NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3544-13T4
ESTATE OF JOSEPH GAMMA
and MARIA GAMMA,
individually and as
Administratrix Ad Prosequendum of
ESTATE OF JOSEPH GAMMA,
Plaintiffs-Appellants/
Cross-Respondents,
v.
CEDAR HILL HEALTH CARE CENTER,
CG HEALTHCARE, L.L.C., AVERY
EISENREICH, TOBY EISENREICH,
OMNI ASSET MANAGEMENT, L.L.C.,
also known as "OMNI HEALTH CARE
ASSOCIATES" and "OMNI RISK
MANAGEMENT",
Defendants-Respondents/
Cross-Appellants.
_______________________________________________________________
Argued December 9, 2015 – Decided June 30, 2017
Before Judges Koblitz, Kennedy, and Gilson.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket No.
L-0199-11.
Steven J. Greenstein argued the cause for
appellants/cross-respondents (Tobin, Kessler,
Greenstein, Caruso, Weiner & Konray, P.C., and
The Gruber Firm, L.L.C., attorneys; Mr.
Greenstein, of counsel and on the brief; Saul
G. Gruber, on the brief).
Neil Ptashnik argued the cause for the
respondents/cross-appellants (Ansa Assuncao,
L.L.P., and Ptashnik & Associates, L.L.C.,
attorneys; John P. Mueller and Mr. Ptashnik,
on the brief).
PER CURIAM
Joseph Gamma ("Joseph") died from injuries he suffered when
he fell on the floor of a nursing home. His Estate and wife, as
Administrator Ad Prosequendum (collectively "plaintiffs"), filed
an action against defendants, alleging that Joseph's death was the
result of falling off a bed without bedrails. At the close of
trial, the trial judge granted a directed verdict in favor of
defendants on the counts under the New Jersey Nursing Home
Responsibilities and Residents' Rights Act (the Act), N.J.S.A.
30:13-1 to -17, and the jury returned a verdict of no-cause on the
remaining negligence count.
Plaintiffs appeal and claim multiple errors, including that
the trial judge erred when he failed to ask prospective jurors
open-ended questions, as mandated by Administrative Directive #4-
07, "Jury Selection – Model Voir Dire Questions Promulgated by
Directive #21-06 – Revised Procedures and Questions" (the
Directive). See Administrative Directive #4-07, "Jury Selection
– Model Voir Dire Questions Promulgated by Directive #21-06 –
2 A-3544-13T4
Revised Procedures and Questions" (May 16, 2007),
http://www.njcourts.gov/attorneys/assets/directives/dir_04_07.pd
f. Defendants cross-appeal contending that the motion court
improperly permitted hearsay evidence. For the following reasons,
we affirm the trial court's directed verdict and the motion court's
decision to admit Joseph's statement, but reverse and remand for
a new trial because the trial judge erred in not following the
Directive.
I.
The facts are established in the trial record. In the early
morning hours of January 8, 2009, Cedar Hill Nursing Home's (Cedar
Hill) staff observed Joseph, a patient at Cedar Hill, asleep in
his bed. Approximately twenty minutes thereafter, staff observed
Joseph on the floor next to his bed with injuries to his toes.
According to staff notes, Joseph stated that he rolled out of his
bed while asleep. The staff transferred Joseph to Clara Maass
Hospital, where he again told hospital staff that he fell out of
his bed. After an examination, the hospital concluded Joseph
suffered only toe lacerations. He was returned back to Cedar
Hill.
On January 12, 2009, Joseph complained of left side weakness
and back spasms. He was readmitted to Clara Maass and again
referenced his fall on January 8. Over the following months,
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Joseph experienced additional complications. He was eventually
admitted to another hospital, where he was diagnosed with
respiratory failure, among other issues. In defiance of hospital
staff warnings, Joseph's wife fed him solid food, which led to
cardiopulmonary arrest and ultimately, his death on March 12,
2009.
Joseph's wife filed a complaint individually and as the
Administrator Ad Prosequendum of the Estate, alleging that the
fall on January 8, 2009, was a result of Cedar Hill's failure to
outfit the bed with bedrails and caused Joseph's death. The
complaint asserted violations of a resident's rights under the
Act, violations of defendants' responsibilities under the Act,
general negligence, negligence per se, deviation from the standard
of care and gross neglect, negligent supervision and negligent
hiring, punitive damages, consumer fraud, survivorship, and
wrongful death.
Prior to trial, defendants moved for summary judgment.
Defendants argued that plaintiffs' entire case rested upon a single
hearsay statement. The motion court dismissed many of the claims,
including the wrongful death count. However, the motion court
denied summary judgment as to the claims of negligence and
violations of the Act. The motion court also rejected defendants'
hearsay argument.
