William James v. Rosalind Ruiz

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3543-13T2
WILLIAM JAMES,
APPROVED FOR PUBLICATION
Plaintiff-Appellant,
March 25, 2015
v.
APPELLATE DIVISION
ROSALIND RUIZ,
Defendant-Respondent.
________________________________
Argued January 26, 2015 - Decided March 25, 2015
Before Judges Sabatino, Guadagno1 and Leone.
On appeal from the Superior Court of New
Jersey, Law Division, Atlantic County, Docket
No. L-8432-11.
John L. Zaorski argued the cause for appellant
(Cappuccio & Zaorski, LLC, attorneys; Mr.
Zaorski and Tammy M. Maxey, on the brief).
Chad M. Moore argued the cause for respondent
(Hoagland, Longo, Moran, Dunst & Doukas, LLP,
attorneys; Mr. Moore, of counsel and on the
brief; Juliann M. Alicino, on the brief).
The opinion of the court was delivered by
SABATINO, P.J.A.D.
1
Judge Guadagno did not participate in oral argument. However,
with the consent of counsel, he has joined in this opinion. R.
2:13-2(b).
We address in this appeal the propriety of questioning an
expert witness at a civil trial, either on direct or cross-
examination, about whether that testifying expert's findings are
consistent with those of a non-testifying expert who issued a
report in the course of an injured plaintiff's medical treatment.
We also consider the propriety of counsel referring to the non-
testifying expert's findings in closing argument.
Although the general legal principles on point have been
discussed in prior cases, and the pertinent rules of evidence have
been in force for decades, there appears to be some confusion and
uneven customs in applying those principles and rules in everyday
civil trial practice. Hence, we use this occasion to clarify
whether questions may be posed about the "consistency" or
"inconsistency" of a testifying expert's opinions with a non-
testifying expert's views, and whether arguments about such
consistency or inconsistency may be advocated in closing argument
to a jury.
We hold that a civil trial attorney may not pose such
consistency/inconsistency questions to a testifying expert, where
the manifest purpose of those questions is to have the jury
consider for their truth the absent expert's hearsay opinions
about complex and disputed matters. Even where the questioner's
claimed purpose is solely restricted to impeaching the credibility
2 A-3543-13T2
of an adversary's testifying expert, spotlighting that opposing
expert's disregard or rejection of the non-testifying expert's
complex and disputed opinions, we hold that such questioning
ordinarily should be disallowed under N.J.R.E. 403. Lastly, we
hold that the closing arguments of counsel should adhere to these
restrictions, so as to prevent the jury from speculating about or
misusing an absent expert's complex and disputed findings.
Because the trial court correctly applied these principles
here in ruling on objections at trial, we affirm.
I.
The circumstances presented in this case are quite common.
In essence, we have before us a classic dispute in an automobile
accident case over whether the plaintiff sustained a permanent
injury to his spine and thereby is entitled to pain and suffering
damages under the lawsuit limitation provision (also known as the
"verbal threshold") in the Automobile Insurance Cost Reduction Act
("AICRA"), N.J.S.A. 39:6A-1.1 to -35.
AICRA is a cost-containment measure that allows insured
drivers to pay lower premiums in exchange for a limitation on
their right to sue for noneconomic damages. See DiProspero v.
Penn, 183 N.J. 477, 480-81 (2005). One of the recurring issues
in automobile negligence cases involving plaintiffs who are
subject to the AICRA verbal threshold is whether there is objective
3 A-3543-13T2
and persuasive proof that they suffered in a motor vehicle accident
"a permanent injury within a reasonable degree of medical
probability." N.J.S.A. 39:6A-8(a); see also DiProspero, supra,
183 N.J. at 481.2 In many instances, such as this case, the key
issue at trial is whether such a permanent injury caused by the
accident has been established, with both sides presenting
competing expert testimony on that question.
The record here shows that plaintiff was operating his car
on July 2, 2010 on the Atlantic City Expressway. He stopped his
car at a toll booth behind defendant's vehicle. Defendant's car
then suddenly went in reverse and backed into plaintiff's car.
Defendant ultimately pled guilty to improper backing up, in
violation of N.J.S.A. 39:4-127, in municipal court.
Plaintiff went to a local emergency room after the accident,
complaining of lower back pain. He then underwent treatment with
an orthopedic physician for the lumbar pain. The treating
physician ordered a CT scan of the lumbar spine, which was
conducted on July 21, 2010, less than three weeks after the
accident. The CT scan was interpreted by Dr. Amerigo Falciani, a
2
"An injury shall be considered permanent when the body part or
organ, or both, has not healed to function normally and will not
heal to function normally with further medical treatment."
N.J.S.A. 39:6A-8(a).
4 A-3543-13T2
radiologist. In his written one-page report, Dr. Falciani
determined, among other findings, that the CT scan showed a "small
diffuse [disc] bulge at the L4-L5 level."3
Plaintiff's back pain persisted, and he was evaluated by Dr.
Stephen J. Zabinski, a Board-certified orthopedic surgeon, in
December 2012. Among other things, Dr. Zabinski personally
examined the CT scan that had been conducted in July 2010. Based
on Dr. Zabinski's review of the CT scan, he likewise concluded
that the CT scan showed disc bulging at the L4-L5 level. Dr.
Zabinski concluded that the lumbar disc bulge was traumatically
caused by the July 2010 car accident, and that it was a permanent
injury not likely to heal or to function normally in the future,
despite the passage of time and continued treatment.
Plaintiff filed a lawsuit against defendant, alleging that
she had negligently caused the accident and that the accident had
caused him to sustain permanent injuries. Defendant did not
contest liability for the accident, but she did dispute whether
plaintiff had sustained a permanent injury that would enable him
to vault the verbal threshold.
3
Dr. Falciani also noted in his report "mild narrowing" of the
disc space at the L1-L2 level, a condition which was not advocated
by plaintiff at trial.
5 A-3543-13T2
At the request of the defense, a Board-certified orthopedic
surgeon, Dr. John A. Cristini, examined plaintiff in September
2012. Dr. Cristini specifically noted Dr. Falciani's finding of
disc bulge within his first pretrial expert report, which contained
this passage:
The CT of the lumbar spine reported by Dr.
Falciani revealed a small diffuse broad based
bulge at L4-5 and disc space narrowing at L1-
2.
Dr. Cristini thereafter was provided with a CD containing the CT
scan itself, and he personally inspected it. In a supplemental
expert report he issued in July 2013, Dr. Cristini stated:
As part of [the treating orthopedist's]
evaluation, CT scans were obtained. These
were carried out at Atlantic Medical Imaging
and were available to me at this time on CD
format. The CT of the lumbar spine dated
7/21/10 was reviewed. No evidence of disc or
bone pathology was noted, specifically no disc
herniation at any level was evident. No
spondylosis or spondylolisthesis was noted.
[(Emphasis added).]
Although he found no "herniation" at L4-L5 from his review of the
CT scan, Dr. Cristini did not specifically comment in his
supplemental report as to whether he agreed or disagreed with Dr.
