Opinion
DOCKET NO. A-1481-12T2
01-06-2015
IN THE MATTER OF THE SUSPENSION OR REVOCATION OF THE LICENSE OF MARSHA J. KLEINMAN, PSY.D. LICENSE NO. 35S100231900 TO PRACTICE PSYCHOLOGY IN THE STATE OF NEW JERSEY.
Andrew S. Han (O'Melveny & Myers LLP) of the District of Columbia bar, admitted pro hac vice, and Clarke T. Edwards (O'Melveny & Myers LLP) of the District of Columbia bar, admitted pro hac vice, argued the cause for appellant Marsha J. Kleinman (Matthew J. Sheehan (O'Melveny & Myers, LLP) and Messrs. Han and Edwards, attorneys; Mr. Sheehan, on the brief). Susan Carboni, Deputy Attorney General, argued the cause for respondent New Jersey State Board of Psychological Examiners (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Carboni, on the brief). Noy S. Davis (Schiff Hardin LLP) of the District of Columbia bar, admitted pro hac vice, argued the cause for amici curiae The Leadership Council on Child Abuse and Interpersonal Violence, Child Justice, Inc., and First Star, Inc. (Ceconi & Cheifetz, LLC, and Ms. Davis, attorneys; Cary B. Cheifetz, Vito Colasurdo, Jr., Geoffrey H. Coll, and Ms. Davis, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher, Nugent and Manahan. On appeal from the New Jersey Board of Psychological Examiners. Andrew S. Han (O'Melveny & Myers LLP) of the District of Columbia bar, admitted pro hac vice, and Clarke T. Edwards (O'Melveny & Myers LLP) of the District of Columbia bar, admitted pro hac vice, argued the cause for appellant Marsha J. Kleinman (Matthew J. Sheehan (O'Melveny & Myers, LLP) and Messrs. Han and Edwards, attorneys; Mr. Sheehan, on the brief). Susan Carboni, Deputy Attorney General, argued the cause for respondent New Jersey State Board of Psychological Examiners (John J. Hoffman, Acting Attorney General, attorney; Andrea M. Silkowitz, Assistant Attorney General, of counsel; Ms. Carboni, on the brief). Noy S. Davis (Schiff Hardin LLP) of the District of Columbia bar, admitted pro hac vice, argued the cause for amici curiae The Leadership Council on Child Abuse and Interpersonal Violence, Child Justice, Inc., and First Star, Inc. (Ceconi & Cheifetz, LLC, and Ms. Davis, attorneys; Cary B. Cheifetz, Vito Colasurdo, Jr., Geoffrey H. Coll, and Ms. Davis, on the brief). PER CURIAM
Psychologist Marsha J. Kleinman appeals a determination of the Board of Psychological Examiners that she committed gross professional malpractice in her treatment of a three-year-old girl, S.R., who was a suspected victim of child sexual abuse at the hands of her father, D.R., and, in an unrelated matter, in encouraging an adult client, D.C., to make false accusations of child sexual abuse against her husband. Kleinman contends the Board erred in adopting the recommendations of the administrative law judge (ALJ), who presided over a twenty-day hearing, claiming the ALJ made erroneous evidentiary rulings and misapprehended the facts. We reject these arguments and affirm.
The proceedings commenced when, on March 26, 2004, D.R. filed a complaint with the Board, accusing Kleinman of committing professional malpractice while providing court-ordered therapy to S.R., his daughter. The Board investigated the complaint over a period of years and obtained an expert evaluation of Kleinman's conduct from Dr. David A. Martindale.
In July 2007, the State filed an administrative complaint against Kleinman. After Kleinman filed an answer, the Board transmitted the matter as a contested case to the Office of Administrative Law, which assigned an ALJ.
