                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                  SUPERIOR COURT OF NEW JERSEY
                                  APPELLATE DIVISION
                                  DOCKET NO. A-1874-12T4

FRANCES PARKER,
Individually and as
General Administratrix
of the ESTATE OF DALE S.
                                       APPROVED FOR PUBLICATION
PARKER,
                                             March 17, 2015
         Plaintiff-Appellant,
                                           APPELLATE DIVISION
v.

JOHN W. POOLE, M.D.,

         Defendant-Respondent,

and

HOLY NAME HOSPITAL and
DOUGLAS BENSON, M.D.,

          Defendants.
————————————————————————————————————————

         Argued October 7, 2014 – Decided March 2, 2015

         Before Judges Yannotti, Hoffman and Whipple.

         On appeal from Superior Court of New Jersey,
         Law Division, Bergen County, Docket No. L-
         7098-09.

         Dennis T. Smith argued the cause for
         appellant (Pashman Stein, attorneys; Mr.
         Smith and David G. White, on the briefs).

         Philip F. Mattia argued the cause for
         respondent   (Mattia    &   McBride,  P.C.,
         attorneys; Mr. Mattia, on the brief).
      The opinion of the court was delivered by

HOFFMAN, J.A.D.

      Plaintiff Frances Parker, individually and as administrator

of the estate of her late husband, Dale Parker ("Mr. Parker"),

appeals from the no cause jury verdict returned in the medical

malpractice case against her husband's surgeon, defendant John

W. Poole, M.D., and from the order denying plaintiff's motion

for a new trial.        Plaintiff contends that the trial court erred

in excluding certain evidence.          For the reasons that follow, we

reverse and remand for a new trial.

                                       I.

      We begin by summarizing the most pertinent trial evidence.

Mr. Parker was diagnosed with colon cancer when a tumor was

discovered during a colonoscopy.             A biopsy had revealed that Mr.

Parker had an invasive adenocarcinoma of the colon,1 and he was

referred to defendant to immediately undergo surgery to remove

the tumor.         Defendant, a board-certified general surgeon, saw

decedent for a surgical consult on February 13, 2009.               Defendant

performed the surgery, a transverse colon resection, to remove

the   tumor   on    February   19,   2009.      After   removing   the    tumor,


1
  According to defendant, invasive adenocarcinoma of the colon is
a "pathologic diagnosis," which "means the tumor has spread
beyond the basic membrane of the lining of the intestine,"
creating "a risk for it to . . . further spread."



                                       2                                 A-1874-12T4
defendant performed an open anastomosis, sewing the colon back

together,       to     close       the   opening.         Defendant       reported       no

difficulties during the surgery.

       After the surgery, Mr. Parker remained in the hospital.                           At

some     point       between        February       22   and     23,    he      developed

complications.           On     February    23,    nurses     observed    blood-tinged

fluid coming from the surgical site.                     Examination by defendant

revealed that Mr. Parker had developed a dehiscence.2                           Based on

the    risk     of     the    incision     re-opening,        defendant       decided    to

perform a second operation to repair the dehiscence.

       On   February         24,   defendant      performed    the    second    surgery.

During the procedure, defendant noticed some "murky fluid in the

abdominal wound."             As a result, he investigated to determine if

there was an anastomotic leak, a hole or perforation in the

intestine       that    allows      intestinal      contents     to   leak      into    the

abdomen.        While defendant testified, "We never saw a hole[,]

[w]e never saw a perforation," he nevertheless decided to resect

or     remove    the         anastomosis.         He    explained,       "I    felt     the

anastomosis was not perfect[;] . . . my job as a surgeon was to

make the anastomosis perfect."                    Defendant continued to follow

Mr. Parker after the surgery on the 24th; however, "he had a

2
  According to plaintiff's surgical expert, David Befeler, M.D.,
"dehiscence is a failure of the abdomen wall closure," meaning
"the abdominal wall comes apart."



                                             3                                   A-1874-12T4
cataclysmic rapid demise and ultimately expired early on the

26th."

     Plaintiff's       theory        in     the    case     was       that    defendant

negligently performed the first anastomosis, creating a leak,

which led to sepsis, and that defendant then negligently failed

to address the sepsis.           Specifically, plaintiff contended that,

because   defendant        encountered       evidence      of     infection       in    the

second    surgery,    he     should        have   performed       an    ileostomy,         a

procedure     where    a    loop      of     small    bowel       would      have      been

externalized to stop feces from coming into the abdomen, and

then drained the abdomen to remove the purulent fluids, and

allowed Mr. Parker to heal.               Once healed, Mr. Parker could have

undergone    a     re-anastomosis.              Defendant       indicated      that       he

performs such "ostomy" procedures "all the time."3

     The defense disputed the source of the sepsis which caused

Mr. Parker's death, as well as the timing of the onset of the

sepsis.      At trial, plaintiff sought to introduce defendant's

deposition       testimony,      specifically,        an     exchange        in      which

defendant    responded      to   a    question       about      the    cause      of    Mr.

Parker's death:

            Q:     Why did Mr. Parker die?

3
  Defendant explained, "when we externalize the colon, it's a
colostomy, when we externalize the small bowel, it's an
ileostomy."



                                            4                                     A-1874-12T4
            A:   It appears that he got septic, though
                 I'm not sure why he had such a rapid
                 demise.

            Q:   To what did you attribute the sepsis?

                 [Defendant's Counsel]:             Objection,   but
                 you can answer.

            A:   I have to assume that it was related to
                 the anastomotic leak.

    When plaintiff sought to read this deposition excerpt into

the record as part of her case, defendant objected, arguing that

the language he used in response ("I would have to assume") was

speculative.     Plaintiff argued that it was an admission by a

party-opponent      and   thus    admissible    under    N.J.R.E.     803(b)(1),

regardless of any claimed speculative nature.

    The     trial    court   sustained        the   objection,   finding      the

testimony speculative.           The court also appeared to question the

propriety   of   plaintiff       attempting    to   elicit   expert    testimony

from defendant.

            Essentially, what plaintiff urges — it
            converts [defendant] into an expert witness.
            It's asking him to render an opinion when,
            in fact, he's being called as a fact
            witness.    Now we have a number of expert
            witnesses who have opined as to Mr. Parker's
            cause of death.       [I]t's not really a
            [N.J.R.E.] 701 [issue], where we're asking
            for opinion testimony of a lay witness
            because it's not [an] opinion as to . . .
            how fast was he going in your common
            experience.




                                        5                               A-1874-12T4
                It's    an    opinion     that  requires
           expertise.   The reality, it seems, is that
           the . . . cause of death isn’t so much the
           ultimate question here. . . .            [T]he
           ultimate   question   is,    whether  or   not
           [defendant] departed from the standard of
           care required of him.     And I do think that
           it is asking for, again over the objection
           of [defendant's] attorney, for him to become
           an expert witness against himself.

                And   in   addition   to  that,    it   is
           cumulative and it is calling for speculation
           on his part.     And therefore, I'm going to
           uphold [defendant's] objection and I'm not
           going   to   allow   it  to   be   read    into
           evidence[.]

    On direct examination, defendant testified that "Mr. Parker

had no evidence of sepsis at the time leading up to the [second]

surgery, at the time of the surgery, and immediately in the

recovering      room    after   the    surgery."4            Nevertheless,       in   the

operative report defendant dictated immediately after the second

surgery,   he    wrote,    "I   did    not       want   to   take   the   chance      the

anastomosis      was    leaking       and       would   cause    further        sepsis."

(Emphasis added).         Defendant attempted to explain this apparent

contradiction      in     the   following          colloquy,     still     on     direct

examination:


4
  According to defendant, "Sepsis is an infection that causes
systemic changes."     Its symptoms are "increased respiratory
rate, an increased pulse, . . . an elevated temperature and an
elevated white [blood cell] count." Sepsis can be diagnosed by
the presence of two such symptoms as well as a "documented
source of infection[.]"



                                            6                                   A-1874-12T4
         Q:     When you said you were concerned it
                would cause further sepsis what did you
                mean by further sepsis?

         A:     I meant at a point in time.     I might
                have actually dictated future sepsis
                but I mean, further down the road.    I
                would – a chance at this would cause
                sepsis.   So unfortunately – I probably
                dictated   like   I   speak  but   they
                transcribe it but –

         Q:     It would have been future as opposed to
                further?

         A:     Well, I'm dictating a medical record
                I'm not a novelist. In my mind, I was
                using – it might not be the most
                eloquent – but I'm trying to say, I
                couldn't take the chance of this would
                – anastomosis would break down and
                cause sepsis in the future, cause
                further sepsis. That was my job to not
                take that chance.

         Q:     Did there come a time that Mr. Parker
                did become septic?

         A:     Yes, there was.

         Q:     When was that?

         A:     He became septic several hours after
                the surgery in the intensive care unit.

    Later     that   day,   during    cross-examination,   defendant

disputed that he saw evidence of an anastomotic leak during the

second surgery, despite his operative report listing "[p]robable

anastomotic leak" among his post-operative diagnoses:

         Q:     Eventually, you determined that there
                was a probabl[e] anastomotic leak that




                                  7                         A-1874-12T4
     you    encountered    in     the     second
     surgery[,] right?

A:   That's not true.   What . . . I said —
     and I said yesterday is that when we
     got in there, that putting . . .
     everything   together    .  .  .     the
     anastomosis did not look perfect.    And
     I said it was my job, as the surgeon,
     to make sure that the patient is as
     perfect as I can make [him].      So, I
     made the decision that [I] needed to
     resect that anastomosis.

Q:   You're   denying  that  you  .   .   .
     determined that there was a probabl[e]
     anastomotic leak?

A:   Yes, I am.

     . . . .

Q:   Do you recognize that?

A:   That's my operating      report   from   that
     day; correct.

Q:   Mmm-hmm.      And    the   postoperative
     diagnosis that you put down includes
     probabl[e] anastomotic leak[,] right?

A:   That's correct.    Look, you asked me if
     I   determined   that’s   what  it  was.
     That’s different than a determination
     . . . .     That’s what I'm concerned
     about.    That it wasn't perfect and I
     redid it.

     . . . .

Q:   I'll jump back to something that we
     actually . . . advanced to before. In
     the final analysis, we did determine
     that there was a probable anastomotic
     leak in this patient, right?




                      8                              A-1874-12T4
          A:   No.

     After the completion of defendant's testimony,       plaintiff

moved for reconsideration of the court's decision to exclude

defendant's deposition testimony ("I have to assume that it was

related to the anastomotic leak") regarding the cause of Mr.

Parker's sepsis.     [T]he court denied the motion, reiterating,

that "the comment that [defendant] nevertheless articulated was

speculative.   And, in fact, he said 'I have to assume.'     Which,

I think, is as great an indication of speculation [as] you're

going to get, in any case."

     The next day, the jury returned a verdict, finding that

defendant had not deviated from accepted standards of care and

was therefore not negligent.5    Plaintiff filed a motion for a new

trial, arguing that defendant's deposition testimony should have

been admitted under N.J.R.E. 803(b)(1) as an       admission by a

party-opponent, and that the exclusion of this evidence resulted

in a clear miscarriage of justice under the law.         R. 4:49-1.

The court denied the motion, and this appeal followed.

     On appeal, plaintiff seeks a new trial, contending that the

trial   court's      erroneous   evidentiary   rulings    regarding

defendant's deposition testimony constituted reversible error.


5
  The jury voted six to one that defendant did not deviate from
accepted standards of care in his treatment of Mr. Parker.



                                  9                        A-1874-12T4
Specifically, plaintiff argues that the trial court improperly

excluded defendant's deposition testimony, and asserts that the

testimony was admissible under N.J.R.E. 803(b)(1), the hearsay

exception     for   statements    by     a     party-opponent.       Plaintiff

contends     that    defendant's        deposition       testimony    is     not

speculative, but emphasizes that the exception applies even if

the statement were speculative.              Finally, plaintiff argues that

the   deposition    testimony    is    not     subject   to   exclusion    under

N.J.R.E. 403.

                                       II.

