The opinion of the court was delivered by PETRELLA, P.J.A.D.
Plaintiffs Riki Dinter and Elliott Dinter appeal from the entry of a judgment dismissing their complaint after a jury verdict of no cause of action.
The jury trial consumed 22 days in April and May 1990. The underlying incident occurred on February 17, 1987, when Dinter went to the Sears, Roebuck & Co. (Sears) parts supply facility on Route 17 in Maywood shortly after 9:30 a.m. to pick up parts for her dishwasher in a car she borrowed from a neighbor. Upon driving into the parking lot, Dinter "felt" bumps as she parked the car. Dinter testified she was wearing flat boots with rubber soles and that the sequence of events thereafter was as follows:
On cross-examination, Dinter said that she noticed snow and ice on the ground "automatically" before she stepped out of the car with her left foot. She then took a few steps before she closed the door. When she stepped into the "puddle" with her left foot, her "foot went up in the air," and she landed on her back and the back of her head.
Dinter was uncertain how long she remained on the ground or whether she lost consciousness. She said she screamed for help, but no one heard her, and finally crawled around the car to the ramp leading to the entrance of the store and got to her feet with the help of the door. Dinter said on cross-examination that prior to this incident she suffered from fainting and dizzy spells.
Dinter related what happened to the cashier, Ruth Bross. She further testified that her coat was soaking wet and dirty, her hair was wet and bloody, and she was slumped over in pain. However, Bross did not recall anything out of the ordinary about Dinter's appearance. According to Dinter, the cashier told her to take a number and give her complaint to the guy who serves her. When her number was called, Dinter informed the employee, Richard Blog, that she fell and was in a great deal of pain. Blog interrupted her, asking what he could do for her. He repeated his inquiry and Dinter gave him her order for dishwasher racks and tray. Blog promised that "they will take care of it. They will clean it." He then asked another employee, John Cincotta, to help Dinter carry the parts to the car. Blog did not notice anything out of the ordinary as he observed Dinter exit the store.
Dinter said that Cincotta carried her boxes to the car and then returned, took her arm and escorted her to the car.
Dinter said she rested in the car for a few minutes then drove home. She parked the car in her driveway and stepped out. Dinter called her neighbor's son to help her with the boxes and to pick up the car which belonged to the boy's parents. As Dinter entered her house, her friend telephoned and she told her what had happened.
Dinter said she then crawled upstairs to take a hot bath, and thereafter laid down on the bed with a heating pad. She also said she later called her physician, Dr. Fioretti, who had previously treated her for various conditions, including a fractured pelvis in an automobile accident, a sacroiliac sprain; tenderness in the left lumbosacral area, and injuries from a series of fall down accidents. Dinter made an appointment for the following day. Later that afternoon, Dinter called Sears to ask if she had to fill out an accident report. When she informed the employee of the accident and that she had a doctor's appointment the next day, the employee asked Dinter to return to the store and file a report before her appointment.
Despite therapy, Dinter continued to experience back pain radiating down her left leg. Dr. Fioretti ordered a CAT scan of her lumbar spine which revealed a disk displacement. He referred Dinter to Dr. Megibow, an orthopedic surgeon. Prior to Dinter's fall in February 1987, Dr. Fioretti had prescribed anti-vertigo medication for her, and had referred her to a neurologist for a severe vertigo condition in October 1986. Dinter's 1986 complaints were loss of balance, dizziness, and intermittent episodes when her left leg would give way. However, Dinter testified that on the day of the accident in the Sears lot in February 1987 she was not dizzy and slipped on the ice.
There was extensive testimony about Dinter's injuries and condition. Due to depression and mounting feelings of suicide which assertedly resulted from constant pain, Dinter was referred to a psychiatrist. The psychiatrist said that Dinter was severely depressed. A neighbor of Dinter testified as to Dinter's ability to drive a car and carry bags of groceries while supposedly disabled from the fall at Sears.
There was also testimony regarding Dinter's prior medical problems and about Dinter's subsequent move to Oklahoma, and later Florida.
Apparently primarily on credibility grounds, the jury rejected plaintiffs' allegations that Sears was negligent. In denying
On appeal, the Dinters argue: (1) the cause of the accident should not have been deleted from medical records or precluded from the testimony of experts; (2) the trial judge should have allowed Elliott Dinter to testify about his conversation with his wife after the accident; (3) the judge should have directed discovery of defense witnesses' written statements; and (4) Dinter should have been permitted to testify about the condition of the parking lot two days after the accident.
Plaintiffs argue that in precluding Dinter's statements to physicians the judge failed to consider whether her description of the cause of her fall was relevant to diagnosis or treatment, thus making it an exception to the hearsay rule. See Evid.R. 63(12).
