John Ostrowski, et al. v. Cape Transit Corp., et al. (A-66-04) Following up on an eralier post, last week, the New Jersey Supreme Court affirmed an Appellate Division’s decision that will have defense attorneys thinking twice before they allege that the plaintiff is faking their injury. The issue before the Court was when a defendant who presents expert testimony that a defendant is “faking” symptoms of a serious brain injury, does this constitute an attack on his character, and if so, can the plaintiff then rebut this testimony with evidence addressing his character for truthfulness. This question came from a case in which John G. Ostrowski who was injured in 1997 when a truck he was driving was hit in the rear by a bus, causing his head to slam into the windshield. The defendants (Ted M. Lively – Driver, and Cape Transit Corp – Employer) conceded liability and the matter was tried before a jury solely on the issue of damages. Prior to the accident, Mr. Ostrowski had been a lead saxophone player with the Avalon String Band, which marches in Philadelphia’s New Years’ Day Mummers Parade. During trial, the defense presented medical witnesses which testified that Mr. Ostrowski suffered merely a mild concussion and was still able to enjoy the activities that he had before the accident. In light of this testimony, the defense focused chiefly on Mr. Ostrowski’s truthfulness. Other defense experts also claimed that Mr. Ostrowski was deliberately doing poorly on his neurological exams. In attacking Ostrowski’s credibility, the defendants also relied on his statement at deposition that he had not continued to march in the band after the accident as well as Ostrowski’s failure to disclose to his treating doctors that he had been treated for depression for four years following a 1989 accident that also resulted in litigation. Mr. Ostrowski presented both medical experts and presented lay witnesses to support his brain-injury claim. Specifically that the injury had an adverse affect on his ability to engage in his former activities. The jury found in favor of Mr. Ostrowski and awarded him $3 million in damages. The defendants appealed to the Appellate Division, contending that by allowing Ostrowski to present in his case with an array of witnesses who testified concerning their opinion of his character for truthfulness and honesty, the trial court committed harmful error because Ostrowski failed to establish the requisite foundation for admission of this evidence. In addition, defendants argued that the evidence was so prejudicial that a new trial was required. The Appellate Division disagreed, affirming the decision of the trial court. The Appellate Division noted that the defense presented its claim that Mr. Ostrowski lied in his deposition and implied that he fraudulently benefited from an earlier lawsuit. The Court accepted the opinions of the defense experts who believed that Mr. Ostrowski was faking his symptoms, and as such felt that Mr. Ostrowski was entitled to rebut by opinion and reputation evidence attesting to his character for truthfulness. The Supreme Court granted certification and affirmed the Appellate Division’s decision.