BERGEN COUNTY MEDICAL CENTER

Plaintift Civil Action No.: 07-1294 (PGS)

v.

MEMORANDUM AND

BERGEN COUNTY IMPROVEMENT ORDER

AUTHORITY, et als.

Defendants.

SHERIDAN, U.S.D.J.

Thismatteris before theCowl on a motion by defendant, Bergen County, to disqualifrJames

C. Frizzera ofHealth Management Associates (HMA) from acting as an expert in this matter. It is

Bergen County’s position that Mr. Frizzera issued an expert report on behalf of plaintiff after he

obtained confidential litigation strategy from defendant’s lawyers. The facts are as follows.

On the morning ofFebruary 4,2009, a telephone conference occurred with attorneys Sanely,

Petruzzell and Selvers on behalf ofBergen County and Mr. Frizzera and his colleague, Marilynn

Even on behalfofHMA. The call lasted for approximately forty-five minutes. During the call, Ms.
“should be able to assist Bergen County with an understanding of the ICT Program, and may also

he able provided a limited opinion on the issue ofliabiliiv in the lawsuit. As a result. Ms. Petruzzell

agreed to provide copies of relevant documents to Mr. Frizzera. Ms. Petruzell declared in her

affidavit:

The call lasted for approximately forty-live minutes. During the call,

Mr. Frizzera and Ms. Evert shared information about their

understanding ofthe IGT program in New Jersey and elsewhere, and

I explained the legal positions asserted in the lawsuit by the respective

parties. I also addressed certain facts in this matter in the context of

the arguments being made by Plaintiff and explained how BergenCounts’ intended to argue and support its position in light ofPlaintiffs argument, and how we thought that HMA could be helpful

to Bergen County. Based on that discussion, Mr. Frizzera stated thathe could be able to assist Bergen County with an understanding oftheIGT program, and may also be able to provide a limited opinion on

the issue of liability in the lawsuit.

Mr. Frizzera in his deposition on July 30. 2010 related that he could not recall the substance of the

conversation with Ms. Petruzell. and accordingly her allegations did not impact his decision making.

l)espite his conclusion, his testimony lacks any clear explanation of what happened during the

telephone call.
Q. Were you told that it involved the intergovernmental transfir

program as adopied in New Jersey?

A. I do not recall that specific statement. (P. 36, L 2-5).

Q. Were you told that one of the parties to the pending lawsuit

was Bergen County?

A. I think so. (P 36, L 9-1 1).

Q. Were you told that one of the parties to the pending lawsuit

was Bergen County Improvement Authority?

A. I do not recall. (P 36, F 12-15).

Q. Were you told that one of the parties to the pending lawsuit

was I3ergen County Regional Center?

A. 1 do not recall. (P 36, L 16-19).

Q. Okay. What do you recall about the call?

A. I recall that I recall there were two participating from 1-IMA.

three participants with your group, and there was a lawsuit

that you were interested in me providing some type of

testimony related to intergovernmental transfers. (P. 36. L.

20-25)

Q. Do ou recall any discussion about the pending lawsuit in the

conversation?

A. No. (P. 37, F 4-6).
confidentiality has occurred after the substantive conversation.

In balancing the interests, a governmental entity Bergen County) should not be penalized

by Frizzera’s opinion where confidentiality is at stake.

IT IS on this 3 day of December, 2010

ORDERED that Mr. Frizzera is disqualified from serving as an expert. Plaintiff has sixty

(60) days to retain a new expert.

PETER G. SFIERIDAN, U.S.D.J.

December 3, 2010

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