                  NOT FOR PUBLICATION WITHOUT THE
                 APPROVAL OF THE APPELLATE DIVISION

                                    SUPERIOR COURT OF NEW JERSEY
                                    APPELLATE DIVISION
                                    DOCKET NO. A-3543-13T2

WILLIAM JAMES,
                                       APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                            March 25, 2015
v.
                                         APPELLATE DIVISION
ROSALIND RUIZ,

     Defendant-Respondent.
________________________________

         Argued January 26, 2015 - Decided March 25, 2015

         Before Judges Sabatino, Guadagno1 and Leone.

         On appeal from the Superior Court of New
         Jersey, Law Division, Atlantic County, Docket
         No. L-8432-11.

         John L. Zaorski argued the cause for appellant
         (Cappuccio & Zaorski, LLC, attorneys; Mr.
         Zaorski and Tammy M. Maxey, on the brief).

         Chad M. Moore argued the cause for respondent
         (Hoagland, Longo, Moran, Dunst & Doukas, LLP,
         attorneys; Mr. Moore, of counsel and on the
         brief; Juliann M. Alicino, on the brief).

     The opinion of the court was delivered by

SABATINO, P.J.A.D.




1
  Judge Guadagno did not participate in oral argument. However,
with the consent of counsel, he has joined in this opinion. R.
2:13-2(b).
     We address in this appeal the propriety of questioning an

expert witness at a civil trial, either on direct or cross-

examination, about whether that testifying expert's findings are

consistent with those of a non-testifying expert who issued a

report in the course of an injured plaintiff's medical treatment.

We also consider the propriety of counsel referring to the non-

testifying expert's findings in closing argument.

     Although the general legal principles on point have been

discussed in prior cases, and the pertinent rules of evidence have

been in force for decades, there appears to be some confusion and

uneven customs in applying those principles and rules in everyday

civil trial practice.         Hence, we use this occasion to clarify

whether   questions     may    be    posed    about    the   "consistency"         or

"inconsistency" of a testifying expert's opinions with a non-

testifying   expert's       views,   and     whether   arguments     about       such

consistency or inconsistency may be advocated in closing argument

to a jury.

     We   hold   that   a    civil   trial    attorney   may   not    pose       such

consistency/inconsistency questions to a 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.             Even where the questioner's

claimed purpose is solely restricted to impeaching the credibility



                                     2                             A-3543-13T2
of an adversary's testifying expert, spotlighting that opposing

expert's disregard or rejection of the non-testifying expert's

complex and disputed opinions, we hold that such questioning

ordinarily should be disallowed under N.J.R.E. 403.                Lastly, we

hold that the closing arguments of counsel should adhere to these

restrictions, so as to prevent the jury from speculating about or

misusing an absent expert's complex and disputed findings.

      Because the trial court correctly applied these principles

here in ruling on objections at trial, we affirm.

                                      I.

      The circumstances presented in this case are quite common.

In essence, we have before us a classic dispute in an automobile

accident case over whether the plaintiff sustained a permanent

injury to his spine and thereby is entitled to pain and suffering

damages under the lawsuit limitation provision (also known as the

"verbal threshold") in the Automobile Insurance Cost Reduction Act

("AICRA"), N.J.S.A. 39:6A-1.1 to -35.

      AICRA   is   a   cost-containment     measure    that   allows   insured

drivers to pay lower premiums in exchange for a limitation on

their right to sue for noneconomic damages.              See DiProspero v.

Penn, 183 N.J. 477, 480-81 (2005).           One of the recurring issues

in   automobile    negligence   cases      involving   plaintiffs      who    are

subject to the AICRA verbal threshold is whether there is objective



                                  3                             A-3543-13T2
and persuasive proof that they suffered in a motor vehicle accident

"a   permanent    injury      within        a    reasonable       degree     of    medical

probability."     N.J.S.A. 39:6A-8(a); see also DiProspero, supra,

183 N.J. at 481.2     In many instances, such as this case, the key

issue at trial is whether such a permanent injury caused by the

accident    has   been       established,         with    both      sides     presenting

competing expert testimony on that question.

      The record here shows that plaintiff was operating his car

on July 2, 2010 on the Atlantic City Expressway.                      He stopped his

car at a toll booth behind defendant's vehicle.                       Defendant's car

then suddenly went in reverse and backed into plaintiff's car.

Defendant   ultimately        pled   guilty        to    improper    backing       up,    in

violation of N.J.S.A. 39:4-127, in municipal court.

      Plaintiff went to a local emergency room after the accident,

complaining of lower back pain.                 He then underwent treatment with

an   orthopedic   physician       for       the   lumbar    pain.          The    treating

physician   ordered      a   CT   scan      of    the    lumbar    spine,        which   was

conducted on July 21, 2010, less than three weeks after the

accident.   The CT scan was interpreted by Dr. Amerigo Falciani, a



2
  "An injury shall be considered permanent when the body part or
organ, or both, has not healed to function normally and will not
heal to function normally with further medical treatment."
N.J.S.A. 39:6A-8(a).



                                        4                                  A-3543-13T2
radiologist.       In    his    written    one-page   report,   Dr.    Falciani

determined, among other findings, that the CT scan showed a "small

diffuse [disc] bulge at the L4-L5 level."3

     Plaintiff's back pain persisted, and he was evaluated by Dr.

Stephen J. Zabinski, a Board-certified orthopedic surgeon, in

December   2012.        Among   other     things,   Dr.   Zabinski   personally

examined the CT scan that had been conducted in July 2010.                 Based

on Dr. Zabinski's review of the CT scan, he likewise concluded

that the CT scan showed disc bulging at the L4-L5 level.                       Dr.

Zabinski concluded that the lumbar disc bulge was traumatically

caused by the July 2010 car accident, and that it was a permanent

injury not likely to heal or to function normally in the future,

despite the passage of time and continued treatment.

     Plaintiff filed a lawsuit against defendant, alleging that

she had negligently caused the accident and that the accident had

caused him to sustain permanent injuries.                  Defendant did not

contest liability for the accident, but she did dispute whether

plaintiff had sustained a permanent injury that would enable him

to vault the verbal threshold.




3
  Dr. Falciani also noted in his report "mild narrowing" of the
disc space at the L1-L2 level, a condition which was not advocated
by plaintiff at trial.


                                     5                           A-3543-13T2
      At the request of the defense, a Board-certified orthopedic

surgeon, Dr. John A. Cristini, examined plaintiff in September

2012.   Dr. Cristini specifically noted Dr. Falciani's finding of

disc bulge within his first pretrial expert report, which contained

this passage:

             The CT of the lumbar spine reported by Dr.
             Falciani revealed a small diffuse broad based
             bulge at L4-5 and disc space narrowing at L1-
             2.

Dr. Cristini thereafter was provided with a CD containing the CT

scan itself, and he personally inspected it.             In a supplemental

expert report he issued in July 2013, Dr. Cristini stated:

             As part of [the treating orthopedist's]
             evaluation, CT scans were obtained.      These
             were carried out at Atlantic Medical Imaging
             and were available to me at this time on CD
             format.   The CT of the lumbar spine dated
             7/21/10 was reviewed. No evidence of disc or
             bone pathology was noted, specifically no disc
             herniation at any level was evident.        No
             spondylosis or spondylolisthesis was noted.

             [(Emphasis added).]

Although he found no "herniation" at L4-L5 from his review of the

CT   scan,   Dr.   Cristini   did   not   specifically    comment    in    his

supplemental report as to whether he agreed or disagreed with Dr.




