CORRUPT DEFEAT OF NEW JERSEY'S CONSCIENTIOUS EMPLOYEE PROTECTION ACT

Preliminary Statement

This is an employment case regarding the violation of the Conscientious Employee Protection Act (NJSA 34:19-1 et seq). A trial was held regarding this case 18 January 2006, and a jury ruled in favor of appellant. However appellant, a registered nurse who was representing himself in his first trial, did not introduce evidence of monetary losses at the appropriate time during the course of the trial therefore the jury was not permitted to award compensation for attorney fees, legal fees, lost wages, and benefits. Because of the absence of an award of compensatory damages punitive damages could not be awarded. A nominal $3500 was awarded to appellant, but appellant’s losses are significant. In addition, the evidence in this case overwhelmingly supports the allegation that respondents retaliated against appellant, because of appellant’s whistle blowing, by staging a morphine theft that was attributed to him which resulted in his immediate suspension; punitive damages are therefore clearly justified.

This case also demonstrates that three Ocean County Superior Court judges shielded respondents regarding their criminal culpability of staging the morphine incident. Judge Edward Oles first granted Summary Judgment against appellant, and completely concealed favorable evidence to appellant and completely concealed damaging evidence to respondents (see Oles’ written opinion, Appellant 1a-8a). Assignment Judge Eugene Serpentelli also covered up the evidence of respondents’ criminal activity in this case, and refused to order a stonewalling Ocean County Prosecutor to bring the evidence to the attention of a grand jury. And the trial judge in this case, who is Serpentelli’s subordinate Frank Buczynski, deceptively omitted from the jury verdict form a major and relevant question regarding the staging of the morphine incident. Buczynski’s bias in this case is proven beyond a reasonable doubt herein via his statements and actions on record, and his actions are suggested to be the basis for granting appellant a new trial:

  1. Buczynski ignored the legislative intent of CEPA regarding compensatory and punitive damages to a successful plaintiff;
  2. Buczynski deliberately prevented the jury from addressing respondents’ guilt of staging the morphine incident of 7 January under appellant’s PIN, and therefore committed a reversible error regarding the establishment of a legal element.

PROCEDURAL HISTORY

Appellant filed a 15-Count Complaint against CMC and the Saint Barnabas Health Care System in July 2001 (Appellant 75a-82a). Thereafter respondents filed a Motion to Partially Dismiss in October 2001, and in January 2002 trial court Judge Edward Oles dismissed with prejudice the First, Sixth, Seventh, Eighth, Ninth, Tenth, and Twelfth Counts of the Complaint, and dismissed with prejudice shortly thereafter the Fifth and Fourteenth Counts. Respondents filed their answer in February 2002 (Appellant 83a-90a).

On 24 October 2003 appellant did not oppose dismissal with prejudice of Counts Two, Three, Eleven, Thirteen, and Fifteen. In a decision dated 27 October 2003 Judge Oles granted respondents’ motion for Summary Judgment regarding the remaining Counts One and Four of the Complaint, which addressed the violation of the Conscientious Employee Protection Act (CEPA), on the grounds that appellant did not establish pretext for his termination and did not establish a causal link between his whistle-blowing and his termination (see written opinion, Appellant 1a-8a).

In a ruling dated 6 May 2006 the Appellate Division set aside the granting of Summary Judgment and remanded the case for further proceedings (written opinion, Appellant 14a-35a).

Appellant moved before the Appellate Court for a change of venue out of Ocean County which was denied in an order dated 27 June 2005 (Appellant 65a). Appellant subsequently requested the New Jersey Supreme Court to grant not only a change of venue but also to address irrefutable evidence of judicial corruption as well as the corruption of the Advisory Committee for Judicial Conduct; that motion was of course denied in an order dated 7 September 2005 (Appellant 66a). Appellant had previously moved before Ocean County Assignment Judge Eugene Serpentelli for a change of venue; that motion also of course was denied by Serpentelli’s subordinate Judge Francis Buczynski in an order dated 22 July 2005(Appellant 67a).

A trial was held in Ocean County Superior Court on 18 January 2006, and a jury on 2 February decided in favor of appellant regarding his claim that respondents violated CEPA; the final order of judgment is dated 24 February 2006 (Appellant 63a). However appellant, acting pro se in his first trial, unknowingly failed to enter at the appropriate time during trial evidence of his monetary losses; compensatory damages could therefore not be awarded, and by extension punitive damages could also not be awarded. Appellant notified trial judge Buczynski on the last day of trial of his intent to appeal the verdict, however one month later on 3 March 2006, when oral arguments were to be heard in support of an abbreviated transcript for the appeal Buczynski invited appellant to move for a new trial on the grounds that, in Buczynski’s words, appellant received no compensatory damages; however a twenty day window had already closed for granting such a motion and therefore the motion for a new trial was denied on that basis on 31 March 2006 (Appellant 74a).

STATEMENT OF FACTS

Appellant David Miller began his employment as a staff nurse at Community Medical Center (hereinafter CMC) in Toms River, NJ on 11 June 1991.

On 21 November 2000 appellant registered a complaint with the New Jersey State Department of Health and Senior Services regarding the application of diapers to bedridden patients at CMC who were known to be incontinent and who in many cases were also mentally impaired (Appellant 64a); appellant’s concern was that the diapers concealed wastes which would lead to skin excoriation and possible infection because of prolonged skin contact with the wastes. Appellant registered the complaint about diaper use after making two written requests to the executive director of CMC over the course of a year that this issue be addressed; prior to the requests to the executive director, appellant had tried for several years to get this issue addressed by his immediate nursing superiors.

In a letter dated Monday 27 November 2000 (Appellant 73a) appellant notified the executive director of CMC Nancy Wollen that he had registered a complaint with the State Department of Health; notification of the complaint was also copied to four CMC nursing administrators who were immediately subordinate to nursing administrator Lauren Burke (hereinafter Burke), as well as to a nurse whose specialty is skin care and the treatment of wounds. Wollen admitted at trial her receipt of the letter dated 27 November 2000. However respondents claim that Burke, who carried out the adverse employment actions in this case, was not aware of the 27 November letter even though her subordinates and superior were sent copies of the letter. Burke testified that she supervised about 400 employees and about seven different nursing units at CMC.

Appellant, who worked a fixed Saturday-Sunday-Monday schedule, was summoned the following week on Monday 4 December 2000 to a meeting in Burke’s office in order to discuss his concern about the use of diapers and to be instructed to follow proper channels when bringing his issues to the fore; a follow up letter to this 4 December meeting was incorrectly dated 5 November (correctly dated 5 December), referred to yesterday’s meeting, and was in appellant’s personnel file which was provided to him during discovery; this letter is also stamped as having been received by the CMC Human Resources Department on 8 December 2000 (Appellant 12a). The only other attendants at the meeting on 4 December were appellant’s two immediate supervisors Sherry Margolies (who confirmed that the meeting occurred, see Vol I/Part3, 47:19) and Christine Dodds (who denied being at the meeting (Vol II/Part5, 144:16); Margolies was not presently employed by respondents at the time of trial unlike Dodds.

When staff nurses at CMC need to administer a narcotic to a patient pursuant to a physician’s order the narcotic is obtained from a computerized medication cabinet known as Pyxis which is kept in a locked medication room on each nursing unit. The Pyxis cabinet operates similar to a vending machine, and keeps an automatic record of the nurse who made a narcotic removal, the patient for whom the narcotic was removed, the time and date of the removal, and the name and amount of the narcotic that was removed; these Pyxis removal records are checked by nursing administrators at the end of every shift. In order to gain access to the Pyxis cabinet a nurse in January 2001 entered by way of a keypad a PIN that was unique to her; that PIN has been replaced by a fingerprint recognition system. The keypad-entry of a PIN was easily seen by someone who was standing nearby which was a common occurrence (see testimony Vol I/Part2, 31:21).

After making a Pyxis narcotic removal a corresponding duplicate entry is also made by the nurse into the patient’s medical record via the computerized MIS record keeping system; the nurse has complete control over the content of the records that the nurse enters into the MIS record keeping system, however the nurse cannot manipulate or erase the Pyxis records of a narcotic removal. According to Pyxis records on 7 January 2001 at 6:54PM and at 6:58PM a 2mg morphine syringe and a 30mg morphine vial respectively were stolen from the Pyxis cabinet under appellant's PIN. Pyxis records show that two 2mg morphine syringes and two 30 mg morphine vials were left behind after the theft of a single 2mg syringe and a single 30mg vial.

A policy-mandated narcotic inventory/count was not conducted on the evening of the morphine incident under appellant's PIN. When a narcotic inventory/count is conducted at the end of a shift a Pyxis printout of the shift's narcotic usage is subsequently obtained and is examined by the charge nurse who supervises the conduct of the nursing unit; this Pyxis printout is known as the end-of-shift narcotic report. The end of shift narcotic report was not obtained on the evening of the morphine incident (Vol II/Part4, 178:7).

At about 9:30PM on 7 January 2001, which was about 2 ½ hours after the morphine thefts were effected and about two hours after appellant went off duty, CMC staff nurse Delia Caballero (hereinafter Caballero) obtained by mistake (Vol I/Part3, 53:5; Appellant 40a and 43a) what is known as a Pyxis activity report (Appellant 42a) for one of her patients. As a result of obtaining the Pyxis activity report the morphine thefts under appellant’s PIN were discovered. At that time an incident report by the security representative who responded to the discovered morphine thefts was informed that appellant read gun magazines and spoke to the nursing staff about a gun collection (Vol I/Part3, 54:13; Appellant 41a).