6 A-3543-13T2
Falciani's finding of a "bulge," which he had referred to in his
first report.4
The matter was tried as a damages-only case before Judge
James P. Savio. The critical issue was whether plaintiff had
established by a preponderance of the evidence a permanent injury
that overcame the AICRA verbal threshold. Plaintiff relied upon
the expert testimony of Dr. Zabinski, and defendant relied on the
competing expert opinions of Dr. Cristini. Neither side called
Dr. Falciani.
Both plaintiff and defendant testified about the physical
impact of the accident. Plaintiff also testified about his injuries
and his course of treatment.
Several days before trial, plaintiff's counsel took the
videotaped deposition of Dr. Zabinski for use at trial in lieu of
his live testimony. In that de bene esse deposition, Dr. Zabinski
opined, as he had in his expert report, that plaintiff had
sustained a permanent injury from the accident.
During a brief portion of Dr. Zabinski's videotaped direct
examination, plaintiff's counsel asked him the following questions
and elicited the following answers:
4
A disc herniation is generally considered "a more severe injury
than a disc bulge." Espinal v. Arias, 391 N.J. Super. 49, 55
(App. Div.), certif. denied, 192 N.J. 482 (2007).
7 A-3543-13T2
Q: And, Doctor, from your own review of
the [CT] scan, you saw the bulge at
L4-5. Correct?
A: Yes.
Q: Was that consistent with what the
radiologist saw in the report?
A: Yes.
[(Emphasis added).]
Defense counsel did not object to this line of testimony at
the time of the deposition.5 However, in his pretrial submission
under Rule 4:25-7, defense counsel more broadly urged the trial
court to bar plaintiff's expert from testifying "as to any opinions
of non-testifying doctors." The defense's Rule 4:25-7 submission
also urged that Dr. Zabinski's videotaped testimony be edited and
that the court issue rulings on defense objections before trial.
Citing case law that restricts the admission of hearsay opinions
on disputed complex matters, including radiology studies, the
defense maintained that since the plaintiff's testifying expert,
Dr. Zabinski, "reviewed the [CT scan] himself," there was "no need
for him to discuss what another doctor found."
5
Defense counsel did timely object to a different portion of Dr.
Zabinski's testimony concerning whether the radiologist had noted
any degeneration at L4-L5, which was excluded at trial and edited
out of the videotape. Later at trial, defense counsel explained
that he had not objected to the "consistency" testimony at the
deposition because Dr. Zabinski did not get into "an area that was
far more specific" in conveying Dr. Falciani's findings.
8 A-3543-13T2
The defense presented expert orthopedic testimony at trial
from Dr. Cristini. For scheduling reasons, Dr. Cristini's
testimony was presented out of turn before the videotape of Dr.
Zabinski was played during plaintiff's direct case.
Dr. Cristini told the jury that he had personally examined
the CT scan. He was more definitive in his testimony about the
CT scan than he had been in his pretrial reports, referring to a
display of the CT scan being shown in the courtroom to the jury.
Based upon his personal review of the cross-sections of the spine,
Dr. Cristini testified that there was "no indication in [his]
opinion of any disc pathology or disc bulges or herniations at
that [L4-L5] level." (Emphasis added).
On direct examination, Dr. Cristini expressly repudiated the
contrary opinion of Dr. Zabinski, advising the jury that he
"disagree[d] with" his testifying counterpart's finding of a disc
bulge. Based on this determination, along with his physical
examination of plaintiff and his "review of the medical records,"
Dr. Cristini concluded that plaintiff had not sustained a permanent
orthopedic injury from the accident. Notably, Dr. Cristini was
not asked about Dr. Falciani's findings during his direct
examination.
On cross-examination, plaintiff's counsel attempted to show
that Dr. Cristini's finding of the absence of a bulge was
9 A-3543-13T2
inconsistent with the finding of the radiologist, Dr. Falciani.
The following exchange occurred:
[PLAINTIFF'S COUNSEL]: You discussed in
your first report that a CT scan was done,
correct?
[DR. CRISTINI]: Yes.
Q: And the CT scan was dated July 21st,
2010, correct?
A: I believe so.
Q: Okay. And in the report you also discuss
the results of that CT scan, correct?
A: The report, that's correct.
Q: Okay. And what did you learn from that
report?
[DEFENSE COUNSEL]: Objection.
THE COURT: Sustained. The report is
hearsay. Right.
At that point, Judge Savio had a sidebar conference with
counsel, at which the court considered more fully their positions
about the propriety of the attempted questioning. The judge
reasoned that the questioning of Dr. Cristini about the hearsay
opinions of the non-testifying radiologist was disallowed by case
law and the evidence rules.
Among other things, Judge Savio characterized the
radiologist's interpretation of the CT scan and the finding of
disc bulge as a "complex medical diagnosis." Given that
10 A-3543-13T2
complexity, the judge ruled that the radiologist's finding of a
bulge should not be inquired about on cross-examination where, as
here, the defense expert had not relied on the radiologist's
opinion. However, the judge did permit plaintiff's counsel to
confirm on further cross-examination of Dr. Cristini that he had
issued his first expert report without personally reviewing the
CT scan.
Judge Savio rejected plaintiff's argument that defense
counsel's failure to object to the "consistency" testimony
elicited from Dr. Zabinski at his videotaped deposition justified
plaintiff probing into the radiologist's findings on cross-
examination of Dr. Cristini. The judge ruled that "if
[plaintiff's] purpose is to suggest to Dr. Cristini that the
radiologist had a conclusion or an opinion or a finding that's
different from Dr. Cristini, I'm not going to allow that." The
judge warned plaintiff's counsel, "You're not going to backdoor
the radiologist's opinion into this case. He's not here to
testify."
As the cross-examination proceeded and drew further
objections because plaintiff's counsel further attempted to
question Dr. Cristini about the absent radiologist's findings,
Judge Savio issued a cautionary instruction to the jury. The
judge explained that it was not proper for them to consider
11 A-3543-13T2
documents prepared by others that were not relied upon by the
testifying witness, Dr. Cristini. The judge further explained
that it could not allow "Dr. Cristini to testify that someone else
examined the patient and had this particular complex diagnosis.
That would be hearsay and that would not be appropriate."
As noted, plaintiff did not call the radiologist, Dr.
Falciani, to testify. He did present the videotape of Dr.
Zabinski, which included the brief "consistency" question and
answer.
The third time Dr. Falciani's findings came up was during the
summation of plaintiff's counsel. In the course of his argument
to the jury, plaintiff's counsel stated the following, which
provoked an objection from defense counsel:
PLAINTIFF'S COUNSEL: [W]hat we have here
is a CT scan that ultimately shows at L4-5,
that there is a bulging disc. You heard Dr.
Zabinski testify as far as what is there. You
also heard him indicate in his testimony that
that is consistent with what the radiologist
saw.
DEFENSE COUNSEL: Objection.
THE COURT: Sustained. Please disregard
whatever con--whatever a radiologist might
have determined. Ladies and gentlemen, the
radiologist did not testify here. We are
talking [solely] about the testimony of Dr.
Zabinski and the testimony of Dr. Cristini.
