Radbill v. Mascolo, A-4658-10T4 – Improper Use of Non-Testifying Physician’s Office Notes

By Michael Zerres

In a personal injury action where the plaintiff claimed he required surgery for a herniated lumbar disk, defense counsel attempted to use an office note of a physician during cross-examine of a plaintiff’s recollection about prior complaints of lower back pain. The note had L5 circled for nine different office visits. Neither the physician nor anyone from his staff was called to testify about the note. Plaintiff also testified that the notes did not refresh his recollection. In addition, the note did not contain any statements attributable to the plaintiff.

The Appellate Division ruled on May 30, 2012 that a trial court has an obligation to prevent a witness or party from putting into the record the contents of an otherwise inadmissible writing under the guise of refreshing recollection. Defense counsel could have presented the plaintiff with the doctor’s notes outside the presence of the jury to see whether or not they refreshed his recollection. Allowing the plaintiff to be cross-examined with a hearsay note improperly introduced into evidence, when it did not refresh plaintiff’s recollection and when the note did not contain statements made by plaintiff, was reversible error. The finding of no proximate cause by the jury was reversed and the matter was remanded for a new trial on damages.

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