Hayes v. Delamotte

SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized.)

                              Doreen Hayes v. Barbara Delamotte (A-4-16) (077819)

Argued September 12, 2017 -- Decided January 10, 2018

SOLOMON, J., writing for the Court.

           The Court considers whether the trial court’s decision to prevent plaintiff from replaying a portion of the
deposition by the defense expert during summation resulted in a miscarriage of justice, such that it was proper for
the trial court to grant plaintiff’s motion for a new trial. The Court also considers plaintiff’s argument that the
defense expert’s videotaped testimony regarding the reports of non-testifying experts was inadmissible hearsay.

          In 2001, plaintiff Doreen Hayes was diagnosed with a syrinx in her thoracic spine. MRIs were taken to
monitor the syrinx’s growth every six to nine months. That same year, plaintiff suffered a neck injury in an
accident, and ultimately underwent surgery for a fusion at her C4-5 and C5-6 vertebrae. Plaintiff’s last MRI, prior
to the accident at issue in this case, was taken in May 2007. In 2008, plaintiff was a passenger in a vehicle operated
by her mother, defendant Barbara Delamotte. The vehicle left the roadway and collided with trees and a telephone
pole, allegedly to avoid a collision with an unidentified vehicle. After the 2008 accident, plaintiff consulted a
neurosurgeon. The neurosurgeon examined plaintiff, ordered an MRI, and ultimately performed spinal fusion
surgery on plaintiff’s C6-7 and C7-T1 vertebrae.

         Plaintiff filed a complaint claiming that her mother and the unidentified vehicle caused the 2008 accident.
Before trial, the defense retained Dr. Arthur Vasen, an orthopedic surgeon, to examine plaintiff and review her
medical records, including cervical MRIs taken before and after the 2008 accident. The defense took Dr. Vasen’s
videotaped deposition for use at trial rather than call him to give in-court testimony. At trial, plaintiff moved in
limine to have portions of Dr. Vasen’s deposition referring to reports of non-testifying doctors stricken from the
video. The trial court denied the motion.

           At trial, defendants presented Dr. Vasen’s videotaped deposition. Prior to playing Dr. Vasen’s testimony,
the trial court gave the jury a limiting instruction regarding the use of non-testifying experts’ opinions. Dr. Vasen
testified that there were no differences between the MRIs purportedly taken on May 4, 2007 (before the accident)
and May 17, 2008 (after the accident). However, the films that Dr. Vasen showed in the tape were both labeled May
17, 2008. The parties did not address that issue at the deposition or before the close of evidence at trial. At the
conclusion of the parties’ evidence, plaintiff’s counsel requested the opportunity to replay Dr. Vasen’s testimony
during summation, and comment on the testimony, to demonstrate to the jury that the doctor compared MRI films
marked with the same date. Defendant objected to the request. After conducting a N.J.R.E. 104(a) hearing and
reviewing Dr. Vasen’s videotaped deposition outside the presence of the jury, the court upheld defendant’s
objection, reasoning that there was no expert testimony to differentiate between the films or to evaluate their
potential mislabeling. In its charge to the jury, the trial court provided an additional limiting instruction as to the
reports of non-testifying experts. Ultimately, the jury determined that plaintiff’s mother was solely responsible for
the 2008 accident but found that plaintiff did not sustain a permanent injury proximately caused by that accident.

         Plaintiff moved for a new trial. The trial court granted the motion, concluding that plaintiff did not receive
substantial justice because the jury gave greater weight to Dr. Vasen’s testimony than to that of plaintiff’s expert.

         Thereafter, a second trial was conducted, concerning only the issue of whether plaintiff sustained a
permanent injury as a result of the 2008 accident. Dr. Vasen’s videotaped deposition was retaken for use at the
second trial. Although Dr. Vasen resolved the issues as to the dates of the MRIs he reviewed, plaintiff once again
moved in limine to bar Dr. Vasen’s testimony about the findings of non-testifying doctors. This time, the court
granted plaintiff’s motion. After the second trial, the jury found that plaintiff sustained a permanent injury
proximately caused by the 2008 accident and awarded her $250,000 in damages.

                                                           1
          Defendant appealed. The Appellate Division found that the trial court improperly granted a new trial and
reinstated the jury’s verdict in favor of defendant from the first trial. The Court granted plaintiff’s petition for
certification. 
227 N.J. 376 (2016).

HELD: Because the trial court’s error in preventing plaintiff from replaying a portion of the deposition during
summation at the first trial resulted in a miscarriage of justice, the trial court properly granted plaintiff’s motion for a
new trial. Further, the trial court erred in permitting Dr. Vasen to bolster his testimony using “congruent” opinions in
reports of non-testifying doctors during the first trial rather than simply explain the sources of information used in
forming his opinion.

