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Recent Successful Motion to Bar Plaintiff’s Liability Expert as “Net Opinion” Resulting in Summary Judgment

By on September 18, 2020 in Liability with 0 Comments

Our firm recently prevailed on a Motion to Bar the report of a Plaintiff’s Expert as “Net Opinion,” which then led the Court to grant our Motion for Summary Judgment on behalf of our client.  The matter was Broome v. ShopRite of Millville, et al., venued in Cumberland County, Docket No. L-468-18.  This favorable disposition is indicative of the fact that Defendants should always consider whether a report of a Plaintiff’s expert is admissible pursuant to the precedent of the State of New Jersey and whether a Motion to Bar is in order.

            Brief Summary of Expert and “Net Opinion” Precedent

New Jersey Rule of Evidence 702 governs the admissibility of expert testimony: “If scientific, technical or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” The well-established test to determine whether expert testimony is required turns on “whether the matter to be dealt with is so esoteric that jurors of common judgment and experience cannot form a valid judgment as to whether the conduct of the party was reasonable.” Scully v. Fitzgerald, 179 N.J. 114, 127 (2004) (quoting Butler v. Acme Markets, Inc., 89 N.J. 270, 283 (1982)).

The Rule sets forth three requirements for the admission of expert testimony: “(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art that an expert’s testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.” State v. Berry, 140 N.J. 280, 290 (1995) (quoting State v. Kelly, 97 N.J. 178 (1984)).

As to what constitutes an “expert opinion,” N.J.R.E. 703 provides that an expert opinion must be supported by facts or data in the record, or alternatively, an expert opinion must be “of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject.”

The “Net Opinion Rule” precludes experts from expressing bare conclusions, unsupported by factual evidence. Buckalew v. Grossbard, 87 N.J. 512, 524 (1981).

The expert’s opinion must be based upon “facts or data . . . perceived by or made known to the expert at or before the hearing. Stanley Co. of America v. Hercules Powder Co., 16 N.J. 295, 305-06 (1954); Fink v. City of Paterson, 44 N.J. Super. 129, 135 (App. Div. 1957).

When evaluating an expert, “a court must ensure that the proffered expert does not offer a mere net opinion.” Pomerantz Paper Corp. v. New Community Corp., 207 N.J. 344, 372 (2011). The Pomerantz Court described the Net Opinion Rule as follows:

“That is, an expert’s bare opinion that has no support in factual evidence or similar data is a mere net opinion which is not admissible and may not be considered. The admissibility rule has been aptly described as requiring that the expert “give the why and wherefore” that supports the opinion, “rather than a mere conclusion.” . . . Applying these standards, our Appellate Division has concluded that a trial court may not rely on expert testimony that lacks an appropriate factual foundation and fails to establish the existence of any standard about which the expert testified.”  [Id. at 372-73 (internal citations omitted)].(Emphasis added.)

In explaining the Net Opinion Rule, the Appellate Division noted that “[e]xpert testimony should not be received if it appears the witness is not in possession of such facts as will enable him or her to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture.” Vuocolo v. Diamond Shamrock Chem. Co., 240 N.J. Super. 289, 299 (App. Div.), certif. denied, 122 N.J. 333 (1990)).

References to the facts and the record are pivotal to the reliability of an expert’s opinion as noted in Nguyen v. Tama, 298 N.J. Super. 41 (App. Div. 1997). The Net Opinion Rule prohibits speculative testimony. Grzanka v. Pfeifer, 301 N.J. Super. 563, 580-91 (App. Div., 1997).

In Townsend v. Pierre, 221 N.J. 36, 55 (2015), an important relatively recent opinion, the New Jersey Supreme Court  summarized that “The net opinion rule, however, mandates that experts ‘be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are reliable.”  (Emphasis added.) 

Broome Matter.

In the Broome matter which we handled, the Plaintiff sued ShopRite, claiming that she fell on liquid on the floor which had leaked from a beverage cooler. The Plaintiff obtained an expert to support her claim. Her expert had opined regarding the purported rate at which water might have leaked from a beverage cooler, producing liquid upon which the Plaintiff allegedly slipped.  Part of the expert’s analysis and opinion was that a lack of maintenance and the accumulation of dust and dirt on the unit contributed to the same. However, Plaintiff’s expert did not examine the cooler until over three (3) years after the date of loss and, thus, he had no basis to opine as to the level of dust and dirt, if any, that was on the unit on the date of loss.

Our office filed a Motion to Bar her expert report. The Court permitted the expert to provide to a jury general testimony about the cooler, how it functions, the effects of improper maintenance on the rate of production of condensate and the rate of evaporation in general, and opine that there was improper maintenance and if the water emanated from the cooler, improper maintenance was more than likely the cause.

Most significantly, however, the Court held that the expert’s opinion about the rate of evaporation of the alleged condensate and the specific amount of time it would take for any amount of water to accumulate was barred as “Net Opinion.” 

Because the Court barred this testimony as “Net Opinion,” we also argued that Plaintiff had failed to establish that our client had the requisite notice of the condition to render it potentially liable.  In the absence of this critical expert opinion from Plaintiff, the Court granted our Motion for Summary Judgment and dismissed the case.

            Conclusion.

Accordingly, when a Plaintiff’s counsel serves a liability expert report to buttress Plaintiff’s claim and place responsibility for the accident upon a defendant, the defense should perform an analysis consistent with the precedent set forth above and determine first whether the expert has the qualifications to render the opinions contained in the report.  If so, an analysis should then be made as to whether those opinions as rendered are sufficiently supported by the evidence developed in the case or whether, pursuant to the precedent above, they may be nothing more than inadmissible “Net Opinion.”  If so, as in the Broome case, a Motion to Bar the expert report, along with a Motion for Summary Judgment to dismiss the case, will be in order.

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Christopher J. Carlson

About the Author

About the Author:

Mr. Carlson’s practice concentrates on the defense of New Jersey and Pennsylvania personal injury matters on behalf of insurance companies, self-insured entities and third-party administrators in the fields of premises liability, transportation law, and construction claims. He has also handled commercial, insurance coverage, fire loss, trucking accident, Dram Shop, subrogation and first party “Personal Injury Protection ” (PIP) matters, as well as Hazmat rapid response services to trucking accidents.

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