                 NOT FOR PUBLICATION WITHOUT THE
                APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-2392-13T4

ESTATE OF PATRICIA GRIECO, by its
administrator VINCENT GRIECO, and
                                          APPROVED FOR PUBLICATION
VINCENT GRIECO, individually,
                                                 May 19, 2015
           Plaintiffs-Appellants,
                                              APPELLATE DIVISION
      v.

HANS J. SCHMIDT, M.D. and ADVANCED
LAPAROSCOPIC ASSOCIATES,

          Defendants-Respondents.
___________________________________________________

           Submitted April 14, 2015 – Decided May 19, 2015

           Before Judges Fisher, Nugent and Manahan.

           On appeal from the Superior Court of New
           Jersey, Law Division, Bergen County, Docket
           No. L-10061-09.

           Emolo & Collini, attorneys for        appellants
           (John C. Emolo, on the brief).

           Marshall Dennehey Warner Coleman & Goggin,
           P.C., attorneys for respondents (Robert T.
           Evers and Walter F. Kawalec, III, on the
           brief).

      The opinion of the court was delivered by

FISHER, P.J.A.D.

      In this medical malpractice action, plaintiffs – the estate

and   husband   of   the   late   Patricia    Grieco     –   appeal     an

interlocutory   order   barring   witnesses   from     recounting     what
Patricia said her doctor's staff told her in response to her

complaints of chest pains following surgery.                       Because the trial

judge, in applying N.J.R.E. 804(b)(6), concluded the statements

were untrustworthy – without having listened to the witnesses

testify at a N.J.R.E. 104 hearing – we reverse.

      The circumstances surrounding this evidence question are

relatively    simple.        On   November     2,    2007,        defendant    Hans     J.

Schmidt, M.D., performed laparoscopic gastric banding surgery on

Patricia, who, within a few days of surgery, telephoned and

visited defendant Schmidt's office to complain of chest pains.

On November 9, 2007, Patricia suffered a pulmonary embolism; she

remained on life support until her death ten days later.

      Plaintiffs     filed    a    complaint      asserting         that    defendants'

negligence caused Patricia's death.               Following discovery, a jury

was   sworn   on   December       3,   2013,   and    opening         arguments       were

scheduled to begin the next day.                  Before the trial proceeded

beyond    jury     selection,          however,      the          judge     entertained

plaintiffs' motion to admit testimony from Patricia's husband,

three    children,    other       relatives    and       a    friend       pursuant     to

N.J.R.E. 804(b)(6), which permits, in civil cases, admission of

"a statement made by a person unavailable as a witness because

of    death   if   the   statement       was      made       in    good    faith      upon

declarant's personal knowledge in circumstances indicating that




                                          2                                    A-2392-13T4
it is trustworthy."           Plaintiffs assert that Patricia told these

potential witnesses, immediately after either a telephone call

or visit to defendants' office, that in the days after surgery

she was experiencing chest pain, that she told Schmidt's staff

she   was     experiencing     chest    pain,       and    that     she   was   told     by

Schmidt's      staff   that    her   pain     was    a     normal    complication        of

surgery caused by gas.1

      After hearing argument, but without reading the deposition

testimony of the witnesses, the judge denied plaintiffs' request

for a Rule 104 hearing and for the most part2 denied plaintiffs'

motion   to    admit   the     proposed     hearsay        testimony.          The   judge

labeled the testimony about what Patricia was told by Schmidt's

staff    as    "classic   double       hearsay"      that     should      be    excluded

because defendants would not be able to challenge the statements

through cross-examination and because there was "no mechanism to

ensure [] trustworthiness."            The judge concluded by stating:

              my ruling in this case is certainly, for
              example, Mr. Grieco can say that he observed
              [Patricia] having chest pain or that she
              told him that she had chest pain.    But any

1
 The proposed testimony would have included Patricia's statement
that she was told by defendant's staff that she should purchase
Gas-X for her chest pains.     Plaintiffs planned to corroborate
this testimony with evidence that one witness saw "Gas-X" listed
at the top of Patricia's shopping list.
2
 The judge did not bar witnesses                    from    recounting      Patricia's
complaints of chest pains.



