William James v. Rosalind Ruiz
111 A.3d 123
| N.J. Super. Ct. App. Div. | 2015Background
- Motor-vehicle rear-end accident (July 2010); plaintiff sought noneconomic damages under AICRA's verbal threshold, alleging permanent lumbar injury.
- CT scan (July 21, 2010) interpreted by non-testifying radiologist Dr. Amerigo Falciani as showing a small diffuse disc bulge at L4-5; his one-page report was not introduced at trial.
- Plaintiff's treating/retained orthopedist Dr. Zabinski reviewed the CT, testified (via videotaped deposition) that he saw a bulge and that that was "consistent" with the radiologist's report; defense did not object at deposition to that consistency question.
- Defense retained orthopedist Dr. Cristini reviewed the CT and testified live that, after personally viewing the images, he found no disc bulge or herniation and expressly disagreed with Zabinski's conclusion.
- Plaintiff attempted to (1) elicit consistency with the absent radiologist through Zabinski's deposition, (2) cross-examine Cristini about the radiologist's contrary findings, and (3) argue the radiologist's findings in summation. Trial court excluded substantive use of the absent radiologist’s opinions and instructed the jury to disregard them; jury found for defendant on permanency issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May counsel ask a testifying expert on direct whether that expert's findings are "consistent" with a non-testifying expert's report? | James argued the consistency testimony (Zabinski saying his finding was consistent with radiologist) was admissible and not objected to at deposition, so it should stand. | Ruiz argued that such consistency amounts to substantive hearsay and is barred absent the radiologist's testimony or a Rule 808 trustworthiness finding. | Not allowed when the purpose is to place the absent expert's contested opinion before the jury for its truth; trial court properly excluded substantive use. |
| May counsel cross-examine an opposing testifying expert about a non-testifying treating expert's contrary findings to impeach the witness? | James argued cross-examination could show Cristini ignored treating physician findings, probing credibility and thoroughness. | Ruiz argued that asking about the absent radiologist's conclusions invites hearsay and is barred under Rules 703/808 and 403. | Generally disallowed where the cross would elicit the substance of complex, disputed hearsay; Rule 403 bars such questioning here. |
| May counsel rely on a non-testifying expert's report in closing argument as corroboration/tie-breaker? | James contended he could remind jury that Zabinski’s opinion was consistent with the radiologist to bolster his case. | Ruiz maintained closing argument invoking the absent radiologist would improperly ask the jury to credit hearsay. | Disallowed; counsel may not use absent expert’s contested opinions substantively in summation—trial court acted within discretion. |
| When may a testifying expert refer to a non-testifying expert's report? | James suggested experts may mention reliance or consistency as bases for their opinions. | Ruiz relied on N.J.R.E. 703/808 and Agha/Brun to limit references to material actually relied upon and to forbid substantive bootstrapping. | Testifying experts may state they relied on a report or use admissible "facts or data" reasonably relied upon, but may not act as conduits to admit complex, contested out-of-court expert opinions absent the declarant or a Rule 808 trustworthiness finding; limiting instructions required if referenced. |
Key Cases Cited
- DiProspero v. Penn, 183 N.J. 477 (N.J. 2005) (describing AICRA verbal-threshold permanency standard)
- Agha v. Kelly, 198 N.J. 50 (N.J. 2009) (limits on using non-testifying radiologist reports under N.J.R.E. 703; need qualified expert who personally reviewed films)
- Brun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006) (prohibiting bootstrapping a non-testifying radiologist's disputed MRI interpretation through another witness)
- Nowacki v. Community Medical Ctr., 279 N.J. Super. 276 (App. Div. 1995) (applying N.J.R.E. 808 to exclude complex medical diagnoses in hearsay medical records)
- State v. Matulewicz, 101 N.J. 27 (N.J. 1985) (framework for admitting non-testifying expert lab findings; complexity and trustworthiness considerations)
- State v. Kelly, 97 N.J. 178 (N.J. 1984) (three-part reliability/qualification test for expert testimony)
- One Step Up v. Sam Logistic, 419 N.J. Super. 500 (App. Div. 2011) (discussing hearsay unreliability and exclusionary policy)