Konop v. Rosen
41 A.3d 773
| N.J. Super. Ct. App. Div. | 2012Background
- Plaintiff Adele Konop sustained a perforated colon during a colonoscopy by Dr. Rosen at Hanover Endoscopy Center; emergency laparotomy and colostomy followed by hospitalizations.
- Plaintiff's expert Opined that Rosen deviated from standards by inadequate sedation and failure to stop for excessive movement; opinion based on Flores consultation notation.
- Flores, a first-year resident, prepared a contemporaneous consultation report that included the disputed notation; McLean cosigned the report.
- Defendant moved to bar the notation as inadmissible hearsay and quarantined the notation in the report; the Rule 104 hearing led to redaction and denial of Solny's opinion with summary judgment.
- Trial judge ruled the Flores notation inadmissible as hearsay under N.J.R.E. 803(c)(6) and granted summary judgment; appellate court reversed and remanded for further proceedings.
- The appellate court held the consultation report admissible as a business record and the notation as a party-opponent statement; limited jury consideration via limiting instruction if trial proceeds.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of Flores notation under business records | Konop argues notation is within 803(c)(6) | Rosen contends notation is hearsay without trustworthiness | Not reversible error; notation admissible under 803(c)(6) and 803(b)(1) on remand |
| Effect of embedded opinion within medical record | Notations are permissible as basis for Solny's opinion | Embedded opinion should be excluded under 808 as untestable | Notation as fact, not opinion, and admissible; not excluded under 808 |
| Whether notations could be admitted as party-opponent statements | Notations reflect defendant's statements to Flores | Not party-opponent statements unless proven source | Admissible as party-opponent under 803(b)(1) if foundation shows defendant made the statement |
| Role and standard for Rule 104 determinations | Judge should determine predicate fact under 104(a) by preponderance | Rule 104 procedure should limit jury role | Judge may determine admissibility; if predicate fact for admissibility exists, jury may decide under 104(b) with limiting instruction |
| Impact of evidence ruling on summary judgment | Excluding the notation doomed Solny's opinion | Exclusion warranted; no admissible basis for opinion without notation | Summary judgment improperly granted; case remanded for trial with limiting instruction |
Key Cases Cited
- Hangenes v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369 (N.J. 2010) (admissibility and trustworthiness standards for evidence exceptions)
- State v. Phelps, 96 N.J. 500 (N.J. 1984) (preliminary fact determinations and admissibility under Rule 104(a))
- State v. Mays, 321 N.J. Super. 619 (N.J. App. Div. 1999) (burden and method for proving preliminary admissibility facts)
- Kalola v. Eisenberg, 344 N.J. Super. 198 (N.J. Law Div. 2001) (authentication and conditional relevancy in hearsay evidence)
- Forbis v. McGinty, 292 F. Supp. 2d 160 (D. Me. 2003) (preponderance standard for preliminary admissibility in civil cases)
- Barletta v. United States, 652 F.2d 218 (1st Cir. 1981) (judge's role in preliminary questions for non-hearsay authenticate/confirm)