In Doreen Hayes v. Barbara Delamotte, decided Jan. 10, 2018, the New Jersey Supreme Court considered an automobile accident case in which the defendants presented to the jury evidence, in the form of a videotaped de bene esse deposition of an expert surgeon who had examined the plaintiff. The witness compared two MRIs of plaintiff's cervical spine, identifying one as having been taken before the accident in question and the other after. The doctor also testified, over plaintiff's objection, to opinions contained in reports of two non-testifying doctors. During summation, plaintiff's counsel was not permitted to replay a portion of the videotaped deposition in order to show to the jury that despite labels indicating to the contrary, the two MRIs were the same post-accident exam date. The trial judge denied plaintiff's request on the ground that it would have been necessary for plaintiff to establish for the jury that the two MRIs were in fact the same, and plaintiff had not done so.

Following a judgment for the defendants, plaintiff moved for a new trial, which was granted on the ground that the jury had given greater weight to the testimony of the defendants' expert than to that of plaintiff's expert. In the second trial, the defense expert again testified by video deposition, which had been taken for purposes of the second trial. That proceeding ended in a verdict in favor of the plaintiff. The defendant appealed, and the Appellate Division reversed, concluding that the trial court had improperly granted the plaintiff's motion for a new trial. The Appellate Division reinstated the jury finding at the first trial in favor of the defendants.

The Supreme Court reversed and reinstated the jury's verdict in the second trial, holding that the trial court had erred in preventing the plaintiff from replaying the deposition portion during summation and that that had resulted in a miscarriage of justice.

In its unanimous opinion, the Supreme Court held first that the trial judge should have permitted plaintiff's counsel to comment on the videotaped deposition during summation. Although holding that counsel's latitude in summation is not without limits, so long as the comments in summation are limited to facts that were adduced during trial or that were reasonably suggested by the evidence during the trial, such summation should be permitted. One other limitation that the court expressed was that the replay during summation “'should not be so lengthy as to constitute a second trial emphasizing only one litigant's side of the case.'” (Quoting from Condella v. Cumberland Farms, Inc., 298 N.J. Super. 531, 536 (Law Div. 1996)). The court concluded that plaintiff's counsel's effort to comment on the MRI dates during summation “…would not have been an attempt to misuse [the] testimony, but merely a legitimate attempt to emphasize a certain aspect of [the witness's] testimony, namely, the dates on the MRIs… .”

The Supreme Court also considered plaintiff's argument that at the first trial, the judge should not have admitted so much of the videotaped expert testimony as involved reports of non-testifying experts. The court said that although the expert may articulate the reasons underlying his or her opinion and the sources upon which the 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.'” (Citing Krohn v. N.J. Full Ins. Underwriters Ass'n, 316 N.J. Super. 477, 486 (App. Div. 1998)). In the case before them, the Supreme Court felt that the expert witness had gone beyond permissible bounds in referring to the non-testifying witnesses and that the trial court erred in permitting the expert “…to bolster his testimony using 'congruent' opinions … rather than simply explain[ing] the sources of information used in formulating his opinion.” In Hayes, the court has provided clear guidelines for the handling of evidential issues that occur with some frequency. Since prior opinions on these issues have been principally by the Appellate Division, it is helpful and appropriate that the bench and bar now have guidance by our highest court.