Konop v. Rosen, 425 N.J. Super. 391 (App. Div. 2012). Trial lawyers and appellate lawyers take heed! The Appellate Division, speaking through an encyclopedic opinion by Judge Messano, has issued one of the relatively rare appellate opinions about the application of the hearsay rule and a number of its exceptions.
This was a medical malpractice case. A Law Division judge granted summary judgment to defendant after concluding that a notation made by a different doctor in his consultation report when plaintiff was admitted to the hospital was inadmissible hearsay. There was evidence, however, that the doctor who wrote the note got the information in it from defendant. The issue actually involved “hearsay within hearsay,” since the report itself was hearsay and the notation within it was argued to be hearsay as well. The parties agreed that if the notation were inadmissible, summary judgment was required.
Plaintiff appealed, and the Appellate Division reversed and remanded for further proceedings, including a potential trial. The standard of review for decisions about evidence is normally abuse of discretion. But where the lower court fails to apply the proper legal test, review is de novo.
Judge Messano canvassed a number of cases, including some New Jersey cases that preceded the adoption of the New Jersey Rules of Evidence and some cases under the Federal Rules of Evidence (one of which involved “circumstances strikingly similar to this case”), and discussed in detail various hearsay exceptions on which plaintiff had relied. The first of those exceptions, the business records exception, Evidence Rule 803(c)(6), made the report itself admissible. The question then came down to the notation itself.
Judge Messano determined that the notation was hearsay. He rejected (1) plaintiff’s reliance on Evidence Rule 803(c)(5), past recollection recorded, (2) plaintiff’s assertion that the notation was admissible under Evidence Rule 703, as a basis of plaintiff’s expert opinion, (3) plaintiff’s position that the notation was a statement against defendant’s interest, under Evidence Rule 803(c)(25), and (4) plaintiff’s argument that the notation was admissible as substantive evidence under Evidence Rule 803(b)(1), a statement admissible against a party as that party’s own statement. Nonetheless, the panel ruled that the notation would be admissible if a jury were to find by a preponderance of the evidence that defendant made the statement that was allegedly the basis for the notation.
A capsule summary cannot capture the painstaking detail with which Judge Messano explicated the layered evidence issues presented, or the reasoning that led to the ultimate result. The opinion is well worth reading in full by anyone who tries case or handles appeals of evidentiary issues.