Opinion
DOCKET NO. A-4250-13T2
11-13-2015
RYAN SAUL, Plaintiff-Respondent/Cross-Appellant, v. TOWNSHIP OF MANCHESTER, Defendant-Appellant/Cross-Respondent.
Stephen E. Trimboli argued the cause for appellant/cross-respondent (Trimboli & Prusinowski, L.L.C., attorneys; Mr. Trimboli, of counsel and on the briefs; Sarah Gober, on the briefs). Peter B. Paris argued the cause for respondent/cross-appellant (Mets, Schiro & McGovern, L.L.P., attorneys; Mr. Paris, of counsel and on the brief). Samuel J. Marzarella, Chief Appellate Attorney, argued the cause for amicus curiae Ocean County Prosecutor's Office (Joseph D. Coronato, Ocean County Prosecutor, attorney; Mr. Marzarella, of counsel; Nicholas D. Norcia, Assistant Prosecutor, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Fasciale and Higbee. On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No. L-2381-12. Stephen E. Trimboli argued the cause for appellant/cross-respondent (Trimboli & Prusinowski, L.L.C., attorneys; Mr. Trimboli, of counsel and on the briefs; Sarah Gober, on the briefs). Peter B. Paris argued the cause for respondent/cross-appellant (Mets, Schiro & McGovern, L.L.P., attorneys; Mr. Paris, of counsel and on the brief). Samuel J. Marzarella, Chief Appellate Attorney, argued the cause for amicus curiae Ocean County Prosecutor's Office (Joseph D. Coronato, Ocean County Prosecutor, attorney; Mr. Marzarella, of counsel; Nicholas D. Norcia, Assistant Prosecutor, on the brief). PER CURIAM
In this prerogative writs action, defendant Township of Manchester (the Township) appeals from orders dated: (1) October 25, 2012 (the October 2012 order), denying its motion to dismiss the complaint on procedural grounds; (2) March 11, 2014 (the March 2014 order), making independent findings of fact following a de novo review of the record, rejecting in part the findings of a hearing officer (the HO), and reinstating plaintiff as a Township police officer with back pay; and (3) April 28, 2014 (the April 2014 order), granting the Township's motion to amend the March 2014 order by denying plaintiff back pay, but allowing plaintiff to file a separate Law Division action seeking reimbursement, back pay, and benefits. Plaintiff Ryan Saul cross-appeals from the April 2014 order denying him back pay and attorney's fees. We affirm as to all appeals.
Counsel represented to us at oral argument that plaintiff has filed a complaint for back pay, which has been stayed pending our opinion.
I.
On September 22, 2010, plaintiff and Patrolman Patrick Cervenak responded to the scene of a domestic dispute (the first event). According to Cervenak's written report dated September 22, 2010, the suspect "broke free of [his] grip and lunged forward at [plaintiff], who had arrived on scene to assist. As [the suspect] charged towards [plaintiff], [Cervenak] grabbed [the suspect's] back while [plaintiff] grabbed his shoulders and [the officers] took [the suspect] to the ground."
According to plaintiff's written report, prepared around the same time as Cervenak's, plaintiff and Cervenak attempted to escort the suspect out of the apartment, at which time the suspect
swung both of his arms backwards, striking [Cervenak] and [plaintiff] in the chest area in an attempt to break away from [the officers'] control. Unable to break from [the officers'] control, [the suspect] dropped down to his knees and launched himself backwards, [and] it was at this point that he was able to break free from [the officers'] control.Both Cervenak and plaintiff filed use-of-force reports indicating that the suspect "[r]esisted police officer control" and that the officers used a "[c]ompliance hold" on the suspect.
[The suspect] then got to his knees and launched himself towards [plaintiff's] waist area with his head down and his arms extended out to the sides in an attempt to tackle [plaintiff]. . . . [Plaintiff] landed on [his] back [and] . . . [Cervenak] grabbed [the suspect] . . . from behind in an attempt to pull [the suspect] off of [plaintiff] and to regain control of him.
