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Fortunato v. Villafane


March 5, 2008


On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-3257-04.

Per curiam.


Submitted January 15, 2008

Before Judges Fuentes, Grall and Chambers.

Plaintiffs Albert and Jacqueline Fortunato appeal from the dismissal of their complaint seeking damages for losses sustained as a consequence of defendant Hernando Villafane's reckless or negligent driving.*fn1 Plaintiffs alleged that the accident caused permanent injury to Mr. Fortunato's lumbar spine -- disc bulges. Mrs. Fortunato's claims are per quod. The trial judge dismissed the complaint on the ground that plaintiffs, who acknowledged that they were unwilling to retain an expert qualified to read the CT scan, lacked the objective clinical evidence required to establish a "permanent injury" within the meaning of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. That determination is consistent with New Jersey Evidence Rules 703, 705 and 808 and with this court's subsequent decision in Brun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006).*fn2 Accordingly, we affirm.

On June 6, 2003, Mr. Fortunato's car was hit from behind while stopped at a traffic light. On June 11, 2003, he sought treatment from Dr. Robert Matturro, a chiropractor. On July 22, 2003, Dr. Patel, a radiologist, performed a CT Scan of Mr. Fortunato's lumbar spine.*fn3 Dr. Patel reported his impressions as follows:






The further studies Dr. Patel suggested were not done.

After receiving Dr. Patel's report, Dr. Matturro continued the course of treatment that he started on June 13, 2003, which consisted of spinal manipulation and electrical stimulation. Dr. Matturro last treated Mr. Fortunato on March 12, 2004. Dr. Matturro's report refers to an EMG that showed "[b]ilateral radiculopathy at L4-L5 and L5-S1," but the results of the EMG are not included in the record provided on appeal.

On December 8, 2004, Mr. Fortunato saw a second chiropractor, Dr. Iaizzi. That doctor provided a report which included a recitation of Mr. Fortunato's complaints and an assertion that her "objective clinical findings," which she did not describe, revealed "multiple subluxated vertebrae."

Defendant's expert, Dr. Bercik, reviewed the films from the CT Scan. His report describes the following observations: "Mild disc bulging is noted at L4-L5 and L5-S1. No disc herniations are seen. Degenerative changes are noted. The CT Scan study films are otherwise unremarkable."

By way of motion in limine prior to trial, plaintiffs sought a ruling as to whether they could establish a permanent injury as required by AICRA without the testimony of an expert qualified to interpret a CT Scan or EMG. Plaintiffs' attorney acknowledged that Dr. Matturro was not trained or qualified to read and interpret the CT Scan, which was reported by Dr. Patel. The attorney also conceded that if Dr. Matturro could not testify about Dr. Patel's findings, plaintiffs would be unable to prove that Mr. Fortunato sustained an injury that met the verbal threshold. He further admitted that defendant's expert would contest Dr. Matturro's opinion and testify that the CT Scan showed degenerative changes; he agreed that the CT Scan was the only objective clinical evidence of the bulging discs. Mrs.

Fortunato testified at the hearing on the motion in limine and confirmed that neither she nor her husband were willing to pay the fee of an expert witness qualified to read a CT Scan. Plaintiffs' attorney made no argument about Dr. Iaizzi's report, which did not identify any objective clinical evidence of any injury, or about Dr. Bercik's report.

The trial judge determined that Dr. Matturro could testify about test results reported to him for the limited purpose of explaining his opinion and the course of treatment he selected, but she concluded that Dr. Matturro could not testify about the test results to establish that the CT Scan showed bulging discs or that the EMG showed radiculopathy. She based that determination upon the distinction between an expert explaining the basis for his or her opinion and an expert repeating the opinion of another expert to establish the facts asserted therein. The judge reasoned that if Dr. Matturro were permitted to provide objective clinical evidence by repeating the opinions of other experts, defendant would be unable to cross-examine. Following that ruling and at the request of plaintiffs' attorney, the judge granted an involuntary dismissal on the ground that plaintiff did not have any objective clinical evidence of permanent injury.*fn4

Under AICRA, an injury is "considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment." N.J.S.A. 39:6A-8(a). It is beyond dispute that the injury "must be proven by objective clinical evidence." Serrano v. Serrano, 183 N.J. 508, 516 (2005). As the Supreme Court held in DiProspero v. Penn, 183 N.J. 477, 495 (2005), AICRA incorporates prior case law requiring proof of the injury by credible, objective clinical evidence.

On appeal plaintiffs and both amicus curiae argue that an expert should be permitted to explain the foundation for his or her opinion if the information is of the type reasonably relied upon by experts in that field. See N.J.R.E. 703; N.J.R.E. 705. We agree. There is, however, a distinction between hearsay information offered for the limited purpose of explaining the basis for an expert's opinion and the use of the same hearsay as evidence of the facts asserted. The legal distinction is not new. "'[H]earsay statements upon which an expert relies are admissible, not for [the purpose of] establishing the truth of their contents, but to apprise the jury of the basis of the opinion reached.'" State v. Torres, 183 N.J. 554, 576 (2005) (quoting State v. Humanik, 199 N.J. Super. 283, 305 (App. Div.), certif. denied, 101 N.J. 266 (1985)*fn5 ); compare N.J.R.E. 705 (discussing disclosure of basis for expert's opinion) with N.J.R.E. 808 (discussing factors relevant to admissibility of expert opinion included in admissible hearsay). Accordingly, where an expert has relied upon hearsay that is presented to the jury to establish the foundation for the expert's opinion, "the judge must advise the jury that it 'should not consider the hearsay statement as substantive evidence . . . , but only as evidence tending to support the ultimate expert conclusion of the [witness].'" State v. Vandeweaghe, 351 N.J. Super. 467, 480 (App. Div. 2002) (quoting State v. Farthing, 331 N.J. Super. 58, 78 (App. Div.), certif. denied, 165 N.J. 530 (2000)), aff'd, 177 N.J. 299 (2003)).

This court addressed a similar issue in Brun, where we held "that, on objection, interpretation of an MRI may be made only by a physician qualified to read such films, and that the MRI report could not be bootstrapped into evidence through [the] testimony" of a doctor not qualified to interpret an MRI. 390 N.J. Super. at 421. That conclusion was based on "the complexity of MRI interpretations." Ibid.; see State v. Matulewicz, 101 N.J. 27, 30 (1985) (discussing admissibility of a laboratory report prepared by a State Police chemist); Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276, 282-85 (App. Div.), (discussing diagnosis included in hospital records), certif. denied, 141 N.J. 95 (1995); see generally Biunno, New Jersey Rules of Evidence, comment on N.J.R.E. 808 (2007) (setting forth as a note the 1991 Supreme Court Committee Comment to N.J.R.E. 808, which notes that N.J.R.E. 808 is intended to include the criteria discussed in Matulewicz). Reasoning that admission of an "MRI report without calling [the author] as a witness would deprive defendants of the ability to cross-examine the author of the report on the central issue [in that] case, namely plaintiff's herniation," we concluded that an MRI report authored by one who was not called as a witness "was, on objection, inadmissible hearsay." Brun, supra, 390 N.J. Super. at 422.

