Legal Document: Perry Vanita Vs St. Barnabas Medical Center

On April 02, 2019 a MOTION TO RECONSIDER submitted by OLIVERO, DEANNA, ROSE of BRESSLER AMERY & ROSS on behalf of TOMMY PATTEN, ST. BARNABAS MEDICALCENTER, RWJ BARNABAS HEALTH, RWJ BARNABAS HEALTH,INC. against VANITA PERRY, XYZ COMPANY, DEF CORP. 1-5, HARRY HOE 1-5, ABC COMPANY 1-5 ET AL. *LINKED FILING* was filed involving a dispute between Vanita Perry, and Abc Company 1-5, Def Company, Def Corp. 1-5, Harry Hoe 1-5, John Doe 1-5, Ompany Widget Maintenance C, Paul Poe 1-5, Rwj Barnabas Health, Rwj Barnabas Health,Inc., St. Barnabas Medicalcenter, Tommy Patten, Xyz Company, Y Acme Painting Compan, for Personal Injury in the District Court of Essex County.

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MaryJane Dobbs, Esq. — 017121989
Risa D. Rich, Esq. — 024232005
BRESSLER, AMERY & ROSS, P.C.
325 Columbia Tumpike
Florham Park, New Jersey 07932
T: (973) 514-1200
F: (973) 514-1660
E-Mail: mjdobbs@ bressler.com
E-Mail: rrich@ bressler.com
Attomeys for Defendants
Saint Bamabas Medical Center (i/s/a St. Barnabas Medical Center),
RWJ Barnabas Health, RWJ Barnabas Health, Inc., and Thomas Patten
(i/s/a Tommy Patten)
SUPERIOR COURT OF NEW JERSEY
VANITA PERRY , LAW DIVISION —- ESSEX COUNTY
DOCKET NO.: ESX-L-2479-19
Plaintiff,
CIVIL ACTION
vs.

ST. BARNABAS MEDICAL CENTER, RWJ DEFENDANTS’ NOTICE OF MOTION FOR
BARNABAS HEALTH, RWJ BARNABAS RECONSIDERATION
HEALTH, INC., TOMMY PATTEN, ABC
COMPANY 1-5 (fictitious names), JOHN (ORAL ARGUMENT REQUESTED)
DOE 1-5 (fictitious names), PAUL POE 1-5
(fictitious names), WIDGET
MAINTENANCE COMPANY (fictitious
name), ACME PAINTING COMPANY
(fictitious name), DEF COMPANY (fictitious
name), XY Z COMPANY (fictitious name),
DEF CORP. 1-5 (fictitious names), and
HARRY HOE 1-5 (fictitious names),

Defendants.

TO: Lorre Sylvan Smith, Esq.
Marc S. Smith, Esq.
111 Northfield Avenue, Suite 208
West Orange, New Jersey 07052
Attomeys for Plaintiff
Vanita Perry

COUNSEL:
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PLEASE TAKE NOTICE that on Friday, May 12, 2023 at 9:00 a.m., oras soon thereafter

as counsel may be heard, the undersigned, attorneys for Defendants, Saint Bamabas Medical

Center (i/s/a St. Barnabas Medical Center), RWJ Barnabas Health, RWJ Barnabas Health, Inc.,

and Thomas Patten (i/s/a Tommy Patten) (collectively “Defendants”) shall move in the Superior

Court of New Jersey, Law Division, Essex County at the Courthouse in Newark, New Jersey, for

Order granting Defendants’ motion for reconsideration of the Court’s Order dated April 6, 2023

denying Defendants’ motion for a protective order to limit discovery and granting Plaintiffs cross-

motion to compel production of certain documents with regard to surveillance;

PLEASE TAKE FURTHER NOTICE that in support of this motion Defendants shall

rely upon the Certification of MaryJane Dobbs, Esq. and Brief being submitted herewith; and

PLEASE TAKE FURTHER NOTICE that oral argument of this motion is requested;

and

PLEASE TAKE FURTHER NOTICE that the discovery end date in this matter was

October 28, 2022; and

PLEASE TAKE FURTHER NOTICE that an arbitration is scheduled for July 11, 2023;

and

PLEASE TAKE FURTHER NOTICE that a trial date has not yet been set for this matter;

and

PLEASE TAKE FURTHER NOTICE that a proposed form of Order is being submitted

herewith.

BRESSLER, AMERY & ROSS, P.C.
Attomeys for Defendants

- 1g LC
By:
MaryJane Dobbs
DATED: April 26, 2023
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CERTIFICATION OF SERVICE

Thereby certify that on this date I caused Defendants’ Notice of Motion for Reconsideration

of the Court’s April 6, 2023 Order, Certification of MaryJane Dobbs, Esq., Brief, and proposed

form of Order to be filed with the Superior Court of New Jersey, Law Division, Essex County via

eCourts.

