New Jersey Appellate Division Says Experts Cannot Serve as Conduits for Hearsay Conclusions from Non-testifying Experts
After our recent report concerning a recent New Jersey Supreme Court opinion on the use of hypothetical questions with expert witnesses, New Jersey’s Appellate Division, in a to-be-published opinion, also placed limits on appropriate questions for experts, holding that non-testifying experts’ opinions cannot be “bootstrapped” into the record by asking testifying experts if their conclusions are “consistent” with a non-testifying expert’s. James v. Ruiz, No. A-3543-13T2, 2015 N.J. Super. LEXIS 46 (App. Div. Mar. 25, 2015).
In James the court addressed whether an expert witness may be asked if his or her conclusions are consistent with those of a non-testifying expert. The court decided the issue in line with current precedent relating to hearsay, examining whether the non-testifying expert’s opinion, as proffered, was hearsay or if it fell under an exception, such as the business-record exception. However, even if the statement appeared to meet most of the elements of the business record exception, N.J.R.E. 808, which prohibits introduction of non-testifying expert’s statements even if the record otherwise satisfies the exception in certain circumstances.
N.J.R.E. 808, the Complex/Disputed Expert Opinion Restriction, is unique to New Jersey evidence, with no direct federal analogue. The rule ensures that the judge allows only those out-of-court expert statements for which sufficient indicia of trustworthiness were present when the statement was declared (i.e., the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion). Further, the testifying expert must have reasonably relied upon the non-testifying expert’s opinions pursuant to N.J.R.E. 703 in order to present the absent expert’s opinion in the course of explaining his or her conclusion in court.
The court reaffirmed that any attempts to use a testifying expert as a conduit to “bootstrap” non-testifying experts’ opinions should not be permitted, regardless of whether the non-testifying expert’s statements relate to “facts or data” under N.J.R.E. 703 or “complex/disputed expert opinion” under N.J.R.E. 808. The court stated: “a civil trial attorney may not pose such consistency/inconsistency questions to a testifying expert, where 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.” The court also held that closing arguments were also bound by the same restrictions, similarly to protect the jury from speculation about or misuse of an absent expert’s complex or disputed findings.
As a takeaway for practitioners, experts should have the credentials to undertake any analysis for which their testimony is needed, and best practices require that they have completed such an analysis themselves, or else reasonably relied on the analysis of another expert. To the extent an expert placed professional reliance on such an unavailable source to reach his or her conclusion, the court will provide a limiting instruction to caution the jury not to consider those outside sources for their truth.