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 interests of brevity, portions of any opinion may not
have been summarized).
Argued October 25, 2005 -- Decided April 20, 2006
LONG, J., writing for a majority of the Court.
In 1999, plaintiff, Jennifer Fitzgerald filed a complaint against her former employer, defendant Stanley Roberts, Inc., and its president, defendant Edward Pomeranz, alleging that they violated the Law Against Discrimination (LAD) while she worked for them from 1996 to 1998. In addition, she claimed intentional infliction of emotional distress and assault and battery. Fitzgerald claimed that the Pomeranz firm carried out a campaign of sexual harassment against her and that when she reported an incident of harassment to Leman Lane, the company controller, her employment was terminated less than two weeks later.
Before trial, Fitzgerald filed a motion to prevent defendants from offering testimony regarding
specific instances of her lying and to bar character evidence based on those
incidents. After the trial judge ruled that specific instances of lying would be
inadmissible, defense counsel asked whether it would be permissible to offer opinion testimony
as to Fitzgerald’s reputation for truthfulness without inquiring about specific instances. Defendants were
prohibited from offering that evidence. Defendants also unsuccessfully sought to call Dr. William
Nadel, a psychiatrist who had originally been scheduled to testify as Fitzgerald’s expert
but had modified his diagnosis to one less favorable to Fitzgerald after having
reviewed additional evidence in preparation for a deposition. The trial judge also prevented
defendants from presenting a handwriting expert to refute Fitzgerald’s testimony, denied by Lane,
that Lane signed her disability forms.
During the trial, Fitzgerald produced witnesses to testify about gossip involving Pomeranz’s sexual
relationship with a former employee, T.S. Fitzgerald testified that T.S. had admitted to
engaging in acts of workplace prostitution with Pomeranz. In addition, she was permitted
to introduce testimony by other female employees about Pomeranz’s sexual harassment of them.
The jury returned a verdict in Fitzgerald’s favor on retaliation and hostile work
environment sexual harassment and awarded damages totaling $150,000.
Defendants appealed and the Appellate Division affirmed.
HELD: Because we agree with defendants that a series of errors infected this
trial, we have no confidence that the jury verdict was reached in a
legally sustainable fashion; thus we reverse and remand for a new trial .
The trial judge held that Graham v. Gielchinsky, a 1991 New Jersey Supreme
Court decision, prevented defendants from calling Nagel because he was originally a plaintiff’s
expert. In Graham, we held that a consulting witness is prohibited from testifying
for an adversary at trial absent the same “exceptional circumstances” that would have
allowed discovery of that expert’s identity and opinion under Rule 4:10-2(d) (3). We
reaffirm Graham while adding that the rule has no applicability to a testifying
witness. No party in litigation has anything resembling a proprietary right to any
witness’ evidence. By declaring that an expert witness will be produced at trial
and providing the expert’s identity and opinion to another party, the original proponent
has waived his claim that the information is privileged. We hold that access
to the testifying witness is allowed and the adversary may produce a willing
expert at trial. (pp. 8-14)
2. The more difficult issue is whether the party calling his opponent’s prior
expert may inquire regarding the original retention. It is the expert’s opinion and
not his retention that should be the focus of the jury. We adopt
the approach of those courts that generally restrict inquiry regarding the circumstances of
the witness’ initial retention. That rule will not apply where the original retaining
party opens the door by challenging the qualifications of the expert. We leave
it to the trial judge to determine, under the specific circumstances of cross-examination,
whether the party has opened the door to evidence of the expert’s prior
retention. If such evidence is admitted, the judge should provide an appropriate limiting
instruction, including a statement to the effect that the change of side, in
itself, is no reflection on the adverse party. In sum, in this case,
the trial judge was mistaken in her interpretation of Graham and should have
allowed Dr. Nadel to testify on defendant’s behalf without inquiry regarding the original
retention, unless Fitzgerald placed it at issue. (pp. 15-23)
3. An opinion witness offers a personal assessment of a prior witness’ character based
on his or her own perceptions. Contrariwise, a reputation witness restates the community’s
assessment of the subject’s character. Several errors occurred in connection with defendants’ proffer
of witnesses to testify regarding Fitzgerald’s character for untruthfulness. The parties and the
judge appeared to conflate opinion and reputation testimony. They are discrete methods of
challenging character with discrete foundational requirements. Second, the judge mistakenly issued a blanket
order barring defendants’ character witnesses because she believed that their testimony would be
based on specific instances of conduct, despite defense counsel’s promise that he would
not elicit testimony regarding such specific instances. To be sure, evidence regarding specific
instances of conduct may not be used to prove a trait of character
under either of the two relevant evidence rules. What is not barred is
the distillate: the opinion and reputation derived from the specific instances. (pp. 26-32).
4. Defendants should have been permitted to present both opinion and reputation evidence
regarding Fitzgerald’s character for truthfulness without reference to specific instances of conduct so
long as the foundational requirements were satisfied. The blanket order barring all of
the defendant’s character testimony was erroneous. In a case like this where credibility
was pivotal, we cannot say that the error was harmless. (pp. 32-33)
5. Gossip is idle talk or rumor, especially about the personal or private
affairs of others. When it is proffered in a judicial proceeding to establish
the truth of the matter asserted, it is generally inadmissible. However, gossip, like
other hearsay evidence, may be admissible if it is adduced not for its
truth but for another purpose. Because Pomeranz’s alleged harassment involved unambiguous actions like
assault and battery, the gossip evidence was of limited probative value, if any,
regarding Fitzgerald’s subjective understanding of Pomeranz’s other actions. However, the evidence that people
gossiped about sexual matters was relevant to establishing the general character of the
workplace, to the effectiveness of the sexual harassment policy, and to rebutting testimony
that the office atmosphere was subdued. When evidence has both an impermissible and
a permissible purpose, a jury instruction in respect of the limitations on its
use is essential. (pp. 36-38)
6. Here, extensive gossip about the purported relationship between Pomeranz and T.S. was elicited
by Fitzgerald. In summation, she argued that the gossip was actually true. Given
that credibility was at the heart of the case, the unlimited gossip evidence
was clearly capable of producing an unjust result. (pp. 39-40)
7. The trial judge correctly instructed the jury with respect to other female employees’
testimony that Pomeranz sexually harassed them. Evidence of harassment of other women was
relevant on the issue of the effectiveness of the firm’s sexual harassment policy
and on whether there was a problem with sexual harassment at the firm.
(pp. 41-42)
8. We defer to the trial judge’s exercise of discretion in excluding testimony from
a handwriting expert that Lane’s signatures on Fitzgerald’s insurance forms were probably forged.
However, if this issue arises on remand, the trial judge should require and
consider proofs to inform the evidentiary balancing determination. (pp. 43-44)
9. In light of the errors to which we have adverted (the exclusion of
Dr. Nagel, the barring of the opinion and reputation witnesses, and the admission
of gossip evidence without a limiting instruction) we have no confidence that the
jury verdict in this case was reached in a legally sustainable way. (p.
44)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED
for a new trial to be conducted in accordance with the principles set
out in this opinion.
JUSTICE WALLACE, CONCURRING in the result , parts company with the majority’s holding that
it was error to prohibit defendants from using Fitzgerald’s expert as a witness.
CHIEF JUSTICE PORITZ and JUSTICES LaVECCHIA, ZAZZALI, and RIVERA-SOTO join in JUSTICE LONG’s
opinion. JUSTICE WALLACE filed a separate concurring opinion. JUSTICE ALBIN did not participate.
SUPREME COURT OF NEW JERSEY
A-
120 September Term 2004
JENNIFER FITZGERALD,
Plaintiff-Respondent,
v.
STANLEY ROBERTS, INC. and EDWARD POMERANZ,
Defendants-Appellants.
Argued October 25, 2005 – Decided April 20, 2006
On certification to the Superior Court, Appellate Division.
Carl A. Salisbury argued the cause for appellants (Killian & Salisbury, attorneys; Mr.
Salisbury and Steven R. Weinstein, on the briefs).
Maureen S. Binetti argued the cause for respondent (Wilentz, Goldman & Spitzer, attorneys;
Ms. Binetti and Jennifer L. Barnes, on the brief).
JUSTICE LONG delivered the opinion of the Court.
Plaintiff filed a complaint against her former employer in which she advanced a
series of claims arising out of what she categorized as sexual harassment in
the workplace. The jury returned a verdict in her favor and the trial
judge awarded her attorneys’ fees under the Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1
to -49. Defendants appealed, challenging a number of evidentiary rulings that they claimed
skewed the outcome of the case, including the trial judge’s refusal to allow
them to call plaintiff’s trial expert as a witness; her exclusion of opinion
and reputation testimony regarding plaintiff’s character for untruthfulness; her admission of testimony about
alleged harassment of other female employees; her admission of office gossip; and her
refusal to allow defendants to produce a handwriting expert as part of their
attack on plaintiff’s credibility. Defendants also challenged the counsel fee award as excessive.
The Appellate Division affirmed. Because we agree with defendants that a series of
errors infected this trial, we have no confidence that the jury verdict was
reached in a legally sustainable fashion. Thus we reverse and remand for a
new trial.
I
The case began in 1999 when plaintiff, Jennifer Fitzgerald, filed a complaint against
her former employer, defendant Stanley Roberts, Inc., a flatware importer and distributor, and
its president, defendant Edward Pomeranz (“Pomeranz”), alleging that they violated the LAD while
she worked for them from 1996 to 1998. Plaintiff claimed that defendants subjected
her to a hostile work environment, quid pro quo sexual harassment, and retaliatory
discharge. In addition, she claimed intentional infliction of emotional distress and assault and
battery. Defendants denied all of plaintiff’s allegations and a lengthy and hard fought
trial ensued at which extensive evidence was adduced by both sides.
In brief, plaintiff testified that immediately following commencement of her employment, Pomeranz, who
was an equal owner of the company with his father, Harold Pomeranz, began
a campaign of sexual harassment against her. She claimed Pomeranz carried out his
harassment in numerous ways such as making comments about her legs, continuously calling
her at home to invite her out on dates, taking her to a
massage parlor, and ordering her to take off her clothes and report to
his office.
Plaintiff indicated that she was aware of a memo distributed by the company
regarding sexual harassment that required notification of any such harassment to a supervisor
or officer of the company. According to plaintiff, many employees did not take
the policy seriously because any complaints about Pomeranz would likely be reported to
his father, a person they viewed as unlikely to take any action to
remedy the situation. Nonetheless, plaintiff claimed she reported an incident of harassment to
Leman Lane, the company’s controller, and her employment was terminated less than two
weeks later. Lane denied that plaintiff ever complained to him about Pomeranz’s behavior
or sexual harassment.
According to plaintiff’s testimony, at the time she was terminated, Pomeranz informed her
that she was “being downsized” and added that she was now free to
sleep with him because he was no longer her boss. Plaintiff believed that
the company was not downsizing because Lane had hired a second assistant two
months earlier. At trial, Lane admitted that a new person was hired several
months after plaintiff’s termination to do plaintiff’s job.
During the trial, plaintiff produced witnesses to testify about gossip involving Pomeranz’s volitional
sexual relationship with a former employee, T.S. Plaintiff testified that T.S. had admitted
engaging in acts of workplace prostitution with Pomeranz. In addition, plaintiff was permitted
to introduce testimony by other female employees about Pomeranz’s sexual harassment of them.
In seeking damages, plaintiff alleged that she suffered insomnia, fatigue, and an inactive
thyroid gland along with a recurrence of symptoms related to the Epstein-Barr virus
See footnote 1
as a result of defendants’ treatment of her. At trial, plaintiff’s expert, Dr.
Richard Podell, testified that she suffered from chronic fatigue syndrome due the stress
of the harassment.
See footnote 2
Defendants produced witnesses who testified that they had not seen the side of
Pomeranz that plaintiff depicted and described the office atmosphere in rather banal terms.
For his part, Pomeranz strongly denied the truth of plaintiff’s allegations, as well
as those made by other women.
Defendants also vigorously attacked plaintiff’s credibility. Among other things, they proffered evidence that
plaintiff was claiming injuries for which she had recently successfully sued her landlord.
See footnote 3
Further, defendants pointed out that despite claiming numerous ill effects from the alleged
sexual harassment and her subsequent termination, approximately ten days after completing her insurance
forms for total disability, plaintiff traveled to Florida where she underwent breast augmentation
surgery. Approximately three days after her surgery, plaintiff returned to New Jersey and
a few days later went back to Florida for a vacation with her
nieces at Disney World.
Defendants produced their own expert, Dr. Paula Bortnichak, regarding plaintiff’s alleged damages. Dr.
Bortnichak characterized plaintiff’s claims as exaggerated and diagnosed plaintiff as suffering from hypokalemia
See footnote 4
due to the use of diuretics like diet pills and laxatives, rather than
chronic fatigue syndrome. Dr. Bortnichak concluded that plaintiff did not suffer from severe
depression and was not disabled.
Finally, defendants sought to call Dr. William Nadel, a psychiatrist who had originally
been scheduled to testify as plaintiff’s expert. Dr. Nadel had modified his initial
diagnosis after reviewing information provided during discovery. The trial judge would not permit
defendants to call Dr. Nadel based on our decision in Graham v. Gielchinsky,
126 N.J. 361 (1991). The trial judge also prevented defendants from presenting a
handwriting expert to refute plaintiff’s testimony, denied by Lane, that Lane had signed
her disability form.
The jury returned a verdict in plaintiff’s favor on retaliation and hostile work
environment sexual harassment but ruled for defendants on quid pro quo sexual harassment,
intentional infliction of emotional distress, and assault and battery. It awarded plaintiff economic
damages of $50,000 and emotional distress damages of $100,000. The trial judge also
awarded plaintiff counsel fees of $462,927.15. Defendants appealed and the Appellate Division affirmed.
II
Defendants argue that Graham, supra,
126 N.J. 361, is no impediment to their
calling plaintiff’s testifying expert; that reputation and opinion testimony regarding plaintiff’s character was
improperly excluded; that false and salacious gossip should not have been admitted at
trial; that witnesses should not have been permitted to testify that they too
had been sexually harassed by Pomeranz; that defendants’ handwriting expert should have been
allowed to testify; and that the amount of counsel fees and costs awarded
was unreasonable.
Plaintiff counters that Graham bars defendant from calling an adversary’s trial expert as
a witness; that office gossip and the testimony of witnesses who had been
harassed by Pomeranz was admissible to show the nature and character of the
workplace and to prove a hostile work environment; that opinion and reputation testimony
regarding plaintiff’s truthfulness was properly excluded because it violated the evidence rules; that
the exclusion of defendants’ handwriting expert was an affirmable exercise of discretion by
the trial judge; and that the award of counsel fees and costs was
fully supported by the record.
III
We turn first to defendants’ contention that they should have been allowed to
call Dr. William Nadel, a psychiatrist originally retained to testify on plaintiff’s behalf.
In a preemptive move before trial, plaintiff announced that although she was uncertain
whether she would call Dr. Nadel, defendants should be barred from calling him
if she elected not to do so.
After reviewing additional evidence in preparation for a deposition, Dr. Nadel had modified
his diagnosis to one less favorable to plaintiff. Dr. Nadel’s initial report from
August 2001 stated that he reached his diagnosis following approximately three hours of
interviews with plaintiff and the review of her deposition from 1999, a letter
from plaintiff’s examining physician, Dr. Podell, and statements from four female co-employees. In
his original report, Dr. Nadel stated that he agreed with Dr. Podell that
plaintiff was suffering from chronic fatigue syndrome. Dr. Nadel additionally diagnosed major depressive
disorder as evidenced by plaintiff’s daily depressed mood, diminished interest in formerly pleasurable
activities, weight gain, and sleeping difficulties. He further concluded that plaintiff suffered from
chronic post-traumatic stress disorder because plaintiff felt that Pomeranz’s actions “threat[ened] . .
. her physical integrity.”
Despite those initial conclusions in plaintiff’s favor, Dr. Nadel modified his opinion at
his May 2002 deposition, stating that his review of additional materials caused him
to withdraw his original diagnosis of major depressive disorder. Dr. Nadel then theorized
that, rather than a hostile work environment, plaintiff’s conditions may have resulted from
hypokalemia and low blood pressure, which are side effects of some of her
medication. Dr. Nadel further stated that he might diagnose plaintiff either as suffering
from somatization
See footnote 5
or as a malingerer,
See footnote 6
but emphasized that his opinion was not
definitive. Dr. Nadel based his change in theory, in part, on plaintiff’s very
similar injury claims in the lawsuit against her landlord, and on plaintiff’s trips
to Florida, which demonstrated a lack of prolonged bouts of depression.
After some procedural maneuvering that need not be recounted here, defendants proposed calling
Dr. Nadel as their own witness.
See footnote 7
The trial judge held that Graham prevented
defendants from calling Dr. Nadel because he was originally plaintiff’s expert. The Appellate
Division agreed.
Defendants contend here that Graham only applies to non-discoverable expert testimony which is
work product, but not to an expert whose opinion was fully revealed in
discovery and who was intended as a trial witness. Plaintiff counters that Graham
is clear that “exceptional circumstances” are required before a party may call an
adversary’s expert at trial, irrespective of whether that expert’s opinion is discoverable or
non-discoverable. The defendants have the better of the argument.
In Graham, supra,
126 N.J. 361, we detailed the development of the rules
insulating consulting experts and their opinions from discovery. That history is a useful
starting point for our discussion here. At common law, courts were hesitant to
allow an adversary to discover the opinions of an opponent’s expert. Id. at
365. Both the attorney-client privilege and the work product rule were developed, in
part, to discourage parties from attempting to build their cases by foraging through
the fruits of their opponent’s efforts. Id. at 365-66.
Courts gradually came to recognize, however, that for an adversary to effectively cross-examine
an expert, he or she required advance notice of the opposing expert’s identity
and the substance of his or her opinion. Id. at 365. Hence, our
court rules have been developed to provide for an orderly system of discovery
that protects confidential information yet allows for adequate cross-examination of testifying experts. Rule
4:10-2(d) protects the work of consulting experts from discovery:
A party may discover facts known or opinions held by an expert (other
than an expert who has conducted an examination pursuant to R. 4:19) who
has been retained or specially employed by another party in anticipation of litigation
or preparation for trial and who is not expected to be called as
a witness at trial only upon a showing of exceptional circumstances under which
it is impractical for the party seeking discovery to obtain facts or opinions
on the same subject by other means.
