14-2-9359 State v. DeHart, App. Div. (Haas, J.S.C., temporarily assigned) (18 pp.) In this appeal, we address the issue of whether it was plain error for a police officer to provide hearsay testimony explaining why he included defendant’s photograph in a photo array and for the prosecutor to highlight that testimony in summation. We also consider whether the trial court was required to instruct the jury on the elements of attempted robbery even though such an instruction was not requested by defendant. After reviewing the record in light of the contentions advanced on appeal, we determine the police officer’s testimony should not have been admitted and that the prosecutor’s summation improperly bolstered the officer’s testimony in violation of defendant’s constitutional right of confrontation. We further conclude it was plain error to fail to instruct the jury on the elements of attempted robbery. We therefore reverse defendant’s convictions and remand for a new trial. [Decided March 22, 2013.]
25-2-9356 Hitesman v. Bridgeway Inc., App. Div. (Espinosa, J.A.D.) (32 pp.) A licensed or certified health-care professional may assert a claim against his or her employer pursuant to the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, based on a reasonable belief that the employer’s conduct “constitutes improper quality of patient care[.]” N.J.S.A. 34:19-3a(1) and c(1). The statutory definition of “improper quality of patient care” includes the violation of “any professional code of ethics.” N.J.S.A. 34:19-2(f). In this appeal, we consider whether plaintiff’s proof, and specifically his reliance on a professional code of ethics not applicable to his employer, was sufficient to support a liability verdict in his favor. We conclude that, as a matter of law, plaintiff failed to prove the first element of his CEPA claim. [Decided March 22, 2013.]
29-2-xxxx McLean v. Liberty Health System, App. Div. (Ashrafi, J.A.D.) (25 pp.) At the trial of this medical-malpractice case, the jury found that defendant emergency room doctor was not negligent in failing to detect a virulent infection that paralyzed the 16-year-old decedent and eventually led to his death. We order a new trial because of error in barring plaintiff from presenting testimony from a second liability expert with respect to the alleged deviation from the standard of medical care on the ground that the testimony would have been “duplicative” of another expert that plaintiff presented. For purposes of the retrial, we also address defendant’s burden of proof, in accordance with Scafidi v. Seiler, 119 N.J. 93 (1990), to apportion proximate causation between the pre-existing infection and the doctor’s alleged negligence. [Decided March 28, 2013.]
36-2-xxxx Washington v. Perez, App. Div. (Fisher, P.J.A.D.) (14 pp.) Without determining whether a missing-witness inference may be drawn from a party’s failure to call an expert to testify — a matter about which other appellate panels had disagreed — the court held that a missing-witness charge was inappropriate where defendants chose not to call their medical experts because it was not shown that those witnesses were “peculiarly within [defendants’] control” or that their testimony would have been superior to the other medical testimony elicited at trial. In addition, the court held the missing-witness instruction was prejudicial because plaintiff’s counsel inappropriately argued in summation that defense counsel’s failure to call the expert witnesses demonstrated the defense lacked “candor.” For those reasons, the court determined that defendants were prejudiced and a new trial is required. [Decided March 28, 2013.]
25-8-9378 Covington v. International Association of Approved Basketball Officials, Third Cir. (Sloviter, U.S.C.J.) (14 pp.) Tamika Covington, who has been a basketball official in New Jersey and Pennsylvania for 10 years, alleges gender employment discrimination under Title VII of the Civil Rights Act of 1964, Title IX of the Education Amendments of 1972, and the New Jersey Law Against Discrimination (NJLAD) because she has been excluded from officiating at boys’ high school varsity basketball games. Without hearing argument on the merits of Covington’s central claim, the district court dismissed the complaint with prejudice against all defendants, holding that Covington had not adequately alleged facts sufficient to establish an employer-employee or other relationship necessary to hold defendants liable under Title VII. The circuit panel remands plaintiff’s claims to the district court as against defendants Hamilton Township School District, the International Association of Approved Basketball Officials, Board 193, and the New Jersey State Interscholastic Athletic Association. The dismissal of the claims against the remaining defendants is affirmed. [Filed March 14, 2013.]