Shortly after reporting for duty at 7AM on 8 January 2001 appellant was summoned to a meeting in the CMC nursing administration office which was attended by Burke, Dodds, CMC Director of Human Resources Jane Palaia, CMC pharmacist Peter Chiodo, and an unidentified security representative. At this meeting appellant was confronted with the morphine thefts that were made under his PIN. When appellant could not explain the morphine thefts under his PIN he was suspended by Burke pending investigation of the incident which turned out to be an investigation of his nursing records.

Appellant was summoned by Burke to respond to unknown

allegations in a letter dated 26 February 2001 (Appellant 11a). Appellant responded in a letter dated 28 February 2001 that he would be happy to cooperate with Burke's investigation with his lawyer in attendance. Appellant was then informed by Burke in a letter dated 7 March 2001 that his lawyer would not be allowed to be present at a meeting at which he was to respond to unknown allegations that resulted from an investigation into alleged morphine theft by him. Appellant suspected that the morphine incident under his PIN was orchestrated by respondents and did not present at CMC to respond to unknown allegations without his attorney, and he was terminated from CMC shortly thereafter for substandard charting (Appellant 10a).

Respondents’ excuse for terminating appellant follows. During the course of eight weeks appellant removed from the Pyxis pursuant to a physician’s order three doses of Valium and three doses of Xanax (both narcotic anti-anxiety agents) and a single dose of Percocet (a narcotic analgesic) without making the corresponding entry in the patients’ medical record via the computerized MIS record keeping system. Respondents also claim that appellant made false time entries regarding administered Xanax, and failed to keep adequate hand-written nurse notes regarding narcotics that he obtained for patients pursuant to a physician’s order. Regardless of the nature of the documentation issues, appellant was terminated after the first citation in nine years for demonstrating documentation problems. These documentation problems were discovered as a result of the investigation conducted in response to the morphine theft under appellant’s PIN on 7 January 2001.

Appellant demanded reinstatement in a letter dated 20 April 2001; a letter dated 18 May 2001 from Corporate Director of Labor Relations for the Saint Barnabas Health Care System Arnold Manzo stated that appellant’s termination status was unchanged (Appellant 13a).

COMPENSATORY DAMAGES: THE LEGISLATIVE INTENT OF THE CONSCIENTIOUS EMPLOYEE PROTECTION ACT

Appellant had initially planned to mention his monetary losses during the opening statement, however it was his understanding that the trial judge prohibited him from mentioning damages during the opening statement. The pre-trial information exchange, a copy of which was sent to the trial judge, contained a listing of exhibits among which were exhibits #61 and #86 which pertained to appellant’s losses(Appellant 36a-37a). Appellant reasoned that mention of monetary damages was clearly irrelevant to the establishment of the legal elements of CEPA therefore they were not mentioned during the presentation of his case. Only after appellant rested his case and before closing statements, when appellant had planned to show evidence of monetary losses, did appellant become aware that compensatory damages could not be awarded because the jury was not previously presented with evidence of losses. The trial judge also cited law that punitive damages cannot be awarded when compensatory damages are not awarded.

The purpose of the Conscientious Employee Protection Act is to protect and encourage employees to report illegal or unethical workplace activities, and it should be considered remedial legislation and should be construed broadly to meet its social goals.(Roach, supra, 164 N.J. at 610 (quoting Barratt, supra, 144 N.J. at 127); Abbamont, supra, 138 N.J. at 431). The remedial intent of CEPA was not realized in the present case specifically because of appellant’s minor procedural misstep, and clearly the trial judge did not broadly interpret CEPA regarding its remedial intent. The specific language of CEPA is that attorney fees, legal fees, lost wages, and lost benefits can be awarded to a successful plaintiff; it is inconceivable that appellant could have avoided such monetary losses subsequent to his suspension after being accused of morphine theft, yet this case ended without a jury awarding compensatory damages. In consideration that the local judiciary is demonstrably biased in this case in favor of respondents it can be credibly claimed that the legislative intent was deliberately ignored. The trial judge could have exercised discretion by allowing the post-verdict presentation of evidence to a jury that was necessary for the consideration of compensatory and punitive damages, and such an action could have precluded this second appeal except for the fact that the trial judge shielded respondents regarding their culpability of staging the morphine incident of 7 January described herein.

It could not be credibly argued in this case involving a pro se plaintiff that the trial judge was giving legal advice by instructing appellant to provide evidence of his losses before resting his case; this instruction had nothing to do with establishing the legal elements necessary to prevail at trial, and could therefore not be interpreted as bias in favor of appellant. However, the failure to act by the trial judge in this case could indeed be interpreted as bias in favor of respondents especially in consideration of the trial judge’s obvious attempt to limit potential punitive damages by shielding respondents regarding their criminal culpability of staging the morphine incident.

The social goals of the CEPA statute are certainly not realized when a successful plaintiff actually loses at trial. There is little about the outcome of the trial, because of a procedural misstep, to encourage conscientious behavior in others. Indeed there is little about this case to inspire trust in a judiciary that exists to enforce legislative intent despite the setting aside of Summary Judgment by the Appellate Court after the first appeal in this case.

It is suggested that this case presents an opportunity for the Appellate Court to refine the law. It is suggested that the time for the presentation of monetary losses is when it is relevant to do so; it is arguably irrelevant for a jury to address such evidence, whether such addressing requires several minutes, several hours, or an entire day, necessary to award or withhold damages when a possibility exists that a jury could have decided against a plaintiff.

JURY FINDING OF ARTICULATED OR ADVANCED

REASON FOR LEGITIMATE TERMINATION

Appellant was terminated for substandard charting practice (Appellant 10a), however during the trial of 18 January 2006 Burke testified that there is no written charting standard at CMC (Vol II/Part4, 181:23). Respondents seemingly claimed that the unwritten charting standard was perfect charting; this of course means that a nondiscriminatory termination for substandard charting is required after a single record keeping omission which is contrary to the written guidelines regarding documentation problems (Appellant 56a-57a). No written charting standard was provided by respondents at trial even though the charting standard was a fact in dispute. The reality of hospital staff nursing, because of the myriad of constantly changing priorities, is that record keeping omissions regarding administered medications pursuant to a doctor’s order occur, and are known to commonly occur at CMC. The existence of disciplinary guidelines for documentation problems supports this premise, and the irrelevant investigation in this case (described in detail later herein) of appellant’s nursing records also supports this premise since respondents knew that such an investigation would yield their desired result and excuse to terminate appellant. A printout known as the Unreported (uncharted) Scheduled Medications also supports the claim that record keeping omissions commonly occur (Appellant 58a); presumably such a printout would not exist if uncharted administered medications were an uncommon occurrence.

The failure to show at trial physical or tangible evidence of an unbiased study, or of any study regardless of bias, that demonstrates that appellant’s record keeping practice is significantly different from record keeping practices of other nurses is evidence of a discriminatory search of appellant’s nursing records (Vol II/Part4, 172:19). CMC nursing administrator Burke testified that she investigated the records of other nurses, however Burke’s lack of credibility was well established by the trial; other than her testimony there is no evidence that she investigated the records of anyone other than appellant.

The Employee Handbook entered into evidence at trial addresses topics regarding disciplinary actions (Appellant 49a-57a), and nowhere is there mention of a charting standard or disciplinary actions that are warranted because of uncharted administered narcotics pursuant to a physician’s order. During trial witnesses employed by respondents testified that the guidelines mentioned on pages 79-80 of the Employee Handbook (Appellant 56a-57a) do not apply to narcotic medications yet no written superceding guideline was provided to support that testimony; clearly respondents arbitrarily decided that the guidelines do not apply when denied but obvious retaliatory action is taken. For example, a supervisor shall review with an employee found to be deficient regarding his documentation the departmental policy and procedure regarding documentation (see Step 1b, Appellant 56a); no nursing policy was entered into evidence that perfect charting is required to avoid termination; no nursing departmental policy whatsoever was entered into evidence regarding documentation.

Among the witnesses at trial was the director of the Human Resources Department at CMC Jane Palaia who testified that she did not know if a nursing departmental policy existed that superceded the disciplinary guidelines regarding documentation problems (Appellant 56a-57a)(Vol II/Part5, 195:17); clearly this witness could have damaged appellant’s case by testifying about such a superceding policy if it existed, and it is not credible that this witness would have presented to testify without knowing whether or not such a nursing policy existed. Clearly this witness would have testified, and would have known, that the guidelines do not apply to the nursing department if nurses are expected to keep perfect records, however such testimony was not given.

Clearly respondents arbitrarily decided in this case that no guideline applies to appellant’s record keeping oversights regardless of the category of record keeping oversights that might be involved, and such a decision is obviously discriminatory and retaliatory. The jury in this case correctly decided that respondents articulated or advanced, or in other words merely argued a legitimate reason for terminating appellant, however evidence was presented that the termination was contrary to a written guideline which in this case indicated a written reprimand to appellant rather than termination for his first documentation-problem citation in nine years; therefore the termination was clearly discriminatory. And the supposed reason for the termination, substandard charting, was clearly fabricated.

Without an established written charting standard there cannot be a legitimate termination in this case for substandard charting. It would seem obvious that if the reason for termination was fabricated, and was therefore not legitimate, then the termination cannot be legitimate.

Among the numerous offenses mentioned in the Employee Handbook(Appellant 49a-57a) there is no mention that failure to chart an administered narcotic, for example a Valium tablet or a Xanax tablet is a terminating offense. No nursing-department policy was entered into evidence that failure to chart an administered narcotic such as a Valium tablet was an offense requiring termination. No memorandum to CMC staff nurses was entered into evidence that nurses must keep perfect charting in order to avoid termination. Witnesses employed by respondents claimed that it is common knowledge that perfect record keeping is expected regarding narcotics (note: in all cases Pyxis records of narcotic removals existed which presumably conforms to the DEA guidelines and state regulations that were referenced by witnesses employed by respondents). Indeed, the position of respondents is that an unwritten zero tolerance policy exists regarding administered medications regardless of whether the medications are also narcotics; this zero tolerance policy was manifested at trial by the catch phrase if it is not charted then it was not done. Presumably the failure of a nurse to chart an administered Tylenol tablet (which is an over-the-counter pain reliever) pursuant to a doctor’s order would warrant termination for substandard charting. Presumably according to respondents the charting standard, at least when narcotics are involved, is none other than perfect charting, yet Burke testified that she thinks termination is warranted depending upon the number of oversights, presumably more than one, involving the narcotic Valium; at this particular moment in Burke’s testimony the number of oversights warranting termination seemingly depends upon Burke’s whims (Vol II/Par4, 184:20), and the emphasis has seemingly shifted from serious charting errors to the number of charting errors. The Appellate Court might be amused at Burke’s testimony regarding her imaginings about the Federal Government (Vol II/Part4, 184:9).

The jury found that respondents articulated or advanced a legitimate reason for terminating appellant, yet also found that respondents violated CEPA. It would seem that appellant’s termination contrary to established disciplinary guidelines is discriminatory but the jury was not allowed to consider this discrimination (see jury verdict form, Appellant 62a). There cannot be a legitimate reason for termination when a decidedly discriminatory and retaliatory action was taken by respondents, namely the ignoring of the disciplinary guidelines in appellant’s case after an obviously harassing search for an excuse to terminate appellant; that the search was harassing is proven later herein.

RESPONDENTS STAGED

THE MORPHINE INCIDENT OF 7 JANUARY

The CEPA statute (NJSA 34:19-2e) states and defines that

Retaliatory action means the discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment. Section 2.32 of MODEL CIVIL JURY CHARGES which relates to the Conscientious Employee Protection Act (NJSA 34:19-1 et seq.) states Finally, in establishing the third and fourth elements of his claim, the plaintiff must prove by a preponderance of the evidence that there was some retaliatory action taken against him and that there was a causal link between his actions and the retaliation. In establishing the element of retaliation, plaintiff must prove that he was discharged, suspended or demoted, or that some other adverse employment action was taken against him in the terms and conditions of his employment.

The termination in this case was not the only adverse employment action. Appellant of course recognizes that respondents staged the morphine thefts of 7 January 2001 that were attributed to him, resulted in his immediate suspension, and subsequently called the Attorney General’s office down on him. Buczynski also clearly recognized respondents’ guilt as evidenced by his preventing the jury from addressing this issue which is discussed later herein.

The evidence in this case showed that appellant was an above average nurse with excellent reliability (Vol III/Part 6, 54:22)(Vol II/Part4, 58:16). The evidence demonstrated that appellant was a caring nurse who had impressive knowledge relevant to the workings of medicines and disease processes. The evidence also showed that at the time of the morphine thefts under his PIN the records of the computerized narcotic cabinet at CMC (Pyxis) showed that appellant had removed a single dose of morphine during the previous five months and that this single removal was made eight weeks prior to the morphine thefts of 7 January 2001; testimony by a CMC pharmacist, albeit obviously not required, was that this history of morphine removal from Pyxis did not suggest an unusual frequency of removals (Vol II/Part5, 166:3).

Relevant testimony (Vol I/Part2, 31:21) was also presented by Joan Barrett, who was not currently an employee of respondents, who testified that the entry of a Pyxis PIN could be easily seen by a bystander. Barrett, although providing testimony that aided appellant’s case, was clearly hostile to appellant and could not be presumably inclined to offer false or misleading testimony on appellant’s behalf. Barrett is a nursing instructor who at one time supervised nursing students at CMC and who had experience with the computerized Pyxis narcotic cabinet. Yet appellant was suspended by CMC nursing administrator Lauren Burke on the morning following the morphine thefts of 7 January 2001 despite the seemingly common knowledge possessed by Barrett regarding the ease of identity theft and despite the documented fact that appellant was an above average, nine year nurse at CMC. The evidence, presumably accepted by a jury, was that Burke was aware prior to the suspension of appellant’s recent whistle blowing activity. Burke, who is the primary representative of respondents in this case, denied under oath knowledge of appellant’s whistle blowing until the day of the first deposition in this case (Vol II/Part4, 148:18-21).

Burke also denied during her deposition in August 2002 any knowledge until the day of the first deposition in this case in July 2002 that appellant had concern about the use of diapers at CMC (Vol II/Part4, 126-130, 148-149); this testimony is inconsistent with her trial testimony that she was aware of appellant’s concerns in 1999 as a result of information provided to her by CMC nursing administrator Nicholas.

Nicholas was deposed in December 2002 several months after Burke, and contradicted Burke’s deposition testimony regarding her awareness of appellant’s diaper concerns. It is suggested that Burke’s inconsistent trial testimony is an attempt to reconcile her deposition testimony with that of Nicholas’ deposition testimony.

(note: page 121 of appellant’s deposition transcript dealt with his concerns about the use of diapers and not about the use of discovery which is a transcription error in Vol II/Part4, 149:6)

A letter addressed to Lauren (Burke) present in appellant’s personnel file incorrectly dated 5 November 2000 (Appellant 12a) confirmed that a meeting was held with Burke regarding appellant’s concern about diaper use one month prior to the suspension and one week after CMC executive director Wollen was informed of appellant’s whistle blowing activity (Appellant 73a). The letter incorrectly dated 5 November was stamped RECEIVED by CMC Human Resources on 8 December 2000 three days after the correct date of the letter(5 December). Burke incredibly denied any knowledge of the letter dated 5 November or that any meeting occurred in her office regarding diaper use. Burke also incredibly testified that she did not read appellant’s personnel file, provided to a state investigator (Appellant 48a), during her investigation of the morphine incident (Vol II/Part4, 150:16).

CMC nursing administrator Nicholas was forced to repeat her deposition testimony, which was also clumsy, that she discussed diaper letters (Appellant 73a, 91a) and the diaper issue with Burke, and that a meeting occurred with David (Vol II/Part5, 137:2). Appellant would like to claim that Nicholas’ testimony about a meeting was true because her testimony impeaches Burke who denied any meeting, but it is not; Nicholas was not present at the only meeting with Burke and appellant dealing with the diaper issue which occurred on 4 December 2000 one month prior to the morphine incident and appellant’s immediate and subsequent suspension (Appellant 12a).

Assuming that Burke was not part of a conspiracy to stage the morphine thefts under appellant’s PIN it is suggested that a whistle blower who places himself at risk for the benefit of others does not engage in narcotic theft, a suggested conclusion that Burke might have easily made. But it is also suggested that Burke is a powerless nursing administrator, and that the decision to suspend appellant was not made by Burke despite her testimony to the contrary.

Testimony was given that the supervising nurse of a nursing unit, the charge nurse, obtains what is referred to as an end-of-shift narcotic report which is a listing of all the narcotics that were removed from Pyxis by the nursing staff during the previous shift. Testimony was given that the charge nurse would recognize on the end-of-shift narcotic report the unauthorized removal of a quantity of morphine (Vol II/Part5, 8:12). Testimony was given that an end-of- shift narcotic report was not obtained on the evening of the morphine thefts of 7 January 2001 which occurred several minutes before 7PM.

The security representative who responded to the morphine thefts testified that the security department’s response to notification of narcotic theft would be immediate and that no one present at the time of the thefts would be allowed to leave until an investigation was conducted (Vol I/Part3, 62:25). The morphine thefts were discovered about two hours after appellant had gone off duty. Further, the morphine thefts were discovered as a result of obtaining what is known as a Pyxis activity report (Appellant 42a). Delia Caballero is the nurse who discovered the morphine thefts, by mistake (Appellant 40a), and she testified that she obtained the Pyxis activity report as a prelude to obtaining a narcotic medication for one of her patients(Appellant 43a). Caballero specifically testified that she obtained the Pyxis activity report (which was obtained from the top of the Pyxis narcotic cabinet) because she did not have her nursing care plans nearby. When questioned as to what her subsequent action would be after obtaining the Pyxis activity report, Caballero testified that she would consult her nursing care plans prior to removing a narcotic for a patient from the Pyxis narcotic cabinet (Vol II/Part5, 199-204). Clearly there was no rational reason for obtaining the Pyxis activity report, because of the unavailability of nursing care plans, except to discover the morphine thefts that had occurred under appellant’s PIN shortly before 7PM during the change of shift. Caballero then testified, albeit needlessly in consideration of the illogic mentioned above regarding the unavailability of nursing care plans, that obtaining a Pyxis activity report was not routine practice. The foremost piece of information required by policy and by practice was to verify the existence of a doctor’s order that authorized the removal of a narcotic from the Pyxis narcotic cabinet. Policy M-15-6 (Appellant 38a) specifies the procedure to be followed when a narcotic is removed from the Pyxis cabinet, and the procedure does not mention the obtaining of a Pyxis activity report. A doctor’s order could not have been verified by the Pyxis activity report; Caballero had to check, supposedly because she did not already know, that an order for morphine did or did not exist for one of her patients by consulting the charge nurse who in turn consulted the medical care plan (Vol II/Part5, 204:9; Appellant 43a-44a). Further, the morphine thefts could not have been discovered by properly checking the medical care plan which could be accessed ten feet away from the location at which the Pyxis activity report was obtained; this is because no physician’s order existed for the morphine items that were stolen from the Pyxis cabinet. The morphine thefts also could not have been discovered by checking Caballero’s nursing care plan since no physician’s order existed for any patient on appellant’s nursing unit to be given morphine. Respondents attempted to argue that since Caballero was not an administrator she could have no motive to participate in a conspiracy to implicate appellant in morphine theft; clearly this argument is as credible as Burke’s testimony. Witnesses employed by respondents also testified that the combination keypad lock on the door of the medication room precluded the following of routine procedure by Caballero mandated by policy M-15-6 regarding the removal of a narcotic for a patient, namely checking the medical care plan ten feet away through the door; the door could be unlocked in 5 seconds or less via a two-punch process on the keypad in order to enter, not exit, the medication room where the Pyxis activity report was obtained.