While processing the suspect, plaintiff notified his supervisors that his "left shoulder began to feel sore," but was advised to finish his shift. A few days later, on or around September 25, 2010, plaintiff noticed his right knee "had bruising[,]" "it did not feel normal and [he] was unable to bear [his] full weight on it . . . ." On September 26, 2010, plaintiff notified an on-duty sergeant of his knee injury and filed an injury report. Plaintiff then sought medical treatment at a local emergency room, and claims he was diagnosed with a strained right knee.
The Township's police chief requested an internal affairs (IA) investigation of purported "discrepancies" in the incident reports of Cervenak and plaintiff. IA interviewed Cervenak, as well as two witnesses to the first event, including the victim of the domestic violence. Cervenak purportedly stated to IA that the suspect never tried to "tackle or otherwise assault [plaintiff,]" that plaintiff was never "on the floor" and that the suspect was never "on top of" plaintiff. The victim claimed that the suspect never attempted to "tackle either officer . . . ."
IA also learned that on October 5, 2010, plaintiff did not participate in a training exercise (the second event). Plaintiff stated he could not participate in the training on gas mask usage because he did not have prescription eyeglass lenses installed in his gas mask, he could not wear glasses, and that he had vertigo.
IA then interviewed plaintiff (the third event) in December 2010. During that interview, plaintiff indicated that he first reported his shoulder pain on September 22, 2010, and his knee pain on September 26, 2010, two days after it manifested itself. Plaintiff indicated his report of the first event was "more descriptive" than Cervenak's report. Plaintiff also attempted to clarify his statements regarding the second event by explaining that he was diagnosed as a child as "legally blind" but was not recently diagnosed as "legally blind" and now has contacts. Plaintiff claimed he could not wear his contacts and prescription eye inserts for his gas mask at the same time because it gave him the "sensation" of vertigo.
Plaintiff then underwent a psychological evaluation with Dr. Matthew Guller at the request of the Township. Dr. Guller found that plaintiff was "rather overly dramatic[,]" which was suggestive of a "somatoform disorder[,]" and that plaintiff has issues with "dishonest statements." Dr. Guller concluded that plaintiff was not fit for duty until he completed "counseling to attempt to remediate [the condition] . . . ."
Somatoform disorders are a group of psychological disorders in which a patient experiences physical symptoms despite the absence of an underlying medical condition that can fully explain their presence. 14-178 Attorneys' Textbook of Medicine (3rd ed.) § 178.04.
The Township filed twenty charges against plaintiff on February 10, 2011, for the first, second, and third events (the disciplinary charges). The disciplinary charges included allegations of inaccurate reports, dishonesty, failure to report an injury, making misrepresentations and untruthful statements, and incapacity to perform duties and responsibilities of a police officer.
Plaintiff had three additional psychological evaluations after the filing of the disciplinary charges. Dr. Chester Trent examined plaintiff and determined he was fit for duty. Dr. David Gallina examined plaintiff on behalf of the Township and determined he was unfit for duty. Dr. Daniel Gollin examined plaintiff and determined he was "fit to return to full and active duty without any restrictions[.]"
Between February 8, 2012 and May 31, 2012, the HO conducted six days of hearings on the disciplinary charges. The HO concluded that based on the evidence presented, the Township proved the disciplinary charges by a preponderance of the evidence, recommended termination of plaintiff, and issued a lengthy written decision.
Plaintiff received notice of his termination on July 2, 2012. Plaintiff and the Township then engaged in settlement negotiations, but the Township notified plaintiff on July 12, 2012, that a settlement was impossible. Plaintiff subsequently filed a complaint in lieu of prerogative writs on August 2, 2012, challenging the HO's findings and seeking reinstatement, back pay, fees, and costs.
The Township sought to dismiss plaintiff's complaint for failing to timely file the administrative appeal. The Township maintained that plaintiff failed to comply with the ten-day deadline imposed by N.J.S.A. 40A:14-150. The trial judge rejected that contention and denied the motion in the October 2012 order. The judge then conducted the trial de novo, reviewing the record and supplementing it with testimony from plaintiff. The judge made his own independent findings, including, after observing plaintiff testify on cross-examination, that plaintiff was credible.
