Very often, uncertified expert reports are attached to certifications and courts are asked to accept them though there is no ability to cross examine the expert, etc. Sometimes, that even happens at a default or other hearing. That is, a party tries to put the report into evidence without any testimony – direct or cross-examination of the expert. A default hearing occurs for a few reasons. Sometimes, the defendant never actually answers the Complaint. Other times, a party is defaulted because they fail to answer discovery or cure discovery deficiencies. Other times, a default can occur if they don’t show up for trial.
This is what happened in the recent unreported (non-precedential) opinion in the case of A.T.M. v. S.M. decided on November 10, 2020. While this is quite a long opinion (36 pages) for an unreported decision, for purposes of this post, most of the facts are not important. That said, in this case, the plaintiff was defaulted because she did not appear at trial, claiming that she was both ill and out of the country. At the default hearing, the value of defendant’s medical practice was a substantial issue. During the case, the parties had a joint forensic accountant who issued a report valuing the practice at $506,000. He also traced certain marital funds that were at issue.
At the trial, without conducting voir dire (that is, questioned the expert regarding his credentials), the court qualified the accountant as an expert in forensic accounting and admitted his report into evidence without requiring him to testify. In the court’s decision, the accountant’s opinions were accepted. Plaintiff appealed arguing that the trial court erred by admitting the forensic accountant’s valuation report into
evidence at the default hearing without the accountant testifying and being subject to cross-examination. The Appellate Division agreed and reversed the trial court’s decision. In so deciding, the Appellate Division went back to basics regarding hearsay and held:
“Hearsay is ‘a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.'” State v. Branch, 182 N.J. 338, 357 (2005) (quoting N.J.R.E. 801(c)). “Hearsay is inadmissible unless it falls within one or more of the exceptions enumerated in our evidence rules.” State ex rel. J.A., 195 N.J. 324, 336 (2008) (citing Branch, 182 N.J. at 357).
Expert reports “are hearsay and generally are not admissible.” ...