                                    6                        A-3543-13T2
Falciani's finding of a "bulge," which he had referred to in his

first report.4

     The matter was tried as a damages-only case before Judge

James P. Savio. The critical issue was whether plaintiff had

established by a preponderance of the evidence a permanent injury

that overcame the AICRA verbal threshold.            Plaintiff relied upon

the expert testimony of Dr. Zabinski, and defendant relied on the

competing expert opinions of Dr. Cristini.               Neither side called

Dr. Falciani.

     Both plaintiff and defendant testified about the physical

impact of the accident. Plaintiff also testified about his injuries

and his course of treatment.

     Several     days     before   trial,   plaintiff's   counsel     took     the

videotaped deposition of Dr. Zabinski for use at trial in lieu of

his live testimony.        In that de bene esse deposition, Dr. Zabinski

opined,   as   he   had    in   his   expert   report,   that   plaintiff      had

sustained a permanent injury from the accident.

     During a brief portion of Dr. Zabinski's videotaped direct

examination, plaintiff's counsel asked him the following questions

and elicited the following answers:



4
  A disc herniation is generally considered "a more severe injury
than a disc bulge."    Espinal v. Arias, 391 N.J. Super. 49, 55
(App. Div.), certif. denied, 192 N.J. 482 (2007).


                                      7                          A-3543-13T2
          Q:   And, Doctor, from your own review of
               the [CT] scan, you saw the bulge at
               L4-5. Correct?

          A:   Yes.

          Q:   Was that consistent with what the
               radiologist saw in the report?

          A:   Yes.

          [(Emphasis added).]

     Defense counsel did not object to this line of testimony at

the time of the deposition.5    However, in his pretrial submission

under Rule 4:25-7, defense counsel more broadly urged the trial

court to bar plaintiff's expert from testifying "as to any opinions

of non-testifying doctors."    The defense's Rule 4:25-7 submission

also urged that Dr. Zabinski's videotaped testimony be edited and

that the court issue rulings on defense objections before trial.

Citing case law that restricts the admission of hearsay opinions

on disputed complex matters, including radiology studies, the

defense maintained that since the plaintiff's testifying expert,

Dr. Zabinski, "reviewed the [CT scan] himself," there was "no need

for him to discuss what another doctor found."


5
  Defense counsel did timely object to a different portion of Dr.
Zabinski's testimony concerning whether the radiologist had noted
any degeneration at L4-L5, which was excluded at trial and edited
out of the videotape. Later at trial, defense counsel explained
that he had not objected to the "consistency" testimony at the
deposition because Dr. Zabinski did not get into "an area that was
far more specific" in conveying Dr. Falciani's findings.


                                8                     A-3543-13T2
       The defense presented expert orthopedic testimony at trial

from     Dr.   Cristini.      For   scheduling         reasons,    Dr.     Cristini's

testimony was presented out of turn before the videotape of Dr.

Zabinski was played during plaintiff's direct case.

        Dr. Cristini told the jury that he had personally examined

the CT scan.       He was more definitive in his testimony about the

CT scan than he had been in his pretrial reports, referring to a

display of the CT scan being shown in the courtroom to the jury.

Based upon his personal review of the cross-sections of the spine,

Dr. Cristini testified that there was "no indication in [his]

opinion of any disc pathology or disc bulges or herniations at

that [L4-L5] level."          (Emphasis added).

       On direct examination, Dr. Cristini expressly repudiated the

contrary opinion of Dr. Zabinski, advising the jury that he

"disagree[d] with" his testifying counterpart's finding of a disc

bulge.       Based on this determination, along with his physical

examination of plaintiff and his "review of the medical records,"

Dr. Cristini concluded that plaintiff had not sustained a permanent

orthopedic injury from the accident.                   Notably, Dr. Cristini was

not    asked    about   Dr.    Falciani's        findings    during        his   direct

examination.

       On cross-examination, plaintiff's counsel attempted to show

that   Dr.     Cristini's     finding       of   the   absence    of   a    bulge    was



                                        9                              A-3543-13T2
inconsistent with the finding of the radiologist, Dr. Falciani.

The following exchange occurred:

           [PLAINTIFF'S COUNSEL]:  You  discussed  in
           your first report that a CT scan was done,
           correct?

           [DR. CRISTINI]:           Yes.

           Q:        And the CT scan was dated July 21st,
                     2010, correct?

           A:        I believe so.

           Q:        Okay. And in the report you also discuss
                     the results of that CT scan, correct?

           A:        The report, that's correct.

           Q:        Okay. And what did you learn from that
                     report?

           [DEFENSE COUNSEL]:        Objection.

           THE COURT:          Sustained.   The        report   is
                               hearsay. Right.

       At that point, Judge Savio had a sidebar conference with

counsel, at which the court considered more fully their positions

about the propriety of the attempted questioning.                    The judge

reasoned that the questioning of Dr. Cristini about the hearsay

opinions of the non-testifying radiologist was disallowed by case

law and the evidence rules.

       Among    other     things,     Judge    Savio    characterized         the

radiologist's interpretation of the CT scan and the finding of

disc   bulge    as    a   "complex   medical   diagnosis."        Given       that



                                     10                         A-3543-13T2
complexity, the judge ruled that the radiologist's finding of a

bulge should not be inquired about on cross-examination where, as

here, the defense expert had not relied on the radiologist's

opinion.      However, the judge did permit plaintiff's counsel to

confirm on further cross-examination of Dr. Cristini that he had

issued his first expert report without personally reviewing the

CT scan.

      Judge    Savio    rejected       plaintiff's         argument       that     defense

counsel's     failure    to     object      to    the     "consistency"          testimony

elicited from Dr. Zabinski at his videotaped deposition justified

plaintiff     probing    into    the     radiologist's           findings     on    cross-

examination       of   Dr.    Cristini.            The     judge    ruled        that     "if

[plaintiff's] purpose is to suggest to Dr. Cristini that the

radiologist had a conclusion or an opinion or a finding that's

different from Dr. Cristini, I'm not going to allow that." The

judge warned plaintiff's counsel, "You're not going to backdoor

the   radiologist's      opinion    into         this    case.     He's   not      here    to

testify."

      As    the    cross-examination             proceeded       and      drew     further

objections     because       plaintiff's         counsel    further       attempted       to

question Dr. Cristini about the absent radiologist's findings,

Judge Savio issued a cautionary instruction to the jury.                                  The

judge explained that it was not proper for them to consider



                                       11                                  A-3543-13T2
documents prepared by others that were not relied upon by the

testifying witness, Dr. Cristini.               The judge further explained

that it could not allow "Dr. Cristini to testify that someone else

examined the patient and had this particular complex diagnosis.

That would be hearsay and that would not be appropriate."

     As   noted,   plaintiff    did      not    call   the   radiologist,       Dr.

Falciani,   to   testify.      He   did   present      the   videotape    of    Dr.

Zabinski, which included the brief "consistency" question and

answer.

     The third time Dr. Falciani's findings came up was during the

summation of plaintiff's counsel.              In the course of his argument

to the jury, plaintiff's counsel stated the following, which

provoked an objection from defense counsel:

            PLAINTIFF'S COUNSEL:       [W]hat we have here
            is a CT scan that ultimately shows at L4-5,
            that there is a bulging disc. You heard Dr.
            Zabinski testify as far as what is there. You
            also heard him indicate in his testimony that
            that is consistent with what the radiologist
            saw.

