By: Rey O. Villanueva, Esq.[1] and Kayla E. Rowe, Esq.[2]
Timing is everything is the lesson to be gleaned from the Appellate Division’s recent unpublished opinion rendered in Adams v. Wildermann (Docket No. A-1821-13T4). Judges Fisher, Nugent and Manahan reversed a jury verdict in favor of the defendant in a personal injury and underinsured motorist action based upon the Trial Court’s late jury instructions about hearsay evidence submitted by the defense at two crucial points in the trial.
This matter arose out of a collision between a motorcycle operated by Plaintiff, Albert W. Adams, and a Chevrolet Blazer operated by Defendant, Charles Wildermann. Plaintiff filed a complaint against Mr. Wildermann and Plaintiff’s insurance carrier for his motorcycle. He also filed suit seeking underinsured motorist benefits under the motorcycle insurance policy underwritten by Progressive Freedom Insurance Company and a commercial auto policy underwritten by Drive New Jersey Insurance Company, which insured a pickup truck registered to his father’s company. Plaintiff worked for that company.
There were two points in the trial during which the defense presented hearsay evidence to the jury. First, defense counsel presented hearsay evidence while cross-examining Plaintiff’s accident reconstruction expert. Defense counsel established that the Plaintiff’s expert had read the police accident report, which contained hearsay statements. Defense counsel then asked Plaintiff’s expert to read the page containing the hearsay statements, which set forth a favorable version of the accident. Plaintiff’s counsel objected, on the grounds that a motion in limine that the Trial Court granted earlier barred the police officer from testifying about the same hearsay statements. Nevertheless, the Trial Court allowed defense counsel to ask Plaintiff’s expert to read in those same hearsay statements, reasoning that it was fair to allow defense counsel to question the expert about information he relied upon in writing his report. Interestingly, the expert never stated that he relied upon these hearsay statements in developing his report. Second, defense counsel recapitulated these favorable hearsay statements during his closing arguments. Only after all of these comments had been made and likely settled into the minds of the jurors did the Court give a limiting instruction that the hearsay evidence was admissible for the sole purpose of explaining upon what data and facts the expert relied. Plaintiff then filed an appeal on this issue.
On appeal, the Appellate Panel’s analysis turned on the interplay between New Jersey Rule of Evidence 703, which permits, but does not demand the admission of facts or data on which an expert based an opinion, and New Jersey Rule of Evidence 802, which bars hearsay evidence. However, the panel was mindful of not permitting inadmissible hearsay through an expert’s testimony that was not otherwise substantively proven.
With these guiding principles, the Appellate Division ruled that the hearsay evidence should not have been admitted and that the Court’s instructions were too late. The expert testimony that included the hearsay statements was not admissible for two reasons. First, there was no evidence corroborating the hearsay statements about which the expert testified. Second, the expert never stated that he relied upon the hearsay statements in reaching his conclusion. The Court saw through defense counsel’s ploy: “Moreover, there is little doubt that defense counsel wanted to have the hearsay admitted not to attack the credibility of plaintiff’s expert, but rather as substantive evidence corroborating his client’s version of the accident.” Indeed, because the expert did not rely on these statements, the admission of the hearsay evidence here did not serve the permissible purpose of admitting the hearsay to underscore the expert’s reasoning.
Finally, in response to defense counsel’s argument on appeal that the instructions mitigated the prejudice of these statements, the Appellate Division noted that the timing of the instructions was problematic. The instructions were given at the very end of the trial, after the hearsay statements lingered and defense counsel emphasized these statements during closing argument. The Appellate Division reasoned that the timing of the instructions detracted from their impact upon the jury and the likelihood that the jury would follow them. Consequently, the Appellate Division reversed the finding for the defense and remanded for a new trial.
The lesson for attorneys is clear: when attempting to admit hearsay evidence, the purpose of that evidence must be clearly enunciated on the record. At Trial, counsel must be careful to preserve the record by framing questions and responses to objections in a way that demonstrates the permissible purpose for normally excluded evidence. This is a matter of preparation, as objections can be easily anticipated and with pre-trial contemplation can be counteracted. Additionally, when an attorney is aware that evidence may be objected to but admitted, he or she should be prepared to ask the Court to give prompt instructions about for what purposes the evidence is admissible. These preparations will obviate reversal on these grounds by preserving the record and, in turn, a favorable verdict.
[1] Rey O. Villanueva, Esq. is a Shareholder in GRSLB&G’s Litigation Department. He represents diverse clients in a wide array of civil litigation matters in both New Jersey and New York. Rey can be reached at rvillanueva@grsl.com.
[2] Kayla E. Rowe, Esq. is an Associate in GRSLB&G’s Litigation Department. She defends a wide variety of clients in various civil actions brought forth in New Jersey State and Federal Courts. Kayla can be reached at krowe@grsl.com.
