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New Jersey Appellate Division Provides Encyclopedic Survey of Hearsay Rule and The Exceptions Thereto

An excerpt from the Court's opinion in Konop v. Rosen, ___ N.J.Super. ___ (2012) (DOCKET NO. A-2908-10T1):

Plaintiff's expert, Dr. Meyer N. Solny, opined that defendant deviated from accepted medical standards by failing "to ensure that the patient was adequately sedated and not moving during the procedure and by [failing] to stop the procedure when excessive patient movement occurred." Solny's opinion rested exclusively upon a notation that appeared in a consultation report prepared by Dr. Victor S. Flores upon plaintiff's initial admission to the hospital.

Before trial, defendant moved to bar the notation, claiming it was inadmissible hearsay. Defendant also argued that, if the notation was excluded from the consultation report, Solny's opinion was factually unsustainable and summary judgment was appropriate. Following oral argument, the judge scheduled a hearing pursuant to N.J.R.E. 104 to consider defendant's application.
Following the hearing, in an oral opinion, the judge concluded that the notation was inadmissible hearsay and should be redacted from the medical records. After originally agreeing to stay his decision so plaintiff could seek appellate review, the judge subsequently vacated the stay and granted summary judgment to defendant. Plaintiff now appeals from the January 26, 2011, order excluding the notation and granting defendant summary judgment.

Plaintiff contends that the judge erred in determining the notation was inadmissible hearsay, and, as a result, summary judgment should have been denied. Defendant counters by arguing that the judge properly excluded the notation because it was hearsay, not subject to any exception in our Rules of Evidence, and otherwise "untrustworthy." Both parties agree that if the notation is inadmissible, summary judgment was appropriate.
We have considered these arguments in light of the record and applicable legal standards. We reverse and remand the matter for further proceedings.