I further certify that a courtesy copy of same was served via First-Class Mail to the

Honorable Russell J. Passamno, J.S.C., Essex County Superior Court, Historic Courthouse, 470

Martin Luther King, Jr. Boulevard, Newark, New Jersey 07102.

fp 0 LC o—

MaryJane Dobbs

Dated: April 26, 2023
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MaryJane Dobbs, Esq. — 017121989
Risa D. Rich, Esq. — 024232005
BRESSLER, AMERY & ROSS, P.C
325 Columbia Turnpike
Florham Park, New Jersey 07932
T: (973) 514-1200
F: (973) 514-1660
E-Mail: mjdobbs@bressler.com
E-Mail: rrich@bressler.com
Attorneys for Defendants
Saint Barnabas Medical Center (i/s/a St. Barnabas Medical Center),
RWJ Barnabas Health, RWJ Barnabas Health, Inc., and Thomas Patten
(i/s/a Tommy Patten)

SUPERIOR COURT OF NEW JERSEY
VANITA PERRY, LAW DIVISION — ESSEX COUNTY
DOCKET NO.: ESX-L-2479-19
Plaintiff,
VS. CIVIL ACTION

ST. BARNABAS MEDICAL CENTER, RWJ
BARNABAS HEALTH, RWJ BARNABAS ORDER GRANTING MOTION FOR
HEALTH, INC., TOMMY PATTEN, ABC RECONSIDERATION
COMPANY 1-5 (fictitious names), JOHN
DOE 1-5 (fictitious names), PAUL POE 1-5
(fictitious names), WIDGET
MAINTENANCE COMPANY (fictitious
name), ACME PAINTING COMPANY
(fictitious name), DEF COMPANY (fictitious
name), XYZ COMPANY (fictitious name),
DEF CORP. 1-5 (fictitious names), and
HARRY HOE 1-5 (fictitious names),

Defendants.

THIS MATTER having been opened to the Court upon the motion of Bressler, Amery &

Ross, P.C., attorneys for Defendants, Saint Barnabas Medical Center (i/s/a St. Barnabas Medical

Center), RWJ Barnabas Health, RWJ Barnabas Health, Inc., and Thomas Patten (i/s/a Tommy
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Patten) (collectively “Defendants”) and the Court having considered the submissions of the parties,

and for good cause having been shown;

IT IS, on this day of , 2023,
ORDERED that Defendants’ motion for reconsideration be, and the same hereby is,

granted; and it is

FURTHER ORDERED that Plaintiff is not entitled to any surveillance reports submitted

to Defendants or their Counsel; and it is

FURTHER ORDERED that Plaintiff is not entitled to any surveillance file maintained by

American Security International Investigations, Inc. or any other individual and/or entity who

surveilled Plaintiff on this matter, including but not limited to all background information,

correspondence, notes and draft reports; and it is

FURTHER ORDERED that if Plaintiff takes the deposition of any of the persons who

conducted surveillance, the questions are limited to the surveillance footage and shall not be related

to any surveillance reports submitted to Defendants or their Counsel; and it is

FURTHER ORDERED that a copy of this Order shall be deemed served upon the

uploading of this Order on eCourts.

MOTION:

Opposed

Unopposed
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VANITA PERRY , SUPERIOR COURT OF NEW JERSEY
LAW DIVISION — ESSEX COUNTY
Plaintiff, DOCKET NO.: ESX-L-2479-19
vs.
CIVIL ACTION
ST. BARNABAS MEDICAL CENTER, RWJ
BARNABAS HEALTH, RWJ BARNABAS
HEALTH, INC., TOMMY PATTEN, ABC CERTIFICATION OF
COMPANY 1-5 (fictitious names), JOHN DOE MARYJANE DOBBS ESQ.
1-5 (fictitious names), PAUL POE 1-5
(fictitious names), WIDGET MAINTENANCE
COMPANY (fictitious name), ACME
PAINTING COMPANY (fictitious name), DEF
COMPANY (fictitious name), XYZ
COMPANY (fictitious name), DEF CORP. 1-5
(fictitious names), and HARRY HOE 1-5
(fictitious names),

Defendants.

I, MaryJane Dobbs, of full age, hereby certifies as follows:

1 Tam an attomey-at-law of the State of New Jersey and a Principal with the law firm

of Bressler, Amery & Ross, P.C., attorneys for Defendants Saint Barnabas Medical Center (i/s/a

St. Bamabas Medical Center), RWJ Bamabas Health, RWJ Barnabas Health, Inc., and Thomas

Patten (i/s/a Tommy Patten) (collectively “Defendants”).

2 I submit this Certification in support of Defendants’ Motion for Reconsideration.
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3 After this litigation was filed, investigators were used for surveillance.

