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DaSilva v. Ford Motor Co.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


January 22, 2010

GETZABETH DA SILVA, PLAINTIFF-APPELLANT,
v.
FORD MOTOR COMPANY, DEFENDANT-RESPONDENT, AND SOFIA GUBERMAN AND ALEXANDER GUBERMAN, DEFENDANTS.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-2666-02.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 15, 2009

Before Judges Wefing, Messano and LeWinn.

On May 1, 2000, plaintiff, Getzabeth DaSilva, was driving her 1999 Ford Explorer when she was involved in a four-vehicle accident. Plaintiff was stopped at a traffic light behind two other vehicles and was struck from behind by a vehicle driven by defendant Sofia Guberman. This caused plaintiff's Explorer to collide with the vehicle in front of it, which, in turn, rear-ended the first vehicle in line. As a result of these collisions, plaintiff sustained injuries rendering her permanently paraplegic.

On March 4, 2002, plaintiff filed a complaint against defendant, Ford Motor Company (Ford), Sofia Guberman and her husband Alexander Guberman. The matter settled between plaintiff and the Gubermans and proceeded to trial against Ford only.

Plaintiff's theory of liability was that the design of the seat and seatbelt apparatus in the Explorer was defective. Ford's defense theory was that the design was not defective and plaintiff must not have been wearing her seatbelt properly. Following a nine-day jury trial, the jury rendered a verdict for defendant. An order of no cause for action was entered on September 24, 2008, and subsequently filed on October 21, 2008.

Plaintiff appeals, challenging three evidentiary rulings by the trial court. For the reasons that follow, we affirm.

The evidentiary rulings relate to three separate documents containing statements to the effect that plaintiff was wearing her seatbelt at the time of the accident. One such statement was contained in the report of a police officer who responded to the scene of the accident; the second was in an accident report generated by the Mobile Intensive Care Unit (MICU) which responded to the scene. The third was contained in the emergency room records of Somerset Medical Center where plaintiff was taken by ambulance immediately following the accident.

Ford moved pre-trial to exclude the statements in the police and MICU reports. Thereafter, Ford moved during the trial to exclude the portion of the emergency room records containing the reference to plaintiff wearing her seatbelt. The trial judge granted all three motions, over plaintiff's objection.

The police accident report contained a notation that both a lap belt and shoulder harness were available in plaintiff's vehicle and that she had used both devices. The MICU report noted "Pt seatbelt." The trial judge determined that both notations were hearsay and ruled that plaintiff's counsel should not be permitted to make any reference to the hearsay in the opening statements, or at any time during the trial. And I will order that the reports not be used in cross-examination of defendant's experts. I . . . believe they are hearsay. They don't fall within the exception to the business records exception. . . . [T]here is no recollection on the part of the . . . rescue workers where that information came from, but we really don't have any information from the . . . police officer as to the recording of that information, whether that was an observation or simply something reported to him.

[T]o allow it to then be used to cross-examine the expert witnesses, I do find, . . . that the probative value would be outweighed by the risk of misleading the jury and confusing the issues because they would then want to know, or have to know, or be confused as to where that information came from; answers that I don't think would be provided.

And so under Rule 403 . . . I find and I believe that that information should be excluded and not be allowed to be used with regard to the cross-examination of the defendant's experts.

At trial, plaintiff testified that she "always" wore her seatbelt and denied ever operating a motor vehicle without using her seatbelt. Plaintiff asserted that she was wearing her seatbelt properly at the time of the accident and, contrary to Ford's claim, was wearing the shoulder harness "in front of [her]" and not "behind [her] back."

Plaintiff further testified that the impact from Guberman's vehicle caused her body to go "forward[,]" and she "hit" her forehead on the steering wheel and "then went back." She "felt like [her] body went ice[,]" and was not able to move around at all. Plaintiff testified that, while she recalled police and emergency personnel responding to the scene, she had no recollection of making any statements to any of them.

Plaintiff stated that she was taken by ambulance to the emergency room at Somerset Medical Center. There, staff asked her "about what kind of accident it was[.]" When asked by her attorney if emergency room staff inquired as to whether she was wearing a seatbelt at the time, defense counsel objected; following a sidebar, the trial judge sustained the objection.

