Guidance to the Gatekeeper

In Morales-Hurtado v. Reinoso, 230 A.3d 241 (N.J. 2020), the Supreme Court took the opportunity to briefly comment to the “gatekeeper[s] of expert witness testimony,” the trial court, on the appellate division’s decision to remand the case for a new trial. The new trial was based, in part, on the errors made at the trial level related to the exclusion of the plaintiff’s life care expert.

In the underlying action, the plaintiff filed a complaint in which he sought compensation for injuries he claimed to have sustained in an automobile accident. After trial, the trial court entered a judgment on the jury verdict, finding the defendant 80% negligent and the plaintiff 20% negligent for causing a rear-end collision. The plaintiff appealed on a number of grounds, including the position that the court erred in barring his life care expert from testifying at trial.

After the N.J.R.E. 104 hearing, the trial court found that the medical records, questionnaires, and follow-up letters to the doctors relied upon by the life care expert and other experts in this field were untrustworthy. Further, the court held that it was improper for the life care expert to rely on an interview with the plaintiff’s spouse since she was not named in the suit, had not been named as a witness and could not testify at trial. The trial court found these medical reports, questionnaires, follow-up letters and the wife’s interview to be inadmissible under N.J.R.E. 703 and N.J.R.E. 708. It concluded that, because the underlying information was inadmissible, so was the expert opinion. However, there was no ruling that the opinion was a net opinion (the net opinion rule excludes the admission into evidence of an expert's conclusions when they are not sustained by fact evidence or other data).

The appellate court held that experts are permitted to testify to the basis of their opinions—including the opinions of other experts, medical records, questionnaires and interviews—leaving the question of credibility to the jury. While experts are not entitled to introduce an out-of-court expert’s report for its truth, where it is critical to the primary issue in the case and the adversary objects, an instruction to the jury by the court may remedy the situation. By excluding the life care expert’s opinion, the trial court usurped the jury’s duty to make credibility determinations. Further, the life care expert’s report covered a range of future needs, including surgery, therapy, medication and periodic evaluations. Even if some of the underlying information was somehow improperly considered, it was not an appropriate basis for the wholesale exclusion of her entire opinion.

The Supreme Court shared the appellate court’s view that the trial court erred in excluding the life care expert from testifying at trial and provided suggestions on how the trial court could proceed on remand. The court noted that in appropriate circumstances, an expert may rely on the opinion of another expert in the relevant field. Certain facts need not be admissible in evidence if of the type generally relied upon by experts in that particular field in forming opinions or inferences on the subject. 230 A.3d at 243. “That principle, however, does not obviate the need to demonstrate that the treating physician on whom the life care expert relied actually holds the opinion attributed to him or her, which can be accomplished by means of a report by the treating physician, his or her trial testimony, or other competent evidence.” Id. As in other settings, the medical information relied upon by the life care expert must be expressed in terms of reasonably medical certainty or probability.

The Supreme Court provided some direction to the trial court, should the defendant renew his motion to bar the plaintiff’s life care expert. It stated that the trial court should conduct a hearing pursuant to N.J.R.E. 104 in order to determine the question of admissibility in accordance with the standards prescribed by N.J.R.E. 702 and N.J.R.E. 703.

The message from the Supreme Court to gatekeepers is clear—leave credibility determinations to the jury and admissibility determinations to the court. Here, the trial court determined admissibility by making credibility determinations, but fell short of ruling the opinion a net opinion. By not ruling that the opinion was a net opinion, it appears that the trial court based its decision to bar the life care expert’s opinion on the credibility of the information and documentation relied upon by that expert. These determinations fall squarely within the purview of the jury. In short, the Supreme Court has cautioned the gatekeepers to “stay in their lane” when it comes to credibility determinations, but travel to the destination by making the admissibility determinations based on N.J.R.E. 702 and N.J.R.E. 703.

*Pauline is special counsel and works in the firm’s Roseland, New Jersey office. She can be reached at 973.618.4146 or pftutelo@mdwcg.com.

_{Defense Digest, Vol. 26, No. 3, October 2020 is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2020 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}