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Deposition Testimony Admissible if Party Statement, Even if its Speculative or an Expert Opinion

By Paul da Costa on June 09, 2015


In many medical malpractice cases, litigation often involves the taking of depositions.  Depositions are meetings prior to trial where the opposing party questions a witness and the witness provides sworn testimony.  Statements made by a witness during a deposition can then be used in the litigation, specifically at trial.  In the recent unpublished Appellate Division case of Parker v. Poole, the court addressed the admissibility of deposition testimony at trial. 

In Parker, Plaintiff sued after her husband died following surgeries performed by the Defendant-doctor.  Before trial, Defendant was deposed, where Plaintiff’s counsel asked him questions regarding the cause of decedent’s death.  At trial, Plaintiff tried to bring the Defendant’s statements from his deposition testimony into evidence.  Defendant’s counsel objected, claiming the testimony should be excluded because it transformed the Defendant into an expert witness, when he was called to testify as a fact witness, and the testimony was speculative.  The trial court agreed.

On appeal, Plaintiff argued that Defendant’s deposition testimony should be admitted into evidence because it was a statement of the opposing party that can be admitted under the hearsay exception outlined in N.J.R.E. 803(b)(1).  The Plaintiff also argued that the exception would apply even if the statement was speculative. 

The Appellate Division found that the “plaintiff in a medical malpractice [case] 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)).  Moreover, the court pointed out that a defendant doctor can testify as a fact witness as to the cause of the plaintiff’s injury.  See Stigliano v. Connaught Labs, Inc., 140 N.J. 305, 314 (1995). 

In addition, the Appellate Division examined Plaintiff’s claims that the admission of Defendant’s deposition testimony should not have been barred even if it was speculative.  The court said that even though N.J.R.E. 803(b)(1) allows admission of a party-opponent’s statement even if it is hearsay, this exception has limitations.  However, because the New Jersey courts have never squarely addressed this issue, the court looked at federal precedent in making its determination.  Ultimately, after a discussion of relevant federal cases, the court found that a party-opponent’s statement can be admitted even if it is speculative.  See Donlin v. Aramark Corp., 163 F.R.D.  149, 150 (D. Utah 1995). 

Lastly, the Appellate Division found that the evidence also could not be excluded under N.J.R.E. 403.  This rule says that relevant evidence can be excluded if its prejudicial effect outweighs its probative value.  The Appellate Division found that the evidence could not be excluded under this rule because the information could have assisted the jury in deciding defendant’s liability. 

When pursuing any medical malpractice claim, it is important to have an experienced attorney to guide you through the litigation, especially the taking of depositions and trial.  If you need an attorney for your medical malpractice or personal injury case, call the experienced attorneys at Snyder & Sarno, LLC at (973) 274-5200.   

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