In a forty-one page opinion, memorialized in the March 2014 order, the judge overturned the decision of the HO except as to one of the disciplinary charges (failure to report an injury), reversed plaintiff's termination and replaced it with a formal reprimand, and reinstated plaintiff with back pay and benefits. The judge carefully considered the entire record before rendering his thorough decision. In reaching his conclusions, the judge rejected the opinions expressed in Dr. Guller's report, and determined that Dr. Gallina rendered nothing more than a "highly speculative" net opinion.
Plaintiff then moved for attorney's fees, and the Township moved for reconsideration on the award of back pay and benefits. The judge denied plaintiff's motion for attorney's fees, but granted the Township's motion to amend the March 2014 order. As a result, the judge entered the April 2014 order denying plaintiff back pay, but allowing plaintiff to file a separate Law Division action seeking reimbursement, back pay, and benefits.
We granted amicus status to the Ocean County Prosecutor's Office (the Prosecutor's Office), which filed a brief and participated in oral argument before us. The Prosecutor's Office maintained that plaintiff should not be re-instated due to his inability to reliably report information and that reinstating plaintiff as a police officer would mean that "the State would possibly be required in any future case that plaintiff touches, to turn over reams of documents related to plaintiff's [purported] psychological issues."
The arguments advanced by the Prosecutor's Office addressing policy issues have no bearing on our review of the de novo findings and conclusions of the Law Division judge.
On appeal, the Township contends that the judge erred by (1) denying its motion to dismiss the complaint on procedural grounds; (2) rejecting the HO's decision regarding the disciplinary charges related to the first event; and (3) rejecting the opinions of Drs. Guller and Gallina. The Township is joined in these arguments by the Prosecutor's Office, which essentially argues that the March 2014 order should be reversed because plaintiff's ability to reliably report information has been questioned.
We conclude that the Ocean County Prosecutor's argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
In his cross-appeal, plaintiff contends the judge erred by (1) amending the March 2014 order requiring plaintiff to file a separate action for back pay and benefits, and (2) denying plaintiff's request for attorney's fees.
II.
We begin by rejecting the Township's first argument that, because plaintiff's appeal was untimely filed, the judge erred by denying the motion to dismiss.
At the outset, we note that "[w]hether a particular cause of action is barred by a statute of limitation[] is determined by a judge" and is a determination of legal consequence. Estate of Hainthaler v. Zurich Commercial Ins., 387 N.J. Super. 318, 325 (App. Div.), certif. denied, 188 N.J. 577 (2006). We therefore owe no deference to the judge's decision and review de novo. Ibid.
The Township is a non-civil service municipality and the termination of a police officer is governed by N.J.S.A. 40A:14-147 to -150. Specifically, N.J.S.A. 40A:14-150 provides that:
Any member or officer of a police department or force in a municipality wherein Title 11A of the New Jersey Statutes is not in operation, who has been tried and convicted upon any charge or charges, may obtain a review thereof by the Superior Court . . . . Such review shall be obtained by serving a written notice of an application therefor upon the officer or board whose action is to be reviewed within [ten] days after written notice to the member or officer of the conviction. The officer or board shall transmit to the court a copy of the record of such conviction, and of the charge or charges for which the applicant was tried. The court shall hear the cause de novo on the record below and may either affirm, reverse or modify such conviction. If the applicant shall have been removed from his office, employment or position the court may direct that he be restored to such office, employment or position and to all his rights pertaining thereto, and may make such other order or judgment as said court shall deem proper.
[(Emphasis added).]
Statutes of limitation exist to "compel the exercise of a right of action within a specific, reasonable period of time" so as to allow answering parties "a fair opportunity to defend[,]" and to "spare the courts from litigation of stale claims." Galligan v. Westfield Ctr. Serv., Inc., 82 N.J. 188, 192 (1980) (citations and internal quotation marks omitted). Although statutory timeframes are of "legislative origin," our courts have attempted to "implement fully the underlying legislative purposes" while avoiding "the injustice which would result from a literal reading of the general statutory language." Id. at 191.
Our Supreme Court stated in Galligan that "[u]nswerving . . . application of statutes of limitation[] would at times inflict obvious and unnecessary harm upon individual plaintiffs" without advancing any legitimate purpose. Id. at 192. Thus, courts should provide a "just accommodation" because "individual justice and public policy requires that in each case the equitable claims of [the] parties must be identified, evaluated and weighed. Whenever dismissal would not further the Legislature's objectives . . . the plaintiff should be given an opportunity to assert his claim." Id. at 193 (citations and internal quotation marks omitted). Interpreting Galligan, we have previously allowed review of an adverse employment determination under N.J.S.A. 40A:14-150 when the notice of appeal was filed outside the ten-day timeframe when the "municipality clearly understood" the plaintiff's intention to appeal the decision. Stone Harbor v. Wildwood Local 59, Policemen's Benevolent Ass'n, 178 N.J. Super. 1, 5-6 (App. Div. 1980), certif. denied, 87 N.J. 356 (1981).
Here, it is undisputed that plaintiff failed to comply with the ten-day rule contained in N.J.S.A. 40A:14-150. Once notified of his termination on July 2, 2012, plaintiff did not provide written notice to the Township of his appeal until August 2, 2012, when he filed his complaint, which was within the forty-five-day limitation period for a prerogative writs action, R. 4:69-6(a), but not within the ten-day limitation prescribed under N.J.S.A. 40A:14-150.
The judge, however, concluded that "equities" required the Township's motion to dismiss be denied, even though the Township did not receive written notice within the ten-day period that plaintiff would appeal the decision. Relying on Galligan, the judge determined that "strictly construing the statute" would preclude plaintiff from receiving "a de novo review of his termination" which does not advance the statute's legislative purpose to protect police officers from arbitrary and unreasonable decisions of the municipality.
We agree with the judge's conclusion that a strict application of the ten-day rule contained in N.J.S.A. 40A:14-150 would inflict an unnecessary harm to plaintiff without advancing any legitimate legislative objective. The purpose of N.J.S.A. 40A:14-150 is to "provide employees of non-civil service communities with an independent tribunal to review their disciplinary actions." In re Phillips, 117 N.J. 567, 578 (1990). As our Supreme Court noted in Galligan, supra, 82 N.J. at 193, and we stated in Stone Harbor, supra, 178 N.J. Super. at 5-6, we must generally adhere to the purpose of the underlying statute and provide a just accommodation when necessary.
Furthermore, plaintiff may not have provided written notice to the Township that he was appealing the decision, but he did provide notice within the ten-day period of his intention to appeal. Plaintiff learned of his termination on July 2, 2012, engaged in settlement discussions, then on July 12, 2012, informed the Township of his intent to appeal, when he learned the Township would not settle. Moreover, the brief delay in plaintiff's filing had no impact on the ability of the Township to defend the claim.
III.
We next consider the Township's contention that the judge abused his discretion by rejecting the HO's decision regarding the charges stemming from the first event. The challenge is based on the rejection of the HO's factual findings.
The Township does not argue that the judge erred in concluding that the Township failed to meet its burden regarding the disciplinary charges stemming from the second and third events. Therefore, any arguments related to those charges are deemed waived on appeal. Society Hill Condo. Ass'n v. Society Hill Assocs., 347 N.J. Super. 163, 174 (App. Div. 2002).
When an officer appeals the decision of the HO, it is well-established that the trial court conducts a de novo review of the HO's decision, and the trial court may supplement the record with additional testimony. N.J.S.A. 40A:14-150; In re Phillips, supra, 117 N.J. at 578. Because a de novo hearing allows the trial court to review the matter "anew, afresh[, and] for a second time[,]" the trial court "makes its own findings of fact." In re Phillips, supra, 117 N.J. at 578. (citations and internal quotation marks omitted). Here, the judge supplemented the record by taking testimony from plaintiff. As a result, he had the opportunity to make his own independent findings regarding plaintiff's credibility.
On appeal from a decision of a trial court, an appellate court "plays a limited role in reviewing the de novo proceeding." Id. at 579. "[U]nless the appellate tribunal finds that the decision below was 'arbitrary, capricious or unreasonable' or '[un]supported by substantial credible evidence in the record as a whole,' the de novo findings should not be disturbed." Ibid. (second alteration in original) (quoting Henry v. Rahway State Prison, 81 N.J. 571, 580 (1980)). Applying these standards, we reject the Township's argument and affirm substantially for the reasons set forth by the judge in his well-reasoned written opinion.
The judge concluded that the disciplinary charges stemming from the first event were "without merit[.]" In rejecting the HO's conclusions and independently reaching his own findings, the judge first noted that in six of the twelve biannual evaluations of plaintiff, including four evaluations immediately prior to the first event, the Township scored plaintiff as an "'exemplary' police officer . . . ." After the first event, plaintiff still scored in the "'average' range including the last evaluation which was conducted following [the first, second, and third events]."
Next, after assessing plaintiff's credibility, the judge concluded
the contemporaneous reports of Cervenak and the plaintiff are the most reliable versions of the [first event]. They were both prepared on the date of the incident when the recollection of the incident was fresh on the minds of both officers. They were both made without the knowledge of a pending disciplinary action and, most importantly, they are not inconsistent with each other. It is true that in his report [Cervenak] does not go into detail as to actions of the plaintiff during the struggle with [the suspect] but that is to be expected. Obviously, [Cervenak] cannot be expected to observe all actions of [plaintiff], e.g., how he fell, how he applied a choke hold to
[the suspect] when he himself was in the throes of subduing the suspect.
[T]he court finds that [the victim] is not a reliable witness and further that her two versions of the incident are not consistent with each other and both of those versions are completely inconsistent with both of the contemporaneous reports filed by the two officers involved. Finally, the testimony of [Cervenak] before the [HO] is not consistent with his contemporaneous reports.
We have no reason to disturb the judge's findings and conclusions which were supported by substantial, credible evidence in the record. We agree with the judge that there were "at least six (6) differing versions of [the first] event" which included plaintiff's report and testimony before the judge; Cervenak's report, statements to IA, and his testimony before the HO; and the statements of the victim to IA and the HO. There is sufficient credible evidence in the record to support the judge's conclusion that the most reliable and accurate of these versions of the first event are the initial reports of plaintiff and Cervenak.
As the judge concluded, the HO never properly considered plaintiff's and Cervenak's contemporaneous reports, which both describe the suspect breaking free, charging at plaintiff, and Cervenak and plaintiff subduing the suspect on the ground. These two documents, created in close temporal proximity to each other and the first event, are also generally consistent with one another and with plaintiff's testimony at the de novo trial. As the judge found, it was only after IA pursued disciplinary charges that Cervenak claimed the suspect did not lunge at plaintiff, and that plaintiff and Cervenak did not take the suspect to the ground.
We conclude the judge did not err in finding the victim's statements to be unreliable. Credible evidence clearly demonstrates that the victim never claimed "that [the suspect] broke free of [Cervenak's] grip," as was recounted by all other parties. Reviewing the entire record, there exists substantial credible evidence to support the judge's conclusion that the victim's "version of the [first event] varies significantly from [the] original incident report[s]."
IV.
We conclude the Township's final argument, that the judge erred by rejecting the expert opinions of Drs. Guller and Gallina, is without merit.
"The admission or exclusion of expert testimony is committed to the sound discretion of the trial court." Townsend v. Pierre, 221 N.J. 36, 52 (2015). As a result, we must apply a "deferential approach to a trial court's decision to admit expert testimony, reviewing it against an abuse of discretion standard." Id. at 53 (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 334, 371-72 (2011)). Here, there was no abuse of discretion by the judge.
Moreover, it is for the trier of fact "to determine the credibility, weight and probative value of the expert's testimony[.]" Rubanick v. Witco Chem. Corp., 242 N.J. Super. 36, 48 (App. Div. 1990), modified on other grounds, 125 N.J. 421 (1991). As such, a judge sitting without a jury may "reject an expert's opinion if in [his or her] judgment the reasons given for it are unsound, the facts do not exist, or it is not based on knowledge and experience." Id. at 49.
We begin by summarizing the governing principles applicable to the judge's decision regarding the opinions of Drs. Guller and Gallina. Expert testimony is partly governed by N.J.R.E. 702 and N.J.R.E. 703. Our courts have determined that N.J.R.E. 702, which governs the admissibility of expert testimony, imposes three requirements:
N.J.R.E. 702 states that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise."
(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently
reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.N.J.R.E. 703, which governs the bases of an expert's opinion, "mandates that [an] expert opinion be grounded in 'facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts.'" Townsend, supra, 221 N.J. at 53 (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)).
[Creanga v. Jardal, 185 N.J. 345, 355 (2005) (citations and internal quotation marks omitted).]
N.J.R.E. 703 states that
[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.
The "net opinion rule 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." Id. at 53-54 (alterations in original) (citations and internal quotation marks omitted). In other words, the expert must "give the why and wherefore that supports the opinion, rather than a mere conclusion." Id. at 54 (quoting Borough of Saddle River v. 66 E. Allendale, L.L.C., 216 N.J. 115, 144 (2013)). The expert must "be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are scientifically reliable." Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992).
Our Supreme Court, in Ruroede v. Borough of Hasbrouck Heights, 214 N.J. 338, 358 n.5 (2013), noted the net opinion rule is applicable to expert reports submitted by psychologists evaluating a police officer's fitness for duty. --------
A.
Applying these standards, we conclude the judge did not abuse his discretion by rejecting Dr. Guller's opinion.
The record contains substantial, credible evidence to support the judge's findings that Dr. Guller changed his opinion several times and did not sufficiently reconcile the discrepancies regarding his changed opinions. Dr. Guller initially concluded that plaintiff was not fit for duty "at the present time" and suggested a six-month period of counseling, with further evaluation after three months to determine whether plaintiff was fit to return to "light duty[,]" followed by an additional three months of counseling and a "re-evaluation to assess his fitness for full duty at that time." Dr. Guller also concluded that plaintiff's behavior was "suggestive of a somatoform disorder" but he did not positively diagnose one. It was only after IA sent Dr. Guller a list of ten examples of plaintiff's purported untruthfulness, did Dr. Guller "opine[] more emphatically that [plaintiff] 'presents with evidence of an [u]ndifferentiated [s]omatoform [d]isorder[.]'" Then, at the hearing, Dr. Guller stated that treatment for plaintiff would not "be effective in terms of getting [plaintiff] back on the job" but gave no reason for this change in treatment options.
The judge was within his discretion as the trier of fact to find that Dr. Guller never explained his "constantly changing diagnosis[,]" and failed to articulate why the initial psychological testing of plaintiff did not evidence a somatoform disorder. None of the tests conducted by Dr. Guller on plaintiff indicated any disorder and all tests were within normal range. Moreover, although Dr. Guller described plaintiff as being "overly dramatic" and plaintiff's past medical problems as being "described in rather dramatic terms[,]" Dr. Guller did not sufficiently review plaintiff's medical history. Lastly, Dr. Guller never observed or reported any findings required by the American Psychiatric Association (APA) for diagnosing a somatoform disorder.
"Conducting the review on the record and without the benefit of live testimony does not alter the [de novo] standard." In re Phillips, supra, 117 N.J. at 579 (emphasis in original). Although a judge reviewing de novo "must give due deference to the conclusions drawn by the original tribunal regarding credibility, those initial findings are not controlling." Ibid. Indeed, a judge reviewing de novo "make[s] reasonable conclusions based on a thorough review of the record" and "[t]hat process might include rejecting the findings of the original tribunal[.]" Id. at 580. This is because "[t]o require a reviewing court to defer to the [findings of the original tribunal] would conflict with the fundamental purpose of a de novo proceeding under N.J.S.A. 40A:14-150[.]" Ibid. Here, the judge properly conducted an independent and "thorough review of the record" and rejected the opinion of Dr. Guller as "neither credible nor supported by the evidence below."
B.
We also conclude that the judge did not abuse his discretion by determining Dr. Gallina rendered a net opinion.
The judge found that:
The difficulty with Dr. Gallina's report and his subsequent testimony before
the [HO] is that he does not independently provide the "whys and wherefores" of his diagnosis of a [s]omatoform [d]isorder. Rather, he appears to simply accept Dr. Guller's diagnosis. Moreover, Dr. Gallina states that a [s]omatoform [d]isorder is "possible." Dr. Gallina does not provide any specifics as to [plaintiff's] past history that would lead him to this "possibility." Moreover, in his narrative Dr. Gallina refers to his testing of [plaintiff] and that the same supports this conclusion but fails to cite to any specific details of his testing and only gives his conclusions of the same. Put simply, Dr. Gallina does not reconcile his diagnosis of [s]omatoform [d]isorder with his findings through objective testing that [plaintiff] did not present any neuropsychiatric disorders. Finally, like Dr. Guller, Dr. Gallina does not address the specific criteria necessary to support a diagnosis of [s]omatoform [d]isorder.
. . . .
In the final analysis, Dr. Gallina's report is highly speculative and provides no basis for his "possible" diagnosis.
[(Emphasis added).]
The judge's conclusion is supported by substantial, credible evidence in the record. Dr. Gallina notes "that Dr. Guller felt that [plaintiff] was suffering from a somatoform disorder." Yet, Dr. Gallina's report stated that plaintiff's "mental status examination is essentially entirely normal, with no objective signs or symptoms of neuropsychiatric disorder." Without giving any other details, Dr. Gallina concluded that a "[s]omatoform [d]isorder is possible" and that plaintiff is "not able to perform the essential functions of his job in a safe and [e]ffective manner[.]"
Dr. Gallina's opinion is a net opinion because it does not explain its methodology or demonstrate that both the factual bases and the methodology are reliable. See Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 43 (App. Div. 2003) (explaining "[o]pinions that lack a foundation are worthless") (citation and internal quotation marks omitted). In his report, Dr. Gallina states that a somatoform disorder is possible, but later vacillates and delivers an opaque explanation that plaintiff suffers from "elements of somatoform disorder, misperceptions and fabrications." Neither of these observations, however, are supported in the test results or findings of Dr. Gallina. He offers no explanation as to how plaintiff is suffering despite his seemingly contrary finding that plaintiff shows "no objective signs or symptoms of neuropsychiatric disorder." Dr. Gallina merely speculates that the "testing had marginal validity" because plaintiff painted himself in a positive light. However, if the testing had "marginal validity[,]" it is unclear as to how he was then able to reach the conclusion that plaintiff suffers from the alleged disorders. There is no logical explanation offered by Dr. Gallina. As such, the judge properly concluded that Dr. Gallina offered a net opinion.
Even if we were to conclude that Dr. Gallina did not render a net opinion, which is not the case, the judge had the discretion to reject the doctor's testimony because the judge found that his opinions were "highly speculative." Rubanick, supra, 242 N.J. Super. at 48-49.
V.
We now turn to plaintiff's cross-appeal of the April 2014 order denying plaintiff back pay, but allowing plaintiff to file a separate Law Division action seeking reimbursement, back pay, and benefits. After reviewing the record, we conclude that plaintiff's cross-appeal is "without sufficient merit to warrant discussion in a written opinion[,]" R. 2:11-3(e)(1)(E), and affirm for the reasons set forth in the judge's written opinion. We add the following brief remarks.
The judge correctly concluded that plaintiff did not have "an independent right to obtain back pay" without first filing a written demand with the municipal clerk. N.J.S.A. 40A:14-151 states that when a police officer's suspension or dismissal is judicially determined to be illegal, that officer may receive his salary from the date of dismissal so long as the officer filed a written application with the municipal clerk within thirty days of the judicial determination. We have previously concluded that the Law Division may not award back pay until a written application has been filed with the municipal clerk, and the clerk refuses payment. See Borough of Chester v. Roseberry, 202 N.J. Super. 428, 432 (App. Div. 1985). Plaintiff had not filed the requisite written request for back pay.
The judge also correctly determined that plaintiff was not eligible for attorney's fees. N.J.S.A. 40A:14-155 only allows for recovery of attorney's fees when the police officer receives a complete acquittal of all charges. Johnstone v. Town of Kearny, 332 N.J. Super. 606, 608 (App. Div.) (concluding that "so long as a defendant is convicted on one or more counts of a multi-count indictment . . . he or she is not entitled to reimbursement under N.J.S.A. 40A:14-155"), certif. denied, 165 N.J. 605 (2000). Here, plaintiff was not fully exonerated as the judge sustained one charge of failure to report an injury, resulting in a reprimand.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION