N.J. Model Civil Jury Charge 1.13E

1.13 EXPERT TESTIMONY1 (Approved 12/2009; Revised 10/2015)

E. Optional Charge Concerning Experts Relying on Hearsay

Statements of Non-Testifying Experts.2

NOTE TO JUDGE

See James v. Ruiz , 440 N.J. Super. 45, 75 (App. Div. 2015), for a

discussion on the admissibility of the opinions of non-testifying treating

physicians that may be contained in the plaintiff's medical records. The

Appellate Division in James stated regarding the use of the opinions of

non-testifying treating physicians' report s in cross examination as

follows:

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. 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.

Finally, MCJC 1.13E may need to be tailored or may not be appropriate

in the situation where the opinions of non-testifying treating physicians

are either not complex medical diagnoses or are not disputed by the

parties.

1 In the following instances, the Committee has approved specific charges on expert testimony and these

charges should be given instead of the general charge on expert testimony:

5.50 Medical Negligence

5.51 Legal Malpractice

5.52 Professional Liability of an Architect/Engineer

9.10 Condemnation

2 Agha v. Feiner, 198 N.J. 50 (2009); James v. Ruiz, 440 N.J. Super. 45 (App. Div. 2015); and N.J. Rule

of Evidence 703.

In this case, you have heard that other non-testifying experts have examined

the plaintiff/ treated the plaintiff/ performed tests on the plaintiff/ and have rendered

reports expressing opinions as to their findings.

Testifying experts may rely upon such out of court statements contained in

such reports in formulating their opinions if they are of the type reasonably relied

upon by experts, within that particular field in forming opinions or inferences upon

the subject.

I instruct you, as the jury in this case, that you are not to consider any such

out of court statements or opinions by any non-testifying experts as substantive proof

and you should not speculate as to what those statements or opinions are or were.

The fact that a testifying expert [relied upon or failed to rely upon] reports of

a non-testifying expert [or considered and rejected such a report] may be considered

by you for the limited purpose of the witness explaining the basis of his/her opinion,

if it is a factor in such opinion, and your assessing the quality of his/her testimony

and for no other purpose.