Allowing the jury to hear a Hearsay statement.– How…. “to show a statement’s effect on the listener”

Don v. Edison Car Company, New Jersey Appellate Division May 9, 2019  (Not Approved for Publication)

Submitted by New Jersey Civil Lawyer, Jeffrey Hark.

We first turn to defendant’s contention that the trial court erred when it allowed plaintiff to testify that Dr.’s Vingan and Arginteanu had recommended that plaintiff undergo surgery. It is well established that hearsay is not admissible at trial unless an exception applies. N.J.R.E. 802. Hearsay requires three 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) (alteration in original) (quoting N.J.R.E. 801(c)).

If the statement is not offered for its truth, then by definition it is not hearsay. State v. Long, 173 N.J. 138, 152 (2002). Thus, out of court statements can be admissible not for their truthfulness, but to show a statement’s effect on the listener. See Carmona v. Resorts Int’l Hotel, Inc., 189 N.J. 354, 376 (2007) (“Where statements are offered, not for the truthfulness of their contents, but only to show that they were in fact made and that the listener took certain action as a result thereof, the statements are not deemed inadmissible hearsay.” (quoting Russell v. Rutgers Cmty. Health Plan, 280 N.J. Super. 445, 456-57 (App. Div. 1995))).

Therefore, some statements are “not objectionable as hearsay . . . [because they] are offered to explain plaintiff’s actions, and not for the truthfulness of their content.” Jugan v. Pollen, 253 N.J. Super. 123, 136-37 (App. Div. 1992) (holding that statements made to plaintiff regarding the limitations of his activity were not hearsay when “offered to prove offered to prove that plaintiff limited his activity based upon advice given to him.”). Such an out-of-court statement, however, “frequently has an impermissible hearsay aspect as well as a permissible non-hearsay aspect.” Spragg v. Shore Care, 293 N.J. Super. 33, 57 (App. Div. 1996). Thus, “the rule generally is to admit such evidence with a limiting instruction, unless the probative purpose of the statement is substantially outweighed by the danger of its improper use.” Ibid.

Applying these standards, we conclude that the trial court did not exceed the bounds of its discretion when it permitted plaintiff to testify about the recommendations for surgery for the purpose of showing that the statements were in fact made and that plaintiff took certain actions in response. Even assuming that the evidence had a hearsay component, when a statement has both an impermissible hearsay aspect and a permissible non-hearsay aspect, a court should generally “admit such evidence with a limiting instruction, unless the probative purpose of the statement is substantially outweighed by the danger of its improper use.” Spragg, 293 N.J. Super. at 57.

Here, the MRI scan finding of a syrinx was undisputed and the statements did not pertain to the central disputed issue of causation. Rather, plaintiff simply testified that he was provided with a treatment option and the reasons he did not pursue the treatment at the time. Although this testimony suggests that plaintiff required surgery for his injuries, it more directly goes to the effects of the recommendations on plaintiff – namely, that he had not yet followed through with surgery because of the risks entailed and the other treatment he was receiving for an unrelated illness, but that he would consider undergoing surgery in the future.4 Defense counsel ably countered this testimony on cross-examination and closing by pointing out that no surgery was scheduled.

For these reasons, in the circumstances presented in this case, we find that the trial court’s ruling that plaintiff could testify to the recommendations for surgery does not amount to “a clear error in judgment” and was not “so wide [of] the mark that a manifest denial of justice resulted.” Griffin, 225 N.J. at 413. Because we find no abuse of discretion in allowing plaintiff to testify about the surgical treatment option, plaintiff’s counsel’s remarks in opening, which accurately set forth the evidence the jury would hear, were permissible pursuant to the court’s evidentiary ruling and are therefore not a basis to reverse the verdict.

B.
We next address defendant’s contention that the trial court erred in allowing plaintiff’s counsel to elicit testimony from Dr. Dryer about Dr. Arginteanu’s treatment recommendation. Defendant contends that plaintiff’s cross-examination of Dr. Dryer ran afoul of the standards set forth in James v. Ruiz, 440 N.J. Super. 45, requiring reversal. We disagree.

In James, we held that an attorney may not “question[ ] 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” if “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.” 440 N.J. Super. at 51. The plaintiff’s expert in James opined that plaintiff’s CT scan showed a disc bulge, whereas the defendant’s expert opined that there was no disc bulge shown on the CT scan. Id. at 71. The opinion of plaintiff’s expert was consistent with that of the interpreting radiologist, who was not testifying at trial. Id. at 71-72. We held that the plaintiff could not ask a medical expert witnesses whether their reading of the CT scan was consistent or inconsistent with that of a non-testifying radiologist, thereby utilizing the radiologist’s report as a “tie breaker” on the contested issue of whether plaintiff had disc bulges. See ibid.

In this case, the question posed to Dr. Dryer did not seek to establish that his opinion was “consistent” with Dr. Argintineu’s opinion; rather it simply asked whether Dr. Dryer himself felt that a fusion was an appropriate treatment for a syrinx. Plaintiff’s counsel did not attempt to use Dr. Arginteanu’s recommendation to show that Dr. Dryer disregarded relevant facts or to present Dr. Arginteanu’s treatment recommendation as a “tie breaker” between competing expert opinions. In that regard, there was no “tie” to break: Dr. Yao testified he did not believe any future treatment by a neurosurgeon would cure the syrinx, and Dr. Daniels testified that in his opinion plaintiff would not benefit from surgery.

We thus conclude that the cross-examination of Dr. Dryer did not run afoul of the standards set forth in James. The trial court correctly ruled that the hypothetical question that was posed to Dr. Dryer was entirely permissible. See Townsend v. Pierre, 221 N.J. 36, 58 (2015) (“The use of hypothetical questions in the presentation of expert testimony is permitted by N.J.R.E. 705, provided that the questions include facts admitted or supported by the evidence.” (internal quotation omitted)). The oblique reference to Dr. Arginteanu’s note was engendered by Dr. Dryer’s failure to respond to the leading hypothetical question with a simple “no.” Instead, Dr. Dryer asked a question in response, whether it was a posterior or anterior fusion. The doctor then answered no, he did not agree with that. We find no error in the trial court’s evidentiary ruling, and the cursory and indirect reference to the note by Dr. Dryer is not a basis to overturn the verdict.