## Facts

- John G. Ostrowski was driving a truck when it was rear-ended by a bus owned by Cape Transit Corp. and driven by Cape Transit employee Ted M. Lively.
- Cape Transit conceded liability, so the jury trial was limited to the amount of damages.
- Plaintiffs (John and Dolores Ostrowski) claimed John sustained a serious head/brain injury that left him unable to work and significantly impaired his daily functioning.
- In opening statement, Cape Transit asserted that Ostrowski was exaggerating or fabricating the extent of his injury and previewed evidence it planned to introduce to prove he was “faking.”
- During the defense case, Cape Transit introduced medical testimony and other proof consistent with its theme that Ostrowski was malingering, including video evidence of him performing activities he said he could no longer do.
- After hearing the defense opening and in light of how the case was being tried (a direct claim that Ostrowski was living a lie to obtain money damages), the trial court permitted plaintiffs to present opinion or reputation evidence that Ostrowski was a truthful person during plaintiffs’ case-in-chief.
- The jury returned a substantial damages verdict for plaintiffs.
- Cape Transit appealed, arguing that the trial court erred by allowing character evidence supporting Ostrowski’s truthfulness, particularly because it was introduced before the defense presented its witnesses.

## Issues

1. Whether a defendant’s presentation that a personal-injury plaintiff is malingering or “faking” symptoms amounts to an attack on the plaintiff’s character for truthfulness under N.J.R.E. 608(a), allowing supportive opinion/reputation evidence of truthful character.
2. Whether the trial court had discretion to allow such supportive character evidence in the plaintiff’s case-in-chief when the defense’s opening statement made clear it would accuse the plaintiff of dishonesty.
3. Whether the admission of testimony describing aspects of the plaintiff’s life (including work habits and related activities) required reversal, or was within the trial court’s discretion and/or harmless in light of the full record.

## Decision

- The Appellate Division affirmed the judgment for plaintiffs.
- The court held that Cape Transit’s malingering theory—advanced through opening statement and proof suggesting Ostrowski was pretending to be impaired—functioned as an attack on his character for truthfulness within the meaning of N.J.R.E. 608(a).
- Because the defense made clear from the start that the case would turn on whether Ostrowski was lying about his condition, the trial judge did not abuse discretion by allowing plaintiffs to present truthfulness character evidence in their case-in-chief rather than waiting for rebuttal.
- The court rejected claims of reversible error as to other challenged evidence concerning damages; any arguable overreach did not warrant a new trial given the overall evidence and the trial context.

## Legal Principles

- Under N.J.R.E. 608(a), opinion or reputation evidence supporting a witness’s truthful character is admissible only after the witness’s character for truthfulness has been attacked by opinion or reputation evidence “or otherwise.”
- An attack “otherwise” may occur when a party’s proofs and trial theme go beyond disputing the extent of an injury and instead accuse the opposing party of dishonesty—such as asserting the plaintiff is malingering or fabricating symptoms to obtain damages.
- Trial courts have discretion over the order of proof. When an announced defense theme is that the plaintiff is lying, the court may allow responsive truthfulness character evidence in the plaintiff’s main case to avoid an unfair presentation of the credibility contest.
- Evidentiary rulings will not justify reversal absent harmful error; where the record contains extensive competing medical and lay testimony on damages, marginal evidentiary disputes may be treated as harmless.

## Conclusion

Ostrowski v. Cape Transit Corp. holds that when a defendant frames a damages-only personal-injury trial around the claim that the plaintiff is faking or malingering, that presentation can qualify as an attack on the plaintiff’s character for truthfulness under N.J.R.E. 608(a), permitting the plaintiff to respond with opinion or reputation evidence of truthful character, and the trial court may allow that response in the case-in-chief when the defense’s opening makes the credibility attack clear.


Ostrowski v. Cape Transit Corp., 853 A.2d 985 (2004)