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Hayes v. Delamotte

Supreme Court of New Jersey

January 10, 2018

DOREEN HAYES, Plaintiff-Appellant,
v.
BARBARA DELAMOTTE, Defendant-Respondent, and GEICO INSURANCE COMPANY,

          Argued September 12, 2017

         On certification to the Superior Court, (077819) Appellate Division.

          Kimberly L. Gozsa argued the cause for appellant (Levinson Axelrod, attorneys; Kimberly L. Gozsa, on the brief).

          Stephen A. Rudolph argued the cause for respondent (Rudolph & Kayal, attorneys; Stephen A. Rudolph, on the brief).

          Donald A. Caminiti argued the cause for amicus curiae New Jersey Association for Justice (Breslin & Breslin, attorneys; Donald A. Caminiti and Jessica E. Choper, on the brief).

         SOLOMON, J., writing for the Court.

         The Court considers whether the trial court's decision to prevent plaintiff from replaying a portion of the deposition by the defense expert during summation resulted in a miscarriage of justice, such that it was proper for the trial court to grant plaintiff's motion for a new trial. The Court also considers plaintiff's argument that the defense expert's videotaped testimony regarding the reports of non-testifying experts was inadmissible hearsay.

         In 2001, plaintiff Doreen Hayes was diagnosed with a syrinx in her thoracic spine. MRIs were taken to monitor the syrinx's growth every six to nine months. That same year, plaintiff suffered a neck injury in an accident, and ultimately underwent surgery for a fusion at her C4-5 and C5-6 vertebrae. Plaintiffs last MRI, prior to the accident at issue in this case, was taken in May 2007. In 2008, plaintiff was a passenger in a vehicle operated by her mother, defendant Barbara Delamotte. The vehicle left the roadway and collided with trees and a telephone pole, allegedly to avoid a collision with an unidentified vehicle. After the 2008 accident, plaintiff consulted a neurosurgeon. The neurosurgeon examined plaintiff, ordered an MRI, and ultimately performed spinal fusion surgery on plaintiff's C6-7 and C7-T1 vertebrae.

         Plaintiff filed a complaint claiming that her mother and the unidentified vehicle caused the 2008 accident. Before trial, the defense retained Dr. Arthur Vasen, an orthopedic surgeon, to examine plaintiff and review her medical records, including cervical MRIs taken before and after the 2008 accident. The defense took Dr. Vasen's videotaped deposition for use at trial rather than call him to give in-court testimony. At trial, plaintiff moved in limine to have portions of Dr. Vasen's deposition referring to reports of non-testifying doctors stricken from the video. The trial court denied the motion.

         At trial, defendants presented Dr. Vasen's videotaped deposition. Prior to playing Dr. Vasen's testimony, the trial court gave the jury a limiting instruction regarding the use of non-testifying experts' opinions. Dr. Vasen testified that there were no differences between the MRIs purportedly taken on May 4, 2007 (before the accident) and May 17, 2008 (after the accident). However, the films that Dr. Vasen showed in the tape were both labeled May 17, 2008. The parties did not address that issue at the deposition or before the close of evidence at trial. At the conclusion of the parties' evidence, plaintiff's counsel requested the opportunity to replay Dr. Vasen's testimony during summation, and comment on the testimony, to demonstrate to the jury that the doctor compared MRI films marked with the same date. Defendant objected to the request. After conducting a N.J.R.E. 104(a) hearing and reviewing Dr. Vasen's videotaped deposition outside the presence of the jury, the court upheld defendant's objection, reasoning that there was no expert testimony to differentiate between the films or to evaluate their potential mislabeling. In its charge to the jury, the trial court provided an additional limiting instruction as to the reports of non-testifying experts. Ultimately, the jury determined that plaintiff's mother was solely responsible for the 2008 accident but found that plaintiff did not sustain a permanent injury proximately caused by that accident.

         Plaintiff moved for a new trial. The trial court granted the motion, concluding that plaintiff did not receive substantial justice because the jury gave greater weight to Dr. Vasen's testimony than to that of plaintiff s expert.

         Thereafter, a second trial was conducted, concerning only the issue of whether plaintiff sustained a permanent injury as a result of the 2008 accident. Dr. Vasen's videotaped deposition was retaken for use at the second trial. Although Dr. Vasen resolved the issues as to the dates of the MRIs he reviewed, plaintiff once again moved in limine to bar Dr. Vasen's testimony about the findings of non-testifying doctors. This time, the court granted plaintiff's motion. After the second trial, the jury found that plaintiff sustained a permanent injury proximately caused by the 2008 accident and awarded her $250, 000 in damages.

         Defendant appealed. The Appellate Division found that the trial court improperly granted a new trial and reinstated the jury's verdict in favor of defendant from the first trial. The Court granted plaintiff's petition for certification. 227 N.J. 376 (2016).

         HELD: Because the trial court's error in preventing plaintiff from replaying a portion of the deposition during summation at the first trial resulted in a miscarriage of justice, the trial court properly granted plaintiff's motion for a new trial. Further, the trial court erred in permitting Dr. Vasen to bolster his testimony using "congruent" opinions in reports of non-testifying doctors during the first trial rather than simply explain the sources of information used in forming his opinion.

         1. A trial court grants a motion for a new trial only if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law. A miscarriage of justice can arise when there is a manifest lack of inherently credible evidence to support the finding, when there has been an obvious overlooking or under-valuation of crucial evidence, or when the case culminates in a clearly unjust result, (pp. 12-14)

         2. In Condellav. Cumberland Farms. Inc.. the trial court found that "it is within the trial court's discretion to allow counsel to show portions of the videotaped trial testimony and make comment thereon during summation." 298 N.J.Super. 531, 535 (Law Div. 1996). The Court agrees with that holding and also that the following safeguards suggested in Condella should be considered when portions of videotaped trial testimony are utilized during summation. First, the replay during summation "should not be so lengthy as to constitute a second trial emphasizing only one litigant's side of the case." Id. at 536. Second, "to guard against the edited portions of the videotape misstating the evidence" and to prevent them from being "presented out of context, " the proponent should raise the issue with the court before playing an edited part of the tape. Ibid, (pp. 14-16)

         3. Here, plaintiff requested to have brief portions of Dr. Vasen's testimony replayed to demonstrate that the MRIs compared by the expert bore the same date. Use of those portions would not have constituted a "second trial" overemphasizing plaintiff's case. The proposed use of the video would not have been an attempt to misuse Dr. Vasen's testimony, but merely a legitimate attempt to emphasize a certain aspect of his testimony. Lastly, the trial court conducted a Rule 104 hearing and reviewed the video. The trial court did not make a finding and defendant did not claim that the video had been edited or that Dr. Vasen's testimony was taken out of context. The portion of the videotaped deposition sought to be played thus met the requirements of Condella, which the Court adopts as modified. Dr. Vasen's videotaped deposition was in evidence once it was played at trial. As with any other piece of evidence adduced at trial, counsel was permitted to fairly comment upon it and play portions during closing argument. Merely pointing to dates on MRIs or other images does not require expert testimony because reading the dates and realizing that they are the same is not beyond the ken of the average juror, (pp. 16-18)

         4. In sum, counsel may refer to, read, or play portions of videotaped fact or expert testimony given at trial during closing, as long as (1) counsel's comments are confined to the facts shown or reasonably suggested by the evidence introduced during the course of the trial, and (2) the concerns set forth in Condella are met. Plaintiff was entitled to replay the deposition and draw the jury's attention to the discord between the dates stamped on the MRIs to which Dr. Vasen pointed and the dates he ascribed to them. Because the trial turned on the weight assigned to expert testimony, the denial of that opportunity worked an injustice, and a new trial was necessary, (pp. 18-21)

         5. Although a testifying expert may detail the reasons underlying his or her opinion and the sources upon which his or her opinion is based, an expert witness should not be allowed to relate the opinions of a nontestifying expert merely because those opinions are congruent with the ones he has reached. Notwithstanding the cautionary instruction given, the trial court erred in permitting Dr. Vasen to bolster his testimony using "congruent" opinions in reports of non-testifying doctors during the first trial rather than simply explain the sources of information used in formulating his opinion, (pp. 21-23)

         The judgment of the Appellate Division is REVERSED, and the jury's verdict in favor of plaintiff following the second trial is REINSTATED.

          CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZVINA, and TIMPONE join in JUSTICE SOLOMON'S opinion.

          OPINION

          SOLOMON, JUSTICE

         Following an automobile accident, plaintiff Doreen Hayes filed a complaint against Barbara Delamotte and the Geico Insurance Company (collectively, defendants) seeking damages for personal injuries. At the first jury trial, defendants presented, by videotaped deposition, the expert testimony of an orthopedic surgeon who had examined plaintiff. Defendants' expert compared what he described as two different Magnetic Resonance Images (MRIs) of plaintiff's cervical spine, one that he identified as a pre-accident image taken in 2007 and one that he identified as an image taken after the 2008 accident. The doctor also testified, over plaintiff's objection, to the opinions contained in reports of non-testifying physicians.

         Although the doctor identified the MRIs he referenced as pre- and post-accident images, the MRIs, which were labeled, bore the same post-accident "Exam Date." The parties did not address the MRI labeling issue at the time of the deposition or during trial. Plaintiff's counsel, however, sought to replay a portion of the videotaped deposition during summation to show that both MRIs bore labels reflecting the same post-accident date. Defense counsel objected. The trial court denied plaintiff's request, reasoning that expert testimony would be necessary to establish that the MRIs in the video were in fact the same.

         The trial resulted in a judgment in favor of defendants. Plaintiff moved for a new trial, which was granted by the trial court on the ground that plaintiff "did not receive substantial justice" because "the jury gave greater weight" to the testimony of defendants' expert than to that of plaintiff's expert.

         During the second trial, the defense expert testified again via a video deposition taken for use at the second trial. The second trial ended in a jury verdict in favor of plaintiff. Defendant appealed, and the Appellate Division reversed. The appellate panel concluded that the trial court improperly granted plaintiff's motion for a new trial and reinstated the jury's finding from the first trial in favor of defendants.

         We now reverse the judgment of the Appellate Division and reinstate the jury's verdict in favor of plaintiff following the second trial. Because the trial court's error in preventing plaintiff from replaying a portion of the deposition during summation at the first trial resulted in a ...


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