Plaintiff presented the testimony of Donald Phillips, an expert in "the field of automotive engineering and alternative design, seat belt design, accident reconstruction, and occupant kinematics." Phillips defined "occupant kinematics" as "the study of the occupants['] motion in a vehicle during a crash, understanding why they move . . . what are going to be the target areas that this occupant would hit, given a certain crash at a certain velocity and certain angles."

Based upon his examination of plaintiff's vehicle and his review of the nature of her injuries, Phillips opined that "she was belted at the time of the accident." In support of that opinion, Phillips stated that he "relied upon reports from other people." Defense counsel immediately objected, as the trial judge had previously ruled that the police and MICU reports' references to plaintiff wearing her seat belt were inadmissible. The trial judge reserved on the objection at the time. Shortly thereafter, following additional argument on the issue, the judge sustained defendant's objection. In ruling that Phillips would not be able to testify about the police or MICU reports, the judge stated:

I do find that [N.J.R.E.] 703 does not require the admission of that information, does not provide a basis for the introduction for that information, and under [N.J.R.E.] 403 I find and I believe that the probative value of that information is substantially outweighed by the risk of undue prejudice to the defendant[,] confusion of issues and the misleading of the jury as to whether or not that is, indeed, a fact.

Again, the plaintiff has testified that she was properly wearing her seat belt. I think the plaintiff's expert just testified from his . . . analysis of the seat belt assembly that he believes that she was properly wearing her seat belt. So there's [an]other basis for the plaintiff . . . to be able to prove this issue without relying upon inadmissible hearsay.

So I'm going to sustain the objection and direct that . . . you not inquire any further as to the contents of these reports. And I'll order that Mr. Phillips not make any mention of the . . . MICU report or the police report or the proposition that those reports stated that she was properly wearing her seat belt or that she was wearing her seat belt.

Phillips then testified that based upon his observation of plaintiff's vehicle, "the impact [of the collision] was offset to the right side of the rear of the vehicle and it was not a full overlap or straight on rear hit." He opined that upon impact, plaintiff comes off the center, the seat twists, it loads up, she slips and comes out of position, arches backwards so her back flexes or bends and . . . as she comes forward during the second impact, the seatbelt is no longer up on her shoulder, but it comes down because she's off the center like this.

And when she comes forward, she's leading with the left side of her head and her forehead hits the top of the steering wheel and cuts her above the left eye.

[B]ecause of the asymmetric bending of the seat that allowed [plaintiff] to ramp up and over the seat back that the inboard bar of the seat frame came in line with her T-7 vertebrae, which caused it to be loaded from behind, pushed, starting -- at least in my opinion, could start to fracture, and then there was a forward rebound, forward with the shoulder belt now being out of position, but she still had some benefit of the belt, that's why only her forehead above her eye hit the steering wheel and not anything else.

Phillips further opined that an alternative seat/seatbelt construction known as an "All Belts to the Seat" (ABTS) design was superior to the apparatus in plaintiff's 1999 Ford Explorer; had an ABTS seat been installed, plaintiff's injuries would not have been so severe. On this issue, the following colloquy occurred on direct examination:

Q: Now, Mr. Phillips, assuming that the Ford Explorer, 1999 Ford Explorer had incorporated . . . , for instance, [an] ABTS seat or a high retention seat, and assuming that Miss DaSilva was seated in her seat in a stopped position, looked in the rear-view mirror, noticed the Guberman vehicle come upon her and then the crash occurred, assuming she had one of the two seats that you suggested, do you have an opinion within a reasonable degree of engineering probability as to whether or not she would have sustained any injuries?

A: I believe she wouldn't.

Q: She would or would not?

A: Would not.

Q: And why is that?

A: Because the seat would not have twisted asymmetrically. It would have maintained her in a fairly upright position, and it would have controlled her motion and not allowed her to ramp up and off the inboard side because it wouldn't have dynamically flexed and rotated her away towards the middle of the vehicle.

Q: Is the -- in the issue for -- the --the position -- or the opinion you have does it involve the fact that Miss DaSilva was off the seat?

