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Inadmissible: Testifying Expert’s Opinion Concerning Non-Testifying Expert

An attorney cross-examining an expert witness during trial already faces a challenging task.  That task may just have become a bit harder in the State of New Jersey.  On March 25, 2015, the Appellate Division released its opinion in James v. Ruiz, ___ N.J. Super. ___ (App. Div. 2015), Docket No. A-36-2-6251, shedding light on the propriety of counsel’s use of reports from non-testifying experts during the trial testimony of another testifying expert.  In an opinion authored by Judge Sabatino, P.J.A.D. and approved for publication, a three-judge panel held that N.J.R.E. 403 may prohibit the practice of referring to a non-testifying expert’s report in the cross-examination of the a party’s testifying expert when counsel’s questions improperly seek to elicit the contents of the non-testifying witness for their truth.  This can be true even during an attempted impeachment.

The facts were straightforward.  The James case involved a motorist Plaintiff suing  another motorist, Defendant, for back injuries suffered when Defendant illegally backed up in a toll lane on the Atlantic City Expressway and collided with Plaintiff’s vehicle.  At trial, Plaintiff attempted to demonstrate by a preponderance of the evidence he had suffered a “permanent injury” and was therefore entitled to pain and suffering damages under the damage limiting provisions of the Automobile Insurance Cost Reduction Act (“AICRA”), N.J.S.A. 39:6A-1.1 to -35. 

At trial, Plaintiff’s main support was the testimony of Dr. Stephen Zabinski, a Board-certified orthopedic surgeon who examined Plaintiff’s initial post-injury CT scan and the original radiologist’s report, and opined that the injury was permanent.  The defense relied on the testimony of Dr. John A. Cristini, who had examined Plaintiff, reviewed the initial CT scan, and issued reports finding no permanent injury.  One of Dr. Cristini’s reports referred to the radiologist’s initial findings but made no statement of agreement or disagreement with those findings.

The trial judge allowed Plaintiff’s attorney to cross-examine Dr. Cristini but not to attempt impeachment by suggesting an inconsistency between Cristini’s findings and those of the radiologist.  The court prevented Plaintiff’s counsel from referring to the supposed “inconsistency” during his summation, and told the jury to “disregard anything about the radiologist’s opinion.”  The jury found that Plaintiff failed to prove his injuries were permanent.

On appeal, the Appellate Division addressed whether the trial judge abused his discretion by prohibiting Plaintiff’s attempted impeachment of Dr. Cristini.  The three-judge panel affirmed, holding that the judge’s exclusion of the testimony and references to the inconsistency was within his discretion.

The Appellate Division’s opinion provides significant clarity about the reasons for excluding certain hearsay opinions from non-testifying experts.  Most notably, where counsel seems to refer to the non-testifying expert’s opinions “for their truth,” rather than strictly for impeachment, the risk of prejudice and juror confusion “substantially outweigh[s]” the probative value of the opinion for impeachment purposes.  N.J.R.E. 403.  One significant factor appears to be whether the testifying expert witness relied upon the non-testifying expert’s opinion in forming the witness’s own opinion.  If that is not the case, then most jurors will have great difficulty understanding the distinction between the uses of those hearsay opinions for their impeachment value, as opposed to their substance.  Id. at ___ (slip op. at 21).  The Court’s opinion makes clear that it has not established a bright-line rule, and that trial courts must continue to address each case based on its unique facts.

The significance of this case should not be understated.  The exclusion of non-testifying expert opinions in such contexts has the potential to affect a wide variety of cases involving expert witnesses.  Counsel needs to take great care to call as a witness any expert whose opinion will be introduced for its substance, and possibly even for impeachment purposes.

The litigators at Lieberman & Blecher, P.C. regularly assist clients with concerns regarding the need for expert evidence in environmental and land use litigation.

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