The morphine thefts were certain to be discovered as soon as an end of shift narcotic report was obtained (Vol II/Part5, 8:12; Appellant 43a). Due to the operation of the Pyxis narcotic cabinet there were three 30mg vials of morphine available to be stolen shortly before 7PM on 7 January 2001, yet only a single vial was stolen; nothing prevented the theft of all three vials. Also, there were three 2mg morphine cartridge-needle units available to be stolen in a separate transaction minutes before the removal of a single 30mg vial, yet only a single 2 mg unit was stolen; nothing prevented the theft of all three morphine cartridge-needle units. It is suggested that the theft of a single cartridge-needle unit, which could serve as a refill vehicle for use with the 30mg morphine vial, was an obvious attempt to suggest that the thief needed a refill vehicle. However, staff nurses have easy access to a plentiful supply of unmonitored disposable syringes which could serve as refill vehicles. Therefore there was no rational reason for removing a single 2mg morphine cartridge-needle unit. It is suggested that the morphine thief in question on 7 January 2001 did not have the mentality of a narcotic thief since two 30mg morphine vials and two 2mg morphine cartridge-needle units were left behind under the circumstances that the thefts were certain to be discovered; the execution of the theft was clearly irrational.

Robert Howard, who is a CMC security representative, responded to the discovery of the morphine thefts. One of appellant’s colleagues, who remains unknown (Vol I/Part3, 69:14) despite appellant’s attempt during trial to learn her identity, revealed at the time of the discovery that appellant spoke to the nurses about a gun collection; the gun revelation was relayed to security representative Howard. Appellant’s personnel file contained a statement that he is very caring, compassionate, and attentive which is a characterization arguably inconsistent with the gun collection implication. Indeed, the gun collection implication is arguably inconsistent with someone who places himself at risk for the benefit of others regarding appellant’s whistle blowing.

Appellant was suspended by Burke on 8 January 2001, because of the morphine thefts under his PIN, without requiring drug testing. Burke testified that she conducted several prior investigations into narcotic theft but that she had not yet become aware of the capabilities of drug testing (Vol II/Part5, 11:21), adding that she is not an expert in that area as if general knowledge of that area does not result from watching the news on television, reading newspapers, or observing a storefront help wanted sign on which the employer warns that all applicants will be tested for narcotic use. Burke’s decidedly incredible testimony was that drug testing was not requested because at the time of appellant’s suspension he did not show signs of being under the influence.

Subsequent to appellant’s suspension Burke conducted a demonstrably irrelevant investigation of appellant’s nursing records that could not detect morphine theft or any other kind of narcotic theft; this is the only evidence of an investigation by Burke. During trial Burke was forced to repeat her deposition testimony that the only way to confirm that a patient received a withdrawn narcotic from the Pyxis cabinet is to ask the patient; nursing records cannot prove such a receipt, and this premise is demonstrated later herein.

There is no evidence in the record that Burke did anything that could have detected morphine theft or any other kind of narcotic theft by appellant, yet Burke testified that based upon the results of her investigation no one other than appellant could have committed the morphine thefts of 7 January (Vol II/Part4, 171:14).

The following is a summary of the facts, coincidences, and peculiarities surrounding the morphine thefts and the subsequent investigation.

1. The thefts occurred at the change of shift when a policy-mandated narcotic inventory would otherwise have been conducted and which was not conducted according to policy on 7 January 2001.

2. A single rather than all three morphine 30mg vials was stolen when such a theft was certain to be discovered and when nothing prevented the theft of all three vials that were present in the narcotic drawer.

3. A single 2mg morphine cartridge-needle unit rather than all three units present in another narcotic drawer was stolen four minutes prior to the theft of the 30mg morphine vial. Again, nothing prevented the theft of all three 2mg cartridge-needle units. The theft of a single 2mg morphine cartridge-needle unit was irrational in consideration that a plentiful, unmonitored supply of disposable syringes existed for use as refill vehicles.

4. The discovery of the morphine thefts occurred two hours after appellant went off duty. The security department would have responded immediately upon notification of a narcotic theft and no one present would be allowed to leave until the theft was investigated.

5. The morphine thefts were discovered as a result of obtaining a Pyxis activity report by mistake (Appellant 39a, 42a). The obtaining of an activity report, as a prelude in this case to obtaining a narcotic for a patient, was impractical and against policy and was not routine procedure. The morphine thefts could not have been discovered as a result of properly and routinely consulting the medical record or the nursing care plans since there was no order for any patient to be given the stolen morphine items. Clear evidence of Burke’s perjury is her deposition testimony that she was forced to repeat at trial (Vol II/Part4, 153:17- 155:9) that the morphine thefts were discovered as a result of conducting a late narcotic inventory/count which is a policy mandated procedure done at the end of each shift but was not done at the end of the day shift on the day of the morphine thefts under appellant’s PIN; however it is a fact that the thefts were discovered as a result of obtaining the Pyxis activity report (see Caballero’s notarized statement, Appellant 43a-44a).

6. An evening end-of-shift narcotic report, listing removed narcotics during the previous shift, was not obtained on 7 January 2001. Burke incredibly testified that she did not know if the end-of-shift report was obtained on 7 January (Vol II/Part4, 152:7); of course the Appellate Court recognizes that this answer regarding a presumably crucial event on the evening of the thefts translates obviously. Almost amusingly Burke later changed her testimony by testifying that an end-of-shift report was not obtained (Vol II/Part 4, 178:7). Obtaining the end-of-shift report, before day shift nurses went off duty, would have presumably resulted in the discovery of the morphine thefts which in turn would have resulted in immediate action by the security department that would have insisted upon those present to remain. Burke testified that she made no effort to determine the time stamp that indicated when appellant went off duty on the evening of the thefts (Vol II/Part4, 152:22).

7. The security representative who responded to the discovery of the morphine thefts was informed that appellant spoke to the nurses about a gun collection. The gun collection statement was part of the security department’s investigation report that was entered into evidence (Appellant 41a). The identity of the person who made the gun revelation was unknown to the nursing administrator, Christine Reynolds, who relayed the gun revelation to the security representative (Appellant 39a-40a).

8. At 8AM on 8 January 2001 appellant was confronted with the evidence of the morphine thefts under his PIN. Appellant was suspended by CMC nursing administrator Burke who denied, a denial seemingly rejected by a jury, that she was aware of appellant’s recent whistle blowing activity. At the time of his suspension appellant was a nine year employee of CMC and was known to be an above average nurse with excellent reliability. Identity theft was presumably known by Burke to be easy. The Pyxis records indicated the removal of a single morphine dose by appellant during the previous five months. Appellant displayed no signs of being under the influence, and was therefore not drug tested.

 

 

 

9. After his suspension a subsequent investigation was conducted into appellant’s nursing records which was irrelevant to determining his guilt regarding the morphine thefts for which he was suspended (Vol II/Part 4, 172-175).

10. Burke testified that she made no effort to determine the possibility that identity theft could explain the morphine thefts under appellant’s PIN (Vol II/Part 4, 177:12).

11. Burke testified that she prepared no written report at the conclusion of her investigation which she described as a formal investigation.

12. Burke testified that she conducted no questioning of the nurses who were present at the time of the morphine thefts which could have yielded information regarding the observation of someone exiting the clearly visible medication room, where the morphine thefts occurred, at the time of the thefts (Vol II/Part5, 5:6).

13. The pharmacy department at CMC can analyze the Pyxis records and detect frequent narcotic removals by a nurse. There is no evidence in the record that Burke requested such an analysis regarding removals by appellant. During discovery appellant requested the Pyxis records of his morphine removals which showed the removal of a single dose during the five months before the morphine thefts and that this removal was made eight weeks prior to the thefts of 7 January; these records clearly supported appellant’s innocence regarding morphine theft but such records were ignored by respondents; Burke testified that those Pyxis records of morphine removal were irrelevant to her investigation (Vol II/Part 4, 168:14)

14. Burke did not request drug testing at any time of appellant.

15. Corporate security representative Brian McCarthy worked with Burke regarding the investigation of the morphine incident. McCarthy’s investigation was also clearly harassing and an irrelevant sham (Vol III/Part 6, 3-43):

a. McCarthy falsely reported that the morphine thefts were discovered as a result of doing an evening narcotic count/inventory (Appellant 45a-46a). In fact the morphine thefts of 7 January were discovered as a result of obtaining the Pyxis activity report for Patient A (Appellant 42a-44a); a Pyxis activity report cannot be credibly confused with a narcotic count/inventory. And of course the obtaining of the Pyxis activity report was not routine practice. McCarthy made no mention that the evening narcotic inventory was not done according to policy and that an end-of-shift narcotic report was not obtained on the evening of the morphine thefts

b. McCarthy made no note of the time that appellant went off duty on 7 January 2001

c. McCarthy made no credible attempt to learn if identity theft could have explained the morphine incident under appellant’s PIN. For example, McCarthy incredibly testified that he asked unknown persons if appellant’s PIN was used to remove the morphine of 7 January, and McCarthy testified that the obtained answer was no (Vol III/Part6, 17:8-11); this was the extent of McCarthy’s investigation into the possibility that identity theft could explain the morphine incident under appellant’s PIN; of course McCarthy’s findings in this regard were not mentioned in his investigative report (Appellant 47a-48a)

d. McCarthy, a former policeman who worked in the area of narcotic use, testified that he did not request drug testing of appellant. When asked why, McCarthy answered that he did not know why he did not request drug testing.

e. McCarthy testified that his only effort was the investigation of appellant’s nursing records (see Appellant 47a-48a for McCarthy’s sole investigative report), an examination that McCarthy indirectly testified could not have detected narcotic theft or lead to a logical conclusion that appellant stole the morphine of 7 January (see McCarthy’s testimony Vol III/Part6, 29:1-31:22)

f. Like Burke, there is no credible testimony or evidence that McCarthy questioned anyone during his investigation (see McCarthy’s sole report 47a-48a)

g. Like Burke, McCarthy testified that he did not examine appellant’s personnel file which would have demonstrated appellant’s job performance and reliability

h. Like Burke, McCarthy did not request an analysis of Pyxis records which could have highlighted an unusual frequency of narcotic removals by appellant

16. Upon the conclusion of the investigation of appellant’s nursing records a letter was sent to appellant requesting that he respond to allegations; this letter also stated that appellant’s performance matters were to be discussed (Appellant 11a). It is transparent that respondents’ purpose regarding the investigation was not to obtain evidence of narcotic theft but rather to obtain evidence of performance matters and policy violations (Appellant 47a; Vol III/Part6, 28:8). And it is suggested that the only legitimate issue should have been appellant’s guilt or innocence regarding narcotic theft, but instead appellant’s performance matters seemed to be the issue.

Explained following is why the investigation of appellant’s nursing records was irrelevant to the detection of narcotic theft and was obviously harassing. The investigation of appellant’s nursing records after his suspension, presumably to obtain evidence of narcotic theft, could either find the presence of a patient record corresponding to a Pyxis record of narcotic removal, or it could find the absence of a patient record corresponding to a Pyxis record of narcotic removal; there are no other possible results of such an investigation. For example a Pyxis narcotic cabinet record introduced at trial shows that appellant removed for Patient C a 5mg diazepam (Valium) tablet at about 8AM on 20 November 2000 (Appellant 71a); the corresponding Patient Record of Patient C in the MIS system, the content over which appellant had complete control, shows no corresponding entry for the Valium removal from the Pyxis cabinet (Appellant 72a); the presence of an entry in the MIS record can be only NOT GIV or GIV (Appellant 72a, 58a). The undisputed absence of seven MIS records, which included the absence of a record corresponding to the 8AM Pyxis Valium removal just mentioned, presumably would according to respondents be evidence of narcotic theft, but appellant was terminated not because of evidence of narcotic theft but because of substandard charting practice (Appellant 10a). Burke testified, truthfully, that the presence of perfect records would not rule out possible guilt of narcotic theft (Vol II/Part4, 167:3); a reasoned mind readily equates this testimony with the truism that a nurse has complete control of the content of her nursing records (see testimony of McCarthy Vol III/Part6, 29:1-31:13); in other words, a nurse has complete control over the pattern of record keeping omissions in her records whether it is zero omissions/perfect charting which presumably equates to no pattern, a single omission, or hundreds of record keeping omissions. Yet Burke testified that a record keeping omission could be proof of theft depending upon the presence of a pattern (Vol II/Part4, 162:12, 163:24, 167:1, 167:20, 180:23, 184:25); the pattern Burke references is undefined and indeed cannot be defined because a pattern logically cannot exist.

Clearly Burke is either irrational or incapable of intelligently spinning her testimony; indeed, her testimony that she was unaware of appellant’s whistle blowing until the first deposition in this case by appellant exposes the fact that she is a stupid liar (Vol II/Part4, 148:18-21). Burke previously testified that perfect records are not proof of innocence regarding narcotic theft (Vol II/Part4, 167:3-7), yet subsequently testified that perfect records are proof of innocence of theft (Vol II/Part4, 173:1-18).

Burke’s testimony is clearly characterized by inconsistency, convolution, and perjury. Appellant within the page restriction of this brief cannot fully expose and explain Burke’s testimony.

Again, it is clear that Burke’s and security representative McCarthy’s purpose was to find evidence of substandard charting practice and was not to find evidence of narcotic theft. The sham investigation conducted by McCarthy, a former policeman who presumably is not an incompetent, maybe, is obvious evidence in itself that respondents knew that a real theft did not occur; presumably a credible investigation would follow a real theft. Of course a theft occurred that was staged by respondents.

17. Appellant was terminated against policy (Appellant 49a-57a, especially 56a) for a fabricated reason, namely substandard charting, despite his being a nine year above average nurse and despite the complete absence of patient harm as a result of appellant’s record keeping oversights which are known to occur at CMC (see Unreported Scheduled Medications listing, Appellant 58a).

It is suggested that the absence of a credible attempt to search for evidence of narcotic theft is consistent with the premise that respondents staged the morphine thefts. Presumably a hospital has an interest in rooting out a narcotic thief in consideration that narcotics are prevalent in such an environment, and indeed Burke so testified (Vol II/Part4, 161:13). Obviously respondents would not bother to conduct a credible investigation if they knew that they were not confronted with narcotic theft by anyone except their agents in this case.

It is suggested that the Appellate Court specifically address the reason for the investigation into appellant’s MIS nursing records (see Appellate Division opinion, Appellant 14a). It is also suggested that the Appellate Court, in order to judge respondents’ culpability regarding the staging of the morphine incident, determine the actions taken by respondents to credibly investigate the morphine theft under appellant’s PIN.

The ignoring of evidence of appellant’s innocence regarding the morphine thefts is also consistent with the premise that respondents staged the morphine thefts. The evidence of appellant’s innocence follows:

1. Testimony that identity theft of a PIN was easy

2. Evidence that appellant was an above average nurse with excellent reliability

3. Evidence entered at trial that the Pyxis narcotic cabinet records showed the removal of a single dose of morphine by appellant during the five months prior to the morphine thefts of 7 January 2001. Burke however testified that this evidence would not have been relevant (Vol II/Part4, 168:14).

4. Testimony by Burke that appellant showed no signs of being under the influence, and presumably never showed signs of being under the influence hence no drug testing was required at the time of his suspension (Vol II/Part4, 169:1).

The following suggests actions that might have been taken by respondents presuming that the morphine incident was not staged, however none of the actions were taken.

1. Acknowledge the currently available evidence on the morning of 8 January 2001 of appellant’s innocence of morphine theft which included knowledge that identity theft was easy, that the Pyxis records showed the removal by appellant of a single morphine dose during the previous five months, and that appellant was a reliable, nine year above average nurse

2. Acknowledge on the morning of 8 January 2001 that appellant posed no credible threat that warranted his suspension

3. Conduct a credible investigation to determine how the thefts occurred and who committed the thefts

4. Do not, especially in consideration of his recent whistle blowing, harass appellant by conducting an irrelevant investigation of his nursing records

5. Do not send appellant a letter at the conclusion of a harassing investigation requesting his attendance at a meeting in order to discuss performance matters (Appellant 11a) especially when appellant’s personnel file contains information that he is an above average nurse

6. Do not fabricate an excuse to terminate appellant for substandard charting.

THE TRIAL JUDGE WAS AWARE OF APPELLANT’S CLAIM THAT RESPONDENTS STAGED THE MORPHINE INCIDENT OF 7 JANUARY

In a twelve page letter dated 10 October 2005 from appellant to trial judge Buczynski the evidence of the bias of Judges Oles and Serpentelli was demonstrated as well as the detailed evidence that respondents staged the morphine incident; this letter was copied and hand delivered by appellant to all twenty judges at the Ocean County Superior Court as well as to the editorial staff of two local newspapers. The letter dated 10 October dealt with overwhelmingly-supported accusations by appellant that Oles and Serpentelli protected respondents regarding the criminal activity of the morphine incident. However the 10 October letter was not the sole instance of explicitly informing Buczynski that respondents had staged the morphine incident.

1. A letter to Buczynski from appellant dated 23 May 2005 regarding a change of venue referred to the undeniable judicial bias at the Ocean County Superior Court regarding the judicial shielding of respondents;

2. A letter incorrectly dated 2 May 2005 (correct date 2 June 2005) to Buczynski from appellant referred to the bias of Serpentelli and of Oles, and referred to the criminal activity of respondents regarding their staging of the morphine incident;

3. A letter dated 11 July 2005 to Buczynski from appellant regarding a change of venue referred to the evidence of bias of Serpentelli and of Oles which by extension referred to the judicial shielding of respondents;

4. A letter dated 12 July 2005 to Buczynski from appellant referred to the evidence of bias of Serpentelli and of Oles. This letter also states that Buczynski was supplied with a copy of appellant’s brief and appendix from his first appeal specifically in order for Buczynski to verify the evidence that respondents staged the morphine incident;

5. A letter dated 20 July 2005 to Buczynski from appellant refers to the violation of not only CEPA but of criminal law regarding the staging of the morphine incident by respondents;

6. During a motion hearing 22 July 2005 for a change of venue out of Ocean County appellant told Buczynski, who sat for Assignment Judge Serpentelli who was previously and directly accused in writing by appellant of corruption, that respondents had staged the morphine incident;

7. A letter dated 28 July 2005 to Buczynski from appellant referred to the fixing of Summary Judgment by Oles and indirectly claimed that Oles concealed evidence of the staging of the morphine incident by respondents; appellant had previously and frequently claimed that Oles completely concealed the evidence against respondents regarding the staging of the morphine incident;

8. A letter dated 20 October to Buczynski from respondents expressed their outrage at appellant’s 10 October 2005 letter (mentioned previously, copied to all Ocean County Superior Court judges and to two local newspapers) in which the evidence of corruption of Serpentelli and of Oles was demonstrated as well as the evidence against respondents that they staged the morphine incident.

