Opinion
DOCKET NO. A-4486-14T1
07-05-2016
ALLINZON L. APONTE and MIGUEL APONTE, Plaintiffs-Appellants, v. HARRY K. PATEL, Defendant-Respondent.
Merric J. Polloway argued the cause for appellants (Polloway & Polloway, LLP, attorneys; Mr. Polloway on the briefs). Nicole L. Hollingsworth argued the cause for respondent (Law Offices of Viscomi & Lyons, attorneys; Ms. Hollingsworth, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Fisher and Fasciale. On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7052-12. Merric J. Polloway argued the cause for appellants (Polloway & Polloway, LLP, attorneys; Mr. Polloway on the briefs). Nicole L. Hollingsworth argued the cause for respondent (Law Offices of Viscomi & Lyons, attorneys; Ms. Hollingsworth, on the brief). PER CURIAM
Plaintiffs appeal from an August 19, 2015 order entering a judgment of no cause of action in favor of defendant. We affirm.
In February 2011, defendant struck the rear of Ms. Aponte's vehicle as she was waiting to merge onto a highway. Ms. Aponte alleged she sustained various injuries as a result of the crash, specifically to her cervical spine, lumbar spine, right shoulder, both knees, and her head. In addition, Ms. Aponte alleged she sustained neurocognitive disorder, post-traumatic disorder, in addition to other neuropsychological conditions.
Ms. Aponte underwent treatment, and during the course of her treatment received an MRI of both her right knee and right shoulder. Based in part on the MRI results, Ms. Aponte underwent surgical procedures for both her right knee and right shoulder.
Ms. Aponte was involved in a prior accident in December 2010, which she alleges was "a minor, stop-and-go traffic scrape in which the only real vehicle damage was that the right sideview mirror was taken off."
In October 2012, Ms. Aponte filed a complaint alleging that defendant drove negligently, which caused her damages. Ms. Aponte amended her complaint to add her husband, Miguel Aponte, as a per quod plaintiff. Arbitration took place, and was followed by a trial de novo. The case proceeded to a damages only trial, after which the jury returned a unanimous verdict of no cause of action. The judge entered a memorializing order, from which plaintiffs appeal.
On appeal, plaintiffs argue that the judge erred in allowing defendant's expert, Dr. Jerome D. Rosman, to testify about the findings made in a MRI report by a non-testifying radiologist. Plaintiffs additionally argue that the judge erred in denying her request to introduce photographs of the December 2010 accident, despite the fact that there is no evidence the photographs were provided to defendant in discovery. We address each argument seriatim.
We review a trial judge's evidentiary rulings for abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008). "[T]he latitude initially afforded to the trial court in making a decision on the admissibility of evidence -- one that is entrusted to the exercise of sound discretion -- requires that appellate review, in equal measures, generously sustain that decision, provided it is supported by credible evidence in the record." Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384 (2010).
"Hearsay consists of three classic elements: (1) a 'statement;' (2) 'other than one made by the declarant while testifying at the [present] trial or hearing;' and (3) offered in evidence for its truth, i.e., 'to prove the truth of the matter asserted' in the statement." James v. Ruiz, 440 N.J. Super. 45, 59 (App. Div. 2015) (citing N.J.R.E. 801(c)). Hearsay is inadmissible unless it falls within one of several recognized exceptions. See N.J.R.E. 803 and 804.
Here, the statements made in the MRI report prepared by the non-testifying radiologist are hearsay; they are out-of-court statements made by a non-testifying declarant, and offered for their truth. Thus, the statement must fall within an exception to be admissible.
The most relevant exception is the business-records exception, N.J.R.E. 803(c)(6), which provides:
A statement contained in a writing or other record of acts, events, conditions, and, subject to [N.J.R.E.] 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.Here, there is no dispute that the MRI report would fall under this exception. The non-testifying radiologist generated the report in the regular course of business; the report was made near the time of the observation, signed by the radiologist five days after the MRI took place; and the non-testifying radiologist had actual knowledge because he saw the MRI results and prepared the report from those results. In sum, the MRI report is a routine medical document, not prepared for litigation.
However, N.J.R.E. 803(c)(6) specifically references N.J.R.E. 808, which states:
Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness.In applying this rule, "case law in our State has traditionally admitted 'routine' findings of experts contained in medical records that satisfy the business record exception, but has excluded 'diagnoses of complex medical conditions' within those records." James, 440 N.J. Super. at 63 (quoting State v. Matulewicz, 101 N.J. 27, 32 n.1 (1985)). Under N.J.R.E. 808, "medical opinions in hospital records should not be admitted under the business records exception where the opponent will be deprived of an opportunity to cross-examine the declarant on a critical issue such as the basis for the diagnosis or cause of the condition in question." Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276, 282-83 (App. Div.), certif. denied, 141 N.J. 95 (1995). "If the requirements of [N.J.R.E.] 808 are met, and a testifying expert has reasonably relied upon the non-testifying expert's opinions, then the testifying expert may be permitted to refer to that absent expert's opinions in the course of explaining his or her own opinions in court." James, supra, 440 N.J. Super. at 64.