In February 2008, the State filed an amended complaint, alleging Kleinman committed malpractice during the course of court-ordered treatment of S.R.: by acting as a forensic investigator and inappropriately questioning the child in a suggestive, coercive, or manipulative manner (count one); by failing to obtain all reasonably available information and documentation to allow her to accurately determine what portion of S.R.'s emotional distress, if any, was attributable to sources other than alleged sexual abuse by D.R. (count two); by not providing the family court judge with a fair, objective, and unbiased assessment of the facts, which included her failure to inform the judge or any party of information that could be viewed as exculpatory to D.R. (count three); and by holding herself out as an expert in the fields of forensic investigations and child sexual abuse, despite the fact that her competence, education, and training did not so qualify her (count four). The State also alleged Kleinman violated recordkeeping regulations by failing to maintain complete and contemporaneous records that accurately reflected her contact with S.R., by failing to maintain records from other professionals who had evaluated the child, and by failing to integrate such records into the treatment (count five). The State lastly alleged Kleinman engaged in professional misconduct by encouraging a litigant, D.C., to falsely accuse her husband of sexually abusing their child, and by referring D.C. to her sister, an attorney (count six).
Prior to commencement of the hearing in September 2010, the State moved to bar testimony from certain of Kleinman's proposed witnesses. On March 12, 2010, the ALJ granted the motion in part, excluding testimony from certain proposed witnesses and precluding Kleinman from attempting to prove that D.R. had, in fact, sexually abused his daughter. The ALJ found evidence of D.R.'s alleged culpability was not relevant to "the only issue transmitted by the Board to this forum," i.e., "whether [Kleinman] complied with the ethical and professional standards of a licensed psychologist in formulating her opinion and conducting her professional practice."
Kleinman also moved at the start of the hearing, and during the hearing, to exclude testimony from Martindale, claiming he was not qualified to provide expert testimony regarding Kleinman's treatment of S.R. The ALJ denied those motions.
The hearing began on September 24, 2010, and ended on May 16, 2011. The record was closed on July 27, 2011, with the presentation of the parties' final submissions.
The matter was not tried continuously and there was a long adjournment due to the illness and ultimate death of Kleinman's former counsel.
Approximately one year later, on July 13, 2012, the ALJ issued her initial decision, finding in favor of the State on all six counts of the amended complaint. The ALJ found "Kleinman's treatment of S.R. generally and specifically constituted gross and repeated deviations from the standard of care," requiring revocation of her license. In reaching this conclusion, the ALJ found the State's experts credible and their testimony consistent with the factual record; in contrast, the ALJ found the testimony from Kleinman's experts to be uninformed and inconsistent with the underlying facts.
Specifically, the ALJ concluded on count one that Kleinman inappropriately acted in the dual role of forensic investigator and clinical therapist, constituting "gross professional malpractice, repeated acts of professional malpractice, and professional misconduct under N.J.S.A. 45:1-21, and the misuse of influence in a manner that exploits the client's trust and dependency under N.J.A.C. 13:42-10.8(g)." "That conduct constituted not only repeated acts of malpractice, but also gross malpractice under N.J.S.A. 45:1-21(c) and (d), because her conduct fell far below the degree of care, knowledge, and skill ordinarily possessed and exercised in similar situations by the average psychologist[.]"
The ALJ found that "[i]n the guise of performing play therapy, Kleinman interacted with the child in a manner that manipulated the situation and suggested explanations and answers based upon [Kleinman's] own interpretation of the play." She "frequently asked S.R. leading questions and corrected her when the answers did not meet expectations." And Kleinman offered the child "rewards while positing repeated questions." We have independently reviewed the extensive record on appeal and find more than ample support for these findings.