1. A trial court grants a motion for a new trial only if, having given due regard to the opportunity of the jury to pass
upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under
the law. A miscarriage of justice can arise when there is a manifest lack of inherently credible evidence to support the
finding, when there has been an obvious overlooking or under-valuation of crucial evidence, or when the case
culminates in a clearly unjust result. (pp. 12-14)

2. In Condella v. Cumberland Farms, Inc., the trial court found that “it is within the trial court’s discretion to allow
counsel to show portions of the videotaped trial testimony and make comment thereon during summation.” 
298 N.J.
Super. 531, 535 (Law Div. 1996). The Court agrees with that holding and also that the following safeguards suggested
in Condella should be considered when portions of videotaped trial testimony are utilized during summation. First, the
replay during summation “should not be so lengthy as to constitute a second trial emphasizing only one litigant’s side of
the case.” Id. at 536. Second, “to guard against the edited portions of the videotape misstating the evidence” and to
prevent them from being “presented out of context,” the proponent should raise the issue with the court before playing
an edited part of the tape. Ibid. (pp. 14-16)

3. Here, plaintiff requested to have brief portions of Dr. Vasen’s testimony replayed to demonstrate that the MRIs
compared by the expert bore the same date. Use of those portions would not have constituted a “second trial”
overemphasizing plaintiff’s case. The proposed use of the video would not have been an attempt to misuse Dr. Vasen’s
testimony, but merely a legitimate attempt to emphasize a certain aspect of his testimony. Lastly, the trial court
conducted a Rule 104 hearing and reviewed the video. The trial court did not make a finding and defendant did not
claim that the video had been edited or that Dr. Vasen’s testimony was taken out of context. The portion of the
videotaped deposition sought to be played thus met the requirements of Condella, which the Court adopts as modified.
Dr. Vasen’s videotaped deposition was in evidence once it was played at trial. As with any other piece of evidence
adduced at trial, counsel was permitted to fairly comment upon it and play portions during closing argument. Merely
pointing to dates on MRIs or other images does not require expert testimony because reading the dates and realizing
that they are the same is not beyond the ken of the average juror. (pp. 16-18)

4. In sum, counsel may refer to, read, or play portions of videotaped fact or expert testimony given at trial during
closing, as long as (1) counsel’s comments are confined to the facts shown or reasonably suggested by the evidence
introduced during the course of the trial, and (2) the concerns set forth in Condella are met. Plaintiff was entitled to
replay the deposition and draw the jury’s attention to the discord between the dates stamped on the MRIs to which Dr.
Vasen pointed and the dates he ascribed to them. Because the trial turned on the weight assigned to expert testimony,
the denial of that opportunity worked an injustice, and a new trial was necessary. (pp. 18-21)

5. Although a testifying expert may detail the reasons underlying his or her opinion and the sources upon which his
or her opinion is based, an expert witness should not be allowed to relate the opinions of a nontestifying expert
merely because those opinions are congruent with the ones he has reached. Notwithstanding the cautionary
instruction given, the trial court erred in permitting Dr. Vasen to bolster his testimony using “congruent” opinions in
reports of non-testifying doctors during the first trial rather than simply explain the sources of information used in
formulating his opinion. (pp. 21-23)

        The judgment of the Appellate Division is REVERSED, and the jury’s verdict in favor of plaintiff
following the second trial is REINSTATED.

       CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN, PATTERSON, FERNANDEZ-
VINA, and TIMPONE join in JUSTICE SOLOMON’s opinion.

                                                            2
                                      SUPREME COURT OF NEW JERSEY
                                         A-
4 September Term 2016
                                                 077819

DOREEN HAYES,

     Plaintiff-Appellant,

          v.

BARBARA DELAMOTTE,

     Defendant-Respondent,

          and

GEICO INSURANCE COMPANY1,

     Defendant.


          Argued September 12, 2017 – Decided January 10, 2018

          On certification to the Superior Court,
          Appellate Division.

          Kimberly L. Gozsa argued the cause for
          appellant (Levinson Axelrod, attorneys;
          Kimberly L. Gozsa, on the brief).

          Stephen A. Rudolph argued the cause for
          respondent (Rudolph & Kayal, attorneys;
          Stephen A. Rudolph, on the brief).

          Donald A. Caminiti argued the cause for
          amicus curiae New Jersey Association for
          Justice (Breslin & Breslin, attorneys;
          Donald A. Caminiti and Jessica E. Choper, on
          the brief).




1  Plaintiff’s original complaint included GEICO Insurance
Company, but the party’s name was subsequently amended to GEICO
Insurance Group.
                                1
     JUSTICE SOLOMON delivered the opinion of the Court.

