The recent Appellate Division ruling in James v. Ruiz, A-3543-13T2 (App. Div. 2015) has addressed the ever-present issue of 鈥渂ootstrapping鈥� through expert testimony. Expert 鈥渂ootstrapping鈥� involves one expert testifying about the opinions of other experts who do not testify. Often, the testifying expert鈥檚 sole purpose is to have the jury consider for their truth the absent expert鈥檚 hearsay opinions about complex and disputed matters.
The Court, in James v. Ruiz, found that plaintiff鈥檚 attempt to have an expert testify as to a non-testifying radiologist鈥檚 interpretation of a CT scan improper and directed the jury to consider only the opinions offered by the experts actually testifying before them. The trial Judge chastised plaintiff鈥檚 attorney for his attempt to backdoor the radiologist鈥檚 testimony without having him actually appear to testify.
After limiting plaintiff鈥檚 proofs by not allowing the introduction of the radiologist鈥檚 opinions, the jury returned a verdict in favor of the defendant. Plaintiff filed an appeal.
In affirming the trial court鈥檚 limiting instructions, the Appellate Division noted plaintiff鈥檚 attempt to 鈥済et鈥� the non-testifying radiologist鈥檚 opinion through direct examination of their orthopedic expert, and cross-examination of the defendant鈥檚 orthopedic expert was impermissible hearsay.
This decision puts attorneys on notice that attempting to get non-testifying expert opinions into evidence through a testifying expert will likely fail. Out of extreme caution, if a party wants to ensure that a jury hears an expert's opinion, they should call the expert to testify.