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Ban on Bootstrapping for Personal Injury Cases

May 29, 2015 | Posted In Personal Injury/Negligence - Personal Injury |

Appellate court presiding judge Jack Sabatino issued a precedential ruling earlier this year that will ban an attorney at a civil trial from asking an expert witness if his or her findings are consistent with another expert who has not provided testimony. This practice, known as “bootstrapping,” is done so that the jury may consider “the absent expert’s hearsay opinions about complex and disputed matters,” Sabatino said, and should be left out of personal injury cases.

Additionally, the court banned any instances of bootstrapping in which the alleged purpose is to discredit the testifying expert of the opposition, as well as when it is used in closing arguments to “prevent the jury from speculating about or misusing an absent expert’s complex and disputed findings,” according to the court rulings.

In its decision, the appellate court pointed to rules and legal principles that are in place specifically to govern acts of bootstrapping, and stated that they were not making a new law, but rather clarifying the existing standards to eliminate the “confusion and uneven customs in applying those principles in everyday civil trial practice.”

James v. Ruiz

The case that started it all is James v. Ruiz, in which the plaintiff, William James, filed a lawsuit against Rosalind Ruiz, for allegedly running into him in a toll booth at the Atlantic City Expressway. According to the suit, the collision caused a painful disk bulge in James’ lower back, and he sued for damages.

Ruiz admitted to being at fault at trial, and the damages were to be determined in a verbal threshold case, in which James had to prove that he had suffered a permanent injury.

Both James and Ruiz had board-certified orthopedic surgeons testify on their behalf as to whether James had suffered a permanent bulging lumbar disk or not. Radiologist Dr. Amerigo Falcini, who was not at the trial, had reported on the CT scan from James’ primary care physician and said that there was evidence of a small disk bulge.

The plaintiff’s witness provided videotaped testimony in which he opined that the bulge on the CT scan was consistent with Dr. Falcini’s reports. However, the opposing counsel asked the courts to prohibit any testimony that referred to the opinion of a non-testifying doctor. At trial, when Falcini’s opinion was mentioned, the judge upheld the defense’s objections of hearsay, which prompted the official ruling from the Appellate Court.

Expert Witness

In most personal injury cases, the testimony provided by an expert witness on the injured party’s behalf — whether it is a doctor testifying about injuries sustained or a mechanic testifying about malfunctioning parts — is critical to the case’s outcome. For this reason, it is important to understand what can and cannot be mentioned in the witness testimony and to consider how many witnesses you will need. If you have been injured, and need help filing a claim, contact a New Jersey personal injury attorney at Helmer, Conley, and Kasselman, PA right away.

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