[(Emphasis added).]
12 A-3543-13T2
At that point, plaintiff's counsel reminded the court that
Dr. Zabinski had testified in the video deposition about the
consistency of his findings with those of Dr. Falciani, without
any objection by defense counsel. Judge Savio acknowledged that
lack of objection, but nonetheless concluded that "the rule of
law" forbids plaintiff from making that consistency argument to
the jury. The judge then instructed the jurors once again that
they should "disregard anything about the radiologist's opinion."
After the jury was sent out to deliberate,6 plaintiff's
counsel amplified his legal position opposing the limitation the
court had imposed on his summation. He beseeched the court that
he would have called the radiologist to testify, had he known
before trial that he would not be able to argue about the
inconsistency or consistency of the respective orthopedists'
opinions with those of Dr. Falciani. Judge Savio reaffirmed his
rulings, although he acknowledged that the disallowance of the
references to Dr. Falciani's findings, if they were overturned on
appeal, "could have affected the outcome in this case."
The jury returned a unanimous verdict, concluding that
plaintiff had not proven a permanent injury caused by the accident,
6
The defense has not argued in its brief that the case should
have been dismissed at the close of the proofs for failure to
surmount the verbal threshold.
13 A-3543-13T2
signifying that he was not eligible to recover noneconomic damages
under AICRA.
This appeal followed, which solely focuses on the trial
court's rulings as to the "consistency" and "inconsistency"
queries and arguments.
II.
The Basic Elements of Hearsay.
The pivotal issues before us arise because the findings of
Dr. Falciani, the radiologist who did not testify at trial, are
hearsay, if offered for their truth. Hearsay consists of three
classic elements: (1) a "statement;" (2) "other than one made by
the declarant while testifying at the [present] trial or hearing;"
and (3) offered in evidence for its truth, i.e., "to prove the
truth of the matter asserted" in the statement. N.J.R.E. 801(c).
The third element within the hearsay definition encompasses
previously-made statements offered for their truth,7 as opposed to
statements offered for some other purpose that does not hinge upon
their truth. As just one example, "'[w]here statements are
7
This is commonly known as the "substantive" use of an absent
declarant's statements. See, e.g., California v. Green, 399 U.S.
149, 155, 90 S. Ct. 1930, 1933, 26 L. Ed. 2d 489, 495 (1970);
Liptak v. Rite Aid, Inc., 289 N.J. Super. 199, 218 n.6 (App. Div.
1996) (noting that defendant "offered the [hearsay] record solely
as substantive evidence (i.e., to prove the truth of the contents
thereof)").
14 A-3543-13T2
offered, not for the truthfulness of their contents, but only to
show that they were in fact made and that the listener took certain
action as a result thereof, the statements are not deemed
inadmissible hearsay.'" Carmona v. Resorts Int'l Hotel, Inc., 189
N.J. 354, 376 (2007) (quoting Russell v. Rutgers Cmty. Health
Plan, 280 N.J. Super. 445, 456-57 (App. Div.), certif. denied, 142
N.J. 452 (1995)).
The long-standing policy disfavoring the admission of hearsay
in Anglo-American courts, as codified in New Jersey, instructs
that "[h]earsay is not admissible except as provided by [the
evidence] rules or by other law." N.J.R.E. 802 (emphasis added).
This general prohibition, subject to various exceptions, reflects
that hearsay is presumptively deemed to be "untrustworthy and
unreliable." See, e.g., One Step Up v. Sam Logistic, 419 N.J.
Super. 500, 507 (App. Div. 2011) (citation omitted). "The hearsay
prohibition 'ensure[s] the accuracy of the factfinding process by
excluding untrustworthy statements, such as those made without the
solemnity of the oath, and not subject to cross-examination . . .
or the jury's critical observation of the declarant's demeanor and
tone.'" Neno v. Clinton, 167 N.J. 573, 579 (2001) (quoting State
v. Engel, 99 N.J. 453, 465 (1985)).
The risks of admitting hearsay indiscriminately are well
known. "[S]tatements made out-of-court, not under oath, or not
15 A-3543-13T2
subject to cross-examination may suffer infirmities of perception,
memory, and narration if admitted." Id. at 579-80 (citing
McCormick on Evidence § 245 (5th ed. 1999)). In addition, there
can be an aspect of unfairness, even in civil cases,8 in the
substantive admission of hearsay statements by an absent
declarant, without affording the opposing party a chance to cross-
examine that person before the fact-finder. See, e.g., Alves v.
Rosenberg, 400 N.J. Super. 553, 563-65 (App. Div. 2008) (reversing
a jury verdict and remanding for a new trial where the judge had
unfairly allowed the wholesale admission of numerous hearsay
statements, thereby depriving the appellant of "the opportunity
for full and effective cross-examination at trial").
Without question, Dr. Falciani's radiology report contains
"statements." Those statements indisputably were made at a
previous time, rather than "while [Dr. Falciani was] testifying
at the trial." N.J.R.E. 801(c). Hence, the first two elements
of hearsay are manifestly present. The third element —— the
substantive use of those statements for their truth —— we consider
8
We confine our analysis in this case to civil matters, and do
not address the application of these hearsay principles to criminal
cases, where the constitutional rights of a criminal defendant
under the Confrontation Clause may be at stake. See Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004);
State v. Weaver, 219 N.J. 131 (2014).
16 A-3543-13T2
more closely, infra, when we respectively discuss the references
to Dr. Falciani's findings during plaintiff's counsel's direct
examination of Dr. Zabinski and his attempted cross-examination
of Dr. Cristini.
Accepting, for the moment, the premise that Dr. Falciani's
findings are hearsay without yet discussing the third definitional
element, we turn to whether those findings satisfy an exception
to the hearsay rule. Since the findings are contained in a written
report, it is useful to the analysis to consider whether the report
itself would meet a hearsay exception, even though neither party
attempted to move the report into evidence.
The Business Records Exception (N.J.R.E. 803(c)(6))
The most fitting potential exception here is the business
record provision, N.J.R.E. 803(c)(6), which permits the admission
of:
[a] statement contained in a writing or other
record of acts, events, conditions, and,
subject to Rule 808, opinions or diagnoses,
made at or near the time of observation by a
person with actual knowledge or from
information supplied by such a person, if the
writing or other record was made in the
regular course of business and it was the
regular practice of that business to make it,
unless the sources of information or the
method, purpose or circumstances of
preparation indicate that it is not
trustworthy.
[(Emphasis added).]
17 A-3543-13T2
Here, it is readily evident that Dr. Falciani's report
interpreting plaintiff's CT scan was generated in the regular
course of professional medical practice, in connection with
plaintiff's treatment and diagnosis. The report was
contemporaneous with the radiologist's review of the CT scan.
There is nothing irregular about the report, at least on its face.
Indeed, it appears in all respects to be a routine medical
document. There is no indication that Dr. Falciani prepared the
report for the purposes of litigation.
The Complex/Disputed Expert Opinion Restriction
(N.J.R.E. 808)
The analysis does not stop there, however. Even if the other
elements of the business record exception are fulfilled, opinions
set forth within a radiologist's report may be inadmissible under
N.J.R.E. 808, which is cross-referenced within N.J.R.E.
803(c)(6).9 N.J.R.E. 808 limits the presentation of hearsay expert
opinions to a factfinder. Specifically, N.J.R.E. 808 directs as
follows:
Expert opinion which is included in an
admissible hearsay statement shall be excluded
if the declarant has not been produced as a
witness unless the trial judge finds that the
9
A report, or portions of it, also may be inadmissible under
N.J.R.E. 803(c)(6) if it is shown to be "not trustworthy." Ibid.
Because trustworthiness, as shown infra, is also a consideration
under Rule 808, we subsume our discussion of that issue within the
Rule 808 analysis.
18 A-3543-13T2
circumstances involved in rendering the
opinion, including the motive, duty, and
interest of the declarant, whether litigation
was contemplated by the declarant, the
complexity of the subject matter, and the
likelihood of accuracy of the opinion, tend
to establish its trustworthiness.
[(Emphasis added).]
The import of N.J.R.E. 808, a provision that has no analogue
in the federal rules, is that some expert opinions contained in
business records or other sources are admissible, but others are
not. As the Rule instructs, the non-testifying expert's opinions
must be excluded, unless the trial judge finds that the
"circumstances involved in rendering the opinion . . . tend to
establish its trustworthiness." Ibid. The judge must consider
the non-testifying expert's motive, duty, and interest in issuing
the opinion. Ibid. The judge also must consider whether the
expert declarant had litigation in mind at the time. Ibid. In
addition, the judge must evaluate the "complexity" of the subject
matter involved, and the likelihood10 that the opinion is
10
This likelihood requirement in Rule 808 suggests greater
stringency than the test of simple relevance, which entails only
a mere "tendency in reason to prove or disprove any fact of
consequence to the determination in the action." N.J.R.E. 401
(emphasis added); see State v. Deatore, 70 N.J. 100, 116 (1976)
(observing that "the test [for relevance] is broad and favors
admissibility," although it is subject to countervailing factors
under what is now N.J.R.E. 403).
19 A-3543-13T2
"accurate," ibid., including that the opinion has been generated
through an appropriate scientific or technical methodology. See,
e.g., Kemp v. State, 174 N.J. 412, 430 (2002) (applying the three-
part expert admissibility test of State v. Kelly11); see also
Hisenaj v. Kuehner, 194 N.J. 6, 16-17 (2008) (reaffirming and
applying the Kelly test in a civil context).
Rule 808 codifies limiting concepts articulated by the
Supreme Court in an earlier criminal case, State v. Matulewicz,
101 N.J. 27, 30 (1985) (establishing criteria to admit a non-
testifying expert's laboratory findings in narcotics
prosecutions,12 noting that the inclusion of those findings within
11
In its seminal opinion in State v. Kelly, 97 N.J. 178, 208
(1984), the Supreme Court outlined the three "basic requirements"
of expert testimony in this State, consisting of: "(1) the
intended testimony must concern a subject matter that is beyond
the ken of the average juror; (2) the field testified to must be
at a state of the art such that an expert's testimony could be
sufficiently reliable; and (3) the witness must have sufficient
expertise to offer the intended testimony." Here, defendant does
not claim that the scientific methodology used by Dr. Falciani in
interpreting plaintiff's CT scan fails to adhere to these basic
requirements.
12
The admissibility of such hearsay laboratory findings against
an accused has been more recently complicated by the United States
Supreme Court's post-Crawford opinions interpreting the
Confrontation Clause. See, e.g., Bullcoming v. New Mexico, ___
U.S. ___, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011); Melendez-Diaz
v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314
(2009); State v. Williams, 219 N.J. 89 (2014). We need not concern
ourselves with those Confrontation Clause rulings in this civil
context.
20 A-3543-13T2
a business record does not automatically assure their admission
at trial). As the Court noted in Matulewicz, case law in our
State has traditionally admitted "routine" findings of experts
contained in medical records that satisfy the business record
exception, but has excluded "diagnoses of complex medical
conditions" within those records. Id. at 32 n.1.
We explained and applied the significant hurdles posed by
Rule 808 in Nowacki v. Community Medical Center, 279 N.J. Super.
276 (App. Div.), certif. denied, 141 N.J. 95 (1995). The plaintiff
in that case fell and was injured while climbing onto a table
during radiation treatment at a hospital. The plaintiff's hospital
records included certain entries by non-testifying doctors,
stating that the fractures she sustained were "pathologic" in
nature and therefore not caused by the trauma of the fall.
Applying the precepts of Rule 808, we concluded that these hearsay
entries within the hospital records stated "a complex diagnosis
involving the critical issue in dispute, as opposed to an
uncontested diagnosis or insignificant issue." Id. at 284.
We rejected the notion in Nowacki that the record entries
comprised supporting "facts or data" that could be discussed by
defendants' testifying experts under N.J.R.E. 703,13 and instead
13
See our discussion of N.J.R.E. 703, infra.
21 A-3543-13T2
deemed them expert "opinions" subject to the strictures of Rule
808. Id. at 285. Accordingly, we upheld the trial judge's
decision to disallow references to those hearsay opinions during
the trial. Ibid.
If the requirements of Rule 808 are met, and a testifying
expert has reasonably relied upon the non-testifying expert's
opinions, then the testifying expert may be permitted to refer to
that absent expert's opinions in the course of explaining his or
her own opinions in court. Macaluso v. Pleskin, 329 N.J. Super.
346, 355 (App. Div.), certif. denied, 165 N.J. 138 (2000); In re
Civil Commitment of J.M.B., 395 N.J. Super. 69, 93 (App. Div.
2007), aff’d, 197 N.J. 563, cert. denied, 558 U.S. 999, 130 S. Ct.
509, 175 L. Ed. 2d 361 (2009). However, this pathway should not
be used as a "subterfuge to allow an expert to bolster the expert
testimony by reference to other opinions of experts not
testifying." Richard J. Biunno, Harvey Weissbard & Alan L. Zegas,
Current N.J. Rules of Evidence, cmt. 7 on N.J.R.E. 703 (2014).
"Facts or Data" Relied Upon By A Testifying Expert Under
N.J.R.E. 703
Apart from containing opinions that may or may not be
excludable at trial under Rule 808 depending upon their complexity
and trustworthiness, a non-testifying expert's report may also
convey facts or data. The rules of evidence, specifically Rule
22 A-3543-13T2
703, permit testifying experts to refer to such facts or data from
a hearsay or other admissible source, but subject to significant
restrictions.
As to facts or data, N.J.R.E. 703 provides as follows:
The facts or data in the particular case upon
which an expert bases an opinion or inference
may be those perceived by or made known to the
expert at or before the hearing. If of a type
reasonably relied upon by experts in the
particular field in forming opinions or
inferences upon the subject, the facts or data
need not be admissible in evidence.
[(Emphasis added).]
In accordance with these terms of Rule 703, and subject to other
potential rules of exclusion,14 a testifying expert may refer to
"facts or data" provided by another source, even though expressed
through a hearsay statement. See, e.g., State v. Torres, 183 N.J.
