The Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) held in its unpublished opinion dated April 9, 2018 that the trial judge committed reversible error by not allowing the New Jersey medical malpractice plaintiff to testify during the trial.
The Underlying Facts
The New Jersey medical malpractice plaintiff alleged that the defendant physician and defendant anesthesiologist performed an endoscopy on the plaintiff in December 2010 during which he went into respiratory arrest. The plaintiff alleged that medical negligence that occurred during the procedure caused his cognitive defects and that he remains significantly compromised, requiring long-term care.
During the New Jersey medical malpractice trial, the plaintiff’s attorney requested that the plaintiff testify concerning his inability to perceive and recall ordinary events. The plaintiff’s attorney argued the testimony would allow the jury to hear and see the plaintiff’s medical condition. Defense counsel objected, arguing that the plaintiff lacked competence to testify, that his testimony would not aid the jury in its determination, and that such testimony would be prejudicial.
The trial judge conducted a N.J.R.E. 104 hearing and found that the plaintiff understood the meaning of taking an oath to testify, the importance of telling the truth, and the repercussions for false testimony. During the hearing, the plaintiff did not know his age or the year, arguably due to his substantial neurological deficit caused by the alleged negligence. The judge barred the plaintiff’s testimony, finding that its prejudicial impact outweighed its probative value pursuant to N.J.R.E. 403.
The New Jersey Appellate Court Decision
The New Jersey Appellate Court stated that in weighing whether to admit or deny evidence at trial, a judge must perform a N.J.R.E. 403 analysis. N.J.R.E. 403 states, “[e]xcept as otherwise provided by these rules or other law, relevant 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.” Applying this test, evidence 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 issues. The burden is on the party seeking to exclude the evidence.
The New Jersey Appellate Court stated that in the present case, the plaintiff’s medical malpractice attorney sought to have the plaintiff testify to show the extent of his injuries related to the alleged negligence, which would have contradicted testimony from defense witnesses to the contrary. Although the testimony may have been prejudicial to the defendant, the New Jersey Appellate Court stated that it would have had probative value in the jury’s determination, especially in light of the numerous witnesses who testified about the plaintiff’s condition; in other words, it would not have been substantially more prejudicial than probative.
The New Jersey Appellate Court held: “We conclude that the judge abused his discretion in barring plaintiff’s testimony. The judge determined that N.J.R.E. 601 was satisfied by finding plaintiff competent because he knew the value of the oath to testify, that he must testify truthfully, and he understood the harm in false testimony. The judge abused his discretion by barring testimony from plaintiff at trial. Any related prejudice does not substantially outweigh the probative value, which would have been refuted by defense counsel’s cross-examination of plaintiff’s witnesses.”
Source Blessing v. Chiu, Docket No. A-5202-15T4.
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