A-25-14 Patricia Delvecchio v. Township of Bridgewater (074936)
135 A.3d 954
| N.J. | 2016Background
- Patricia Delvecchio worked as a police dispatcher for Bridgewater Township and developed irritable bowel syndrome (IBS) and anxiety/panic disorder that her treating physicians linked to night-shift assignments.
- Treating gastroenterologist Dr. Ciambotti and psychiatrist Dr. Rochford provided notes to the Township recommending avoidance of midnight shifts; the Township accommodated her irregularly and later demoted and then terminated her employment for absenteeism/neglect.
- Delvecchio sued under the New Jersey Law Against Discrimination (LAD) for disability discrimination, failure to accommodate, hostile work environment, wrongful demotion/termination, and retaliation.
- In discovery Delvecchio identified Ciambotti and Rochford as treating physicians expected to testify but did not designate them as retained expert witnesses or produce expert reports.
- At trial the court limited both treating physicians from testifying about diagnosis/treatment (beyond identifying conditions and notes), gave limiting jury instructions, and the jury found for defendants; the Appellate Division reversed as to Ciambotti and ordered a new trial.
- The New Jersey Supreme Court affirmed: treating physicians may testify about diagnosis/treatment under N.J.R.E. 701 if disclosure/discovery rules are satisfied and testimony stays within the treating scope; the trial court’s exclusion of that testimony was reversible error and prejudicial here.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a treating physician who is not designated as an expert may testify to diagnosis/treatment to establish a LAD disability | Delvecchio: treating doctors may offer opinion evidence under N.J.R.E. 701 about diagnosis/treatment without expert designation | Township: LAD disability claims require retained expert testimony; treating-physician opinion is speculative if not designated/expert-reported | Court: Treating physicians may testify about diagnosis/treatment under N.J.R.E. 701 if limited to patient care and discovery rules met; not required to be designated as expert in all cases |
| Discovery/notice obligations for using treating physicians at trial | Delvecchio: she identified treating physicians and summarized expected testimony in interrogatories | Township: greater expert disclosure should be required; lack of reports justified exclusion | Court: party must respond to discovery and, if requested, provide treating-physician reports or the substance/basis of anticipated testimony per Rules 4:17-4 and 4:10-2(d) |
| Proper scope of treating-physician testimony | Delvecchio: doctors would testify about symptoms, diagnosis, treatment, and how schedule affects condition | Township: testimony about causation/diagnosis exceeds lay-witness scope unless expert-designated | Court: permissible testimony is limited to matters relevant to diagnosis/treatment of that patient; broader medical questions may require retained experts |
| Whether exclusion of treating-physician testimony was harmless | Delvecchio: exclusion prevented her from meeting threshold LAD disability element and thus was prejudicial | Township: limiting instruction cured any problem; other experts testified | Court: exclusion was not harmless—jury sought information on IBS and plaintiff was deprived of fair opportunity to prove disability; new trial warranted |
Key Cases Cited
- Stigliano v. Connaught Labs., 140 N.J. 305 (N.J. 1995) (treating physicians may testify as fact witnesses about diagnosis and treatment under N.J.R.E. 701)
- Clowes v. Terminix Int’l, 109 N.J. 575 (N.J. 1988) (when disability is not apparent, objective expert medical evidence is required to prove the fact of a disability)
- Viscik v. Fowler Equipment Co., 173 N.J. 1 (N.J. 2002) (reaffirming that non- readily apparent disabilities require expert medical evidence; distinguishes physical vs. non-physical disabilities)
- Ginsberg v. St. Michael’s Hosp., 292 N.J. Super. 21 (App. Div. 1996) (treating physicians may testify about subjects relevant to evaluation and treatment of their patients)