A: She was off the seat as a result of the deflection of the seat, not because of anything that she did prior to the accident.

Q: As a result of the, in your opinion, the defective seat?

A: Correct.

Q: And had the alternative design been employed, she would have been maintained in her seat?

A: Right, because the inboard side of the seat would not have been allowed to deflect or rotate freely because it would have had a secure hinge or reclining mechanism and it wouldn't rotate around just a slip joint.

Dr. Stephen Sachs, plaintiff's expert in neurology, testified as to the nature of her injuries. Over objection, Dr. Sachs was permitted to testify that plaintiff had informed him, for the purpose of taking her patient history, that she was wearing her shoulder harness on the day of the accident.

Dr. Jonathan Baskin, one of the physicians who treated plaintiff in the emergency room, testified that plaintiff suffered "hyper flexion injuries," which "require[] a lot of forward force to . . . basically, bend someone's body in this particular way. . . . It must bend over something. So, thinking of a clothes line, or some bar, a seatbelt in some instances, the body just crumples, or bends over that fixed structure." Dr. Baskin opined "within a reasonable degree of medical probability that [plaintiff], in this accident was bending forward over something when this injury occurred[.]" Dr. Baskin stated that his "decision making" in assessing plaintiff's injuries "largely came from my own interview with her, and . . . the impressions from that."

At the conclusion of plaintiff's case, she sought to move into evidence the police and MICU reports and the emergency room report from Somerset Medical Center. The trial judge excluded the police and MICU reports based upon his prior ruling. Defendant objected to the notation in the "patient's history of present illness" section of the hospital records, which stated: "(positive) seatbelt." The judge ruled that such a notation "constitutes hearsay within hearsay, and there's no exceptions [sic] for that. And for that reason I would sustain the objection and say that that should be redacted."

Plaintiff argued that "Dr. Baskin . . . testified that he took the history from the patient in the emergency room." Defense counsel contended that Dr. Baskin got "this information from someone other than the plaintiff[,]" given her physical condition upon arrival at the emergency room, which was described in the report as "complaining of severe back pain, emotionally distraught, distracted on initial ER assessment."

Based on this notation, defendant argued that it was "clear" that Dr. Baskin was "reading this from the ER assessment. He's not getting this from her." Plaintiff's counsel then acknowledged that he "can't say that for sure because [he did not] know and that's the whole problem. We just don't know where it's coming from." The judge reiterated that the notation was hearsay and ordered "the mention of the seatbelt redacted from the emergency room records."

Ford presented four expert witnesses. Dr. David Marcaldi testified as an expert in accident reconstruction. Roger Burnett, a Ford employee, testified as an expert in "automotive seats and restraints, design, performance, and testing, evaluation of comparative seat designs and occupant kinematics . . . ." Andrew Levitt testified as an expert in the same areas as Burnett, as well as "occupant exposure in rear-end collisions, and the role that the automotive seat plays in mitigating injuries . . . ." Dr. Catherine Corrigan testified as an expert in "biomechanics and occupant kinematics." The sum and substance of the testimony from these experts was that neither the seatbelt mechanism nor the seat in plaintiff's 1999 Ford Explorer was defective; therefore, based upon testing and simulation, plaintiff must have been wearing her shoulder harness behind her back at the time of the accident.

In charging the jury on the issue of proximate cause, the judge stated:

[Plaintiff] maintains that the seat back and seatbelt design was defective because [defendant] did not utilize either high retention seat back designs or an ISS, the integrated seatbelt system design, or an all belt[s] to seat design, which plaintiff contends are reasonably safer alternative designs that should have been used in this vehicle to make it crashworthy.

[Defendant] maintains, on the other hand, that the 1999 Ford Explorer driver's seat meets the criteria of a high retention seat and that the design and manufacture of its seat back and seatbelt system were reasonably safe, and that [plaintiff's] proposed alternative designs would not have improved the safety of the vehicle, either overall or in this particular motor vehicle accident.

