The New Jersey No Fault Act provides that a person who is injured in an automobile accident (the plaintiff) who is subject to the “limitation on lawsuit option” (the verbal threshold) may not sue the owner or operator of an automobile (the defendant) for “noneconomic damages” (pain and suffering) unless that person has sustained one of six types of bodily injury that are specified in the statue including “a permanent injury.” N.J.S.A. 39:6A-1(a). The statute specifies that an injury shall be considered “permanent” when a body part “has not healed to function normally and will not heal to function normally with further medical treatment.”

In order to vault the permanency threshold, a plaintiff must submit a “certification from a treating doctor based upon “objective clinical evidence” that may include “diagnostic testing.” In Oswin v. Shaw, 129 N.J. 290 (1992), the Supreme Court noted that “objective clinical evidence” may be based upon the physical examination and observation of the treating doctor such as “swelling, discoloration and spasm.” In contrast, “diagnostic testing” will generally include X-rays, MRIs, CT Scans, EMGs and EEG.

Most bodily injury claims arising from automobile accidents involve “soft tissue” which are commonly defined as injuries to the nerves, muscles, tissues, tendons and other soft parts of the body including intervertebral discs. These injuries are generally diagnosed as sprain and strains as well as bulging, protruding and herniated discs.

Under the terms of the No Fault Act, a plaintiff should be able to provide “objective clinical evidence” of a permanent injury based upon the physical examination and observations of the treating doctor. However, the courts have held that “credible, objective medical evidence” must be “derived from accepted diagnostic tests and cannot be dependent entirely upon subjective patient response.” Davidson v. Slater, 189 N.J. 166 (2017).

Accordingly, the primary issue in most automobile accident cases is whether or not the plaintiff has sustained a “permanent injury” so as to satisfy the verbal threshold. The plaintiff will usually rely on the testimony of the treating doctor and plaintiff's medical examination (PME). The defendant will rely on the defendant's medical examination (DME). Either party may rely upon the results of diagnostic testing, either to prove or disprove the existence of a permanent injury.

Of course, either party can produce the doctors who treated the plaintiff or the radiologists who interpreted the diagnostic procedures. However, in most cases, it is much too expensive and time-consuming to produce every doctor. Accordingly, the question arises as to whether any of the doctors who testify (treating doctors, PME or DME) may rely upon or refer to the reports of non-testifying expert witnesses.

The New Jersey Rules of Evidence provide that an expert witness may testify in the form of an opinion “if scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue.” N.J.R.E. 702. The expert's opinion may be based upon facts made known to the expert before the hearing; however, the facts need not be admissible in evidence “if of a type reasonably relied upon by experts in the particular field in forming opinions.” N.J.R.E. 703.

Under these rules of evidence, experts may give the reasons for their opinions and the sources upon which they rely; however, expert testimony may not be used as a vehicle to introduce inadmissible evidence. In other words, expert witnesses may testify that they relied upon the reports of non-testifying experts in reaching their opinions, but they cannot reveal the contents of those reports.

The reason for the inadmissibility of the reports of non-testifying experts is simple. They are out-of-court statements (otherwise known as “hearsay”) that are not subject to cross-examination.

There has been a series of precedential opinions dealing with the opinions of non-testifying experts. In Brun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006), the plaintiff, Marie Brun, sustained injuries to her lower back in an automobile accident. She was treated by a chiropractor (Dr. Richard Cory). She underwent an MRI which was read by Dr. Steven Meyerson, a radiologist at Union Imaging Center, and which revealed a bulge at L4-L5 and a herniation at L5-S1. Based upon his physical examination and the results of the MRI, Dr. Corey concluded that Ms. Brun sustained permanent injuries causally related to the motor vehicle accident.

Prior to trial, the defendant moved in limine to bar Dr. Corey's testimony because he was not qualified to read MRIs. The trial court ruled that “before Dr. Corey could testify as to the MRI findings, a radiologist who was qualified to interpret MRIs would have to be called.”

Dr. Meyerson, the radiologist who read the MRI, had not been employed by Union Imaging for three years and the plaintiff attempted to produce Dr. Howard Kessler, the owner of the company. Unfortunately, Dr. Kessler's opinion differed from the opinion of Dr. Meyerson.

The trial court held that Dr. Kessler's testimony was a huge “surprise” that prejudiced the defendant. Accordingly, the court dismissed the complaint since there was no admissible evidence that the plaintiff sustained a permanent injury.

The Appellate Division felt that a dismissal with prejudice was “unwarranted.” Instead, the trial court should have granted a mistrial. Accordingly, the appellate court reversed and remanded for a new trial.

Nonetheless, the Appellate Division agreed with the trial court that the “interpretation of an MRI may be made only by a physician qualified to read such films and that the MRI report could not be bootstrapped into evidence through Dr. Corey's testimony.” The appellate court noted that Dr. Corey's opinion was “substantially reliant” on Dr. Meyerson's interpretation of the MRI films. Thus, if the court allowed Dr. Corey to testify as to the existence of a herniation, it would have permitted “the admission of the non-admissible hearsay of a non-testifying expert.”

In Agha v. Feiner, 198 N.J. 50 (2009), the Supreme Court considered “the substantive admissibility of an MRI report prepared by a non-testifying radiologist and relied on by plaintiff's testifying physicians.” The plaintiff, Mahmoud Agha, injured his back in an automobile accident. He claimed that he sustained a permanent injury that satisfied the verbal threshold under the Automobile Insurance Cost Reduction Act (AICRA). He was treated by Dr. Adam Awari, a chiropractor. He underwent an MRI which was read by Dr. Default, a radiologist, and which showed a herniated disc at L5-S1.

At the trial, the plaintiff produced Dr. Awari, who testified that he cannot read MRI films; however, he relied upon the report of Dr. Default in reaching his conclusion that Agha had sustained a permanent injury. In addition, the plaintiff produced Dr. Thomas Ragukonis, an anesthesiologist specializing in pain management, who testified that he was qualified to read MRIs but did not read the films in this case.

The defendant requested a limiting instruction that the radiologist's report was not admissible to prove the existence of a herniated disc because Dr. Awari was not qualified to read an MRI and because Dr. Ragukonis, although qualified, did not do so. The trial court denied the defendant's request because, under Evidence Rule 703, the report of a radiologist is the type of data that is “reasonably relied upon” by an expert witness. Accordingly, the trial court concluded that the plaintiff's experts had provided sufficient evidence for a jury to determine that the plaintiff had sustained a permanent injury.

The Appellate Division reversed because “an MRI report may not be admitted under N.J.R.E. 703 without the testimony of a qualified physician.” The Supreme Court reversed on other grounds but agreed with the Appellate Division that “only an expert qualified to interpret an MRI” could testify as to the content of a report. The Supreme Court noted that a plaintiff cannot “bootstrap” the findings of an MRI into evidence through the testimony of an unqualified expert. In this case, neither the chiropractor (who was not able to read MRI films) nor the anesthesiologist (who did not read the films) was qualified to testify.

In James v. Ruiz, 440 N.J. Super. 45 (App. Div. 2015), the Appellate Division addressed the propriety of questioning expert witnesses, on direct examination or cross examination, whether their opinions are consistent with the reports of non-testifying experts. The plaintiff, William James, was injured in an automobile accident. He was treated by an orthopedist who ordered a CT scan of his lumbar spine. Dr. Amerigo Falciani, a radiologist, interpreted the scan and reported a diffuse disc bulge at L4-L5.

James was examined in his behalf by Dr. Stephen Zabinski, an orthopedist, who personally reviewed the CT scan and confirmed the bulging disc. He was also examined by Dr. John Cristini on behalf of the defense who concluded that there was no evidence of a herniated disc. Thus, the two expert witnesses, both of whom were qualified to review CT scans, had divergent opinions as to whether the plaintiff sustained a permanent injury.

The plaintiff did not produce Dr. Falciani, the radiologist, at trial. Instead, his attorney attempted to ask Dr. Zabinski on direct examination whether his opinion was “consistent” with the report of the radiologist. In addition, upon cross examination, he attempted to ask Dr. Cristini whether his opinion was “inconsistent” with the radiologist.

The trial court noted that neither party had called the radiologist to testify. Thus, his report was merely the hearsay opinions of a non-testifying expert. Under the circumstances, the plaintiff could not rely on the report of Dr. Falciani as a “tie breaker” to provide the jury with a third opinion that was favorable to the plaintiff.

Upon appeal, the Appellate Division agreed that a testifying expert cannot refer to the findings of a non-testifying expert, especially in a verbal threshold case where the opinions of the radiologist dealt with complex medical issues. Thus, it was improper for the plaintiff's attorney to pose questions about the “consistency” or “inconsistency” of the testifying expert's opinion with the findings of a non-testifying expert.

In the recent case of Hayes v. Delamotte, 231 N.J. 373 (2018), the plaintiff, Doreen Hayes, claimed that she sustained a permanent cervical injury in an automobile accident that resulted in a spinal fusion. The defendant had her examined by Dr. Arthur Vasen, an orthopedic surgeon, who testified that she did not sustain a permanent injury. Dr. Vasen relied, in part, upon the reports of non-testifying doctors that there was “a problem” at the location of the plaintiff's injury. (The court did not identify the “problem”; however, the records indicate that the plaintiff had pre-existing syrinx in her thoracic spine and a prior neck injury that required surgery.)

At trial, the plaintiff moved in limine to bar Dr. Vasen from referring to the reports of non-testifying doctors. However, the trial court permitted the testimony with the limiting instruction that the jury was not to consider the reports “as substantive proof of the contents of those statements.”

The case had a tortured procedural history including two trials and two appeals. However, the Supreme Court, in reversing the Appellate Division and reinstating the jury verdict after the second trial, agreed with Agha and James that “an expert witness should not be allowed to relate the opinions of a non-testifying expert merely because those opinions are congruent with the ones he has reached.”

Finally, in another recent opinion, T.L. v. Goldberg, 453 N.J. Super. 539 (App. Div. 2018), the Appellate Division reversed and remanded a medical malpractice case because a physician's trial testimony was “materially changed” from his answers to interrogatories. Since the case must be retried, the court provided some guidance with respect to the testimony of Dr. Barbara Zio, the defendant's psychiatrist, who made multiple references to inadmissible evidence.

The court confirmed the principles in Agha, James and Hayes that expert testimony “should not be used as a vehicle for the wholesale (introduction) of otherwise inadmissible evidence.” Thus, a litigant may not introduce the report of an out-of-court expert for its “truth” or to “bolster” the opinion of the testifying expert.