the defendants. Id. at 307-08. The treating
physicians testified that the child’s seizures were not caused
by the defendants’ treatment, thus undermining the claims of
their patient. Id. at 309. The trial court barred the
defendants from presenting the treating physicians’ testimony,
23
and the Appellate Division reversed that determination. Id. at
309-10. This Court granted the plaintiffs’ motion for leave to
appeal. Id. at 307.
Noting that “the characterization of the treating doctors’
testimony as ‘fact’ or ‘opinion’ creates an artificial
distinction[,]” the Court identified the “critical point”
regarding treating physician testimony: “the treating doctors
to treat their patients must determine the cause of a disease,
whether that determination is characterized as fact or opinion.”
Id. at 314. The Court held that
as fact witnesses, the treating doctors may
testify about their diagnosis and treatment of
[the infant’s] disorder, including their
determination of that disorder’s cause. Their
testimony about the likely and unlikely causes
of [the infant’s] seizure disorder is factual
information, albeit in the form of opinion.
See N.J.R.E. 701 (permitting fact witness to
testify in the form of opinion to assist in
determining fact in issue). Because the
determination of the cause of a patient’s
illness is an essential part of diagnosis and
treatment, a treating physician may testify
about the cause of a patient’s disease or
injury. That holding should not deter
patients from freely disclosing information
necessary for proper treatment and diagnosis.
Only after patients put their injury or
disease in issue may a treating doctor testify
about the diagnosis and treatment of that
injury or disease.
[Ibid.]
The Court thus acknowledged that a treating physician may
be permitted to testify as to the diagnosis and treatment of his
24
or her patient, pursuant to N.J.R.E. 701.6 Ibid.; see also
Ginsberg, supra, 292 N.J. Super. at 32 (holding that “[i]t is
well settled that treating physicians may testify as to any
subject relevant to the evaluation and treatment of their
patients”); Biunno, Weissbard & Zegas, Current N.J. Rules of
Evidence, comment 4 to N.J.R.E. 701 (Gann 2015) (noting that
“[w]hen treating physicians are called to testify about their
observations, diagnosis and treatment of an injured or ailing
plaintiff, they are not testifying as expert witnesses, even
though they may possess the requisite qualifications[,]” but are
offering factual evidence and opinion evidence governed by
N.J.R.E. 701).
Our court rules provide for pretrial disclosure of the
proposed testimony of treating physicians, so that the testimony
may be explored by the opposing party in discovery. An
adversary may request, by interrogatory, “the name of an expert
6 Although the defendant physicians, not the plaintiff, called
the infant plaintiff’s treating physicians in Stigliano, supra,
that factor did not bar the testimony. 140 N.J. at 312-13. The
Court distinguished Graham v. Gielchinsky, 126 N.J. 361 (1991),
in which it had held that absent exceptional circumstances,
parties may not present the opinion testimony of experts whom
their adversaries have consulted, observing that the plaintiffs
had consulted the treating physicians for purposes of treatment,
not litigation. Ibid. The Court accordingly reasoned that the
defendants’ use of the infant plaintiff’s physicians’ testimony
would not affect the child’s medical treatment or the
plaintiffs’ counsel’s search for experts. Id. at 313.
25
or treating physician of the answering party or a copy of the
expert’s or treating physician’s report[.]” R. 4:17-4(a).
Pursuant to Rule 4:17-4(e), the responsive party shall
annex to the interrogatory an exact copy of
the entire report or reports rendered by the
expert or physician. The report shall contain
a complete statement of that person’s opinions
and the basis therefor; the facts and data
considered in forming the opinions; the
qualifications of the witness, including a
list of all publications authored by the
witness within the preceding ten years; and
whether compensation has been or is to be paid
for the report and testimony and, if so, the
terms of the compensation.
[R. 4:17-4(e).]
Rule 4:10-2(d), which sets forth the method by which
“[d]iscovery of facts known and opinions held by experts” may be
obtained, similarly provides for notice and discovery of the
proposed testimony of treating physicians. The rule authorizes
discovery by interrogatory of “the names and addresses of each
person whom the other party expects to call at trial as an
expert witness, including a treating physician who is expected
to testify[.]” R. 4:10-2(d)(1). The opposing party may elect
to explore the treating physician’s opinions in a deposition
pursuant to Rule 4:10-2(d)(2), as well as through supplemental
written discovery. Thus, under the court rules, a party seeking
to present treating physician testimony at trial must disclose
26
the substance of the witness’s anticipated testimony, and the
basis for that testimony, if requested to do so in discovery.