     Following an automobile accident, plaintiff Doreen Hayes

filed a complaint against Barbara Delamotte and the Geico

Insurance Company (collectively, defendants) seeking damages for

personal injuries.   At the first jury trial, defendants

presented, by videotaped deposition, the expert testimony of an

orthopedic surgeon who had examined plaintiff.    Defendants’

expert compared what he described as two different Magnetic

Resonance Images (MRIs) of plaintiff’s cervical spine, one that

he identified as a pre-accident image taken in 2007 and one that

he identified as an image taken after the 2008 accident.     The

doctor also testified, over plaintiff’s objection, to the

opinions contained in reports of non-testifying physicians.

     Although the doctor identified the MRIs he referenced as

pre- and post-accident images, the MRIs, which were labeled,

bore the same post-accident “Exam Date.”    The parties did not

address the MRI labeling issue at the time of the deposition or

during trial. Plaintiff’s counsel, however, sought to replay a

portion of the videotaped deposition during summation to show

that both MRIs bore labels reflecting the same post-accident

date.   Defense counsel objected.   The trial court denied

plaintiff’s request, reasoning that expert testimony would be

necessary to establish that the MRIs in the video were in fact

the same.

                                2
    The trial resulted in a judgment in favor of defendants.

Plaintiff moved for a new trial, which was granted by the trial

court on the ground that plaintiff “did not receive substantial

justice” because “the jury gave greater weight” to the testimony

of defendants’ expert than to that of plaintiff’s expert.

    During the second trial, the defense expert testified again

via a video deposition taken for use at the second trial.     The

second trial ended in a jury verdict in favor of plaintiff.

Defendant appealed, and the Appellate Division reversed.    The

appellate panel concluded that the trial court improperly

granted plaintiff’s motion for a new trial and reinstated the

jury’s finding from the first trial in favor of defendants.

    We now reverse the judgment of the Appellate Division and

reinstate the jury’s verdict in favor of plaintiff following the

second trial.   Because the trial court’s error in preventing

plaintiff from replaying a portion of the deposition during

summation at the first trial resulted in a miscarriage of

justice, the trial court properly granted plaintiff’s motion for

a new trial.

                                I.

                                A.

    We derive the facts pertinent to this appeal from the

record of the first trial.



                                3
    In 2001, prior to the accident and injury at issue,

plaintiff was diagnosed with a syrinx, or fluid-filled hole, in

her thoracic spine, which caused back, chest, neck, arm, and leg

pain.   MRIs were taken to monitor the syrinx’s growth every six

to nine months.    That same year, plaintiff suffered a neck

injury in an accident, and ultimately underwent surgery for a

cervical fusion at her C4-5 and C5-6 vertebrae in 2002.

Following that surgery, plaintiff received physical therapy but

no other continued treatment.     Plaintiff’s last MRI, prior to

the accident at issue in this case, was taken in May 2007.

    In 2008, plaintiff was a front-seat passenger in a vehicle

operated by her mother, defendant Barbara Delamotte.     The

vehicle left the roadway and collided with trees and a telephone

pole, allegedly to avoid a collision with an unidentified

vehicle.   Emergency personnel extracted plaintiff and her mother

from their car using the “jaws of life” and transported them to

the hospital, where they were treated and released.

    After the 2008 accident, plaintiff’s family physician

provided treatment and ordered a cervical MRI.     Because

plaintiff’s condition did not improve, she consulted a pain

management specialist, an orthopedic surgeon, and a

neurosurgeon.     The neurosurgeon, Dr. Robert Sabo, examined

plaintiff, ordered another MRI, and ultimately performed spinal

fusion surgery on plaintiff’s C6-7 and C7-T1 vertebrae.

                                   4
                                B.

    Plaintiff filed a complaint claiming that her mother and

the unidentified vehicle caused the 2008 accident.    Plaintiff

alleged that she sustained permanent injuries in that accident,

and her complaint named Delamotte and plaintiff’s own insurance

carrier, GEICO Insurance Company, with whom plaintiff had

uninsured motorist coverage, as defendants, along with “John

Doe” defendants connected with the unknown vehicle.    Before

trial, defendants retained Dr. Arthur Vasen, an orthopedic

surgeon, to examine plaintiff and review her medical records,

including cervical MRIs taken before and after the 2008

accident.   Defendants took Dr. Vasen’s videotaped deposition for

use at trial rather than call him to give in-court testimony.

At trial, plaintiff moved in limine to have portions of Dr.

Vasen’s deposition referring to reports of non-testifying

doctors stricken from the video, arguing that those reports

presented opinions on complex medical issues and that

plaintiff’s counsel was unable to cross-examine those experts.

The trial court denied the motion.

