NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2392-13T4
ESTATE OF PATRICIA GRIECO, by its
administrator VINCENT GRIECO, and
APPROVED FOR PUBLICATION
VINCENT GRIECO, individually,
May 19, 2015
Plaintiffs-Appellants,
APPELLATE DIVISION
v.
HANS J. SCHMIDT, M.D. and ADVANCED
LAPAROSCOPIC ASSOCIATES,
Defendants-Respondents.
___________________________________________________
Submitted April 14, 2015 – Decided May 19, 2015
Before Judges Fisher, Nugent and Manahan.
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).
The opinion of the court was delivered by
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 knowledge in circumstances indicating that
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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 staff
she was experiencing chest pain, and that she was told by
Schmidt's staff that her pain was a normal complication of
surgery caused by gas.1
After hearing argument, but without reading the deposition
testimony of the witnesses, the judge denied plaintiffs' request
for a Rule 104 hearing and for the most part2 denied plaintiffs'
motion to admit the proposed hearsay testimony. The judge
labeled the testimony about what Patricia was told by Schmidt's
staff as "classic double hearsay" that should be excluded
because defendants would not be able to challenge the statements
through cross-examination and because there was "no mechanism to
ensure [] trustworthiness." The judge concluded by stating:
my ruling in this case is certainly, for
example, Mr. Grieco can say that he observed
[Patricia] having chest pain or that she
told him that she had chest pain. But any
1
The proposed testimony would have included Patricia's statement
that she was told by defendant's staff that she should purchase
Gas-X for her chest pains. Plaintiffs planned to corroborate
this testimony with evidence that one witness saw "Gas-X" listed
at the top of Patricia's shopping list.
2
The judge did not bar witnesses from recounting Patricia's
complaints of chest pains.
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communication in terms of what . . .
[Patricia] said that she told to someone
else and what that someone else then
responded to her, that information is double
hearsay and cannot be . . . testimony in
this trial.
The judge further explained that "[t]he part [of the testimony
that] could not overcome the hearsay exception was the part of
the conversation between [Patricia] and whoever it is she's
having the communication with at the office of Dr. Schmidt." In
response, plaintiffs argued those statements – made by an
unidentified individual over the telephone and Kathleen Connor,
a bariatric nurse, during an office visit — were admissible
pursuant to N.J.R.E. 803(b)(4).3 Additionally, plaintiffs
maintained all Patricia's statements were trustworthy because
they were made within a very short time after her communications
with Schmidt's staff. The judge concluded that a lack of
"corroborating evidence pertaining to the truthfulness"
precluded admissibility of those statements allegedly made by
Schmidt's staff. The judge therefore barred testimony that
Patricia "told [potential witnesses] that the office staff told
her to take Gas-X."
3
N.J.R.E. 803(b)(4) permits admission of otherwise inadmissible
hearsay where the evidence is offered against a party and is "a
statement by the party's agent or servant concerning a matter
within the scope of the agency or employment, made during the
existence of the relationship."
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On December 20, 2013, an order was entered barring
plaintiffs from introducing evidence:
concerning any statements that [Patricia]
may have made to third parties as to what
was told to her by the "unknown employee" of
[] defendant during the phone calls of
[November 6] and as to what was told to her
by [] defendant's bariatric nurse . . .
during her office visit on [November 8].
On January 6, 2014, the judge granted plaintiffs' request to
voluntarily dismiss the case without prejudice – and certified
that order as final, citing Rule 4:42-2 – while also, among
other things, setting the stage for a resumption of the
proceedings in the trial court should we determine the evidence
ruling was incorrect.4
Plaintiffs then filed this appeal, seeking our review of
the December 20 order. Plaintiffs argue that the hearsay
statements as to what Patricia told the proposed witnesses she
was told by defendant's staff were admissible or, if there were
doubts about the trustworthiness of such statements, that the
judge should at least have conducted a Rule 104 hearing.5
4
For example, in the event we were to reverse, the dismissal
order memorialized defendants' waiver of a statute-of-
limitations defense, plaintiffs' waiver of pre-judgment interest
accruing during the intervening time period, and both parties'
waiver of the right to conduct further discovery.