The testimony of a treating physician is subject to an
important limitation. Unless the treating physician is retained
and designated as an expert witness, his or her testimony is
limited to issues relevant to the diagnosis and treatment of the
individual patient. See, e.g., Stigliano, supra, 140 N.J. at
314-16 (authorizing treating physicians to testify as to care
and diagnosis of patient); Hutchinson v. Atlantic City Med.
Center-Mainland, 314 N.J. Super. 468, 479 (App. Div. 1998)
(same); Serrano v. Levitsky, 215 N.J. Super. 454, 457-59 (Law
Div. 1986) (barring treating physician from testifying about
defendant doctors’ alleged malpractice because that subject was
beyond scope of patient care); Piller v. Kovarsky, 194 N.J.
Super. 392, 399-400 (Law Div. 1984) (same). Given that
distinction, if a particular claim requires medical testimony
extending beyond the plaintiff’s own diagnosis and treatment,
the plaintiff may require the testimony of an expert, conforming
to N.J.R.E. 702 and 703.
Contrary to defendants’ contention, nothing in this Court’s
opinions in Clowes and Viscik prohibit the admission of treating
physician testimony to support a LAD disability claim. In both
cases, the Court recognized that the question of disability is a
medical determination and that a jury should be assisted by the
27
testimony of qualified witnesses in that determination. Viscik,
supra, 173 N.J. at 16; Clowes, supra, 109 N.J. at 591-93. The
Court did not exclude the testimony of treating physicians;
indeed, in Clowes, it identified the fact that plaintiff’s
expert witness had neither examined him or reviewed his medical
records, and the absence of testimony by a treating or examining
physician, as deficiencies in the plaintiff’s proofs. Clowes,
supra, 109 N.J. at 597. If the question of a plaintiff’s
disability can be effectively addressed by testimony limited to
the plaintiff’s diagnosis and treatment, a treating physician
may provide the “expert medical evidence” and “objective medical
testimony” envisioned by the Court in Viscik.
In sum, in an appropriate setting, the testimony of a
treating physician may be admitted to support a plaintiff’s LAD
disability claim, provided that the proponent of the testimony
provides notice and responds to discovery requests in accordance
with the court rules, and the testimony satisfies N.J.R.E. 701
and other applicable Rules of Evidence. Stigliano, supra, 140
N.J. at 314; Ginsberg, supra, 292 N.J. Super. at 32-33.
D.
In accordance with that principle, the trial court should
have permitted Dr. Ciambotti to testify about plaintiff’s IBS.
Plaintiff provided the information about Dr. Ciambotti’s
proposed opinion that was requested in defendants’
28
interrogatories: the identification of Dr. Ciambotti as a
person with knowledge relevant to plaintiff’s claims and as one
of plaintiff’s treating physicians, and a summary of his
proposed testimony. She complied with the discovery requests
posed to her, as they related to Dr. Ciambotti.
Moreover, as described by plaintiff’s counsel to the trial
court and reflected in the physician’s correspondence with the
Township, the proposed testimony of Dr. Ciambotti would have
been limited to his diagnosis and treatment of plaintiff. The
treating gastroenterologist would have addressed plaintiff’s
symptoms, the basis for plaintiff’s IBS diagnosis, the impact of
IBS on plaintiff’s everyday life, and the steps that Dr.
Ciambotti recommended to alleviate plaintiff’s symptoms.
Nothing in the record suggests that plaintiff intended to ask
Dr. Ciambotti to opine on global questions beyond the scope of
his role as plaintiff’s treating physician. The trial court
erred when it barred Dr. Ciambotti from testifying about
plaintiff’s diagnosis and treatment.
In the broader setting of plaintiff’s trial, the trial
court’s constraint on Dr. Ciambotti’s testimony was not harmless
error. As confirmed by its proposed questions regarding IBS
medications and the impact of a patient’s diet on the condition,
the jury sought information about plaintiff’s IBS diagnosis, but
was denied that information. Thus, plaintiff was not afforded a
29
fair opportunity to prove that she suffered from a disability
within the meaning of the LAD. N.J.S.A. 10:5-5(q); see also
Tynan v. Vicinage 13 of Superior Ct. of New Jersey, 351 N.J.
Super. 385, 399 (App. Div. 2002) (holding that LAD disability
claim based in part on IBS alleged by plaintiff gave rise to
jury question sufficient to withstand summary judgment).
Moreover, because plaintiff failed to meet her threshold burden
of proving a disability, the jury never considered the other
elements of her hostile work environment, failure to
accommodate, wrongful demotion or transfer, and wrongful
termination claims. The limitations on Dr. Ciambotti’s
testimony may also have affected the jury’s determination of
plaintiff’s retaliation claim, which was premised in part on her
claim of disability. The trial court’s error with respect to
Dr. Ciambotti’s testimony was not harmless.