[R. 4:10-2(d)(3).]
At the same time, the discovery rules require that the substance of a
testifying expert’s opinion be conveyed to the adversary before trial:
A party may through interrogatories require any other party to disclose 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 . . . . The interrogatories may also require, as provided by
R. 4:17-4(a), the furnishing of a copy of that person’s report.
[R. 4:10-2(d)(1).]
Examination of the expert is also permitted:
Unless the court otherwise orders, an expert whose report is required to be
furnished pursuant to subparagraph (1) may be deposed as to the opinion stated
therein at a time and place as provided by R. 4:14-7(b)(2).
[R. 4:10-2(d)(2).]
In Graham, a medical malpractice case, we addressed a gap in the discovery
rules: those rules protect a consulting expert’s opinion from discovery but are silent
in respect to the use of such evidence at trial if acquired in
a manner not described in the rules. Graham, supra, 126 N.J. at 362.
There, defendant sought to call a consulting physician who had examined plaintiff and
concluded that defendant’s treatment of him did not constitute medical malpractice. Id. at
364. Plaintiff, for obvious reasons, decided not call the doctor as a witness
at trial and did not designate him as a testifying expert or provide
his name or opinion in discovery. Id. at 363-65. Defendant obtained the report
of that expert through undisclosed means and engaged him to testify. Id. at
363-64. The trial judge admitted the testimony, but prevented defendant from eliciting confidential
information from the witness or the fact that plaintiff had originally engaged him.
Id. at 363. The Appellate Division affirmed and we granted certification. Ibid. The
issue before us was whether Rule 4:10-2(d)(3) should be construed to prevent an
adversary from using that evidence at trial if obtained through some means “other
than discovery.” Id. at 362.
We held that a consulting expert is prohibited from testifying for an adversary
at trial absent the same “exceptional circumstances” that would have allowed discovery of
that expert’s identity and opinion under Rule 4:10-2(d)(3). Id. at 373. We reaffirm
that salutary rule today while adding what to us is implicit in Graham
-- that the rule has no applicability to a testifying witness. Indeed, no
party to litigation has “anything resembling a proprietary right” to any witness’ evidence.
Cogdell v. Brown,
220 N.J. Super. 330, 334 (Law Div. 1987).
Absent a privilege no party is entitled to restrict an opponent's access to
a witness, however partial or important to him, by insisting upon some notion
of allegiance. See Int’l Bus. Machs. Corp. v. Edelstein,
526 F.2d 37, 41-44
(2d Cir. 1975); Gregory v. United States,
369 F.2d 185, 187-88 (D.C. Cir.
1966); Edmund J. Flynn Co. v. LaVay,
431 A.2d 543, 551 (D.C. 1981);
8 Wigmore on Evidence § 2192 (McNaughton rev. ed. 1961). Even an expert whose
knowledge has been purchased cannot be silenced by the party who is paying
him on that ground alone. Unless impeded by privilege an adversary may inquire,
in advance of trial, by any lawful manner to learn what any witness
knows if other appropriate conditions the witness alone may impose are satisfied, e.g.,
compensation for his time and expertise or payment of reasonable expenses involved
. . . .
[Id. at 335 (quoting Doe v. Eli Lilly & Co.,
99 F.R.D. 126,
128 (D.D.C. 1983).]
By declaring that an expert witness will be produced at trial and providing
the expert’s identity and opinion to another party, as required by Rule 4:10-2(d)(1),
the original proponent has waived his claim that the information is privileged. Thus,
we hold that access to the testifying witness is allowed and the adversary
may produce a willing expert at trial. To the extent that Deffer v.
Shop-Rite Supermkts, 332 N.J. Super. 540 (App. Div. 2000), suggests otherwise, it is
disapproved.
Our conclusion aligns with that reached by the majority of courts that have
faced the issue before us. All have determined that discovery rules designed to
protect consulting experts do not prevent a party from calling an adversary’s expert
when that expert has been designated a “testifying expert,” even without a showing
of exigent circumstances. See, e.g., Peterson v. Willie,
81 F.3d 1033, 1037-78 (11th
Cir. 1996) (defendant permitted to call plaintiff’s testifying medical expert); Agron v. Trs.
of Columbia Univ.,
176 F.R.D. 445, 449 (S.D.N.Y. 1997) (defendant permitted to call
plaintiff’s testifying psychiatric expert); House v. Combined Ins. Co. of Am.,
168 F.R.D. 236, 246-47 (D. Iowa 1996) (plaintiff permitted to use defendant’s testifying psychiatrist); Crowe
v. Nivison,
145 F.R.D. 657, 657-58 (D. Md. 1993) (plaintiff permitted to call
defendant’s testifying orthopedist); Loiseau v. Bd. of Tax Review,
699 A.2d 265, 268
(Conn. App. Ct. 1997) (plaintiff permitted to call defendant’s testifying appraisal expert); Broward
County v. Cento,
611 So.2d 1339, 1339-40 (Fla. Dist. Ct. App. 1993)
(plaintiff permitted to call defendant’s testifying medical expert).
The more difficult issue is what limitation, if any, should be placed upon
the party who is presenting and questioning his adversary’s former expert. In other
words, may the party calling his opponent’s prior expert, the so-called “Red Rover”
witness,
See footnote 8
inquire regarding the original retention.
For us, the issue is one of first impression. A few New Jersey
cases have addressed the question, either directly or obliquely, and they have come
to different conclusions. Compare Moore v. Kantha,
312 N.J. Super. 365, 377-78 (App.
Div. 1998) (finding original retention properly concealed from jury where “exceptional circumstances” justified
partial use of adversary’s expert’s deposition), and Cogdell, supra, 220 N.J. Super. at
334, 336-37 (holding jury should have opportunity to consider fact that expert was
initially consulted by opposing party in judging expert’s credibility), with Graham, supra, 126
N.J. at 372 (noting difficulties inherent in cross-examining former consulting expert), and Deffer,
supra, 332 N.J. Super. at 544-45 (analyzing Graham’s concern with cross-examination and barring
all use of adversary’s testifying expert).
Courts across the country are also divided. Those restricting evidence regarding the original
retention of a testifying expert generally hold that the expert’s substantive opinion, not
his retention, is the heart of the matter; that his or her past
relationship with a party is irrelevant to that opinion; that reference to the
original engagement tends to unfairly prejudice the party who first hired the expert;
and that jurors may give too much credence to the opinion of the
Red Rover expert. See, e.g., Peterson, supra, 81 F.
3d at 1037-38 (finding introduction
of circumstances of prior retention generally improper); Agron, supra, 176 F.R.D. at 453
(stating restriction on scope of direct examination eliminates prejudice and is effective limitation
when party calls adversary’s expert); Granger v. Wisner,
656 P.2d 1238, 1242-43 (Ariz.
1982) (noting circumstances of original retention irrelevant to issue of negligence); Gen. Motors
Corp. v. Jackson,
636 So.2d 310, 315 (Miss. 1994) (finding prejudice inherent
in permitting testimony regarding prior retention of expert would “impede the search for
truth”).
Courts that allow testimony regarding the expert’s prior engagement by an adverse party
have generally held that there is no reason to conceal those circumstances from
the jury because they are relevant to the determination of the weight and
credibility to be accorded the expert’s testimony. See, e.g., Miller v. Marymount Med.
Ctr.,
125 S.W.3d 274, 282-83 (Ky. 2004) (stating evidence tending to prove objectivity
of expert witness not inadmissible per se either because of prejudicial effect or
tendency to bolster expert witness' credibility); Fenlon v. Thayer,
506 A.2d 319, 323
(N.H. 1986) (noting error in order denying party’s inquiry regarding doctor’s initial retention
because such evidence is pertinent to weight and credibility of expert’s testimony); see
also Cento, supra, 611 So.
2d at 1339-40 (noting permissibility of inquiry regarding facts
of initial retention when expert witness named as trial witness); Baltimore v. Zell,
367 A.2d 14, 17 (Md. 1977) (noting permissibility of introduction of lack of
history between proponent of testimony and adversary’s testifying expert); Marple v. Sears,
505 N.W.2d 715, 718-19 (Neb. 1993) (affirming right of injured plaintiff to testify regarding
examination by defendant’s testifying expert who defendant later attempted to withdraw); Bd. of
Educ. v. Barton,
617 P.2d 347, 350 (Utah 1980) (noting prior employment of
expert essential to jury’s weighing of his testimony); Easton, supra, at 1486 (concluding
courts that have excluded original retention evidence do so not because it has
too little probative value but because it has too much). Easton, supra,
55
SMU L. Rev. at 1486.
Although we recognize the probative value of this evidence, we also note the
unfair prejudice such information may impose on an adverse party. In fact, there
are many reasons why a witness, hired as a party’s expert, may change
his or her original view of the case. The most common is likely
a fuller understanding of the science or of the facts. To be sure,
that fuller understanding may come as a result of deliberate withholding of information
by the original retaining party, but it may also occur through no fault
of that party. For example, the original party may have been misled or
mistaken or simply may have omitted a salient fact, innocently misunderstanding its importance.
In such cases, the change of sides has nothing whatsoever to do with
the adverse party or, indeed, the merits of the case. Yet, as the
courts that have refused to allow inquiry regarding the original retention have uniformly
observed, the mere change of sides has a powerful negative effect on the
jury’s evaluation of the party, or the attorney, who originally retained the witness.
See Granger, supra, 656 P.
2d at 1242-43 (noting mention of prior retention would
lead jury to assume plaintiff’s counsel had withheld information from the expert).
Indeed, such prejudice is often the very purpose for which the proffer is
made. In this case, defendants stated that one of the specific reasons for
calling Dr. Nadel was to impeach plaintiff’s credibility by showing that she had
not been completely candid about her injuries. Even where a party is not
so overt in its attempts to prejudice the adversary, there is a substantial
risk that the jury will unfairly assume that the expert changed sides because
the original hiring party did something wrong, whether that is the truth or
not.
We are likewise concerned that the mere change of sides of the Red
Rover witness may lead the jury to view him as something of a
super-expert, whether that is warranted or not, and to assess the testimony less
critically than would otherwise be the case. In the final analysis, it is
the credentials of the expert and the opinion that he renders that should
be the critical path to the jury’s acceptance or rejection of his view.
Thus, taking into account that it is the expert’s opinion and not his
retention that should be the focus of the jury, and balancing the risk
of unfair prejudice to the original retaining party against any incremental enhancement of
the Red Rover expert’s credibility, we adopt the approach of those courts that
generally restrict inquiry regarding the circumstances of the Red Rover witness’ initial retention.
See, e.g., Agron, supra, 176 F.R.D. at 453; Granger, supra, 656 P.2d at
1242.
That restriction, however, is not absolute. Obviously, that rule will not apply where
the original retaining party opens the door, for example, by challenging the qualifications
of the expert. In such circumstances, inquiry into the original retention may be
necessary because that party will have placed the prior engagement in issue. See
Peterson, supra, 81 F.
3d at 1038 n.5 (attacking expert’s qualification on cross-examination may
open door to rehabilitation by “eliciting testimony from the witness that the party
had thought highly enough of the witness to consult him or her originally”);
Granger, supra, 656 P.
2d at 1242 n.4 (noting inherent difficulty presented in cross-examination
where challenge to expert’s qualifications may open door to evidence of prior consultation).
But see Agron, supra, 176 F.R.D. at 452 (attacking credentials of expert on
cross-examination should not open door to original retention on redirect).
We leave it to the trial judge to determine, under the specific circumstances
of cross-examination, whether the party, in fact, has opened the door to evidence
of the expert’s prior retention. If such evidence is admitted, the judge should
provide an appropriate limiting instruction to guide the jury’s use of it, including
a statement to the effect that the change of side, in itself, is
no reflection on the adverse party. We have referred that issue to the
Committee on Model Civil Jury Charges for creation of an appropriate limiting instruction.