4 By letter dated October 28, 2022, Defendants identified the surveillance videos and

photographs of Plaintiff that Defendants procured and the dates of the films. (Ex. A.).

5. On or about November 16, 2022, Plaintiff filed a motion to bar the surveillance

videos and to bar the Defendants’ surveillance expert from testifying. (Ex. B).

6 On or about December 16, 2022, the Court denied Plaintiff's motion and ordered

Defendants to produce the surveillance footage and also to produce for deposition certain persons

from Atlantic Security Intemational Investigations, Inc. (Ex. C).

7 On or about January 6, 2023, Defendants produced the surveillance footage. (Ex.

D)
8 On or about March 3, 2023, Defendants received a Deposition Notice and

Document Demand for the Custodian of Records of Atlantic Security International Investigations,

Inc. for March 22, 2023 and a deposition notice for the persons, investigators and representatives

of Atlantic Security International Investigations, Inc. who conducted surveillance of Plaintiff for

April 5, 2023. (Ex. E).

9 On or about March 8, 2023, Defendants advised Plaintiff's Counsel that a motion

objecting to the Notice to Take Oral Depositions/Notice to Produce Documents directed at the

Custodian of Records of Atlantic Security International Investigations, Inc. would be filed. (Ex.

F)
10. On or about March 15, 2023, Defendants filed the aforementioned motion for a

protective order pursuant to R. 4:10-3. (Ex. G).

11. On or about March 23, 2023, Plaintiff filed a cross-motion for a protective order.

(Ex. H).
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12. On April 6, 2023, the Court entered an Order denying Defendants’ motion and

partially granting Plaintiffs cross-motion with regard to the production of certain records. (Ex. I).

This Order is the subject of the present motion for reconsideration.

13. Attached hereto as ExhibitJ is a true and accurate copy of the opinion in Gallo v.

Starland Realty, LLC, 2014 NJ. Super. Unpub. LEXIS 2665 (Ch. Div. Oct. 31, 2014).

14. Attached hereto as Exhibit K is a true and accurate copy of the opinion in Cruz-

Sosa v. Newport Ctr. Mall, 2022 N.J. Super. Unpub. LEXIS 129 (App. Div. Jan. 28, 2022).

15. Pursuant
to R. 1:36-3, I am unaware of any contrary opinions.

I certify that the foregoing statements by me are true. If any statement is willfully false, I

am aware that I am subject to punishment.

Pry Ditb—
MaryJane Dobbs

Dated: April 26, 2023
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yn Bressler
AMERY & ROSS
325 Columbia Turnpike
Suite 301
Florham Park, NJ) 07932
Tel: 973.54.200
Fax: 973.514.1660
A PROFESSIONAL CORPORATION
Mary] ane Dobbs, Esq Direct: 973.966.9682
Principal Email: mjdobbs@bressler.com

April 26, 2023

By E-Courts and First-Class Mail

Honorable RusselJ. Passamano, J.S.C
Essex County Superior Court
Historic Courthouse
470 Martin Luther King Jr. Blvd., 2" Floor
Newark, New Jersey 07102

Re: Vanita Perry v. Saint Barnabas Medical C enter, etal.
Docket No. ESX -L-2479-19

Dear Judge Passamano

This office represents Defendants Saint Barnabas Medical Center (i/s/a St. Barnabas

Medical Center), RWJ Barnabas Health, RWJ Bamabas Health, Inc. and Thomas Patten (i/s/a

Tommy Patten) (collectively Defendants”) in connection with the above-referenced matter.

Please accept this letter brief in lieu of a more formal submission in support of Defendants’ motion

for reconsideration as to the Court’s Order regarding discovery as to the surveillance of Plaintiff

conducted in this case dated A pril 6, 2023. Because Plaintiff is only entitled to the surveillance

videos (which have been produced fully) and nothing more, this Court’s Order granting Plaintiff

access to surveillance reports, communications with counsel, notes, draft etc. must be revisited and

denied. The information Plaintiff seeks is protected by the attorney client and work product

privileges. The disclosure of surveillance videos does not entitle Plaintiff to anything more under

well-established New Jersey law.

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db Bressler
AMERY & ROSS

Honorable Russell J. Passmano, J.S.C.
April 25, 2023
Page 2

STATEMENT OF FACTS RELEVANT TO MOTION

This matter arises from Plaintiffs claim that she was injured by the allegedly negligent

operation of heavy equipment while standing in a hallway at Saint Barnabas Medical Center. A fter

this litigation was filed, investigators were used for surveillance. Specifically, Defendants retained

the services of Atlantic Security International Investigations, Inc. (“ASIII”) to conduct surveillance

on Plaintiff. By letter dated October 28, 2022, Defendant identified the surveillance videos and

photographs of Plaintiff that Defendant procured and the dates of the films. (Dobbs Cert. Ex. A).

