Villanueva v. Zimmer, A-1587-11T3; Appellate Division; opinion by Kennedy, J.A.D.; decided and approved for publication June 21, 2013. Before Judges Messano, Ostrer and Kennedy. On appeal from the Law Division, Morris County, L-1016-07. DDS No. 36-2-0380 [28 pp.]
Plaintiff Rozelle Villanueva was stopped on Route 287 due to heavy traffic. Matthew Zimmer was stopped behind her. Defendant Carmen DeRosa struck the rear of Zimmer's truck, pushing it into the rear of plaintiff's vehicle. Plaintiff was able to drive away from the scene.
Approximately four months after the accident, plaintiff began treatment for back and neck pain. Eventually, Richard Kaul, M.D., a specialist in interventional pain and minimally invasive spine surgery, recommended spinal fusion therapy to stabilize plaintiff's spine and relieve her back pain. A forensic epidemiologist opined that the accident caused plaintiff's injuries.
In the meantime, the Social Security Administration (SSA) issued a "Notice of Award" to plaintiff, finding that she became disabled as of the date of the accident. It noted that this determination must be reviewed at least every three years and is subject to change.
In this personal-injury action, plaintiff testified that she did not return to work because of her pain and inability to perform her job functions. Three doctors testified for the defense at trial, each finding no objective evidence of injuries resulting from the accident and one opining that plaintiff's back problems and pain were due to her obesity.
Prior to trial, defense counsel filed a motion in limine to prevent plaintiff from introducing any evidence or testimony pertaining to the SSA disability determination. Plaintiff, relying on Golian v. Golian, 344 N.J. Super. 337 (App. Div. 2006), argued that she was entitled to introduce the fact that she had been declared disabled through an SSA determination and to have that determination declared presumptive evidence of disability and inability to work as a consequence of the accident. The trial judge disagreed.
The jury found that plaintiff did not sustain an injury as a proximate result of the collision and judgment was entered for defendant.
Held: In this personal-injury action, plaintiff cannot introduce evidence of, or testify regarding, a Social Security Administration determination that she is disabled and unable to work since the SSA decision is hearsay and N.J.R.E. 803(c)(8) does authorize its admission as a hearsay exception. Golian does not mandate a different result.
The panel notes that plaintiff expressly eschews reliance on either res judicata or collateral estoppel, recognizing the critical absence of the element of identity of parties or privies.
As to her argument that the SSA determination was admissible and created a presumption as to her disability and inability to work, the panel looks to the Rules of Evidence and the principle that hearsay statements that do not conform to the exceptions enumerated in the rules are not admissible. It says it is clear that the SSA determination is hearsay and was proffered for the truth of the finding therein. The only hearsay exception that might apply is the public-records exception under N.J.R.E. 803(c)(8), under which a party seeking to admit a hearsay statement must demonstrate that it is either a statement in a writing made by a public official of an act done by or observed by the official within the scope of his official duty or statistical findings of a public official based on a report or an investigation that was within the official's duty to make.
The panel says the history of N.J.R.E. 803(c)(8) makes very clear that New Jersey has explicitly rejected the proposal in the Uniform Rules of Evidence that official investigatory conclusions should be included as admissible hearsay. Rather, as found in case law, there was an unmistakable intent to exclude from evidence factual findings or conclusions, aside from statistical findings, by official investigatory bodies, insofar as admissibility is posited on the exception to the hearsay rule constituted by the rule.
The panel says the federal courts have reached determinations about the admission of administrative conclusions very similar to the New Jersey courts in applying the federal analogue of N.J.R.E. 803(8)(c).
The panel says a court must be cautious about the use of an administrative determination that may be predicated on a different, more lenient, standard, or sets forth no factual findings.
Guided by these principles, the panel holds that N.J.R.E. 803(c)(8) does not authorize the admission of an SSA determination of disability as a hearsay exception in this case. The plain terms of the rule simply do not authorize the admission of the SSA determination to be used as substantive evidence in the action where plaintiff has the burden of proving she suffered an injury caused by the accident and that the injury impaired her ability to work. The SSA determination is neither an "act done by the official" nor "an act, condition or event observed by the official," nor is the finding statistical.
Further, an SSA disability determination is of dubious probative value in a personal-injury action. The lack of a meaningful adversarial process with respect to the cause, existence and extent of a plaintiff's alleged disability renders the SSA's conclusions on that issue unreliable.
Conversely, defendant may suffer real and significant prejudice from the admission of the SSA determination. It could cause the jury to inappropriately give weight to its conclusions that plaintiff suffered a disability and was unable to work and to find, therefore, that this was due to defendant's negligence.
The panel says Golian was limited to the facts presented, which are distinguishable from this case.
For appellant Rozelle Villanueva — William L. Gold (Bendit Weinstock; Sherri Davis Fowler on the brief). For respondent Carmen DeRosa — James J. Pieper (Litvak & Trifiolis). For amicus curiae New Jersey Association for Justice — Bruce H. Stern (Stark & Stark).