4 A-3544-13T4
The matter then proceeded to trial on the claims of violations
of the Act and negligence. At the close of trial, the court
directed a verdict in favor of defendants on the claims under the
Act, and thereafter, the jury found that plaintiffs failed to
prove the negligence claim and returned a verdict of no cause.
II.
On appeal, plaintiffs make the following arguments: 1)
reversal is required as the trial court erred in failing to comply
with the Directive and failed to ask three open-ended questions;
2) the trial court erred in dismissing plaintiffs' claims under
the Act; 3) the trial court erred in not granting a mistrial after
the parties discovered during the trial that the certified chart
relied upon was for a different patient; 4) the trial court erred
in admitting evidence of a stroke; 5) the trial court erred in not
admitting statements made by Joseph to the emergency room staff;
and 6) the trial court committed plain error in its jury
instructions. Defendants cross-appeal and argue that the motion
court should have precluded Joseph's statement to the Cedar Hill
staff as inadmissible hearsay.
We address only the following arguments: 1) whether the trial
court properly directed the verdict on counts brought under the
Act; 2) whether the motion court properly denied the defendants'
motion for summary judgment as it relates to the admissibility of
5 A-3544-13T4
Joseph's statement; and 3) whether the trial court committed
reversible error by not following the Directive.
After a review of the record and relevant law, we affirm the
trial court's directed verdict and the admissibility of Joseph's
statement. However, we hold that the trial court improperly
disregarded the Directive by failing to ask open-ended questions
during selection of the jury. Consequently, we are constrained
to vacate the judgment, reverse, and remand for a new trial on the
negligence claim.
A. The Trial Court's Directed Verdict
At the close of trial, the court directed the verdict on
plaintiffs' claims under the Act. The court reasoned that
plaintiffs could not maintain an action based on the evidence
presented at trial. Although we find alternative grounds for
directing the verdict, we uphold the result.
On appeal, plaintiffs contend that any violation of a state
or federal regulation, rule, or statute by a nursing home
automatically constitutes a violation of the Act. See N.J.S.A.
30:13-3(h). We disagree.
The Act "was enacted in 1976 to declare 'a bill of rights'
for nursing home residents and define the 'responsibilities' of
nursing homes." Ptaszynski v. Atl. Health Sys., Inc., 440 N.J.
Super. 24, 32 (App. Div. 2015), certif. denied, 227 N.J. 357
6 A-3544-13T4
(2016). The patient's "rights" are enumerated in N.J.S.A. 30:13-
5(a) to (n). The nursing home's "responsibilities" are enumerated
in N.J.S.A. 30:13-3(a) to (j). One such responsibility of a
nursing home is to "ensur[e] compliance with all applicable State
and federal statutes and rules and regulations." N.J.S.A. 30:13-
3(h). In addition, the Act includes two sections of enforcement
for violations of these sections: N.J.S.A. 30:13-8(a) and N.J.S.A.
30:13-4.2.
N.J.S.A. 30:13-8(a) provides, in pertinent part, that:
Any person or resident whose rights as defined
herein are violated shall have a cause of
action against any person committing such
violation. The Department of Health and
Senior Services may maintain an action in the
name of the State to enforce the provisions
of this act and any rules or regulations
promulgated pursuant to this act.
N.J.S.A. 30:13-4.2 provides, in pertinent part, that:
A person shall have a cause of action against
the nursing home for any violation of this act
[C.30:13-4.1, 30:13-4.2]. The Department of
Health may maintain an action in the name of
the State to enforce the provisions of this
act and any rules and regulations promulgated
pursuant to this act.
We have held that neither section bestows upon an individual
the unbridled right to bring a cause of action against the nursing
home; rather, the statutes permit enforcement of the Act in limited
circumstances. See Ptaszynski, supra, 440 N.J. Super. at 33-36.
7 A-3544-13T4
Under N.J.S.A. 30:13-8(a), a person can only bring an action for
violation of one of the enumerated residents' "rights," set forth
in N.J.S.A. 30:13-5. N.J.S.A. 30:13-8(a) does not "authorize a
person to bring an action to enforce the nursing home's
'responsibilities' as defined in the law." Ptaszynski, supra, 440
N.J. Super. at 36. Furthermore, under N.J.S.A. 30:13-4.2, an
individual can only bring an action as it pertains to security
deposits, not for a nursing home's failure to fulfill its
responsibilities under N.J.S.A. 30:13-3(h). Ptaszynski, supra,
440 N.J. Super. at 34-36.
It follows that an individual does not have a private cause
of action for a nursing home's violation of its responsibilities.
An individual may have a cause of action against a nursing home
for violations of the individual's rights. However, the Act simply
does not provide the avenue for relief requested by plaintiffs.
As such, the trial court's decision to direct the verdict was
correct.
B. Defendants' Cross-Appeal
We next turn to defendants' cross-appeal. Defendants argue
that the motion court erred by admitting Joseph's hearsay statement
and denying summary judgment. Defendants contend that the motion
court erroneously admitted the statement pursuant to a hearsay
8 A-3544-13T4
exception, and without the statement, plaintiffs' case falls
apart. We do not agree.
During the motion for summary judgment, the motion court
admitted the proffered evidence pursuant to the hearsay exception
for the purpose of medical diagnosis or treatment. We treat this
determination as an evidential issue and apply an abuse of
discretion standard. "[A]dmission or exclusion of proffered
evidence is within the discretion of the trial judge whose ruling
is not disturbed unless there is a clear abuse of discretion."
Dinter v. Sears, Roebuck & Co., 252 N.J. Super. 84, 92 (App. Div.
1991). We discern no such abuse of discretion with the admission
of Joseph's statements.
N.J.R.E. 803(c)(4) provides an exception to the hearsay rule,
regardless of the availability of a declarant:
Statements made in good faith for purposes of
medical diagnosis or treatment which describe
medical history, or past or present symptoms,
pain, or sensations, or the inception or
general character of the cause or external
source thereof to the extent that the
statements are reasonably pertinent to
diagnosis or treatment.
Thus, "statements which describe present or previous
symptoms, pain or sensations [] or their history are admissible
to prove the truth of the statements if the statements are relevant
to an issue of the declarant's condition." Biunno, Weissbard &
9 A-3544-13T4
Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E.
803(c)(4) (2015). However, "[s]tatements as to the cause of
injury, when the cause is irrelevant to diagnosis or treatment,
are inadmissible under the exception." Palmisano v. Pear, 306
N.J. Super. 395, 400 (App. Div. 1997).
The rationale underlying previous decisions "is that such
statements possess inherent reliability because 'the patient
believes that the effectiveness of the treatment he receives may
depend largely upon the accuracy of the information he provides
the physician.'" R.S. v. Knighton, 125 N.J. 79, 87 (1991) (quoting
McCormick on Evidence § 292 at 839 (3d ed. 1984)). New Jersey
cases faced with this issue have "demonstrate[d] an unwavering
adherence to that rationale[,]" with varying results. Knighton,
supra, 125 N.J. at 87. Some courts have held statements to be
inadmissible if a declarant lacked the "treatment motive" or if
the cause was irrelevant. See, e.g., Cestero v. Ferrara, 57 N.J.
497, 501 (1971); State v. D.R., 214 N.J. Super. 278, 288-89 n.4
(App. Div. 1986), rev'd on other grounds, 109 N.J. 348 (1988).
Others have held that the cause of injury was relevant to diagnosis
and treatment. Rose v. Port of N.Y. Auth., 61 N.J. 129, 138
(1972); Bober v. Indep. Plating Corp., 28 N.J. 160, 170-72 (1958);
Greenfarb v. Arre, 62 N.J. Super. 420, 437 (App. Div.), certif.
denied, 33 N.J. 454 (1960).
10 A-3544-13T4
We find Greenfarb instructive. There, a wife sued her
husband's company for her husband's death. Greenfarb, supra, 62
N.J. Super. at 422. The wife alleged that her husband died due
to two work-related injuries: when he tripped over a handtruck and
when he lifted a 300-pound piece of dough. Ibid. After her
husband felt ill, she called his physician for an examination.
Ibid. The husband was hospitalized and diagnosed with a heart
attack. Id. at 423-24. Eventually, this led to the husband's
death. Id. at 424. At trial, the physician testified that the
decedent had lifted the dough. Ibid. The physician also testified
about the existence of a causal relationship between the lifting
of the dough and the injury that caused the decedent's death.
Ibid.
We determined that the physician's statements as to the
cause of injury were relevant to treatment and therefore
admissible. Id. at 426-27, 437. In employing a flexible view of
the hearsay exception, we considered the trustworthiness of the
declarant at the time of the statement, the temporal nature of the
statement, the condition of the declarant when speaking to the
medical professional, and whether the medical professional pursued
the inquiry to arrive at a diagnosis or treatment. Id. at 434.
Here, applying these principles, we conclude that the motion
court did not abuse its discretion in admitting the statement, and
11 A-3544-13T4
thus, the denial of summary judgment was not erroneous. Similar
to Greenfarb, it is reasonable to conclude that Joseph's statement
that he fell off the bed would help a diagnosis or treatment. Cf.
Greenfarb, supra, 62 N.J. Super. at 426-27. The statement could
have provided nuanced details to medical professionals that
compelled additional tests or questions. Furthermore, nothing in
the record suggests that Joseph's statement was made for the
purposes of "collecting compensation benefits." Id. at 427. We
agree with the motion judge's determination that Joseph's
statement was trustworthy and not made with compensation in mind.
As such, there was no abuse of discretion.
C. The Directive and Voir Dire
The Directive instructs trial judges on how to conduct the
jury voir dire process. See Administrative Directive #4-07, "Jury
Selection – Model Voir Dire Questions Promulgated by Directive
#21-06 – Revised Procedures and Questions" (May 16, 2007),
http://www.njcourts.gov/attorneys/assets/directives/dir_04_07.pd
f. This Directive, promulgated by our Supreme Court, is binding
upon all trial courts. State v. Morales, 390 N.J. Super. 470, 472
(App. Div. 2007) (quoting State v. Linares, 192 N.J. Super. 391,
397 (Law Div. 1983)). Its purpose "is to empanel a jury without
bias, prejudice or unfairness." Gonzalez v. Silver, 407 N.J.
12 A-3544-13T4
Super. 576, 596 (App. Div. 2009) (citing Morales, supra, 390 N.J.
Super. at 472, 475).
The Directive instructs the trial court to ask each potential
juror at least three open-ended questions. Specifically, the
Directive provides:
In addition to the printed questions, the
judge shall also inform the jurors in the box
and the array that jurors will also be
individually asked several questions that they
will be required to answer in narrative form.
. . . .
The judge will then ask [the] juror each of
the open-ended questions, to which a verbal
response shall be given and for which
appropriate follow up questions will be asked.
. . . .
Some open-ended questions must be posed
verbally to each juror to elicit a verbal
response. The purpose of this requirement is
to ensure that jurors verbalize their answers,
so the court, attorneys and litigants can
better assess the jurors' attitudes and
ascertain any possible bias or prejudice, not
evident from a yes or no response, that might
interfere with the ability of that juror to
be fair and impartial. Open-ended questions
also will provide an opportunity to assess a
juror's reasoning ability and capacity to
remember information, demeanor,
forthrightness or hesitancy, body language,
facial expressions, etc.
. . . .
The judge must ask at least three such
questions, in addition to the biographical
13 A-3544-13T4
question and the two omnibus qualifying
questions. This is a minimum number and judges
are encouraged to ask more where such action
would be appropriate.
Here, the trial judge did not follow the Directive. The
judge asked potential jurors the standard biographical and omnibus
questions. The judge also asked, at times, several follow-up
questions, and permitted the attorneys the opportunity to ask
their own follow-up questions. However, these questions did not
follow the Directive's mandate of three open-ended questions. As
such, we find that the trial court abused its discretion and erred
by not adhering to the Directive.
Having determined that the trial court erred, we next analyze
whether this error warrants a reversal of the judgment. Generally,
some degree of harm must be shown. R. 2:10-2. As it relates to
the voir dire process, judges have an obligation to adhere to the
administrative directives, and counsel also has a duty to object
to the jury selection process. See Gonzalez, supra, 407 N.J.
Super. at 596. In addition, to reverse a judgment, we have also
held that there must be a "miscarriage of justice" resulting from
the failure to follow directives. Ibid.
Here, after a review of the record, we conclude that the
judge's abuse of discretion was not harmless and warrants reversal.
Plaintiffs' counsel requested that the trial court follow the
14 A-3544-13T4
Directive. The judge rejected this request and informed counsel
that it would ask enough questions to give counsel "an idea of
what type of person [the juror] might be" and that, depending upon
the answer, counsel may have the opportunity to explore with
additional questions at sidebar.
In several instances, the only time a few of the jurors
meaningfully spoke was when they provided biographical information
in front of the other seated jurors. The voir dire and open-ended
questions for several jurors consisted of only responding
generally to introductory questions.
Before calling a specific juror, the judge asked questions
to the entire prospective jury panel, including: whether they had
issues applying the law as restated by the judge, if they or any
family member or friend had ever filed a lawsuit of any kind, if
anyone they knew had a very good or very bad experience with a
medical professional or medical organization, or if they had any
existing opinions or strong feelings about a case with someone
alleging negligence against a nursing home. The judge also asked
if there was any other information the court or litigants should
know that would hinder the juror from serving fairly and
impartially. The extent of some jurors voicing their opinions or
positions on these questions was by responding "no."
15 A-3544-13T4
This process failed to provide the required opportunity to
"better assess the jurors' attitudes and ascertain any possible
bias or prejudice," or "assess a juror's reasoning ability." The
questions did not elicit verbalized open-ended responses from each
juror, and we cannot confidently conclude that the jury empaneled
was both fair and impartial.
Because we reverse on other grounds, we need not address
plaintiffs' remaining arguments.
Reversed and remanded. We do not retain jurisdiction.
16 A-3544-13T4