Opinion
A-5 September Term 2019 082293
04-16-2020
Juan MORALES-HURTADO, Plaintiff-Respondent, v. Abel V. REINOSO and New Service, Inc., Defendants-Appellants.
H. Lockwood Miller, III, argued the cause for appellants (Goldberg Segalla, attorneys; H. Lockwood Miller, III, Newark, and Leah A. Brndjar, Princeton, on the briefs). Martin S. Cedzidlo argued the cause for respondent (Jae Lee Law, attorneys; Martin S. Cedzidlo, Fort Lee, on the brief). Jonathan H. Lomurro argued the cause for amicus curiae New Jersey Association for Justice (Lomurro Munson Comer Brown & Schottland, attorneys; Jonathan H. Lomurro and Abbott S. Brown, of counsel, Christina Vassiliou Harvey, Freehold, of counsel and on the brief, and Alan J. Weinberg, on the brief).
H. Lockwood Miller, III, argued the cause for appellants (Goldberg Segalla, attorneys; H. Lockwood Miller, III, Newark, and Leah A. Brndjar, Princeton, on the briefs).
Martin S. Cedzidlo argued the cause for respondent (Jae Lee Law, attorneys; Martin S. Cedzidlo, Fort Lee, on the brief).
Jonathan H. Lomurro argued the cause for amicus curiae New Jersey Association for Justice (Lomurro Munson Comer Brown & Schottland, attorneys; Jonathan H. Lomurro and Abbott S. Brown, of counsel, Christina Vassiliou Harvey, Freehold, of counsel and on the brief, and Alan J. Weinberg, on the brief).
PER CURIAM
The judgment of the Superior Court, Appellate Division is affirmed substantially for the reasons expressed in Judge Nugent's comprehensive opinion, reported at 457 N.J. Super. 170, 198 A.3d 987 (App. Div. 2018). We share the Appellate Division's view that "the cumulative effect of multiple errors and improprieties deprived plaintiff of a fair trial and of a verdict based on the merits of the parties' claims," and that he is entitled to a new trial. Id. at 204, 198 A.3d 987.
We briefly comment on the Appellate Division's reversal of the trial court's decision to exclude the opinion of Dianne Simmons-Grab, a certified life care planner. Id. at 200-04, 198 A.3d 987. Plaintiff's counsel sought to present Simmons-Grab as an expert witness at trial regarding the medical expenses that plaintiff is expected to incur over his lifetime. See ibid.
Simmons-Grab, who is not a physician or other health care provider, was clearly unqualified to opine on plaintiff's prognosis or to identify any medication, surgery, therapy, or other care necessary to treat his injuries over his lifetime. She premised her opinion that addressed plaintiff's future medical needs on notations made in medical records and on handwritten responses to questionnaires that she had submitted to the offices of three of plaintiff's treating physicians. Defendant sought to bar her opinion, and the trial court considered the admissibility of that opinion in a hearing pursuant to N.J.R.E. 104(c).
The trial court found that Simmons-Grab's opinion was based on unreliable sources of information and excluded her testimony. As the court observed, the life care expert relied on medical records and questionnaires that she "prepared in detail ... and submitted to the doctors for their markings and then sign off." Although the questionnaires were "purportedly filled out ... by the medical providers," the court noted that "[t]he responses ... by the medical providers were not certified," and there was no indication that each physician had offered an opinion to a reasonable degree of medical certainty within his area of expertise. Indeed, in deposition testimony presented at trial, one of the treating physicians whose opinion had been identified by Simmons-Grab as a basis for her opinion stated that although it was "possible" that plaintiff would need additional medical care in the future, he could not testify "within a reasonable degree of medical probability" that any such care would be needed.
A questionnaire may be an appropriate device for a life care expert to use in the collection of facts or data relevant to his or her opinion. We address only the expert's use of questionnaires in this case to elicit the opinions of treating physicians as to plaintiff's future need for medical care.
The Appellate Division held that the trial court's decision to bar the expert testimony constituted error. Id. at 202-04, 198 A.3d 987. It stated that "[e]ven if some of the underlying information was somehow improperly considered by [Simmons-Grab], such was not a basis for the wholesale exclusion of her entire opinion." Id. at 203-04, 198 A.3d 987. The Appellate Division did not rule on the admissibility of Simmons-Grab's opinion; it left to the trial court on remand the "discretion to employ any procedure it deems fit to resolve" defendant's objection to that opinion. Id. at 204, 198 A.3d 987.
We offer the following comments to guide the trial court on remand in its role under N.J.R.E. 702 and N.J.R.E. 703 as "the gatekeeper of expert witness testimony." In re Accutane Litig., 234 N.J. 340, 391, 191 A.3d 560 (2018).
In appropriate circumstances, an expert witness may rely on the opinion of another expert in a relevant field. See N.J.R.E. 703 (providing that an expert may rely on "facts or data in the particular case," which "may be those perceived by or made known to the expert at or before the hearing," and that such facts or data need not be admissible in evidence "[i]f of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject"); Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 8 on N.J.R.E. 703 (noting that "[t]he authorization for one expert to rely on the opinion of another" stated in the predecessor rule to N.J.R.E. 703 "continues under the present rule").
That principle, however, does not obviate the need to demonstrate that the treating physician on whom the life care expert relies 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. See generally R. 4:10-2(d) (addressing reports of treating physicians); R. 4:14-9 (addressing discovery and de bene esse depositions of treating physicians). As in other settings, any expert's or treating physician's opinion on which the life care expert relies "must be couched in terms of reasonable medical certainty or probability." Creanga v. Jardal, 185 N.J. 345, 360, 886 A.2d 633 (2005) (quoting State v. Freeman, 223 N.J. Super. 92, 116, 538 A.2d 371 (App. Div. 1988) ); see also Costantino v. Ventriglia, 324 N.J. Super. 437, 449, 735 A.2d 1180 (App. Div. 1999) (ruling that the plaintiff's vocational expert could rely on the trial testimony of the plaintiff's medical expert that "there was a reasonable medical probability that [the plaintiff] would not be able to work as a construction laborer for the entire course of his normal work life").
In the event that plaintiff seeks to present the expert testimony of Simmons-Grab on remand -- and defendant challenges the reliability of that opinion -- the trial court should conduct a hearing pursuant to N.J.R.E. 104(c), and determine the question of admissibility in accordance with the standards prescribed by N.J.R.E. 702 and N.J.R.E. 703.
CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-VINA, SOLOMON, and TIMPONE join in this opinion.