9. A motion by appellant received and filed 26 October 2005 by the Ocean County Superior Court explicitly referred to the corruption of Oles and of Serpentelli who demonstrably shielded respondents regarding the evidence of criminal activity connected with the morphine incident.

Therefore, clearly, the morphine incident was well known to Buczynski prior to trial. Also known to Buczynski was that the morphine incident was a major issue in this case and was inseparable from the first adverse employment action, was the first act of retaliation by respondents because of appellant’s whistle blowing, and was the major determinant regarding a jury award of punitive damages.

 THE TRIAL JUDGE AND RESPONDENTS

ATTEMPTED TO DEFLECT ATTENTION AWAY FROM

THE MORPHINE INCIDENT OF 7 JANUARY

Buczynski clearly attempted to deflect attention away from the morphine theft of 7 January under appellant’s PIN.

Buczynski, clearly working for respondents’ interests but also clearly trying not to make it look too obvious, stated that there’s no allegation that he (appellant) stole anything (Vol III/Part 6, 33:17); Buczynski made this statement in front of the jury. Buczynski stated, in front of the jury, that an accusation of theft, which presumably includes morphine theft, is not relevant to the case (Vol II/Part5, 85:2)(Vol III/Part6, 33:19). Buczynski also stated that the investigation into appellant's nursing records was not to detect narcotic theft (Vol III/Part 6, 23:19). However Buczynski’s statement in Part6 of the transcript, that the investigation was not to detect theft, is inconsistent with Burke’s absurd prior testimony in Part4 of the transcript about patterns of record keeping omissions previously discussed herein. Clearly Buczynski was attempting to deflect attention away from the morphine theft of 7 January under appellant’s PIN. And Buczynski was also obviously attempting to legitimize respondents’ irrelevant and harassing investigation which is easily and overwhelmingly supported by the evidence in this case discussed previously; Buczynski’s attempt is demonstrated by his statement that Burke’s investigation, conducted in response to the morphine theft of 7 January, was not to detect theft.

Clearly in order to legitimize the irrelevant and harassing investigation, and to deflect attention away from the morphine incident of 7 January, Buczynski and respondents had to first to discredit testimony about narcotic theft (Vol III/Part6, 23:19). Appellant was of course suspended because of the morphine theft of 7 January involving the illicit removal from Pyxis that was not authorized by a physician(see box 10/Appellant 39a), and was not suspended because of a record keeping issue. Buczynski again attempted to dodge the morphine incident by stating that appellant was terminated because of his record keeping oversights and was not terminated for narcotic theft (Vol III/Part 6, 23:7); this of course is true, and of course this statement further exposes Buczynski’s bias in consideration of the facts discussed herein regarding termination for substandard charting against written hospital policy after a discriminatory investigation of appellant’s nursing records. Buczynski obviously avoided mention of the issue of a fabricated charting standard, which was a standard that he could not spin into existence. But appellant prior to his termination suffered an adverse employment action, also unmentioned by Buczynski at any time during trial, regarding his suspension following the morphine incident of 7 January.

The security report associated with the morphine incident categorized it as a theft (see box 10, Appellant 39a), and the report was introduced into evidence prior to Buczynski’s statement that appellant was not accused of stealing anything. It is because of an allegation of morphine theft, not because of a record keeping issue, that a security representative was informed that appellant reads gun magazines (Appellant 41a). And it is because of an allegation of morphine theft that the State Enforcement Bureau and the Attorney General’s office became involved in this case (Appellant 45a-48a); presumably such involvement does not occur when a nurse fails to record the color, consistency, and amount of a patient’s bowel movement; presumably such involvement would have lead to law enforcement actions, which were not taken, when a nurse fails to make undisputed duplicate record keeping entries regarding removed narcotics pursuant to a physician’s order; and presumably if appellant was not accused of the morphine theft of 7 January the state would have been given records of other nurses in addition to those of appellant (Appellant 48a).

In addition to Buczynski’s efforts to discredit narcotic theft as an issue, respondents used a Clinton-esque ploy regarding the definition of morphine theft vs morphine diversion, and clearly preferred to avoid any reference to theft; see respondents’ objection to a categorization of the morphine incident as a theft (Vol I/Part 1, 91:23); see testimony of Director of Human Relations Palaia, who was present at appellant’s suspension meeting, who denied knowledge of a morphine theft (Vol II/Part 5, 174:24), yet the illicit morphine removals of 7 January were never accounted for which is a fact of which presumably Palaia was aware; see cute testimony by McCarthy regarding the equation of diversion to theft (Vol III/Part 6, 25:17 to 29:16);(Vol III/Part 6, 22:4;; Vol III/Part 6, 33:11); Burke denied at trial that she thought appellant was guilty of the morphine theft, but was forced to repeat her clumsy deposition testimony that appellant was logically guilty of the theft because there was no other alternative as a result of her investigation which, as the Appellate Court knows, was an irrelevant sham and could not possibly make such a logical conclusion (Vol II/Part4, 170:16).

THE TRIAL JUDGE DELIBERATELY PREVENTED

THE JURY FROM ADDRESSING THE

ESTABLISHMENT OF A LEGAL ELEMENT

After the verdict was read respondents stated to Buczynski that the termination, which was addressed by the jury unlike the suspension, did not demonstrate an egregious offense by respondents and therefore significant punitive damages were not indicated. Appellant angrily replied that the staging of the morphine incident was certainly an egregious offense that resulted in the Attorney General’s office investigation of him. Appellant told Buczynski at that time that the jury was not allowed to judge respondents’ culpability regarding the staging of the morphine incident, but Buczynski clearly attempted to argue that the staging of the morphine incident was irrelevant by stating that you would not ask that question to a jury; the staging of the morphine incident was unquestionably the manifestation of retaliation for appellant’s whistle blowing, it is not credible that Buczynski thought otherwise, and his statement is clearly intellectually dishonest and dishonorable. At that time appellant then realized that Buczynski had sought to prevent the jury from being allowed to specifically judge the culpability of respondents’ regarding the staging of the morphine incident (Vol III/Section 8, 55:11 - 56:11).

Buczunski’s statement, that the jury should not have considered if respondents staged the morphine incident, is clear reinforcement of the credibility and strength of the evidence against respondents. And the fact that Buczynski stated his thought that the jury accepted appellant’s arguments that he was set up regarding the morphine incident is precisely the reason Buczynski prevented the jury from formally judging this issue (Vol III/Part8, 55:19-25).

Presiding

Judge Buczynski knew that every claimed act of retaliation and adverse employment action was relevant in this case, and that the relevant issues in this case included the issue of respondents’ staging of the morphine incident. Buczynski’s obvious dual purpose was to shield respondents from judgement regarding criminal culpability and to limit potential punitive damages by a possible subsequent court ruling; appellant of course would never trust any Ocean County judge to fairly award damages, and would therefore never agree to a judicial award in lieu of a jury award. Appellant, who is a nurse forced by necessity to argue his first trial, must not be penalized for his failure to recognize Buczynski’s attempt to shield respondents regarding the morphine incident. Appellant must also not be penalized for failing to insist that his proposed jury verdict form (Appellant 9a) be considered regarding the staging of the morphine incident.

Buczynski obviously knew that the jury should have been allowed to judge respondents’ retaliation regarding the staging of the morphine incident. Even in the absence of appellant’s proposed jury verdict form and instructions (Appellant 9a, 59a-60a) Buczynski was obligated to honor the legislative intent of the CEPA statute which specifically addressed employer retaliation. No credible argument can be made that Buczynski was unaware that the morphine incident demonstrated at least relevant alleged retaliation in this case. Buczynski was also obligated to adhere to the Model Civil Jury Charges and to ensure that the jury was allowed to decide if the suspension was proven by a preponderance of the credible evidence to be an adverse employment action.

RESPONDENTS CLAIMED THAT THE TRIAL JUDGE

SHOULD HAVE DISMISSED THE CASE

Immediately after appellant rested his case respondents requested that the trial judge dismiss the case on the grounds that appellant had not presented tangible evidence that his whistle blowing was based on a code of professional ethics which in this case was based on a violation of Provision 3.5 of the Code of Nursing Ethics which was noted to the Appellate Court at the time of appellant’s first appeal.

NJSA 34:19-3a states An employer shall not take any retaliatory action against an employee because the employee does any of the following:
Discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer or another employer, with whom there is a business relationship, that the employee reasonably believes is in violation of a law, or a rule or regulation promulgated pursuant to law, or, in the case of an employee who is a licensed or certified health care professional, reasonably believes constitutes improper quality of patient care.
.

