On the date of the accident, decedent and plaintiff were shopping at defendant's supermarket. Decedent was using a motorized cart. As she went down a narrow aisle, her cart's basket caught on a cash register station, causing the station to fall on her. The accident injured her leg. Decedent stated she was fine and went home, but four days later she was taken to the hospital with complications. She died the following morning.
After a deputy medical examiner inspected decedent's body, a Certificate of Death was issued. The Certificate stated that the manner of her death was an "accident" and that the cause of death was "complications of blunt trauma of [the] right lower extremity." The examiner's associated report reiterated these conclusions in more detail.
The key legal issue in this appeal is whether the State Medical Examiner Act, N.J.S.A. 52:17B-92, mandates the admission before a civil jury of the Certificate of Death and the hearsay opinions it contained. In addition, we consider whether the hearsay exception for vital statistics, N.J.R.E. 803(c)(9), supplies a sufficient pathway for the Certificate's admissibility. As part of that analysis, we
For the reasons that follow, we hold that N.J.S.A. 52:17B-92 does not provide an absolute right to a civil plaintiff to admit the full contents of the Certificate of Death. The hearsay opinions within the Certificate were properly excluded by the trial court under N.J.R.E. 808, the net opinion doctrine, and pertinent case law. We also hold the hearsay exception for vital statistics does not require admission of the examiner's opinions.
Additionally, we conclude the trial court reasonably exercised its discretion in declining to reopen and extend discovery after declaring the Certificate inadmissible. Nor did the court err in granting defendant summary judgment, in light of plaintiff's lack of necessary expert proof of medical causation.
I.
On October 19, 2012, plaintiff William Quail and his wife, decedent Mary Quail ("Mary"),
Generally, when a person dies within twenty-four hours after admission into a hospital, the Morris County Medical Examiner is notified to inspect the body. Accordingly, on October 24, Dr. Carlos A. Fonseca, a forensic pathologist and deputy county medical examiner, externally inspected decedent's refrigerated body and prepared a report. The following day, a Certificate of Death was issued. It stated decedent's manner of death was an "accident," and that the cause of death was "complications of blunt trauma of [the] right lower extremity." The Certificate was issued by the Local Registrar, and bears the sealed signature of the Acting State Registrar of the New Jersey Office of Vital Statistics and Registry.
Dr. Fonseca's associated three-page report amplified the findings noted on the Certificate of Death. The report described decedent as "a morbidly obese, well developed, elderly white female who appears to be the stated age of 68 years." The report included observations about the decedent's condition as to various parts of her body. One of Dr. Fonseca's observations in the report was that:
The right lower extremity reveals mild pitting edema from the knee level down. The right leg reveals extensive swelling of the anterolateral surface due to a 9? x 7? hematoma. Associated with this is purplish/bluish bruising of the back of the leg extending into the popliteal fossa that reveals thickening of the skin. The skin overlying the hematoma is tense and with fluctuation on compression. A large area of epidermolysis measuring 7? x 4? is noted at this level with superficial ulceration of the skin with partial splitting of the dermis and oozing of clear to hemorrhagic fluid. Patchy areas of skin slippage are noted around the margins of the hematoma.
[ (Emphasis added).]
Near the end of the report, Dr. Fonseca opined:
Based on the investigation, medical history, medical records, and external examination, it is my opinion that the deceased died as a consequence of complications ofblunt trauma of right lower extremity having as contributory conditions anticoagulation therapy for atrial fibrillation, diabetes mellitus, coronary artery disease, chronic obstructive pulmonary disease, and congestive heart failure. Manner of death is accidental.
[ (Emphasis added).]
Thereafter, plaintiff, as administrator of his late wife's estate and individually, filed a civil action in the Law Division against Shop-Rite
After discovery ended, Shop-Rite moved to bar admission of the Certificate of Death and also for summary judgment dismissing plaintiff's claims. Following oral argument, Judge Robert M. Hanna barred the findings within the Certificate of Death. He also denied a discovery extension to plaintiff and granted Shop-Rite summary judgment. The judge issued a comprehensive twenty-page statement of reasons explaining his determinations.
At the outset of his written analysis, Judge Hanna found that plaintiff had presented sufficient evidence to support a jury finding that Shop-Rite acted negligently. The judge noted in this regard that Shop-Rite had a duty to ensure that its store aisles
Nevertheless, the judge ruled that plaintiff would be unable to show proximate cause without expert testimony. Because plaintiff had retained no such medical expert, defendant was entitled to summary judgment as a matter of law.