On November 16, 2022, Plaintiff filed a motion to bar the surveillance videos and to bar the

Defendants’ surveillance expert from testifying. (Dobbs Cert. Ex. B). On December 16, 2022, the

Court denied Plaintiff's motion and ordered Defendants produce the surveillance footage and also

produce for deposition such persons from A SIII. (Dobbs Cert. Ex. C).

In compliance with the Court Order, Defendants produced the surveillance footage on

January 6, 2023. (Ex. D). On March 3, 2023, Defendants received a Deposition Notice and

Document Demand for the Custodian of Records of Atlantic Security International Investigations,

Inc. for March 22, 2023, and a deposition notice for the persons, investigators and representative

of ASIII who conducted surveillance of Plaintiff for April 5, 2023. (Dobbs Cert. Ex. E). Shortly

thereafter, on March 8, 2023, Defendants advised Plaintiff's Counsel that a motion objecting to

the Notice to Take Oral Depositions/Notice to Produce Documents directed at the Custodian of

Records of ASIII would be filed. (Dobbs Cert. Ex. F). On March 15, 2023, Defendants filed the

aforementioned motion for a protective order. (Dobbs Cert. Ex. G). On March 23, 2023, Plaintiff

filed a cross-motion for a protective order. (Dobbs Cert. Ex. H).

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yd Bressler
AMERY & ROSS

Honorable Russell J. Passmano, J.S.C
April 25, 2023
Page 3

On April 6, 2023, the Court entered an Order denying Defendants’ motion and partially

granting Plaintiffs cross-motion with regard to the production of certain records. (Dobbs Cert. Ex.

I). The April 6, 2023 Order (the “Order’) is the subject of this motion for reconsideration.

LEGAL ARGUMENT

POINT I

THIS COURT SHOULD RECONSIDER PLAINTIFF’S
DISCOVERY DEMANDS AS THEY VIOLATE THE
ATTORNEY-CLIENT PRIVILEGE AND ATTORNEY
WORK PRODUCT DOCTRINE BY SEEKING
INFORMATION AND DOCUMENTS THAT ARE
ABSOLUTELY IMMUNE FROM DISCLOSURE.

It is long settled that the “mental impressions, conclusions, opinions, or legal theories of

an attomey or other representative of a party concerning the litigation” are absolutely immune

from discovery. See Jenkins v. Rainner, 69 NJ. 50, 54-55 (1976); Memick v. McCutchen, 442

NJ. Super. 196 (App. Div. 2015); N.J. Ct. R. 4:10-2. The attommey-client and attorney work product

privileges extend to private investigators retained by attorneys. See Gallo v. Starland Realty, LLC,

2014 NJ. Super. Unpub. LEXIS 2665, *13-*14 (Ch. Div. Oct. 31, 2014) (citing Rivard v.

American Home Products, 391 N.J. Super. 129, 154 (App. Div. 2007); Torraco v. Torraco, 236

NJ. Super. 500, 502 (Ch. Div. 1989); Paff v. Director, Office of Attomey Ethics, 399 N.J.Super.

632, 647 (Law Div. 2007) (reports prepared by OAE investigators for use by OAE attorneys are

privileged work product as well as their communications); Paladino v. Auletto, 459 NJ. Super.

365, 377 (App. Div. 2019) (statements made to investigator protected by work product doctrine.)

“The attorney-client privilege includes confidential communications between a party and a private

investigator who acts as either the agent of the party or an agent of the party’s counsel and renders

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yb Bressler
AMERY & ROSS

Honorable RussellJ. Passmano, J.S.C
April 25, 2023
Page 4

services on behalf of the party.” Gallo, 2014 N.J. Super. Unpub. LEXIS 2665, at*14. The fact that

investigators and/or representatives may serve as witnesses at trial in this matter does not destroy

the protections afforded by the attomey-client and attorney work product privileges to the

investigator’s communications and documents created in the context of the investigation. As the

court in Gallo explained:

An expert may be both a prospective witness in a case and trial strategy consultant.
As experts and private investigators are both considered agents of counsel, it
follows that communications from private investigators who serve as witnesses in
a case and as investigative consultants are still protected by the attorney-client
privilege as long as those communications are not specifically at issue in the case.

