Gonzalez v. Hugelmeyer, 441 N.J. Super. 451 (App. Div. 2015). This auto accident case went to trial and produced a verdict for plaintiffs. The defendant driver appealed, and the Appellate Division, perceiving multiple errors in the trial, reversed and remanded for a new trial. Judge Sabatino wrote the panel’s opinion.
The first error related to testimony by a state trooper who came to the accident scene. The trooper testified at trial about a statement that an eyewitness to the accident gave to the trooper. But that statement was hearsay and should not have been admitted. Plaintiffs argued that the statement fell within hearsay exceptions for “present sense impressions” or “excited utterances.” Judge Sabatino did not agree. “The eyewitness’s statement was not a present sense impression because it was not made ‘while or immediately after’ the declarant saw the accident,” since the trooper did not get to the scene until “at least several minutes thereafter.” Nor was this an excited utterance, since “there was no foundation laid that the eyewitness “spoke ‘under the stress of excitement’ without ‘the opportunity to deliberate or fabricate.'”
The second error also involved the trooper. He testified to his view that the defendant driver had been at fault. Judge Sabatino found this improper. “His prejudicial opinions on the critical jury issue of fault for the accident were clearly beyond the scope of lay opinion admissible under [New Jersey Rule of Evidence] 701.” Moreover, the trooper “had no personal observation or recollection of the accident and his opinions thus failed the foundational requirements of Rule 701. The Supreme Court has instructed that ‘a police officer cannot provide an opinion at trial when that opinion is based primarily on the statements of eyewitnesses.’ Nemo v. Clinton, 167 N.J. 573, 585 (2001).”
Next, a new trial was required because defendant was improperly prevented from introducing notes from the medical chart of one of the plaintiffs, whose regular family physician had prepared the notes. Those notes would have shown that the plaintiff had suffered from spinal problems for years prior to this accident. Judge Sabatino stated that the notes were business records, and that statements made by that plaintiff to his physician were both admissions by a party under Evidence Rule 803(b)(1) and statements made to a medical provider for treatment or diagnosis under Evidence Rule 803(c)(4). On any of these bases, the evidence was wrongly excluded.
Finally, there was an issue about whether a chiropractor who testified for plaintiffs could address MRI’s of one of the plaintiff’s spines. “The chiropractor was not shown to be qualified to interpret those studies himself,” as opposed to the non-testifying radiologist who had addressed those MRI’s.
For all those reasons, the case was remanded for a new trial. And so ended another lesson from Judge Sabatino about evidence issues.