She said…he said: Hearsay and Lay Opinions

Submitted by New Jersey Civil Attorney, Jeffrey Hark

This blog discusses Aiges v. Fuccillo decided October 14, 2014 by the Appellate Division. Thisis a case that concerns admissibility of lay person statements. The plaintiff was dog-sitting when she was bitten by the defendant’s dog. The defendant presented testimony from the nurse who treated the plaintiff and had filled out a report which classified the bite as “provoked” and annotated that “patient was pulling toy out of dog’s mouth.” The jury attributed 75% of the negligence to the plaintiff on a contributory negligence theory. The plaintiff moved for a new trial based on the classification of the bite as “provoked” being an inadmissible lay opinion but the judge denied their motion.

Hearsay Exception – Out of Court Statements

Firstly, the nurse’s statement contained in the ER report was mandated by the Board of Health for purposes of medical diagnosis or treatment which may make it admissible as one of three possible hearsay exception. Of importance was the fact that the report was made for the purpose of diagnosis or treatment and not made for the purpose of litigation. Without a hearsay exception the plaintiff’s out-of-court statements to the nurse which were used to fill out the report would be hearsay and inadmissible. The Appellate Division here chose not to analyze exception for the medical report because they found a more applicable exception in statements by a party-opponent. This means that the party who made an out-of-court statement cannot claim that it is inadmissible because of their inability to confront and cross-examine the person who made the statement because they ARE that person.

Inadmissible Lay Opinion of Unwitnessed Events

But what about the fact that the nurse’s description of the bite as “provoked”” Could that be inadmissible lay opinion? The nurse did not witness the bite happen but heard about it second-hand from the plaintiff. Ultimately the Appellate Division held that the classification of “provoked” was not admissible as lay opinion testimony. The Appellate Division did not have enough of the trial record to determine whether reversible error occurred from admitting this evidence and so remands the case to answer that question.