Frances Parker, Etc. v. John W. Poole, M.D. , 440 N.J. Super. 7 ( 2015 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1874-12T4
FRANCES PARKER,
Individually and as
General Administratrix
of the ESTATE OF DALE S.
APPROVED FOR PUBLICATION
PARKER,
March 17, 2015
Plaintiff-Appellant,
APPELLATE DIVISION
v.
JOHN W. POOLE, M.D.,
Defendant-Respondent,
and
HOLY NAME HOSPITAL and
DOUGLAS BENSON, M.D.,
Defendants.
————————————————————————————————————————
Argued October 7, 2014 – Decided March 2, 2015
Before Judges Yannotti, Hoffman and Whipple.
On appeal from Superior Court of New Jersey,
Law Division, Bergen County, Docket No. L-
7098-09.
Dennis T. Smith argued the cause for
appellant (Pashman Stein, attorneys; Mr.
Smith and David G. White, on the briefs).
Philip F. Mattia argued the cause for
respondent (Mattia & McBride, P.C.,
attorneys; Mr. Mattia, on the brief).
The opinion of the court was delivered by
HOFFMAN, J.A.D.
Plaintiff Frances Parker, individually and as administrator
of the estate of her late husband, Dale Parker ("Mr. Parker"),
appeals from the no cause jury verdict returned in the medical
malpractice case against her husband's surgeon, defendant John
W. Poole, M.D., and from the order denying plaintiff's motion
for a new trial. Plaintiff contends that the trial court erred
in excluding certain evidence. For the reasons that follow, we
reverse and remand for a new trial.
I.
We begin by summarizing the most pertinent trial evidence.
Mr. Parker was diagnosed with colon cancer when a tumor was
discovered during a colonoscopy. A biopsy had revealed that Mr.
Parker had an invasive adenocarcinoma of the colon,1 and he was
referred to defendant to immediately undergo surgery to remove
the tumor. Defendant, a board-certified general surgeon, saw
decedent for a surgical consult on February 13, 2009. Defendant
performed the surgery, a transverse colon resection, to remove
the tumor on February 19, 2009. After removing the tumor,
1
According to defendant, invasive adenocarcinoma of the colon is
a "pathologic diagnosis," which "means the tumor has spread
beyond the basic membrane of the lining of the intestine,"
creating "a risk for it to . . . further spread."
2 A-1874-12T4
defendant performed an open anastomosis, sewing the colon back
together, to close the opening. Defendant reported no
difficulties during the surgery.
After the surgery, Mr. Parker remained in the hospital. At
some point between February 22 and 23, he developed
complications. On February 23, nurses observed blood-tinged
fluid coming from the surgical site. Examination by defendant
revealed that Mr. Parker had developed a dehiscence.2 Based on
the risk of the incision re-opening, defendant decided to
perform a second operation to repair the dehiscence.
On February 24, defendant performed the second surgery.
During the procedure, defendant noticed some "murky fluid in the
abdominal wound." As a result, he investigated to determine if
there was an anastomotic leak, a hole or perforation in the
intestine that allows intestinal contents to leak into the
abdomen. While defendant testified, "We never saw a hole[,]
[w]e never saw a perforation," he nevertheless decided to resect
or remove the anastomosis. He explained, "I felt the
anastomosis was not perfect[;] . . . my job as a surgeon was to
make the anastomosis perfect." Defendant continued to follow
Mr. Parker after the surgery on the 24th; however, "he had a
2
According to plaintiff's surgical expert, David Befeler, M.D.,
"dehiscence is a failure of the abdomen wall closure," meaning
"the abdominal wall comes apart."
3 A-1874-12T4
cataclysmic rapid demise and ultimately expired early on the
26th."
Plaintiff's theory in the case was that defendant
negligently performed the first anastomosis, creating a leak,
which led to sepsis, and that defendant then negligently failed
to address the sepsis. Specifically, plaintiff contended that,
because defendant encountered evidence of infection in the
second surgery, he should have performed an ileostomy, a
procedure where a loop of small bowel would have been
externalized to stop feces from coming into the abdomen, and
then drained the abdomen to remove the purulent fluids, and
allowed Mr. Parker to heal. Once healed, Mr. Parker could have
undergone a re-anastomosis. Defendant indicated that he
performs such "ostomy" procedures "all the time."3
The defense disputed the source of the sepsis which caused
Mr. Parker's death, as well as the timing of the onset of the
sepsis. At trial, plaintiff sought to introduce defendant's
deposition testimony, specifically, an exchange in which
defendant responded to a question about the cause of Mr.