    At trial, defendants presented Dr. Vasen’s videotaped

deposition.   Prior to playing Dr. Vasen’s testimony, the trial

court gave the jury a limiting instruction regarding the use of

non-testifying experts’ opinions.    The trial court explained, “I

instruct you as the jury in this case you are not to consider

                                 5
any such out of Court statements by any non-testifying experts

as substantive proof of the content of those statements.”2     Dr.

Vasen testified that there were no differences between the MRIs

purportedly taken on May 4, 2007 (before the accident) and May

17, 2008 (after the accident).   However, the films that Dr.

Vasen showed in the tape were both labeled May 17, 2008.     The

parties did not address that issue at Dr. Vasen’s deposition or

before the close of evidence at trial.

     At the conclusion of the parties’ evidence, plaintiff’s

counsel requested the opportunity to replay Dr. Vasen’s

testimony during summation, and comment on the testimony, to

demonstrate to the jury that the doctor compared MRI films

marked with the same date.3   Defendant objected to the request.

After conducting a N.J.R.E. 104(a) hearing and reviewing Dr.

Vasen’s videotaped deposition outside the presence of the jury,

the trial court upheld defendant’s objection to plaintiff’s

showing and commenting on a part of the doctor’s testimony

during summation.   The judge reasoned that there was no expert




2  On direct examination, plaintiff’s expert, Dr. Sabo, discussed
the treatment plaintiff received while under the care of other
doctors. Dr. Sabo was also asked about the findings of other
non-testifying doctors during cross-examination. The court gave
the same instruction before the testimony of Dr. Sabo.

3  During arguments on the objection, defense counsel noted that,
in addition to the issue with the dates, the MRIs were labeled
“lumbar views” when they were, in fact, “cervical films.”
                                 6
testimony from Dr. Vasen, Dr. Sabo, or the radiologist who took

the MRIs to differentiate between the films or to evaluate their

potential mislabeling.

                                C.

    Prior to the parties’ closings, the trial court found that

defendants’ negligence caused the accident as a matter of law.

Based on that finding, the court explained that the jury would

have to assess the percentage of fault attributable to

plaintiff’s mother and the unknown vehicle and to determine

whether plaintiff sustained a permanent injury proximately

caused by the 2008 accident.   In its charge to the jury, the

trial court provided an additional limiting instruction as to

the reports of non-testifying experts that mirrored its earlier

instruction.   Ultimately, the jury determined that plaintiff’s

mother was solely responsible for the 2008 accident but found

that plaintiff did not sustain a permanent injury proximately

caused by that accident.   Therefore, judgment was entered in

favor of defendants.

    Plaintiff moved for a new trial, arguing that it was

reversible error for the court to bar counsel from showing a

part of Dr. Vasen’s videotaped testimony or commenting on Dr.

Vasen’s comparison of the MRI films during summation.    In

assessing plaintiff’s argument, the trial court found that its

decision to bar the video replay was legally correct.    The court

                                 7
reasoned that replaying the testimony would have been

prejudicial.   Despite those findings, the court granted

plaintiff’s motion for a new trial, concluding that plaintiff

“did not receive substantial justice” because “the jury gave

greater weight to Dr. Vasen’s testimony than to Dr. Sabo.”

    Thereafter, a second trial was conducted.    Because the

first trial resulted in a determination that plaintiff’s mother

(hereinafter “defendant”) was solely responsible for the

accident, the second trial concerned only the issue of whether

plaintiff sustained a permanent injury as a result of the 2008

accident.   Dr. Vasen’s videotaped deposition was retaken for use

at the second trial.   Although Dr. Vasen resolved the issues as

to the dates of the MRIs he reviewed, plaintiff once again moved

in limine to bar Dr. Vasen’s testimony about the findings of

non-testifying doctors.   This time, the court granted

plaintiff’s motion in limine, citing Agha v. Feiner, 
198 N.J. 50

(2009), on the ground that the opinions of the non-testifying

experts were being used improperly to validate Dr. Vasen’s

opinions.   After the second trial, the jury found that plaintiff

sustained a permanent injury proximately caused by the 2008

accident and awarded her $250,000 in damages.

    Defendant appealed.    The Appellate Division found that the

trial court improperly granted a new trial and reinstated the

jury’s verdict in favor of defendant from the first trial.

                                 8
    The appellate panel noted that “there was no credible

evidence or expert testimony in the record that the MRI films

were incorrectly used,” and determined that the trial court

“aptly held that an expert would have been required to testify

that [Dr.] Vasen was reviewing the same MRI films or that there

was a mislabeling in order to challenge his credibility.”   The

panel agreed with the trial court that the decision to bar the

video replay was legally correct, because it would have been

prejudicial to allow the testimony to be replayed.   The

appellate panel determined that, arguably, the video replay

would have given rise to unfair surprise.

    The Appellate Division also held that the trial court

usurped the jury’s function as factfinder when it found that the

“jury gave greater weight to Dr. Vasen’s testimony than to Dr.