Gallo, 2014 NJ. Super. Unpub. LEXIS 2665, at *16

In Jenkins v. Rainner, 69 N.J. 50, 60 (1976), the New Jersey Supreme Court made clear

that surveillance video of a party constitutes work product and is protected by New Jersey law

The Court, however, carved out a small exception for the actual surveillance video and permitted

the production of the video as long as Plaintiff consented to be deposed after the video was taken

and prior to its production. Id. The Court allowed for this exception because surveillance video

is “unique”, “concrete” and cannot be recreated. Id. at 475, 477. The production pretrial also

protects against the surprise “which results from distortion of misidentification” and the delay at

trial which could ensue if attacks are made as to the integrity of the video. Id. at 57-58. As to the

request that the investigator who took the video be produced for deposition “to answer all questions

propounded of him at the depositions. the Court rejected the broad demand and found that the

investigator could be produced for deposition but only for “the circumstances of the filming.” Id.

at 59. The investigator could only be asked questions as to the “time or times the movies were

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db Bressler
AMERY & ROSS

Honorable Russell J. Passmano, J.S.C
April 25, 2023
Page 5

taken, how long the surveillance continued, what plaintiff was doing, who was present, how many

reels of film resulted ...and the like.” The Court did not direct that reports, notes, and/or

communications with counsel etc., be produced. See also Memick v. McCutchen, 442 NJ. Super.

196, 204 (App. Div. 2015) (holding that surveillance video is produced only after Plaintiff consents

to a second deposition as to damages); Torraco v. Torraco, 236 N.J. Super. 500, 503 (Ch. Div.

1989) (holding that the investigator of a party could not be deposed as he is acting as an agent of

the attorney and is protected by the work product privilege.)

The disclosure of the videos does not constitute a waiver of any privilege either. Neither

Memick nor Jenkins finds any waiver. In addition, New Jersey has long protected communications

between counsel and experts even when an expert report is produced in discovery. See R. 4:17-4

(e) (“Except as herein provided, the communications between counsel and expert deemed trial

preparation material pursuant to R. 4:10-2(d)(1) may not be inquired into.”). R. 4:17-4 (d) (1)

provides that collaborative communications with experts are privileged as well.

The idea that Plaintiff and her counsel should have unfettered access to the

communications, reports, notes, logs, etc., regarding the investigation of this matter is well beyond

the scope of the disclosures contemplated by the Supreme Court in Jenkins. Plaintiff is not entitled

to review or inquire about any of that information or those documents as they are absolutely

immune from disclosure under the applicable court rules and long-established case law in this

jurisdiction. See R. 4:10-2(c). There is no reason why Plaintiff needs the information requested

as the production of the video satisfies Plaintiff's allegation that the evidence cannot be recreated.

If Plaintiff wants to proceed with the deposition of the film makers of the videos here, the

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AMERY & ROSS

Honorable Russell J. Passmano, J.S.C
April 25, 2023
Page 6

depositions can be arranged by Defendants, but they must be limited to the circumstance of the

filming and nothing more. Who the investigators spoke with, reports they drafted, and any other

information is not discoverable.

On April 6, 2023, this Court entered an Order that gives Plaintiff access to all reports,

communications, notes, etc. as to the surveillance conducted. Jenkins does not permit the breadth

of discovery that Plaintiff seeks. Rather, it carves out a small exception for the production of video,

which has been fully produced in this case.

POINT II

PLAINTIFF HAS NOT DEMONSTRATED ANY NEED FOR
ANYTHING OTHER THAN THE VIDEOS.

R. 4:10-2 (c) states:

(c) Trial Preparation; Materials. Subject to the provisions of R. 4:10-2(d), aparty
may obtain discovery of documents, electronically stored information, and tangible
things otherwise discoverable under R. 4:10-2(a) and prepared in anticipation of
litigation or for trial by or for another party or by or for that other party’s
representative (including an attorney, consultant, surety, indemnitor, insurer or
agent) only upon a showing that the party seeking discovery has substantial need
of the materials in the preparation of the case and is unable without undue hardship
to obtain the substantial equivalent of the materials by other means. In ordering
discovery of such materials when the required showing has been made, the court
shall protect against disclosure of the mental impressions, conclusions, opinions, or
legal theories of an attomey or other representative of a party concerning the
litigation.

For Plaintiff to obtain the information she seeks outside of the videos, she must show a substantial

need for the discovery and demonstrate that she is unable, without undue hardship, to obtain the

substantial equivalent of the materials. Carbis Sales, Inc. v. Eisenberg, 397 N. J. Super 64, 82

(App. Div. 2007). This showing was not made by Plaintiff in her application to the Court at any

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db Bressler
AMERY & ROSS

Honorable Russell J. Passmano, J.S.C
April 25, 2023
Page 7

time. Except for wanting them, there is no reason why Plaintiff needs “correspondence, notes and

draft reports.” Plaintiff also does not need “background information.” Plaintiff should know her

own personal history. None of the requested material is necessary.

