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Ostrowski v. Cape Transit Corp.

March 17, 2005


On certification to the Superior Court, Appellate Division, whose opinion is reported at 371 N.J. Super. 499 (2004).


(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

(NOTE: This Court wrote no full opinion in this case. Rather, the Court's Affirm of the judgment of the Appellate Division is based substantially on the reasons expressed in Judge Skillman's opinion below.)

The issue before the Court is whether defendants' presentation of expert medical opinion testimony that John Ostrowski was faking symptoms of a serious brain injury constituted an attack on his character for truthfulness that Ostrowski could rebut with evidence concerning his character for truthfulness.

On November 18, 1997, John G. Ostrowski was injured when a truck he was driving in the course of his employment was hit in the rear by a bus, causing his head to slam into the windshield. Ostrowski and his wife, Dolores, brought suit against the bus driver, Ted M. Lively, and his employer, Cape Transit Corp (hereinafter, defendants). Defendants conceded liability; the matter was tried before a jury solely on the issue of damages.

Prior to trial, defendants made an in limine motion to preclude Ostrowski from presenting any evidence concerning his character for truthfulness. In opposing the motion, Ostrowski argued that defendants' medical experts were going to testify that he had been faking his symptoms of a brain injury. The trial court ruled that, in light of this anticipated defense, Ostrowski would be permitted to present evidence concerning his character for truthfulness. Based on this ruling, most of Ostrowski's medical and lay witnesses testified that he has a reputation for being truthful or that in their opinion, he is a truthful person.

The parties' witnesses presented very different views in respect of the seriousness of Ostrowski's injuries. Ostrowski's medical witnesses testified that he suffered a serious brain injury as a result of which he is no longer able to work or operate a motor vehicle and requires substantial assistance in carrying out normal life functions. Ostrowski's four treating doctors concluded that he has serious and permanent cognitive and emotional problems resulting from the 1997 accident.

One of Ostrowski's primary activities was playing saxophone in the Avalon String Band, which marches in Philadelphia's New Years' Day Mummers Parade. Ostrowski presented testimony by ten lay witnesses to support his brain-injury claim; specifically that the injury had an adverse affect on his ability to engage in his former activities, especially playing in and administrating the Avalon String Band. Ostrowski's witnesses testified that he had been one of the best musicians and lead performers before the accident, and even though he has remained in the band since the accident, his skills diminished significantly and he now plays only a secondary role. Defendants conducted surveillance videotape of Ostrowski that purported to show that he was an active member of the band. Ostrowski countered with testimony by other band members who compared the videotape footage of his performances before the accident with footage that the defendants had obtained in their surveillance videotaping.

Defendants' medical witnesses testified that Ostrowski suffered a mild concussion, with no lasting effects, and that he is able to work and enjoy his other activities in the same manner as before the accident. The defense focused chiefly on Ostrowski's truthfulness, contending that he was faking his brain injury. Defendants' expert neurologist, Dr. Feinberg, viewed the surveillance videotape of Ostrowski and concluded that his performance in the parades was "incompatible" with the results of the neuropsychological testing done by his doctors. In addition, Dr. Zielinski, defendants' expert in neuropsychology, opined that Ostrowski seemed like an individual who was deliberately doing poorly to fake his test results. Lastly, Dr. Rieger, defendants' expert psychiatrist, testified that there were no signs of cognitive dysfunction or psychosis. Dr. Rieger concluded that, while Ostrowski may have experienced a mild concussion, he had fully and completely recovered and his psychiatric prognosis is good. In attacking Ostrowski's credibility, defendants also relied on his statement at deposition that he had not continued to march in the band after the accident as well as Ostrowski's failure to disclose to his treating doctors that he had been treated for depression for four years following a 1989 accident that also resulted in litigation.

At the conclusion of trial, the jury found for Ostrowski, awarding him over $3 million in damages. The trial court denied defendants' motion for a new trial.

Defendants appealed to the Appellate Division, contending, among other things, that by allowing Ostrowski to present in his case in chief an array of witnesses who testified concerning their opinion of his character for truthfulness and honesty and his good acts, the trial court committed harmful error because Ostrowski failed to establish the requisite foundation for admission of this evidence. In addition, defendants argued that the evidence is so prejudicial that a new trial is required. The Appellate Division disagreed, affirming the decision of the trial court.

In reaching its decision, the Appellate Division noted that the defense introduced evidence to show that Ostrowski not only lied in his deposition and trial testimony but had been fraudulently posing as a cognitively impaired person during the entire four-and-one-half year period between his accident and the trial in order to obtain a substantial recovery in this lawsuit. Defendants also implied that Ostrowski fraudulently obtained a substantial recovery from a 1989 personal injury law suit. The Appellate Division was satisfied that the testimony of defendants' medical experts that Ostrowski was faking his symptoms of a serious brain injury was opinion evidence attacking his character for truthfulness entitling Ostrowski to rebut by opinion and reputation evidence attesting to his character for truthfulness.

The Appellate Division rejected defendants' argument that the trial court committed reversible error by allowing Ostrowski to present character for truthfulness during his case in chief, rather than requiring him to withhold such evidence until rebuttal. According to the Appellate Division, defendants' opening constituted an attack on Ostrowski's character for truthfulness, ...

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