In Brun we rejected the plaintiff's claim "that N.J.R.E. 703 and Macaluso v. Pleskin, 329 N.J. Super. 346 (App. Div.), certif. denied, 165 N.J. 138 (2000), allow the admission of" an MRI report prepared by another doctor. Ibid. That determination rested on the premise "that expert testimony should not be used as 'a vehicle for the wholesale [introduction] of otherwise inadmissible evidence.'" Ibid. (quoting Vandeweaghe, supra, 351 N.J. Super. at 481, and supported by this court's holding in Day v. Lorenc, 296 N.J. Super. 262, 267 (App. Div. 1996)). In Brun, we noted that "while a physician could be questioned about the report of another doctor that he had taken into consideration in formulating his opinion, N.J.R.E. 705, the report of the non-testifying doctor could not itself be admitted in evidence 'in the absence of an independent basis for admissibility.'" Brun, supra, 390 N.J. Super. at 423 (quoting Day, supra, 296 N.J. Super. at 267, and distinguishing Macaluso, supra, 329 N.J. Super. at 354; Glowacki v. Underwood Mem'l Hosp., 270 N.J. Super. 1, 17 (App. Div. 1994); Blanks v. Murphy, 268 N.J. Super. 152, 162 (App. Div. 1993); Dietzeman v. Peterson, 196 N.J. Super. 96, 101 (Law Div. 1984)); Nowacki, supra, 279 N.J. Super. at 281-85.

We see no reason to deviate from or elaborate on Brun. AICRA requires proof of a permanent injury by objective clinical evidence. N.J.S.A. 39:6A-8(a). Here, plaintiffs acknowledged that the only objective clinical evidence of the permanent injury alleged -- bulging discs -- was the CT Scan. Plaintiffs could not introduce the hearsay opinion of Dr. Patel, a non-testifying expert, as substantive proof of that injury without establishing the trustworthiness of the opinion in accordance with Evidence Rule 808. That rule of evidence prohibits use of an expert opinion as substantive evidence, absent testimony from a qualified witness or circumstances tending to establish trustworthiness. See Nowacki, supra, 279 N.J. Super. at 281-85 (considering the requirements of N.J.R.E. 808, expressly applicable when expert opinion is included in records, in evaluating whether hearsay opinion relied upon by a testifying expert could be admitted as substantive evidence in addition to its admissibility for the limited purpose of explaining the basis for the opinion given by the testifying expert). The circumstances the trial judge must consider in evaluating the trustworthiness include "the complexity of the subject matter, and the likelihood of accuracy of the opinion . . . ." N.J.R.E. 808. In this case, plaintiffs presented no evidence relevant to that inquiry and did not ask the judge to consider admissibility in accordance with the criteria of N.J.R.E. 808 as suggested in Nowacki.*fn6

Plaintiffs argue that the most "practical [approach] and uniform method of dealing with this issue" would be to permit testimony relying upon the underlying reports, pursuant to Evidence Rules 703 and 705, and leave it to the "opposing party to discredit the expert's opinion and/or provide a strong limiting instruction." The practical approach suggested overlooks a plaintiff's obligation to establish a permanent injury with objective clinical evidence. N.J.S.A. 39:6A-8(a); Serrano, supra, 183 N.J. at 516; DiProspero, 183 N.J. at 495. In this case, a limiting instruction would have left plaintiffs with no admissible objective clinical evidence of the injury claimed. Moreover, the argument overlooks the importance of cross-examination to test the opinion of the only expert able to provide competent objective clinical evidence of injury. As this court noted in Nowacki, when an expert relies upon an opinion of a non-witness expert about a critical issue in the case, the opponent is deprived of an opportunity to cross-examine. 279 N.J. Super. 282-83; see In re Civil Commitment of E.S.T. 371 N.J. Super. 562, 573-74 (App. Div. 2004). A witness not qualified to interpret a CT Scan who repeats the results reported by a qualified expert cannot be cross-examined about those results. With respect to admission of Dr. Patel's opinion or the results of the EMG as substantive evidence, through the testimony of Dr. Matturro, the problem is not that Dr. Matturro is a chiropractor; the problem is that plaintiffs conceded that he was not qualified to interpret the results.

For the foregoing reasons, we agree with the trial judge's conclusion. Plaintiffs did not establish a basis for allowing Dr. Matturro to present objective clinical evidence of permanent injury by parroting opinions of non-testifying experts. Our decision on that point makes it unnecessary to consider plaintiffs' arguments relevant to punitive damages.


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