Ruth v. Fenchel

• Decision Date: 21 March 1956
• Docket Number: No. A--100,A--100
• Citation: 21 N.J. 171,60 A.L.R.2d 71,121 A.2d 373
• Parties: , 60 A.L.R.2d 71 James R. RUTH et al., Plaintiffs-Respondents, v. Irving FENCHEL, Defendant-Appellant.
• Court: New Jersey Supreme Court

Page 171

21 N.J. 171

121 A.2d 373, 60 A.L.R.2d 71

James R. RUTH et al., Plaintiffs-Respondents, v. Irving FENCHEL, Defendant-Appellant.

No. A--100.

Supreme Court of New Jersey.

Argued Feb. 20, 1956.

Decided March 21, 1956.

Seymour Margulies, Jersey City, for appellant (Ezra L. Nolan, Jersey City, attorney; Maurice C. Brigadier, Jersey City, of counsel; Seymour Margulies, Jersey City, on the brief).

Eugene T. Sharkey, Bayonne, for respondents (John J. Wygant, Jersey City, attorney).

The opinion of the court was delivered by

WILLIAM J. BRENNAN, Jr., J.

In this automobile accident case Mrs. Ruth had a verdict of $2,000 for personal injuries. She was allowed a new trial as to damages only at which a verdict of $10,000 was returned in her favor. Defendant appealed to the Appellate Division, challenging the award of the new trial or, alternatively, its limitation to damages only, and asserting error at the new trial in permitting cross-examination of defendant's medical experts, Dr. Solk and Dr. Reilly, based upon medical treatises which were not relied upon by them in forming their expert opinions. The Appellate Division affirmed, 37 N.J.Super. 295, 117 A.2d 284 (1955), and we granted certification upon defendant's petition, 20 N.J. 135, 118 A.2d 559 (1955).

We think the Appellate Division rightly held that no reason was shown for upsetting the action of the trial judge in granting Mrs. Ruth a new trial limited to damages only. The law cited in the court's opinion, applied to the facts there fully set forth, amply justified the affirmance. And we find that both tribunals properly governed their respective dispositions according to the standards applicable to the grant or denial of a new trial and the appellate review thereof. Hager v. Weber, 7 N.J. 201, 81 A.2d 155 (1951); Hartpence v. Grouleff, 15 N.J. 545, 105 A.2d 514 (1954). There therefore exists no merit in this attack upon the Appellate Division judgment. Cf., Colacurcio Contracting Corp. v. Weiss, 20 N.J. 258, 119 A.2d 449 (1955).

The attack grounded in the cross-examination of defendant's medical experts relates to Mrs. Ruth's claim that she suffered a 'whiplash' injury of the neck from the accident. The neck pains did not manifest themselves until some four months after the mishap. Defendant's medical testimony was in substance that the onset of pain symptomatic of 'whiplash' must appear within a few hours. Mrs. Ruth's medical experts, on the other hand, testified that a 'whiplash' could first manifest itself up to a year or even two years after the accident.

When Dr. Solk was cross-examined at the new trial the cross-examiner produced a copy of the medical treatise by Key and Conwell, Fractures, Dislocations and Sprains, published in 1946. Dr. Solk identified the authors as 'orthopedic surgeons,' and to the question, 'Do you recognize Key and Conwell?', answered, 'Yes, they are very, very capable.' He said that he had read 'these authors' but not 'that volume.' (There is more than one edition of the treatise.) Over objection by defendant's counsel, the cross-examiner was permitted to require Dr. Solk to read excerpts from the treatise. Then Dr. Solk summarized what he had read as saying 'that you can have a whiplashing injury to the cord, to the cervical spine and the symptoms complained of in some future date * * * up to a two year period. They said that.' From the context of a question later put to him, we gather that what Dr. Solk read was the statement by the authors that 'The question of injury, whether recent or remote, is frequently slurred over by the patient for the reason that painful symptoms do not develop until some time after, a good many times years after, the injury occurs.' Dr. Solk said that he did 'not fully' agree with this opinion.

Dr. Reilly characterized the Key and Conwell treatise as 'an excellent textbook,' 'one of the textbooks I have in my library.' (The record mentions Gay & Abbott as the work inquired about, but from the context it is clear that Key and Conwell was intended. At the first trial, although not at the second, Dr. Reilly testified that Key and Conwell was one of the authorities upon which he based his opinion.) Dr. Reilly acknowledged that he had read the book and that it contained the statement that a good many times the symptoms of whiplash do not show up for years after the injury. He said that he agreed with that statement 'but not in its entirety,' 'I agree in general with the conclusions, but not the whole statement.'

The cross-examiner also attempted to cross-examine Dr. Solk upon the basis of a paper by Doctors James R. Gay and Kenneth H. Abbott appearing in an issue of the Journal of the American Medical Association. Appellant also asserts error in this respect, but as the trial judge sustained his objections to all the significant questions put by the cross-examiner in this connection we perceive no ground for the prejudice claimed. The point argued as to the use of the treatises will therefore be decided in relation to the Key and Conwell book alone.

The trial judge permitted the cross-examiner's action over defendant's objection because, as the judge stated during one colloquy, each medical expert 'recognized these gentlemen as an authority' and because, as he several times admonished the jury during the examinations, the cross-examiner was utilizing the treatise for the purpose of 'questioning his (the witness's) judgment and his credibility': 'May I say to the jury that any matter that has been read from this authority, from the book, has no probative force as a proven statement of the statements that are made in the book. They are only used for the purpose of cross-examination of this witness by counsel for the plaintiff insofar as it may or may not affect the credibility in your minds as to his opinion; that is the only purpose of the reading from the volume. It is not proof as to the facts of this case, or his opinion.' And, again, 'I will instruct the jury now, as I did heretofore. Any expression of opinion or statement in these articles is not to be taken by you as proof of those conditions. It is merely given as to what may or may not affect the witness's credibility.' And, finally, during the examination of Dr. Reilly, 'My first instructions go to the same discussion of these different authorities. They are merely for the purpose, insofar as they may, to affect the credibility of the witness, as an expert witness. Only for that purpose and that purpose alone is it offered and considered.'

The question to be decided is thus one of very narrow compass and may be phrased as follows: May the attention of an expert witness be called in the course of cross-examination to statements in conflict with his testimony contained in relevant scientific works not relied upon by him to support his opinion but which he recognizes as authoritative? See Lawrence v. Nutter, 203 F.2d 540 (4th Cir.1953). The opinion of the Appellate Division goes beyond this limited aspect of the 'learned treatises' exception to the hearsay rule. That opinion deals expansively with the exception in its broad form as it appears at page 165 of the Report of the Supreme Court's Committee on the Revision of the Law of Evidence, dated May 25, 1955. But that report has not yet been acted upon and, apart from considerations which ordinarily suggest in every case a decision confined to the issues presented on appeal, it is particularly appropriate in this instance that our opinion be restrained within the necessities of the case. This we shall do, leaving all other aspects of the 'learned treatises' exception to the event of final action upon the report except as meanwhile their treatment may be compelled in cases which present them as issues for decision.

Where the contents of a treatise is offered as substantive evidence in the case, the general rule has been to deny admission principally upon the ground that the offer of the contents in evidence purports to employ testimonially a statement out of court by a person not subjected to cross-examination. The decisions of our former Court of Errors and Appeals in Kingsley v. Delaware, L. & W.R. Co., 81 N.J.L. 536, 80 A. 327, 35 L.R.A., N.S., 338 (1911), and New Jersey Zinc & Iron Co. v. Lehigh Zinc & Iron Co., 59 N.J.L. 189, 35 A. 915 (1896), instance the general rule against admission of...