            DEFENSE COUNSEL:        Objection.

            THE COURT:     Sustained.   Please disregard
            whatever con--whatever a radiologist might
            have determined.   Ladies and gentlemen, the
            radiologist did not testify here.     We are
            talking [solely] about the testimony of Dr.
            Zabinski and the testimony of Dr. Cristini.

            [(Emphasis added).]




                                    12                            A-3543-13T2
     At that point, plaintiff's counsel reminded the court that

Dr. Zabinski had testified in the video deposition about the

consistency of his findings with those of Dr. Falciani, without

any objection by defense counsel.                 Judge Savio acknowledged that

lack of objection, but nonetheless concluded that "the rule of

law" forbids plaintiff from making that consistency argument to

the jury.    The judge then instructed the jurors once again that

they should "disregard anything about the radiologist's opinion."

     After the jury          was sent out to deliberate,6 plaintiff's

counsel amplified his legal position opposing the limitation the

court had imposed on his summation.                    He beseeched the court that

he would have called the radiologist to testify, had he known

before   trial     that    he   would    not      be    able   to   argue   about      the

inconsistency      or     consistency        of   the    respective    orthopedists'

opinions with those of Dr. Falciani.                    Judge Savio reaffirmed his

rulings, although he acknowledged that the disallowance of the

references to Dr. Falciani's findings, if they were overturned on

appeal, "could have affected the outcome in this case."

     The    jury    returned     a   unanimous          verdict,    concluding        that

plaintiff had not proven a permanent injury caused by the accident,



6
  The defense has not argued in its brief that the case should
have been dismissed at the close of the proofs for failure to
surmount the verbal threshold.


                                        13                              A-3543-13T2
signifying that he was not eligible to recover noneconomic damages

under AICRA.

     This appeal followed, which solely focuses on the trial

court's   rulings    as   to   the    "consistency"   and   "inconsistency"

queries and arguments.

                                      II.

     The Basic Elements of Hearsay.

     The pivotal issues before us arise because the findings of

Dr. Falciani, the radiologist who did not testify at trial, are

hearsay, if offered for their truth.           Hearsay consists of three

classic elements:     (1) a "statement;" (2) "other than one made by

the declarant while testifying at the [present] trial or hearing;"

and (3) offered in evidence for its truth, i.e., "to prove the

truth of the matter asserted" in the statement.             N.J.R.E. 801(c).

     The third element within the hearsay definition encompasses

previously-made statements offered for their truth,7 as opposed to

statements offered for some other purpose that does not hinge upon

their truth.        As just one example, "'[w]here statements are



7
  This is commonly known as the "substantive" use of an absent
declarant's statements. See, e.g., California v. Green, 399 U.S.
149, 155, 90 S. Ct. 1930, 1933, 26 L. Ed. 2d 489, 495 (1970);
Liptak v. Rite Aid, Inc., 289 N.J. Super. 199, 218 n.6 (App. Div.
1996) (noting that defendant "offered the [hearsay] record solely
as substantive evidence (i.e., to prove the truth of the contents
thereof)").


                                     14                        A-3543-13T2
offered, not for the truthfulness of their contents, but only to

show that they were in fact made and that the listener took certain

action    as   a   result   thereof,   the   statements   are     not    deemed

inadmissible hearsay.'"       Carmona v. Resorts Int'l Hotel, Inc., 189

N.J. 354, 376 (2007) (quoting Russell v. Rutgers Cmty. Health

Plan, 280 N.J. Super. 445, 456-57 (App. Div.), certif. denied, 142

N.J. 452 (1995)).

     The long-standing policy disfavoring the admission of hearsay

in Anglo-American courts, as codified in New Jersey, instructs

that "[h]earsay is not admissible except as provided by [the

evidence] rules or by other law."        N.J.R.E. 802 (emphasis added).

This general prohibition, subject to various exceptions, reflects

that hearsay is presumptively deemed to be "untrustworthy and

unreliable."       See, e.g., One Step Up v. Sam Logistic, 419 N.J.

Super. 500, 507 (App. Div. 2011) (citation omitted).            "The hearsay

prohibition 'ensure[s] the accuracy of the factfinding process by

excluding untrustworthy statements, such as those made without the

solemnity of the oath, and not subject to cross-examination . . .

or the jury's critical observation of the declarant's demeanor and

tone.'"    Neno v. Clinton, 167 N.J. 573, 579 (2001) (quoting State

v. Engel, 99 N.J. 453, 465 (1985)).

     The risks of admitting hearsay indiscriminately are well

known.    "[S]tatements made out-of-court, not under oath, or not



                                  15                            A-3543-13T2
subject to cross-examination may suffer infirmities of perception,

memory,    and   narration    if   admitted."      Id.   at    579-80       (citing

McCormick on Evidence § 245 (5th ed. 1999)).               In addition, there

can be an aspect of unfairness, even in civil cases,8 in the

substantive      admission    of   hearsay      statements     by      an    absent

declarant, without affording the opposing party a chance to cross-

examine that person before the fact-finder.              See, e.g., Alves v.

Rosenberg, 400 N.J. Super. 553, 563-65 (App. Div. 2008) (reversing

a jury verdict and remanding for a new trial where the judge had

unfairly   allowed    the    wholesale    admission   of     numerous       hearsay

statements, thereby depriving the appellant of "the opportunity

for full and effective cross-examination at trial").

     Without question, Dr. Falciani's radiology report contains

"statements."       Those    statements    indisputably       were    made        at   a

previous time, rather than "while [Dr. Falciani was] testifying

at the trial."      N.J.R.E. 801(c).       Hence, the first two elements

of hearsay are manifestly present.              The third element —— the

substantive use of those statements for their truth —— we consider




8
  We confine our analysis in this case to civil matters, and do
not address the application of these hearsay principles to criminal
cases, where the constitutional rights of a criminal defendant
under the Confrontation Clause may be at stake. See Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004);
State v. Weaver, 219 N.J. 131 (2014).


                                   16                               A-3543-13T2
more closely, infra, when we respectively discuss the references

to Dr. Falciani's findings during plaintiff's counsel's direct

examination of Dr. Zabinski and his attempted cross-examination

of Dr. Cristini.

      Accepting, for the moment, the premise that Dr. Falciani's

findings are hearsay without yet discussing the third definitional

element, we turn to whether those findings satisfy an exception

to the hearsay rule. Since the findings are contained in a written

report, it is useful to the analysis to consider whether the report

itself would meet a hearsay exception, even though neither party

attempted to move the report into evidence.

      The Business Records Exception (N.J.R.E. 803(c)(6))

      The most fitting potential exception here is the business

record provision, N.J.R.E. 803(c)(6), which permits the admission

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.

          [(Emphasis added).]



                             17                       A-3543-13T2
     Here,      it    is   readily     evident    that     Dr.   Falciani's         report

interpreting plaintiff's CT scan was generated in the regular

course    of    professional     medical       practice,        in    connection         with

plaintiff's          treatment   and         diagnosis.              The   report         was

contemporaneous with the radiologist's review of the CT scan.

There is nothing irregular about the report, at least on its face.

Indeed,    it    appears    in   all    respects      to   be    a    routine     medical

document.       There is no indication that Dr. Falciani prepared the

report for the purposes of litigation.

     The    Complex/Disputed                 Expert        Opinion          Restriction
     (N.J.R.E. 808)

     The analysis does not stop there, however.                      Even if the other

elements of the business record exception are fulfilled, opinions

set forth within a radiologist's report may be inadmissible under

N.J.R.E.       808,     which    is     cross-referenced              within     N.J.R.E.

803(c)(6).9 N.J.R.E. 808 limits the presentation of hearsay expert

opinions to a factfinder.             Specifically, N.J.R.E. 808 directs as

follows:

               Expert opinion which is included in an
               admissible hearsay statement shall be excluded
               if the declarant has not been produced as a
               witness unless the trial judge finds that the

9
  A report, or portions of it, also may be inadmissible under
N.J.R.E. 803(c)(6) if it is shown to be "not trustworthy." Ibid.
Because trustworthiness, as shown infra, is also a consideration
under Rule 808, we subsume our discussion of that issue within the
Rule 808 analysis.


                                        18                                 A-3543-13T2
              circumstances involved in rendering the
              opinion, including the motive, duty, and
              interest of the declarant, whether litigation
              was contemplated by the declarant, the
              complexity of the subject matter, and the
              likelihood of accuracy of the opinion, tend
              to     establish     its     trustworthiness.

              [(Emphasis added).]

       The import of N.J.R.E. 808, a provision that has no analogue

in the federal rules, is that some expert opinions contained in

business records or other sources are admissible, but others are

not.   As the Rule instructs, the non-testifying expert's opinions

must     be   excluded,    unless   the   trial    judge   finds     that      the

"circumstances involved in rendering the opinion . . . tend to

establish its trustworthiness."           Ibid.    The judge must consider

the non-testifying expert's motive, duty, and interest in issuing

the opinion.       Ibid.     The judge also must consider whether the

expert declarant had litigation in mind at the time.                 Ibid.      In

addition, the judge must evaluate the "complexity" of the subject

matter    involved,    and    the   likelihood10    that   the     opinion     is


10
   This likelihood requirement in Rule 808 suggests greater
stringency than the test of simple relevance, which entails only
a mere "tendency in reason to prove or disprove any fact of
consequence to the determination in the action."    N.J.R.E. 401
(emphasis added); see State v. Deatore, 70 N.J. 100, 116 (1976)
(observing that "the test [for relevance] is broad and favors
admissibility," although it is subject to countervailing factors
under what is now N.J.R.E. 403).




                                    19                           A-3543-13T2
"accurate," ibid., including that the opinion has been generated

through an appropriate scientific or technical methodology.                   See,

e.g., Kemp v. State, 174 N.J. 412, 430 (2002) (applying the three-

part expert admissibility test of State v. Kelly11); see also

Hisenaj v. Kuehner, 194 N.J. 6, 16-17 (2008) (reaffirming and

applying the Kelly test in a civil context).

     Rule    808   codifies   limiting     concepts   articulated       by    the

Supreme Court in an earlier criminal case, State v. Matulewicz,

101 N.J. 27, 30 (1985) (establishing criteria to admit a non-

testifying     expert's       laboratory      findings     in       narcotics

prosecutions,12 noting that the inclusion of those findings within



11
   In its seminal opinion in State v. Kelly, 97 N.J. 178, 208
(1984), the Supreme Court outlined the three "basic requirements"
of expert testimony in this State, consisting of:       "(1) the
intended testimony must concern a subject matter that is beyond
the ken of the average juror; (2) the field testified to must be
at a state of the art such that an expert's testimony could be
sufficiently reliable; and (3) the witness must have sufficient
expertise to offer the intended testimony." Here, defendant does
not claim that the scientific methodology used by Dr. Falciani in
interpreting plaintiff's CT scan fails to adhere to these basic
requirements.
12
  The admissibility of such hearsay laboratory findings against
an accused has been more recently complicated by the United States
Supreme   Court's   post-Crawford    opinions   interpreting   the
Confrontation Clause. See, e.g., Bullcoming v. New Mexico, ___
U.S. ___, 131 S. Ct. 2705, 180 L. Ed. 2d 610 (2011); Melendez-Diaz
v. Massachusetts, 557 U.S. 305, 129 S. Ct. 2527, 174 L. Ed. 2d 314
(2009); State v. Williams, 219 N.J. 89 (2014). We need not concern
ourselves with those Confrontation Clause rulings in this civil
context.


                                 20                             A-3543-13T2
a business record does not automatically assure their admission

at trial).        As the Court noted in Matulewicz, case law in our

State has traditionally admitted "routine" findings of experts

contained in medical records that satisfy the business record

exception,       but    has   excluded    "diagnoses       of     complex     medical

conditions" within those records.              Id. at 32 n.1.

       We explained and applied the significant hurdles posed by

Rule 808 in Nowacki v. Community Medical Center, 279 N.J. Super.

276 (App. Div.), certif. denied, 141 N.J. 95 (1995). The plaintiff

in that case fell and was injured while climbing onto a table

during radiation treatment at a hospital. The plaintiff's hospital

records    included       certain   entries     by    non-testifying        doctors,

stating that the fractures she sustained were "pathologic" in

nature    and    therefore    not   caused     by    the   trauma    of   the   fall.

Applying the precepts of Rule 808, we concluded that these hearsay

entries within the hospital records stated "a complex diagnosis

involving       the    critical   issue   in    dispute,     as     opposed     to   an

uncontested diagnosis or insignificant issue."                  Id. at 284.

       We rejected the notion in Nowacki that the record entries

comprised supporting "facts or data" that could be discussed by

defendants' testifying experts under N.J.R.E. 703,13 and instead



13
     See our discussion of N.J.R.E. 703, infra.


                                     21                               A-3543-13T2
deemed them expert "opinions" subject to the strictures of Rule

808.     Id. at 285.        Accordingly, we upheld the trial judge's

decision to disallow references to those hearsay opinions during

the trial.     Ibid.

       If the requirements of Rule 808 are met, and a testifying

expert has reasonably relied upon the non-testifying expert's

opinions, then the testifying expert may be permitted to refer to

that absent expert's opinions in the course of explaining his or

her own opinions in court.          Macaluso v. Pleskin, 329 N.J. Super.

346, 355 (App. Div.), certif. denied, 165 N.J. 138 (2000); In re

Civil Commitment of J.M.B., 395 N.J. Super. 69, 93 (App. Div.

2007), aff’d, 197 N.J. 563, cert. denied, 558 U.S. 999, 130 S. Ct.

509, 175 L. Ed. 2d 361 (2009).             However, this pathway should not

be used as a "subterfuge to allow an expert to bolster the expert

testimony      by    reference   to    other     opinions     of    experts       not

testifying."        Richard J. Biunno, Harvey Weissbard & Alan L. Zegas,

Current N.J. Rules of Evidence, cmt. 7 on N.J.R.E. 703 (2014).

       "Facts or Data" Relied Upon By A Testifying Expert Under
       N.J.R.E. 703

       Apart   from    containing     opinions   that   may    or    may    not    be

excludable at trial under Rule 808 depending upon their complexity

and trustworthiness, a non-testifying expert's report may also

convey facts or data.         The rules of evidence, specifically Rule




                                      22                            A-3543-13T2
703, permit testifying experts to refer to such facts or data from

a hearsay or other admissible source, but subject to significant

restrictions.

     As to facts or data, N.J.R.E. 703 provides as follows:

          The facts or data in the particular case upon
          which an expert bases an opinion or inference
          may be those perceived by or made known to the
          expert at or before the hearing. If of a type
          reasonably relied upon by experts in the
          particular field in forming opinions or
          inferences upon the subject, the facts or data
          need not be admissible in evidence.

          [(Emphasis added).]

In accordance with these terms of Rule 703, and subject to other

potential rules of exclusion,14 a testifying expert may refer to

"facts or data" provided by another source, even though expressed

through a hearsay statement.    See, e.g., State v. Torres, 183 N.J.

554, 576 (2005); Riley v. Kennan, 406 N.J. Super. 281, 295 (App.

Div.), certif. denied, 200 N.J. 207 (2009).     The source may be a

non-testifying expert who examined a person, place or object, so

long as the information he or she has conveyed is "of a type




14
  For instance, the facts or data might be barred under N.J.R.E.
403 (granting judges the discretion to exclude relevant evidence
where countervailing factors such as undue prejudice or
cumulativeness "substantially" outweigh the evidence's probative
value).



                               23                      A-3543-13T2
reasonably relied upon by other experts in the particular field."

See N.J.R.E. 703.

     Our Supreme Court has stated that under N.J.R.E. 703, "a

testifying physician may apprise the trier of fact of the bases

for his or her opinion, including the opinions of other experts,"

but has cautioned that that does not "entitle a litigant to

introduce an out-of-court expert's report for its 'truth,' where

it is critical to the primary issue in the case and the adversary

objects."   Agha v. Kelly, 198 N.J. 50, 67 (2009).            Although the

Court did not cite to N.J.R.E. 808 in Agha, its observations in

this regard as to "opinions" are consistent with the principles

expressed   in   Rule   808   and   related   case   law,   which   we      have

discussed, supra, prohibiting the contested admission of complex

hearsay opinions from a non-testifying expert.

     When facts or data from a hearsay source are referred to in

the course of an expert's trial testimony, it is vital that the

factfinder consider that background information solely for the

limited purpose of understanding the basis of the testifying

expert's opinions.      Mclean v. Liberty Health Sys., 430 N.J. Super.

156, 173-74 (App. Div. 2013).            The testifying expert must not

function as a mere "conduit" for the substantive admission of

inadmissible hearsay.      Agha, supra, 198 N.J. at 63.




                                    24                        A-3543-13T2
     To summarize, the combined impact of Rules 703 and 808 is to

limit the ability of a testifying expert to convey to a jury either

(1) objective "facts or data" or (2) subjective "opinions" based

upon such facts, which have been set forth in a hearsay report

issued by a non-testifying expert.                  In either instance, the

testifying   expert      may    not   serve    as   an   improper    conduit      for

substantive declarations (whether they be objective or subjective

in nature) by a non-testifying expert source.

     Brun, Agha, and Non-Testifying Radiologists

     Two recent precedential cases —— one from our court, see Brun

v. Cardoso, 390 N.J. Super. 409, 421 (App. Div. 2006), and one

from the Supreme Court, see Agha, supra, 198 N.J. at 64 —— have

applied those limitations to the specific context of a testifying

expert   alluding   to    the    hearsay      findings    of   a   non-testifying

radiologist in a verbal threshold case.             Mainly applying Rule 808,

Brun focused on the "opinion" aspects of an absent radiologist's

findings, while Agha focused largely on the "facts or data" aspects

of the hearsay findings in applying Rule 703.                  As we will show,

the overarching principle in both of these cases was the same:                     to

disallow the substantive admission of hearsay assertions of a non-




                                      25                            A-3543-13T2
testifying radiologist for their truth, at least as to disputed

or complex matters.15

       In Brun, supra, we held that a radiologist's hearsay MRI

report diagnosing a herniated disc could not be "bootstrapped"

into    evidence     through     expert       testimony    from     a     treating

chiropractor over the objection of opposing counsel.                      390 N.J.

Super. at 421.      The chiropractor lacked the expertise to read the

MRI films himself, and instead relied on the radiologist's finding.

Ibid.         The   defense      disputed       the    absent     radiologist's

interpretation of the films.           Under those circumstances, we held

that    the   complex   nature    of    the    disputed   MRI     prohibited     an

unqualified      testifying      expert       from    conveying     the     absent

radiologist's findings to the jury.             Id. at 421-24.      In reaching

that determination, we applied Nowacki and other cases reflecting

the principles now codified in Rule 808:

              [W]e agree with the judge that, on objection,
              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   [the   testifying
              chiropractor's] testimony. Our conclusion is

15
   We need not resolve here generically whether a radiologist's
findings are most properly classified as "opinions," as "facts or
data," or as some combination of the two.      For the reasons we
present here, the classification is inconsequential to the
analysis because the guiding principles here under Rules 808 and
703 are harmonious. In any event, Dr. Falciani's disputed finding
of a disc bulge here clearly encompassed, at least to some degree,
his subjective professional opinion.


                                   26                              A-3543-13T2
not dependent on [the witness's] status as a
chiropractor but on the complexity of MRI
interpretations.    While there are numerous
cases that support the admission of medical
reports under the business records exception
to the hearsay rule . . . in [Matulewicz,
supra,] the Court made it clear that it is
"the degree of complexity of the procedures
utilized in formulating the conclusions
expressed in the [expert's] report" that
determines    its  admissibility    under   the
business records exception. 101 N.J. 27, 30.
We have held that before introducing complex
medical    reports   pursuant    to    N.J.R.E.
803(c)(6), the ability of the opposing side
to cross-examine the author of such a report
must be assured.    [Nowacki, supra, 279 N.J.
Super. at 282-83]. In Nowacki, we held that
it is "clearly established that medical
opinions in hospital records should not be
admitted under the business records exception
where the opponent will be deprived of an
opportunity to cross-examine the declarant on
a critical issue such as the basis for the
diagnosis or cause of the condition in
question." Ibid.

     Thus, Matulewicz and Nowacki provide a
basis for denying the admission of [the
radiologist's] MRI report under the business
records exception, because of the complexity
of reading MRIs and diagnosing damage to the
back and spine . . . . Indeed, in the present
case three qualified physicians all read
plaintiff's MRI in different ways, showing the
nuanced difficulty inherent in interpreting
such   images.     Additionally,   as   noted,
admitting [the radiologist's] MRI report
without calling him as a witness would deprive
defendants of the ability to cross-examine the
author of the report on the central issue of
the case, namely plaintiff's herniation, in
contravention   of    Nowacki.      In   those
circumstances, [the radiologist's] MRI report
was, on objection, inadmissible hearsay.



                   27                       A-3543-13T2
         [Brun, supra, 390 N.J. Super.        at 421-22
         (emphasis   added)   (certain         citations
         omitted).]

    In addition, we rejected plaintiff's argument in Brun that

the absent radiologist's disputed findings could be presented to

the jury under Rule 703 as "facts or data."   We observed that:

         in Day v. Lorenc, 296 N.J. Super. 262, 267
         (App. Div. 1996), we held that while a
         physician could be questioned about the report
         of another doctor that he had taken into
         consideration in formulating his opinion,
         N.J.R.E. 705, the report of the non-testifying
         doctor could not itself be admitted in
         evidence "in the absence of an independent
         basis for admissibility." Id. at 267.

              . . . .

              While we conclude that [various cases
         cited    by   Brun]    are    all    factually
         distinguishable from the present case, we
         believe that Nowacki which we have discussed
         earlier, is most on point in the circumstances
         presented here.

              It appears that [the chiropractor's]
         opinion on the plaintiff's injuries would have
         been substantially reliant on [the absent
         radiologist's] interpretation of the MRI
         films, which was the subject of considerable
         dispute.    Allowing [the chiropractor] to
         testify as to the plaintiff's herniation would
         have been to permit the admission of the non-
         admissible hearsay of a non-testifying expert.
         This attempted circumvention of the Evidence
         Rules was properly denied by the trial judge.
         To repeat, this determination is not because
         the witness was a chiropractor.      The same
         result would have obtained if the witness were




                            28                       A-3543-13T2
              a medical doctor unqualified to interpret an
              MRI.

              [Brun, supra, 390 N.J. Super. at 423-24
              (emphasis added) (citations omitted).]

      More recently, the Supreme Court in Agha, supra, 198 N.J. at

50, applied similar restrictive principles in limiting the ability

of a testifying expert to convey to a jury the complex and disputed

opinions of a non-testifying radiologist.                 The plaintiff had been

injured in a motor vehicle accident.                  Id. at 53.     At trial, the

central      dispute    was    over    whether      his   injuries    vaulted        the

permanency requirement of the AICRA verbal threshold, and, in

particular, whether the accident had caused him to sustain a

herniated disc.        Ibid.    In the course of the plaintiff's care, an

MRI study of his spine was conducted.                  Ibid.     A radiologist who

interpreted that MRI issued a report, stating that the MRI showed

a   herniated    disc    between       the    L5-S1   vertebrae.       Ibid.         The

radiologist was not called as a witness at trial.                     Over defense

counsel's     objection,       the    trial   court    allowed    plaintiff's        two

testifying experts, a chiropractor and an anesthesiologist, to

refer   in    their    testimony      to     the   radiologist's     finding        of   a

herniated disc.        Ibid.     The trial court allowed those references

to the radiologist's hearsay report under Rule 703, despite the

fact that the chiropractor was not qualified to read MRI films,




                                       29                             A-3543-13T2
and the anesthesiologist, although qualified to do so, had not

reviewed the plaintiff's films himself.        Ibid.

     The Court reaffirmed in Agha the core principle, which we

also had quoted in Brun, supra, 390 N.J. Super. at 422-23, that

"[a]lthough [Rule 703] permits a hearsay statement, such as a

medical report by a non-testifying expert, to be referred to by a

testifying expert for the purpose of apprising the jury of the

basis for his opinion, it does not allow expert testimony to serve

as 'a vehicle for the "wholesale [introduction] of otherwise

inadmissible evidence."'"      Agha, supra, 198 N.J. at 63 (quoting

State v. Vandeweaghe, 351 N.J. Super. 467, 480-81 (App. Div. 2002)

(alteration in original) (citation omitted), aff'd, 177 N.J. 229

(2003)).

     The Court elaborated that "[w]hen the purpose of [Rule 703]

is taken into consideration, the only fair interpretation is that

it was not intended as a conduit through which the jury may be

provided the results of contested out-of-court expert reports."

Ibid.   Hence, "an expert may give the reasons for his opinion and

the sources on which he relies, but that testimony does not

establish   the    substance   of   the   report   of   a   non-testifying

physician."   Id. at 64 (emphasis added).

     The Court cited with approval our opinion in Brun, and our

disapproval   of   improper    "bootstrapping"     of   a   non-testifying



                                 30                          A-3543-13T2
expert's    findings    on   complex     and   disputed    matters.        Ibid.

Consistent with Brun, the Court declared it essential that the

testifying expert possess the credentials to interpret the MRI

films, and also that he or she have personally reviewed those

films.   Id. at 67.     As the Court instructed:

            Only a physician who was qualified by
            education or training to interpret the films
            and, in fact, did so, could have brought the
            herniation conclusion to the jury as a matter
            of substance. . . . [To permit otherwise over
            an adversary's objection] would violate the
            hearsay rules; contravene the standards
            governing expert testimony by allowing an
            expert to testify beyond his qualifications;
            and, most importantly, would defeat the cross-
            examination that is the bedrock of our
            adversary system.

            [Ibid.]

     The Court further underscored in Agha the importance of a

limiting instruction to the jury in situations where a testifying

expert identifies or alludes to the sources upon which he or she

has professionally relied.          Such an instruction is necessary to

assure that the jurors do not improperly consider those outside

sources for their truth.      "[W]here an expert references the report

of a non-testifying expert to explain the basis of his or her own

opinion, it is incumbent upon the trial judge, upon request, to

instruct the jury regarding its limited use."                    Id. at 63-64

(emphasis   added)     (citations    omitted);    see     also   N.J.R.E.      105




                                    31                           A-3543-13T2
(authorizing limiting instructions).                 "Even in the absence of

[such] a request, the judge should give a limiting instruction sua

sponte where it is necessary to avoid an unjust result."                           Agha,

supra, 198 N.J. at 63-64 n.7 (citations omitted).

                                        III.

     We now apply these principles to the three events during this

trial   that   are   the     subject    of   plaintiff's       appeal:     (1)      the

testimony   by   plaintiff's      orthopedic        expert,    Dr.   Zabinski,       on

direct examination, presented to the jury without objection, that

his finding of a disc bulge was "consistent" with the finding in

the report of Dr. Falciani, the non-testifying radiologist; (2)

the disallowed attempt by plaintiff's counsel to cross-examine

defendant's testifying orthopedic expert, Dr. Cristini, about the

radiologist's contrary findings of a bulge; and (3) the disallowed

attempt by plaintiff's counsel in summation to remind the jurors

that his expert's findings of a bulge were consistent with those

of Dr. Falciani.

     In dealing with these three related episodes, the trial judge

rightly was concerned about adhering to the strictures of Rules

703 and 808 and the applicable case law, including Agha, Brun and

Nowacki.       The   judge    concluded      that   in   all    three    instances,

plaintiff's counsel was attempting to convey to the jurors the

substance of Dr. Falciani's out-of-court findings.                      Although we



                                       32                            A-3543-13T2
agree with the trial judge's perception of impropriety respecting

the     substantive     misuse   of        Dr.   Falciani's   report,     several

additional considerations, some of them procedural in nature, need

to be considered.

       We begin the assessment by emphatically stating our agreement

with    the    trial   judge   that   it     would   have   been   improper      for

plaintiff's counsel to attempt to use either the testimony of Dr.

Zabinski on direct examination, or the testimony of Dr. Cristini

on cross-examination, as a conduit for the substantive admission

of Dr. Falciani's hearsay opinion finding of a disc bulge.                       The

conduit prohibition, which the Supreme Court strongly reaffirmed

in Agha, cannot be circumvented in the guise of questions asking

about    the     "consistency"   or    "inconsistency"        of   a   testifying

expert's own opinions with the hearsay opinions of an expert who

does not testify at trial.        Such circumvention destroys the clear

objectives of the prohibition.             Cf. State v. Frisby, 174 N.J. 583

(2002) (disallowing circumvention of the hearsay prohibition by

asking a witness whether facts were "substantiated" by the hearsay

declarants that he interviewed).

       As a leading treatise on evidence law has observed, in the

analogous context of the federal rules:

               While an expert may consider remote [i.e., out
               of court] statements that are not admitted and
               may be inadmissible, he cannot properly act



                                      33                           A-3543-13T2
          as a conduit by presenting an opinion that is
          not his own opinion but that of someone else,
          and should not testify that others agree with
          him as a means of vouching for or reinforcing
          any opinion of his own that he presents, at
          least in relation to central or contested
          matters. The purpose of [F.R.E.] 703 is to
          broaden the basis for expert opinion, but it
          is not enough that an expert repeats what he
          read or was told, even if he respects or trusts
          the people he read or listened to.          The
          distinction between relying on others and
          repeating what others say can be made clearer
          as a formal matter by requiring the expert to
          say "what he thinks," not what "someone else
          thinks," and insisting on this formality is
          useful in weeding out cases where the expert
          has no independent view and being sure that
          the trier [of fact] gets the expert's own
          opinion.

          [C. Mueller & L. Kirkpatrick, Evidence § 7.10
          (4th ed. 2009) (emphasis added) (footnotes
          omitted).]

See also Krohn v. N.J. Full Ins. Underwriters, 316 N.J. Super.

477, 486 (App. Div. 1998), certif. denied, 158 N.J. 74 (1999)

(observing that "[a]n expert witness should not be allowed to

relate the opinions of a nontestifying expert merely because those

opinions are congruent with the ones he has reached").16

     To be sure, plaintiff's testifying orthopedist in this case,

Dr. Zabinski, was indisputably qualified to review the CT scan,


16
   To the extent that our opinion in Macaluso, supra,        329 N.J.
Super. at 355-56, might be read to allow such consistency   testimony
where a testifying expert has relied on the absent           expert's
findings on complex and contested matters, we disagree      with that
interpretation of the law.


                             34                       A-3543-13T2
and he properly asserted to the jury his own independent opinion

that plaintiff had suffered a disc bulge as a result of the

accident.     That opinion was countered by the contrary opinion of

the defense orthopedist, Dr. Cristini, who likewise was qualified

to read the CT scan and did so as well, reaching a different

conclusion.

      The   admissibility       problem   here    stemmed     from    plaintiff's

effort, in effect, to use the hearsay opinion of Dr. Falciani

substantively as a "tie breaker," providing the jury with a third

opinion on the hotly disputed subject.             The radiologist's opinion

was not subjected to cross-examination and the jury was not

afforded a chance to observe his testimonial demeanor.                     Instead,

the substance of his opinion was being slipped in through the

proverbial "back door."

      Moreover, Dr. Falciani's opinion finding a disc bulge at L4-

L5 was sufficiently complex in nature to trigger the limitations

of Rule 808.       We have no reason to believe that the "motives,

duties and interest[s]" of Dr. Falciani were anything other than

benign.     By all indications, his professional review of the MRI

films was presumably undertaken solely for a patient's diagnosis

and   treatment,    and   not    set   forth     with   any   contemplation        of

litigation on his part.          We also do not question the "accuracy"

of Dr. Falciani's opinions, other than to recognize, as we must,



                                    35                               A-3543-13T2
that defendant's board-certified orthopedic expert disagreed with

his findings.       Even so, we agree with the trial judge that the

disputed opinions of Dr. Falciani were sufficiently complex and

controversial to require them to be excluded from the jury's

substantive consideration.

       With respect to plaintiff's direct examination of his own

expert, Dr. Zabinski, it is clear that plaintiff asked Dr. Zabinski

about    the    "consistency"    of    his   findings   with   those    of    the

radiologist for the purpose of having the jury, by these indirect

means, to consider the substance of the radiologist's opinions

"for    their    truth."   The    query,     combined   with   the   witness's

affirmative response, triggered the third element of the basic

definition of hearsay.      See N.J.R.E. 801(c).        In fact, this manner

of inquiry is even more problematic because, through this shorthand

means, the jury is fed what is essentially the "net opinion" of

the non-testifying radiologist, without being informed of the

"whys and wherefores" that support the radiologist's consistent

finding.       See Davis v. Brickman Landscaping, Ltd., 219 N.J. 395,

410 (2014); Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.

344, 372 (2011).17


17
  That said, we discern no problem under Rule 703 or Rule 808 with
the testifying expert disclosing to the jury the bare fact that
he considered the absent radiologist's report, and not delving



                                      36                        A-3543-13T2
     A procedural wrinkle here is that defense counsel did not

object to the consistency question when it was posed at the de

bene esse deposition. See Rule 4:14-9(f).       Plaintiff asserts that

he was surprised when the trial judge instructed the jury to

disregard this testimony, and that he would have called Dr.

Falciani   (and,   presumably   would   have   paid   Dr.   Falciani      the

appropriate expert witness fee) had he known this portion of the

recorded deposition was going to be excluded. However, plaintiff's

Rule 4:25-7 submission18 did not list Dr. Falciani as a trial

witness, even provisionally.

     Moreover, once he learned that the court was disallowing use

of the consistency testimony, plaintiff did not seek an interim



into or hinting at the report's contents. Such limited testimony
may aid in showing the thoroughness of the testifying expert's
review of the matter.   Likewise, there would be no prohibition
against the testifying expert simply stating, without elaboration
revealing or suggesting the contents of the hearsay report, that
he or she "relied" on it as part of his or her review. However,
going beyond that boundary, over opposing counsel's objection, is
impermissible.
18
  Since the Rule 4:25-7 submissions are undated, we cannot tell
whether they were exchanged before or after Dr. Zabinski's
videotaped deposition.     Even assuming, however, for sake of
discussion, that plaintiff supplied his submission after Dr.
Zabinski's deposition, he should not have assumed that the trial
court would allow the substantive use of Dr. Falciani's hearsay
findings in violation of the Rules of Evidence. The defense's Rule
4:25-7 submission also placed plaintiff on notice that it would
oppose such substantive use at trial.




                                37                          A-3543-13T2
adjournment of the trial to attempt to secure Dr. Falciani's

appearance or de bene esse deposition. Although we recognize that

this was a one-day case and that the defense almost certainly

would have opposed such a mid-trial request,19 plaintiff's failure

to even seek such potential relief weakens his present claim that

the court's evidentiary ruling seriously undermined his trial

strategy.    Instead, it seems quite likely that plaintiff never

intended to call Dr. Falciani, and that he simply expected to use

the "consistency" and "inconsistency" queries of the testifying

experts as an alternative (and less onerous) method of getting the

radiologist's findings before the jury.

     Plaintiff's    attempted    cross-examination      of   the    defense

expert, Dr. Cristini, about the radiologist's contrary findings

involves a somewhat more nuanced hearsay analysis.           To the extent

the attempted cross was designed to get before the jury a second

time the substance of Dr. Falciani's findings, that effort would

similarly trigger the third element of the hearsay definition.

     We are mindful that if the proffer for the cross were less

ambitious,   the   testimony    theoretically   might    not    involve    a


19
  We offer no views as to whether such a mid-trial request would
have, or should have, been granted, recognizing that the defense
would have especially resisted it if Dr. Falciani's discovery
deposition had not been taken. Our point is simply that the
plaintiff had the ability to seek such ad hoc relief from the
court and bypassed the opportunity.


                                38                           A-3543-13T2
prohibited hearsay use under N.J.R.E. 801(c).        In particular, if

the sole limited purpose of this portion of the cross was to show

that the defense expert's review of the patient's records was

skewed or incomplete, such a line of inquiry arguably would amount

to simply impeachment of the defense expert's credibility, an

attack that does not hinge upon the actual truth of the absent

declarant's    statements.20    Such   impeachment    to    expose       the

weaknesses of an expert's testimony potentially might assist in

the search for the truth, one of the recognized goals of our law

of evidence.    N.J.R.E. 102.   See, e.g., State v. Basil, 202 N.J.

570, 591 (2010) ("Our legal system has long recognized that cross-

examination is the 'greatest legal engine ever invented for the

discovery of truth.'") (quoting Green, supra, 399 U.S. at 158, 90

S. Ct. at 1935, 26 L. Ed. 2d at 497 (citation and internal quotation

marks omitted)).



20
  See, e.g., Allendorf v. Kaiserman Enters., 266 N.J. Super. 662,
672-74 (App. Div. 1993) (permitting defendant to cross-examine
plaintiff's expert with facts concerning plaintiff's medical
history to establish the "possibility" of an alternative medical
cause of plaintiff's condition); see also Gaido v. Weiser, 227
N.J. Super. 175, 188-89 (App. Div. 1988), aff'd, 115 N.J. 310
(1989) (permitting counsel to cross-examine an expert witness, who
had testified as to cause of a patient's death, as to whether her
opinion would have been different had she considered additional
facts). Although Allendorf and Gaido involved facts (which would
be regulated under N.J.R.E. 703) rather than another expert's
opinions (which would be regulated under N.J.R.E. 808), similar
impeaching objectives would apply.


                                39                         A-3543-13T2
     The probative significance of such impeachment arguably might

be greater where, as here, the testifying expert has disregarded

or discounted findings of a physician who is part of the patient's

treatment team rather than findings of an expert physician only

retained for litigation.   The mere presence of a treating doctor's

finding in a patient's medical file, irrespective of the actual

soundness (or "truth") of that finding, could be viewed, at least

in theory, as probative, comprising a form of notice to an expert

who subsequently reviews that file.    A plaintiff might plausibly

want to argue that the defense expert should have been more

cautious before reaching a contrary finding, having been made

aware of what the treating doctor had found.

     On the other hand, we have held, as a general if not immutable

proposition, that "[i]t is improper to cross-examine a witness

about inadmissible hearsay documents21 upon which the expert has

not relied in forming his opinion."    Corcoran v. Sears Roebuck &

Co., 312 N.J. Super. 117, 130 (App. Div. 1998) (citing State v.



21
  We must note that the hearsay concerns expressed in Corcoran do
not bear upon the well-established practice of impeaching expert
witnesses with learned treatises. In that particular context, the
testifying expert need not have relied upon the treatise to be
confronted with it on cross-examination, so long as it is otherwise
established by another witness or by judicial notice to be a
reliable authority. See N.J.R.E. 803(c)(18); see also Jacober v.
St. Peter's Med. Ctr., 128 N.J. 475 (1992).



                              40                      A-3543-13T2
Pennington, 119 N.J. 547, 577-83 (1990), overruled on other grounds

by State v. Brunson, 132 N.J. 377 (1993)); see also Villanueva v.

Zimmer, 431 N.J. Super. 301, 320 (App. Div. 2013) (similarly

recognizing that "generally" it is improper to engage in such

cross-examination).

     Here, Dr. Cristini did not rely on Dr. Falciani's radiology

report, even though he repeated (albeit without commentary) the

radiologist's finding of a bulge in his own first expert report.

That said, we recognize that an expert's refusal to rely on or

consider such identified material may, in and of itself, be some

evidence of the expert's alleged bias or lack of thoroughness.

     Theory    aside,   the   probative     value    of   such     a   line    of

impeachment must be carefully weighed against the very realistic

potential     for   juror   confusion,     undue    prejudice,      and    other

countervailing considerations under N.J.R.E. 403.            If the absent

expert's opinions are not in evidence, there is a significant

danger that the jurors will misuse that proof substantively in

spite of a limiting instruction.         We have serious doubts that most

jurors in this particular context will be able to understand and

follow an instruction that advises them to consider the absent

radiologist's findings "only for impeachment, but not for their

substance."     The perils of such misuse are increased in closing

arguments, as we envision that even counsel attempting to make



                                 41                              A-3543-13T2
legitimate   reference    to    the   absent    radiologist's      findings      as

grounds for impeachment will be hard-pressed to do so without

suggesting, at least by implication, that the jury should use the

radiologist's findings for their truth as an expert tie-breaker.

     Given these dangers of misuse, and also because the proffer

of   plaintiff's    cross-examination          of     Dr.   Cristini    in      this

particular   case   was   not    limited   to        strictly   non-substantive

impeachment, we conclude that Rule 403 bars the attempted cross-

examination of Dr. Cristini.

     The defense expert was asked by opposing counsel what he

"learn[ed]" from the "results" of the CT scan, a query plainly

designed to get before the jury the substance of Dr. Falciani's

opinions.    The questions, and the responses that they sought —

inevitably delving into the substance of the CT study — was

improper because any hypothetical probative value it may have had

for impeachment was "substantially outweighed" by the risks of

unfair prejudice and juror confusion.               N.J.R.E. 403.22


22
  See, e.g., Hill v. Newman, 126 N.J. Super. 557, 563 (App. Div.
1973), certif. denied, 64 N.J. 508 (1974) (barring the admission
of a document containing hearsay and stating that, despite the
availability of a limiting instruction under the Rules, "a trial
judge can still exclude evidence [under N.J.R.E. 403] which may
have limited admissibility value if he feels that a cautionary or
limiting instruction will not neutralize the prejudice engendered
by such evidence"); State v. Collier, 316 N.J. Super. 181, 197
(App. Div. 1998), aff'd o.b., 162 N.J. 27 (1999) (noting that the



                                  42                              A-3543-13T2
      Although we do not categorically rule out in all cases the

strictly-impeachment use of a treating expert's contrary hearsay

findings during the cross-examination of a testifying expert, we

agree that the cross-examination here improperly sought to elicit

the contents of Dr. Falciani's opinions for their truth. Indeed,

it   is    well    settled       that    "[t]he      law   places    limits     on    cross-

examination for reasons of both practicality and logic." State v.

Silva, 131 N.J. 438, 444 (1992), aff’d, 131 N.J. 438 (1993); see

also 1 McCormick on Evidence § 49 (Strong ed., 4th ed. 1992)

(noting     that        considerations          of    "confusion      of     the     issues,

misleading        the    jury,    undue     consumption         of   time,     and    unfair

prejudice"        may    justify        restricting        a   cross-examination           that

attempts to impeach a witness with extrinsic evidence).

      We lastly consider plaintiff's counsel's attempt to argue the

consistency point in his summation.                        To be sure, the objection

from defense counsel to this point should have come sooner, ideally

at   Dr.    Zabinski's       deposition.             Nonetheless,     the    trial     court




admission of certain "other-crimes evidence, as admitted, was too
prejudicial to be subject to cure by any limiting instruction");
see also Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence,
supra, cmt. 1 on N.J.R.E. 105 ("There may be situations, [] where,
no matter how prompt, direct and forceful the instructions to the
jury, the amount of prejudice engendered by testimony or other
evidence is incapable of amelioration by a cautionary, curative
or limiting instruction.").



                                           43                                A-3543-13T2
reasonably acted with vigilance in assuring that the jury was not

asked by plaintiff's counsel to consider the hearsay evidence in

a substantive manner, and thereby risk a tainted verdict. See

Kotler v. Nat'l R.R. Passenger Corp., 402 N.J. Super. 372, 380-81

(App. Div. 2008) (vacating a verdict and remanding for a new trial

where   inadmissible   evidence   had   been   presented    and    counsel

"compounded" the erroneous admission by referring to it in closing

arguments).

     On the whole, the trial judge acted within his discretion in

his sound application of the laws of evidence, as well as his

corresponding   cautionary   instructions      to   the   jury    and    the

limitations he imposed on closing arguments.         Bender v. Adelson,

187 N.J. 411, 433-34 (2006).

                                  IV.

     The judgment for defendant is affirmed.




                               44                          A-3543-13T2