Sears argues that Dinter's statements to her treating physicians regarding the cause of the accident are not innately trustworthy because they were not made for purposes of diagnosis and treatment. It also argues that various witnesses testified to the icy condition causing the fall, and hence, the jury heard fully about her version of her fall. Thus, it argues there was no negative presumption that the fall occurred because
As a general rule, admission or exclusion of proffered evidence is within the discretion of the trial judge whose ruling is not disturbed unless there is a clear abuse of discretion. State v. Wise, 19 N.J. 59, 98, 115 A.2d 62 (1955); Purdy v. Nationwide Mutual Insurance Co., 184 N.J.Super. 123, 130, 445 A.2d 424 (App.Div. 1982); Schweizer v. Mac Phee, 130 N.J.Super. 123, 127, 325 A.2d 828 (App.Div. 1974). Even where there may have been error, reversal is required only when an unjust result occurred. Purdy v. Nationwide Mutual Insurance Co., supra (184 N.J. Super. at 130, 445 A.2d 424).
Under Evid.R. 63(12) a good faith statement by a patient to a physician for the purpose of diagnosis and treatment is admissible in evidence. Bober v. Independent Plating Corp., 28 N.J. 160, 170, 145 A.2d 463 (1958); Clayton v. Jersey Central Power & Light Co., 19 N.J.Super. 546, 555, 89 A.2d 61 (App.Div. 1952), certif. denied, 10 N.J. 314, 91 A.2d 230 (1952). However, statements as to the cause of the injury are not automatically within the hearsay exception in Evid.R. 63(12). This is so because a patient's desire to be helpful to the physician in treatment and administering remedies is not necessarily present. See Clayton, supra (19 N.J. Super. at 555, 89 A.2d 61). See also Bober, supra (28 N.J. at 170, 145 A.2d 463).
In the case before us, there was no testimony by any physicians who testified on Dinter's behalf that the cause of her fall was relevant to diagnosis or treatment. Absent such evidence, the requirements of Evid.R. 63(12)(c) were not met. See Rose v. Port of New York Authority, 61 N.J. 129, 138, 293 A.2d 371 (1972); Barrie v. Central Railroad Co. of New Jersey, 71 N.J.Super. 587, 595-596, 177 A.2d 568 (App.Div. 1962), certif. denied 37 N.J. 87, 179 A.2d 416 (1962). Moreover, even though such statements concerning her "fall on ice" were not allowed, there were repeated references to icy conditions on the property throughout the trial by various witnesses. Although such
The next issue involves exclusion of testimony by Elliott Dinter about a telephone conversation with his wife in which he first learned of her injuries. This conversation occurred at an undisclosed time on the day of her fall. Dinter contends that the jury was precluded from knowing her version of the facts "immediately after the accident" as she relayed them to her husband.
A statement is admissible under Evid.R. 63(4) if made in reasonable proximity to the event and the declarant did not have an opportunity to deliberate or fabricate. The statement must be an excited or spontaneous utterance. See Fagan v. City of Newark, 78 N.J.Super. 294, 303, 188 A.2d 427 (App.Div. 1963). Factors to be considered on a proffer of such a statement include: (1) the elapsed time between the event and the statement; (2) the circumstances; (3) the declarant's mental and physical condition; (4) the shock or excitement produced; (5) the nature of the statement (whether against the interest of the declarant, or whether made in response to questions or involuntary); and (6) any other material facts. Lieberman v. Saley, 94 N.J.Super. 156, 161, 227 A.2d 339 (App.Div. 1967).
During the direct examination of Elliott Dinter, plaintiffs' then attorney
We turn next to plaintiffs' argument that the judge erred in precluding testimony concerning ice in the Sears parking lot two days after the accident. Dinter maintains that such information is relevant to support an inference that there was ice on the day of the accident.
This evidence may be relevant if it can be established that the weather conditions were substantially the same at the same time on the particular date of the fall with no intervening thaws. However, the jury's concern was actually focused on the condition of the parking lot at the date and time of the accident. Although plaintiffs might have been seeking to establish that the condition of the parking lot two days after the accident was substantially the same as it was at the time of the fall, there had to be a showing that no changes were made. Ice
Finally, we turn to plaintiffs' contention that they were entitled to the statements of certain employees of Sears given prior to trial. Plaintiffs' trial attorney had requested copies of all statements of all defense witnesses. He repeated that request on various occasions, including far too numerous side-bar discussions. Instead of waiting for cross-examination to request a copy of a statement, plaintiffs' attorney frequently interrupted the direct examination of a defense witness to request a side-bar conference to ask if there was a statement and for a copy. This procedure is hardly conducive to a proper presentation of the trial and must have been disruptive to the jury which was frequently excused.
Plaintiffs ascertained during the trial that Sears employees, Richard Blog, John Cincotta and Ruth Bross (who had each been identified in discovery and testified) had prepared handwritten statements immediately following the accident which were later put in typed form by a claims investigator or adjuster for Allstate Insurance Company. The trial judge did conduct an in camera review of defendant's insurer's file here and concluded that the pertinent documents, other than the three employee statements contained therein, had all been furnished in discovery. The names of the Sears employees who had spoken to plaintiff on the day of her alleged fall had been furnished and Sears had identified these individuals as persons with relevant knowledge in its answers to interrogatories. The judge ruled that the statements were work product of the defendant's attorney. At our request, copies of these statements
Plaintiffs contend that these statements were obtained by Sears in the normal course of its business, not necessarily for litigation purposes, and were discoverable prior to trial. Alternatively, they argue that even if privileged, they should have been turned over once the witnesses were called to testify.
