DOCKET NO. A-4658-10T4 (N.J. Super. May. 30, 2012)

DOCKET NO. A-4658-10T4


MATTHEW RADBILL, Plaintiff-Appellant, v. ANNMARIE MASCOLO, Defendant-Respondent.

Mark B. Frost argued the cause for appellant (Mark B. Frost & Associates, attorneys; Ryan Lockman, on the briefs). Yvette D. Cooper argued the cause for respondent (Law Office of Gregory J. Sutton, attorneys; Ms. Cooper, on the brief).



Before Judges Alvarez and Skillman.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3146-09.

Mark B. Frost argued the cause for appellant (Mark B. Frost & Associates, attorneys; Ryan Lockman, on the briefs).

Yvette D. Cooper argued the cause for respondent (Law Office of Gregory J. Sutton, attorneys; Ms. Cooper, on the brief). PER CURIAM

Plaintiff appeals from a judgment memorializing a jury verdict of no cause of action in an automobile negligence action. We reverse because defense counsel improperly placed before the jury inadmissible medical evidence in the guise of using that evidence to refresh plaintiff's recollection regarding his past medical treatment.

On June 27, 2007, a car being driven by plaintiff ran into the back of the car being driven by defendant. Defendant stipulated that her negligence was the sole cause of the accident. It was also undisputed that plaintiff had a herniated disk for which he had disk surgery approximately a year after the automobile accident, on July 29, 2008. Thus, the only issues at trial were whether the accident was a proximate cause of plaintiff's herniated disk, and if so, what was fair and reasonable compensation for that injury.

The only two witnesses at trial were plaintiff and the orthopedic surgeon who performed the disk surgery, Dr. David H. Clements, III. Dr. Clements' testimony was presented to the jury by means of a de bene esse deposition.

Plaintiff, who was twenty-four years old at the time, testified that although he felt soreness in various areas of his body, including his lower back, on the day of the accident, he did not seek immediate medical attention. However, when the pain in his lower back intensified over the next week, he went to Dr. Stephen Lesse, a chiropractor who he had gone to for treatment of a shoulder injury while in high school, before having surgery on that shoulder his senior year. Plaintiff denied having been treated by Dr. Lesse for a back injury while in high school.

Dr. Lesse treated plaintiff by giving him ultrasound and back manipulations for approximately a month until plaintiff left New Jersey in early August to attend law school in Florida. Plaintiff claimed that he suffered serious pain and discomfort in his back, radiating down his leg, during his first year of law school, but did not receive any additional medical treatment until he returned to New Jersey at the end of the year. At that time, in May 2008, plaintiff went to Dr. Clements, who had him get an MRI and then referred him to a pain specialist who administered a series of cortisone injections into his back.

After three of those injections administered over a four-week period failed to provide plaintiff any substantial relief, Dr. Clements performed disk surgery upon him on July 29, 2008. This surgery, described by Dr. Clements as a "lumbar microdiscectomy," revealed that part of plaintiff's disk had broken off and was pressing against his nerve. Dr. Clements expressed the opinion that this disk herniation was caused by plaintiff's June 27, 2007 automobile accident.

Although the surgery provided plaintiff with substantial relief, he claims to still suffer discomfort and weakness in his back and an inability to engage in recreational and other activities he had engaged in before the accident. According to plaintiff, this discomfort and limitation upon his activities continued until the time of trial.

On cross-examination, defense counsel undertook to attack plaintiff's testimony that he had been treated by Dr. Lesse solely for a shoulder injury, and not for an injury to his back, before the automobile accident. Defense counsel confronted plaintiff with notes that he had subpoenaed from Dr. Lesse's office, in particular, a chart with handwritten notes under thirty-five vertical columns, with a series of dates listed in the first column. Defense counsel focused plaintiff's attention upon a column in the middle of the page that had what appeared to be a circled "L5" for nine dates. Defense counsel then proceeded with the following cross-examination:

Q. And it looks like a chart[,] correct?
A. Yes.
Q. Okay. And there's a bunch of columns and it looks like there's a column for date[,] correct?
A. Yes.
Q. Okay. And there looks like there's a lot of different columns, but right in the middle and it's highlighted for you, it says lumbar[,] correct?
A. Yes.
Q. Okay. I just want to refer you to a date that's marked, it's May 17th, 1999. Do you see that?
A. Let me see. Yes.
Q. Okay.
[Plaintiff's counsel]: Judge, I'm going to object at this time. I mean, this is not his record. This is a doctor's record. She's cross examining from a physician's record. I mean, I'm allowing [defense counsel] latitude here, but these aren't his records. I mean, you're going to ask him to read his records and decipher what he wrote, that is what Dr. Lesse wrote. I mean, that's the basis of my objection.
THE COURT: Counsel?
[Defense counsel]: Right now, it's for -- it's marked for identification purposes. I'm laying a foundation for my questioning with regard to whether he recalls a treatment on a certain date and to have the record in front of him.
[Plaintiff's counsel]: Well --
THE COURT: Well, would it be less complicated to simply have the record in front of him and indicate that the doctor has a notation that there was treatment rendered on such and such -- and such and such a date?
[Defense counsel]: I can do that.
THE COURT: Why don't we go that way? I think that takes care of [plaintiff's counsel's] objection and he's not reading from the report other than to confirm that that is what it says.
[Defense counsel]: And that's all I'm trying to do. I was just trying to direct him to that date, Your Honor.
[Defense counsel]: If I understand your --
BY [Defense counsel]:
Q. So, and there's a note under lumbar. It's circled. There's a circle L-5. Do you see that, Matt?
A. Yes, yes.
Q. Okay. Do you recall having any chiropractic manipulation on your lumbar spine on May 17th of '99?
A. No, I don't remember.
Q. And again on October 12th of 1999, there's a L-5 notation. Do you recall having any chiropractic manipulation on your L-5 or lower back at that time?
A. I mean, I'm reading it here, but it was 11 years ago.
Q. Does that refresh your recollection?
A. Yes, no, I don't remember.
Q. Okay. And do you recall on December 6th of 1999 having any manipulations on your L-5 at that time?
A. No.
Q. And again [] it looks like August 28th of 2000, do you recall having any manipulation on your lumbar spine at that time?
A. No.
Q. And again on August 29th of 2000, do you recall having any final [sic] manipulation on your L-5?
A. No.
Q. And on August 31st of 2000, do you recall having any spinal manipulation on your L-5?
A. No.
Q. And on September 25th of 2000, do you recall any spinal manipulation on your L-5?
A. No.
Q. And on October 12th of 2000, do you recall having any spinal manipulation on your L-5?
A. No.
Q. And on December 27th of '01, again do you recall any spinal manipulation on your L-5?
A. No.
Q. Once again, I'd like to turn your attention to what is the page before that. Do you recall some time in 2000 telling Dr. Lesse that you had lower back acute pain across your L-5, S-1?
A. I don't -- I don't know what page I'm on right now. I'm sorry.
Q. It's the second page with the note.
A. So, it's like here with the note or the --
[Plaintiff's counsel]: Judge?
THE COURT: Hold on one second. There's an objection.
[Plaintiff's counsel]: Again, I mean, what we're doing is we're having the witness read notes of the doctor. I mean, there's -- this is not his record. She can ask him clearly without this document that does he recall being treated for these documents or for these injuries back in --
THE COURT: I don't have a problem with the reference to the actual report.
[Plaintiff's counsel]: Okay.
THE COURT: I think Counsel has been handling it properly by just asking the question as you posed it. I'm going to leave the report there in case it's needed, but why don't you move on in the same manner that you thus far moved?
[Defense counsel]: Thank you, Your Honor.
BY [Defense counsel]:
Q. Mr. Radbill, do you recall in some time in 2000 telling Dr. Lesse that you had low back acute pain across your L-5, S-1?
A. Are you referring me to that?
Q. I'm asking if you recall that.
A. No, I don't remember anything --
Q. Okay.
A. -- 10 years ago.
Q. Do you remember ever telling Dr. Lesse that you couldn't put weight on your legs?
A. No.
Q. Do you ever -- do you recall telling Dr. Lesse in 2000 that you couldn't lift?
A. No.
Q. Now, did Dr. Lesse ever -- do you recall Dr. Lesse giving any type of diagnosis with regard to your lower back before 2007?
A. No.
Q. Did Dr. Lesse ever tell you you had some kind of lumbar disk compression?
A. No.

Defense counsel did not call Dr. Lesse or any employee of his office to explain the source or meaning of the handwritten notations used in cross-examining plaintiff or attempt to introduce any of those documents into evidence.

Plaintiff filed a motion for a new trial based on defense counsel's alleged improper use on cross-examination of the notes subpoenaed from Dr. Lesse's office. The trial court denied the motion, stating:

. . . The document that we're referring to or the Dr. Lesse notes, they were used under 612 to refresh recollection. when that recollection was not refreshed, the notes were properly used under 803(C)-5.
Although contrary to the plaintiff's contention, at least in the papers, the Court notes indicate that the contents of those notes were not read. The witness was directed to various portions in order to focus the cross examination and to aid him in formulating his responses. That procedure is proper.
Even if the actual document had been read to the jury, which it was not, 803(C)-5 allows same for the following reasons:
To impeach his testimony, the witness was confronted with the statement contained and Dr. Lesse's report directly attributable to him. Rule 803(C)-3 and 803(C)-4 allow as hearsay exceptions made by a declarant for purposes of medical diagnosis or treatment and of bodily health. Therefore, the statements were admissible and although, they were not, could have been read to the jury under 803(C)-5.
The statements of this witness were properly recorded under 803(C)-6 in the doctor's report and not inadmiss[i]ble included hearsay under C-3 and C-4.
Finally, the report was allowed to be identified, although not in evidence, to provide context to the date, time, and circumstances of the giving of the statement under 613-B and 607.

N.J.R.E. 612 allows the use of a writing, such as the chart notes from Dr. Lesse's office, to refresh a witness's recollection. However, when a writing is used for this purpose, "[t]he admissible evidence is the recollection of the witness, and not the extrinsic paper." State v. Carter, 91 N.J. 86, 123 (1982). Therefore, a trial court has an obligation to prevent a witness or party "from putting into the record the contents of an otherwise inadmissible writing under the guise of refreshing recollection." State v. Carabello, 330 N.J. Super. 545, 557-58 (App. Div. 2000).

Consistent with these principles, defense counsel could have presented plaintiff with Dr. Lesse's chart notes, preferably outside the presence of the jury, to see whether they refreshed his recollection concerning any prior treatment of his back by Dr. Lesse. However, plaintiff made it very clear that those notes did not refresh his recollection. Nevertheless, by reading those notes in front of the jury, ostensibly to refresh plaintiff's recollection, defense counsel presented the apparent contents of those notes to the jury without introducing them into evidence, for the purpose of showing that plaintiff, contrary to his testimony, had undergone prior treatment of his back by Dr. Lesse. This was clearly improper.

In denying plaintiff's motion for a new trial, the trial court concluded that even if Dr. Lesse's chart notes did not refresh plaintiff's recollection, they would have been admissible under several exceptions to the rule against hearsay and thus any impropriety in the use of those notes for the ostensible purpose of refreshing plaintiff's recollection was harmless error. We conclude that defendant failed to establish the preconditions for admission of the notes subpoenaed from Dr. Lesse's office under any of the hearsay exceptions relied upon by the trial court, and therefore, the improper use of those notes in cross-examining plaintiff constituted reversible error.

The first hearsay exception the trial court relied upon was the exception for records of regularly conducted activity set forth in N.J.R.E. 803(c)(6), which authorizes the admission into evidence of:

A statement contained in a writing or other record of acts, events, conditions, and, subject to Rule 808, opinions or diagnoses, made at or near the time of observation by a person with actual knowledge or from information supplied by such a person, if the writing or other record was made in the regular course of business and it was the regular practice of that business to make it, unless the sources of information or the method, purpose or circumstances of preparation indicate that it is not trustworthy.
To introduce a document under this exception, "the proponent must satisfy three conditions:
'First, the writing must be made in the regular course of business. Second, it must be prepared within a short time of the act, condition or event being described. Finally, the source of the information and the method and circumstances of the
preparation of the writing must justify allowing it into evidence.'"
[State v. Sweet, 195 N.J. 357, 370 (2008) (quoting State v. Matulewicz, 101 N.J. 27, 29 (1985).]

Defense counsel did not present any evidence concerning the method of preparation of the chart notes subpoenaed from Dr. Lesse's office. The record does not indicate when those notes were prepared, who prepared them, or what they mean. The document that defense counsel read in front of the jury, ostensibly for the purpose of refreshing plaintiff's recollection, consists of partially illegible and otherwise unintelligible handwritten notations. Although the column in the middle of the chart that defense counsel used in cross-examining plaintiff could be read to indicate that some sort of treatment was provided to the L5 area of plaintiff's lumbar spine, this does not mean plaintiff complained to Dr. Lesse about pain and discomfort in that area. Dr. Lesse could have simply performed a chiropractic manipulation of plaintiff's spine to relieve symptoms in another area of his body. Moreover, it is not self-evident that Dr. Lesse's chart notes are business records that could be admitted under N.J.R.E. 803(c)(6). Defense counsel had the obligation to lay the foundation for their admission under this hearsay exception, which he failed to do.

We note that when plaintiff went to Dr. Lesse for treatment the practice of chiropracty was defined by the Legislature as "[a] system of adjusting the articulations of the spinal column by manipulation thereof," former N.J.S.A. 45:9-14.5 (amended by L. 2009, c. 332, § 1), and that a chiropractor could only treat "an extra-spinal condition," such as an injured shoulder, when there was a "logical nexus" between that condition and "a condition of the spine." Bedford v. Riello, 195 N.J. 210, 226 (2008).

The second hearsay exception the trial court relied upon in concluding that the notes defendant subpoenaed from Dr. Lesse would have been admissible, even if they had not been improperly used for the purported purpose of refreshing plaintiff's recollection, was the exception for recorded recollection set forth in N.J.R.E. 803(c)(5), which provides in pertinent part:

A statement concerning a matter about which the witness is unable to testify fully and accurately because of insufficient present recollection if the statement is contained in a writing or other record which (A) was made at a time when the fact recorded actually occurred or was fresh in the memory of the witness, and (B) was made by the witness or under the witness' direction or by some other person for the purpose of recording the statement at the time it was made, and (C) the statement concerns a matter of which the witness had knowledge when it was made, unless the circumstances indicate that the statement is not trustworthy; . . . .
This exception is clearly inapplicable to Dr. Lesse's notes because those notes do not contain any statements by plaintiff. Instead, they contain only notations and statements by Dr. Lesse or an assistant working under him. It is possible those notations and statements reflected Dr. Lesse's understanding of statements made to him by plaintiff, but there is no way of making this determination simply on the face of the subpoenaed documents.

The third hearsay exception the trial court relied upon was the exception for statements for the purposes of medical treatment or diagnosis set forth in N.J.R.E. 803(c)(4) which provides:

Statements made in good faith for purposes of medical diagnosis or treatment which describe medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof to the extent that the statements are reasonably pertinent to diagnosis or treatment.
However, as previously discussed, Dr. Lesse's notes do not contain statements by plaintiff. They are instead statements by Dr. Lesse or an assistant that may in part reflect their understanding of statements made by plaintiff. Therefore, in the absence of testimony by Dr. Lesse concerning the source of the statements in those notes, there was not an adequate foundation for their admission. See Dalton v. Barone, 310 N.J. Super. 375, 378 (App. Div. 1998).

Accordingly, the judgment in defendant's favor is reversed, and the case is remanded for a new trial on damages.

I hereby certify that the foregoing is a true copy of the original on file in my office.