MINHAJ AHMED et al. v. ELIZABETH C. HUNT, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5913-05T25913-05T2

MINHAJ AHMED and RINERDA AHMED,

Plaintiffs-Appellants,

v.

ELIZABETH C. HUNT,

Defendant-Respondent,

and

ROSEMARY HUNT,

Defendant.

____________________________________

 

Submitted: September 10, 2007 - Decided October 23, 2007

Before Judges Collester and C.L. Miniman.

On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Atlantic County, ATL-L-2835-03.

Targan & Pender, attorneys for appellants (Michael J. Pender, on the brief).

Wolff, Helies, Duggan, Spaeth & Lucas, attorneys for respondents (David G. Lucas, of counsel; Patricia M. Reilly, on the brief).

PER CURIAM

Plaintiffs appeal the denial of their motion for a new trial and the entry of judgment in favor of defendant Elizabeth C. Hunt following a verdict of no cause for action in this verbal-threshold case. The only issue presented for our consideration is whether the trial judge erred in excluding medical records from evidence. We reverse.

Plaintiff Minhaj Ahmed (Minhaj) and defendant were involved in a motor vehicle accident in Atlantic City on September 11, 2002. Minhaj was injured and ultimately diagnosed as having two herniated lumbar discs with radicular pain. In securing insurance on their vehicle, plaintiffs selected the limitation on lawsuit option available under the Automobile Insurance Cost Reduction Act of 1998 (AICRA). N.J.S.A. 39:6A-8(a). They filed a complaint on October 15, 2003, and discovery ended on May 20, 2005. Thereafter, defendant moved for summary judgment seeking a dismissal of plaintiffs' claims on the ground that Minhaj's injuries did not fall within the six categories of injury that were compensable under AICRA. Ibid. The motion was denied on the ground that "the plaintiff has at least established sufficient objective evidence of a permanent injury that is causally related to the accident in question. . . ."

As required by R. 4:25-7(b), defendant on May 9, 2006, and plaintiffs on May 19, 2006, exchanged their pretrial information as prescribed by Appendix XXIII to our rules of court. The plaintiffs specifically listed all exhibits to be offered in their case in chief and premarked them for identification. Defendant also listed all exhibits to be offered in her defense. Both sides indicated that they did not anticipate any problem in moving their exhibits into evidence. Furthermore, neither side advised the other that there were any "objections to the proposed admission into evidence of any exhibit," although the parties were required to serve notice of such an objection "not later than 2 days prior to trial." Pretrial Information Exchange, Pressler, Current N.J. Court Rules, Appendix XXIII to R. 4:25-7(b) at 2453, 4 (2007).

On May 22, 2006, the case was reached for trial and the jury was selected. On May 23, 2006, the parties advised the trial judge that they had several in limine motions that had to be addressed before opening statements could be presented to the jury. Although defendant raised a number of issues at that time, including an objection to a chart reflecting dates of treatment, defendant did not indicate that she had any objections to the premarked medical records that had been identified in plaintiffs' pretrial information exchange.

Some of the premarked medical records were identified on the record and were used in examining the medical experts. Other medical records were generally discussed with the various experts but were not shown to the witnesses and identified on the record by exhibit number. Defendant raised no objections to any of the records during the testimony, except with respect to the recommendations Dr. Singh made to Minhaj. Defendant objected on the ground that Dr. Singh was not going to testify. Plaintiffs' counsel immediately rephrased the question prior to a ruling from the judge.

At the close of plaintiffs' case in chief, defendant's attorney, during a colloquy with the judge, suggested that "whatever legal stuff we have to do between plaintiff's case and my case, we can hold it in abeyance until my case is done." The judge concurred and plaintiffs' counsel stated that he had marked numerous exhibits and inquired if he was "resting subject to putting in my exhibits." The judge agreed and told the attorneys during the lunch break to "find which exhibits you agree on, and I will just rule on the ones you don't agree on." After that discussion plaintiffs' counsel advised the judge that defendant objected to the admission of all records except the ambulance and emergency room records. He acknowledged that he understood the issue of trying to import a diagnosis from another doctor into a trial when that doctor had not testified. He then argued that the real question was whether the records were trustworthy.

After finding the records trustworthy, the judge remarked:

What I have a concern about is that although experts certainly can testify from other doctors' reports, and that's, you know, an exception with the hearsay rule for lack of a better term, to take a report where there has been no opportunity to cross examine that report, and to take a doctor's report who did not testify I think places undue emphasis upon that report, which I don't think the jury should be able to peruse.

Plaintiffs then argued that the records were being offered to prove that Minhaj had complaints of pain and received treatment throughout a significant period of time. The judge responded,

And there's ways that can be done other than a report that goes in from a doctor who did not testify. I mean I can tell the jury 'til I'm blue in the face what they ought to consider it for, but once that goes in the accepted evidence box and goes in that jury room it's fair game for them to use it in any way they . . . want to.

The judge concluded that everything but the ambulance and emergency room records should be excluded. Plaintiffs then declined to proffer the latter records, expressing concern about undue emphasis being placed on the ambulance and emergency records in the absence of the remaining medical records.

The jury returned a verdict on liability, apportioning seventy percent of the fault to defendant, but concluded that Minhaj did not sustain a permanent injury. On June 9, 2006, the judge entered an order of dismissal with prejudice. A motion for a new trial was denied on June 29, 2006.

On appeal plaintiffs assert that the trial judge erred by excluding medical records from evidence in a verbal-threshold case. Plaintiffs contend that "the medical records should have been admitted as exceptions to hearsay" under N.J.R.E. 803(c)(3), 803(c)(4), 803(c)(6) and 808. They argue that objective evidence of permanent injury was crucial to their proofs and they were prevented from submitting this evidence to the jury.

"The trial court is granted broad discretion in determining both the relevance of evidence to be presented and whether its probative value is substantially outweighed by its prejudicial nature." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999); Tarr v. Bob Ciasulli's Mack Auto Mall, Inc., 390 N.J. Super. 557, 563 (App. Div. 2007). Such a ruling should not be disturbed unless "'a manifest denial of justice resulted.'" Verdicchio v. Ricca, 179 N.J. 1, 34 (2004) (quoting Green, supra, 160 N.J. at 492); see also Tarr, supra, 390 N.J. Super. at 563.

Plaintiffs contend that the trial judge failed to apply the proper test to analyze the admissibility of the records. In such a case, our review of the evidentiary ruling is de novo. State v. Darby, 174 N.J. 509, 518 (2002) (failure to apply proper test to determine whether other-crime evidence is admissible is not entitled to deference but is to be reviewed de novo). However, even where review is de novo, the appellant must still demonstrate under R. 2:10-2 that the exclusion of evidence was prejudicial in order to secure a reversal. State v. Burr, 392 N.J. Super. 538, 562 (App. Div. 2007) (exclusion of evidence warrants reversal when capable of producing an unjust result); Vohta v. Bogue Elec. Mfg. Co., 60 N.J. Super. 169, 172 (App. Div. 1960) (exclusion of evidence, even if erroneous, does not warrant reversal if it causes no prejudice).

In addition to the ambulance and emergency room records, to which there was no objection, the following excluded medical records were proffered:

1. Health South physical therapy records for the periods October 3 to December 19, 2002, marked as P-15 and identified on the record, and August 28 to September 18, 2003.

2. MRI report of lumbar spine, dated July 22, 2003, marked P-11 and identified on the record.

3. EMG report, dated July 21, 2003, marked P-12 and identified on the record.

4. Records of February 20, 2006, facet injections by Dr. Singh.

5. Records of Sunil K. Singh, M.D., dated April 15 to October 3, 2005, marked P-14 and identified on the record.

6. Cervical MRI dated October 4, 2005, marked P-20.

7. Records of Dr. Glenn Zuck, dated December 28, 2001, to June 22, 2002, marked P-25.

Plaintiffs' pretrial information exchange listed all of these medical records, except for the records of Dr. Zuck. Some or all of the three medical experts who testified at trial discussed all of these records and test reports. None of the MRI or EMG findings were disputed by the defense expert.

N.J.R.E. 803(c)(6), which creates an exception to the hearsay bar of N.J.R.E. 802 for records of regularly conducted activities, provides as follows:

A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.

