NJ Appellate Division Cracks Down on the Practice of Bootstrapping Expert OpinionsPosted: April 2, 2015 | Author: Danny Lallis | Filed under: Appeals, General Liability, New Jersey Practice | Tags: Bootstrapping, Expert Testimony, Hearsay, Net Opinion, New Jersey Appellate Division, New Jersey Rules of Evidence, non-testifying experts, Rule 403, Rule 703, Rule 808, Trial Practice | Leave a comment
Last week, primarily relying on Evidence Rules 703 and 808, the New Jersey Appellate Division struck a blow to the practice of bootstrapping, which is when a testifying expert at trial improperly presents a non-testifying expert’s opinion to the jury.
In James v. Ruiz, the New Jersey Appellate Division addressed whether lawyers are allowed to ask an expert witness at trial whether his or her findings are consistent with those of a non- testifying expert. In other words, the Appellate Division confronted the practice of utilizing expert testimony to “bootstrap” into evidence unauthenticated hearsay studies, reports, or other documentary evidence.
Judge Sabatino, writing for the Court, held that such questioning is inappropriate when the purpose is to have the jury consider an absent expert’s hearsay opinions about “complex and disputed matters.”
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