Here you have heard evidence about how [plaintiff] was using the seat and seatbelt system. When you are deciding whether the seat and seatbelt system are defective, . . . you are not permitted to consider the plaintiff's conduct. If you find that the seat back and the seatbelt system was [sic] defective, then you must decide whether the defect was a proximate cause of the accident. At this point, then, you may consider [plaintiff's] conduct. [(Emphasis added.)] The first question presented to the jury on the verdict sheet was:

Has the plaintiff . . . proven by a preponderance of the credible evidence that the seat and seatbelt in the 1999 Ford Explorer was [sic] defectively designed (i.e. that it was not reasonably safe for its intended or reasonably foreseeable uses in that it was not crashworthy) because of the design of the seat and seatbelt?

The jury answered this question "no" by a vote of eight to two.

On appeal, plaintiff challenges the trial judge's rulings (1) barring admission of the police report, the MICU report, and the hospital record notation regarding seatbelt use; (2) prohibiting plaintiff from referring to those three documents during the direct examination of her expert, Phillips; and (3) barring reference to those three documents during cross-examination of the defense expert witnesses. Having reviewed the record in light of the controlling legal principles, we are satisfied that the trial judge properly excluded these items from evidence and, therefore, from use in examining and cross-examining expert witnesses before the jury.

We first consider plaintiff's contention that the police report was admissible under N.J.R.E. 803(c)(6) as a "business record" exception to the hearsay rule, and that the seatbelt notation contained in that report is admissible because the responding police officer was under an "official duty" to report the accident on a standard form and, therefore, the statement carries an "inherent reliability" justifying its introduction into evidence.

"Out-of-court statements offered to prove the truth of the matter asserted are hearsay." State v. White, 158 N.J. 230, 238 (1999) (citing N.J.R.E. 801). "Hearsay evidence [is] considered untrustworthy and unreliable," ibid., and "is not admissible except as provided by the[] rules [of evidence] or by other law." N.J.R.E. 802. There are several exceptions to the hearsay rule, which "are justified on the ground that 'the circumstances under which the statements were made provide strong indicia of reliability.'" White, supra, 158 N.J. at 238 (quoting State v. Phelps, 96 N.J. 500, 508 (1984)).

One such exception is the "business records" exception found in N.J.R.E. 803(c)(6), which provides:

The following statements are not excluded by the hearsay rule:

RECORDS OF REGULARLY CONDUCTED ACTIVITY. A statement contained in a writing or other record of acts, events, conditions, and subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy. [(Emphasis added.)]

"The purpose of the business records exception is to broaden the area of admissibility of relevant evidence where there is necessity and sufficient guarantee of trustworthiness." Liptak v. Rite Aid, Inc., 289 N.J. Super. 199, 219 (App. Div. 1996). "The rationale for the exception is founded upon the theory that records which are properly shown to have been kept as required normally possess a circumstantial probability of trustworthiness, and therefore ought to be received in evidence." Ibid.

The Supreme Court has recently reaffirmed the standards governing the admissibility of business records:

In order to qualify under the business record exception to the hearsay rule, the proponent must satisfy three conditions: "[f]irst, the writing must be made in the regular course of business; second, it must be prepared within a short time of the act, condition or event being described. Finally, the source of the information and the method and circumstances of the preparation of writing must justify allowing it into evidence." [State v. Sweet, 195 N.J. 357, 370 (2008) (quoting State v. Matulewicz, 191 N.J. 27, 29 (1985)), certif. denied, __ U.S. __, 129 S.Ct. 2858, 174 L.Ed. 2d 601 (2009).]

Where the business record at issue is a police report, "[i]f the police officer who wrote the report is unavailable, any other police official who could state that the report was a record made in the regular course of the officer's duties and was made at or near the time of the event may establish the report's admissibility." Dalton v. Barone, 310 N.J. Super. 375, 378 (App. Div. 1998).

Here, plaintiff laid no foundation for the admission of the police report; she failed to show that "the source[] of information or the method, purpose or circumstance of preparation of" the seatbelt notation in that report was "trustworthy." N.J.R.E. 803(c)(6). Nor did she establish that the seatbelt notation in the report was made "by a person with actual knowledge or from information supplied by such a person . . . ." Ibid. In fact, plaintiff proffered no evidence in opposition to Ford's motion in limine.

Under the circumstances, we concur with the trial judge's observation that there was no information from the police officer who authored the report "as to the recording of th[e] information [regarding plaintiff's seatbelt use], whether that was an observation or simply something reported to him." Since plaintiff produced no evidence to address this pertinent concern, we find no error in this evidentiary ruling.

Regarding the MICU report, plaintiff did call one of the responding emergency workers, Thomas E. Chetney, in response to the defense motion in limine. Chetney testified that he had approximately twenty-three years of experience as a paramedic and generally described his duties. With specific regard to plaintiff's accident, Chetney testified on direct examination that he "ma[d]e certain evaluations of [plaintiff]" and reported that information to his co-worker, Arminitis, who prepared the report which Chetney then co-signed. Chetney stated that he provided the information that plaintiff "was wearing a seatbelt," adding that he is required to report such information by state regulation.

On cross-examination, however, Chetney admitted that he had no specific recollection of plaintiff's accident. He further acknowledged that the information in the MICU report that plaintiff was wearing a seatbelt could have been given to him by the responding police officer or by a paramedic from the Bound Brook First Aid Squad, which had arrived at the accident scene prior to Chetney's unit. Chetney testified that he did not remember how he came to learn that plaintiff was wearing her seatbelt, "whether that . . . was [his] own observation or whether it was told to [him] by someone else."

On appeal, plaintiff challenges the exclusion of the MICU report on grounds similar to her contentions regarding the police report. For the reasons expressed earlier, we are satisfied that the trial judge properly excluded the MICU report, as well.

We note that the report itself may qualify as a business record under N.J.R.E. 803(c)(6), as the document satisfied the three conditions to admissibility under that hearsay exception, as noted in State v. Sweet, supra, 195 N.J. at 370. The report was "'made in the regular course of business[,] . . . [and was] prepared within a short time of the . . . event being described[,] . . . [and] the source of the information and the method and circumstances of the preparation of the writing . . . justify allowing it into evidence.'" Sweet, supra, 195 N.J. at 370 (quoting Matulewicz, supra, 101 N.J. at 29). We concur with plaintiff that Chetney's testimony satisfied these prerequisites.

That conclusion, however, does not end the inquiry because "[t]he admissibility of a business record . . . does not mean that all parts of the record are necessarily admissible." Biunno, Current N.J. Rules of Evidence, 1991 Supreme Court Committee Comment on N.J.R.E. 803(c)(6) (2010); see In re Registrant C.A., 146 N.J. 71, 98-99 n.3 (1996) (declarant-victim's statements to the police included in police reports were not admissible under 803(c)(6)); and Sas v. Strelecki, 110 N.J. Super. 14, 22 (App. Div. 1970) (excluding from evidence statements in police report made by declarants because "they were not under any 'business duty' to render a truthful account"). Generally, where an admissible business record contains an inadmissible hearsay statement, the proper procedure is to redact or excise the inadmissible statement. Cestero v. Ferrara, 57 N.J. 497, 501 (1971); State v. Weiler, 211 N.J. Super. 602, 613-14 (App. Div.), certif. denied, 107 N.J. 37 (1986); Brown v. Mortimer, 100 N.J. Super. 395, 405-06 (App. Div. 1968).

Here, we are satisfied that the seatbelt notation in the MICU report was properly excluded because plaintiff failed to demonstrate that that notation fell within the business records exception or within any other exception to the hearsay rule. Had Chetney testified that that notation was based upon his observation, or that the information was reported to him by another with a business duty to do so, then the seatbelt notation could properly be admitted under the business records exception. Sas, supra, 110 N.J. Super. at 22. The record demonstrates, however, that Chetney simply had insufficient recollection of the source of the seatbelt information to satisfy the hearsay exception in N.J.R.E. 803(c)(6).

Finally, we address plaintiff's challenge to the exclusion of the seatbelt notation in the hospital records. Plaintiff contends that the notation in the emergency room record is "[s]imilarly" admissible under N.J.R.E. 803(c)(6), "because of its inherent reliability, and also under N.J.R.E. 803(c)(4), as a statement 'made in good faith for the purposes of medical diagnosis or treatment.'"