NJSA 34:19-2f states and defines that Improper quality of patient care means, with respect to patient care, any practice, procedure, action or failure to act of an employer that is a health care provider which violates

1)any law or any rule, regulation or declaratory ruling adopted pursuant to law, or 2) any professional code of ethics. CEPA makes no requirement that in order to establish the first legal element tangible evidence of a professional code of ethics be presented to a fact finder. Section 2.32 of MODEL CIVIL JURY CHARGES states to establish the first element of his claim, it is the plaintiff's burden to prove by a preponderance of the evidence that in light of the circumstances facing him and the knowledge possessed by him at the time he formed his belief, he had a reasonable belief that the defendant was violating ..any professional code of ethics. Section 2.32 continues by stating that in making such a determination, you are to consider whether or not plaintiff possessed the qualifications necessary to establish a reasonable belief. In other words, you are to take into account plaintiff's educational background and employment responsibilities. Clearly the establishment of the first element is based upon a qualification to form a reasonable belief, and the jury need only consider appellant’s education, knowledge, and job experience which reasonably included a knowledge of a professional code of nursing ethics. Appellant’s whistle blowing was based on an undeniably qualified concern regarding patient quality of care and as such could be reasonably interpreted by a jury as being based on a code of nursing ethics, however it is inconceivable that the legislative intent was not to protect appellant’s qualified conscientious behavior in this case even if Provision 3.5 of the Code of Nursing Ethics did not exist. Nevertheless the only relevant concern for a fact finder regarding the establishment of the first element is whether appellant in this case was qualified to form a reasonable belief that allowing bedridden patients to lie for prolonged periods in their concealed excreta was either unethical or improper care. The language of the jury charge is clear regarding the requirement of tangible evidence; such tangible evidence is mentioned in section 2.32 regarding the establishment of the fourth element, however no such mention is made regarding the establishment of the first element. It is presumed that the legislative intent of CEPA is not to deny protection to appellant in this case simply because he did not present tangible evidence of Provision 3.5 of the Nursing Code of Ethics to the jury.

 

The Code of Nursing Ethics states when the nurse is aware of inappropriate or questionable practice in the provision or denial of health care, concern should be expressed to the person carrying out the questionable practice; if indicated the problem should be reported to an appropriate higher authority within the institution, or to an appropriate external authority. At the time of respondents’ motion for a dismissal of the case Provision 3.5 of the Code was presented to the trial court who seemingly interpreted the legislative intent and the Appellate Division intent and did not dismiss the case (Vol III/Part7, 3:19). After listening to appellant’s trial testimony, which noted his belief that prolonged skin contact with excreta can lead to skin excoriation and possible infection, the jury had only to consider without access to tangible evidence of the Code of Nursing Ethics if appellant was qualified to reasonably form this belief of potential patient harm. Obviously the ultimate legislative intent of CEPA was to protect via conscientious behavior the general welfare of the citizens, and that protection is precisely what appellant tried to do by registering his complaint with the Department of Health.

Buczynski’s refusal to dismiss the case based upon respondents’ argument that the first element was not established does not weaken appellant’s claim of local judicial bias in favor of respondents.

RESPONDENTS CLAIMED THAT APPELLANT WAS TERMINATED

FOR MAKING SERIOUS RECORD KEEPING ERRORS

The legal element regarding the establishment of causal connection in this case involves the termination for substandard charting (Appellant 10a); there is no mention that appellant was terminated for making serious charting errors, and there is no mention that any patient was actually harmed or could have been harmed as a result of appellant's record keeping oversights. It is a fact that no actual harm to patients resulted, and no duplicate dose was given to a patient because of appellant’s seven record keeping oversights. In order to establish that the termination was a pretext for retaliation appellant had only to demonstrate by a preponderance of the credible evidence that the reason for termination was fabricated; in other words, appellant had to demonstrate that there was no charting standard at CMC. The demonstration that no charting standard existed was aided by the disciplinary guidelines for documentation problems (Appellant 56a-57a) and the absence of a written policy specifying that termination is indicated for less than perfect nursing record keeping. Obviously a claim of serious charting errors could not create a charting standard, therefore the establishment of pretext could not be prevented by claiming serious record keeping errors by appellant, therefore the obviously-tailored testimony by a paid medical expert regarding the transparently fabricated post-litigation claim of serious charting errors was clearly irrelevant.

Appellant is confident that a jury will recognize respondents’ medical for-hire expert at a second trial, nevertheless a post-litigation claim of serious charting errors cannot erase the official pre-litigation reason for termination, and such a claim of serious errors cannot prevent the establishment of pretext regarding substandard charting. Further, the testimony of a paid witness cannot establish a charting standard at CMC, written or otherwise. Therefore the Appellate Court, since it will without doubt not grant a second request for change of venue away from the demonstrable judicial corruption in Ocean County, is requested to preclude definite and corrupt judicial aid to respondents by the local court by ordering that irrelevant testimony regarding serious charting errors be prohibited. Such an order by the Appellate Court will help prevent a third appeal in this case by either appellant or by respondent; appellant will surely appeal for a third time if such irrelevant, purchased and mendacious testimony is allowed in a second trial. During the trial appellant requested during a side bar conference that respondents’ expert be prohibited from testifying about serious errors (Vol III/Part7, 18:4), but that request was denied. Appellant prior to becoming a nurse was a nine year research chemist for AT&T Bell Labs, was known to have an impressive knowledge about the workings of medications, and was known to be a caring nurse; such a characterization is inconsistent with a nurse who endangers his patients in any way by making serious errors (Vol III/Section 6, 54:22-56:6). Clearly appellant, though according to Buczynski is not officially qualified to testify as an expert, is nevertheless qualified by knowledge, job experience, and education (baccalaureate in chemistry) to recognize and state that respondents’ medical expert prostituted himself at trial regarding his testimony about serious charting errors. And surely the Appellate Court can recognize the transparent efforts by respondents to irrelevantly examine appellant’s nursing records, after the morphine incident, because of the certainty of finding record keeping oversights that could be used against him.

A REASONED ANALYSIS OF THE CLAIM

OF SERIOUS CHARTING ERRORS

It should be noted that the narcotics involved in this case are anti-anxiety agents Xanax and Valium and a single dose of the analgesic Percocet all of which are well-known, presumably also to the Appellate Court and also to Buczynski, and are commonly prescribed and safely used outside the hospital setting where, also presumably, commonly occurring drug interactions and other adverse effects would otherwise preclude their use.

Respondents claimed that appellant made serious errors that placed patients in jeopardy, but respondents did not notify the associated physicians that their patients were supposedly jeopardized by a nurse (Vol I/Part 3, 40:11) (Vol II/Part5, 23:15-25:8); clearly the reason why the physicians were not notified was that the record keeping oversights were meaningless and were first pronounced to be serious by Burke who was unfamiliar with the capabilities of drug testing. Presumably a physician would be notified if his patient was endangered by a nurse regardless of the time period between the alleged endangerment and its discovery.

Burke also claimed that appellant made a serious error that was specifically more troubling than a record keeping oversight, namely by giving the first of three-daily Valium doses to a patient at 8AM rather than at 9AM without obtaining a physician’s order. A physician of one of the patients associated with this case testified that he would not require a nurse to obtain his authorization to give the first of two or three daily doses at 8AM rather than at 9AM (Vol I/Part3, 39:20). It should be noted that Buczynski would not allow any of the physicians associated with the record keeping oversights involved with this case to testify about the seriousness of the oversights. The physicians, who would not have been paid to testify, would have provided material and credible testimony unlike respondents’ paid medical expert. And the Appellate Court probably recognizes that the physicians would have supported appellant’s position that the record keeping oversights associated with this case were meaningless.

Buczynski referenced the paid, specious, and irrelevant testimony of respondents’ expert medical witness, and made a biased post-verdict statement that appellant’s termination was warranted because of his record keeping oversights (Vol III/Section 8, 49:9-50:8). Buczynski clearly attempted to emphasize the claimed seriousness of appellant’s record keeping oversights (Vol III/Part8, 49:9-50:17), and his attempt rivaled that of Edward Oles in a measure of absurdity (see Vol III/Part8, 49:14-22); Oles expressed at Summary Judgment a fear of Percocet addiction which was unsupported by evidence in the record; of course such evidence does not exist outside the record(Appellant 70a, 7:4-8:1). It is seemingly miraculous that appellant’s supposedly numerous record keeping deficiencies did not cause a patient so much as a mild headache.

Buczynski’s vague generalized comments supporting the claim of serious errors cannot be founded on educated reason nor obviously upon personal experience, and are presumably founded on the irrelevant and vague testimony of respondents’ paid medical expert who offered testimony about triplopia, liver and kidney impairment, and morphine and heparin infusions in addition to the number of unspecified medical errors made annually that presumably resulted in patient harm (Vol III/Part7, 11-43). Buczynski’s comments were also not supported by a single piece of empirical data or hard data; presumably such hard data specifically regarding Valium, Xanax, or Percocet that could not have been bought would have been unimpeachable and undeniably damaging to appellant’s case, yet such evidence was not presented obviously because it does not exist. Appellant was not allowed to give relevant testimony to defend against these false allegations of serious errors, and respondents’ expert made no mention about the relevant pharmacology of the involved narcotics which included documented half-lives (the amount of time needed for the body to excrete half of an ingested medication), the recommended dosing schedule, and the amount needed to cause adverse affects; the primary adverse effect which is rare according to the literature, and which was unmentioned by the expert, is respiratory depression for all three of the narcotics involved in this case. In the case of Valium and Xanax massive amounts are needed to cause respiratory depression and this is the reason why these medications are inherently safe to use outside the hospital. Indeed, no adverse effects whatsoever were mentioned at trial by respondents’ expert.