Parker's death:
Q: Why did Mr. Parker die?
3
Defendant explained, "when we externalize the colon, it's a
colostomy, when we externalize the small bowel, it's an
ileostomy."
4 A-1874-12T4
A: It appears that he got septic, though
I'm not sure why he had such a rapid
demise.
Q: To what did you attribute the sepsis?
[Defendant's Counsel]: Objection, but
you can answer.
A: I have to assume that it was related to
the anastomotic leak.
When plaintiff sought to read this deposition excerpt into
the record as part of her case, defendant objected, arguing that
the language he used in response ("I would have to assume") was
speculative. Plaintiff argued that it was an admission by a
party-opponent and thus admissible under N.J.R.E. 803(b)(1),
regardless of any claimed speculative nature.
The trial court sustained the objection, finding the
testimony speculative. The court also appeared to question the
propriety of plaintiff attempting to elicit expert testimony
from defendant.
Essentially, what plaintiff urges — it
converts [defendant] into an expert witness.
It's asking him to render an opinion when,
in fact, he's being called as a fact
witness. Now we have a number of expert
witnesses who have opined as to Mr. Parker's
cause of death. [I]t's not really a
[N.J.R.E.] 701 [issue], where we're asking
for opinion testimony of a lay witness
because it's not [an] opinion as to . . .
how fast was he going in your common
experience.
5 A-1874-12T4
It's an opinion that requires
expertise. The reality, it seems, is that
the . . . cause of death isn’t so much the
ultimate question here. . . . [T]he
ultimate question is, whether or not
[defendant] departed from the standard of
care required of him. And I do think that
it is asking for, again over the objection
of [defendant's] attorney, for him to become
an expert witness against himself.
And in addition to that, it is
cumulative and it is calling for speculation
on his part. And therefore, I'm going to
uphold [defendant's] objection and I'm not
going to allow it to be read into
evidence[.]
On direct examination, defendant testified that "Mr. Parker
had no evidence of sepsis at the time leading up to the [second]
surgery, at the time of the surgery, and immediately in the
recovering room after the surgery."4 Nevertheless, in the
operative report defendant dictated immediately after the second
surgery, he wrote, "I did not want to take the chance the
anastomosis was leaking and would cause further sepsis."
(Emphasis added). Defendant attempted to explain this apparent
contradiction in the following colloquy, still on direct
examination:
4
According to defendant, "Sepsis is an infection that causes
systemic changes." Its symptoms are "increased respiratory
rate, an increased pulse, . . . an elevated temperature and an
elevated white [blood cell] count." Sepsis can be diagnosed by
the presence of two such symptoms as well as a "documented
source of infection[.]"
6 A-1874-12T4
Q: When you said you were concerned it
would cause further sepsis what did you
mean by further sepsis?
A: I meant at a point in time. I might
have actually dictated future sepsis
but I mean, further down the road. I
would – a chance at this would cause
sepsis. So unfortunately – I probably
dictated like I speak but they
transcribe it but –
Q: It would have been future as opposed to
further?
A: Well, I'm dictating a medical record
I'm not a novelist. In my mind, I was
using – it might not be the most
eloquent – but I'm trying to say, I
couldn't take the chance of this would
– anastomosis would break down and
cause sepsis in the future, cause
further sepsis. That was my job to not
take that chance.
Q: Did there come a time that Mr. Parker
did become septic?
A: Yes, there was.
Q: When was that?
A: He became septic several hours after
the surgery in the intensive care unit.
Later that day, during cross-examination, defendant
disputed that he saw evidence of an anastomotic leak during the
second surgery, despite his operative report listing "[p]robable
anastomotic leak" among his post-operative diagnoses:
Q: Eventually, you determined that there
was a probabl[e] anastomotic leak that
7 A-1874-12T4
you encountered in the second
surgery[,] right?
A: That's not true. What . . . I said —
and I said yesterday is that when we
got in there, that putting . . .
everything together . . . the
anastomosis did not look perfect. And
I said it was my job, as the surgeon,
to make sure that the patient is as
perfect as I can make [him]. So, I
made the decision that [I] needed to
resect that anastomosis.
Q: You're denying that you . . .
determined that there was a probabl[e]
anastomotic leak?
A: Yes, I am.
. . . .
Q: Do you recognize that?
A: That's my operating report from that
day; correct.
Q: Mmm-hmm. And the postoperative
diagnosis that you put down includes
probabl[e] anastomotic leak[,] right?
A: That's correct. Look, you asked me if
I determined that’s what it was.
That’s different than a determination
. . . . That’s what I'm concerned
about. That it wasn't perfect and I
redid it.
. . . .
Q: I'll jump back to something that we
actually . . . advanced to before. In
the final analysis, we did determine
that there was a probable anastomotic
leak in this patient, right?
8 A-1874-12T4
A: No.
After the completion of defendant's testimony, plaintiff
moved for reconsideration of the court's decision to exclude
defendant's deposition testimony ("I have to assume that it was
related to the anastomotic leak") regarding the cause of Mr.
Parker's sepsis. [T]he court denied the motion, reiterating,
that "the comment that [defendant] nevertheless articulated was
speculative. And, in fact, he said 'I have to assume.' Which,
I think, is as great an indication of speculation [as] you're
going to get, in any case."
The next day, the jury returned a verdict, finding that
defendant had not deviated from accepted standards of care and
was therefore not negligent.5 Plaintiff filed a motion for a new
trial, arguing that defendant's deposition testimony should have
been admitted under N.J.R.E. 803(b)(1) as an admission by a
party-opponent, and that the exclusion of this evidence resulted
in a clear miscarriage of justice under the law. R. 4:49-1.
The court denied the motion, and this appeal followed.
On appeal, plaintiff seeks a new trial, contending that the
trial court's erroneous evidentiary rulings regarding
defendant's deposition testimony constituted reversible error.
5
The jury voted six to one that defendant did not deviate from
accepted standards of care in his treatment of Mr. Parker.
9 A-1874-12T4
Specifically, plaintiff argues that the trial court improperly
excluded defendant's deposition testimony, and asserts that the
testimony was admissible under N.J.R.E. 803(b)(1), the hearsay
exception for statements by a party-opponent. Plaintiff
contends that defendant's deposition testimony is not
speculative, but emphasizes that the exception applies even if
the statement were speculative. Finally, plaintiff argues that
the deposition testimony is not subject to exclusion under
N.J.R.E. 403.
II.
"In reviewing a trial court's evidential ruling, an
appellate court is limited to examining the decision for abuse
of discretion." Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008);
accord Purdy v. Nationwide Mut. Ins. Co., 184 N.J. Super. 123,
130 (App. Div. 1982). We are required to disregard an error
unless, after consideration, we find "it is of such a nature as
to have been clearly capable of producing an unjust result[.]"
R. 2:10-2.
A.
We first address the trial court's comments suggesting that
defendant's deposition testimony about the cause of Mr. Parker's
sepsis might be excludable because "it converts [defendant] into
10 A-1874-12T4
an expert witness[,]" and asks "him to render an opinion when,
in fact, he's being called as a fact witness."
"[A] plaintiff in a medical malpractice [action] can ask
questions of a defendant doctor in a deposition which seek to
elicit expert opinions relevant to the diagnosis and treatment
of the plaintiff." Hutchinson v. Atl. City Med. Ctr.-Mainland,
314 N.J. Super. 468, 477 (App. Div. 1998) (citing Rogotzki v.
Schept, 91 N.J. Super. 135 (App. Div. 1966)).
It is clear that defendants may be deposed
as to the facts of the treatment they gave –
what they did, what they saw, and the
diagnoses rendered. It is also clear that
they may not be asked to respond to purely
hypothetical questions. But we think it
plain that it is not "opinion" to have them
explain why something was done or not done.
[Rogotzki, supra, 91 N.J. Super. at 152.]
In Rogotzki, we rejected the argument "that a treating
physician who is a party defendant may not be compelled to
answer on depositions such questions as call for his expert
opinions or conclusions related to the treatment he rendered."
Id. at 145.
There is nothing unfair about such a
practice. Unlike his counterpart in a
criminal prosecution, the defendant in a
civil suit has no inherent right to remain
silent or, once on the stand, to answer only
those inquiries which will have no adverse
effect on his case. Rather, he must, if
called as a witness, respond to virtually
all questions aimed at eliciting information
11 A-1874-12T4
he may possess relevant to the issues, even
though his testimony on such matters might
further the plaintiff's case. We cannot
agree with the suggestion that it is somehow
neither sporting nor consistent with the
adversary system to allow a party to prove
his case through his opponent's own
testimony but, whatever the merits of this
view, we prefer to believe that, in a
situation such as the present, [t]he
ultimate requirement that judicial decisions
be based on the . . . facts overcomes any
detriment which might be suffered by the
adversary system.
[Id. at 149 (alterations in original)
(quoting McDermott v. Manhattan Eye, Ear &
Throat Hosp., 203 N.E.2d 469, 474 (Ct. App.
1964) (citations and internal quotation
marks in McDermott omitted)).]
Our Supreme Court subsequently indicated its approval of
Rogotzki, stating, "Proof of deviation elicited from the
defendants themselves, because they are competent professionals,
could be relied on by the jury." Lanzet v. Greenberg, 126 N.J.
168, 191 (1991) (citing Rogotzki, supra, 91 N.J. Super. at 148-
49); see also, Hutchinson, supra, 314 N.J. Super. at 478-81
(holding that the trial court properly allowed plaintiffs to use
the defendant doctor's deposition testimony as evidence of the
applicable standard of care).
Furthermore, it is well established that a treating doctor
testifying as a fact witness is permitted to testify about the
cause of the patient's disease or injury, because causation is
an essential part of diagnosis and treatment. See Stigliano v.
12 A-1874-12T4
Connaught Labs., Inc., 140 N.J. 305, 314 (1995) (holding "the
characterization of [such] testimony as 'fact' or 'opinion'
creates an artificial distinction"). "[T]estimony about the
likely and unlikely causes of [a patient's condition] is factual
information, albeit in the form of opinion." Ibid.The questioning of defendant at his deposition reasonably
sought to ascertain defendant's opinion regarding the timing and
cause of Mr. Parker's sepsis, two critical issues in the case.
As the surgeon who performed both operations, defendant was
arguably in the best position to make these determinations.
From his operative report, it would appear that he did, in fact,
make these determinations by diagnosing a "[p]robable
anastomotic leak[,]" and his statement that he "did not want to
take the chance the anastomosis was leaking and would cause
further sepsis."
B.
We next address the trial court's determination to exclude
defendant's deposition testimony regarding the cause of Mr.
Parker's sepsis because it was "speculative."
N.J.R.E. 803(b)(1) provides that a "statement offered
against a party which is . . . the party's own statement, made
either in an individual or in a representative capacity," is not
excluded by the hearsay rule. Nevertheless, testimony
13 A-1874-12T4
admissible under this rule is still subject to other
restrictions. Biunno, Weissbard & Zegas, Current N.J. Rules of
Evidence, comment 1 on N.J.R.E. 803(b)(1) (2014) ("Note that
[N.J.R.E.] 403 is not the exclusive means for excluding a
statement admissible under [N.J.R.E. 803(b)(1)]. In appropriate
cases other constitutional, statutory or rule requirements might
preclude a statement admissible under this Rule.").
N.J.R.E. 701 generally restricts the subject matter of lay
witness testimony:
If a witness is not testifying as an expert,
the witness' testimony in the form of
opinions or inferences may be admitted if it
(a) is rationally based on the perception of
the witness and (b) will assist in
understanding the witness' testimony or in
determining a fact in issue.
The question is thus whether N.J.R.E. 701 restricts testimony
otherwise admissible under N.J.R.E. 803(b)(1). Our courts have
not yet addressed this issue. Therefore, we look to federal
precedent interpreting analogous provisions of the Federal Rules
of Evidence.
F.R.E. 801(d)(2)(A) is the parallel provision to our
N.J.R.E. 803(b)(1). It provides that a "statement . . . offered
against an opposing party[,] . . . made by the party in an
individual or representative capacity[,]" is not hearsay. Thus,
the substance of the provisions is essentially the same.
14 A-1874-12T4
Federal courts have addressed the interaction between the party-
opponent rule and other provisions. The courts have
specifically exempted statements under F.R.E. 801(d)(2)(A) from
the personal-knowledge requirement for testimony. See, e.g.,
United States v. Ammar, 714 F.2d 238, 254 (3d Cir.) ("[I]t is
clear from the Advisory Committee Notes that the drafters
intended that the personal knowledge foundation requirement of
[F.R.E.] 602 should . . . not [apply] to admissions . . .
admissible under [F.R.E.] 801(d)(2)."), cert. denied, 464 U.S.
936, 104 S. Ct. 344, 78 L. Ed. 2d 311 (1983); Mahlandt v. Wild
Canid Survival & Research Ctr., Inc., 588 F.2d 626, 630-31 (8th
Cir. 1978) (holding that the personal knowledge requirement does
not apply to F.R.E. 801(d)(2)).
Additionally, statements by a party-opponent are not
subject to trustworthiness considerations. "Trustworthiness is
not a separate requirement for admission under [F.R.E.]
801(d)(2)(A)." Jewell v. CSX Transp., Inc., 135 F.3d 361, 365
(6th Cir. 1998); accord United States v. Pinalto, 771 F.2d 457,
459 (10th Cir. 1985). "The admissibility of statements of a
party-opponent is grounded not in the presumed trustworthiness
of the statements, but on 'a kind of estoppel or waiver theory,
that a party should be entitled to rely on his opponent's
15 A-1874-12T4
statements.'" Jewell, supra, 135 F.3d at 365 (quoting United
States v. DiDomenico, 78 F.3d 294, 303 (7th Cir. 1996)).
In Donlin v. Aramark Corp., 162 F.R.D. 149, 150 (D. Utah
1995), the district court directly addressed the issue of
speculation for party-opponent admissions, and found that "the
fact that the statement is speculative or in opinion form is not
of consequence. Personal knowledge of the witness is not
required in a party admission circumstance."
This interpretation echoes 4 Wigmore on Evidence § 1053
(Chadbourn rev. 1972):
A primary use and effect of [a party]
admission is to discredit a party's claim by
exhibiting his inconsistent other
utterances. It is therefore immaterial
whether these other utterances would have
been independently receivable as the
testimony of a qualified witness. . . . In
particular, personal knowledge, as
indispensable to a witness, is not required.
[Ibid. (emphasis in original) (citations
omitted).]
Wigmore goes on to specifically address the lay opinion rule,
saying that it "does not limit the use of a party's admissions
[because] [t]he reason for that rule does not apply to a party's
admissions." Id. at § 1053(3).
Thus, federal precedent supports the position that N.J.R.E.
701 does not independently bar speculative testimony admitted
under N.J.R.E. 803(b)(1). Therefore, we conclude the trial
16 A-1874-12T4
court erred in excluding defendant's deposition testimony
regarding the cause of Mr. Parker's sepsis on the basis that it
was speculative.
We further note that the record does not provide any actual
support that the deposition testimony was speculative. The
court failed to hold a Rule 104 hearing to explore the issue
further. While it may be possible the testimony was
speculative, the record lacks any evidence or convincing
argument explaining how or why the testimony constituted
speculation.
In summary, we conclude defendant's deposition testimony
regarding the cause of Mr. Parker's sepsis is admissible under
N.J.R.E. 803(b)(1). The statements were made by defendant, a
party to the action, and were offered by plaintiff against him
at trial. Plaintiff's question was not improper, and whether
defendant was speculating when he answered is irrelevant to the
statement's admissibility.
C.
Finally, we address the application of N.J.R.E. 403. The
trial court's oral opinion on plaintiff's motion for new trial
did not explicitly address N.J.R.E. 403, but the court stated,
"I believe . . . the statement by [defendant] was prejudicial
and not probative, and that's why I excluded it."
17 A-1874-12T4
N.J.R.E. 403 provides:
[R]elevant evidence may be excluded if its
probative value is substantially outweighed
by the risk of (a) undue prejudice,
confusion of issues, or misleading the jury
or (b) undue delay, waste of time, or
needless presentation of cumulative
evidence.
Under this test, "[e]vidence should be barred if its
probative value 'is so significantly outweighed by [its]
inherently inflammatory potential as to have a probable capacity
to divert the minds of the jurors from a reasonable and fair
evaluation of the basic issue[s].'" Green v. N.J. Mfrs. Ins.
Co., 160 N.J. 480, 491 (1999) (alterations in original) (quoting
State v. Thompson, 59 N.J. 396, 421 (1971)). "The burden is
clearly on the party urging the exclusion of evidence to
convince the court that the N.J.R.E. 403 considerations should
control." Rosenblit v. Zimmerman, 166 N.J. 391, 410 (2001)
(citation and internal quotation marks omitted).