554, 576 (2005); Riley v. Kennan, 406 N.J. Super. 281, 295 (App.
Div.), certif. denied, 200 N.J. 207 (2009). The source may be a
non-testifying expert who examined a person, place or object, so
long as the information he or she has conveyed is "of a type
14
For instance, the facts or data might be barred under N.J.R.E.
403 (granting judges the discretion to exclude relevant evidence
where countervailing factors such as undue prejudice or
cumulativeness "substantially" outweigh the evidence's probative
value).
23 A-3543-13T2
reasonably relied upon by other experts in the particular field."
See N.J.R.E. 703.
Our Supreme Court has stated that under N.J.R.E. 703, "a
testifying physician may apprise the trier of fact of the bases
for his or her opinion, including the opinions of other experts,"
but has cautioned that that does not "entitle a litigant to
introduce an out-of-court expert's report for its 'truth,' where
it is critical to the primary issue in the case and the adversary
objects." Agha v. Kelly, 198 N.J. 50, 67 (2009). Although the
Court did not cite to N.J.R.E. 808 in Agha, its observations in
this regard as to "opinions" are consistent with the principles
expressed in Rule 808 and related case law, which we have
discussed, supra, prohibiting the contested admission of complex
hearsay opinions from a non-testifying expert.
When facts or data from a hearsay source are referred to in
the course of an expert's trial testimony, it is vital that the
factfinder consider that background information solely for the
limited purpose of understanding the basis of the testifying
expert's opinions. Mclean v. Liberty Health Sys., 430 N.J. Super.
156, 173-74 (App. Div. 2013). The testifying expert must not
function as a mere "conduit" for the substantive admission of
inadmissible hearsay. Agha, supra, 198 N.J. at 63.
24 A-3543-13T2
To summarize, the combined impact of Rules 703 and 808 is to
limit the ability of a testifying expert to convey to a jury either
(1) objective "facts or data" or (2) subjective "opinions" based
upon such facts, which have been set forth in a hearsay report
issued by a non-testifying expert. In either instance, the
testifying expert may not serve as an improper conduit for
substantive declarations (whether they be objective or subjective
in nature) by a non-testifying expert source.
Brun, Agha, and Non-Testifying Radiologists
Two recent precedential cases —— one from our court, see Brun
v. Cardoso, 390 N.J. Super. 409, 421 (App. Div. 2006), and one
from the Supreme Court, see Agha, supra, 198 N.J. at 64 —— have
applied those limitations to the specific context of a testifying
expert alluding to the hearsay findings of a non-testifying
radiologist in a verbal threshold case. Mainly applying Rule 808,
Brun focused on the "opinion" aspects of an absent radiologist's
findings, while Agha focused largely on the "facts or data" aspects
of the hearsay findings in applying Rule 703. As we will show,
the overarching principle in both of these cases was the same: to
disallow the substantive admission of hearsay assertions of a non-
25 A-3543-13T2
testifying radiologist for their truth, at least as to disputed
or complex matters.15
In Brun, supra, we held that a radiologist's hearsay MRI
report diagnosing a herniated disc could not be "bootstrapped"
into evidence through expert testimony from a treating
chiropractor over the objection of opposing counsel. 390 N.J.
Super. at 421. The chiropractor lacked the expertise to read the
MRI films himself, and instead relied on the radiologist's finding.
Ibid. The defense disputed the absent radiologist's
interpretation of the films. Under those circumstances, we held
that the complex nature of the disputed MRI prohibited an
unqualified testifying expert from conveying the absent
radiologist's findings to the jury. Id. at 421-24. In reaching
that determination, we applied Nowacki and other cases reflecting
the principles now codified in Rule 808:
[W]e agree with the judge that, on objection,
interpretation of an MRI may be made only by
a physician qualified to read such films, and
that the MRI report could not be bootstrapped
into evidence through [the testifying
chiropractor's] testimony. Our conclusion is
15
We need not resolve here generically whether a radiologist's
findings are most properly classified as "opinions," as "facts or
data," or as some combination of the two. For the reasons we
present here, the classification is inconsequential to the
analysis because the guiding principles here under Rules 808 and
703 are harmonious. In any event, Dr. Falciani's disputed finding
of a disc bulge here clearly encompassed, at least to some degree,
his subjective professional opinion.
26 A-3543-13T2
not dependent on [the witness's] status as a
chiropractor but on the complexity of MRI
interpretations. While there are numerous
cases that support the admission of medical
reports under the business records exception
to the hearsay rule . . . in [Matulewicz,
supra,] the Court made it clear that it is
"the degree of complexity of the procedures
utilized in formulating the conclusions
expressed in the [expert's] report" that
determines its admissibility under the
business records exception. 101 N.J. 27, 30.
We have held that before introducing complex
medical reports pursuant to N.J.R.E.
803(c)(6), the ability of the opposing side
to cross-examine the author of such a report
must be assured. [Nowacki, supra, 279 N.J.
Super. at 282-83]. In Nowacki, we held that
it is "clearly established that medical
opinions in hospital records should not be
admitted under the business records exception
where the opponent will be deprived of an
opportunity to cross-examine the declarant on
a critical issue such as the basis for the
diagnosis or cause of the condition in
question." Ibid.
Thus, Matulewicz and Nowacki provide a
basis for denying the admission of [the
radiologist's] MRI report under the business
records exception, because of the complexity
of reading MRIs and diagnosing damage to the
back and spine . . . . Indeed, in the present
case three qualified physicians all read
plaintiff's MRI in different ways, showing the
nuanced difficulty inherent in interpreting
such images. Additionally, as noted,
admitting [the radiologist's] MRI report
without calling him as a witness would deprive
defendants of the ability to cross-examine the
author of the report on the central issue of
the case, namely plaintiff's herniation, in
contravention of Nowacki. In those
circumstances, [the radiologist's] MRI report
was, on objection, inadmissible hearsay.
27 A-3543-13T2
[Brun, supra, 390 N.J. Super. at 421-22
(emphasis added) (certain citations
omitted).]
In addition, we rejected plaintiff's argument in Brun that
the absent radiologist's disputed findings could be presented to
the jury under Rule 703 as "facts or data." We observed that:
in Day v. Lorenc, 296 N.J. Super. 262, 267
(App. Div. 1996), we held that while a
physician could be questioned about the report
of another doctor that he had taken into
consideration in formulating his opinion,
N.J.R.E. 705, the report of the non-testifying
doctor could not itself be admitted in
evidence "in the absence of an independent
basis for admissibility." Id. at 267.
. . . .
While we conclude that [various cases
cited by Brun] are all factually
distinguishable from the present case, we
believe that Nowacki which we have discussed
earlier, is most on point in the circumstances
presented here.
It appears that [the chiropractor's]
opinion on the plaintiff's injuries would have
been substantially reliant on [the absent
radiologist's] interpretation of the MRI
films, which was the subject of considerable
dispute. Allowing [the chiropractor] to
testify as to the plaintiff's herniation would
have been to permit the admission of the non-
admissible hearsay of a non-testifying expert.
This attempted circumvention of the Evidence
Rules was properly denied by the trial judge.
To repeat, this determination is not because
the witness was a chiropractor. The same
result would have obtained if the witness were
28 A-3543-13T2
a medical doctor unqualified to interpret an
MRI.
[Brun, supra, 390 N.J. Super. at 423-24
(emphasis added) (citations omitted).]
More recently, the Supreme Court in Agha, supra, 198 N.J. at
50, applied similar restrictive principles in limiting the ability
of a testifying expert to convey to a jury the complex and disputed
opinions of a non-testifying radiologist. The plaintiff had been
injured in a motor vehicle accident. Id. at 53. At trial, the
central dispute was over whether his injuries vaulted the
permanency requirement of the AICRA verbal threshold, and, in
particular, whether the accident had caused him to sustain a
herniated disc. Ibid. In the course of the plaintiff's care, an
MRI study of his spine was conducted. Ibid. A radiologist who
interpreted that MRI issued a report, stating that the MRI showed
a herniated disc between the L5-S1 vertebrae. Ibid. The
radiologist was not called as a witness at trial. Over defense
counsel's objection, the trial court allowed plaintiff's two
testifying experts, a chiropractor and an anesthesiologist, to
refer in their testimony to the radiologist's finding of a
herniated disc. Ibid. The trial court allowed those references
to the radiologist's hearsay report under Rule 703, despite the
fact that the chiropractor was not qualified to read MRI films,
29 A-3543-13T2
and the anesthesiologist, although qualified to do so, had not
reviewed the plaintiff's films himself. Ibid.
The Court reaffirmed in Agha the core principle, which we
also had quoted in Brun, supra, 390 N.J. Super. at 422-23, that
"[a]lthough [Rule 703] permits a hearsay statement, such as a
medical report by a non-testifying expert, to be referred to by a
testifying expert for the purpose of apprising the jury of the
basis for his opinion, it does not allow expert testimony to serve
as 'a vehicle for the "wholesale [introduction] of otherwise
inadmissible evidence."'" Agha, supra, 198 N.J. at 63 (quoting
State v. Vandeweaghe, 351 N.J. Super. 467, 480-81 (App. Div. 2002)
(alteration in original) (citation omitted), aff'd, 177 N.J. 229
(2003)).
The Court elaborated that "[w]hen the purpose of [Rule 703]
is taken into consideration, the only fair interpretation is that
it was not intended as a conduit through which the jury may be
provided the results of contested out-of-court expert reports."
Ibid. Hence, "an expert may give the reasons for his opinion and
the sources on which he relies, but that testimony does not
establish the substance of the report of a non-testifying
physician." Id. at 64 (emphasis added).
The Court cited with approval our opinion in Brun, and our
disapproval of improper "bootstrapping" of a non-testifying
30 A-3543-13T2
expert's findings on complex and disputed matters. Ibid.
Consistent with Brun, the Court declared it essential that the
testifying expert possess the credentials to interpret the MRI
films, and also that he or she have personally reviewed those
films. Id. at 67. As the Court instructed:
Only a physician who was qualified by
education or training to interpret the films
and, in fact, did so, could have brought the
herniation conclusion to the jury as a matter
of substance. . . . [To permit otherwise over
an adversary's objection] would violate the
hearsay rules; contravene the standards
governing expert testimony by allowing an
expert to testify beyond his qualifications;
and, most importantly, would defeat the cross-
examination that is the bedrock of our
adversary system.
[Ibid.]
The Court further underscored in Agha the importance of a
limiting instruction to the jury in situations where a testifying
expert identifies or alludes to the sources upon which he or she
has professionally relied. Such an instruction is necessary to
assure that the jurors do not improperly consider those outside
sources for their truth. "[W]here an expert references the report
of a non-testifying expert to explain the basis of his or her own
opinion, it is incumbent upon the trial judge, upon request, to
instruct the jury regarding its limited use." Id. at 63-64
(emphasis added) (citations omitted); see also N.J.R.E. 105
31 A-3543-13T2
(authorizing limiting instructions). "Even in the absence of
[such] a request, the judge should give a limiting instruction sua
sponte where it is necessary to avoid an unjust result." Agha,
supra, 198 N.J. at 63-64 n.7 (citations omitted).
III.
We now apply these principles to the three events during this
trial that are the subject of plaintiff's appeal: (1) the
testimony by plaintiff's orthopedic expert, Dr. Zabinski, on
direct examination, presented to the jury without objection, that
his finding of a disc bulge was "consistent" with the finding in
the report of Dr. Falciani, the non-testifying radiologist; (2)
the disallowed attempt by plaintiff's counsel to cross-examine
defendant's testifying orthopedic expert, Dr. Cristini, about the
radiologist's contrary findings of a bulge; and (3) the disallowed
attempt by plaintiff's counsel in summation to remind the jurors
that his expert's findings of a bulge were consistent with those
of Dr. Falciani.
In dealing with these three related episodes, the trial judge
rightly was concerned about adhering to the strictures of Rules
703 and 808 and the applicable case law, including Agha, Brun and
Nowacki. The judge concluded that in all three instances,
plaintiff's counsel was attempting to convey to the jurors the
substance of Dr. Falciani's out-of-court findings. Although we
32 A-3543-13T2
agree with the trial judge's perception of impropriety respecting
the substantive misuse of Dr. Falciani's report, several
additional considerations, some of them procedural in nature, need
to be considered.
We begin the assessment by emphatically stating our agreement
with the trial judge that it would have been improper for
plaintiff's counsel to attempt to use either the testimony of Dr.
Zabinski on direct examination, or the testimony of Dr. Cristini
on cross-examination, as a conduit for the substantive admission
of Dr. Falciani's hearsay opinion finding of a disc bulge. The
conduit prohibition, which the Supreme Court strongly reaffirmed
in Agha, cannot be circumvented in the guise of questions asking
about the "consistency" or "inconsistency" of a testifying
expert's own opinions with the hearsay opinions of an expert who
does not testify at trial. Such circumvention destroys the clear
objectives of the prohibition. Cf. State v. Frisby, 174 N.J. 583
(2002) (disallowing circumvention of the hearsay prohibition by
asking a witness whether facts were "substantiated" by the hearsay
declarants that he interviewed).
As a leading treatise on evidence law has observed, in the
analogous context of the federal rules:
While an expert may consider remote [i.e., out
of court] statements that are not admitted and
may be inadmissible, he cannot properly act
33 A-3543-13T2
as a conduit by presenting an opinion that is
not his own opinion but that of someone else,
and should not testify that others agree with
him as a means of vouching for or reinforcing
any opinion of his own that he presents, at
least in relation to central or contested
matters. The purpose of [F.R.E.] 703 is to
broaden the basis for expert opinion, but it
is not enough that an expert repeats what he
read or was told, even if he respects or trusts
the people he read or listened to. The
distinction between relying on others and
repeating what others say can be made clearer
as a formal matter by requiring the expert to
say "what he thinks," not what "someone else
thinks," and insisting on this formality is
useful in weeding out cases where the expert
has no independent view and being sure that
the trier [of fact] gets the expert's own
opinion.
[C. Mueller & L. Kirkpatrick, Evidence § 7.10
(4th ed. 2009) (emphasis added) (footnotes
omitted).]
See also Krohn v. N.J. Full Ins. Underwriters, 316 N.J. Super.
477, 486 (App. Div. 1998), certif. denied, 158 N.J. 74 (1999)
(observing that "[a]n expert witness should not be allowed to
relate the opinions of a nontestifying expert merely because those
opinions are congruent with the ones he has reached").16
To be sure, plaintiff's testifying orthopedist in this case,
Dr. Zabinski, was indisputably qualified to review the CT scan,
16
To the extent that our opinion in Macaluso, supra, 329 N.J.
Super. at 355-56, might be read to allow such consistency testimony
where a testifying expert has relied on the absent expert's
findings on complex and contested matters, we disagree with that
interpretation of the law.
34 A-3543-13T2
and he properly asserted to the jury his own independent opinion
that plaintiff had suffered a disc bulge as a result of the
accident. That opinion was countered by the contrary opinion of
the defense orthopedist, Dr. Cristini, who likewise was qualified
to read the CT scan and did so as well, reaching a different
conclusion.
The admissibility problem here stemmed from plaintiff's
effort, in effect, to use the hearsay opinion of Dr. Falciani
substantively as a "tie breaker," providing the jury with a third
opinion on the hotly disputed subject. The radiologist's opinion
was not subjected to cross-examination and the jury was not
afforded a chance to observe his testimonial demeanor. Instead,
the substance of his opinion was being slipped in through the
proverbial "back door."
Moreover, Dr. Falciani's opinion finding a disc bulge at L4-
L5 was sufficiently complex in nature to trigger the limitations
of Rule 808. We have no reason to believe that the "motives,
duties and interest[s]" of Dr. Falciani were anything other than
benign. By all indications, his professional review of the MRI
films was presumably undertaken solely for a patient's diagnosis
and treatment, and not set forth with any contemplation of
litigation on his part. We also do not question the "accuracy"
of Dr. Falciani's opinions, other than to recognize, as we must,
35 A-3543-13T2
that defendant's board-certified orthopedic expert disagreed with
his findings. Even so, we agree with the trial judge that the
disputed opinions of Dr. Falciani were sufficiently complex and
controversial to require them to be excluded from the jury's
substantive consideration.
With respect to plaintiff's direct examination of his own
expert, Dr. Zabinski, it is clear that plaintiff asked Dr. Zabinski
about the "consistency" of his findings with those of the
radiologist for the purpose of having the jury, by these indirect
means, to consider the substance of the radiologist's opinions
"for their truth." The query, combined with the witness's
affirmative response, triggered the third element of the basic
definition of hearsay. See N.J.R.E. 801(c). In fact, this manner
of inquiry is even more problematic because, through this shorthand
means, the jury is fed what is essentially the "net opinion" of
the non-testifying radiologist, without being informed of the
"whys and wherefores" that support the radiologist's consistent
finding. See Davis v. Brickman Landscaping, Ltd., 219 N.J. 395,
410 (2014); Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.
344, 372 (2011).17
17
That said, we discern no problem under Rule 703 or Rule 808 with
the testifying expert disclosing to the jury the bare fact that
he considered the absent radiologist's report, and not delving
36 A-3543-13T2
A procedural wrinkle here is that defense counsel did not
object to the consistency question when it was posed at the de
bene esse deposition. See Rule 4:14-9(f). Plaintiff asserts that
he was surprised when the trial judge instructed the jury to
disregard this testimony, and that he would have called Dr.
Falciani (and, presumably would have paid Dr. Falciani the
appropriate expert witness fee) had he known this portion of the
recorded deposition was going to be excluded. However, plaintiff's
Rule 4:25-7 submission18 did not list Dr. Falciani as a trial
witness, even provisionally.
Moreover, once he learned that the court was disallowing use
of the consistency testimony, plaintiff did not seek an interim
into or hinting at the report's contents. Such limited testimony
may aid in showing the thoroughness of the testifying expert's
review of the matter. Likewise, there would be no prohibition
against the testifying expert simply stating, without elaboration
revealing or suggesting the contents of the hearsay report, that
he or she "relied" on it as part of his or her review. However,
going beyond that boundary, over opposing counsel's objection, is
impermissible.
18
Since the Rule 4:25-7 submissions are undated, we cannot tell
whether they were exchanged before or after Dr. Zabinski's
videotaped deposition. Even assuming, however, for sake of
discussion, that plaintiff supplied his submission after Dr.
Zabinski's deposition, he should not have assumed that the trial
court would allow the substantive use of Dr. Falciani's hearsay
findings in violation of the Rules of Evidence. The defense's Rule
4:25-7 submission also placed plaintiff on notice that it would
oppose such substantive use at trial.
37 A-3543-13T2
adjournment of the trial to attempt to secure Dr. Falciani's
appearance or de bene esse deposition. Although we recognize that
this was a one-day case and that the defense almost certainly
would have opposed such a mid-trial request,19 plaintiff's failure
to even seek such potential relief weakens his present claim that
the court's evidentiary ruling seriously undermined his trial
strategy. Instead, it seems quite likely that plaintiff never
intended to call Dr. Falciani, and that he simply expected to use
the "consistency" and "inconsistency" queries of the testifying
experts as an alternative (and less onerous) method of getting the
radiologist's findings before the jury.
Plaintiff's attempted cross-examination of the defense
expert, Dr. Cristini, about the radiologist's contrary findings
involves a somewhat more nuanced hearsay analysis. To the extent
the attempted cross was designed to get before the jury a second
time the substance of Dr. Falciani's findings, that effort would
similarly trigger the third element of the hearsay definition.
We are mindful that if the proffer for the cross were less
ambitious, the testimony theoretically might not involve a
19
We offer no views as to whether such a mid-trial request would
have, or should have, been granted, recognizing that the defense
would have especially resisted it if Dr. Falciani's discovery
deposition had not been taken. Our point is simply that the
plaintiff had the ability to seek such ad hoc relief from the
court and bypassed the opportunity.
38 A-3543-13T2
prohibited hearsay use under N.J.R.E. 801(c). In particular, if
the sole limited purpose of this portion of the cross was to show
that the defense expert's review of the patient's records was
skewed or incomplete, such a line of inquiry arguably would amount
to simply impeachment of the defense expert's credibility, an
attack that does not hinge upon the actual truth of the absent
declarant's statements.20 Such impeachment to expose the
weaknesses of an expert's testimony potentially might assist in
the search for the truth, one of the recognized goals of our law
of evidence. N.J.R.E. 102. See, e.g., State v. Basil, 202 N.J.
570, 591 (2010) ("Our legal system has long recognized that cross-
examination is the 'greatest legal engine ever invented for the
discovery of truth.'") (quoting Green, supra, 399 U.S. at 158, 90
S. Ct. at 1935, 26 L. Ed. 2d at 497 (citation and internal quotation
marks omitted)).
20
See, e.g., Allendorf v. Kaiserman Enters., 266 N.J. Super. 662,
672-74 (App. Div. 1993) (permitting defendant to cross-examine
plaintiff's expert with facts concerning plaintiff's medical
history to establish the "possibility" of an alternative medical
cause of plaintiff's condition); see also Gaido v. Weiser, 227
N.J. Super. 175, 188-89 (App. Div. 1988), aff'd, 115 N.J. 310
(1989) (permitting counsel to cross-examine an expert witness, who
had testified as to cause of a patient's death, as to whether her
opinion would have been different had she considered additional
facts). Although Allendorf and Gaido involved facts (which would
be regulated under N.J.R.E. 703) rather than another expert's
opinions (which would be regulated under N.J.R.E. 808), similar
impeaching objectives would apply.
39 A-3543-13T2
The probative significance of such impeachment arguably might
be greater where, as here, the testifying expert has disregarded
or discounted findings of a physician who is part of the patient's
treatment team rather than findings of an expert physician only
retained for litigation. The mere presence of a treating doctor's
finding in a patient's medical file, irrespective of the actual
soundness (or "truth") of that finding, could be viewed, at least
in theory, as probative, comprising a form of notice to an expert
who subsequently reviews that file. A plaintiff might plausibly
want to argue that the defense expert should have been more
cautious before reaching a contrary finding, having been made
aware of what the treating doctor had found.
On the other hand, we have held, as a general if not immutable
proposition, that "[i]t is improper to cross-examine a witness
about inadmissible hearsay documents21 upon which the expert has
not relied in forming his opinion." Corcoran v. Sears Roebuck &
Co., 312 N.J. Super. 117, 130 (App. Div. 1998) (citing State v.
21
We must note that the hearsay concerns expressed in Corcoran do
not bear upon the well-established practice of impeaching expert
witnesses with learned treatises. In that particular context, the
testifying expert need not have relied upon the treatise to be
confronted with it on cross-examination, so long as it is otherwise
established by another witness or by judicial notice to be a
reliable authority. See N.J.R.E. 803(c)(18); see also Jacober v.
St. Peter's Med. Ctr., 128 N.J. 475 (1992).
40 A-3543-13T2
Pennington, 119 N.J. 547, 577-83 (1990), overruled on other grounds
by State v. Brunson, 132 N.J. 377 (1993)); see also Villanueva v.
Zimmer, 431 N.J. Super. 301, 320 (App. Div. 2013) (similarly
recognizing that "generally" it is improper to engage in such
cross-examination).
Here, Dr. Cristini did not rely on Dr. Falciani's radiology
report, even though he repeated (albeit without commentary) the
radiologist's finding of a bulge in his own first expert report.
That said, we recognize that an expert's refusal to rely on or
consider such identified material may, in and of itself, be some
evidence of the expert's alleged bias or lack of thoroughness.
Theory aside, the probative value of such a line of
impeachment must be carefully weighed against the very realistic
potential for juror confusion, undue prejudice, and other
countervailing considerations under N.J.R.E. 403. If the absent
expert's opinions are not in evidence, there is a significant
danger that the jurors will misuse that proof substantively in
spite of a limiting instruction. We have serious doubts that most
jurors in this particular context will be able to understand and
follow an instruction that advises them to consider the absent
radiologist's findings "only for impeachment, but not for their
substance." The perils of such misuse are increased in closing
arguments, as we envision that even counsel attempting to make
41 A-3543-13T2
legitimate reference to the absent radiologist's findings as
grounds for impeachment will be hard-pressed to do so without
suggesting, at least by implication, that the jury should use the
radiologist's findings for their truth as an expert tie-breaker.
Given these dangers of misuse, and also because the proffer
of plaintiff's cross-examination of Dr. Cristini in this
particular case was not limited to strictly non-substantive
impeachment, we conclude that Rule 403 bars the attempted cross-
examination of Dr. Cristini.
The defense expert was asked by opposing counsel what he
"learn[ed]" from the "results" of the CT scan, a query plainly
designed to get before the jury the substance of Dr. Falciani's
opinions. The questions, and the responses that they sought —
inevitably delving into the substance of the CT study — was
improper because any hypothetical probative value it may have had
for impeachment was "substantially outweighed" by the risks of
unfair prejudice and juror confusion. N.J.R.E. 403.22
22
See, e.g., Hill v. Newman, 126 N.J. Super. 557, 563 (App. Div.
1973), certif. denied, 64 N.J. 508 (1974) (barring the admission
of a document containing hearsay and stating that, despite the
availability of a limiting instruction under the Rules, "a trial
judge can still exclude evidence [under N.J.R.E. 403] which may
have limited admissibility value if he feels that a cautionary or
limiting instruction will not neutralize the prejudice engendered
by such evidence"); State v. Collier, 316 N.J. Super. 181, 197
(App. Div. 1998), aff'd o.b., 162 N.J. 27 (1999) (noting that the
42 A-3543-13T2
Although we do not categorically rule out in all cases the
strictly-impeachment use of a treating expert's contrary hearsay
findings during the cross-examination of a testifying expert, we
agree that the cross-examination here improperly sought to elicit
the contents of Dr. Falciani's opinions for their truth. Indeed,
it is well settled that "[t]he law places limits on cross-
examination for reasons of both practicality and logic." State v.
Silva, 131 N.J. 438, 444 (1992), aff’d, 131 N.J. 438 (1993); see
also 1 McCormick on Evidence § 49 (Strong ed., 4th ed. 1992)
(noting that considerations of "confusion of the issues,
misleading the jury, undue consumption of time, and unfair
prejudice" may justify restricting a cross-examination that
attempts to impeach a witness with extrinsic evidence).
We lastly consider plaintiff's counsel's attempt to argue the
consistency point in his summation. To be sure, the objection
from defense counsel to this point should have come sooner, ideally
at Dr. Zabinski's deposition. Nonetheless, the trial court
admission of certain "other-crimes evidence, as admitted, was too
prejudicial to be subject to cure by any limiting instruction");
see also Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence,
supra, cmt. 1 on N.J.R.E. 105 ("There may be situations, [] where,
no matter how prompt, direct and forceful the instructions to the
jury, the amount of prejudice engendered by testimony or other
evidence is incapable of amelioration by a cautionary, curative
or limiting instruction.").
43 A-3543-13T2
reasonably acted with vigilance in assuring that the jury was not
asked by plaintiff's counsel to consider the hearsay evidence in
a substantive manner, and thereby risk a tainted verdict. See
Kotler v. Nat'l R.R. Passenger Corp., 402 N.J. Super. 372, 380-81
(App. Div. 2008) (vacating a verdict and remanding for a new trial
where inadmissible evidence had been presented and counsel
"compounded" the erroneous admission by referring to it in closing
arguments).
On the whole, the trial judge acted within his discretion in
his sound application of the laws of evidence, as well as his
corresponding cautionary instructions to the jury and the
limitations he imposed on closing arguments. Bender v. Adelson,
187 N.J. 411, 433-34 (2006).
IV.
The judgment for defendant is affirmed.
44 A-3543-13T2