Argued January 26, 2015
Approved for Publication March 25, 2015.
[Copyrighted Material Omitted]
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-8432-11.
John L. Zaorski argued the cause for appellant ( Cappuccio & Zaorski, LLC, attorneys; Mr. Zaorski and Tammy M. Maxey, on the brief).
Chad M. Moore argued the cause for respondent ( Hoagland, Longo, Moran, Dunst & Doukas, LLP, attorneys; Mr. Moore, of counsel and on the brief; Juliann M. Alicino, on the brief).
Before Judges SABATINO, GUADAGNO and LEONE.
[440 N.J.Super. 51] OPINION
We address in this appeal the propriety of questioning an expert witness at a civil trial, either on direct or cross-examination, about whether that testifying expert's findings are consistent with those of a non-testifying expert who issued a report in the course of an injured plaintiff's medical treatment. We also consider the propriety of counsel referring to the non-testifying expert's findings in closing argument.
Although the general legal principles on point have been discussed in prior cases, and the pertinent rules of evidence have been in force for decades, there appears to be some confusion and uneven customs in applying those principles and rules in everyday civil trial practice. Hence, we use this occasion to clarify whether questions may be posed about the " consistency" or " inconsistency" of a testifying expert's opinions with a non-testifying expert's views, and whether arguments about such consistency or inconsistency may be advocated in closing argument to a jury.
We hold that a civil trial attorney may not pose such consistency/inconsistency questions to a testifying expert, where the manifest purpose of those questions is to have the jury consider for their truth the absent expert's hearsay opinions about complex and disputed matters. Even where the questioner's claimed purpose is solely restricted to impeaching the credibility of an adversary's testifying expert,
spotlighting that opposing expert's disregard or rejection of the non-testifying expert's complex and disputed opinions, we hold that such questioning ordinarily should be disallowed under N.J.R.E. 403. Lastly, we hold that the closing arguments of counsel should adhere to these restrictions, so as to prevent the jury from speculating about or misusing an absent expert's complex and disputed findings.
[440 N.J.Super. 52] Because the trial court correctly applied these principles here in ruling on objections at trial, we affirm.
The circumstances presented in this case are quite common. In essence, we have before us a classic dispute in an automobile accident case over whether the plaintiff sustained a permanent injury to his spine and thereby is entitled to pain and suffering damages under the lawsuit limitation provision (also known as the " verbal threshold" ) in the Automobile Insurance Cost Reduction Act (" AICRA" ), N.J.S.A. 39:6A-1.1 to -35.
AICRA is a cost-containment measure that allows insured drivers to pay lower premiums in exchange for a limitation on their right to sue for noneconomic damages. See DiProspero v. Penn, 183 N.J. 477, 480-81, 874 A.2d 1039 (2005). One of the recurring issues in automobile negligence cases involving plaintiffs who are subject to the AICRA verbal threshold is whether there is objective and persuasive proof that they suffered in a motor vehicle accident " a permanent injury within a reasonable degree of medical probability." N.J.S.A. 39:6A-8(a); see also DiProspero, supra, 183 N.J. at 481, 874 A.2d 1039. In many instances, such as this case, the key issue at trial is whether such a permanent injury caused by the accident has been established, with both sides presenting competing expert testimony on that question.
The record here shows that plaintiff was operating his car on July 2, 2010 on the Atlantic City Expressway. He stopped his car at a toll booth behind defendant's vehicle. Defendant's car then suddenly went in reverse and backed into plaintiff's car. Defendant ultimately pled guilty to improper backing up, in violation of N.J.S.A. 39:4-127, in municipal court.
[440 N.J.Super. 53] Plaintiff went to a local emergency room after the accident, complaining of lower back pain. He then underwent treatment with an orthopedic physician for the lumbar pain. The treating physician ordered a CT scan of the lumbar spine, which was conducted on July 21, 2010, less than three weeks after the accident. The CT scan was interpreted by Dr. Amerigo Falciani, a radiologist. In his written one-page report, Dr. Falciani determined, among other findings, that the CT scan showed a " small diffuse [disc] bulge at the L4-L5 level." 
Plaintiff's back pain persisted, and he was evaluated by Dr. Stephen J. Zabinski, a Board-certified orthopedic surgeon, in December 2012. Among other things, Dr. Zabinski personally examined the CT scan that had been conducted in July 2010. Based on Dr. Zabinski's review of the CT scan, he likewise concluded that the CT scan showed disc bulging at the L4-L5 level. Dr. Zabinski concluded that the
lumbar disc bulge was traumatically caused by the July 2010 car accident, and that it was a permanent injury not likely to heal or to function normally in the future, despite the passage of time and continued treatment.