The ALJ found that, to the extent Kleinman was acting as a forensic psychologist, she acted inappropriately because she did not approach the evaluation with an open mind, repeatedly asked leading questions, and corrected the child when her answers did not meet her expectations. The ALJ concluded that Kleinman's "coercive and improper questioning was inherently wrong[,] was unprofessional, and tainted any possible investigation of sexual abuse by D.R." The ALJ also found Kleinman to have exploited S.R.'s trust by falsely encouraging her to believe she was speaking confidentially. And, to the extent Kleinman was acting as a treating psychologist, the ALJ found she had erred by failing to prepare a treatment plan, by breaching her obligation to maintain confidentiality, by diagnosing dissociative disorder and fugue, and by using the term "psychotic break" to describe S.R.'s conduct. Additionally, the ALJ found Kleinman erred by diagnosing S.R. with post-traumatic stress disorder and by treating S.R. for trauma that may never have existed. In this regard, the ALJ found that "[o]ther than the mother's statements and the alleged evidence created by Kleinman, there was no credible evidence in the record that the child had been abused or traumatized." The ALJ found no evidence that Kleinman "succeeded in implanting false memories in S.R.," but she did "cause[] the child continued distress and confusion by positioning herself as a friendly adult and subjecting the child to a repeated pattern of harassment and reward."
As for count two, the ALJ determined that Kleinman's
failure to obtain all reasonably available, relevant information constituted gross professional malpractice, repeated acts of professional malpractice, and professional misconduct under N.J.S.A. 45:1-21(c) and (d), because her conduct fell far below the degree of care, knowledge, and skill ordinarily possessed and exercised in similar situations by the average psychologist when she proceeded with her treatment plan for S.R. solely on the basis of statements made by S.R.'s mother, and failed to seek a release to obtain reports
from S.R.'s pediatrician or [the Division of Youth and Family Services (the Division)].Kleinman's failure to obtain this information precluded her from accurately determining "whether any portion of S.R.'s emotional distress was attributable to sources other than alleged sexual abuse, including the conflict between her parents and her parents' psychological states." In this regard, the ALJ found Kleinman "showed a lack of neutrality by rushing to judgment without entertaining alternative hypotheses."
Now known as the Division of Child Protection and Permanency.
The ALJ sustained count three, which alleged Kleinman committed gross and repeated malpractice under N.J.S.A. 45:1-21(c) and (d), by "distorti[ng], misus[ing], or suppressi[ng]" psychological findings, N.J.A.C. 13:42-10.8(f), in providing "false and misleading information to the court." "Based upon a comparison of the videotaped evidence with Kleinman's office records and the contents of her letters directed to the court," the ALJ found it clear that Kleinman "withheld all exculpatory information regarding D.R.," including "crucial data relevant to the court in evaluating the credibility of the child's accusations." For example, Kleinman withheld from the family court judge the child's statements that her father's penis was "green" and "a tablecloth came out of it," and of the child's accusation that a court-appointed psychologist had molested her — statements that had no basis in fact and may have suggested the child's accusations, coercively elicited by Kleinman, were not credible. Also, Kleinman "urged the child to say that her father had abused her, and ignored evidence of coaching by the mother." And Kleinman "falsely represented the child's statements as spontaneous, whereas the record reveals that they were the product of [Kleinman's] relentless inquisition." Thus, "the information provided to the court represent[ed] Kleinman's own hypothesis rather than genuine expressions of the child's thoughts and emotions."
Kleinman also "overstated the risk of harm to the child through having contact with her father and [] failed to provide the [family judge] with a balanced assessment of the facts." She "interceded between the child and her father by not letting the father talk to his daughter and by falsely telling the child that her father didn't want to speak to her." And "[s]he refused to allow any contact with the child until the father had admitted the alleged wrongdoing and paid all of [her] outstanding bills."
In addition, the ALJ found the State had proven count four of its amended complaint — that Kleinman committed gross and repeated malpractice under N.J.S.A. 45:1-21(c) and (d) and N.J.A.C. 13:42-9.4(a), 13:42-9.7(g), and 13:42-10.4(d) — when she misrepresented her expertise and undertook an investigation beyond her competence, education, and training. In this regard, the ALJ determined that Kleinman held herself out as an expert in forensics and child sexual abuse but "failed to perform in accordance with her alleged training and experience."
According to the ALJ, Kleinman also "falsely represented that she was an expert in performing [EMDR] therapy with children." The ALJ found Kleinman "had no real grasp of even basic EMDR," possessing only the "basic minimum" of training in the treatment protocol. The person who she claimed had supervised her denied any such supervision of Kleinman, and Kleinman was unable to give a coherent explanation of EMDR therapy; in fact, her treatment of S.R. revealed she did not follow the protocols for this therapy.
Eye Movement Desensitization and Reprocessing.
The ALJ also found the State had proven count five of its amended complaint — that Kleinman failed to maintain accurate and contemporaneous records, N.J.A.C. 13:42-8.1. Kleinman's notes of her sessions with S.R. "were incomplete, inaccurate and illegible" and a "[c]omparison of her notes to the videotapes establishe[d] that Kleinman failed to accurately memorialize what occurred during her sessions." She also failed to include records and reports from other professionals and never developed a treatment plan, identified goals for treatment, or formulated a method for determining when treatment goals had been reached.
And the ALJ found the State had proven count six of its amended complaint — that Kleinman had committed gross professional misconduct, N.J.S.A. 45:1-21 — by suggesting to D.C. that she fabricate allegations of child molestation against her husband, and by failing to provide D.C. with the required receipt for medical services based upon a conflict of interest she created by referring D.C. to her sister for legal services. Although sharply disputed, the ALJ credited D.C.'s testimony over that of Kleinman.
"Given the egregious nature of Kleinman's gross and repeated malpractice and acts of professional misconduct," the ALJ recommended the revocation of Kleinman's license to practice psychology in New Jersey and the imposition of a civil penalty of $60,000, together with the costs incurred by the State.
Kleinman filed exceptions, and the Board held hearings on October 22 and November 5, 2012. On December 4, 2012, the Board issued its final decision and order. In a lengthy and thorough written decision, the Board adopted the ALJ's findings of fact and conclusions of law, with one exception relating to the fourth count (Kleinman's misrepresentation of her expertise). The Board concurred with the ALJ's recommendations concerning sanctions, which the Board found were justified "in consideration of the egregious nature of the violations in this matter." The Board also stated:
Respondent has admitted that she is aware of the role of a therapist and an evaluator based on her 25 year career and knows the standards of practice, yet her actions in the S.R. matter evidence that she flagrantly ignored the conflict created by the multiple roles she assumed, and engaged in actions that violated both the standards of practice of a therapist and of a forensic evaluator as demonstrated by the leading and coercive nature of the questions to which she subjected a three year-old child, and her failure to independently assess the trauma and the causes of the trauma. Having education, training and experience in forensic practice, Respondent nonetheless blatantly ignored professional practice standards that obligated her to inform the court that professionally she could not assume both roles as was testified to by both the State's and Respondent's forensic experts. Having experience and training, she nonetheless relied on a theory of sexual abuse without any independent assessment of sexual abuse.
Having assumed both roles, Respondent throughout this matter during the testimony and evidence presented at the administrative proceeding, and as asserted at the mitigation hearing, claimed that her conduct in the S.R. matter was that of a psychologist performing play therapy. The evidence, including videotapes, audiotapes, the client record of S.R., and letters to the Court all demonstrate that the Respondent assumed the evaluator role as well. Respondent's play therapy sessions
evidenced repeated questioning that was coercive and badgering of the child and appear to provide little therapy, but rather, investigatory tactics.The Board affirmed the revocation of Kleinman's license, the imposition of $60,000 in penalties, and the imposition of the $242,644 in costs incurred by the State. The Board also denied Kleinman's motion for a stay.
The Board was troubled by Respondent's pursuit of treatment on a three year-old child with EMDR without obtaining advanced training. Respondent falsely represented having obtained such training as testified by Dr. Tinker, her claimed supervisor. A review of the client record of S.R. evidences that Respondent failed to incorporate targets, and achieved very few of the eight stages of the treatment.
The Board has concerns that Respondent lacks insight into appropriate boundaries of a licensed psychologist as evidenced by her readiness to recommend to a court that D.R.'s visitation with S.R. be terminated based on harm to the child when Respondent failed to independently assess trauma and failed to entertain alternative hypotheses. In the matter of D.C., Respondent's lack of boundaries was demonstrated by her referral of D.C. for legal services to Respondent's own sister.
We denied Kleinman's motion for a stay pending appeal and later granted the motions of Leadership Council on Child Abuse and Interpersonal Violence, Child Justice, Inc., and First Star, Inc., to appear as amici curiae.
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I. THE TRIAL COURT ERRED IN EXCLUDING ALL THE EVIDENCE RELATING TO THE GUILT OR INNOCENCE OF D.R.We find no merit in these arguments and affirm.
II. [THE ALJ'S] FINDINGS AGAINST DR. KLEINMAN ARE BASED ON THE ERRONEOUS ASSUMPTION THAT SHE WAS PROVIDING FORENSIC SERVICES.
A. Dr. Kleinman's Communications to the Family Court Regarding S.R.'s Therapy Did Not Transform Her Treatment into a Forensic Investigation.III. DR. MATINDALE NEVER SHOULD HAVE BEEN ALLOWED TO TESTIFY ABOUT DR. KLEINMAN'S
B. Guidelines for Forensic Evaluations Do Not Apply to Therapeutic Services.
TREATMENT OF S.R.
A. Dr. Martindale Was Not Qualified To Offer an Expert Opinion in This Case.
B. [The ALJ] Improperly Allowed Dr. Martindale To Opine Far Outside the Scope of His Expertise.
IV. [THE ALJ] ERRED BY EXCLUDING AND IGNORING EVIDENCE THAT UNDERMINED D.C.'S CREDIBILITY.
A. Dr. Kleinman Was Not Allowed to Challenge D.C.'s Testimony.
B. [The ALJ] Disregarded Other Objective Evidence that Undermined D.C.'s Credibility.
C. [The ALJ's] Decision Regarding D.C.'s (and Dr. Martindale's) Credibility Was Arbitrary and Capricious.
I
Kleinman contends the ALJ erred in excluding evidence relating to D.R.'s guilt or innocence, claiming this evidence was relevant and critical in establishing the context and reasonableness of her conduct. Amici join in this argument, contending that: "The extent and nature of the information the therapist would have received would be important in evaluating, for license revocation purposes particularly, whether any particular therapist had sufficient information to proceed with any particular therapy." In amici's opinion, Kleinman was not permitted to demonstrate the good-faith basis for her treatment approach, and, if allowed to stand, the evidentiary ruling would have a chilling effect on therapists.
Evidentiary rulings are reviewed for an abuse of discretion. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010); Bd. of Educ. of City of Clifton v. Zoning Bd. of Adj. of City of Clifton, 409 N.J. Super. 389, 430 (App. Div. 2009); N.J.S.A. 52:14B-10(a). As explained by the ALJ in her March 12, 2010 order, the question presented concerned "whether [Kleinman] complied with the ethical and professional standards of a licensed psychologist in formulating her opinion and conducting her professional practice." Evidence of whether D.R. had actually sexually abused S.R. was not relevant to that question, and therefore, we agree there was no reason to hear evidence on this subject.
The ALJ reiterated that ruling throughout the hearing, excluding testimony from witnesses who examined or interacted with S.R. and could testify to suspected abuse, and witnesses who would testify regarding D.R.'s credibility. The ALJ also rejected Kleinman's attempt to move into evidence the guardian ad litem report and regional child abuse diagnostic and treatment center report, noting they were not relevant for the additional reason that Kleinman did not have these reports in her possession when formulating her views about this case.
Contrary to Kleinman's argument on appeal, however, the ALJ allowed Kleinman's counsel to pose one very lengthy hypothetical to Martindale about information Kleinman presumably knew before treating S.R., based upon the contents of the guardian ad litem and Division reports, notwithstanding the ALJ's concerns that counsel was attempting to use the hypothetical to place those facts in evidence. And the ALJ heard testimony from Kleinman as to what she was told about the alleged abuse before and during her treatment of S.R.
In considering Kleinman's administrative appeal, the Board concurred in the ALJ's analysis, rejecting Kleinman's post-hearing motion to expand the record to include evidence of D.R.'s alleged sexual abuse that preceded Kleinman's involvement with the child. The Board found
it was not necessary to determine whether or not D.R. sexually abused his daughter to decide whether the psychological services provided to S.R. by the Respondent were within the standards of practice of psychology. Therefore, it was not necessary for the Board to consider documents from the DYFS matter or the matrimonial matter between P.R. and D.R. The existence of the videotapes, the Respondent's client records, audiotapes and correspondence was sufficient to consider when rendering a decision on the charges raised in the administrative complaint against the Respondent.
These evidentiary rulings were consistent with N.J.A.C. 1:1-15.1(b) and (c), and are entitled to our deference. We agree the only evidence relevant to establishing the reasonableness of Kleinman's working hypothesis and treatment plan for S.R. was information Kleinman possessed before and during her treatment of the child. Kleinman testified about what she was told by the court, by P.R., and by the Division, before her treatment of S.R., and she testified as to what she learned during the course of S.R.'s treatment. Kleinman testified she never saw the reports prepared by the Division or the guardian ad litem, and there is no information in the record suggesting she ever spoke to individuals referenced in those reports. Indeed, Kleinman disclaimed any responsibility to do so as a treating therapist. Therefore, we conclude the ALJ and the Board acted well within their discretion in excluding the reports or testimony from their authors, or the individuals interviewed by the authors.
II
Kleinman next contends the ALJ erred in concluding she acted as both a therapist to S.R. and a forensic investigator. In their brief, amici elucidate the difference between therapeutic and forensic services, consistent with the descriptions provided by the expert witnesses at the hearing, and they contend it was error to revoke Kleinman's license "based on a serious confusion of the responsibilities of a therapist as distinguished from a forensic evaluator." We disagree.
First, we observe that our review is of the Board's decision, not the ALJ's ruling. In addition, "[a]ppellate review of an agency's determination is limited in scope." Circus Liquors, Inc. v. Governing Body of Middletown Twp., 199 N.J. 1, 9 (2009). "Without a 'clear showing' that it is arbitrary, capricious, or unreasonable, or that it lacks fair support in the record, an administrative agency's final quasi-judicial decision should be sustained, regardless of whether a reviewing court would have reached a different conclusion in the first instance." Ibid. In short, we may not substitute our judgment for that of the agency. Id. at 10.
Consequently, our review is limited to three questions: (1) whether the agency's decision is consistent with the governing law and policy; (2) whether the agency's decision is supported by substantial evidence in the record; and (3) whether in applying the law to the facts, the agency reached a decision that could be viewed as reasonable. Ibid.; In re Herrmann, 192 N.J. 19, 27-28 (2007).
The ALJ's conclusion that Kleinman inappropriately mixed or conflated her treatment role with a forensic role, as determined by the Board, is well supported by the evidentiary record, which demonstrated both Kleinman's dogged and coercive questioning of S.R. to determine the truth of what had happened between the child and her father and the little therapeutic value to Kleinman's interactions with the child. The crux of Kleinman's complaint is that the ALJ credited the testimony of the State's experts over the testimony of her experts. As the Board found, however, the ALJ gave valid reasons for doing so, and there is no basis for this court to intervene. Campbell v. N.J. Racing Comm'n, 169 N.J. 579, 588 (2001) (observing that "the choice of accepting or rejecting testimony from witnesses resides with the administrative agency, and so long as that choice is reasonably made it is accorded deference on appeal").
Moreover, the Board was entitled to rely on its own expertise in examining the evidentiary record — a circumstance that militates in favor of our great deference for such assessments. In re License Issued to Zahl, 186 N.J. 341, 357 (2006); Clowes v. Terminix, Int'l, Inc., 109 N.J. 575, 587 (1988); Jamison v. Rockaway Twp. Bd. of Educ., 242 N.J. Super. 436, 448-50 (App. Div. 1990).
III
Kleinman additionally contends the ALJ erred in allowing Martindale to testify: (1) about Kleinman's treatment of S.R., claiming Martindale was not an expert in trauma, EMDR, child sexual abuse accommodation syndrome, or the treatment of sexually-abused children; and (2) outside his expertise, which arguably was in forensic psychology. Rulings as to the admissibility of expert evidence are subject to the same abuse-of-discretion standard as other evidentiary rulings. N.J.S.A. 52:14B-10(a); Hisenaj v. Kuehner, 194 N.J. 6, 16 (2008). In applying this standard, we find no reason to intervene or second-guess the rulings made.
As set forth in his curriculum vitae and during voir dire, Martindale was a licensed psychologist in New Jersey, New York, and Florida; he practiced primarily in Florida. He spent fifteen years in clinical psychology, treating families, between 1971 and 1986. Since 1986 Martindale had worked primarily in forensic psychology, although he continued to treat patients through 2000, including families and child victims of sexual abuse.
Martindale had also taught psychology for many years and had published, instructed, and taken courses in the areas of investigating child sexual abuse allegations and the treatment of children in high conflict families. Martindale conceded he had no special training, experience, or expertise in the treatment of children who have been sexually abused, in child sexual abuse accommodation syndrome or in EMDR.
The ALJ found Martindale qualified to provide expert testimony in the areas of psychology and forensic psychology, and found his testimony credible and consistent with the evidentiary record. In its ruling, the Board rejected Kleinman's motion to disqualify Martindale, expressing it was "satisfied that the ALJ sufficiently reviewed the credentials of Dr. Martindale and found him qualified as an expert in psychology and forensic psychology. Nothing now raised by [Kleinman] would alter the Board's view that Dr. Martindale was properly qualified to testify in this matter."
The governing rule, N.J.A.C. 1:1-15.9(b), provides:
If a witness is testifying as an expert, testimony of that witness in the form of opinions or inferences is admissible if such testimony will assist the judge to understand the evidence or determine a fact in issue and the judge finds the opinions or inferences are:See also N.J.R.E. 702 (declaring that "[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise"). Courts "take a liberal approach when assessing a person's qualifications" to testify as an expert. State v. Jenewicz, 193 N.J. 440, 454 (2008). See, e.g., State v. Krivacska, 341 N.J. Super. 1, 32-33 (App. Div.) (where we found no error in the consideration of testimony from a psychologist on issue of witness competency, notwithstanding his lack of specialty in evaluating mentally handicapped individuals), certif. denied, 170 N.J. 206 (2001), cert. denied, 535 U.S. 1012, 122 S. Ct. 1594, 152 L. Ed. 2d 510 (2002).
1. Based on facts and data perceived by or made known to the witness at or before the hearing; and
2. Within the scope of the special knowledge, skill, experience or training possessed by the witness.
[Emphasis added.]
Here, neither the ALJ nor the Board abused their discretion in determining Martindale qualified to testify as an expert in this case. Based upon his education and experience, Martindale was qualified to testify on the subjects he did, particularly regarding: Kleinman's failure to develop a treatment plan for S.R., including her failure to seek out information from other professionals who had been involved with S.R. and her family; her treatment of S.R. based upon an assumption the child had been sexually abused and traumatized, when no such finding had been made; her inappropriate assumption of a forensic or investigatory role to ascertain the truth of what had happened to S.R.; her inappropriate questioning of S.R., which testimony was based upon Martindale's understanding of the principles of developmental psychology (i.e., the psychological development of a three-year-old) as well as principles of forensic psychology; Kleinman's misrepresentation of her expertise and misuse of psychological terms and inaccurate diagnoses of S.R.; her incomplete and misleading communications to the court; and her failure to maintain adequate treatment records.
We reject the argument there was an abuse of discretion in permitting Martindale to testify.
IV
Kleinman lastly contends the ALJ erred: (1) by not allowing her to adequately explore discrepancies between D.C.'s and Martindale's testimony about how they met; and (2) in disregarding evidence that undermined D.C.'s credibility. We reject this argument as well.
To be sure, D.C. and Martindale testified differently about how they met. D.C. said she met Martindale at her attorney's office, where D.C. was doing volunteer work. D.C. stated she had never met Martindale before, and it was "purely by chance" they happened to be at the attorney's office at the same time. She claimed they began talking about Kleinman after she overheard Martindale mention Kleinman's name during a phone call. On the other hand, Martindale testified he was at the attorney's office because he had been hired as a consultant in connection with D.C.'s custody dispute with her husband. He could not recall how Kleinman's name came up, but he believed both he and D.C. had been approached by a news reporter regarding the case against Kleinman.
After eliciting this testimony from Martindale, Kleinman's counsel asked whether Martindale had submitted a certification in D.C.'s matrimonial action that attacked the credentials and credibility of another doctor. Counsel represented to the ALJ that the certification preceded the complaint filed against Kleinman. The State objected on relevance grounds, to which Kleinman's counsel responded that "it [went] to D.C.'s credibility" because it discredited D.C.'s testimony that she had met Martindale only once, and by happenstance, and it also showed "a certain bias" on behalf of Martindale, whereas he was "supposed to be an objective, neutral expert witness" but in fact he was "recruiting" witnesses on behalf of the State. The ALJ sustained the objection, finding no inference of bias in the facts suggested by counsel and concluding "[t]here's nothing that [Martindale] did with respect to D.C. that [a]ffects this hearing."
Ultimately, the ALJ credited D.C.'s testimony over that of Kleinman and found the State had proven count six of the complaint, i.e., that Kleinman committed professional misconduct when she suggested that D.C. fabricate allegations of child sex abuse against her husband and in referring D.C. to her sister, who is an attorney. On appeal, the Board adhered to this ruling and rejected Kleinman's motion for a remand to expand the record "to obtain information regarding the extent, if any, of previous involvement between Dr. Martindale and D.C."
Certainly Kleinman had a right to vigorously cross-examine adverse witnesses. N.J.S.A. 52:14B-10(a); Limongelli v. N.J. State Bd. of Dentistry, 137 N.J. 317, 329 (1993) (recognizing that "[w]hen an administrative determination may have profound consequences, such as the effective loss of a professional license, administrative due process requires that the one affected by opposing testimonial evidence have the opportunity to cross-examine the witness"); see also N.J.R.E. 607 (declaring that "[e]xcept as otherwise provided by Rules 405 and 608, for the purpose of impairing or supporting the credibility of a witness, any party including the party calling the witness may examine the witness and introduce extrinsic evidence relevant to the issue of credibility"). On the other hand, the ALJ had discretion to limit or preclude any cross-examination deemed unnecessary to "a full and true disclosure of the facts." N.J.S.A. 52:14B-10(a); N.J.A.C. 1:1-15.1. See also N.J.R.E. 611; State v. Pontery, 19 N.J. 457, 473 (1955) (recognizing that "the trial judge has broad discretion to determine the proper limits of cross-examination of a witness whose credibility is put in issue"). Kleinman's counsel was permitted to explore the conflict between D.C.'s and Martindale's testimony regarding how they met. The ALJ perceived no need to explore details of Martindale's participation in D.C.'s matrimonial dispute, which was ancillary to the allegations against Kleinman. This ruling does not amount to an abuse of discretion.
As for the ALJ's assessment of credibility, "the choice of accepting or rejecting testimony from witnesses resides with the administrative agency, and so long as that choice is reasonably made it is accorded deference on appeal." Campbell, supra, 169 N.J. at 588. We will not second guess the ALJ's decision to credit the testimony of D.C. over Kleinman regarding the content of their communications. It was the ALJ who had the opportunity to see and hear each witness testify and who was, therefore, in a far better position to make that assessment than this court.
We find insufficient merit in any other issue or argument to warrant further discussion in this opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION