On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Atlantic County, ATL-L-2835-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted: September 10, 2007
Before Judges Collester and C.L. Miniman.
Plaintiffs appeal the denial of their motion for a new trial and the entry of judgment in favor of defendant Elizabeth C. Hunt*fn1 following a verdict of no cause for action in this verbal-threshold case. The only issue presented for our consideration is whether the trial judge erred in excluding medical records from evidence.*fn2 We reverse.
Plaintiff Minhaj Ahmed (Minhaj) and defendant were involved in a motor vehicle accident in Atlantic City on September 11, 2002. Minhaj was injured and ultimately diagnosed as having two herniated lumbar discs with radicular pain. In securing insurance on their vehicle, plaintiffs selected the limitation on lawsuit option available under the Automobile Insurance Cost Reduction Act of 1998 (AICRA). N.J.S.A. 39:6A-8(a). They filed a complaint on October 15, 2003, and discovery ended on May 20, 2005. Thereafter, defendant moved for summary judgment seeking a dismissal of plaintiffs' claims on the ground that Minhaj's injuries did not fall within the six categories of injury that were compensable under AICRA. Ibid. The motion was denied on the ground that "the plaintiff has at least established sufficient objective evidence of a permanent injury that is causally related to the accident in question. . . ."
As required by R. 4:25-7(b), defendant on May 9, 2006, and plaintiffs on May 19, 2006, exchanged their pretrial information as prescribed by Appendix XXIII to our rules of court. The plaintiffs specifically listed all exhibits to be offered in their case in chief and premarked them for identification. Defendant also listed all exhibits to be offered in her defense. Both sides indicated that they did not anticipate any problem in moving their exhibits into evidence. Furthermore, neither side advised the other that there were any "objections to the proposed admission into evidence of any exhibit," although the parties were required to serve notice of such an objection "not later than 2 days prior to trial." Pretrial Information Exchange, Pressler, Current N.J. Court Rules, Appendix XXIII to R. 4:25-7(b) at 2453, ¶ 4 (2007).
On May 22, 2006, the case was reached for trial and the jury was selected. On May 23, 2006, the parties advised the trial judge that they had several in limine motions that had to be addressed before opening statements could be presented to the jury. Although defendant raised a number of issues at that time, including an objection to a chart reflecting dates of treatment, defendant did not indicate that she had any objections to the premarked medical records that had been identified in plaintiffs' pretrial information exchange.*fn3
Some of the premarked medical records were identified on the record*fn4 and were used in examining the medical experts. Other medical records were generally discussed with the various experts but were not shown to the witnesses and identified on the record by exhibit number. Defendant raised no objections to any of the records during the testimony, except with respect to the recommendations Dr. Singh made to Minhaj. Defendant objected on the ground that Dr. Singh was not going to testify. Plaintiffs' counsel immediately rephrased the question prior to a ruling from the judge.
At the close of plaintiffs' case in chief, defendant's attorney, during a colloquy with the judge, suggested that "whatever legal stuff we have to do between plaintiff's case and my case, we can hold it in abeyance until my case is done." The judge concurred and plaintiffs' counsel stated that he had marked numerous exhibits and inquired if he was "resting subject to putting in my exhibits." The judge agreed and told the attorneys during the lunch break to "find which exhibits you agree on, and I will just rule on the ones you don't agree on." After that discussion plaintiffs' counsel advised the judge that defendant objected to the admission of all records except the ambulance and emergency room records. He acknowledged that he understood the issue of trying to import a diagnosis from another doctor into a trial when that doctor had not testified. He then argued that the real question was whether the records were trustworthy.
After finding the records trustworthy, the judge remarked:
What I have a concern about is that although experts certainly can testify from other doctors' reports, and that's, you know, an exception with the hearsay rule for lack of a better term, to take a report where there has been no opportunity to cross examine that report, and to take a doctor's report who did not testify I think places undue emphasis upon that report, which I don't think the jury should be able to peruse.
Plaintiffs then argued that the records were being offered to prove that Minhaj had complaints of pain and received treatment throughout a significant period of time. The judge responded,
And there's ways that can be done other than a report that goes in from a doctor who did not testify. I mean I can tell the jury 'til I'm blue in the face what they ought to consider it for, but once that goes in the accepted evidence box and goes in that jury ...