Sears contends that the statements were taken in preparation for litigation and under the direction of counsel, and are thus protected by the attorney-client privilege. See Evid.R. 26(3)(a). The record does not support this contention. The testimony of the investigator contradicts the assertion that the statements (prepared before she became involved) were written at the direction of counsel or in preparation for litigation.
Sears contends additionally that plaintiffs had been given the names of these witnesses in answers to interrogatories, but failed to seek further discovery. Moreover, Sears argues that plaintiffs failed to present a waiver argument to the trial court, and thus should be barred from raising it now.
Merely because statements are taken from witnesses who are employees of a defendant does not necessarily make them privileged. No party has proprietary rights to any witness. Indeed, absent a privilege, no party can properly restrict access to any witness. Stempler v. Speidell, 100 N.J. 368, 381, 495 A.2d 857 (1985); Kurdek v. West Orange Bd. of Educ., 222 N.J.Super. 218, 226, 536 A.2d 332 (Law Div. 1987). Cf. State v. Ciba-Geigy Corp., 247 N.J.Super. 314, 589 A.2d 180 (App.Div. 1991); State v. Roszkowski, 129 N.J.Super. 315, 318, 323 A.2d 531 (App.Div. 1974), certif. denied 66 N.J. 325, 331 A.2d 25 (1974).
We have reviewed each of the statements. They are all extremely brief, only a few lines each, and entirely factual. In our view, no valid reason appears as to why these documents could not have been provided, at least when requested by
It is true plaintiffs knew of the existence of the witnesses and could have taken their depositions.
The attorney-client privilege is based on a premise of "preserving the sanctity of confidentiality of a client's disclosures to his attorney [to promote] an open atmosphere of trust." Reardon v. Marlayne, 83 N.J. 460, 470, 416 A.2d 852 (1980). This principle has been applied to photographs and statements of witnesses and key personnel taken at the direction of corporation counsel. See Macey v. Rollins Environmental Services, 179 N.J.Super. 535, 539-540, 432 A.2d 960 (App.Div. 1981). However, actual statements of eyewitnesses or persons involved in connection with an incident, to the extent
Thus, in State v. Pavin, 202 N.J.Super. 255, 262, 494 A.2d 834 (App.Div. 1985), we declined to apply the attorney-client privilege to an interview and statement given by the defendant to an insurance adjuster and said:
We reasoned in Pavin that a statement taken ten days after the accident, before any litigation began or any claim was filed, was clearly outside the scope of the privilege. Id. at 263, 494 A.2d 834. As in Pavin, there is no indication that the statements were taken at the request of an attorney. See also Torraco v. Torraco, 236 N.J.Super. 500, 502-503, 566 A.2d 240 (Ch.Div. 1989) (adverse party in matrimonial action entitled to inspection of documents "long in existence," but recently obtained by investigator, and not considered work product, although not entitled to depose investigator who was an agent of attorney who hired him, and thus under mantle of attorney-client and work product privileges).
In order to obtain the work product of an adverse party, the party seeking information must establish that he has a substantial need for it and that it cannot be obtained without undue hardship from another source. See Jenkins v. Rainner, 69 N.J. 50, 57-58, 350 A.2d 473 (1976); Wagi v. Silver Ridge Park West, 243 N.J.Super. 547, 580 A.2d 1093 (Law Div. 1989).
Since the record does not reflect that the statements were actually taken by an insurance investigator or under the direction
Here, the statements were made before an "official" investigation began. See Nordeide v. Penn. Railroad Co., 73 N.J.Super. 74, 78, 179 A.2d 71 (Law Div. 1962). In any event, partial disclosure of the communication by the witness (i.e., Cincotta) would also constitute a waiver. Evid.R. 37; see In the Matter of Grand Jury Subpoenas, 241 N.J.Super. 18, 31, 574 A.2d 449 (App.Div. 1989); Sicpa North America v. Donaldson Enterprises, Inc., 179 N.J.Super. 56, 430 A.2d 262 (App.Div. 1981); see also 8 Wigmore on Evidence § 2327 at 635 n. 3 (McNaughton rev. 1961).
The failure to allow plaintiffs' attorney access to copies of those statements for cross-examination was harmful error in view of the obvious credibility conflicts, and requires reversal and remand for a new trial. See Hess v. Hess, 83 N.J.Super. 583, 200 A.2d 627 (App.Div. 1964) (court determined that plaintiff's investigator's report should have been produced to test credibility of his testimony on cross-examination, however, since no substantial variation existed between the report and the investigator's testimony, no prejudicial error occurred). See also In re Tufi Application, 182 N.J.Super. 631, 641, 642, 442 A.2d 1080 (App.Div. 1981), certif. denied 91 N.J. 189, 450 A.2d 525 (1982).
Reversed and remanded for a new trial.