Finally, N.J.R.E. 703 states:
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.Thus, under this rule, "a testifying expert may refer to 'facts or data' provided by another source, even though expressed through a hearsay statement." James, supra, 440 N.J. Super. at 65. The testifying expert may rely on a non-testifying expert's examination so long as the information is of a type reasonably relied on by experts in the field. Ibid.
Against this backdrop, we decided Brun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006), and James, supra, 440 N.J. Super. 45, and the Supreme Court decided Agha v. Feiner, 198 N.J. 50 (2009). In Brun, we concluded that where an interpreting radiologist was unavailable to testify, that radiologist's conclusions could not be "bootstrapped" into evidence by an expert unqualified to read an MRI. Supra, 390 N.J. Super. at 421.
In Agha, the Court confronted the issue of whether the substance of an MRI report prepared by a non-testifying radiologist could be introduced by an expert who was unqualified to read an MRI, or by an expert who was qualified to interpret the MRI but did not actually review the MRI films. Supra, 198 N.J. at 53. The Court explained that N.J.R.E. 703 was "not intended as a conduit through which the jury may be provided the results of contested out-of-court expert reports." Id. at 63. "In short, under N.J.R.E. 703, an expert may give the reasons for his opinion and the sources on which he relies, but that testimony does not establish the substance of the report of a non-testifying physician." Id. at 64. The Court concluded that "[o]nly a physician who was qualified by education or training to interpret the films and, in fact, did so, could have brought the [MRI] conclusion to the jury as a matter of substance." Id. at 67. In James, we reaffirmed these principles and held, in pertinent part, that an attorney may not ask a testifying expert whether his or her opinion accords with the conclusions of a non-testifying expert as a means to have the jury consider the substance of the non-testifying expert's report. Supra, 440 N.J. Super. at 71.
Here, Dr. Rosman did not state in his report that he reviewed the actual MRI films; he only reviewed the MRI report prepared by the non-testifying radiologist. Dr. Rosman testified that he performed an examination on Ms. Aponte and asked her about her medical history. Defense counsel objected to Dr. Rosman testifying about the MRI films, and the judge sustained the objection. Dr. Rosman never revealed the non-testifying radiologist's conclusions based on the MRI film. Dr. Rosman then revealed the records he reviewed in formulating his opinion, and concluded, based on his "review of the reports, [] examination of [Ms. Aponte], as well as her current complaints and her history," that she "sustained sprains of her neck, her back, her right shoulder and her right knee." Dr. Rosman opined that the surgeries Ms. Aponte had on her right shoulder and right knee were not the result of the sprains she suffered from the accident, but were from her previous accident and "preexisting degenerative changes that were evident on the imaging studies." The judge sustained any objection to Dr. Rosman testifying about the MRI films themselves.
Dr. Rosman stated that he relied on the MRI reports, which revealed degenerative changes, and that "there was nothing from the imaging studies to show . . . significant acute injury [from the accident]." In sum, the doctor based his opinion on three sources: 1) the MRI studies, 2) that Ms. Aponte was being treated for the same injuries immediately prior to the accident, and 3) Ms. Aponte returned to work shortly after the accident.
This case is distinguishable from Agha, as this was not a scenario in which the expert was asked specifically what the results of the MRI were. Supra, 198 N.J. at 55. In Agha, whether the plaintiff actually suffered a disc herniation was in dispute, and the Court found that a non-testifying expert's conclusion could not be used as substantive evidence to establish that fact, absent presenting a physician who could interpret the MRI and reach an independent conclusion. Id. at 67.
Here, Dr. Rosman acted permissibly in relying on the expert report to inform his own independent conclusion, based on his own examination of Ms. Aponte and other permissible sources. See James, supra, 440 N.J. Super. at 71-72 ("The distinction between relying on others and repeating what others say can be made clearer as a formal matter by requiring the expert to say 'what he thinks,' not what 'someone else thinks,' and insisting on this formality is useful in weeding out cases where the expert has no independent view and being sure that the trier [of fact] gets the expert's own opinion.") (citation omitted). Also, the MRI report was not the only evidence suggesting that Ms. Aponte suffered from a degenerative condition. Ms. Aponte's expert testified that she suffered from arthritic changes in her spine, shoulder, and knee. Thus, the presence of a degenerative condition was not contested. See Agha, supra, 198 N.J. at 63 (explaining N.J.R.E. 703 is not "intended as a conduit through which the jury may be provided the results of contested out-of-court expert reports" (emphasis added)).
We conclude the judge did not abuse his discretion in allowing the expert to testify about the MRI report that he relied on to reach his medical determination. Dr. Rosman did not seek to "bootstrap" the conclusion of the non-testifying radiologist into evidence; instead, he permissibly relied on the MRI report as a source in framing his own conclusion that the injuries leading to the surgery were not caused by the accident.
As to plaintiffs' second argument, that the judge abused his discretion by failing to allow them to introduce photographs at trial that were not produced in discovery, we conclude this argument is without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION