ADELE
KONOP, ET AL. VS. ELLEN J. ROSEN, M.D.
A-2908-10T1
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 judge
is 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
