Issues surrounding expert testimony at trial can be tricky. In some circumstances, the defense attorney can rely on the records of a treating doctor alone, without incurring the cost and expense of calling the physician to the witness stand. Other times, the failure to call the treating doctor can be fatal, leading to the preclusion of evidence on key medical issues.
What happens when a non-testifying radiologist reads an x-ray, MRI or CT scan and authors a favorable report? Can your retained IME doctor review that report and indicate that his opinion is consistent with the non-testifying radiologist’s? Can you cross examine an adverse expert if his opinion of the x-ray, MRI or CT scan is inconsistent with the radiologist’s report contained in the chart of the hospital or another treating doctor?
In James v. Ruiz, the New Jersey Appellate Division announced a bright line that attorneys in a civil case cannot cross. Under Ruiz, attorneys in a civil case must refrain from: (1) asking their own expert witnesses whether their opinions are consistent with a non-testifying physician’s report; (2) asking adverse experts on cross examination whether their opinions are inconsistent with a non-testifying physician’s report; and (3) arguing during closing statements that the non-testifying expert’s report (and opinion) is either consistent with his expert’s opinion or inconsistent with the adverse expert’s opinion.
The James court found the dangers of injecting the opinion of the non-testifying expert’s opinion into the case too great, particularly when the jury never has the chance to observe that expert in court and evaluate her testimony after both direct and cross examination. Akin to a “tie breaker,” the presence of the unseen expert looms too large when one side is constantly referring to the report and the opinions expressed therein but the expert never appears in court to defend its contents.
The rule is now clear in most routine cases in New Jersey. If you want to introduce the opinion of a treating physician about complex and disputed matters, you must call the expert at time of trial.