The trial court also erred when it restricted the testimony
of plaintiff’s treating psychiatrist, Dr. Rochford, whose
testimony would have supported her claim for non-economic
damages. Dr. Rochford was properly designated by plaintiff as
one of her treating physicians, and plaintiff gave defendants a
description of the psychiatrist’s expected testimony, as
requested in defendants’ interrogatories. The opinions that
plaintiff sought to elicit from Dr. Rochford were properly
confined to plaintiff’s symptoms, diagnosis and care.
30
Plaintiff’s treating psychiatrist should have been permitted to
testify about those topics, subject to the limitations of
N.J.R.E. 701 and other applicable Rules of Evidence. Because we
affirm the Appellate Division’s determination that the trial
court should have granted plaintiff’s motion for a new trial,
based on the restrictions imposed on the testimony of Dr.
Ciambotti, we need not determine whether the trial court’s
limitations on the testimony of Dr. Rochford constituted
reversible error.
Based on the limitations imposed on Dr. Ciambotti’s
testimony, we concur with the Appellate Division that the trial
court should have found a “miscarriage of justice under the law”
under Rule 4:49-1(a). See R. 2:10-1; Viscik, supra, 173 N.J. at
20 (ordering new trial where trial court instruction
“essentially focused the jury’s attention on a claim not at
issue in the case and mixed two theories, pretext and reasonable
accommodation, that are completely and purposefully distinct
from one another”).7 Plaintiff is entitled to a new trial.
7 The trial court’s denial of plaintiff’s motion for a JNOV was
not addressed by the Appellate Division panel. On appellate
review of a trial court’s denial of a motion for JNOV, “we ‘must
accept as true all evidence supporting the position of the party
defending against the motion and must accord that party the
benefit of all legitimate inferences which can be deduced [from
the evidence].’” Besler v. Bd. of Educ. of W. Windsor-
Plainsboro Reg’l Sch. Dist., 201 N.J. 544, 572 (2010)
(alteration in original) (quoting Lewis v. Am. Cyanamid Co., 155
31
V.
We add the following comment regarding pretrial discovery
of treating physician testimony in civil litigation. Rules
4:17-4(a), (e) and 4:10-2(d)(1) compel the service of reports by
treating physicians who will testify at trial, in the event that
those reports are requested in discovery.8 A treating
physician’s report serves an important function; it provides the
adversary with notice of the facts and opinions to which the
physician will testify, and permits that party to assess the
need for additional discovery and for medical testimony at
trial. We recognize, however, that the preparation of a
detailed written report may impose a significant burden on a
treating physician who has not sought to be involved in the
litigation, and has not been retained as an expert witness.
We request that the Civil Practice Committee consider
whether Rules 4:17-4(a), (e) and 4:10-2(d)(1) should be amended
to clarify the form and content of a report that must be served,
if requested, in advance of a treating physician’s testimony.
We suggest that the Committee evaluate, among other options, an
N.J. 544, 567 (1998)). That standard is not satisfied in this
case; plaintiff’s motion for JNOV was properly denied.
8 We do not agree with plaintiff’s contention that Rules 4:17-
4(a), (e) and 4:10-2(d)(1) require service of a treating
physician’s report only if the treating physician happens to
have prepared one.
32
amendment permitting the service of a summary of the treating
physician’s opinions and the basis for those opinions, as an
alternative to a written report prepared by the physician. See,
e.g., R. 3:13-3(b)(1)(I), -3(b)(2)(E) (authorizing, in criminal
case in which expert is expected to testify, service of “a
statement of the facts and opinions to which the expert is
expected to testify and a summary of the grounds for each
opinion”).
VI.
The judgment of the Appellate Division is affirmed, and the
matter is remanded to the trial court for a new trial.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE
PATTERSON’s opinion. JUSTICE FERNANDEZ-VINA did not
participate.
33
SUPREME COURT OF NEW JERSEY
NO. A-25 SEPTEMBER TERM 2014
ON CERTIFICATION TO Appellate Division, Superior Court
PATRICIA DELVECCHIO,
Plaintiff-Respondent,
v.
TOWNSHIP OF BRIDGEWATER, TOWNSHIP OF
BRIDGEWATER POLICE DEPARTMENT, CHIEF
RICHARD BORDEN, and WILLIAM CONNIFF,
Defendants-Appellants,
and
EDWIN J. SKIDMORE and CATHY HAMILTON,
Defendants.
DECIDED April 28, 2016
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
AFFIRM AND
CHECKLIST
REMAND
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA ------------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6