The only authority plaintiff cites for this latter proposition is Bober v. Independent Plating Corp., 28 N.J. 160 (1958). In that workers' compensation case, the plaintiff developed severe respiratory problems when exposed to certain chemicals at his work site. Id. at 163-65. The plaintiff's medical expert testified that he based his opinion, at least in part, "upon some of the history given to him by [the plaintiff]." Id. at 170.

In that context, the Court reiterated the long-held view "that declarations of a patient as to his condition, symptoms and feelings, made to his physician for the purpose of diagnosis and treatment, are admissible in evidence." Ibid. The Court noted that such declarations "stand arrayed in the same cloak of reliability as those expressions which are thought of ordinarily as symptoms." Id. at 171. The Court held:

In our judgment, . . . the history thus gleaned which described the inception, the general character of the cause or external source of the condition to be treated, so far as it is pertinent to the purpose of diagnosis and treatment, is within the rule and admissible as substantive evidence. [Id. at 172.]

We are satisfied that Bober is factually distinguishable from plaintiff's case to the extent that it lends no support to her position. Whether or not plaintiff was wearing her seatbelt properly had no bearing upon "the inception, the general character or external source of the condition to be treated," nor was it "pertinent to the purpose of diagnosis and treatment" of the injuries caused by the accident. Ibid.

We further conclude with respect to all three documents that even if we were to determine that plaintiff's position is correct, we are nonetheless confident that any error in excluding those documents was harmless, for the following reason.

As noted above, the trial judge instructed the jury that the first question they must answer was whether plaintiff had proven that the seat and the seatbelt system mechanism in her 1999 Ford Explorer were defectively designed. The jury answered that question in the negative. Therefore, consistent with the trial judge's further instructions, the jury did not consider plaintiff's conduct in reaching its verdict.

"In determining a manufacturer's liability for an allegedly defective product, the inquiry should focus on the condition of the product, not the plaintiff's use of care in operating the product." Johansen v. Makita U.S.A., Inc., 128 N.J. 86, 95 (1992). "Specifically, a jury must determine whether the product was defective, and if so, whether the defect rendered the product unfit for its intended or reasonably foreseeable purposes." Ibid. Generally, a plaintiff's conduct is not relevant in "deciding the question of design defect[]" but rather is relevant "to the question of proximate cause." Id. at 102.

Here, plaintiff sought to admit these documents in order to corroborate her testimony that she had properly used the shoulder harness of her seatbelt at the time of the accident. The jury, however, never had occasion to address that question because of its threshold determination that plaintiff had failed to meet her burden of proving a defective design. Thus, whether or not plaintiff properly employed the shoulder harness was irrelevant to the central question, which, as the judge noted, was the subject of the "battle of experts," namely, whether the seat and seatbelt mechanism were defectively designed. Johansen, supra, 128 N.J. at 95.

Based on the foregoing, we are satisfied that the trial judge's exclusion of the challenged documents does not constitute reversible error. As we have determined that the exclusion of each of these reports was proper, we conclude that plaintiff's remaining arguments regarding the use of the documents in the examination of the expert witnesses are without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). We add only the following comments.

The trial judge properly concluded that such use of these documents was barred under N.J.R.E. 703, which provides:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Our Supreme Court has recently revisited the limitations upon the admission of such evidence pursuant to that rule. In Agha v. Feiner, 198 N.J. 50, 63 (2009) (citations omitted), the Court noted:

Although the rule permits a hearsay statement, such as a medical report by a non-testifying expert, to be referred to by a testifying expert for the purpose of apprising the jury of the basis for his opinion, it does not allow expert testimony to serve as "a vehicle for the 'wholesale [introduction] of otherwise inadmissible evidence.'" The rule must be "anchored to the reason for its existence," and interpreted accordingly. When the purpose of the rule is taken into consideration, the only fair interpretation is that it was not intended as a conduit through which the jury may be provided the results of contested out-of-court . . . reports.

The Court rejected arguments similar to those advanced by plaintiff here, finding that such a position "would violate the hearsay rules; contravene the standards governing expert testimony by allowing an expert to testify beyond his qualifications; and, most importantly, would defeat the cross-examination which is the bedrock of our adversary system." Id. at 67.

Affirmed.

20100122

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