“Trustworthiness” of Testimony Under a Hearsay Exception, and the Need for a Rule 104 Hearing

Estate of Grieco v. Schmidt, 440 N.J. Super. 557 (App. Div. 2015).  Today’s decision by Judge Fisher is another example of an appellate ruling involving hearsay rules.  In this wrongful death case, plaintiffs’ decedent allegedly died as a result of defendants’ medical malpractice in connection with laparoscopic gastric banding surgery.  The appeal involved an interlocutory order that barred plaintiffs from adducing testimony from the decedent’s husband, children, and others as to what the decedent said that the doctor’s staff told her in response to her complaints of chest pain after the surgery.

On the day before trial, the Law Division excluded the testimony as hearsay, without conducting an Evidence Rule 104 pretrial hearing as to the proposed testimony.  The parties then voluntarily agreed to dismiss the case without prejudice, and the Law Division certified the exclusion order as final.  Judge Fisher expressed “chagrin” that the parties had maneuvered to create a “final” judgment, but noted that it was “highly likely” that the panel would have granted leave to appeal regardless.  The panel reversed the decision that excluded the proposed testimony and remanded the matter for a Rule 104 hearing.

The case involved what defendants called “hearsay within hearsay” and what Judge Fisher found “better described as ‘admissible hearsay within hearsay.'”  The key hearsay issue involved Evidence Rule 804(b)(6), which makes admissible “a statement made by a person unavailable as a witness because of death if the statement was made in good faith upon declarant’s personal knowledge in circumstances indicating that it is trustworthy.”

Judge Fisher stated that, “[o]n their face and in light of the circumstances, these statements appear[ed] trustworthy.”  She was deceased, her statements “were ostensibly made in good faith,” the doctor’s office’s statements had been made to her and were therefore within her personal knowledge, and the circumstances suggested trustworthiness of her statements, since there was no reason for the decedent to have misrepresented to her family or others how she felt and what she and the doctor’s office had to say about the pain that she was experiencing and what could be done about it.

The Law Division erred in excluding the evidence based on lack of “corroboration” for those statements.  As Judge Fisher noted, the Evidence Rule does not require corroboration, though the presence or absence of corroboration may affect the weight to be given to the evidence.  The evidence could not have been excluded as untrustworthy without a Rule 104 hearing.  Judge Fisher observed that whether to hold a Rule 104 hearing is normally within the discretion of the trial judge, but here it was an abuse of discretion not to conduct such a hearing.

The second level (what Judge Fisher called “admissible hearsay within hearsay”) involved a different Evidence Rule.  That related to the fact that the decedent’s statements were reporting what agents of defendants (that is, personnel from the doctor’s office) told her.  Evidence Rule 803(b)(4) makes admissible statements by agents of parties within the scope of their agency.  Judge Fisher observed that if the decedent had been alive, she would have gotten the benefit of that rule.  But “[b]ecause [she] did not live to recount those conversations in court, the judge was simply required to consider the admissibility of this admissible hearsay through application of [Rule] 804(b)(6).”  Accordingly, on remand, in the context of a Rule 104 hearing, the Law Division was to address both layers of the proposed testimony.