In sum, in this case, the trial judge was mistaken in her interpretation
of Graham and should have allowed Dr. Nadel to testify on defendants’ behalf
without inquiry regarding the original retention, unless plaintiff placed it at issue.
IV
We turn next to defendants’ claims in connection with the disallowance of the
reputation and opinion testimony they proffered regarding plaintiff’s truthfulness. Before trial, plaintiff filed
a motion in limine to prevent defendants from offering testimony regarding specific instances
of lying by plaintiff and to bar character evidence based on those incidents.
In her brief supporting the motion and based on deposition testimony, plaintiff identified
a series of “petty and inflammatory” incidents that led her co-workers to believe
she was untruthful. Specifically, plaintiff stated:
Defendants will proffer testimony of its current and former employees in an effort
to show that plaintiff is untruthful. For example, defendants will offer testimony of
Lee Lane that plaintiff is untruthful because she discussed going to Harvard and
UCLA, claimed to have a photographic memory, made bookkeeping errors and claimed to
meet a football player whom Lane assumed she had never met.
Linda Morero is expected to testify that plaintiff is an untruthful person, incredibly,
because plaintiff said to her that her hair was natural and apparently Morero
believes that plaintiff had hair extensions. Morero admits that there is no other
basis for believing plaintiff is untruthful [other than] hearsay. Morero also believes that
plaintiff never met the professional football player at issue, which is incorrect.
James Boffa is expected to testify of his belief that plaintiff is a
habitual liar. His sole basis is comments made about UCLA and/or Harvard and
her desire to become a CPA.
Defendants will also call [T.S.] to opine that plaintiff did not have a
reputation for truthfulness at Stanley Roberts. Her sole basis for this statement is
her petty deposition comments that plaintiff would exaggerate how much she paid for
her shoes, women’s clothing and jewelry, misstated about the year of the car
she was driving, and allegedly lied about her roommate having a health condition
which the evidence supports she did indeed have.
Marlene Cohn will testify that plaintiff is untruthful because plaintiff said she was
going to become a CPA. She will also apparently testify that plaintiff said
her tires were once slashed and “we never heard anything about that.”
Defense will also offer Diane Ingenito who will apparently testify that plaintiff was
an unbelievable person because Jen claimed to have met a professional football player
and she did not believe that she had done so. Ingenito will also
testify that Jen said she had started a pursuit of a modeling career,
and she did not believe that. Defense may also offer testimony of Penny
Liguori to show that plaintiff exaggerated about the professional football player.
Plaintiff argued that because those individual incidents were inconsequential, neither evidence of the
specific incidents themselves nor character evidence in other forms should be admitted. Specifically,
plaintiff stated:
All of the petty and inflammatory aforementioned testimony is excludable pursuant to N.J.R.E.
608 which makes specific instances of conduct, offered to prove a trait of
character, inadmissible for purposes of effecting the credibility of a witness. Defendants are
simply prohibited from calling the aforementioned witnesses to obtain specific instances of alleged
occurrences in which they found plaintiff to be untruthful. Therefore, any and all
attempts by defendants to prove plaintiff is a liar by specific and petty
interpretations of alleged exaggerations is excludable.
Moreover, defendants are prohibited from calling the aforementioned witnesses to give their opinion
as to plaintiff’s reputation for truthfulness in the community. In order for the
defendants to present lay opinion evidence, [there] will have to be some sort
of rational basis for the opinion, which is not based on inadmissible hearsay.
Moreover, if the court finds that the witness lacks sufficient information to have
formed a reliable opinion, the evidence is excludable because of prejudice, confusion, waste
of time, or because of lack of personal knowledge.
Defendants responded that their witnesses had interacted with plaintiff for over two years
at work and had sufficient information to form a reliable “opinion.” Defendants also
argued:
The opinions of Fitzgerald’s co-workers are relevant to her credibility and her reputation
(for being untruthful). This testimony also supports the diagnoses of Dr. Nadel (Plaintiff’s
expert psychiatrist) and Dr. Bortnichak (Defendants’ expert psychiatrist) that Fitzgerald is a malingerer
with histrionic personality traits who told untruthful stories and exaggerations, both for financial
gain and to draw attention to herself.
Defendants explained their proposed use of the character witness testimony:
I will ask them, do you have [an] opinion as to Miss Fitzgerald’s
reputation for truthfulness or untruthfulness and they’re going to say yes. Now I’m
in a catch 22 because [plaintiff’s attorney] doesn’t want me to ask the
next question. What’s that opinion based on?
After the trial judge correctly ruled that specific instances of lying would be
inadmissible under N.J.R.E. 608, defense counsel asked whether it would be permissible to
offer “opinion testimony as to [plaintiff’s] reputation for truthfulness” without inquiring about specific
instances. In particular, he stated, “[t]here will be a blanket prohibition on my
part. I won’t ask anybody about specific instances of conduct relating to truthfulness
or not truthfulness.” The trial judge replied that such testimony would necessarily lead
back to the specific instances of conduct and result in the issue going
“round and round.” Accordingly, defendants were prohibited from offering that evidence at all.
N.J.R.E. 608 See footnote 9 governs the admission of character evidence. The rule states:
The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, provided, however, that the evidence relates only to the witness' character for truthfulness or untruthfulness, and provided further that evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. Except as otherwise provided by Rule 609, a trait of character cannot be proved by specific instances of conduct.
[N.J.R.E. 608.]
That formulation is repeated in N.J.R.E. 405, which provides:
(a) Reputation, opinion, or conviction of crime. When evidence of character or a
trait of character of a person is admissible, it may be proved by
evidence of reputation, evidence in the form of opinion, or evidence of conviction
of a crime which tends to prove the trait. Specific instances of conduct
not the subject of a conviction of a crime shall be inadmissible.
(b) Specific instances of conduct. When character or a trait of character of
a person is an essential element of a charge, claim, or defense, evidence
of specific instances of conduct may also be admitted.
[N.J.R.E. 405.]
An opinion witness offers a personal assessment of a prior witness’ character based
on his or her own perceptions. Biunno, Current N.J. Rules of Evidence, comment
3 on N.J.R.E. 405 (2005). Contrariwise, a reputation witness restates the community’s assessment
of the subject’s character. State v. Danser,
116 N.J.L. 487, 491-492 (1936) (“[I]t
is nevertheless the community estimate, not the witness' personal opinion, which constitutes reputation.
What the witness may think of an individual is not reputation.”); Biunno, supra,
comment 2 on N.J.R.E. 405. To the extent that there is an opinion
in the reputation form of character evidence, it is the community’s opinion, not
that of the testifying witness. State v. Sinnott,
24 N.J. 408, 420 (1957);
Danser, supra, 116 N.J.L. at 491-492. The rules governing the foundation for opinion
and reputation evidence are also distinct.
B.
Because an individual’s testimony regarding another person’s character trait is a form of
lay opinion evidence, N.J.R.E. 701 determines its admissibility:
If a witness is not testifying as an expert, the witness’ testimony in
the form of opinions or inferences may be admitted if it (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.]
See also N.J.R.E. 602 (requiring all non-expert testimony be based on first-hand knowledge).
Thus, a lay opinion regarding a prior witness’ bad character for truthfulness will
be admissible if it is founded upon the character witness’ perceptions of the
prior witness and will assist the jury in determining the fact in issue.
See footnote 10
See, e.g., United States v. Turning Bear,
357 F.3d 730, 734 (8th Cir.
2004) (noting foundation sufficient where character witness knows subject well enough to have
formed an opinion). There are no formal prerequisites for the admission of that
testimony such as particularly long acquaintance or freshness of information. What is required
is sufficient familiarity with the subject to form an opinion.
See footnote 11
United States v.
Watson,
669 F.2d 1374, 1382 (11th Cir. 1982). As under the federal rule,
under N.J.R.E. 608 “a trait of character cannot be proved by specific instances
of conduct.” Accordingly, at trial, the proponent of a character witness is not
permitted to inquire whether the witness knows about any specific instances of conduct
to prove the trait in issue.
See footnote 12
State v. Guenther, 181 N.J. 129, 140
(2004).
C.
Unlike opinion testimony that is based on personal knowledge, reputation testimony is hearsay
when it is offered for its truth. 5 Wigmore on Evidence §§ 1609, 1610
(Chadbourn rev. 1974). N.J.R.E. 803(c)(21) provides an exception to the hearsay rule for
“[e]vidence of reputation of a person’s character at a relevant time among the
person’s associates or in the community.” The theory underlying reputation evidence is that
a person’s reputation for a particular character trait develops when the community observes
specific instances of conduct during its dealings with the person and later discusses
that conduct, thereby establishing a general consensus view of the person’s character for
that trait. State v. Kelly,
312 A.2d 906, 908 (Vt. 1973); see also
State v. Micci,
46 N.J.Super 454, 461-62 (App. Div. 1957) (describing theory underlying
reputation evidence). The notion of the reliability of that evidence is based on
the idea that “the prolonged and constant exposure of a condition of things
to observation and discussion by a whole community will . . . sift
the possible errors and will bring the resulting belief down to us in
a residual form of fair trustworthiness.” 5 Wigmore on Evidence § 1583 (Chadbourn rev.
1974).
At common law, in New Jersey and elsewhere, the community from which reputation
for a particular character trait could be divined was limited to the place
where a person lived. See, e.g., State v. Brady,
71 N.J.L. 360, 362
(1904) (noting definition of community must include whole community where subject lived, not
a subsection); Micci, supra, 46 N.J. Super. at 461-62 (allowing reputation evidence from
neighboring municipality while stating that community must be one where “the shadow of
defendant’s daily life is cast”). However, that is no longer the rule in
this state, nor in most jurisdictions. See State v. Johnson,
216 N.J. Super. 588, 606-7 (App. Div.) (permitting evidence of reputation of police informant within community
of police officers), certif. denied,
107 N.J. 747 (1987). Commentators have noted:
[T]oday it is generally agreed that proof may be made not only of
the reputation of the witness where he lives, but also of his repute,
as long as it is "general" and established, in any substantial community of
people among whom he is well known, such as the group with whom
he works, does business or goes to school.
[McCormick on Evidence § 44 (3d ed. 1984) (footnotes omitted).]
Thus, in order to satisfy the foundation for reputation testimony, what is required
is the establishment of the relationship of both the subject and the witness
to the relevant community and the existence of an expressed community opinion regarding
a trait of the subject’s character.
See footnote 13
Once that occurs, the testimony is admissible.
So instructed, it appears that several errors occurred in connection with defendants’ proffer of witnesses to testify regarding plaintiff’s character for untruthfulness. First, the parties and the judge appeared to conflate opinion and reputation testimony. As we have said, they are discrete methods of challenging character with distinct foundational requirements. Second, the judge mistakenly issued a blanket order barring defendants’ character witnesses because she believed that their testimony would be based on specific instances of conduct, despite defense counsel’s promise that he would not elicit testimony regarding such specific instances.
Significantly, plaintiff advanced no challenge to the character witnesses’ familiarity or experience with her; to the notion of the workplace as a cognizable community; to the fact that both plaintiff and the character witnesses were members of the same community; or to the idea that the community had developed a conclusion regarding plaintiff’s reputation for truthfulness. Plaintiff’s challenge was that defendants’ witnesses should be barred from giving testimony regarding her character because they based their conclusions on specific instances of conduct that plaintiff considered inconsequential. That was not a basis to bar the testimony because, in truth, both opinion evidence and reputation evidence are based on individual instances of conduct observed either by the character witness or the community. It is those instances of conduct, sometimes major and sometimes minor, from which the character witness or the community distills an opinion over time. See Michelson v. United States, 335 U.S. 469, 477, 69 S. Ct. 213, 219, 93 L. Ed. 168, 174-75 (1948) (defining reputation as “resultant picture of forgotten incidents, passing events, habitual and daily conduct . . . a multitude of trivial details”) (quoting Badger v. Badger, 88 N.Y. 546 (1882)). To be sure, evidence regarding specific instances of conduct may not be used to prove a trait of character under either N.J.R.E. 405 or 608. What is not barred is the distillate: the opinion and reputation derived from consideration of the specific instances.
