Category Archives: Evidence

Expert’s “Net Opinion” is Inadmissible

Posted on by

The New Jersey rules of evidence state that an expert’s opinion must be based on “facts or data,” or it will be deemed inadmissible as a “net opinion.” The net opinion rule prohibits speculative testimony.

In Faccas v. Young, the plaintiff sued for injuries she sustained in a car accident. The plaintiff’s expert prepared a report concluding that a Jersey Central Power & Light utility pole’s location obstructed the defendant driver’s view, and that the accident may not have occurred if the pole had been moved back twelve inches. However, the expert failed to make a causal connection between the location of the pole and the accident, and he failed to demonstrate how moving the pole twelve inches backwards would eliminate the obstruction. The court concluded that the expert opinion was an inadmissible net opinion.

This case is of interest because it demonstrates that experts must give the why and wherefore of their opinion and must support their conclusions by factual data to be admissible.

Thanks to Heather Aquino for her contribution to this post.

 

 

 

 

 

Battle of the Experts: Can You Rely On The Report Alone? (NJ)

Posted on by

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.

If you have any questions about this post, please email Paul at .

 

“I Did Not Inhale” – Failed Drug Test Ruled Inadmissible Despite Lying about Marijuana Use

Posted on by

Pennsylvania Rule of Evidence 401 provides that evidence is only admissible at trial if it has the tendency to make a fact more or less probable than it would be without the evidence, and the fact is of consequence to the action at hand. Pennsylvania Rule of Evidence 403 provides that a court may still exclude relevant evidence if its probative value is outweighed by the danger of unfair prejudice. The interplay between these two rules often determines whether a court will grant a party’s motion in limine prior to trial to exclude seemingly relevant evidence.

In Detrick v. Burrus, a case in the Court of Common Pleas of Lackawanna County, the plaintiff and defendant were involved a motor vehicle accident on August 10, 2009. Seven months later on March 10, 2010, plaintiff had an initial visit with Dr. Karazim-Horchos who asked about use of marijuana and other drugs in connection with his consideration of medication to prescribe. The plaintiff denied any such use.  On July 27, 2010, Dr. Karazim-Horchos ordered a drug test which had positive results for marijuana, opiates, and benzodiazepine. At plaintiff’s deposition on August 17, 2011, she again denied the use of marijuana following her accident.

The plaintiff sought a motion in limine to preclude evidence of the positive urine drug test, citing Pennsylvania Rules of Evidence 401 and 403. The defendant countered that the evidence was relevant and could be used to impeach her credibility since she twice lied about marijuana use as a form of treatment following the accident. Further, the defendant noted that her own medical provider had ordered a drug test because of serious concern that may be Detrick self-medicating with marijuana to treat her injuries.

The court granted plaintiff’s motion in limine to preclude evidence of the failed drug test. First, the court relied on the fact that a witness may not be impeached on a “collateral” matter if the evidence does not have an independent basis for being admissible. Here, the failed drug test has no independent basis for admissibility absent the proposed impeachment. Second, the court held that the failed drug test’s probative value was outweighed by the danger of unfair prejudice, and therefore, excluded under Rule 403. The failed drug test occurred more than 11 months after the accident. Overall, the court believed that the plaintiff’s use of drugs did not directly bear on her character for truthfulness.

Thanks to Eric Clendening for his contribution.

For more information, contact Denise Fontana Ricci at .

 

Expert Cannot Disregard Uncontroverted Facts of Case (NJ)

Posted on by

Expert opinions often seem to be nothing more than bare conclusions and utterly lacking in any explanation of the why and wherefore for the positions taken.  Yet, very few net opinion challenges succeed.  In Townsend v. Pierre, the New Jersey Supreme Court weighed in on whether an expert could opine on an issue by contradicting the otherwise uncontroverted testimony of witnesses.

The case involved a traffic accident in which a driver pulled from a stop sign to make a left turn and encountered a motorcyclist. The motorcyclist was killed as a result of the ensuing collision.  In addition to making a claim against the driver, the estate pursued the property owner whose shrubbery on the corner allegedly obstructed the driver’s view.  The problem was that the driver and her passenger both testified that she had had unobstructed view of the roadway before she pulled from the stop sign.  To establish the case against the property owner, the plaintiff relied upon the opinion of an expert who contended the driver must have been mistaken.

The Court noted that expert testimony is permissible when an average juror would not have knowledge of the subject matter offered.  However, the expert’s opinion must be supported by factual evidence.  The net opinion rule recognizes that an expert is not an aid to the trier of fact where he cannot explain the basis for his opinion.   Yet, the jury may give undue weight to the unsubstantiated opinion since it comes from an “expert.”

In Townsend, the expert opined that the shrubbery was an obstruction in direct contradiction to the driver’s testimony.   The expert’s opinion was neither based upon the factual evidence in the case nor facts otherwise within the expert’s knowledge.  This the court found to be inadmissible opinion.

What makes the case interesting is its history as it wended through the courts.  The motion judge ruled that the expert’s opinion was inadmissible net opinion and then granted summary judgment as to the property owner on the basis that there was no evidence of proximate cause.  The appellate division reversed suggesting that the expert’s opinion could somehow be cured by a hypothetical question that asked the expert to assume the driver’s vision was obstructed.  The Supreme Court ultimately held this was not permissible.  A hypothetical must conform to the evidence of the case.

The case is a good example of how difficult it is to challenge an expert opinion.  Yet, in the final analysis, this ruling establishes that an expert cannot simply dismiss uncontroverted testimony and must explain the factual basis for his opinions.

For more information, contact Denise Fontana Ricci at .

 

 

Pennsylvania Examines the Bounds of the Medical Treatment Hearsay Exception

Posted on by

 

When Officer Robert Barth was dispatched to the Brookhaven Swim Club on November 12, 2012, he found a man lying face down in a gravel parking lot. Officer Barth asked the surrounding crowd for information on the man (later identified as Joshua Anthony Belknap) and began to check vital signs. Two members of the crowd, who later identified themselves as Belknap’s friends, stated that they believed Belknap had overdosed on heroin. Officer Barth administered a sternum rub to Belknap’s chest as a means of resuscitation. When that failed, Officer Barth proceeded to look for identification in Belknap’s pockets. Officer Barth found a needle with an orange cap in Belknap’s right pocket. Belknap was subsequently arrested and charged with one count of possession of drug paraphernalia.

At trial, the prosecution used Officer Barth’s testimony to convict Belknap. Although Belknap’s counsel objected to Officer Barth’s testimony as hearsay (meaning an out-of-court statement offered in evidence to prove the truth of the matter asserted), the trial court judge overruled the objection. The trial court concluded that Officer Barth’s testimony was admissible under the medical treatment exception to the hearsay rule (Pa.R.E. 803(4)). This exception permits the admission of an out-of-court statement made for the purpose of obtaining medical treatment.

On appeal, Belknap argued that the medical treatment exception is limited to out-of-court statements made to physicians and nurses. He argued that the statements made to Officer Barth “had little impact on the course of action he took when he arrived on location.” Appellant’s Brief, 16.

However, the Superior Court of Pennsylvania disagreed. The court ruled that Officer Barth’s testimony fell squarely within the bounds of the exception. First, the statements determined how Office Barth would proceed with his resuscitation attempts. Officer Barth was a veteran police officer and was trained in the practice of resuscitating victims, including victims suffering from drug overdoses. The statements of Belknap’s friends were made for the sole purpose of obtaining medical treatment or diagnosis, as it required by the Pennsylvania Rules of Evidence.

Similarly, the statements were intrinsically reliable. The medical treatment exception to the hearsay rule is based in the fact that a declarant will be motivated to tell the truth when he knows his statements are being used for the purposes of medical diagnosis and treatment. In this case, Belknap’s friends were likely eager to provide Officer Barth with the information necessary to facilitate proper resuscitation protocol.

The court noted that nothing in the medical treatment exception language limited the exception to statements made to licensed medical professions, such as physicians or nurses. In fact, the court interpreted the exception broadly, stating that the exception also encompassed statements about causation.

Although the medical treatment hearsay exception is well-established in Pennsylvania case law, this recent opinion delineates its boundaries. Now, we know that the exception applies to: (1) statements made to parties other than physicians and nurses; and (2) statements made by a person other than the patient, himself.  Thanks to Erica Woebse for her contribution to this post, and please email Brian Gibbons with any questions.

Late Expert Report? No Problem. But Do Not Opine on Plaintiff’s Credibility (At Least in one Pennsylvania Court).

Posted on by

In Moritz v. Horace Mann Prop. & Cas. Ins. Co., plaintiff sued to recover underinsured motorist benefits following a car accident.  Prior to trial, defendant filed a motion to preclude plaintiff from entering into evidence a life care plan that had been belatedly produced violating the local rules regarding expert disclosure.  Plaintiff filed a motion to preclude defendant’s medical expert from opining on plaintiff’s credibility, stating that credibility determinations should be left to the jury.

Regarding defendant’s motion, the court noted that plaintiff had not acted in bad faith in producing the late report.  Further, defendant had an opportunity to cure any prejudice since the report was produced four months prior to trial.  Moreover, defendant, in fact, had cured any potential prejudice by obtaining a supplemental expert report addressing the issues raised in the life care plan.  As such, based on the lack of prejudice suffered by defendant as compared to the importance of the expert report, defendant’s motion was denied.

Regarding plaintiff’s motion, defendant’s expert report noted that during his examination plaintiff denied any pre-accident treatment, which according to the expert was “patently untrue.”  The court concluded that defendant’s expert could testify regarding the statements plaintiff made to him regarding her lack of pre-accident treatment, but he could not opine on the credibility of these statements.  Consequently, plaintiff’s motion was granted.

Typically motions in limine are discretionary, and can turn on the way they are presented to the specific judge assigned.  A good lesson to take away is that for a report to be precluded in its entirety, prejudice and bad faith should be alleged.

Thanks to Colleen Hayes for her contribution to this post.

 

Forgot An Important Deposition Question? You May Still Get A Chance To Explore At Trial (NY)

Posted on by

When cross-examining a witness at trial, the general rule is that an attorney may question a witness with respect to specific immoral, vicious or criminal acts that have a bearing on the witness’ credibility. In a recent decision from the Appellate Division, Fourth Department, this rule was upheld when an attorney attempted to question a plaintiff about information in her federal tax returns that the attorney believed to be inaccurate.

In Young v. Lacy, the plaintiff was injured in a motor vehicle accident and was awarded significant damages at the conclusion of the trial. On appeal, defense counsel argued that the lower court erred in refusing to allow her attorney to cross-examine Young about her federal tax returns. Specifically, defense counsel wanted to ask Young why she had filed as head of household for four consecutive years when she had been married and living with her husband during that period. The lower court precluded defense counsel from asking these questions explaining that, because they had not questioned Young about her taxes at her deposition, defense counsel was improperly trying to “ambush” her at trial.

The Fourth Department disagreed and reasoned that defense counsel had a good faith basis to ask Young about the propriety of her filing status. The Court stated that while the nature and extent of cross-examination such as this is discretionary with the trial court, any evidence that Young may have committed tax fraud had “some tendency to show moral turpitude to be relevant on the credibility issue.” Because Young’s credibility was central to several close issues at trial including proximate cause, serious injury and damages, the Court reversed the order and judgment from the trial court and granted a new trial on Young’s cause of action.

Defendants can and should use cross-examination as an opportunity to impeach a plaintiff’s credibility where it is appropriate. Even in a case like Young where certain questions were not asked during a plaintiff’s deposition, attorneys can always ask new questions at trial, so long as they are not using extrinsic evidence to impeach a witness’ credibility. Depositions take place before discovery is complete. That is the nature of a deposition – to gather facts. If an attorney does not have sufficient information to ask what may turn out to be a key question, he or she may not be precluded from that line of questioning should the case proceed to trial.

Thanks to Jeremy E. Seeman for his contribution to this post. For more information, please contact Nicole Y. Brown at .

Dennis Wade Speaks at the New York State Bar Association

Posted on by

Dennis Wade is a speaker at the New York State Bar Association program entitled: 2014 Law School for Insurance Professionals.  Dennis’s submission is entitled:  Assault on the Citadel of Privilege: Bad Facts Make Really Bad Law.  The program brochure is attached.

If you have any questions about the program or the materials, please email Dennis at .

Regards,

Diana Mauriello                                                                                                                           Communications Director

Story Half Told Leads to Reversal (NJ)

Posted on by

A story is only half told if there is only one side presented.  In Manata v. Pereira, the Superior Court of the State of New Jersey, Appellate Division held that a police report containing only half of a story was improperly used to discredit a witness.

The Appellate Division reversed the liability finding in this verbal threshold case, because plaintiff’s counsel improperly cross-examined defendant using a police report that only contained plaintiff’s version of the story.  Defendant-driver struck plaintiff-pedestrian as she attempted to cross the street in Newark, New Jersey.  Only plaintiff and defendant testified about the circumstances of the accident.  Plaintiff maintained that she was struck while walking in the crosswalk, while defendant asserted that plaintiff darted out from between two busses, attempting to cross in the middle of the block.

The police did not respond to the scene of the accident.  Defendant testified that he went to the police station later that day and provided the police with his version of events.  When defendant arrived at the police station, plaintiff was already present.  The undated police report contained only plaintiff’s version of events, made no mention of defendant’s version of the accident and was prepared contrary to the N.J. Motor Vehicle Commission report preparation guidelines. Defendant asked the police to correct the report to include his version of the accident but to no avail.

During the trial, plaintiff’s counsel did not offer the police report into evidence.  However, plaintiff’s counsel repeatedly used it in cross-examination to impeach defendant with his alleged omission of the version of events that he asserted during his testimony.  At the close of trial, the jury found for the plaintiff, awarding her $350,000.  However, the appellate court reversed the award, holding that the cross-examination was improper since plaintiff’s counsel conveyed through his questioning the substance of the unadmitted report, as evidence of defendant’s alleged omission.

While it may be tempting to use documents that are in full support of a client’s position, counsel must exercise caution when subtly referring to inadmissible evidence at trial.

Thanks to Steve Kim for his contribution to this post. If you have any questions, please email Paul at .

No MRIs? Build a Case for Spoliation (NY)

Posted on by

There are numerous medical/diagnostic facilities throughout New York City that have their practices called into question. Some go out of business and are never to be heard from again, making it difficult for the defendant to obtain the actual films. The lack of available films can cause gaps in an independent expert’s report that exposes the expert up to cross examination. The use of a plaintiff’s treating physician or expert radiologist’s review of films that no longer exist can paint a very one-sided picture of the plaintiff’s injuries for the fact finder. What’s a defendant to do?

Recently, the New York State Supreme Court, Appellate Division Second Department, considered whether preclusion sanctions for spoliation were proper against a plaintiff. In Eremia v. Scparta, the Second Department modified a trial court’s order that granted defendants’ “spoliation” motion to preclude plaintiff from introducing MRI films and related reports of those MRI films. While the Appellate Division reversed the lower court and gave plaintiff a final opportunity to produce the films and records, the decision reveals what efforts a defendant needs to take to be successful under a theory of spoliation.

The facts indicate that the Plaintiff underwent MRI testing a facility that had since closed. The defendants learned this when the authorization to obtain the records set to the facility’s last known address was returned as undeliverable. Defendants could not obtain the films for the purposes of conducting an independent radiological review and therefore, moved to preclude the records of this facility (CPLR 3126), and in the alternative to compel the records (CPLR 3124).

“Under the common law doctrine of spoliation, a party may be sanctioned where it negligently loses or intentionally destroys key evidence.”  The Second Department found that the defendants failed to demonstrate that the plaintiff or anyone under her control lost or destroyed the MRI films and records. In short, the defendants failed to meet their burden in requesting the sanction and the lower court’s order was modified to allow the plaintiff an extension of time to locate and produce the films and records or an affidavit attesting to the fact that the MRI films or copies of the films “were not in their possession or control or the possession or control of their counsel, treating physicians, experts or anyone under their control.”

The decision informs that such records are “key evidence” for the purposes of considering the sanction. Moreover, the holding instructs that counsel, treating physicians and experts are deemed to be under plaintiff’s control for the purposes of spoliation. Defendants faced with this scenario should increase their investigative efforts to determine whether an alternate records custodian exists. Defendant could use other discovery devices such as the deposition and notice to admit to determine the existence and whereabouts of the films and whether anyone under plaintiff’s control negligently lost or intentionally destroyed the evidence. Records procurement is an important aspect of all personal injury cases and defendants cannot expect to win a spoliation motion without a complete investigation and use of available resources in order to meet the burden to allow the court to grant the sanction.

Thanks to Vin Terrasi for his contribution to this post. If you have any questions, please email Paul at