Sabo.”   As a result, the panel held there was no ruling in the

first trial that prejudiced either party, reversed the trial

court’s grant of a new trial, and reinstated the jury’s verdict

in favor of defendants.   This Court granted plaintiff’s petition

for certification.   
227 N.J. 376 (2016).   We granted leave to

appear as amicus curiae to the New Jersey Association for

Justice (NJAJ).

                                II.

                                A.



                                 9
    Plaintiff claims that the Appellate Division erred in

reversing the trial court’s order granting a new trial and in

reinstating the jury’s verdict in favor of defendant.

    Plaintiff asserts that an attorney may comment in summation

on any evidence admitted at trial.   Relying on Condella v.

Cumberland Farms, Inc., 
298 N.J. Super. 531, 535–36 (Law Div.

1996), plaintiff argues that attorneys can replay videotaped

testimony during summation because it is actual testimony

admitted at trial.

    Plaintiff also argues that, at the first trial, defendant

improperly elicited medical opinions of non-testifying doctors

that were consistent with those of defendants’ expert, Dr.

Vasen.   Thus, plaintiff asserts, the panel’s ruling conflicts

with James v. Ruiz, 
440 N.J. Super. 45, 51 (App. Div. 2015), in

which the Appellate Division held that counsel should not ask a

question for the purpose of having the jury consider absent

experts’ hearsay opinions about complex and disputed matters.

    The NJAJ, aligned with plaintiff, first argues that the

video replay did not “constitute the introduction of new

evidence” and as such counsel should have been permitted to play

Dr. Vasen’s testimony without additional “expert testimony to

address any inconsistencies in the evidence presented.”     Second,

the NJAJ asserts that the trial court properly precluded the

admission of non-testifying experts’ hearsay opinions in the

                                10
second trial, pursuant to James, 
440 N.J. Super at 51.     In

raising its first argument, the NJAJ emphasizes that Dr. Vasen’s

video testimony was introduced by the defense and could thus be

properly replayed during summation by plaintiff.     In addition,

the NJAJ notes that plaintiff “was not obligated to alter or

cure any deficiencies in the testimony of defendant’s medical

expert.”   In the alternative, the NJAJ posits that if counsel

were required to have expert testimony to note the

inconsistencies with the MRIs, Dr. Vasen’s testimony should have

been stricken in its entirety.

                                 B.

    Defendant points out that the trial court first indicated

that it did not know what swayed the jury but then, in granting

a new trial, held that “it is clear that the jury gave greater

weight to Dr. Vasen’s testimony than to Dr. Sabo.”     Defendant

agrees with the appellate panel that Dr. Vasen’s testimony “was

not the exclusive means by which the jury could have reached its

verdict” and that the verdict could have been based on a number

of considerations, including the jury’s rejection of Dr. Sabo’s

testimony or plaintiff’s testimony.

    Finally, defendant highlights the panel’s agreement that

the trial judge’s “decision to bar the video replay was legally

correct because 'a video replay during summation would have been

prejudicial given the lack of testimony by any medical expert or

                                 11
radiologist who could have explained the discrepancy in the

films displayed by [Dr.] Vasen during his testimony.’”

                               III.

                                A.

    “A jury verdict is entitled to considerable deference and

'should not be overthrown except upon the basis of a carefully

reasoned and factually supported (and articulated)

determination, after canvassing the record and weighing the

evidence, that the continued viability of the judgment would

constitute a manifest denial of justice.’”   Risko v. Thompson

Muller Auto. Grp., Inc., 
206 N.J. 506, 521 (2011) (quoting

Baxter v. Fairmont Food Co., 
74 N.J. 588, 597-98 (1977)).     A

trial court therefore grants a motion for a new trial only “if,

having given due regard to the opportunity of the jury to pass

upon the credibility of the witnesses, it clearly and

convincingly appears that there was a miscarriage of justice

under the law.”   Crawn v. Campo, 
136 N.J. 494, 511-12 (1994)

(quoting R. 4:49-1(a)).

    “The standard of review on appeal from decisions on motions

for a new trial is the same as that governing the trial judge --

whether there was a miscarriage of justice under the law.”

Risko, 
206 N.J. at 522; accord R. 2:10-1 (“The trial court’s

ruling on such a motion shall not be reversed unless it clearly

appears that there was a miscarriage of justice under the

                                12
law.”).   We have explained that a “miscarriage of justice” can

arise when there is a “manifest lack of inherently credible

evidence to support the finding,” when there has been an

“obvious overlooking or under-valuation of crucial evidence,” or

when the case culminates in “a clearly unjust result.”     Risko,


206 N.J. at 521-22 (quoting Lindenmuth v. Holden, 
296 N.J.

Super. 42, 48 (App. Div. 1996)).