Having found that these records were trustworthy, the trial judge should have found that they were generally admissible because they clearly fell within the scope of N.J.R.E. 803(c)(6). Nowacki v. Cmty. Med. Ctr., 279 N.J. Super. 276, 281-82 (App. Div.), certif. denied, 141 N.J. 95 (1995). Of course, the medical records and reports would be subject to the exclusion of expert opinions under N.J.R.E. 808 unless the circumstances tended to establish their trustworthiness. Under the latter rule the trial court is obliged to determine whether the records and reports contained "'routine'" findings or constitute "'diagnoses of complex medical conditions.'" Id. at 282 (quoting State v. Matulewitz, 101 N.J. 27, 32 n.1 (1985)). As we held in Nowacki, "medical opinions in hospital records should not be admitted under the business records exception where the opponent will be deprived of an opportunity to cross-examine the declarant on a critical issue such as the basis for the diagnosis or cause of the condition in question." Id. at 282-83.

Here, the court never made such a determination nor did it review the records to determine under N.J.R.E. 805 whether any included statements were admissible under another exception to the hearsay rule, such as N.J.R.E. 803(c)(3) and (4), or whether the included statements were inadmissible and should be redacted, as required for opinions on the cause of injury. Gilligan v. Int'l Paper Co., 24 N.J. 230, 238 (1957).

Defendant urges that the trial court nonetheless has discretion to exclude evidence under N.J.R.E. 403. That proposition is correct, but inapplicable. The trial judge did not even purport to exercise such discretion here. Rather, he excluded the medical records and reports merely because the doctors did not appear and testify. It was an error to do so.

We are also satisfied that plaintiffs were prejudiced as a result of this unexpected exclusion of evidence. Defendant failed to comply with the requirement in Appendix XXIII to R. 4:25-7(b) that she notify plaintiffs two days prior to trial of any objections to admission of the exhibits identified in plaintiffs' pretrial information exchange. That failure was not corrected at any time. Before plaintiffs rested, defendant proposed that "whatever legal stuff we have to do between plaintiff's case and my case, we can hold it in abeyance until my case is done." Defendant did not alert plaintiffs at that time that she objected to admission of the medical records and reports. Defendant then presented her defense and rested. It was not until the ensuing break for lunch that defendant for the first time apprised plaintiffs of her objections to the medical records and reports. This timing completely prejudiced plaintiffs' ability to respond fully to the objections by submitting a letter brief or, as appropriate, calling additional witnesses. The unexpected exclusion of the evidence certainly prejudiced plaintiffs' ability to document objective evidence of permanent injury in order to secure a verdict in their favor under the verbal threshold of AICRA. The requirement of notice of objection to exhibits listed in a pretrial information exchange is intended to eliminate surprise in the trial so that cases may be decided on their merits and not on the "skill and maneuvering of counsel." McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 376 (2001) (quoting Wymbs v. Twp. of Wayne, 163 N.J. 523, 543 (2000)).

Reversed and remanded for a new trial on the injuries and resulting damages.

Plaintiffs voluntarily dismissed their action against defendant Rosemary Hunt, the owner of the motor vehicle driven by defendant Elizabeth Hunt. Accordingly, the term "defendant" in this opinion will refer solely to defendant Elizabeth C. Hunt.

In their notice of appeal, plaintiffs appealed from the denial of their motion for a new trial. In their Case Information Statement, they asserted that the jury's verdict was against the weight of the evidence because the defendant's expert agreed that there was a disc herniation in the low back impinging upon nerve roots. Plaintiffs did not brief this issue and we deem it abandoned.

Plaintiffs on appeal contend that both parties' counsel had a "gentleman's agreement" regarding the admission of the medical records, but it is clear from the transcript that the "gentleman's agreement" related only to opinions to be expressed by testifying experts and not the admission into evidence of all of the medical records.

Those records were P-11, report of MRI performed on July 23, 2003; P-12, report of EMG performed on July 23, 2003; P-14, records from Dr. Sunil K. Singh of an April 15, 2003, consultation; P-15, Health South Records from October 2, 2002, through December 19, 2002; and P-22, a record from Dr. Delasotta dated April 29, 2004.

The records of Dr. Zuck were not part of the plaintiffs' case in chief, but were used to counter the defense that a prior injury was responsible for Minhaj's post-accident limitations. As a consequence, these records did not have to be included in the pretrial information exchange. Pretrial Information Exchange, supra, at 2.

(continued)

(continued)

12

A-5913-05T2

October 23, 2007