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Expert Witness May Not Be Questioned About Whether His Findings Are Consistent With Report of Non-Testifying Expert

By on April 3, 2015 in Blog with 0 Comments

In James v. Ruiz (App. Div. March 25, 2015), the plaintiff was injured in an automobile accident and sued the other driver. The key issue was whether he suffered a permanent injury so as to meet the verbal threshold. Both sides presented competing expert testimony on that question.

The plaintiff had a CT scan of his lumbar spine. Both the plaintiff’s treating orthopedist and radiologist interpreted the scan as showing a small diffuse disc bulge at the L4-L5 level. However, the defendant’s orthopedist who examined the plaintiff, and then reviewed the CT scan, found no disc pathology or disc herniation at any level. At trial, he expanded that testimony to state that he found no disc bulge as well.

The matter was tried as a damages only case with the critical issue being whether the plaintiff established a permanent injury to overcome the AICRA verbal threshold. At trial, the plaintiff’s doctor was asked about the report of the radiologist – who was not called to testify – and the defense counsel objected. The judge sustained the objection as hearsay.

In closing arguments, the plaintiff’s attorney argued to the jury that the opinion of the plaintiff’s orthopedist was consistent with what the radiologist saw and the defense counsel objected. The judge sustained the objection and directed the jury to disregard what the radiologist might have determined because he did not testify.

The jury returned a unanimous verdict, concluding that the plaintiff had not proved a permanent injury caused by the accident. The plaintiff appealed and argued that the trial judge should have permitted testimony and argument in his closing concerning the consistency of the  radiologist’s opinion in his report with that of the plaintiff’s orthopedist.

The Appellate Division found that the radiologist report was clearly hearsay and then examined whether it would meet one of the exceptions to the hearsay rule. A testifying expert who has reasonably relied upon the non-testifying expert’s opinions, may then referto that absent expert’s opinion in the course of explaining his or her own opinions in court. However, it cannot be used as a subterfuge to allow an expert to bolster his testimony by reference to other opinions of experts not testifying.

The appeals court agreed with the trial court judge’s rulings concerning the use of the radiologist’s opinions. The court found that it would have been improper for the plaintiff’s counsel to attempt to use the testimony of the plaintiff’s orthopedist as a conduit for the substantive admission of the hearsay opinion of the radiologist of a finding of a disc bulge. This prohibition cannot be circumvented in the guise of asking about the consistency or inconsistency of a testifying expert’s own opinions with the hearsay opinions of an expert who does not testify at trial.

Effectively, the plaintiff’s attorney was attempting to use the radiologist opinion as a tie breaker. However, this opinion was not subject to cross-examination and the jury was not afforded the opportunity to observe his demeanor. The plaintiff’s attorney was attempting to “back door” this opinion.

For the same reason the plaintiff’s attorney was also not allowed to comment on the consistency of the radiologist opinion in his summation. The Appellate Division found that the trial court acted properly in instructing the jury to disregard the radiologist’s opinion.

Thus, the appeals court found that the trial court judge acted within his discretion in his sound application of the laws of evidence, as well as the cautionary instructions given to the jury and it affirmed the judgment.


About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 30 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020-2023, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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