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Levinson Axelrod, P.A. Partner Kimberly Gozsa wins in a New Jersey Supreme Court landmark Decision for the Plaintiff's Bar on Tw


The New Jersey Supreme Court unanimously reached a momentous decision in the case Hayes v. Delamotte, where the Justices agreed with attorney Kimberly L. Gozsa that a videotape of a testifying doctor can be played back during closing argument and the out of court opinions of non-testifying doctors are not evidence for the jury. As such, Ms. Gozsa’s second trial verdict of $250,000 was reinstated.

The case arises from a 2008 car accident in which our client, Ms. Hayes, was riding in the front seat of a vehicle during a single-car collision and needed to be extracted from the vehicle after the crash. She had a prior back fusion in 2000 and this accident required removal of the hardware from a prior fusion and an additional 2 level cervical fusion to treat new disc herniations.

During trial, Plaintiff and Defense each called an expert witness on damages. The defense placed its expert on video to be played back during the trial. During the video, Ms. Gozsa caught the defense expert comparing the same MRIs instead of comparing the two MRIs taken a year apart from each other. At the end of the video, defense expert claimed that our client merely suffered a sprain and that the surgery was not needed. Plaintiff’s expert, who was her treating physician, stated that she suffered new injuries, which required the major surgery. Ms. Gozsa sought to show the video demonstrating the defense expert making the mistake of comparing the same MRI to itself, but the Court prevented it.

Also, in the beginning of the first trial Ms. Gozsa moved to preclude the defense from eliciting the opinions of non-testifying physicians as hearsay. The Superior Court Judge denied this request, which permitted the defense to selectively claim that the defense expert opinions aligned with the non-testifying opinions. As a result of these two errors, the jury returned a no cause verdict.

Ms. Gozsa moved for a new trial. The trial judge agreed to a new trial in the interests of justice because the defense expert indeed showed the same MRI on the video deposition. The case was retried. During the second trial, Ms. Gozsa was successful in convincing the trial judge that the out of court opinions of the non-testifying experts were not admissible. However, the trial judge still precluded Ms. Gozsa from replaying the video to attack the defense expert’s credibility. Despite this, the jury returned a verdict of $250,000 in favor of the Plaintiff.

The defense appealed to the New Jersey Appellate Division who vacated that positive verdict in May of 2016 and reinstated the first jury verdict of a no-cause. Ms. Gozsa appealed this Appellate Division decision to the Supreme Court, who agreed the Plaintiff’s position. As such, the Supreme Court reversed the Appellate Division’s ruling, stating that,

“Because expert testimony was vital to the outcome of the trial, the trial court’s refusal to allow plaintiff’s counsel to replay a portion of Dr. Vasen’s deposition was an error that resulted in a ‘miscarriage of justice under the law’,’ warranting a new trial,” Justice Lee Solomon said in the court’s opinion.

“In addition to the video testimony being permitted to be played back during closing, the Supreme Court also confirmed the jury should not be alerted to the out of court statements by non-testifying physicians, regardless if they were relied on by the expert. Simply put, they are hearsay, which is not admissible,” said Gozsa.

These two issues addressed by the Supreme Court in this Landmark opinion will preclude erroneous trial court decisions in the future. This was not only a win for our client Ms. Hayes, but all plaintiffs in the future and litigants who seek justice.

Our New Jersey personal injury lawyers at Levinson Axelrod, P.A. are dedicated to providing injured victims with the passionate and experienced representation they require, even if we need to set new legal precedents in order to secure them the outcome they deserve. If you were seriously injured by someone else’s negligent or reckless actions, give us a call at (732) 440-3089 to discuss your situation over the phone today, or send us the details of your case through our online form and request a free case evaluation.

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