A New Jersey court has banned the practice of expert witnesses improperly testifying about the opinion of other experts during trial. Known as bootstrapping, personal injury lawyers use it to take advantage of expert witnesses’ knowledge of opinions of other experts who are not present at trial, effectively getting in evidence that was not approved prior to the start of trial. Last week, the New Jersey Appellate Division made an effort to stop bootstrapping by forbidding attorneys from asking experts about other witnesses not on the stand.
Plaintiff Attempts to Bootstrap Medical Expert in New Jersey Car Accident Lawsuit
The ruling against bootstrapping comes from the New Jersey case of James v Ruiz in which William James attempted to collect significant financial damages against Rolinda Ruiz who backed into his vehicle at a toll booth station and allegedly caused a permanent neck injury. In an effort to highlight the extent of the injuries he suffered, Mr. James called as an expert witness Dr. Stephen Zabinski, a certified orthopedic surgeon, to testify about the extent of the plaintiff’s injuries. Dr. Zabinski was called to testify about an apparent bulge in James’ neck revealed in a CT scan performed and reported on by Dr. Amerigo Falciani, a radiologist who was not called to testify during the trial.
After asking Dr. Zabinski to point out the disk bulge on the CT scan, James’ attorney asked the expert whether or not his observation was consistent with the report filed by Dr. Falciani. Defense attorneys objected, and asked the trial judge to omit any mention of an expert witness who would not take the stand during trial. When a defense expert, Dr. John Cristini, disagreed with Dr. Zabinski’s opinion, James’ attorney again attempted to reference the Falciani report, and was again stopped by the judge who told the lawyer, “You’re not going to back door the radiologist’s opinion into this case. He’s not here to testify.”
The issue came up again when James’ attorney attempted to reference Zabinski’s confirmation of the Falciani report during closing arguments. Again, Ruiz’s attorney objected and again the judge agreed, this time telling jurors to disregard, “whatever a radiologist might have determined,” before adding, “The radiologist did not testify here. We are talking about the testimony of Dr. Zabinski and the testimony of Dr. Cristini.” The jury returned a unanimous verdict in favor of the defendant Rolinda Ruiz having found no evidence of a permanent injury caused to Mr. James by the accident. On appeal James’ lawyer alleged that the trial judge had improperly restricted his expert’s testimony by forbidding all mention of the radiologist’s report.
New Jersey Appellate Court Prohibits Expert Witness Bootstrapping
Judge Jack Sabatino, writing for the majority of New Jersey’s Appellate Division Court, affirmed the trial court’s decision to prohibit the type of expert witness bootstrapping testimony that would have admitted discussion of the non-testifying radiologist’s report. According to Judge Sabatino, lawyers in New Jersey would no longer be allowed to ask an expert witness called in a civil trial whether or not findings on consistent with a non-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.” Judge Sabatino also disallowed expert witness bootstrapping when the purpose was to impeach credibility by one expert by referencing the work of another.
Judge Sabatino defended the argument by pointing out that having one witness testify about the position of another witness is impermissible hearsay, but courts have allowed the practice for experts as a means of validating testimony. Although it had become commonplace, Judge Sabatino put a stop to the practice of bootstrapping by disallowing any effort to circumvent hearsay rules, even when attorneys are attempting to reinforce expert testimony by demonstrating consistency with other experts in the field. Finding that allowing expert testimony “through the proverbial ‘back door’” via bootstrapping was in violation of New Jersey’s rules of evidence, the state appellate division instituted a prohibition on the practice that will largely effect plaintiff attorneys in personal injury cases who frequently employ the tactic.