5
We briefly pause to express our chagrin about the manner in
which "finality" was achieved in the trial court. Nevertheless,
(continued)
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It is helpful to start with the fundamental concept that
hearsay is "a statement, other than one made by the declarant
while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted." N.J.R.E. 801(c).
Unless falling within one of the many stated exceptions, hearsay
is inadmissible. N.J.R.E. 802; State v. Long, 173 N.J. 138, 152
(2002). The prohibition on hearsay is intended to "ensure the
accuracy of the factfinding process by excluding untrustworthy
statements, such as those made without the solemnity of the
oath, and not subject to cross-examination . . . or the jury's
critical observation of the declarant's demeanor and tone."
State v. Engel, 99 N.J. 453, 465 (1985); see also Neno v.
Clinton, 167 N.J. 573, 579 (2001).
Plaintiffs argue that one such hearsay exception is
applicable here, namely, the exception contained in N.J.R.E.
804(b)(6), which we quoted above. To qualify for this
exception:
(continued)
because we think it highly likely we would have granted leave to
appeal after entry of the December 20 order – had leave been
sought – we proceed to consider the merits of the appeal. We
cannot stress, however, the importance of the parties actually
applying to this court for leave to appeal instead of concocting
ways in the trial court to give an interlocutory order the
appearance of finality. See Grow Co. v. Chokshi, 403 N.J.
Super. 443, 457-60 (App. Div. 2008).
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(1) the declarant must be dead; (2) the
statement must have been made in good faith;
(3) the statement must have been made upon
the declarant's own personal knowledge; and
(4) there must be a probability from the
circumstances that the statement is
trustworthy.
[DeVito v. Sheeran, 165 N.J. 167, 194
(2000).]
In considering the application of this rule, the judge "must
make particularized findings of good faith, personal knowledge,
and trustworthiness[.]" Ibid.; see also Jeter v. Stevenson, 284
N.J. Super. 229, 233-34 (App. Div. 1995).
Here, in the absence of further examination of the evidence
in question by way of a Rule 104 hearing, we must conclude that,
on the face of the proposed testimony, all four criteria favored
admission. Patricia is deceased. Her statements were
ostensibly made in good faith.6 The statements she conveyed to
6
Along these same lines, N.J.R.E. 803(c)(3) permits admission of
"[a] statement made in good faith of the declarant's then
existing state of mind, emotion, sensation or physical condition
(such as . . . mental feeling, pain, or bodily health) . . . ."
These types of statements are considered to have been made in
good faith "when made in a natural manner and under
circumstances dispelling suspicion and involving no suggestion
of sinister or improper motives . . . ." State v. Thornton, 38
N.J. 380, 390 (1962). In a dental malpractice case, we found
that testimony from a plaintiff's mother and a friend that the
plaintiff had complained of pain after a dental procedure should
have been admissible pursuant to N.J.R.E. 803(c)(3) because the
plaintiff spoke to those witnesses the day of and the day after
undergoing the procedure and the statements were made "under
circumstances that do not suggest anything other than good
(continued)
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others were apparently within her personal knowledge. And the
circumstances suggest the trustworthiness of the evidence; that
is, there is no apparent reason for Patricia to have
misrepresented to her husband or to other family members or
friends how she felt, the pains she claimed to have experienced,
what she said to her doctor or his staff, and what she was told
in response.
As Judge Keefe explained in Beckwith v. Bethlehem Steel
Corp., 185 N.J. Super. 50, 63 (Law Div. 1982), in applying the
predecessor to N.J.R.E. 804(b)(6), "an absolute standard of
trustworthiness is not essential before evidence is admissible."
It is only necessary that the trial judge find, in engaging in a
subjective analysis, "a probability that the statement is
trustworthy from the flavor of the surrounding circumstances."
Ibid. The Supreme Court later adopted this standard in DeVito,
supra, 165 N.J. at 195. In engaging in this analysis, the trial
judge may consider: "whether the statement was made under oath;
the duration of the time between the event and the statement;
whether the declarant had firsthand knowledge; and the
(continued)
faith," notably the plaintiff "spoke to people one would
naturally voice concerns to." Roper v. Blumenfeld, 309 N.J.
Super. 219, 235-37 (App. Div. 1998).
8 A-2392-13T4
credibility of the declarant." Id. at 195-96 (citing 2
McCormick on Evidence § 324 (5th ed. 1999)).
It suffices to say the judge erred by declining to listen
to the witnesses before concluding their testimony was
untrustworthy or that the circumstances suggested that
Patricia's statements were untrustworthy. Even examining the
proposed testimony in light of the parties' arguments, it is
clear the judge did not consider "the time between the event and
the statement," which plaintiffs argue was "virtually
contemporaneous," nor any evidence that might illuminate or
serve to discredit Patricia's credibility, all factors that
warranted attention. DeVito, supra, 165 N.J. at 195-96.7
Indeed, the judge's reasoning boils down to her imposition
of a requirement not present in the applicable rule. That is,
the judge determined that "what's untrustworthy and what makes
[the testimony] not fall within a hearsay exception is there is
no corroborating evidence on any level to establish what
[Patricia] said in the phone call to the individual in the
7
The judge did consider that one witness proposed to testify that
Patricia referred to Connor as a nutritionist instead of what
she was, a bariatric nurse, as suggesting unreliability.
Although this discrepancy may be worthy of consideration when
determining the trustworthiness of the proposed testimony, it
was not sufficiently conclusive to negate the need for a Rule
104 hearing.
9 A-2392-13T4
office and what that individual said to her."8 N.J.R.E.
804(b)(6) does not include a corroboration requirement.
Although "lack of corroboration may affect the weight to be
given" to testimony by the fact-finder, it does not bar its
admission. Spencer v. Bristol-Meyers Squibb Co., 156 N.J. 455,
466 (1998). Here, Patricia uttered consistent statements nearly
contemporaneously or within hours of her communication with the
doctor's staff. On their face and in light of the
circumstances, these statements appear trustworthy. They could
not be excluded absent a "particularized finding" that they
lacked trustworthiness, which could not be reached without a
Rule 104 hearing. DeVito, supra, 165 N.J. at 194.
We lastly note the so-called "hearsay within hearsay"
problem cited by the judge does not bar the admission of
statements attributed by Patricia to defendant's staff. In
fact, the circumstance would have been better described as
8
This reasoning was based in part on the judge's examination of
the notation "[n]o current complaints" inserted in Patricia's
medical chart regarding her November 8 office visit. It is not
clear to us why the judge would exalt a note defendants
unilaterally placed in their file over what the patient
recounted to her husband or others about how she felt and what
she was told after she called the doctor's office to complain of
chest pains. In other words, defendant's staff memorialized
what transpired with Patricia by making a note in her file;
Patricia memorialized what transpired with defendant's staff by
repeating the advice given to family and friends. It is not
clear why the former should be viewed as evidence superior to
the latter.
10 A-2392-13T4
"admissible hearsay within hearsay." If she was living at the
time of trial, Patricia would have been permitted to recount the
statements of defendant's staff pursuant to N.J.R.E. 803(b)(4),
because those statements were attributed to "[defendant's] agent
or servant concerning a matter within the scope of the agency or
employment, made during the existence of the relationship" and
were "offered against" that party. See Spencer, supra, 156 N.J.
at 462; In re Opinion 668 of the Advisory Comm. on Prof'l
Ethics, 134 N.J. 294, 300 (1993). Because Patricia did not live
to recount these conversations in court, the judge was simply
required to consider the admissibility of this admissible
hearsay through application of N.J.S.A. 804(b)(6). See Estate
of Hanges v. Metro Pop. & Cas. Ins. Co., 202 N.J. 369, 375 n.1
(2002) (observing that admissibility of hearsay within hearsay
requires that each level of hearsay have "a separate basis for
admission into evidence"); see also N.J.R.E. 805.
In reversing, we are mindful that ordinarily a judge's
decision to conduct a Rule 104 hearing is discretionary. Kemp
v. State, 174 N.J. 412, 432 (2002). But the judge could not
exclude the testimony in question without conducting a hearing
to examine the trustworthiness of the hearsay statements.
Accordingly, to the extent the decision to conduct a Rule 104
11 A-2392-13T4
hearing in this instance was discretionary, the judge's refusal
to require the hearing constituted an abuse of discretion.
The order under review is reversed. We do not retain
jurisdiction.
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