                                          3                                      A-2392-13T4
            communication in terms of what . . .
            [Patricia] said that she told to someone
            else and what that someone else then
            responded to her, that information is double
            hearsay and cannot be . . . testimony in
            this trial.

The judge further explained that "[t]he part [of the testimony

that] could not overcome the hearsay exception was the part of

the    conversation    between    [Patricia]    and     whoever     it     is   she's

having the communication with at the office of Dr. Schmidt."                         In

response,    plaintiffs      argued    those   statements       –     made      by   an

unidentified individual over the telephone and Kathleen Connor,

a bariatric nurse, during an office visit — were admissible

pursuant    to   N.J.R.E.      803(b)(4).3      Additionally,            plaintiffs

maintained all Patricia's statements were trustworthy because

they were made within a very short time after her communications

with    Schmidt's   staff.       The   judge   concluded       that    a     lack    of

"corroborating        evidence    pertaining       to     the       truthfulness"

precluded admissibility of those statements allegedly made by

Schmidt's   staff.       The   judge   therefore      barred    testimony        that

Patricia "told [potential witnesses] that the office staff told

her to take Gas-X."


3
 N.J.R.E. 803(b)(4) permits admission of otherwise inadmissible
hearsay where the evidence is offered against a party and is "a
statement by the party's agent or servant concerning a matter
within the scope of the agency or employment, made during the
existence of the relationship."



                                        4                                    A-2392-13T4
      On     December     20,      2013,    an     order   was    entered     barring

plaintiffs from introducing evidence:

             concerning any statements that [Patricia]
             may have made to third parties as to what
             was told to her by the "unknown employee" of
             [] defendant during the phone calls of
             [November 6] and as to what was told to her
             by [] defendant's bariatric nurse . . .
             during her office visit on [November 8].

On January 6, 2014, the judge granted plaintiffs' request to

voluntarily dismiss the case without prejudice – and certified

that order as final, citing Rule 4:42-2 – while also, among

other      things,    setting      the     stage    for    a   resumption     of    the

proceedings in the trial court should we determine the evidence

ruling was incorrect.4

      Plaintiffs then filed this appeal, seeking our review of

the   December       20   order.         Plaintiffs    argue     that   the   hearsay

statements as to what Patricia told the proposed witnesses she

was told by defendant's staff were admissible or, if there were

doubts about the trustworthiness of such statements, that the

judge should at least have conducted a Rule 104 hearing.5


4
 For example, in the event we were to reverse, the dismissal
order   memorialized   defendants'  waiver   of   a  statute-of-
limitations defense, plaintiffs' waiver of pre-judgment interest
accruing during the intervening time period, and both parties'
waiver of the right to conduct further discovery.
5
 We briefly pause to express our chagrin about the manner in
which "finality" was achieved in the trial court. Nevertheless,
                                                    (continued)


                                            5                                 A-2392-13T4
    It is helpful to start with the fundamental concept that

hearsay is "a statement, other than one made by the declarant

while testifying at the trial or hearing, offered in evidence to

prove   the    truth     of    the    matter       asserted."      N.J.R.E.       801(c).

Unless falling within one of the many stated exceptions, hearsay

is inadmissible.        N.J.R.E. 802; State v. Long, 173 N.J. 138, 152

(2002).      The prohibition on hearsay is intended to "ensure the

accuracy of the factfinding process by excluding untrustworthy

statements, such as those made without the solemnity of the

oath, and not subject to cross-examination . . . or the jury's

critical      observation       of    the   declarant's       demeanor      and      tone."

State   v.    Engel,    99     N.J.    453,       465   (1985);   see   also      Neno   v.

Clinton, 167 N.J. 573, 579 (2001).

    Plaintiffs          argue    that       one     such    hearsay     exception         is

applicable     here,     namely,      the     exception     contained    in     N.J.R.E.

804(b)(6),      which     we    quoted        above.        To    qualify      for     this

exception:




(continued)
because we think it highly likely we would have granted leave to
appeal after entry of the December 20 order – had leave been
sought – we proceed to consider the merits of the appeal.     We
cannot stress, however, the importance of the parties actually
applying to this court for leave to appeal instead of concocting
ways in the trial court to give an interlocutory order the
appearance of finality.     See Grow Co. v. Chokshi, 403 N.J.
Super. 443, 457-60 (App. Div. 2008).



                                              6                                   A-2392-13T4
         (1) the declarant must be dead; (2) the
         statement must have been made in good faith;
         (3) the statement must have been made upon
         the declarant's own personal knowledge; and
         (4) there must be a probability from the
         circumstances   that    the   statement   is
         trustworthy.

         [DeVito v.       Sheeran,       165   N.J.   167,   194
         (2000).]

In considering the application of this rule, the judge "must

make particularized findings of good faith, personal knowledge,

and trustworthiness[.]"    Ibid.; see also Jeter v. Stevenson, 284

N.J. Super. 229, 233-34 (App. Div. 1995).

    Here, in the absence of further examination of the evidence

in question by way of a Rule 104 hearing, we must conclude that,

on the face of the proposed testimony, all four criteria favored

admission.    Patricia     is   deceased.         Her   statements     were

ostensibly made in good faith.6          The statements she conveyed to


6
 Along these same lines, N.J.R.E. 803(c)(3) permits admission of
"[a] statement made in good faith of the declarant's then
existing state of mind, emotion, sensation or physical condition
(such as . . . mental feeling, pain, or bodily health) . . . ."
These types of statements are considered to have been made in
good   faith  "when   made  in  a   natural  manner   and  under
circumstances dispelling suspicion and involving no suggestion
of sinister or improper motives . . . ." State v. Thornton, 38
N.J. 380, 390 (1962).    In a dental malpractice case, we found
that testimony from a plaintiff's mother and a friend that the
plaintiff had complained of pain after a dental procedure should
have been admissible pursuant to N.J.R.E. 803(c)(3) because the
plaintiff spoke to those witnesses the day of and the day after
undergoing the procedure and the statements were made "under
circumstances that do not suggest anything other than good
                                                     (continued)


                                     7                             A-2392-13T4
others were apparently within her personal knowledge.                     And the

circumstances suggest the trustworthiness of the evidence; that

is,     there     is     no   apparent     reason     for     Patricia   to      have

misrepresented to her husband or to other family members or

friends how she felt, the pains she claimed to have experienced,

what she said to her doctor or his staff, and what she was told

in response.

      As Judge Keefe explained in Beckwith v. Bethlehem Steel

Corp., 185 N.J. Super. 50, 63 (Law Div. 1982), in applying the

predecessor       to    N.J.R.E.     804(b)(6),     "an   absolute    standard     of

trustworthiness is not essential before evidence is admissible."

It is only necessary that the trial judge find, in engaging in a

subjective      analysis,      "a    probability      that    the    statement     is

trustworthy from the flavor of the surrounding circumstances."

Ibid.     The Supreme Court later adopted this standard in DeVito,

supra, 165 N.J. at 195.             In engaging in this analysis, the trial

judge may consider: "whether the statement was made under oath;

the duration of the time between the event and the statement;

whether     the        declarant     had   firsthand        knowledge;   and     the




(continued)
faith," notably the plaintiff "spoke to people one would
naturally voice concerns to."     Roper v. Blumenfeld, 309 N.J.
Super. 219, 235-37 (App. Div. 1998).



                                           8                              A-2392-13T4
credibility     of    the       declarant."            Id.    at     195-96     (citing     2

McCormick on Evidence § 324 (5th ed. 1999)).

