Wednesday, June 27, 2012
ADELE KONOP, ET AL. VS. ELLEN J. ROSEN, M.D. A-2908-10T1
ADELE KONOP, ET AL. VS. ELLEN J. ROSEN, M.D.
In this medical malpractice action, the factual support for plaintiff's expert's opinion regarding defendant's deviation rested solely upon a notation that appeared in a hospital
consultation report prepared, not by defendant, but by a resident doctor in the emergency room. Following a N.J.R.E. 104 hearing, the judge concluded that the notation should be
redacted from the report because it was hearsay, not subject to any exception. He subsequently granted defendant summary judgment.
We reversed, concluding that there was sufficient circumstantial evidence to permit a reasonable jury to conclude by a preponderance of the evidence that the notation was a
statement attributable to defendant, thus admissible under N.J.R.E. 803(b)(1) ("[a] statement offered against a party which is . . . the party's own statement").
We further concluded that although N.J.R.E. 104(a) reserves to the judge determinations as to whether preliminary "condition[s]" of "admissibility," as opposed to relevancy, have
been fulfilled, when the only condition of admissibility is resolution of a single disputed fact, the exercise of the judge's discretion is limited. In such circumstances, the judgeis not the ultimate fact finder, but, rather, must decide only whether the evidence is sufficient to allow a jury to decide the disputed fact in favor of the proponent of the evidence. 04-25-12