Parker v. Poole, 440 N.J. Super. 7 (App. Div. 2015). Appellate decisions that explicate rules of evidence are not frequent. Today’s opinion in this case, written by Judge Hoffman, is such an instance.
This was a medical malpractice case. After plaintiff lost a jury verdict, she appealed on the grounds that the Law Division had erroneously excluded deposition testimony from the defendant doctor regarding the causation of plaintiff’s damage, which plaintiff sought to use at trial to demonstrate a contradiction with defendant’s trial testimony. Judge Hoffman recognized that rulings on evidence issues are reviewable only for abuse of discretion. The panel found that the Law Division had wrongly excluded the evidence and reversed and remanded for a new trial.
The Law Division had excluded the testimony because the judge considered that testimony speculative, and because, in the judge’s view, the testimony improperly turned defendant into an expert witness when he was in fact functioning only as a fact witness. Additionally, in denying plaintiff’s motion for a new trial, the judge stated that the deposition testimony was more prejudicial than probative, the standard of Evidence Rule 403 (though the judge did not explicitly cite that Rule). Judge Hoffman rejected all of those rationales.
Quoting prior cases, Judge Hoffman observed that “[a] plaintiff in a medical malpractice [action] can ask questions of a defendant doctor in a deposition which seek to elicit expert opinions relevant to the diagnosis and treatment of the patient.” As the panel went on to explain, there was nothing improper about asking such questions at the deposition in this case or using the answers at trial.
Nor was it appropriate to exclude the deposition testimony as “speculative.” Evidence Rule 803(b)(1) states that a “party’s own statement” is not excludable as hearsay. Judge Hoffman then addressed whether Evidence Rule 701, which says that lay witness testimony may be admitted “if it (a) is rationally based on the perception of the witness and (b) will assist in understanding the witness’ testimony or indeterminng a fact in issue,” can preclude evidence otherwise admissible under Evidence Rule 803(b)(1). That was an issue of first impression in New Jersey courts, so Judge Hoffman turned to cases under the analogous Federal Rules of Evidence. Those cases, with which the panel agreed, say that the rule that statements of a party are admissible is based on the idea “that a party should be entitled to rely on his opponent’s statements.” For that reason, “the fact that the statement is speculative or in opinion form is not of consequence.”
Finally, Judge Hoffman addressed the Evidence Rule 403 issue. That Rule applies only to “undue prejudice,” since “much of the evidence introduced at an adversarial trial is prejudicial to the opposing party.” The party who seeks to exclude evidence under Evidence Rule 403 has the burden of demonstrating why that should occur. Parties are generally entitled to attack or impeach the credibility of witnesses with their prior sworn statements, including deposition testimony. Here, defendant’s prior inconsistent deposition testimony “clearly went to the issue of his credibility” and “strikes at the heart of this case.”
The exclusion of this evidence was not harmless. “Because the exclusion of this evidence could have affected the jury’s determination of whether defendant was negligent, a new trial is required.”