Dec 27, 2018

Appellate Division Makes Numerous Rulings on Attorney Comments and Admissibility of Expert Testimony

In a case involving an automobile accident trial, the Appellate Division recently reversed a trial court and remanded the case for a new trial based upon numerous comments by defense counsel and the trial court’s improper barring of an expert. Morales-Hurtado v. Reinoso, et al., - N.J. Super. – (App. Div. 2018).

Plaintiff, Juan Morales-Hurtado, and defendant, Abel Reinoso, were involved in an automobile accident.  Morales-Hurtado sued and a jury awarded him $120,000.00, but the trial court barred plaintiff’s life care expert’s testimony.  Based upon numerous trial errors, the Appellate Division reversed and remanded for a new trial. 

The Appellate Division held that with regard to comments by counsel, it found a litany of errors: (1) in his opening statement, counsel had improperly referred to society as “litigious”; (2) defense counsel had improperly cross-examined plaintiff about his citizenship and his need for an interpreter; (3) defense counsel had improperly cross-examined plaintiff about the age of the passengers in his car; (4) defense counsel improperly cross-examined plaintiff about the deployment of airbags in his car without the benefit of an expert; (5) defense counsel was improperly permitted to cross-examine plaintiff’s expert doctor about the doctor’s draft report in violation of R. 4:10-2(d)(1); (6) on cross-examination of plaintiff’s doctor, defense counsel improperly commented on how the doctor should answer questions and suggested how the jury should assess the doctor’s testimony; (7) defense counsel was allowed to improperly cross-examine plaintiff’s medical expert about the concept of “secondary gain” as it might relate to patients who are involved in litigation in which they are seeking monetary compensation for injuries they claim to have suffered.

The court then addressed the use of hearsay medical evidence by experts.  The court noted that under N.J.R.E. 703 an expert may base his opinions on hearsay.  However, N.J.R.E. 808 limits the admissibility of expert opinion included in an otherwise admissible hearsay statement.  A testifying medical expert should generally be precluded from testifying to another doctor’s interpretation of diagnostic tests.

The court also noted that it is improper to cross-examine experts on the details of documents they have not seen or relied upon.  It is also improper to ask a witness a question requiring that witness to comment upon the veracity of another witness whether he be a lay or expert witness.

Finally, the court addressed the barring of plaintiff’s life care expert following a lengthy hearing under N.J.R.E. 104.  The trial court had held that some of the documents relied upon by the life care expert were inadmissible and used that as a basis to bar the expert.  However, the Appellate Division noted that exclusion of the information or data an expert has relied upon does not require the exclusion of the expert’s opinion.  The trial court had improperly required that the underlying medical information relied upon by the expert be certified, had improperly given weight to the fact that questions posed by the life care expert to plaintiff’s treating doctors were “leading” and had improperly determined that information underlying the expert’s opinion was not trustworthy because facts were disputed.  The court noted that resolution of disputed facts was for a jury not the judge.

In conclusion, the Appellate Division remanded the case to the trial court for a new trial.  The Appellate Division did not determine that the life care expert’s opinion was admissible or inadmissible, but held that the trial court should be guided by its opinion at the Rule 104 hearing.