In this case in which credibility was pivotal, defendants should have been permitted to present both opinion and reputation evidence regarding plaintiff’s character for truthfulness without reference to specific instances of conduct so long as the foundational requirements to which we have adverted were satisfied. It fell to plaintiff to impeach that testimony by attacking, for example, the character witnesses’ bias or interest in the case, or by offering character witnesses of her own. The fact that plaintiff’s attorney could identify certain instances of plaintiff’s misconduct that a defense character witness may have considered does not render the character witness’ opinion or reputation evidence inadmissible. In sum, the blanket order barring all of the defendant’s character testimony was erroneous. In a case like this where credibility was pivotal, we cannot say that that error was harmless.
Defendants next contend that the trial judge erred in allowing plaintiff to introduce testimony from co-employees about office gossip to the effect that T.S., a former receptionist at Stanley Roberts, voluntarily performed sexual acts on Pomeranz in his office. Plaintiff claimed that T.S. told her of those acts, and confessed that she performed them for money. Plaintiff also elicited testimony from several co-workers that they had heard speculation that T.S. was performing sex acts in Pomeranz’s office. No witness claimed to have observed those acts or, aside from plaintiff, to have heard about them from either of the alleged participants. The following exchange between plaintiff’s counsel and plaintiff’s witness Ada Mistreski was typical of the manner in which the gossip testimony was presented to the jury:
Q: Did you ever hear work place discussion about a woman named [T.S.]?
A: When I used to go visit?
Q: Yeah.
A: Yes.
Q: And what kind of discussion did you overhear?
A: --no, I was told by another employee like when I would go
visit that she would go in his office, and the door would be
shut, and they would tell me like what she would be doing in
there. Assuming what she would be doing in his office.
Q: What’s the name of this employee that told you that?
A: Marlene Cohn.
Q: Okay. And I know this might be a little difficult. I know
you’re in a room with a bunch of strangers and a Judge even,
but can you tell the jury what phrases were used?
A: What Marlene told me she was assuming was going on?
Q: Yes, ma’am.
A: She would say oh I bet [T.S.] is giving him, excuse me,
giving him like a [manual sex act] or [oral sex act].
Q: Take your time.
A: And that’s what she told me. That’s what she’s assuming that was
happening in there with this [T.S.].
Q: I know you weren’t working there at the time, but - -
A: No.
Q: --is that something that you think is appropriate in a work place?
A: I don’t think it’s appropriate in the work place, no.
After a similar set of questions put to another of plaintiff’s witnesses’ Roseanne
Leone, plaintiff’s attorney continued:
Q: Okay. How did you feel as a female employee of Stanley Roberts
to hear this discussion in the office?
A: Disgusted.
Q: Why?
A: Well, I don’t think it’s the proper place for something like that.
You know, it’s worse that he was -- had a relationship -- even
if he had a relationship with her, she shouldn’t be coming into the
office to be doing this and everybody in the office knowing it.
Q: How about the fact that there was these discussions happening. Did that
bother you?
A: Yeah. Yes, because it distracted everybody from their work, number one, and
it was just -- it was making fun of her and I said
-- and she knew this. She knew as soon as she walked through
the door that everybody would be talking about it. I just couldn’t believe
that somebody could just do that.
As the above colloquy reveals, the witnesses often appeared confused over whether plaintiff’s
counsel was inquiring regarding the truth of the alleged rumors or of their
mere existence.
In common usage, gossip is idle talk or rumor, especially about the personal or private affairs of others. Random House Webster’s Unabridged Dictionary (2d ed. 1987). Because gossip consists of out-of-court statements, when it is proffered in a judicial proceeding to establish the truth of the matter asserted, it is generally inadmissible because it violates the hearsay rule. N.J.R.E. 801(c) (“‘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. 802 (“Hearsay is not admissible except as provided by these rules or by other law.”).
Underlying the exclusion of hearsay is the basic principle that unless a specific hearsay exception recognizing the trustworthiness of some otherwise inadmissible out-of-court statement applies, such “untrustworthy and unreliable” evidence should not be admitted in a judicial proceeding. See State v. Williams, 169 N.J. 349, 358-60 (2001) (discussing statement against interest exception). Indeed, courts “must be particularly assiduous to enforce the hearsay rule in sexual harassment cases in order to protect the privacy both of alleged victims and alleged harassers against scurrilous rumors (designed to coerce either settlement or abandonment of the suit) regarding their sex lives.” Minor v. Ivy Tech State Coll., 174 F.3d 855, 857 (7th Cir. 1999).
However, gossip, like other hearsay evidence, may be admissible if it is adduced not for its truth, but for another purpose, for example, its effect upon a listener. Spragg v. Shore Care, 293 N.J. Super. 33, 57 (App. Div. 1996); Russell v. Rutgers Cmty. Health Plan, Inc., 280 N.J. Super. 445, 456-57 (App. Div.), certif. denied, 142 N.J. 452 (1995). Thus, if an employee heard gossip that people who complained about work conditions were fired, the evidence might be admissible not to prove that people were in fact fired, but to explain her delay in reporting a problem.
Plaintiff argues that the gossip about Pomeranz and T.S. was admissible because it was offered not to prove its truth but for other legitimate purposes. For example, she contends, among other things, that the evidence was admissible to show the accuracy of her understanding of Pomeranz’s actions as sexually harassing; to rebut the effectiveness of a sexual harassment policy; and to establish the character of the workplace.
Because Pomeranz’s alleged harassment of plaintiff involved unambiguous actions like assault and battery, surprise trips to massage parlors, and instructions to remove her clothes and report to his office, the gossip evidence was of limited probative value, if any, regarding plaintiff’s subjective understanding of Pomeranz’s other actions. See Spragg, supra, 293 N.J. Super. at 57.
However, the evidence that people gossiped about sexual matters was relevant to establishing the general character of the workplace, to the effectiveness of the sexual harassment policy, and to rebutting witness testimony offered by defendants that the atmosphere of the office was subdued. See Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 81-82, 118 S. Ct. 998, 1003, 140 L. Ed.2d 201, 208 (1998) (stating “real social impact of workplace behavior often depends on a constellation of surrounding circumstances, expectations, and relationships”); see also Michael J. Frank, The Social Context Variable in Hostile Environme