The judge reasoned that complex medical issues were involved in linking the accident at the store with decedent's demise five days later. The judge recognized that plaintiff had proffered the Certificate of Death as evidence of proximate causation. The judge assumed, for the purposes of his decision, that the Certificate of Death would be potentially admissible at trial under N.J.R.E. 803(c)(9) as a "vital statistic." Even so, the judge found that the Certificate of Death must be excluded for three reasons:
(1) [S]tanding alone, it is a "net opinion" lacking the whys and wherefores on which it is based;
(2) Plaintiff during discovery failed to identify as a witness the Deputy Medical Examiner whose opinion as to cause of death is found in the Certificate of Death and failed to produce the underlying Medical Examiner's report and records providing the basis for that opinion; and
(3) N.J.R.E. 808 requires exclusion in these circumstances, which involve complex medical circumstances and medical causation issues, since the declarant (the Deputy Medical Examiner) whose expert opinion is included in the Certificate of Death was not identified as an expert witness nor were his underlying report and records produced during discovery.
Judge Hanna found it significant that plaintiff had not sought to obtain the medical examiner's file until after the discovery period had already ended. That discovery violation constituted an additional reason to exclude the Certificate of Death. The judge found that plaintiff failed to show due diligence under Rule 4:17-7 or exceptional circumstances under Rule 4:24-1(c) to justify reopening discovery. The judge observed that plaintiff had made a "conscious, strategic decision" to rely on the Certificate of Death alone. Plaintiff had not identified the deputy medical examiner as
Represented by new counsel, plaintiff moved for reconsideration. Judge Hanna
As another point addressed on reconsideration, the judge rejected plaintiff's argument that the dismissal of his survivorship action, as distinct from his wrongful death claim, was improper. In this regard, the judge noted that plaintiff critically lacked necessary expert opinion proof "establishing the causal link between the Shop[-]Rite incident and [d]ecedent's pain and suffering prior to her death, a link that involve[d] complex medical issues."
This appeal by plaintiff ensued. He principally contests the trial court's evidential rulings concerning the Certificate of Death. He also seeks reversal of the court's denial of a discovery extension and its grant of summary judgment.
II.
The State Medical Examiners Act, N.J.S.A. 52:17B-92, states, in relevant part:
It shall be the duty of the State Medical Examiner, and the county medical examiners, to keep full and complete records in their respective offices, properly indexed, giving the name, if known, of every such person, the place where the body was found, date and cause of death, and all other available information relating thereto.... The records of the office of the State Medical Examiner, and of the county medical examiners, made by themselves or by anyone under their direction or supervision, or transcripts thereof certified by such medical examiner, shall be received as competent evidence in any court in this State of the matters and facts therein contained... The records which shall be admissible as evidence under this section shall be records of the results of views and examinations of or autopsies upon the bodies of deceased persons by such medical examiner, or by anyone underhis direct supervision or control, and shall not include statements made by witnesses or other persons.
[ N.J.S.A. 52:17B-92 (emphasis added).]
This current statute repeats similar language dating back as early as 1927, and which stated:
The records of the office of the chief medical examiner made by himself or by anyone under his direction or supervision shall be considered public records, and such records or transcripts thereof certified by the chief medical examiner shall be received as evidence in any court in this State of the matters and facts therein contained. The records which shall be admissible as evidence under this section shall be records of the results of views and examinations of or autopsies upon the bodies of deceased persons by the chief medical examiner or by anyone acting under his direction, supervision or control, and shall not include statements made by witnesses or other persons.
[L. 1927, c. 106, § 6 (emphasis added); see also R.S. 40:21-70 (1937) (superseded by L. 1967, c. 234).]
The 1927 statute, which covered only medical examiners in first-class counties, was supplemented in 1944 with a companion provision that extended to second-class counties. See L. 1944, c. 182, § 10.
Notably, the Supreme Court has issued several opinions restricting the breadth of this admissibility provision. For instance, in State v. Reddick,
The Court applied Reddick in a civil context to hold that a non-testifying medical examiner's report or record is admissible only if the examiner's opinion is excised from it. Theer v. Philip Carey Co.,
Both Reddick and Theer, which remain good law, support the trial court's exclusion of the opinions about decedent's cause of death stated in the Certificate of Death. We recognize those Supreme Court cases do not discuss N.J.S.A. 52:17B-92. Even so, the Court's case law places an important judicial gloss on what otherwise would seem at first blush to be an unqualified direction in the statute that a medical examiner's
Unable to distinguish or discredit Reddick and Theer, plaintiff criticizes the trial court's citation to Biro v. Prudential Ins. Co. of Am.,
In his dissenting opinion in Biro, which was later adopted by the Supreme Court,
Biro does not aid plaintiff's argument for admissibility here. The Certificate of Death here noted the cause of death was an "accident," which was plainly a subjective opinion and not a "fact." Judge Matthews did acknowledge that, had the medical examiner testified, his opinions within his area of specialized knowledge (such as whether the death was caused by carbon monoxide and alcohol poisoning ), would be admissible, but not his opinions about suicide. Id. at 405-06,
Nor is Pearson v. St. Paul,
There are two other compelling reasons for upholding the exclusion of the Certificate of Death in this case: the special hearsay restrictions in N.J.R.E. 808, and the "net opinion" doctrine.
N.J.R.E. 808 was adopted in 1992. The rule codifies the Supreme Court's opinion
Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness.