Due to the nature of the weighing test, highly prejudicial
evidence may only be admitted if it has "overwhelming probative
worth." Green, supra, 160 N.J. at 491. However, "'[t]hat
evidence is shrouded with unsavory implications is no reason for
exclusion when it is a significant part of the proof.'" State
v. Stevens, 115 N.J. 289, 308 (1989) (quoting State v. West, 29
N.J. 327, 335 (1959)).
18 A-1874-12T4
Moreover, N.J.R.E. 403 concerns only undue prejudice.
State v. Bowens, 219 N.J. Super. 290, 297 (App. Div. 1987).
"The question . . . is not merely whether the treating
doctor['s] testimony [was] prejudicial[,] . . . but whether it
[was] unfairly so." Stigliano, supra, 140 N.J. at 317.
Generally, much of the evidence introduced at an adversarial
trial is prejudicial to the opposing party, and we "would ill-
serve the cause of truth and justice if we were to exclude
relevant and credible evidence only because it might help one
side and adversely affect the other." Ibid.
Counsel is permitted to attack the credibility of a witness
on cross-examination. N.J.R.E. 611(b). "Cross-examination is
the greatest legal engine ever invented for the discovery of
truth." State v. Silva, 131 N.J. 438, 444 (1993) (citation and
internal quotation marks omitted). Any witness "may be cross-
examined with a view to demonstrating the improbability or even
fabrication of his testimony." Id. at 445 (citation and
internal quotation marks omitted).
A prior inconsistent statement may also be used to attack
the credibility of a witness. N.J.R.E. 607; Silva, supra, 131
N.J. at 444-45; State v. DiRienzo, 53 N.J. 360, 383 (1969).
Deposition testimony of a witness may be used "for the purpose
19 A-1874-12T4
of contradicting or impeaching" a witness at trial. R. 4:16-
1(a).
Here, the fact that defendant testified at deposition
consistent with his operative records but then testified
differently at trial, attempting to discredit his own operative
reports, clearly went to the issue of his credibility.
Accordingly, the trial court erred when it did not allow
plaintiff's counsel to impeach defendant's credibility with his
prior inconsistent deposition testimony.
Defendant's deposition testimony strikes at the heart of
this case. As a statement by the surgeon who actually performed
the procedures and observed, first hand, Mr. Parker's condition,
it carries compelling probative worth. Stigliano, supra, 140
N.J. at 317 ("[T]he probative value of the treating doctors'
testimony outweighs its prejudicial effect under N.J.R.E. 403"
because of their first hand proximity to the patient's
condition.). As the trial court noted concerning the expert
witnesses here, "[t]he people who articulate that there was an
anastomotic leak were not in the surgery. And, really had no
direct way of making that determination." Defendant, however,
was necessarily present at the surgery, affording him the
ability to make direct observations.
20 A-1874-12T4
The existence of the anastomotic leak and its effect were
the central issues at trial. While the statement is
prejudicial, the undue prejudice to defendant is minimal because
the statement at issue is his, rather than a third party's
statement. "[T]he party who made the out-of-court statement
cannot complain of his [or her] inability to confront and cross-
examine the declarant, since he [or she] is the declarant."
Biunno et al., supra, comment 1 on N.J.R.E. 803(b)(1).
D.
Lastly, we must consider whether the trial court's decision
to exclude defendant's deposition testimony was "clearly capable
of producing an unjust result[.]" R. 2:10-2.
The proofs in this case do not overwhelmingly favor one
party or the other; hence, the improper exclusion of defendant's
contradictory deposition testimony could have been the deciding
factor in his favor. Cf. State v. Frost, 158 N.J. 76, 87 (1999)
(noting that where credibility is the central issue and the
"jury must choose which of two opposing versions to credit, it
simply cannot be said that the evidence is overwhelming[ly]"
against one litigant or the other). The risk that the jury was
improperly influenced by the trial court's exclusion of
defendant's deposition testimony is particularly high here
21 A-1874-12T4
because defendant's credibility was central to the outcome of
the case.
Under the circumstances of this case, we are convinced that
this error was "clearly capable of producing an unjust
result[.]" R. 2:10-2. The excluded deposition testimony bore
directly on the issue of defendant's negligence and thus could
readily have been outcome-determinative. Because the exclusion
of this evidence could have affected the jury's determination of
whether defendant was negligent, a new trial is required.
Reversed and remanded for a new trial.
22 A-1874-12T4