      It suffices to say the judge erred by declining to listen

to    the    witnesses       before      concluding           their        testimony      was

untrustworthy        or     that       the       circumstances          suggested        that

Patricia's statements were untrustworthy.                          Even examining the

proposed testimony in light of the parties' arguments, it is

clear the judge did not consider "the time between the event and

the     statement,"        which       plaintiffs            argue      was     "virtually

contemporaneous,"         nor    any    evidence       that     might      illuminate      or

serve   to   discredit      Patricia's           credibility,        all      factors    that

warranted attention.            DeVito, supra, 165 N.J. at 195-96.7

      Indeed, the judge's reasoning boils down to her imposition

of a requirement not present in the applicable rule.                              That is,

the judge determined that "what's untrustworthy and what makes

[the testimony] not fall within a hearsay exception is there is

no    corroborating       evidence      on       any    level      to   establish        what

[Patricia]    said    in    the    phone     call      to    the     individual     in    the




7
 The judge did consider that one witness proposed to testify that
Patricia referred to Connor as a nutritionist instead of what
she was, a bariatric nurse, as suggesting unreliability.
Although this discrepancy may be worthy of consideration when
determining the trustworthiness of the proposed testimony, it
was not sufficiently conclusive to negate the need for a Rule
104 hearing.



                                             9                                     A-2392-13T4
office      and    what       that        individual        said       to    her."8        N.J.R.E.

804(b)(6)         does        not        include        a   corroboration             requirement.

Although "lack of corroboration may affect the weight to be

given" to testimony by the fact-finder, it does not bar its

admission.        Spencer v. Bristol-Meyers Squibb Co., 156 N.J. 455,

466 (1998).        Here, Patricia uttered consistent statements nearly

contemporaneously or within hours of her communication with the

doctor's         staff.             On     their     face        and        in   light      of    the

circumstances, these statements appear trustworthy.                                     They could

not   be    excluded          absent       a    "particularized             finding"      that   they

lacked trustworthiness, which could not be reached without a

Rule 104 hearing.             DeVito, supra, 165 N.J. at 194.

      We     lastly       note       the       so-called     "hearsay            within    hearsay"

problem      cited       by    the       judge     does     not    bar       the    admission       of

statements        attributed         by        Patricia     to    defendant's          staff.      In

fact,      the    circumstance            would     have     been      better       described      as

8
 This reasoning was based in part on the judge's examination of
the notation "[n]o current complaints" inserted in Patricia's
medical chart regarding her November 8 office visit. It is not
clear to us why the judge would exalt a note defendants
unilaterally placed in their file over what the patient
recounted to her husband or others about how she felt and what
she was told after she called the doctor's office to complain of
chest pains.    In other words, defendant's staff memorialized
what transpired with Patricia by making a note in her file;
Patricia memorialized what transpired with defendant's staff by
repeating the advice given to family and friends.     It is not
clear why the former should be viewed as evidence superior to
the latter.



                                                   10                                       A-2392-13T4
"admissible hearsay within hearsay."                   If she was living at the

time of trial, Patricia would have been permitted to recount the

statements of defendant's staff pursuant to N.J.R.E. 803(b)(4),

because those statements were attributed to "[defendant's] agent

or servant concerning a matter within the scope of the agency or

employment, made during the existence of the relationship" and

were "offered against" that party.                 See Spencer, supra, 156 N.J.

at   462;   In    re    Opinion    668    of    the    Advisory    Comm.    on    Prof'l

Ethics, 134 N.J. 294, 300 (1993).                Because Patricia did not live

to recount these conversations in court, the judge was simply

required     to    consider       the    admissibility        of   this     admissible

hearsay through application of N.J.S.A. 804(b)(6).                         See Estate

of Hanges v. Metro Pop. & Cas. Ins. Co., 202 N.J. 369, 375 n.1

(2002) (observing that admissibility of hearsay within hearsay

requires that each level of hearsay have "a separate basis for

admission into evidence"); see also N.J.R.E. 805.

      In    reversing,     we     are    mindful      that   ordinarily     a    judge's

decision to conduct a Rule 104 hearing is discretionary.                              Kemp

v. State, 174 N.J. 412, 432 (2002).                     But the judge could not

exclude the testimony in question without conducting a hearing

to   examine      the    trustworthiness         of    the    hearsay      statements.

Accordingly, to the extent the decision to conduct a Rule 104




                                           11                                    A-2392-13T4
hearing in this instance was discretionary, the judge's refusal

to require the hearing constituted an abuse of discretion.

    The   order   under   review   is   reversed.   We   do   not    retain

jurisdiction.




                                   12                               A-2392-13T4
