A-25-14 Patricia Delvecchio v. Township of Bridgewater (074936)

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

interest of brevity, portions of any opinion may not have been summarized.)

Patricia Delvecchio v. Township of Bridgewater (A-25-14) (074936)

Argued October 27, 2015 – Decided April 28, 2016

Patterson, J., writing for a unanimous Court.

In this appeal, the Court considers whether a plaintiff may rely on the testimony of a treating physician,

who has not been designated as an expert witness, to establish the existence of a disability for a claim under the New

Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 et seq.

On February 18, 1999, plaintiff Patricia A. Delvecchio commenced employment with the Township of

Bridgewater (Township) as a dispatcher for the Police Department (Department). At that time, the Township

maintained three shifts for police dispatchers, including a midnight shift, and required dispatchers to work each of

the shifts on a rotating basis. In 2003, plaintiff developed inflammatory bowel syndrome (IBS), and began treatment

with Dr. Gary Ciambotti (Ciambotti), a gastroenterologist. Ciambotti wrote to plaintiff’s supervisors and stated that

her symptoms were under control as long as she worked regular daytime hours, but would be exacerbated by an

assignment to the midnight shift.

In response to plaintiff’s requests, the Township initially provided her with a steady afternoon shift, but

subsequently stated that it was no longer possible to assign her consistently to the daytime shift due to the burden

that this imposed on other employees who covered the remaining shifts. Plaintiff asked the Township to reconsider,

and the Township then permitted her to continue working daytime shifts, but with no guarantee that she could

entirely avoid midnight shifts. The Township subsequently required her to be available for an occasional midnight

shift, as necessary.

In September 2006, plaintiff also began treating with Dr. Joseph Rochford (Rochford), a psychiatrist, who

diagnosed her as having anxiety and panic attacks. After a staffing change increased plaintiff’s concern that she

would again be required to work midnight shifts, she provided the Township with notes from Rochford, who stated

that such assignments would exacerbate plaintiff’s stress condition, and Ciambotti, who reiterated his opinion that

she should not be compelled to work midnight shifts. In March 2007, Ciambotti stated that it was absolutely

medically necessary that the Township refrain from assigning plaintiff to midnight shifts.

On December 24, 2007, plaintiff declined her supervisor’s request that she work a midnight shift, and

another dispatcher was required to remain on duty to cover the shift. This precipitated complaints by other

dispatchers, and the Township concluded that plaintiff’s unwillingness to work a midnight shift imposed an undue

burden on it. The Township asked plaintiff to resign. She refused, and accepted another position with the Township

as a records clerk, but at a lower salary. On September 16, 2009, the Township terminated plaintiff's employment

for neglect of duty and chronic/excessive absenteeism.

Plaintiff filed a complaint for disability discrimination and retaliation under the LAD challenging her

termination from employment. In response to defendants’ discovery requests, plaintiff stated that she had not

retained any expert witnesses, but identified Ciambotti and Rochford as treating physicians who were expected to

testify. Plaintiff summarized Ciambotti’s proposed testimony, but did not serve expert reports from Ciambotti or

Rochford. The trial court sustained defendant’s objection to the testimony, and did not permit Ciambotti to opine on

his diagnosis and treatment for plaintiff since he had not prepared an expert report. The court also limited

Rochford’s testimony by precluding any opinion regarding plaintiff’s diagnosis.

At the conclusion of the trial, the jury returned a verdict of no cause of action. The trial court denied

plaintiff’s motions for judgment notwithstanding the verdict and for a new trial. Plaintiff appealed. In an

unpublished decision, the Appellate Division reversed and remanded for a new trial on the ground that the trial court

1

had improperly restricted the testimony of Ciambotti. This Court granted defendant’s petition for certification. 220

N.J. 98 (2014).

HELD: The testimony of a treating physician is admissible to support a plaintiff’s disability claim under the LAD,

provided that the proponent gives notice of the testimony to the adverse party, responds to discovery requests in

accordance with the Rules of Court, and the testimony satisfies N.J.R.E. 701 and other applicable Rules of Evidence.

Plaintiff provided the information that defendants requested in discovery regarding the proposed treating physician

witnesses, and the trial court should have permitted her to present the vital testimony of these witnesses.

1. The applicable standard of review requires that an appellate court not reverse a trial court’s determination of a

motion for a new trial unless it clearly appears that there was a miscarriage of justice under the law. R. 2:10-1. A

reviewing court should not disturb the findings of the jury merely because it would have found otherwise upon

review of the same evidence; a jury verdict, which is challenged as against the weight of the evidence, is

impregnable unless so distorted and wrong that it plainly constitutes a miscarriage of justice. (pp. 16-17)

2. Plaintiff’s claims are premised on N.J.S.A. 10:5-4.1, which prohibits unlawful discrimination based on a

disability unless the nature and extent of the disability reasonably precludes the performance of the particular

employment. Plaintiff offered the treating physician testimony that the trial court excluded in an effort to address a

pivotal element of the claim by establishing that she had a disease or condition that constitutes a disability under the

LAD. The LAD broadly defines a protected disability, and covers both physical and non-physical disabilities. A

claim under the LAD based on a non-physical disability, where the existence of a handicap is not readily apparent,

must be supported by expert medical evidence in the form of objective medical testimony that will allow the jury to

understand the disease or condition alleged to constitute a disability. (pp. 17-23)

3. Treating physicians have been consistently permitted to offer medical testimony regarding the diagnosis and

treatment of their patients. When treating physicians are called to offer such testimony, they are not testifying as

expert witnesses, but, instead, are offering factual evidence and opinion evidence governed by N.J.R.E. 701. The

Rule allows a court to admit testimony of a lay witness in the form of opinions or inferences provided that the

testimony is rationally based on the perception of the witness, and will assist in understanding the witness’s

testimony or in determining a fact in issue. The testimony of a treating physician must be limited to issues that are

relevant to the diagnosis and treatment of the individual patient. If a particular claim requires medical testimony

beyond the scope of such individual patient care, expert testimony may be required. (pp. 23-25; p. 27)

4. Our court rules provide for pretrial disclosure to the opposing party in discovery of information relating to

treating physicians, including by interrogatories, deposition, and provision of the treating physician’s report, in order

to allow the adverse party to explore and assess the physician’s testimony prior to trial. A party seeking to present

the testimony of a treating physician at trial must therefore disclose to the adverse party the substance of the

witness’s anticipated testimony and the basis for the testimony, if requested to do so in discovery. (pp. 25-27)