There is also no need fora privilege log asit is clear that all the surveillance is for litigation

purposes and except for the videos, all records and documents are privileged. Courts do not require

privilege logs for communication that Counsel and clients have with experts and investigators

during the course of a litigation. If that were the case, Plaintiff should have provided a privilege

log long ago as to all the communications her Counsel has had with any of her experts. However,

should this Court warrant a privilege log to further address this issue, Defendants can provide one.

POINT III

DEFENDANTS’ MOTION FOR RECONSIDERATION
SHOULD BE GRANTED.

A motion for reconsideration pursuant to R. 4:42-2 may be granted in the trial court’s

discretion and in the interests of justice. The Rule provides, in relevant part:

... [A]ny order or form of decision which adjudicates fewer than all the claims as
to all the parties shall not terminate the action as to any of the claims, and it shall
be subject to revision at any time before the entry of final judgment in the sound
discretion of the court in the interest of justice. To the extent possible, application
for reconsideration shall be made to the trial judge who entered the order.

R. 4:42-2(b).

Motions for reconsideration under this Rule only apply to interlocutory orders, as opposed

to R. 4:49-2, which applies to motions seeking reconsideration for final orders and judgments. See

Lawson v. Dewar, 468 NJ. Super. 128, 134 (App. Div. 2021). Indeed, the Appellate Court in

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). Bressler
Pr AMERY & ROSS

Honorable Russell J. Passmano, J.S.C
April 25, 2023
Page 8

Lawson strongly emphasized that pursuant to R. 4:42-2, a motion for reconsideration does not

require a showing that the challenged order was, we palpably incorrect,’ ‘irrational,’ or based on a

misapprehension or overlooking of significant material presented on the earlier application, a S

required forR. 4:49-2. Id. at 135. R. 4:42-2 is liberally construed as New Jersey Courts consistently

hold that, “until the suit ends, a trial court ‘has complete power over its interlocutory orders and

may revise them when it would be consonant with the interests of justice to do so.”” Id. (citing

Lombardi v. Masso, 207 NJ. 517, 536 (2011) and Johnson v. Cyklop Strapping Corp., 220 NJ.

Super. 250, 257-59 (App. Div. 1987)); see also Cruz-Sosav. Newport Ctr. Mall, 2022 NJ. Super.

Unpub. LEXIS 129, at *4 (App. Div. Jan. 28, 2022) (“While it is true that... R. 4:42-2 was not
intended to encourage “frivolous, vexatious or merely repetitious” reconsideration motions,

even the undesirability of repetitious motions should not preclude a judge from reaching a correct

resolution of the issues.”) (citing Lawson, 468 N.J. Super. at 136-37.) In Lombardi, the court found

that there is “nothing in our law that would require” the trial judge be confined to the original

record. Id. The Court further emphasized that a trial judge 1G
Ss entitlement to change a prior ruling

in the interests of justice is what distinguishes an interlocutory order from a final judgment.” Id.

The Appellate Court welcomes reconsideration motions that “argue in good faith a prior

mistake, a change in circumstances, or the court’s misappreciation of what was previously argued,”

as such motions “present the court with an opportunity to either reinforce and better explain why

the prior order was appropriate or correct a prior erroneous order.” Lawson, 468 N.J. Super. at

136. Given this flexible standard, Defendants submit that reconsideration is warranted as the Order

is too broad and if enforced, would create a chilling effect on all litigants as to the use of

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). Bressler
Pr AMERY & ROSS

Honorable Russell J. Passmano, J.S.C
April 25, 2023
Page 9

investigators and surveillance. The production of surveillance video does not entitle a Plaintiff to

pierce the attorney client or work product privileges. To do so would tum well established New

Jersey law on the sanctity of the use of investigators upside down.

CONCLUSION

For all of the foregoing reasons, reconsideration should be granted, and Plaintiff are entitled

to nothing more than the videos.

Respectfully submitted,

BRESSLER, AMERY & Ross, P.C.

Pip Ditb—
MaryJane Dobbs

MJD/DRO:aw

ALABAMA dk FLORIDA «A NEW JERSEY iA NEW YORK dA NORTH CAROLINA dA TEXAS dA WASHINGTON,
DC
ESX-L-002479-19 04/26/2023 9:44:37 AM Pglof3 Trans ID: LCV20231370360

EXHIBITA
ESX-L-002479-19 04/26/2023 9:44:37 AM Pg2of3 Trans ID: LCV20231370360

Dn Bressler
325 Columbia Turnpike
Suite 301
Florham Park, NJ 07932
Tel: 973.514.1200
AMERY & ROSS Fax: 973.514.1660
A PROFESSIONAL CORPORATION
Risa D. Rich Direct: 973.245.0673
Counsel Email: rrich@bressler.com

October 28, 2022

Via E-Mail
Lorre Sylvan Smith, Esq.
Marc S. Smith, Esq.
Lorre Sylvan Smith — Counsellors at Law
111 Northfield Avenue, Suite 208
West Orange, New Jersey 07052

Re: Vanita Perry v. St. Barnabas Medical Center, et al
Docket No. ESX-L-2479-19

Dear Messrs. Smith and Smith:

Defendants, Saint Barnabas Medical Center, RWJ Barnabas Health, RWJ Barnabas Health.
Inc., and Thomas Patten (collectively “SBMC”), hereby amend their written discovery responses
to disclose the existence of photographs and video of Plaintiff Vanita Perry pursuant to a
surveillance investigation conducted by Atlantic Security International Investigations. Inc
conducted on the following dates:

9/15/22, 9/25/22, 10/7/22, 10/14/22, 10/15/22, 10/16/22, 10/21/22, 10/23/22

Further, there is static camera imaging from the following dates

10/14/22, 10/15/22, 10/21/22

In addition, Defendants hereby identify the investigators of Atlantic Security International
Investigations, Inc. who conducted the surveillance investigation as potential witnesses who may
be called to testify at the time of trial.

Copies of the surveillance video and images can be furnished upon request

Pursuant to R. 4:17-7, I hereby certify that the foregoing discovery amendment could not
be provided on any earlier date. The information requiring this amendment was not reasonably
available or discoverable by the exercise of due diligence twenty (20) days prior to the end of the
discovery period.

NEW JERSEY A NEWYORK A ALABAMA A FLORIDA A NORTH CAROLINA A TEXAS A WASHINGTON, D.C.
ESX-L-002479-19 04/26/2023 9:44:37 AM Pg3o0f3 Trans ID: LCV20231370360

) Bressler
AMERY & ROSS

October 28, 2022
Page 2

If this form of amendment is not acceptable, please so advise within seven (7) days. Absent
objection, this discovery amendment will be deemed appropriate for all purposes related to this
action.

Very truly yours,

Ladle
BRESSLER, AMERY & Ross, P.C.

Risa D. Rich

RDR/aw

NEW JERSEY A NEWYORK A ALABAMA A FLORIDA A NORTH CAROLINA A TEXAS A WASHINGTON, D.C.
ESX-L-002479-19 04/26/2023 9:44:37 AM Pglof3 Trans ID: LCV20231370360

EXHIBITB
ESX-L-002479-19 04/26/2023 9:44:37 AM Pg2of3 Trans ID: LCV20231370360

LORRE SYLVAN SMITH, ESQ.
111 NORTHFIELD AVENUE - SUITE 208
WEST ORANGE, NJ 07052
(973) 325-1600
Attomey for Plaintiff
Attomey ID#103431977

Vanita Peny, SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: ESSEX COUNTY
Plaintiff(s) DOCKET NO: ESX-L-2479-19

vs.

NOTICE OF MOTION TO BAR
Cooperman Bamabas Medical SURVEILLANCE VIDEOS AND TO BAR
Center, DEFENDANT’S SURVEILLANCE EXPERT
FROM TESTIFYING OR IN THE
Defendant(s) ALTERNATIVE TO REOPEN DISCOVERY
FOR NINETY (90) DAYS

TO Risa Rich, Esq.
Bressler Amery & Ross
325 Columbia Turnpike - Suite 301
Florham Park, NJ 07932

PLEASE TAKE NOTICE that on Friday, 12/2/2022, at 9:00 AM in the forenoon, or as

soon thereafter as counsel may be heard, the undersigned shall apply to such Judge as may be

sitting hearing motions at the Superior Court of New Jersey, Law Division, Essex County, at the

Courthouse in Newark, New Jersey, for an Order Barring the use of Surveillance Videos and

Photographs at Trial and barring Defendant’s surveillance experts from testifying, OR IN THE

ALTERNATIVE, Reopening Discovery for Ninety (90) Days. In support of the within

application, the undersigned shall rely upon the annexed Certification. Please take further notice

that the within Motion is submitted under Rule 1:6-2 and a form of Order, together with a

checklist is attached. The opposing parties are requested to make any opposition to the relief

sought in writing within eight (8) days prior to the return date.
ESX-L-002479-19 04/26/2023 9:44:37 AM Pg3of3 Trans ID: LCV20231370360

Pursuant to Rule 1:6-2(d), the movant:

(x) Waives oral argument and consents to disposition on the papers, unless opposition
is filed.
() Does not request oral argument at this time.
() Requests oral argument, pursuant to Rule 1:6-2(c), for the following reasons:

CERTIFICATION

I certify that the original of the within Notice of Motion has been filed with the County Clerk,
and that true copies have been served on all parties, as required by the Rules of Court.

I certify that:

QO I have attempted, unsuccessfully, to reach an amicable resolution of the issues
raised by this Motion.

QO Ihave, in good faith, attempted unsuccessfully to confer with the opposing
party(ies) regarding the issues raised by this Motion.

(X) The issues raised by this Motion are required to be addressed to and decided by
the Court.

Date of Pre-Trial Conference: None
Date of Calendar Call: None
Date of Trial: None

Date: November 16, 2022 a
Mare S. Smath
MARC S. SMITH, ESQ.
Attorney for Plaintiff
ESX-L-002479-19 04/26/2023 9:44:37 AM Pglof3 Trans ID: LCV20231370360

EXHIBITC
ESX-L-002479-19 04/26/2023 9. BLAM 29,20 f3
7
Trans ID: LCV20231370360
Hans 10 LUVZUZ23959116

—
LORRE SYLVAN SMITH, ESQ.
111 NORTHFIELD AVENUE - SUITE 208
WEST ORANGE, NJ 07052 5
(973) 325-1600
Attorney for Plaintiff
Attorney ID# 103431977

Vanita Perry,
SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: ESSEX COUNTY
Plaintiff(s) DOCKET NO: ESX-L-2479-19
vs.

Cooperman Barnabas Medical ORDER
Center,

Defendant(s)

This matter having come before the Court on the applic
ation of MARC S. SMITH, ESQ.,
attorney for the plaintiff, and the Court having consi and thecoust
dered the application of counselVand for ee in)
good cause having been shown; tis
dey issued it
wre
IT IS on this Lot chy of Decenber 2022, Opratan,
the mohon te! bar
ORDERED thay efendant is-barred from using the surveillance condu
cted by Atlantic Security
aad De
International Investigations, Inc. at trial; itis-further
-ORDERED that the witnesses from Atlantic Security
International Investigations, Inc. are-
-barred. from testifying at trial; js den real | ad Hs fur ther

ck, Slell oe erourde =
ORDERED thar d-it-is-
3

ee WE
R D
the Sur ane lace eujdace ad shell pe tice wr
ry a
ck pesithan fy : gee rf Fro nm ee Secuci y Dattrag hone l,
mplet ftfil iefF Adtlantie-Si
+3
ie
arity } tional,
‘Ine. with decumets nee Geshe gvested pl4
.
sebject
$ oo pe
459 any ch is
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Defardac shall wake ageed ith &
may ae ke
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the pesers go thet fe ac bi
past ath'en
45 sche dal led, TF te
a
Lee
ons Can\n2 a be
Sdatlee bow! Pe Noe, P lads KFF ls conse [ shell 5¥
EDX 00247919, 04/26/2023 9:40:37 AM Fg 3 0f3 Hane
Trans ID: LCV20231370360
tw. LuveuezoguT It

an orcer urcler te five (s) day rule with « alte
Ceette ky vy wh m4 dt a de oe ees ad

A stigations;_inc-te-be
edi vurniny ar on

ob db M

js
international investigations, tnc~fail

Stun C7)
ORDERED that a copy of this Order is to be served upon all counsel within ten-40) days of the

date hereof.

/
wa Oppose Russell 7 Preseli, Tee
Un0p pose
ESX-L-002479-19 04/26/2023 9:44:37 AM Pglof2 Trans ID: LCV20231370360

EXHIBITD
ESX-L-002479-19 04/26/2023 9:44:37 AM Pg2of2 Trans ID: LCV20231370360

»W~ Bressler
325 Columbia Turnpike
Suite 301
Florham Park, NJ 07932
Tel: 973.514.1200
AMERY & ROSS Fax: 973.514.1660
A PROFESSIONAL CORPORATION
Risa D. Rich Direct: 973.245.0673
Counsel Email: rrich@bressler.com

Case Info

Judge

Russell J Passamano Track Judge’s New Case

Case No.

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Document Filed Date

April 26, 2023

Case Filing Date

April 02, 2019

County

Parties

Abc Company 1-5 Defendant
Abc Company 1-5 Defendant
Def Company Defendant
Def Company Defendant
Def Corp. 1-5 Defendant
Def Corp. 1-5 Defendant
Harry Hoe 1-5 Defendant
Harry Hoe 1-5 Defendant
John Doe 1-5 Defendant
John Doe 1-5 Defendant
L S Smith Attorney for the Plaintiff
Mary Jane Mc Nicholas Dobbs Attorney for the Defendant
Ompany Widget Maintenance C Defendant
Paul Poe 1-5 Defendant
Paul Poe 1-5 Defendant
Rwj Barnabas Health Defendant
Rwj Barnabas Health,Inc. Defendant
St. Barnabas Medicalcenter Defendant
Tommy Patten Defendant
Vanita Perry Plaintiff
Xyz Company Defendant
Xyz Company Defendant
Y Acme Painting Compan Defendant
Marc Segal Attorneys for Plaintiffs

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Document for Perry Vanita Vs St. Barnabas Medical Center

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