    Here, the trial court found that it had properly barred

plaintiff’s counsel from replaying the video because the request

to replay the video “was not based on any evidential foundation

established in the trial record” and because “the showing would

be highly prejudicial to the defendants.”   The court found,

nevertheless, “that if a new trial is not granted on at least

the damages aspect of the case, the plaintiff herself would

likely suffer an injustice” given that “the jury gave greater

weight to Dr. Vasen’s testimony than to Dr. Sabo[’s testimony].”

    We have noted that, when evaluating the decision to grant

or deny a new trial, “an appellate court must give 'due

deference’ to the trial court’s 'feel of the case.’”    Id. at 522

(quoting Jastram v. Kruse, 
197 N.J. 216, 230 (2008)).     That is

not to say, however, that we must accept the trial court’s legal

reasoning:   “[a] trial court’s interpretation of the law and the

legal consequences that flow from established facts are not

entitled to any special deference.”   Manalapan Realty, L.P. v.

                                13
Twp. Comm. of Twp. of Manalapan, 
140 N.J. 366, 378 (1995).       We

also note that “it is well-settled that appeals are taken from

orders and judgments and not from opinions, oral decisions,

informal written decisions, or reasons given for the ultimate

conclusion.”   Do-Wop Corp. v. City of Rahway, 
168 N.J. 191, 199

(2001) (collecting cases).     A trial court judgment that reaches

the proper conclusion must be affirmed even if it is based on

the wrong reasoning.    Isko v. Planning Bd., 
51 N.J. 162, 175

(1968); see also MacFadden v. MacFadden, 
49 N.J. Super. 356, 359

(App. Div. 1958) (“The written conclusions or opinion of a court

do not have the effect of a judgment.     From them no appeal will

lie.   'It is only what a court adjudicates, not what it says in

an opinion, that has any direct legal effect.’” (quoting

Suburban Dep’t Stores v. City of East Orange, 
47 N.J. Super.
 472, 479 (App. Div. 1957))).

                                  B.

       With those principles in mind, we turn to the evidentiary

determination that plaintiff claims created an injustice and

supports the trial court’s grant of a new trial:    the decision

to bar her from replaying and commenting on Dr. Vasen’s

deposition during summation.

                                  1.

       “[C]ounsel is allowed broad latitude in summation.”

Colucci v. Oppenheim, 
326 N.J. Super. 166, 177 (App. Div. 1999).

                                  14
That latitude is not without its limits, and “counsel’s comments

must be confined to the facts shown or reasonably suggested by

the evidence introduced during the course of the trial.”     Ibid.;

accord State v. Bogen, 
13 N.J. 137, 140 (1953).   Further,

counsel “should not misstate the evidence nor distort the

factual picture.”   Colucci, 
326 N.J. Super. at 177 (quoting

Matthews v. Nelson, 
57 N.J. Super. 515, 521 (App. Div. 1959)).

Within those limits, however, “[c]ounsel may argue from the

evidence any conclusion which a jury is free to reach.”      Ibid.

“Indeed, counsel may draw conclusions even if the inferences

that the jury is asked to make are improbable. . . .”     Ibid.

    In Condella, the trial court found that “it is within the

trial court’s discretion to allow counsel to show portions of

the videotaped trial testimony and make comment thereon during

summation.”   
298 N.J. Super. at 535.   We agree with that holding

but note that the exercise of such discretion depends upon

whether counsel’s comments are “confined to the facts shown or

reasonably suggested by the evidence introduced during the

course of the trial.”    Colucci, 
326 N.J. Super. at 177; accord

Bogen, 
13 N.J. at 140.

    We also agree that the following safeguards suggested in

Condella should be considered when portions of videotaped trial

testimony are utilized during summation.   First, the replay

during summation “should not be so lengthy as to constitute a

                                 15
second trial emphasizing only one litigant’s side of the case.”

Condella, 
298 N.J. Super. at 536.    Second, “to guard against the

edited portions of the videotape misstating the evidence” and to

prevent them from being “presented out of context,” the

proponent should raise the issue with the court before playing

an edited part of the tape.   Ibid.; see N.J.R.E. 104(a).4   Those

safeguards ensure that one party’s side of the case is not

“unduly emphasize[d]” over the other, Condella, 
298 N.J. Super.

at 536, and that any edited portions “are a fair and accurate

representation of the witness’ testimony,” id. at 537.

    Here, plaintiff requested to have brief portions of Dr.

Vasen’s testimony replayed to demonstrate that the MRIs compared

by the expert bore the same date.    Use of those portions would

not have constituted a “second trial” overemphasizing

plaintiff’s case.   The proposed use of the video would not have

been an attempt to misuse Dr. Vasen’s testimony, but merely a

legitimate attempt to emphasize a certain aspect of his

testimony, namely, the dates on the MRIs to which he pointed in


4  In Condella, the plaintiff requested permission to replay a
portion of the defense expert’s testimony as well as defense
counsel’s opening. 
298 N.J. Super. at 533. The video at issue
in Condella was taken via cameras in the courtroom. Ibid. The
court granted the plaintiff’s request to replay the trial
testimony, but denied the plaintiff’s request as to the
defense’s opening statement. Here, Dr. Vasen’s testimony was
recorded and presented as testimony at trial. We discern no
difference between the request made in Condella related to trial
testimony and the request in this case.
                                16
the video.   Lastly, the trial court conducted a Rule 104 hearing

and reviewed the video.     In its opinion granting plaintiff’s

motion for a new trial, the trial court found that the proposed

video replay “was not overly lengthy” but because “the

plaintiff’s application . . . was not based on any evidential

foundation established in the trial record,” the replay “would

misstate the evidence and mislead the jury.”     However, the trial

court did not make a finding and defendant did not claim that

the video had been edited or that Dr. Vasen’s testimony was

taken out of context.     The portion of the videotaped deposition

sought to be played thus met the requirements of Condella, which

we now adopt as modified.

    We further find that Dr. Vasen’s videotaped deposition was

in evidence once it was played at trial.     As with any other

piece of evidence adduced at trial, counsel was permitted to

fairly comment upon it and play portions during closing

argument.    See Condella, 
298 N.J. Super. at 535; see also State

v. Muhammad, 
359 N.J. Super. 361, 372-73 (App. Div. 2003)

(concluding it was proper for a prosecutor to replay video

testimony during summation in criminal matters).     Counsel was

free to argue the import of the dates on the MRIs and to draw

conclusions from those dates, so long as those conclusions were

grounded in the evidence.     See Colucci, 
326 N.J. Super. at 177.



                                  17
    We disagree with the determination “that an expert would

have been required to testify that [Dr.] Vasen was reviewing the

same MRI films or that there was a mislabeling in order to

challenge his credibility.”   Under this State’s jurisprudence,

expert testimony “concern[s] a subject matter that is beyond the

ken of the average juror.”    State v. Kelly, 
97 N.J. 178, 208

(1984).   Merely pointing to dates on MRIs or other images does

not require expert testimony because reading the dates and

realizing that they are the same is not beyond the “ken of the

average juror.”

    In sum, we hold that counsel may refer to, read, or play

portions of videotaped fact or expert testimony given at trial

during closing, as long as (1) “counsel’s comments [are]

confined to the facts shown or reasonably suggested by the

evidence introduced during the course of the trial,” Colucci,


326 N.J. Super. at 177, and (2) the concerns set forth in

Condella are met.    It was, in short, error to preclude the video

replay during the first trial.

    We next consider whether that error produced a miscarriage

of justice, warranting a new trial.

                                 2.

    During both trials, the dispositive issue was whether

plaintiff sustained a permanent injury proximately caused by the

2008 accident.    That issue was fleshed out for the jury by the

                                 18
testimony of plaintiff, plaintiff’s husband, and the parties’

expert witnesses.   The parties’ experts came to opposite

conclusions regarding the 2008 accident’s impact on plaintiff’s

spine.   Their testimony was key to the outcome of the first

trial and the jury’s determination as to whether plaintiff

sustained a permanent injury.   We have concluded that the trial

court abused its discretion by not allowing plaintiff to point

out what was plainly visible on the videotaped testimony of Dr.

Vasen played at trial -- that the MRIs examined and compared by

Dr. Vasen bore the same date.   Plaintiff’s counsel should have

been able to raise that fact and argue that it undermines the

reliability of Dr. Vasen’s testimony that plaintiff did not

suffer a permanent injury in the 2008 accident.   Because expert

testimony was vital to the outcome of the trial, the trial

court’s refusal to allow plaintiff’s counsel to replay a portion

of Dr. Vasen’s deposition was an error that resulted in a

“miscarriage of justice under the law,” warranting a new trial.

R. 2:10-1.

    Defendant claims “it is unfair and inequitable for

[p]laintiff to play any portion of Dr. Vasen’s video during

summations, as that same opportunity was not available to

defendant (to play portions of Dr. Sabo’s trial testimony, as he

testified live).”   However, it was defendant who chose to

utilize a videotaped deposition of Dr. Vasen in lieu of in-court

                                19
testimony.   In addition, both defendant and plaintiff were aware

of the contents of the video.   The fact that plaintiff chose to

present Dr. Sabo’s testimony live does not make it “unfair” or

“inequitable” for plaintiff to utilize Dr. Vasen’s videotaped

deposition to her advantage during summation.    Nor does defense

counsel’s failure to discover the labeling discrepancy render

plaintiff’s use of the video during summation “inequitable.”

    The Appellate Division found that, arguably, the replay

would have constituted unfair surprise.     Unfair surprise is a

proper basis to exclude evidence not properly provided to the

opposing party during discovery.     See Balian v. Gen. Motors, 
121 N.J. Super. 118, 127 (App. Div. 1972).     The prohibition against

unfair surprise prevents the introduction of evidence not

properly disclosed by the opposing party, id. at 127, but does

not prevent counsel from using to their strategic advantage the

evidence properly presented at trial by an adversary.     A party’s

use of evidence in its closing argument cannot be an “unfair

surprise” to the adverse party that properly produced,

introduced, and admitted the same evidence at trial.

    Here, plaintiff was entitled to replay the deposition and

draw the jury’s attention to the discord between the dates

stamped on the MRIs to which Dr. Vasen pointed and the dates he

ascribed to them.   Because the trial turned on the weight

assigned to expert testimony, we find that the denial of that

                                20
opportunity worked an injustice.     Thus, although we disagree

with the reason for which the trial court granted plaintiff’s

motion for a new trial, we agree that a new trial was necessary.

We therefore reverse the judgment of the Appellate Division and

reinstate the verdict of the second jury.

                               IV.

    Having resolved that a new trial was properly granted by

the trial court, we address only briefly plaintiff’s argument

that, at the first trial, Dr. Vasen’s videotaped testimony

regarding the reports of non-testifying experts was inadmissible

hearsay.

                                A.

    “[U]nder N.J.R.E. 703, an expert may give the reasons for

his opinion and the sources on which he relies, but that

testimony [cannot] establish the substance of the report of a

non-testifying [expert].”   Agha, 
198 N.J. at 64.    In other

words, an expert may not “alert[] the jury to evidence it would

not otherwise be allowed to hear.”    State v. Burris, 
298 N.J.

Super. 505, 512 (App. Div. 1997).    That is because “expert

testimony [cannot] serve as 'a vehicle for the wholesale

[introduction] of otherwise inadmissible evidence.’”     Agha, 
198 N.J. at 63 (quoting State v. Vandeweaghe, 
351 N.J. Super. 467,

480-81 (App. Div. 2002) (alteration in original) (internal

quotation marks omitted), aff’d, 
177 N.J. 229 (2003)).

                                21
      Although a testifying expert may detail the reasons

underlying his or her opinion and the sources upon which his or

her opinion is based, “[a]n expert witness should not be allowed

to relate the opinions of a nontestifying expert merely because

those opinions are congruent with the ones he has reached.”

Krohn v. N.J. Full Ins. Underwriters Ass’n, 
316 N.J. Super. 477,

486 (App. Div. 1998).    Said in a different way, the contents of

a non-testifying expert’s report may not be used as a “tie

breaker” between competing experts.     James, 
440 N.J. Super. at
 51.   Even when admitted, therefore, hearsay statements relied

upon by an expert may be used for the limited purpose of

apprising the jury of the basis of the testifying expert’s

opinion, but not for the correctness of the non-testifying

expert’s conclusion, and the trial court must, upon request,

instruct the jury regarding the limited use of the hearsay.

Agha, 
198 N.J. at 63.

                                  B.

      Here, before the first trial, plaintiff moved in limine to

preclude Dr. Vasen from referring to the opinions of non-

testifying experts.     The trial court denied the motion, admitted

the testimony, and gave the following limiting instruction:      “I

instruct you as the jury in this case you are not to consider

any such out of Court statements by any non-testifying experts

as substantive proof of the content of those statements.”

                                  22
    Over the course of his direct examination, defense counsel

asked Dr. Vasen whether a non-testifying doctor “indicate[d]

that there was a problem” at a specific part of plaintiff’s

spine and additionally asked whether doctors noted a “problem

at” the location of the purported injury.   That testimony

impermissibly sought to establish the substance of the reports

of non-testifying physicians, see Agha, 
198 N.J. at 64, and

“alert[ed] the jury to evidence it would not otherwise be

permitted to hear,” Burris, 
298 N.J. Super. at 512.

Notwithstanding the cautionary instruction given, the trial

court erred in permitting Dr. Vasen to bolster his testimony

using “congruent” opinions in reports of non-testifying doctors

during the first trial rather than simply explain the sources of

information used in formulating his opinion.

                               V.

    For the reasons set forth above, we reverse the judgment of

the Appellate Division and reinstate the jury’s verdict in favor

of plaintiff following the second trial.



     CHIEF JUSTICE RABNER and JUSTICES LaVECCHIA, ALBIN,
PATTERSON, FERNANDEZ-VINA, and TIMPONE join in JUSTICE SOLOMON’s
opinion.




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