      "In    reviewing   a   trial      court's     evidential    ruling,     an

appellate court is limited to examining the decision for abuse

of discretion."       Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008);

accord Purdy v. Nationwide Mut. Ins. Co., 184 N.J. Super. 123,

130 (App. Div. 1982).        We are required to disregard an error

unless, after consideration, we find "it is of such a nature as

to have been clearly capable of producing an unjust result[.]"

R. 2:10-2.

                                       A.

      We first address the trial court's comments suggesting that

defendant's deposition testimony about the cause of Mr. Parker's

sepsis might be excludable because "it converts [defendant] into




                                       10                             A-1874-12T4
an expert witness[,]" and asks "him to render an opinion when,

in fact, he's being called as a fact witness."

    "[A] plaintiff in a medical malpractice [action] can ask

questions of a defendant doctor in a deposition which seek to

elicit expert opinions relevant to the diagnosis and treatment

of the plaintiff."         Hutchinson v. Atl. City Med. Ctr.-Mainland,

314 N.J. Super. 468, 477 (App. Div. 1998) (citing Rogotzki v.

Schept, 91 N.J. Super. 135 (App. Div. 1966)).

            It is clear that defendants may be deposed
            as to the facts of the treatment they gave –
            what they did, what they saw, and the
            diagnoses rendered.   It is also clear that
            they may not be asked to respond to purely
            hypothetical questions.    But we think it
            plain that it is not "opinion" to have them
            explain why something was done or not done.

            [Rogotzki, supra, 91 N.J. Super. at 152.]

    In   Rogotzki,     we    rejected    the    argument     "that   a   treating

physician   who   is   a    party   defendant    may   not    be   compelled    to

answer on depositions such questions as call for his expert

opinions or conclusions related to the treatment he rendered."

Id. at 145.

            There is nothing unfair about such a
            practice.    Unlike his counterpart in a
            criminal prosecution, the defendant in a
            civil suit has no inherent right to remain
            silent or, once on the stand, to answer only
            those inquiries which will have no adverse
            effect on his case.     Rather, he must, if
            called as a witness, respond to virtually
            all questions aimed at eliciting information



                                        11                               A-1874-12T4
            he may possess relevant to the issues, even
            though his testimony on such matters might
            further the plaintiff's case.      We cannot
            agree with the suggestion that it is somehow
            neither sporting nor consistent with the
            adversary system to allow a party to prove
            his   case   through   his  opponent's   own
            testimony but, whatever the merits of this
            view, we prefer to believe that, in a
            situation   such   as  the   present,  [t]he
            ultimate requirement that judicial decisions
            be based on the . . . facts overcomes any
            detriment which might be suffered by the
            adversary system.

            [Id.   at  149   (alterations  in original)
            (quoting McDermott v. Manhattan Eye, Ear &
            Throat Hosp., 203 N.E.2d 469, 474 (Ct. App.
            1964) (citations and internal quotation
            marks in McDermott omitted)).]

    Our Supreme Court subsequently indicated its approval of

Rogotzki,    stating,   "Proof   of    deviation   elicited   from   the

defendants themselves, because they are competent professionals,

could be relied on by the jury."        Lanzet v. Greenberg, 126 N.J.

168, 191 (1991) (citing Rogotzki, supra, 91 N.J. Super. at 148-

49); see also, Hutchinson, supra, 314 N.J. Super. at 478-81

(holding that the trial court properly allowed plaintiffs to use

the defendant doctor's deposition testimony as evidence of the

applicable standard of care).

    Furthermore, it is well established that a treating doctor

testifying as a fact witness is permitted to testify about the

cause of the patient's disease or injury, because causation is

an essential part of diagnosis and treatment.         See Stigliano v.



                                  12                           A-1874-12T4
Connaught Labs., Inc., 140 N.J. 305, 314 (1995) (holding "the

characterization          of     [such]   testimony       as       'fact'      or   'opinion'

creates     an     artificial      distinction").             "[T]estimony          about    the

likely and unlikely causes of [a patient's condition] is factual

information, albeit in the form of opinion."                        Ibid.

       The questioning of defendant at his deposition reasonably

sought to ascertain defendant's opinion regarding the timing and

cause of Mr. Parker's sepsis, two critical issues in the case.

As   the    surgeon       who    performed    both      operations,            defendant     was

arguably     in     the    best    position       to   make    these       determinations.

From his operative report, it would appear that he did, in fact,

make       these     determinations           by       diagnosing          a     "[p]robable

anastomotic leak[,]" and his statement that he "did not want to

take the chance the anastomosis was leaking and would cause

further sepsis."

                                             B.

       We next address the trial court's determination to exclude

defendant's        deposition       testimony      regarding         the       cause   of    Mr.

Parker's sepsis because it was "speculative."

       N.J.R.E.      803(b)(1)       provides          that    a    "statement         offered

against a party which is . . . the party's own statement, made

either in an individual or in a representative capacity," is not

excluded      by     the        hearsay   rule.           Nevertheless,             testimony




                                             13                                        A-1874-12T4
admissible     under       this    rule     is    still     subject     to        other

restrictions.        Biunno, Weissbard & Zegas, Current N.J. Rules of

Evidence, comment 1 on N.J.R.E. 803(b)(1) (2014) ("Note that

[N.J.R.E.]     403    is   not    the   exclusive      means    for   excluding       a

statement admissible under [N.J.R.E. 803(b)(1)].                   In appropriate

cases other constitutional, statutory or rule requirements might

preclude a statement admissible under this Rule.").

      N.J.R.E. 701 generally restricts the subject matter of lay

witness testimony:

          If a witness is not testifying as an expert,
          the witness' testimony in the form of
          opinions or inferences may be admitted if it
          (a) is rationally based on the perception of
          the   witness   and  (b)   will  assist   in
          understanding the witness' testimony or in
          determining a fact in issue.

The question is thus whether N.J.R.E. 701 restricts testimony

otherwise admissible under N.J.R.E. 803(b)(1).                   Our courts have

not yet addressed this issue.                  Therefore, we look to federal

precedent interpreting analogous provisions of the Federal Rules

of Evidence.

      F.R.E.    801(d)(2)(A)       is     the    parallel      provision     to    our

N.J.R.E. 803(b)(1).         It provides that a "statement . . . offered

against an opposing party[,] . . . made by the party in an

individual or representative capacity[,]" is not hearsay.                         Thus,

the   substance      of    the    provisions      is   essentially     the        same.




                                          14                                 A-1874-12T4
Federal courts have addressed the interaction between the party-

opponent       rule      and     other      provisions.           The     courts      have

specifically exempted statements under F.R.E. 801(d)(2)(A) from

the personal-knowledge requirement for testimony.                             See, e.g.,

United States v. Ammar, 714 F.2d 238, 254 (3d Cir.) ("[I]t is

clear       from   the    Advisory       Committee       Notes   that    the    drafters

intended that the personal knowledge foundation requirement of

[F.R.E.] 602 should . . .                  not [apply] to admissions               . . .

admissible under [F.R.E.] 801(d)(2)."), cert. denied, 464 U.S.

936, 104 S. Ct. 344, 78 L. Ed. 2d 311 (1983); Mahlandt v. Wild

Canid Survival & Research Ctr., Inc., 588 F.2d 626, 630-31 (8th

Cir. 1978) (holding that the personal knowledge requirement does

not apply to F.R.E. 801(d)(2)).

       Additionally,           statements     by    a     party-opponent        are    not

subject to trustworthiness considerations.                       "Trustworthiness is

not     a    separate      requirement        for       admission     under     [F.R.E.]

801(d)(2)(A)."           Jewell v. CSX Transp., Inc., 135 F.3d 361, 365

(6th Cir. 1998); accord United States v. Pinalto, 771 F.2d                            457,

459 (10th Cir. 1985).                 "The admissibility of statements of a

party-opponent is grounded not in the presumed trustworthiness

of the statements, but on 'a kind of estoppel or waiver theory,

that    a    party    should     be    entitled     to    rely   on     his   opponent's




                                             15                                  A-1874-12T4
statements.'"       Jewell, supra, 135 F.3d at 365 (quoting United

States v. DiDomenico, 78 F.3d 294, 303 (7th Cir. 1996)).

      In Donlin v. Aramark Corp., 162 F.R.D. 149, 150 (D. Utah

1995),    the   district   court   directly        addressed     the   issue     of

speculation for party-opponent admissions, and found that "the

fact that the statement is speculative or in opinion form is not

of   consequence.      Personal    knowledge       of     the   witness   is    not

required in a party admission circumstance."

      This interpretation echoes 4 Wigmore on Evidence § 1053

(Chadbourn rev. 1972):

            A primary use and effect of [a party]
            admission is to discredit a party's claim by
            exhibiting     his     inconsistent     other
            utterances.    It is therefore immaterial
            whether these other utterances would have
            been   independently    receivable   as   the
            testimony of a qualified witness. . . . In
            particular,     personal     knowledge,    as
            indispensable to a witness, is not required.

            [Ibid. (emphasis       in        original)    (citations
            omitted).]

Wigmore goes on to specifically address the lay opinion rule,

saying that it "does not limit the use of a party's admissions

[because] [t]he reason for that rule does not apply to a party's

admissions."     Id. at § 1053(3).

      Thus, federal precedent supports the position that N.J.R.E.

701 does not independently bar speculative testimony admitted

under    N.J.R.E.   803(b)(1).     Therefore,        we    conclude    the   trial



                                        16                                A-1874-12T4
court     erred    in     excluding          defendant's       deposition      testimony

regarding the cause of Mr. Parker's sepsis on the basis that it

was speculative.

    We further note that the record does not provide any actual

support    that    the    deposition         testimony       was    speculative.       The

court failed to hold a Rule 104 hearing to explore the issue

further.          While    it     may        be    possible        the   testimony     was

speculative,       the    record        lacks       any     evidence     or   convincing

argument    explaining          how     or    why     the     testimony       constituted

speculation.

    In summary, we conclude defendant's deposition testimony

regarding the cause of Mr. Parker's sepsis is admissible under

N.J.R.E. 803(b)(1).             The statements were made by defendant, a

party to the action, and were offered by plaintiff against him

at trial.      Plaintiff's question was not improper, and whether

defendant was speculating when he answered is irrelevant to the

statement's admissibility.

                                              C.

    Finally, we address the application of N.J.R.E. 403.                               The

trial court's oral opinion on plaintiff's motion for new trial

did not explicitly address N.J.R.E. 403, but the court stated,

"I believe . . . the statement by [defendant] was prejudicial

and not probative, and that's why I excluded it."




                                              17                                 A-1874-12T4
    N.J.R.E. 403 provides:

            [R]elevant evidence may be excluded if its
            probative value is substantially outweighed
            by   the  risk   of  (a)  undue   prejudice,
            confusion of issues, or misleading the jury
            or (b) undue delay, waste of time, or
            needless    presentation   of     cumulative
            evidence.

    Under      this    test,    "[e]vidence      should     be   barred      if    its

probative      value   'is     so   significantly       outweighed      by    [its]

inherently inflammatory potential as to have a probable capacity

to divert the minds of the jurors from a reasonable and fair

evaluation of the basic issue[s].'"                  Green v. N.J. Mfrs. Ins.

Co., 160 N.J. 480, 491 (1999) (alterations in original) (quoting

State v. Thompson, 59 N.J. 396, 421 (1971)).                      "The burden is

clearly   on    the    party    urging    the    exclusion       of   evidence      to

convince the court that the N.J.R.E. 403 considerations should

control."       Rosenblit v. Zimmerman, 166 N.J. 391, 410 (2001)

(citation and internal quotation marks omitted).

    Due to the nature of the weighing test, highly prejudicial

evidence may only be admitted if it has "overwhelming probative

worth."     Green,     supra,   160   N.J.      at   491.    However,     "'[t]hat

evidence is shrouded with unsavory implications is no reason for

exclusion when it is a significant part of the proof.'"                           State

v. Stevens, 115 N.J. 289, 308 (1989) (quoting State v. West, 29

N.J. 327, 335 (1959)).




                                         18                               A-1874-12T4
       Moreover,     N.J.R.E.         403    concerns       only     undue      prejudice.

State v. Bowens, 219 N.J. Super. 290, 297 (App. Div. 1987).

"The    question     .     .    .    is     not    merely    whether      the    treating

doctor['s] testimony [was] prejudicial[,] . . . but whether it

[was]     unfairly       so."        Stigliano,       supra,       140   N.J.    at    317.

Generally, much of the evidence introduced at an adversarial

trial is prejudicial to the opposing party, and we "would ill-

serve the cause of truth and justice if we were to exclude

relevant and credible evidence only because it might help one

side and adversely affect the other."                   Ibid.

       Counsel is permitted to attack the credibility of a witness

on cross-examination.               N.J.R.E. 611(b).         "Cross-examination is

the greatest legal engine ever invented for the discovery of

truth."     State v. Silva, 131 N.J. 438, 444 (1993) (citation and

internal quotation marks omitted).                    Any witness "may be cross-

examined with a view to demonstrating the improbability or even

fabrication    of    his        testimony."           Id.   at     445   (citation      and

internal quotation marks omitted).

       A prior inconsistent statement may also be used to attack

the credibility of a witness.                     N.J.R.E. 607; Silva, supra, 131

N.J. at 444-45; State v. DiRienzo, 53 N.J. 360, 383 (1969).

Deposition testimony of a witness may be used "for the purpose




                                             19                                   A-1874-12T4
of contradicting or impeaching" a witness at trial.                                R. 4:16-

1(a).

      Here,     the    fact    that        defendant      testified          at   deposition

consistent      with     his     operative          records      but     then      testified

differently at trial, attempting to discredit his own operative

reports,      clearly     went        to     the    issue     of       his    credibility.

Accordingly,      the    trial     court          erred   when     it    did      not   allow

plaintiff's counsel to impeach defendant's credibility with his

prior inconsistent deposition testimony.

      Defendant's deposition testimony strikes at the heart of

this case.      As a statement by the surgeon who actually performed

the procedures and observed, first hand, Mr. Parker's condition,

it carries compelling probative worth.                        Stigliano, supra, 140

N.J. at 317 ("[T]he probative value of the treating doctors'

testimony outweighs its prejudicial effect under N.J.R.E. 403"

because    of    their        first        hand    proximity       to    the      patient's

condition.).          As the trial court noted concerning the expert

witnesses here, "[t]he people who articulate that there was an

anastomotic leak were not in the surgery.                          And, really had no

direct way of making that determination."                          Defendant, however,

was   necessarily       present       at     the    surgery,       affording        him   the

ability to make direct observations.




                                              20                                    A-1874-12T4
      The existence of the anastomotic leak and its effect were

the   central     issues     at     trial.          While   the    statement       is

prejudicial, the undue prejudice to defendant is minimal because

the   statement   at   issue      is   his,   rather    than   a   third   party's

statement.      "[T]he party who made the out-of-court statement

cannot complain of his [or her] inability to confront and cross-

examine the declarant, since he [or she] is the declarant."

Biunno et al., supra, comment 1 on N.J.R.E. 803(b)(1).

                                         D.

      Lastly, we must consider whether the trial court's decision

to exclude defendant's deposition testimony was "clearly capable

of producing an unjust result[.]"             R. 2:10-2.

      The proofs in this case do not overwhelmingly favor one

party or the other; hence, the improper exclusion of defendant's

contradictory deposition testimony could have been the deciding

factor in his favor.       Cf. State v. Frost, 158 N.J. 76, 87 (1999)

(noting that where credibility is the central issue and the

"jury must choose which of two opposing versions to credit, it

simply cannot be said that the evidence is overwhelming[ly]"

against one litigant or the other).              The risk that the jury was

improperly    influenced       by      the    trial    court's     exclusion      of

defendant's     deposition     testimony       is     particularly    high     here




                                         21                                A-1874-12T4
because defendant's credibility was central to the outcome of

the case.

       Under the circumstances of this case, we are convinced that

this    error    was   "clearly   capable   of   producing   an    unjust

result[.]"      R. 2:10-2.   The excluded deposition testimony bore

directly on the issue of defendant's negligence and thus could

readily have been outcome-determinative.         Because the exclusion

of this evidence could have affected the jury's determination of

whether defendant was negligent, a new trial is required.

       Reversed and remanded for a new trial.




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