[ N.J.R.E. 808 (emphasis added).]
Notably, the adoption of Rule 808 post-dated the enactment of N.J.S.A. 52:17B-92.
Case law applying Rule 808 has repeatedly enforced the Rule's prohibition of the admission of complex expert opinions contained in hearsay documents, where there are disputed issues concerning the trustworthiness of those opinions. See, e.g., James v. Ruiz,
Taking the necessary analysis under Rule 808 to the next step, it is manifest that the terse finding within the Certificate reciting a cause of death is the very sort of disputed opinion on a complex subject that should not be admitted without the opportunity to cross-examine the author. In this fashion, the principles of Rule 808 fortify the mandates of Reddick and Theer to exclude the portion of a death certificate that contains subjective opinions from a non-testifying medical examiner.
As the motion judge also rightly found, a separate reason for excluding the Certificate of Death is the net opinion doctrine. The doctrine barring the admission at trial of net opinions is a "corollary of [ N.J.R.E. 703 ] ... which forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data."
The "whys and wherefores" supporting the death certificate's opinions about decedent's cause of death are clearly absent from the document. One cannot tell from the document how the medical examiner reached the conclusion that the cause of death was accidental, or how the mechanism of injury to plaintiff's leg at the store produced her unfortunate demise five days later. The document is a classic "net opinion" that must not be allowed in the
For these many reasons, the trial court correctly barred the admission of the Certificate of Death. We affirm that determination.
III.
We turn to plaintiff's argument that the trial court unfairly precluded him from reopening discovery and seeking to use the medical examiner's narrative report as alternative or additional evidence of the cause of death.
Our scope of review of this procedural ruling is a narrow one. A trial court's decision about whether to extend a period of discovery is reviewed for abuse of discretion. Leitner v. Toms River Reg'l Sch.,
Having fully considered the chronology of events, we are satisfied the trial court did not misapply its discretion in declining to let plaintiff to reopen discovery and belatedly rely upon the medical examiner's narrative report to support his claims of medical causation. Plaintiff did not move to extend discovery prior to the setting of the trial date. Plaintiff could not have reasonably expected in light of the precedent in Reddick and Theer, to rely on the Certificate of Death as his sole medical proof of causation. The court justifiably determined that plaintiff had not demonstrated
Nor did the court act arbitrarily or unfairly in disallowing plaintiff's effort to amend his interrogatory answers under Rule 4:17-7 in order to rely on the medical examiner's narrative. Plaintiff and his former counsel had access to the Certificate of Death early on in the case. During the course of discovery, they did not attempt to procure the medical examiner's report or retain an expert. Plaintiff obtained the medical examiner's narrative only after discovery had ended and defendant already had moved for summary judgment.
Even if the trial court, in its discretion, had granted plaintiff the opportunity to extend discovery and amend his interrogatory answers to include the medical examiner's narrative report, that would not
IV.
Lastly, we consider the trial court's entry of summary judgment in Shop-Rite's favor, given the state of the record. In doing so, we apply the familiar principle that, on a motion for summary judgment, the court must consider "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am.,
A critical legal component of plaintiff's wrongful death and survivorship claims is establishing that the incident in the supermarket proximately caused decedent's medical complications and her ultimate death. See Model Jury Charges (Civil), 6.13, "Proximate Cause-Where There is Claim that Concurrent Causes of Harm are Present and Claim that Specific Harm was not Foreseeable" (1998). See also Townsend,
Judge Hanna found that plaintiff needed expert opinion to prove proximate cause in this case because the chain of proximate cause-connecting the impact on decedent's right leg from the store incident, to her medical complications at home that caused her to go to the hospital, to her death five days later-all entailed complex medical issues beyond the ken of an average juror. To evaluate how this accident injuring the decedent's right leg could have been a substantial factor in her death over the course of a few days involves a highly technical assessment of not only the foot injury but also the interaction of decedent's underlying medical problems and medications. The topic is plainly outside the common knowledge of the average juror. 2175 Lemoine Ave. Corp. v. Finco, Inc.,
Plaintiff needed a medical expert to address these key issues of medical causation, but did not retain one. This critical shortcoming pertains as to both the wrongful death claim and the survival claim. To be sure, we recognize that it is plausible from the known facts to infer that decedent sustained a harsh blow to her right leg. But that lay inference is simply not enough to get the complex issues of medical causation before a jury.
Affirmed.
Notes
We use decedent's first name in this narrative to distinguish her from her husband. In doing so, we intend no disrespect.
The caption identifies the non-fictitious defendants as "Shop-Rite Supermarkets, Inc., Shop-Rite of Stanhope, New Jersey, Shop-Rite of Byram Township, New Jersey, and Ronetco D/B/A Shoprite of Byram, NJ # 203." We collectively refer to them as "Shop-Rite." The fictitiously named defendants were never identified, nor substituted into the case.
The ensuing passage of medical privacy legislation such as the Health Insurance Accountability and Portability Act ("HIPAA"),