A Tour (De Force) Through the Evidence Rules as Applied to Expert Testimony

James v. Ruiz, 440 N.J. Super. 45 (App. Div. 2015).  This opinion by Judge Sabatino is like the law school evidence class that some of us wish we had taken.  In the context of an automobile accident verbal threshold trial, where the issue was whether plaintiff had sustained a permanent injury, the panel discussed a number of Rules of Evidence regarding hearsay, along with Evidence Rule 703 and 808, which implicate opinion evidence, facts, or data that are based on hearsay.  The decision also touched on Evidence Rule 403, which authorizes the exclusion of evidence that is more prejudicial than probative.

The issues, as Judge Sabatino crystallized them, were “whether questions may be posed [at trial] 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 a closing argument to a jury.”  The panel concluded that, at least in complex cases such as this one, the answer is “no.”  That ruling affirmed the decision of the Law Division at trial.

The case centered on three experts, Dr. Zabinski, plaintiff’s testifying expert, Dr. Cristini, defendant’s testifying expert, and Dr. Falciani, a radiologist who had examined plaintiff after the accident but who did not testify at trial.  Dr. Falciani had concluded that plaintiff had found that a CT scan showed a lumbar disk bulge in plaintiff’s spine.  Plaintiff offered at trial the videotaped testimony of Dr. Zabinski, who testified that the bulge existed and that it was a permanent injury.  In the videotaped deposition, plaintiff asked Dr. Zabinski whether his testimony about the bulge was consistent with what Dr. Falciani had seen.  Dr. Zabinski said that it was.  Defendant did not object to the question or the answer during the deposition, but moved before trial to exclude that testimony.

Dr. Cristini, testifying for the defense, disagreed with Dr. Zabinski and stated that there was no bulge.  On cross-examination, plaintiff sought to ask Dr. Cristini about Dr. Falciani’s report, which had concluded that a bulge existed.  The Law Division precluded that on hearsay grounds, saying “You’re not going to backdoor the radiologist’s opinion into this case.  He’s not here to testify.”  Plaintiff did play the tape of Dr. Zabinski stating that his conclusion was consistent with that of Dr. Falciani.  But when plaintiff’s counsel adverted to that statement in his closing argument, the Law Division judge prevented that and cautioned the jury to “disregard anything about the radiologist’s opinion.”

The jury’s verdict was for the defense.  Plaintiff appealed, and the Appellate Division affirmed.

Judge Sabatino noted that Dr. Falciani’s conclusion– an out of court statement– was hearsay.  It might, however, have satisfied the business records exception to the hearsay rule that is contained in Evidence Rule 803(c)(6).  But that same Evidence Rule cross-referenced Evidence Rule 808, a rule with no federal analog, which states that an expert opinion “which is included in an admissible hearsay statement if the declarant has not been produced as a witness” unless the trial judge finds that the “circumstances involved in rendering the opinion … tend to establish its trustworthiness.” One of many factors in that analysis is the “complexity” of the subject matter involved.  Judge Sabatino then discussed Evidence Rule 703, which permits testifying experts to refer to “facts or data from a hearsay or other admissible source, but subject to significant restrictions.”

Two previous decisions, Agha v. Kelly, 198 N.J. 50 (2009), and Brun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006), had applied Rules 703 and 808 to exclude radiological evidence under very similar circumstances, and Judge Sabatino discussed those cases at length.  Here, because Dr. Falciani’s conclusion was “sufficiently complex and controversial” it had to be excluded under Evidence Rule 808.  Plaintiff was thus foreclosed from using Dr. Falciani’s opinion as a “tie breaker” and introducing it through “the proverbial ‘back door.'”

Judge Sabatino then discussed the fact that defendant had not objected at the deposition of Dr. Zabinski to the question about the consistency of his view with that of Dr. Falciani.  Plaintiff claimed to be surprised when the Law Division told the jury to disregard that testimony. But plaintiff did not then seek to adjourn the trial so he could call Dr. Falciani as a witness or take a videotaped deposition.

Judge Sabatino addressed whether plaintiff could have used the “consistency” issue to impeach Dr. Cristini.  The panel concluded that Evidence Rule 403 barred that here, though Judge Sabatino disavowed any intent to “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.”  Finally, it was proper to prevent plaintiff from arguing the “consistency” issue i n summation.

The panel concluded that, in each instance, the Law Division had not abused its discretion.  Judge Sabatino graciously identified the Law Division judge, James P. Savio, whose decisions in this challenging area were being affirmed.

Near the start of his opinion, Judge Sabatino stated that “[a]lthough 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.”  This decision goes some way toward reducing such confusion.