5. Prior decisions of this Court do not preclude the admission of treating physician testimony to support a LAD

claim based on the existence of a disability. The question of disability is a medical determination, and the testimony

of a qualified witness will assist the jury in making that determination. If the question of a plaintiff’s disability can

effectively be addressed by testimony limited to the plaintiff’s diagnosis and treatment, a treating physician may

provide the necessary expert medical evidence through objective medical testimony. (pp. 27-28)

6. Under these principles, the trial court should have permitted the proposed testimony of plaintiff’s treating

physician, limited to his diagnosis and treatment of plaintiff. The court’s constraint on the testimony of the treating

physician was not harmless error because plaintiff was not afforded a fair opportunity to prove that she suffered

from a disability under the LAD. The trial court also erred when it restricted the testimony of plaintiff’s treating

psychiatrist since the opinions that plaintiff sought to elicit from him were properly confined to her symptoms,

diagnosis and care. Due to the limitations that the trial court imposed on the testimony of the treating physician,

there is a miscarriage of justice warranting the grant of a new trial. (pp. 28-31)

The judgment of the Appellate Division is AFFIRMED, and the matter is remanded to the trial court for a

new trial.

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CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and SOLOMON; and JUDGE

CUFF (temporarily assigned) join in JUSTICE PATTERSON’s opinion. JUSTICE FERNANDEZ-VINA did

not participate.

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SUPREME COURT OF NEW JERSEY

A-25 September Term 2014

074936

PATRICIA DELVECCHIO,

Plaintiff-Respondent,

v.

TOWNSHIP OF BRIDGEWATER, TOWNSHIP OF

BRIDGEWATER POLICE DEPARTMENT, CHIEF

RICHARD BORDEN, and WILLIAM CONNIFF,

Defendants-Appellants,

and

EDWIN J. SKIDMORE and CATHY HAMILTON,

Defendants.

Argued October 27, 2015 – Decided April 28, 2016

On certification to the Superior Court,

Appellate Division.

Alan Bart Grant argued the cause for

appellants (Mauro, Savo, Camerino, Grant &

Schalk, attorneys).

Brian M. Cige argued the cause for

respondent.

Thaddeus P. Mikulski, Jr., argued the cause

for amicus curiae National Employment

Lawyers Association of New Jersey, Inc.

JUSTICE PATTERSON delivered the opinion of the Court.

In this appeal, we consider whether a plaintiff employee

may rely on the testimony of a treating physician, who has not

been designated as an expert witness, to demonstrate a

1

disability in her discrimination claim under the Law Against

Discrimination (LAD), N.J.S.A. 10:5-1 to -42.

Plaintiff Patricia A. Delvecchio was employed by the

Township of Bridgewater (Township) as a police dispatcher for

the Township’s Police Department (Department). She alleged that

she suffered from inflammatory bowel syndrome (IBS), and that

her condition worsened when she was assigned to work the

midnight shift. After repeatedly declining assignments to the

midnight shift, plaintiff was asked to resign from her position.

She then accepted a lower-paying job as a records clerk for the

Township. Plaintiff used more than her allotted sick days, and

the Township terminated her employment.

Plaintiff filed a LAD disability discrimination complaint

against the Township, the Department, and individual defendants.

She contended, among other claims, that her IBS constituted a

disability for purposes of LAD, and that defendants failed to

provide a reasonable accommodation for that disability when they

set the schedule for her work as a police dispatcher. Plaintiff

disclosed in pretrial discovery that, in support of her

disability claim, she intended to present the testimony of her

treating gastroenterologist, who had diagnosed her with IBS and

had written several notes to the Township regarding her medical

condition and her work schedule. She also advised defendants

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that she intended to present the testimony of her treating

psychiatrist to substantiate her claim for non-economic damages.

The trial court barred the testimony of both treating

physicians regarding plaintiff’s diagnosis and treatment on the

grounds that neither physician had been retained and designated

as an expert witness and that neither witness had prepared a

report. The jury determined that plaintiff had failed to

establish that she had a disability that prevented her from

working midnight shifts, and that she had not met her burden to

prove retaliation. After the jury returned a verdict in favor

of defendants, the trial court denied plaintiff’s motion for a

new trial. Plaintiff appealed, and an Appellate Division panel

reversed the trial court’s judgment. It held that the trial

court committed error when it limited the testimony of

plaintiff’s treating gastroenterologist and remanded the case

for a new trial.

We affirm the judgment of the Appellate Division. Subject

to the notice and discovery requirements of our court rules and

the requirements of N.J.R.E 701 and other Rules of Evidence, our

case law authorizes a trial court to admit the testimony of a

treating physician regarding the diagnosis and treatment of a

patient. Stigliano v. Connaught Labs., Inc., 140 N.J. 305, 314

(1995); Ginsberg v. St. Michael’s Hosp., 292 N.J. Super. 21, 32-

33 (App. Div. 1996); N.J.R.E. 701; R. 4:10-2(d); R. 4:17-4. In

3

this case, plaintiff provided the information requested in

defendants’ interrogatories regarding her proposed treating

physician witnesses, and the trial court should have permitted

her to present the vital testimony of those witnesses pursuant

to N.J.R.E. 701. In light of the pivotal role of the IBS issue

in the jury’s verdict, the trial court’s decision to limit the

testimony of the treating gastroenterologist constituted

reversible error. Accordingly, plaintiff is entitled to a new

trial.

I.

On February 18, 1999, plaintiff commenced her employment as

a police dispatcher for the Township. At the time, the Township

maintained three shifts for police dispatchers: a morning

shift, an afternoon shift and a midnight shift. The Township’s

job description for dispatchers required employees to work all

three shifts on a rotating basis, with assignments determined in

part by seniority.

In 2003, plaintiff developed a digestive condition that

would later be diagnosed as IBS.1 Shortly thereafter, she became

1 IBS is one of the “most common functional gastrointestinal

disorders worldwide. . . . with anywhere from 5 to 15% of the

general population experiencing symptoms that would satisfy a

definition of IBS[.]” Alexander C. Ford et al., American

College of Gastroenterology Monograph on the Management of

Irritable Bowel Syndrome and Chronic Idiopathic Constipation,

109 Am. Journal of Gastroenterology S2 (Supp. 1 Aug. 2014). It

is diagnosed when the patient experiences “[r]ecurrent abdominal

4

a patient of Gary Ciambotti, M.D., a gastroenterologist. At

plaintiff’s request, Dr. Ciambotti wrote a series of notes to

her supervisors at the Township. In several of his notes, Dr.

Ciambotti stated that plaintiff’s IBS symptoms were under

control as long as she worked regular daytime hours, but would

be exacerbated by an assignment to the midnight shift.

In response to plaintiff’s requests and Dr. Ciambotti’s

correspondence, the Township initially provided plaintiff with a

steady afternoon shift for six months, and extended that

arrangement for an additional year. In October 2005, a

supervisor advised plaintiff that it was no longer possible for

the Township to consistently assign her to a daytime shift, due

to the burden imposed on other employees who covered the

remaining shifts. Plaintiff asked the Township to reconsider,

and with the cooperation of plaintiff’s colleagues, she was

permitted to continue working daytime shifts, but with no

guarantee that she would be permitted to entirely avoid midnight

shift assignments. At plaintiff’s request, Dr. Ciambotti

advised the Township in November 2005 that plaintiff could work

an occasional midnight shift.

pain or discomfort,” in conjunction with two or more associated

digestive symptoms, at least three days per month over a three-

month period. Ibid.

5

Weeks later, however, plaintiff sought to be excused from

work entirely until the Township limited her schedule to daytime

shifts. In response to another letter from Dr. Ciambotti, the

Township granted a further accommodation, assigning plaintiff to

afternoon shifts to the extent that such shifts were available.

The Township required that plaintiff be available to work an

occasional midnight shift, and denied her request for extended

sick leave.2

In September 2006, Dr. Joseph Rochford, a psychiatrist,

began treating plaintiff. He diagnosed plaintiff with anxiety

and panic attacks and prescribed medication. After a staffing

change caused plaintiff to worry that she would again be asked

to work midnight shifts, she obtained a note from Dr. Rochford,

who stated that midnight shift assignments would exacerbate

plaintiff’s “stress” condition, and a note from Dr. Ciambotti,

who again opined that plaintiff should not be compelled to work

midnight shifts. In March 2007, Dr. Ciambotti stated that it

2 The Township arranged for plaintiff to be examined by a

gastroenterologist, who confirmed the diagnosis of IBS, but

maintained that, with proper medication, plaintiff was capable

of working “in her normal fashion.” The Township also required

that plaintiff be evaluated by a psychologist, who found no

evidence of “significant clinical pathology” but confirmed that

plaintiff was under stress when she anticipated the necessity of

working a midnight shift.

6

was “absolutely medically necessary” that the Township refrain

from assigning plaintiff to midnight shifts.

The dispute between plaintiff and the Township escalated on

December 24, 2007, when plaintiff declined her supervisor’s

request that she work a midnight shift, complained of heart

palpitations, and was taken to a hospital. Another dispatcher,

who had already worked a shift and a half, was compelled to

remain on duty for the shift assigned to plaintiff. This

development precipitated complaints by other dispatchers. At

that point, the Township concluded that plaintiff’s

unwillingness to work a midnight shift had imposed an undue

hardship on it. After a renewed request by Dr. Ciambotti that

plaintiff not be assigned any midnight shifts, even in

emergencies, the Township asked her to resign. Plaintiff

refused, and asked whether the Township could offer her another

job opportunity. Plaintiff was then offered, and accepted, a

position as a records clerk at a salary lower than the salary

that she was paid as a police dispatcher.

On September 16, 2009, plaintiff’s employment as a records

clerk for the Township was terminated. The Township cited

plaintiff’s record of taking sick days in excess of the number

allotted to her in 2007, 2008 and 2009. It attributed her

termination to “neglect of duty” and “chronic/excessive

absenteeism.”

7

II.

Plaintiff filed a LAD complaint against the Township, the

Department and four individual defendants.3 In an amended

complaint, plaintiff claimed that she was subjected to a hostile

work environment as a result of her alleged disability, that

defendants failed to provide a reasonable accommodation for her

disability, that she was wrongfully demoted or transferred from

her position as a police dispatcher as a result of her

disability, that her employment as a records clerk was

wrongfully terminated, and that she was subject to retaliation.

Defendants denied plaintiff’s allegations of discrimination, and

asserted that they offered reasonable scheduling accommodations.

In her answers to interrogatories served by defendants

during pretrial discovery, plaintiff identified Dr. Ciambotti

and Dr. Rochford as individuals with “knowledge, information or

evidence of the incident(s)” alleged in the complaint, and

listed both witnesses in response to another interrogatory

requesting the names of plaintiff’s treating physicians. In

response to an interrogatory seeking identification of “any

expert witnesses you may use at trial” and “the substance of the

opinions to be provided” by those expert witnesses, plaintiff

3 Prior to trial, the trial court granted summary judgment

dismissing plaintiff’s claims against two of the individual

defendants.

8

stated that she had not “retained witnesses at this time,” but

identified several “treating professionals [who] have expertise

and are expected to testify[.]” Plaintiff summarized Dr.

Ciambotti’s proposed testimony as follows:

[Dr. Ciambotti] will testify regarding

Plaintiff’s diagnosis of Irritable Bowel

Syndrome, namely that it is a disability, how

it [a]ffects her everyday life as well as what

steps need to be taken to prevent and alleviate

symptoms such as a regular sleep schedule,

medication regimen, and which factors, such as

stress and constant schedule changes, aggravate

her condition.

Plaintiff also informed defendants that Dr. Rochford would

testify about her “non-economic damages, particularly how the

stress, retaliation and discrimination by Defendants caused

plaintiff stress, anxiety.” Based upon the appellate record, it

does not appear that defendants requested that plaintiff serve

written reports by her treating physicians, that plaintiff

served such reports, or that defendants deposed the physicians.

On the parties’ joint witness list, Dr. Ciambotti and Dr.

Rochford were not listed among plaintiff’s experts, but were

designated as “plaintiff’s treating doctors” expected to testify

on her behalf.

The case was tried before a jury over thirteen trial days.

The issue now before the Court arose during a discussion between

the trial court and counsel regarding the notes written to the

Township by Dr. Ciambotti, Dr. Rochford, and two other

9

physicians who were not on plaintiff’s witness list. The trial

court decided to admit into evidence Dr. Ciambotti’s notes

regarding plaintiff’s IBS, with a limiting instruction,

directing the jury to consider them only as a request for a

reasonable accommodation, and not as evidence that plaintiff

suffered from any disease or illness. The trial court commented

that New Jersey law bars a treating physician from opining about

a plaintiff’s diagnosis and the impact of a plaintiff’s schedule

on her condition, if that physician is not designated as an

expert witness. The court rejected plaintiff’s counsel’s

contention that a treating physician is permitted to testify

about the patient’s symptoms, factors that worsen those

symptoms, and the patient’s care. Following that discussion,

the trial court issued the limiting instruction.

There remained, however, a dispute between the parties

regarding the scope of Dr. Ciambotti’s testimony. During the

treating physician’s direct examination, defendants objected to

plaintiff’s counsel’s request that Dr. Ciambotti define IBS for

the jury, and argued that the treating physician was barred from

any testimony about plaintiff’s diagnosis because he was not a

designated expert witness.

The trial court sustained defendants’ objection, stating

that Dr. Ciambotti should not opine on “diagnosis and treatment”

in light of the fact that he had not prepared an expert report.

10

The trial court permitted Dr. Ciambotti to identify the

conditions for which he treated plaintiff, and discuss his notes

to the Township, but barred any testimony by the treating

physician about the impact of plaintiff’s work schedule on her

IBS. Plaintiff’s counsel confined his direct examination of Dr.

Ciambotti to two subjects: the physician’s series of notes to

the Township and his statement that he was currently treating

plaintiff for two digestive conditions, IBS and gastroesophageal

reflux disease, with no explanation about either condition.

Pursuant to Rule 1:8-8(d), members of the jury submitted

questions to be posed to Dr. Ciambotti. The trial court

permitted the physician to respond to two jury questions, one

addressing patients’ requests that physicians write notes to

employers, and the other inquiring whether plaintiff had an

ulcer. The court, however, declined the jury’s request that Dr.

Ciambotti be asked about the impact of changing work schedules

on the efficacy of IBS medications, the importance of an IBS

patient’s regular meal schedule, and the classification of IBS

as a disability.

Plaintiff also presented the testimony of Dr. Rochford. On

direct examination, the psychiatrist briefly described his

treatment of plaintiff for stress and related complaints. The

trial court admitted into evidence a letter from Dr. Rochford to

the Township recommending that plaintiff not be assigned to

11

midnight shifts, with a limiting instruction, directing the jury

to consider the letter only as a request for a reasonable

accommodation. The court reiterated to plaintiff’s counsel that

because Dr. Rochford was not designated as an expert witness,

counsel would not be permitted to elicit from the psychiatrist

any opinion regarding plaintiff’s diagnosis. Dr. Rochford

briefly testified within the limits set by the trial court.

Plaintiff later called as a witness an expert psychologist,

who opined that as a result of stress triggered by her work

schedule, plaintiff suffered from an adjustment disorder with

mixed anxiety and depression.

Defendants called two expert witnesses. Their expert

gastroenterologist opined that IBS is a functional disease not

characterized by visible structural abnormalities, that IBS

patients can work normally if they are permitted to eat at

normal intervals, that he had never treated a patient with IBS

who was disabled, and that plaintiff’s digestive symptoms were

within the normal range. Defendants’ expert psychologist

concurred that patients with IBS may function effectively

despite changing conditions in the workplace.

At the conclusion of the evidence, the trial judge repeated

his limiting instruction, directing the jury to consider the

physicians’ notes only as proof that plaintiff had requested

reasonable accommodations. The court cautioned the jury that

12

only three experts –- plaintiff’s expert psychologist and

defendants’ expert gastroenterologist and psychologist –- had

testified, and that the jury should not consider “opinions

expressed by other witnesses as evidence of the plaintiff’s

medical condition.” Plaintiff did not object to the jury

charge.

The jury returned a verdict of no cause of action,

determining that plaintiff had not proven by a preponderance of

the evidence that she suffered from a disability that precluded

her from working the midnight shift. The jury also rejected

plaintiff’s claim that defendants retaliated against her for

complaining about discrimination and for filing a lawsuit.

After her motion for judgment notwithstanding the verdict

(JNOV) under Rule 4:40-2 was denied, plaintiff moved for a new

trial pursuant to Rule 4:49-1(a). She cited, among other

grounds, the trial court’s restriction on the testimony of her

treating physicians. Defendants countered that the treating

physicians had rendered “net opinions” and that the trial court

had properly limited their testimony.

Although the trial court conceded that treating physicians

may be permitted to testify about the issue of causation, it

characterized its ruling at trial as an invocation of Rule 4:17-

4(e), based on the treating physicians’ failure to supply expert

reports. The court stated that the limiting instruction given

13

to the jury with respect to the physicians’ notes resolved any

issue regarding their testimony. It denied plaintiff’s motion

for a new trial.

Plaintiff appealed the trial court’s judgment. In an

unpublished opinion, an Appellate Division panel reversed the

trial court’s judgment and remanded for a new trial on the

ground that the trial court had improperly restricted the

testimony of Dr. Ciambotti. The panel reasoned that under

Stigliano, supra, 140 N.J. at 314, and Ginsberg, supra, 292 N.J.

Super. at 32-33, the trial court erred by barring Dr. Ciambotti

from testifying about plaintiff’s diagnosis and treatment and

when it precluded Dr. Ciambotti from explaining the reasons for

his notes to the Township. The panel concluded that the trial

court’s restriction on the testimony of Dr. Ciambotti was not

harmless error. The panel did not specifically address a second

issue raised by plaintiff on appeal -- whether the limitations

imposed on the testimony of plaintiff’s treating psychiatrist,

Dr. Rochford, constituted error.

We granted defendant’s petition for certification. 220

N.J. 98 (2014). We also granted the motion of the National

Employment Lawyers Association of New Jersey (NELA-NJ) to appear

as amicus curiae.

III.

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Defendants urge the Court to reverse the Appellate

Division’s determination and reinstate the trial court’s

judgment. They contend that under this Court’s decisions in

Clowes v. Terminix International, Inc., 109 N.J. 575 (1988), and

Viscik v. Fowler Equipment Co., 173 N.J. 1 (2002), a LAD

disability claim must be supported by the testimony of retained

expert witnesses, not the speculative testimony of treating

physicians called as witnesses at trial. Defendants

characterize the panel’s opinion as an unwarranted extension of

this Court’s decision in Stigliano, which would authorize a

treating physician in a LAD disability case to provide opinion

testimony unrelated to either objective standards or the

physician’s treatment of the plaintiff.

Plaintiff counters that the trial court’s interpretation of

N.J.R.E. 701 contravened Stigliano and Appellate Division

decisions applying its principles. She contends that a treating

physician need not be designated as an expert witness in order

to offer a medical opinion on the cause of his or her patient’s

condition. Plaintiff argues that the constraints imposed by the

trial court on the testimony of Dr. Ciambotti and Dr. Rochford

made it impossible for her to demonstrate a disability for

purposes of LAD.

Amicus curiae NELA-NJ contends that the trial court’s

restriction of the testimony of Dr. Ciambotti constituted error

15

because the limitations imposed by a medical condition on a

patient’s activities are an integral component of medical

treatment. NELA-NJ argues that the trial court’s error

substantially prejudiced plaintiff’s case, and that plaintiff is

entitled to a new trial.

IV.

A.

We begin our analysis with the standard of review governing

the trial court’s denial of plaintiff’s motion for a new trial,

pursuant to Rule 4:49-1. An appellate court will not reverse a

trial court’s determination of a motion for a new trial “unless

it clearly appears that there was a miscarriage of justice under

the law.” R. 2:10-1; see also State v. Sims, 65 N.J. 359, 373-

74 (1974) (“[T]he trial court’s ruling on [a motion to grant a

new trial] shall not be reversed unless it clearly and

convincingly appears that there was a manifest denial of justice

under the law.”). A reviewing court should not disturb the

findings of the jury merely because it would have found

otherwise upon review of the same evidence. Carrino v. Novotny,

78 N.J. 355, 360 (1979) (“[A] jury verdict, from the weight of

evidence standpoint, is impregnable unless so distorted and

wrong, in the objective and articulated view of a judge, as to

manifest with utmost certainty a plain miscarriage of

16

justice.”). That principle guides our determination of this

appeal.

B.

Plaintiff’s claims are premised on N.J.S.A. 10:5-4.1, which

construes other provisions of LAD to prohibit unlawful

discrimination “against any person because such person is or has

been at any time disabled or any unlawful employment practice

against such person, unless the nature and extent of the

disability reasonably precludes the performance of the

particular employment.” The Legislature intended this provision

“to secure to handicapped individuals full and equal access to

society, bounded only by the actual physical limits that they

cannot surmount.” Andersen v. Exxon Co., 89 N.J. 483, 495

(1982); Zive v. Stanley Roberts, Inc., 182 N.J. 436, 446 (2005)

(quoting Andersen, supra, 89 N.J. at 495); see also Jansen v.

Food Circus Supermarkets, Inc., 110 N.J. 363, 374 (1988) (“The

import of the Law is that the handicapped should enjoy equal

access to employment, subject only to limits that they cannot

overcome.”).

The treating physician testimony excluded at trial was

offered to address a pivotal element of plaintiff’s claims for

disability discrimination. Under the statutory framework that

governs LAD disability claims, the factfinder’s first inquiry is

whether the plaintiff has proven that he or she had a disease or

17

condition recognized as a disability under the LAD. N.J.S.A.

10:5-4.1; N.J.S.A. 10:5-5(q); see Victor v. State, 203 N.J. 383,

408-09 (2010) (identifying elements of prima facie case of

disability claims based on failure to hire, wrongful discharge,

retaliation, and hostile work environment); Viscik, supra, 173

N.J. at 15 (noting that “[t]he threshold inquiry in a

handicapped discrimination discharge case is whether the

plaintiff in question fits the statutory definition of

‘handicapped’”);4 Clowes, supra, 109 N.J. at 597 (same);

Andersen, supra, 89 N.J. at 499 (same).

For purposes of determining whether an employee meets that

threshold burden, the LAD broadly defines “disability” as

follows:

“Disability” means physical disability,

infirmity, malformation or disfigurement which

is caused by bodily injury, birth defect or

illness including epilepsy and other seizure

disorders, and which shall include, but not be

limited to, any degree of paralysis,

amputation, lack of physical coordination,

blindness or visual impediment, deafness or

hearing impediment, muteness or speech

impediment or physical reliance on a service

or guide dog, wheelchair, or other remedial

appliance or device, or any mental,

psychological or developmental disability,

including autism spectrum disorders, resulting

from anatomical, psychological, physiological

or neurological conditions which prevents the

4 On January 1, 2004, the Legislature amended N.J.S.A. 10:5-5(q)

to delete the term “handicapped” in favor of the term

“disability.” L. 2003, c. 180, § 5 (eff. Jan. 1, 2004)

(amending N.J.S.A. 10:5-5(q)).

18

normal exercise of any bodily or mental

functions or is demonstrable, medically or

psychologically, by accepted clinical or

laboratory diagnostic techniques. Disability

shall also mean AIDS or HIV infection.

[N.J.S.A. 10:5-5(q).]

As this Court observed in Viscik, supra, the two categories

of disability, “physical and non-physical,” are distinct from

one another and require different forms of proof. 173 N.J. at

15 (citing Rosemary Alito, New Jersey Employment Law, § 4-14:1,

170 (2d ed. 1999)); see also Clowes, supra, 109 N.J. at 594

(“[A]n alcoholic might suffer from either a ‘physical disability

[or] infirmity . . . which is caused by illness’ or from a

‘mental [or] psychological . . . disability’ . . . or both.”)

(third ellipsis added) (quoting N.J.S.A. 10:5-5(q)). To

demonstrate a physical disability, a plaintiff must prove that

he or she is “(1) suffering from physical disability, infirmity,

malformation or disfigurement (2) which is caused by bodily

injury, birth defect or illness including epilepsy.” Viscik,

supra, 173 N.J. at 15 (citing N.J.S.A. 10:5-5(q)).5

5 To meet the standard for a non-physical disability, “a

plaintiff must prove that he or she is suffering (1) from any

mental, psychological or developmental disability (2) resulting

from an anatomical, psychological, physiological or neurological

condition that either (a) prevents the normal exercise of any

bodily or mental functions or (b) is demonstrable, medically or

psychologically, by accepted clinical or laboratory diagnostic

techniques.” Viscik, supra, 173 N.J. at 16 (citing Alito,

supra, New Jersey Employment Law, § 4-14:1 at 170; Clowes,

supra, 109 N.J. at 594).

19

In Viscik and Clowes, this Court addressed the evidentiary

burden imposed on a LAD plaintiff to prove a disability that is

not readily apparent. Viscik, supra, 173 N.J. at 16-18; Clowes,

supra, 109 N.J. at 597-99. The Court’s opinion in Clowes,

supra, arose from the plaintiff’s allegation that he was

unlawfully discharged from his employment due to his alcoholism.

109 N.J. at 584. The Court found that alcoholism is a

“handicap” within the meaning of the LAD’s provision as it then

was drafted, based on evidence proffered by the plaintiff, which

consisted primarily of the testimony of his expert, a recognized

authority on alcoholism. Id. at 591-93, 595.

The Court concluded, however, that the plaintiff’s proofs

“fell short of demonstrating that he was an alcoholic.” Id. at

595. It observed that “[t]he only evidence in the record

regarding Clowes’s alleged alcoholism is his own assertion that

he was an alcoholic, and a partial medical record from his

hospitalization” at a rehabilitation center. Id. at 598. The

Court noted that neither the plaintiff’s expert nor any other

witness on his behalf had conducted a physical examination or

reviewed the relevant medical records:

Conspicuously absent from the record is any

testimony from a treating or examining

physician that Clowes had been diagnosed as an

alcoholic. Given the complexity of the many

diagnostic procedures involved, expert

medical testimony is required to establish the

fact of the employee’s alcoholism.

20

[Id. at 597.]

Supported only by the generic testimony of the plaintiff’s

expert regarding alcoholism as a disease -– not by the testimony

of an expert or treating physician familiar with his personal

medical history -- the disability claim of the plaintiff in

Clowes failed. Ibid.

In Viscik, supra, the disability alleged by the plaintiff

was her morbid obesity, attributed to two factors, a “metabolic

disorder that prevent[ed] [her] body from breaking down fats,”

and injuries from a car accident that triggered degenerative

arthritis in her joints, restricted her lung capacity, and

caused depression. 173 N.J. at 6. In support of her claim that

her employer discharged her because of her disability, the

plaintiff offered the testimony of her “treating physician since

1991,” who “testified about Viscik’s illnesses, including her

obesity and its complications, as a medical expert qualified in

internal medicine and weight-loss.” Id. at 10. The Court

concluded that “Viscik’s testimony, medical history, and her

expert’s opinion fully support the finding that she established

a physical handicap within the meaning of LAD.” Id. at 17.

In that context, the Court held that “[w]here the existence

of a handicap is not readily apparent, expert medical evidence

is required.” Id. at 16 (citing Clowes, supra, 109 N.J. at 591-

21

93; Rogers v. Campbell Foundry, Co., 185 N.J. Super. 109, 112

(App. Div. 1982)). It noted that courts deciding LAD disability

claims “place a high premium on the use and strength of

objective medical testimony in proving the specific elements of

each test contained in the statute.” Ibid. (citing Clowes,

supra, 109 N.J. at 591-93; Enriquez v. W. Jersey Health Sys.,

342 N.J. Super. 501, 521 (App. Div. 2001)); see also Victor,

supra, 203 N.J. at 422-23 (adhering to mandate of Viscik that

when disability is not readily apparent, “expert medical

evidence is required”); Wojtkowiak v. New Jersey Motor Vehicle

Comm’n, 439 N.J. Super. 1, 15 (App. Div. 2015) (same); Domurat

v. Ciba Specialty Chems., 353 N.J. Super. 74, 90 (App. Div.)

(same), certif. denied, 175 N.J. 77 (2002).

This Court has thus held that a LAD disability claim, in

which the plaintiff’s disability is not readily apparent, must

be supported by “expert medical evidence,” also characterized as

“objective medical testimony.” Viscik, supra, 173 N.J. at 16;

see also Clowes, supra, 109 N.J. at 597-98 (noting that

diagnosis of alcoholism entails complex determinations that must

be made by medical professionals). By virtue of that

requirement, a jury is guided by the testimony of witnesses

qualified to assist it in understanding the disease or condition

at issue in a given case.

C.

22

In that setting, we consider the trial court’s conclusion

that the testimony of a treating physician, not identified as an

expert witness, is inadmissible to support a LAD plaintiff’s

contention that he or she has a disability that is not readily

apparent.

Our courts have long permitted treating physicians to offer

medical testimony regarding the diagnosis and treatment of their

patients, pursuant to N.J.R.E. 701. That rule authorizes a

court to admit the “testimony in the form of opinions or

inferences” of a lay witness, if that testimony “(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.

This Court specifically addressed the testimonial role of a

treating physician in Stigliano, supra, 140 N.J. at 310-17.

There, the defendant physicians in a medical malpractice case

sought to introduce the videotaped depositions of three

physicians who had treated the infant plaintiff for seizures,

which the plaintiffs claimed were caused by immunizations

administered by the defendants. Id. at 307-08. The treating

physicians testified that the child’s seizures were not caused

by the defendants’ treatment, thus undermining the claims of

their patient. Id. at 309. The trial court barred the

defendants from presenting the treating physicians’ testimony,

23

and the Appellate Division reversed that determination. Id. at

309-10. This Court granted the plaintiffs’ motion for leave to

appeal. Id. at 307.

Noting that “the characterization of the treating doctors’

testimony as ‘fact’ or ‘opinion’ creates an artificial

distinction[,]” the Court identified the “critical point”

regarding treating physician testimony: “the treating doctors

to treat their patients must determine the cause of a disease,

whether that determination is characterized as fact or opinion.”

Id. at 314. The Court held that

as fact witnesses, the treating doctors may

testify about their diagnosis and treatment of

[the infant’s] disorder, including their

determination of that disorder’s cause. Their

testimony about the likely and unlikely causes

of [the infant’s] seizure disorder is factual

information, albeit in the form of opinion.

See N.J.R.E. 701 (permitting fact witness to

testify in the form of opinion to assist in

determining fact in issue). Because the

determination of the cause of a patient’s

illness is an essential part of diagnosis and

treatment, a treating physician may testify

about the cause of a patient’s disease or

injury. That holding should not deter

patients from freely disclosing information

necessary for proper treatment and diagnosis.

Only after patients put their injury or

disease in issue may a treating doctor testify

about the diagnosis and treatment of that

injury or disease.

[Ibid.]

The Court thus acknowledged that a treating physician may

be permitted to testify as to the diagnosis and treatment of his

24

or her patient, pursuant to N.J.R.E. 701.6 Ibid.; see also

Ginsberg, supra, 292 N.J. Super. at 32 (holding that “[i]t is

well settled that treating physicians may testify as to any

subject relevant to the evaluation and treatment of their

patients”); Biunno, Weissbard & Zegas, Current N.J. Rules of

Evidence, comment 4 to N.J.R.E. 701 (Gann 2015) (noting that

“[w]hen treating physicians are called to testify about their

observations, diagnosis and treatment of an injured or ailing

plaintiff, they are not testifying as expert witnesses, even

though they may possess the requisite qualifications[,]” but are

offering factual evidence and opinion evidence governed by

N.J.R.E. 701).

Our court rules provide for pretrial disclosure of the

proposed testimony of treating physicians, so that the testimony

may be explored by the opposing party in discovery. An

adversary may request, by interrogatory, “the name of an expert

6 Although the defendant physicians, not the plaintiff, called

the infant plaintiff’s treating physicians in Stigliano, supra,

that factor did not bar the testimony. 140 N.J. at 312-13. The

Court distinguished Graham v. Gielchinsky, 126 N.J. 361 (1991),

in which it had held that absent exceptional circumstances,

parties may not present the opinion testimony of experts whom

their adversaries have consulted, observing that the plaintiffs

had consulted the treating physicians for purposes of treatment,

not litigation. Ibid. The Court accordingly reasoned that the

defendants’ use of the infant plaintiff’s physicians’ testimony

would not affect the child’s medical treatment or the

plaintiffs’ counsel’s search for experts. Id. at 313.

25

or treating physician of the answering party or a copy of the

expert’s or treating physician’s report[.]” R. 4:17-4(a).

Pursuant to Rule 4:17-4(e), the responsive party shall

annex to the interrogatory an exact copy of

the entire report or reports rendered by the

expert or physician. The report shall contain

a complete statement of that person’s opinions

and the basis therefor; the facts and data

considered in forming the opinions; the

qualifications of the witness, including a

list of all publications authored by the

witness within the preceding ten years; and

whether compensation has been or is to be paid

for the report and testimony and, if so, the

terms of the compensation.

[R. 4:17-4(e).]

Rule 4:10-2(d), which sets forth the method by which

“[d]iscovery of facts known and opinions held by experts” may be

obtained, similarly provides for notice and discovery of the

proposed testimony of treating physicians. The rule authorizes

discovery by interrogatory of “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[.]” R. 4:10-2(d)(1). The opposing party may elect

to explore the treating physician’s opinions in a deposition

pursuant to Rule 4:10-2(d)(2), as well as through supplemental

written discovery. Thus, under the court rules, a party seeking

to present treating physician testimony at trial must disclose

26

the substance of the witness’s anticipated testimony, and the

basis for that testimony, if requested to do so in discovery.

The testimony of a treating physician is subject to an

important limitation. Unless the treating physician is retained

and designated as an expert witness, his or her testimony is

limited to issues relevant to the diagnosis and treatment of the

individual patient. See, e.g., Stigliano, supra, 140 N.J. at

314-16 (authorizing treating physicians to testify as to care

and diagnosis of patient); Hutchinson v. Atlantic City Med.

Center-Mainland, 314 N.J. Super. 468, 479 (App. Div. 1998)

(same); Serrano v. Levitsky, 215 N.J. Super. 454, 457-59 (Law

Div. 1986) (barring treating physician from testifying about

defendant doctors’ alleged malpractice because that subject was

beyond scope of patient care); Piller v. Kovarsky, 194 N.J.

Super. 392, 399-400 (Law Div. 1984) (same). Given that

distinction, if a particular claim requires medical testimony

extending beyond the plaintiff’s own diagnosis and treatment,

the plaintiff may require the testimony of an expert, conforming

to N.J.R.E. 702 and 703.

Contrary to defendants’ contention, nothing in this Court’s

opinions in Clowes and Viscik prohibit the admission of treating

physician testimony to support a LAD disability claim. In both

cases, the Court recognized that the question of disability is a

medical determination and that a jury should be assisted by the

27

testimony of qualified witnesses in that determination. Viscik,

supra, 173 N.J. at 16; Clowes, supra, 109 N.J. at 591-93. The

Court did not exclude the testimony of treating physicians;

indeed, in Clowes, it identified the fact that plaintiff’s

expert witness had neither examined him or reviewed his medical

records, and the absence of testimony by a treating or examining

physician, as deficiencies in the plaintiff’s proofs. Clowes,

supra, 109 N.J. at 597. If the question of a plaintiff’s

disability can be effectively addressed by testimony limited to

the plaintiff’s diagnosis and treatment, a treating physician

may provide the “expert medical evidence” and “objective medical

testimony” envisioned by the Court in Viscik.

In sum, in an appropriate setting, the testimony of a

treating physician may be admitted to support a plaintiff’s LAD

disability claim, provided that the proponent of the testimony

provides notice and responds to discovery requests in accordance

with the court rules, and the testimony satisfies N.J.R.E. 701

and other applicable Rules of Evidence. Stigliano, supra, 140

N.J. at 314; Ginsberg, supra, 292 N.J. Super. at 32-33.

D.

In accordance with that principle, the trial court should

have permitted Dr. Ciambotti to testify about plaintiff’s IBS.

Plaintiff provided the information about Dr. Ciambotti’s

proposed opinion that was requested in defendants’

28

interrogatories: the identification of Dr. Ciambotti as a

person with knowledge relevant to plaintiff’s claims and as one

of plaintiff’s treating physicians, and a summary of his

proposed testimony. She complied with the discovery requests

posed to her, as they related to Dr. Ciambotti.

Moreover, as described by plaintiff’s counsel to the trial

court and reflected in the physician’s correspondence with the

Township, the proposed testimony of Dr. Ciambotti would have

been limited to his diagnosis and treatment of plaintiff. The

treating gastroenterologist would have addressed plaintiff’s

symptoms, the basis for plaintiff’s IBS diagnosis, the impact of

IBS on plaintiff’s everyday life, and the steps that Dr.

Ciambotti recommended to alleviate plaintiff’s symptoms.

Nothing in the record suggests that plaintiff intended to ask

Dr. Ciambotti to opine on global questions beyond the scope of

his role as plaintiff’s treating physician. The trial court

erred when it barred Dr. Ciambotti from testifying about

plaintiff’s diagnosis and treatment.

In the broader setting of plaintiff’s trial, the trial

court’s constraint on Dr. Ciambotti’s testimony was not harmless

error. As confirmed by its proposed questions regarding IBS

medications and the impact of a patient’s diet on the condition,

the jury sought information about plaintiff’s IBS diagnosis, but

was denied that information. Thus, plaintiff was not afforded a

29

fair opportunity to prove that she suffered from a disability

within the meaning of the LAD. N.J.S.A. 10:5-5(q); see also

Tynan v. Vicinage 13 of Superior Ct. of New Jersey, 351 N.J.

Super. 385, 399 (App. Div. 2002) (holding that LAD disability

claim based in part on IBS alleged by plaintiff gave rise to

jury question sufficient to withstand summary judgment).

Moreover, because plaintiff failed to meet her threshold burden

of proving a disability, the jury never considered the other

elements of her hostile work environment, failure to

accommodate, wrongful demotion or transfer, and wrongful

termination claims. The limitations on Dr. Ciambotti’s

testimony may also have affected the jury’s determination of

plaintiff’s retaliation claim, which was premised in part on her

claim of disability. The trial court’s error with respect to

Dr. Ciambotti’s testimony was not harmless.

The trial court also erred when it restricted the testimony

of plaintiff’s treating psychiatrist, Dr. Rochford, whose

testimony would have supported her claim for non-economic

damages. Dr. Rochford was properly designated by plaintiff as

one of her treating physicians, and plaintiff gave defendants a

description of the psychiatrist’s expected testimony, as

requested in defendants’ interrogatories. The opinions that

plaintiff sought to elicit from Dr. Rochford were properly

confined to plaintiff’s symptoms, diagnosis and care.

30

Plaintiff’s treating psychiatrist should have been permitted to

testify about those topics, subject to the limitations of

N.J.R.E. 701 and other applicable Rules of Evidence. Because we

affirm the Appellate Division’s determination that the trial

court should have granted plaintiff’s motion for a new trial,

based on the restrictions imposed on the testimony of Dr.

Ciambotti, we need not determine whether the trial court’s

limitations on the testimony of Dr. Rochford constituted

reversible error.

Based on the limitations imposed on Dr. Ciambotti’s

testimony, we concur with the Appellate Division that the trial

court should have found a “miscarriage of justice under the law”

under Rule 4:49-1(a). See R. 2:10-1; Viscik, supra, 173 N.J. at

20 (ordering new trial where trial court instruction

“essentially focused the jury’s attention on a claim not at

issue in the case and mixed two theories, pretext and reasonable

accommodation, that are completely and purposefully distinct

from one another”).7 Plaintiff is entitled to a new trial.

7 The trial court’s denial of plaintiff’s motion for a JNOV was

not addressed by the Appellate Division panel. On appellate

review of a trial court’s denial of a motion for JNOV, “we ‘must

accept as true all evidence supporting the position of the party

defending against the motion and must accord that party the

benefit of all legitimate inferences which can be deduced [from

the evidence].’” Besler v. Bd. of Educ. of W. Windsor-

Plainsboro Reg’l Sch. Dist., 201 N.J. 544, 572 (2010)

(alteration in original) (quoting Lewis v. Am. Cyanamid Co., 155

31

V.

We add the following comment regarding pretrial discovery

of treating physician testimony in civil litigation. Rules

4:17-4(a), (e) and 4:10-2(d)(1) compel the service of reports by

treating physicians who will testify at trial, in the event that

those reports are requested in discovery.8 A treating

physician’s report serves an important function; it provides the

adversary with notice of the facts and opinions to which the

physician will testify, and permits that party to assess the

need for additional discovery and for medical testimony at

trial. We recognize, however, that the preparation of a

detailed written report may impose a significant burden on a

treating physician who has not sought to be involved in the

litigation, and has not been retained as an expert witness.

We request that the Civil Practice Committee consider

whether Rules 4:17-4(a), (e) and 4:10-2(d)(1) should be amended

to clarify the form and content of a report that must be served,

if requested, in advance of a treating physician’s testimony.

We suggest that the Committee evaluate, among other options, an

N.J. 544, 567 (1998)). That standard is not satisfied in this

case; plaintiff’s motion for JNOV was properly denied.

8 We do not agree with plaintiff’s contention that Rules 4:17-

4(a), (e) and 4:10-2(d)(1) require service of a treating

physician’s report only if the treating physician happens to

have prepared one.

32

amendment permitting the service of a summary of the treating

physician’s opinions and the basis for those opinions, as an

alternative to a written report prepared by the physician. See,

e.g., R. 3:13-3(b)(1)(I), -3(b)(2)(E) (authorizing, in criminal

case in which expert is expected to testify, service of “a

statement of the facts and opinions to which the expert is

expected to testify and a summary of the grounds for each

opinion”).

VI.

The judgment of the Appellate Division is affirmed, and the

matter is remanded to the trial court for a new trial.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and

SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE

PATTERSON’s opinion. JUSTICE FERNANDEZ-VINA did not

participate.

33

SUPREME COURT OF NEW JERSEY

NO. A-25 SEPTEMBER TERM 2014

ON CERTIFICATION TO Appellate Division, Superior Court

PATRICIA DELVECCHIO,

Plaintiff-Respondent,

v.

TOWNSHIP OF BRIDGEWATER, TOWNSHIP OF

BRIDGEWATER POLICE DEPARTMENT, CHIEF

RICHARD BORDEN, and WILLIAM CONNIFF,

Defendants-Appellants,

and

EDWIN J. SKIDMORE and CATHY HAMILTON,

Defendants.

DECIDED April 28, 2016

Chief Justice Rabner PRESIDING

OPINION BY Justice Patterson

CONCURRING/DISSENTING OPINIONS BY

DISSENTING OPINION BY

AFFIRM AND

CHECKLIST

REMAND

CHIEF JUSTICE RABNER X

JUSTICE LaVECCHIA X

JUSTICE ALBIN X

JUSTICE PATTERSON X

JUSTICE FERNANDEZ-VINA ------------------

JUSTICE SOLOMON X

JUDGE CUFF (t/a) X

TOTALS 6