NJ Supreme Court Rules that Expert’s Report Properly Barred as Net Opinion Because Contradicted by Facts in Record

In Townsend v. Pierre, decided March 12, 2015, the New Jersey Supreme Court addressed the net opinion rule in the context of an automobile accident negligence case. This case involved a tragic accident in which Alvin Townsend, a motorcyclist, was killed. He was travelling on Levitt Parkway and reached the intersection of Garfield Drive and Levitt Parkway, Willingboro, NJ, when the motorist, Noah Pierre, after proceeding from a stop sign into the intersection and turning left, struck his motorcycle. The plaintiff claimed that the corner property owner (Garland Property Management LLC) was negligent due to shrubbery that obstructed the view of Pierre. The issue on appeal was whether the trial court properly ruled that the plaintiff’s expert report against the property owner was barred and, hence, the plaintiff was unable to prove negligence against it.

In uncontradicted testimony, the driver Pierre testified that she stopped 4 times at that intersection and, before proceeding out into the intersection onto Levitt Parkway, she had an unobstructed view of the oncoming traffic. Her passenger also confirmed that her view of approaching traffic was unobstructed.

Despite this testimony, plaintiff’s expert opined that the shrubbery on the corner of the intersection was a proximate cause of the collision, blocking Pierre’s view of the motorcycle, who was approaching from her left. While acknowledging Pierre’s testimony, he contended that her account of the accident was mistaken.

The trial court struck the plaintiff’s expert report as a net opinion and barred the report. Summary judgment was granted to this defendant, dismissing the suit. However, the Appellate Division reversed, finding that the expert’s conclusion was sufficiently grounded in the record and that the plaintiff could elicit the expert’s opinion disputing Pierre’s testimony in the form of a hypothetical question at trial.

The Supreme Court reversed. The Court found that the trial court properly barred the causation opinion of plaintiff’s expert. The expert report qualified as an inadmissible net opinion because it speculated on the issue of causation. The expert did not apply his engineering expertise to present empirical evidence undermining Pierre’s undisputed and corroborated testimony. He took no measurements to demonstrate the line of vision of a driver located at a point at which Pierre recalled making her left turn. He did not even suggest that at the location identified by Pierre at the point where she turned, the shrubbery was capable of blocking a driver’s view of oncoming traffic.

Instead, the expert reconstituted the facts and assumed that Pierre’s testimony was wrong. Accordingly, the Court found that this proposed expert testimony was an inadmissible net opinion.

The Supreme Court also disagreed with the Appellate Division’s ruling that the opinion’s shortcomings could be remedied by the use of a hypothetical question. The Appellate Division assumed that a hypothetical question could be asked of the expert “to assume hypothetically that Pierre was unable to clearly see to her left as she made the turn.” The Supreme Court ruled that such a hypothetical question could not convert the expert’s net opinion on the issue of causation into admissible expert testimony. Hypothetical questions have to be based upon facts in the record. Here, this question not only lacked the requisite foundation in the facts, but was premised on a rejection of uncontroverted testimony. Thus, the use of this hypothetical question cannot salvage the causation opinion proffered by the expert.

Accordingly, the Supreme Court found that the trial court properly struck the plaintiff’s expert report as a net opinion. Without this report, there were no other facts in the record that would support a determination that the shrubbery impeded Pierre’s view of oncoming traffic. Thus, the Court found that the trial court properly granted summary judgment to the property owner.

This is a good decision for defendants because it reiterates that expert reports must have an actual factual foundation to avoid being a net opinion. Also, it supports the grant of summary judgment when there are no facts to support the plaintiff’s claim. Mere speculation will not be sufficient to defeat a motion for summary judgment as to causation of an accident.