Plaintiff filed a lawsuit against defendant, alleging that she had negligently caused the accident and that the accident had caused him to sustain permanent injuries. Defendant did not contest liability for the accident, but she did dispute whether plaintiff had sustained a permanent injury that would enable him to vault the verbal threshold.
At the request of the defense, a Board-certified orthopedic surgeon, Dr. John A. Cristini, examined plaintiff in September 2012. Dr. Cristini specifically noted Dr. Falciani's finding of disc bulge within his first pretrial expert report, which contained this passage:
The CT of the lumbar spine reported by Dr. Falciani revealed a small diffuse broad based bulge at L4-5 and disc space narrowing at L1-2.
[440 N.J.Super. 54] Dr. Cristini thereafter was provided with a CD containing the CT scan itself, and he personally inspected it. In a supplemental expert report he issued in July 2013, Dr. Cristini stated:
As part of [the treating orthopedist's] evaluation, CT scans were obtained. These were carried out at Atlantic Medical Imaging and were available to me at this time on CD format. The CT of the lumbar spine dated 7/21/10 was reviewed. No evidence of disc or bone pathology was noted, specifically no disc herniation at any level was evident. No spondylosis or spondylolisthesis was noted.
Although he found no " herniation" at L4-L5 from his review of the CT scan, Dr. Cristini did not specifically comment in his supplemental report as to whether he agreed or disagreed with Dr. Falciani's finding of a " bulge," which he had referred to in his first report.
The matter was tried as a damages-only case before Judge James P. Savio. The critical issue was whether plaintiff had established by a preponderance of the evidence a permanent injury that overcame the AICRA verbal threshold. Plaintiff relied upon the expert testimony of Dr. Zabinski, and defendant relied on the competing expert opinions of Dr. Cristini. Neither side called Dr. Falciani.
Both plaintiff and defendant testified about the physical impact of the accident. Plaintiff also testified about his injuries and his course of treatment.
Several days before trial, plaintiff's counsel took the videotaped deposition of Dr. Zabinski for use at trial in lieu of his live testimony. In that de bene esse deposition, Dr. Zabinski opined, as he had in his expert report, that plaintiff had sustained a permanent injury from the accident.
During a brief portion of Dr. Zabinski's videotaped direct examination, plaintiff's counsel asked him the following questions and elicited the following answers:
[440 N.J.Super. 55] Q: And, Doctor, from your own review of the [CT] scan, you saw the bulge at L4-5. Correct?
Q: Was that consistent with what the radiologist saw in the report?
Defense counsel did not object to this line of testimony at the time of the deposition. However, in his pretrial submission under Rule 4:25-7, defense counsel more broadly urged the trial court to bar plaintiff's expert from testifying " as to any opinions of non-testifying doctors." The defense's Rule 4:25-7 submission also urged that Dr. Zabinski's videotaped testimony be edited and that the court issue rulings on defense objections before trial. Citing case law that restricts the admission of hearsay opinions on disputed complex matters, including radiology studies, the defense maintained that since the plaintiff's testifying expert, Dr. Zabinski, " reviewed the [CT scan] himself," there was " no need for him to discuss what another doctor found."
The defense presented expert orthopedic testimony at trial from Dr. Cristini. For scheduling reasons, Dr. Cristini's testimony was presented out of turn before the videotape of Dr. Zabinski was played during plaintiff's direct case.
Dr. Cristini told the jury that he had personally examined the CT scan. He was more definitive in his testimony about the CT scan than he had been in his pretrial reports, referring to a display of the CT scan being shown in the courtroom to the jury. Based upon his personal review of the cross-sections of the spine, Dr. Cristini testified that there was " no indication in [his] opinion [440 N.J.Super. 56] of any disc pathology or disc bulges or herniations at that [L4-L5] level." (Emphasis added).
On direct examination, Dr. Cristini expressly repudiated the contrary opinion of Dr. Zabinski, advising the jury that he " disagree[d] with" his testifying counterpart's finding of a disc bulge. Based on this determination, along with his physical examination of plaintiff and his " review of the medical records," Dr. Cristini concluded that plaintiff had not sustained a permanent orthopedic injury from the accident. Notably, Dr. Cristini was not asked about Dr. Falciani's findings during his direct examination.
On cross-examination, plaintiff's counsel attempted to show that Dr. Cristini's finding of the absence of a bulge was inconsistent with the finding of the radiologist, Dr. Falciani. The following exchange occurred:
[PLAINTIFF'S COUNSEL]: You discussed in your first report that a CT scan was done, correct?
[DR. CRISTINI]: Yes.
Q: And the CT scan was dated July 21st, 2010, correct?
A: I believe so.
Q: Okay. And in the report you also discuss the results of that ...