A medication cannot be given to a patient, nor can it be charted electronically as being given, without a physician’s order. In the event of a patient’s adverse change in status it is not rational to suggest that a patient could have suffered because of appellant’s failure to chart the administered narcotics in this case pursuant to a physician’s order especially since the involved uncharted narcotics did not represent initial doses; recall the previous mention of half-life which in the case of Valium and Xanax according to the literature have mean values of at least eleven hours. And because of their particular reason for use, namely anti-anxiety and mild analgesia, consider that the narcotics involved could not possibly mask, as Buczynski suggested could mask, ominous-sounding, unspecified life-threatening symptoms. The Appellate Court should be able to reason that life-threatening symptoms necessarily relate to respiratory and cardiac symptoms; obviously, respiratory symptoms are poorly masked when a patient is gasping for breath, and adverse cardiac rhythms are poorly masked when a portable or wireless electrocardiogram is employed.

Based upon appellant’s nine year close observation of routine physician practice a physician would check existing medication orders, and would not check nursing records, prior to ordering a medication to be given to a patient; appellant repeatedly emphasized and confirmed during the questioning of hostile witnesses that no physician complained about appellant’s record keeping oversights even though such oversights could have easily been recognized by a physician who checked appellant’s nursing records; the evidence at trial was that the physician’s do not routinely check nursing records (Vol II/Part5, 110:1).

Further for the uninformed, in the event of a life-threatening change in patient status the symptoms are first treated whether they be depressed breathing or adverse cardiac rhythms. In the event of a patient change in status the administering/primary nurse assigned to a patient would be at the forefront of any response to answer questions about recent medication administrations. In the unlikely event that both a change in patient status occurred when the primary nurse was unavailable, a savvy responder could review both the Pyxis records and the MIS patient record regarding physician medication orders to determine recent medication administration; recall the Unreported Scheduled Medication printout and the possibility that an unavailable primary nurse had not charted an administered medication within three hours of administering it (Appellant 58a), hence the unreliability of checking nursing records; consider also that some nurses might keep records which are as truthful as Burke’s testimony under oath.

But Buczynski was willing to ignore the obvious purpose of the irrelevant investigation by Burke and McCarthy, to ignore the obviously false and twisted testimony given by Burke, and to ignore the logic of appellant’s presentation of his case. Buczynski stated for the record that appellant’s termination was in and of itself grounds for dismissal (Vol III/Part 8, 49:9-50:8). Buczynski essentially stated that appellant was legitimately terminated, and his statement is consistent with the Ocean County judiciary’s bias in favor of respondents (see Oles’ opinion regarding Summary Judgment, Appellant 1a-8a).

REQUESTS TO THE APPELLATE COURT

1. Order that the jury verdict be set aside which was in favor of appellant, and order a new trial so that a jury can be presented with evidence necessary to award compensatory damages which are significant, and punitive damages which justice demands. Compensatory damages include a sum of $54,000 in legal/attorney fees in addition to a $13,000 sum which represented unused earned vacation time that respondents refused to pay appellant after his termination; the earned $13,000 sum is no different than wages earned for time actually worked and included time that appellant worked on paid holidays. Respondents’ excuse for the refusal to reimburse appellant the $13,000 sum is because appellant was terminated for cause, but of course in this case the cause was clearly fabricated; respondents therefore cheated appellant and arguably stole this $13,000 sum from him. Compensatory damages also include wages lost as a result of appellant first being suspended after being accused of morphine theft and then terminated for the fabricated excuse of being a substandard nurse. Appellant has not worked in the field of nursing since his termination, and received his latest job rejection on 28 April 2006 from Deborah Hospital. This second appeal has added about $5,500 to appellant’s legal fees primarily because of the cost of the complete trial transcript which respondents demanded rather than appellant’s requested abbreviated transcript.

2. Included in the pre-trial information exchange provided to the trial judge was appellant’s proposed jury verdict form and jury charges which requested that the jury consider the question regarding respondents’ staging of the morphine incident (Appellant 9a, 59a-60a). Appellant requests that the Appellate Court order that a new trial include jury instructions to consider that the termination in this case was not the only adverse employment action to occur, and order that a jury verdict form include the following question:

Did Plaintiff prove by a preponderance of the credible evidence that Defendants staged the morphine thefts of 7 January 2001 which directly lead to Plaintiff’s immediate suspension?

The morphine incident is inseparable from appellant’s suspension on 8 January 2001, and suspension is an adverse employment action mentioned in the CEPA statute as well as in the Model Civil Jury Charges and must therefore be addressed in a jury verdict form.

3. Order that a new trial include an amended jury verdict form as follows (see Appellant 61a-62a for the actual form that was used at trial):

Did Defendants prove by a preponderance of the credible evidence that Plaintiff was terminated for a legitimate nondiscriminatory reason?

The actual wording of jury question #4 regarding articulate or advance (see Appellant 62a) was not only misleading to the jury but was also irrelevant. Appellant also believes that question #4 demonstrates judicial bias in favor of respondents since the trial judge stated after the verdict was read that the jury decided that appellant’s termination was legitimate (Vol III/Section 8, 50:12). Referring to appellant’s admitted seven record keeping oversights, the trial judge stated that is a legitimate reason (for dismissal) in and of itself (also, Vol III/Part8, 54:6-13).

Articulating or advancing

arguments in order to prove or disprove a legal element do not ultimately matter to a jury; the only relevant question for the jury was the question whether or not a party proved or disproved a legal element by a preponderance of the credible evidence, yet question #4 addressing articulating or advancing was authored and presented to a jury in this case by experienced members of the legal profession. And the inclusion of nondiscriminatory in the proposed jury question #4 allows the jury to judge discrimination by respondents (Kolb v. Burns, supra, 320 N.J. Super. at 478).

4. The reality of this case is that local interests favoring respondents influence the decisions of the local court, and of course the Appellate Court knew this at the time of the first appeal in this case; this reality is the basis for the following request. The Appellate Court is requested to order that demonstrably irrelevant and obviously misleading and/or false testimony be prohibited regarding claimed serious charting errors that were made by appellant. Such testimony if allowed will be followed by a third appeal in this case.

 

CONCLUSION

Appellant’s five and a half year experience at the writing of this brief has shattered his life. During the five and a half year experience appellant exhausted his life savings on attorney fees and was compelled to represent himself which exposed him to the hazard demonstrated by the outcome of trial. During the five and a half years appellant had to fight not only respondents but also the biased and corrupt local judiciary as was exemplified by the undeniably corrupt granting of Summary Judgment against appellant.

If appellant is allowed to seek damages from a second jury it will come after almost seven years and two appeals after his suspension following an accusation of morphine theft. And the seven year experience will be, as a jury decided, because of appellant’s concern for others regarding his complaint to the Department of Health and Senior Services.

Clearly the intent of the CEPA statute was to allow compensatory and punitive damages for successful plaintiffs who arguably are looking out for the other person. Clearly it is not the intent of CEPA, because of a procedural misstep, to deny damages to a whistle blower who demonstrates successfully that an employer retaliated against him because of his conscientious behavior.

This case demonstrated repeatedly that respondents were protected by the Ocean County Superior Court, first by the granting of Summary Judgment against appellant by Edward Oles who completely concealed the evidence that respondents staged the morphine incident (see Oles’ written opinion, Appellant 1a-8a) and stated indirectly but clearly implied that appellant would be held responsible for the morphine incident (Appellant 2a:20-22). Oles’ written opinion states that there was no evidence of pretext for termination in this case, nor was there evidence of a post-hoc fabrication for termination (Appellant 8a:1-4). A jury readily recognized pretext in this case as did the Appellate Court at the time of the first appeal, and a jury will of course recognize pretext in a second trial.

Ocean County Assignment Judge Eugene Serpentelli shielded respondents in writing in a letter dated 2 May 2005 by refuting that evidence of criminal wrong doing existed and stating that In response to your letter of March 14, 2005--- I see no basis for the court to take any action regarding your allegations. The letter dated 14 March 2005 from appellant to Serpentelli detailed the evidence of Edward Oles’ corruption and the criminal culpability of respondents regarding their staging of the morphine incident. Also mentioned in the 14 March 2005 letter was that the Ocean County Prosecutor completely stonewalled appellant’s allegations of respondents’ criminal activity in this case. The Appellate Division also refused to address evidence of criminal wrong doing, and stated in an order dated 21 April 2005 that If appellant believes he has evidence of corruption and criminal activity he should bring it to the attention of the appropriate law enforcement office--- county prosecutors, not judges, prosecute the criminal business of the State. Of course appellant is aware that Superior Court Assignment Judges can compel action in instances of prosecutorial abuse of discretion, and that Appellate Court judges can compel action in instances of abuse of discretion by Superior Court Assignment Judges.

Trial judge Buczynski undeniably shielded respondents regarding their guilt of staging the morphine incident which involved violation of NJSA 2C:21-17 (theft of identity) and NJSA 2C:2-6/2C:5-2 (conspiracy), and NJSA 2C:28-3 (making a knowingly false and/or misleading statement to the investigation arm of the Attorney General’s office).

The Ocean County judiciary is clearly and undeniably corrupt. Appellant realizes that if a new trial is granted a change of venue out of Ocean County will not be ordered; obviously such an order will be interpreted as an acknowledgement of the corruption. The Appellate Court knows that the premise cannot be denied that it is part of a conspiracy in the most notoriously corrupt state in the USA to cover up all instances of judicial corruption, and the return of this case to a court known to be corrupt, if a new trial is granted, obviously supports such a premise.

 

________________________

                                              David A. Miller


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