2019 What is a net opinion? Why can’t my expert testify in my case?

Philadelphia Contributionship vs. Ryan, Inc.  New Jersey Appellate Division Unreported Decision decided January 9, 2019

Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.


Defendant is a fuel oil company that provided fuel for the oil-fired furnace located in the home of David Munz. Defendant also serviced the furnace for many years. Approximately one month before December 16, 2013, and again on that date, defendant’s service technician, Anthony Perriello, serviced the furnace after Munz reported having no heat. On January 4, 2014, a fire occurred at Munz’s home, which originated inside the furnace. Munz submitted a property damage claim to plaintiff, which plaintiff paid. On July 6, 2015, plaintiff filed a complaint for subrogation against defendant to recover the sum paid to Munz.On April 13, 2017, the court entered an order barring Goetz’s and Carey’s reports and testimony and granting summary judgment dismissing the complaint. In an oral opinion, the court found the case required expert testimony establishing the origin and cause of the fire and whether defendant was negligent. The court then reviewed the written summary of Goetz’s report and found that other than saying the fire originated in the furnace, Goetz did not establish the cause of the fire or give the whys and wherefores supporting plaintiff’s claim that defendant’s actions caused the fire. The court concluded that Goetz rendered an inadmissible net opinion and barred his report and testimony.

The court reviewed the written summary of Carey’s report and found that although Carey concluded the furnace, chimney pipe and heat exchanger would not have been in a safe and serviceable condition when Perriello serviced the furnace, he failed “to reference any textbook treatise, standard custom recognized practice or anything of the like other than his personal view” to support his opinion. The court also stated that Carey talk[ed] about the chimney pipe and the holes in the system and things like that. And having done that, he [did not] say at all why ̶ provide any foundation other than his own training and experience as to why ̶ that those were the problems and not let the [furnace] continue to be [in] serviceable condition and continue to be operated. So there is no, I find, explanatory analysis provided.

The court determined that Carey’s supplemental report was barred by court orders. Nevertheless, the court found that “the same is true of [the supplemental report]. . . . At no time is there any reference to anything other than [Carey’s] own personal viewpoint.” The court concluded that Carey rendered inadmissible net opinions and barred his reports and testimony. Due to the lack of expert evidence, the court granted summary judgment and dismissed the complaint.

Plaintiff filed a motion for reconsideration, reiterating that the court should allow Carey’s supplemental report based on newly discovered evidence from Perriello’s deposition testimony that was not readily available or discoverable prior to the deposition, but again did not explain why. In the alternative, plaintiff argued for the first time that expert testimony was not necessary. Defendant countered that the September 16, 2016 order required plaintiff to serve all expert reports or written summaries by September 26, 2016, and the order limited the testimony of plaintiff’s experts to the scope of the reports furnished and barred any expert reports not timely served. Defendant also argued that the February 3, 2017 order barred plaintiff from submitting further expert reports; expert testimony was necessary to prove the cause of the fire; and Goetz and Carey rendered net opinions as to the cause of the fire. Defendant further argued that Perriello’s deposition testimony was not newly discovered evidence that was not readily available or discoverable prior to the deposition because plaintiff could have deposed Perriello prior to submitting the written summaries of Goetz’s and Carey’s oral expert reports.

New Jersey Court Rule 4:17:  Analysis

The first two sentences of [Rule 4:17-4(e)] define the answering party’s obligation with respect to furnishing the full reports received by him and all supplementary reports.” Pressler & Verniero, Current N.J. Court Rules, cmt. 5 on R. 4:17-4(e) (2019). Rule 4:17-7 provides, in pertinent part:

Except as otherwise provided by [Rule] 4:17-4(e), if a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than [twenty] days prior to the end of the discovery period, as fixed by the track assignment or subsequent order. Amendments may be allowed thereafter only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date. In the absence of said certification, the late amendment shall be disregarded by the court and adverse parties.

Here, defendant filed a motion for an order fixing a date certain for the furnishing of plaintiff’s expert reports. The September 16, 2016 order set September 26, 2016 as the deadline for plaintiff the furnish “all written expert reports or written summaries of oral reports from all proposed expert witnesses on liability, causation, and/or damages.” (Emphasis added). The order also specifically limited the testimony of plaintiff’s experts whose reports were timely furnished to the scope of the reports furnished, and barred the testimony of any expert whose report was not timely furnished. In addition, the February 3, 2017 order barred plaintiff from serving further expert reports.

Plaintiff’s late service of Carey’s supplemental report violated the September 16, 2016 order not only as to time, but also as to content. Plaintiff served the supplemental report well after the September 26, 2016 deadline, and Carey asserted a completely new theory of liability that went beyond the scope of the written summary of his oral report. The supplemental report also violated the February 3, 2017 order, which denied plaintiff leave to serve further expert reports.

In addition, the court had extended discovery to March 6, 2017, but not for the purpose of allowing plaintiff to amend its answers to interrogatories to include supplemental expert reports. Nonetheless, on March 1, 2017, less than twenty days prior to the discovery deadline, plaintiff amended its interrogatory answers to include Carey’s supplemental expert. Plaintiff claimed that Perriello’s deposition testimony provided newly discovered evidence that was not reasonably available or discoverable by the exercise of due diligence prior to the discovery deadline, but gave no explanation whatsoever as to why Perriello was not deposed prior to the submission of the written summary. For all of these reasons, Carey’s supplemental report and testimony based thereon were properly barred.

Net Opinion Analysis —

  1. Appellate review of a trial judge’s decision

We next address whether the court properly barred Carey’s initial expert report and testimony based thereon. A trial court’s evidentiary rulings, including those regarding expert testimony, are “entitled to deference absent a showing of an abuse of discretion[.]” State v. Brown, 170 N.J. 138, 147 (2001) (quoting State v. Marrero, 148 N.J. 469, 484 (1997)); see also Townsend v. Pierre, 221 N.J. 36, 53 (2015); Bender v. Adelson, 187 N.J. 411, 428 (2006). “[An] abuse of discretion only arises on demonstration of ‘manifest error or injustice[,]'” Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)), and occurs when the trial judge’s “decision is ‘made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'” Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)). We discern no abuse of discretion here.

  1. Net Opinion of the expert proffered by the plaintiff and interaction with New Jersey Rule of Evidence 702 & 703

Generally, the admission of expert testimony is governed by N.J.R.E. 702, which provides: 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.

Admissibility turns on three basic requirements:

(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 such that an expert’s testimony could be sufficiently reliable; and

(3) the witness must have sufficient expertise to offer the intended testimony.

N.J.R.E. 703 addresses the foundation for expert testimony. The rule mandates that expert opinion be grounded in “facts or data derived from

(1) the expert’s personal observations, or

(2) evidence admitted at the trial, or

(3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts in forming opinions on the same subject.” Polzo v. Cty. of Essex, 196 N.J. 569, 583 (2008) (quoting State v. Townsend, 186 N.J. 473, 494 (2006)).

The net opinion rule is a “corollary of [N.J.R.E. 703] . . . which forbids the admission into evidence of an expert’s conclusions that are not supported by factual evidence or other data.” Ibid. (alteration in original). The rule requires that an expert “‘give the why and wherefore’ that supports the opinion, ‘rather than a mere conclusion.'” Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013) (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011)); see also Buckelew v. Grossbard, 87 N.J. 512, 524 (1981) (explaining that “an expert’s bare conclusion[], unsupported by factual evidence, is inadmissible”).

The net opinion does not mandate an expert organize or support an opinion in a particular manner that opposing counsel deems preferable. Pierre, 221 N.J. at 54. An expert’s proposed testimony should not be excluded merely “because it fails to account for some particular condition or fact which the adversary considers relevant.” Creanga v. Jardal, 185 N.J. 345, 360 (2005) (quoting State v. Freeman, 223 N.J. Super. 92, 116 (App. Div. 1988)).

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.” Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992). An expert’s conclusion “is excluded if it is based merely on unfounded speculation and unquantified possibilities.” Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997) (quoting Vuocolo v. Diamond Shamrock Chem. Co., 240 N.J. Super. 289, 300 (App. Div. 1990)). By definition, unsubstantiated expert testimony cannot provide to the factfinder the benefit that N.J.R.E. 702 envisions: a qualified specialist’s reliable analysis of an issue “beyond the ken of the average juror.” Polzo, 196 N.J. at 582; see N.J.R.E. 702. Given the weight that a jury may accord to expert testimony, a trial court must ensure that an expert is not permitted to express speculative opinions or personal views that are unfounded in the record. Pierre, 221 N.J. at 55.

Applying these standards, we conclude the court correctly determined that Carey rendered an inadmissible net opinion. Carey’s opinion is completely lacking in the “why[s ]and wherefore[s,]” of the cause of the fire, Pomerantz Paper Corp., 207 N.J. at 372, and he did not explain the methodology for his opinions. Landrigan, 127 N.J. at 417. The written summary of Carey’s oral report stated that the furnace was not in a serviceable condition when defendant serviced it. However, as the court found, Carey did not reference any textbook, treatise, standard custom, or recognized practice other than his personal view, and provided no explanatory analysis whatsoever. Thus, it cannot be said that anything in Carey’s report constituted “specialized knowledge [that] will assist the trier of fact.” N.J.R.E. 702. Most importantly, as the court noted on reconsideration, “while [] Carey may be able to establish that someone had a duty that was breached which caused the fire, because the report of [Goetz was] excluded, there’s nothing to definitely tie defendant to being the cause beyond mere speculation.”

Given our standard of review, we conclude the court properly barred Carey’s expert report and testimony, as he failed to meet the threshold requirements necessary to surpass a net opinion.

Common Knowledge Arguments — The causal relationship of the fire is within the common knowledge grasp of the jury!

Plaintiff argues that this case does not require expert testimony because

jurors of common knowledge can form a valid conclusion on the standard of care. We disagree.

“In most negligence cases, the plaintiff is not required to establish the applicable standard of care.” Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014). In the majority of negligence cases, “[i]t is sufficient for [the] plaintiff to show what the defendant did and what the circumstances were. The applicable standard of conduct is then supplied by the jury[,] which is competent to determine what precautions a reasonably prudent man in the position of the defendant would have taken.” Id. at 406-07 (alterations in original) (quoting Sanzari v. Rosenfeld, 34 N.J. 128, 134 (1961)). In cases that do not require expert testimony, the facts are such that “a layperson’s common knowledge is sufficient to permit a jury to find that the duty of care has been breached without the aid of an expert’s opinion.” Id. at 407 (quoting Giantonnio v. Taccard, 291 N.J. Super. 31, 43 (App. Div. 1996)).

However, in some instances, “the ‘jury is not competent to supply the standard by which to measure the defendant’s conduct,’ and the plaintiff must instead ‘establish the requisite standard of care and [the defendant’s] deviation from that standard’ by ‘present[ing] reliable expert testimony on the subject[.]” Ibid. (first and second alteration in original) (citations omitted). To determine whether expert testimony is required, a court should consider “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 [defendant] was reasonable.” Ibid. (alteration in original) (quoting Butler v. Acme Mkts, Inc., 89 N.J. 270, 283 (1982)).

The common knowledge doctrine applies in circumstances “where ‘jurors’ common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant’s negligence without the benefit of the specialized knowledge of experts.'” Hubbard v. Reed, 168 N.J. 387, 394 (2001) (quoting Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 469 (1999)), superseded by Affidavit of Merit statutory amendment, L. 2001, c. 372, § 1, N.J.S.A. 2A:53A-26 to -29, as recognized in Meehan v. Antonellis, 226 N.J. 216, 228 (2016). “The most appropriate application of the common knowledge doctrine involves situations where the carelessness of the defendant is readily apparent to anyone of average intelligence and ordinary experience.” Rosenberg v. Cahill, 99 N.J. 318, 325 (1985).

This case is not a common knowledge case. It is the type of case where evidence of defendant’s negligence is not so readily apparent as to justify use of the common knowledge exception. Rather, this case involves specialized technical knowledge that is necessary to provide the jury with the applicable standard of care for the maintenance and servicing of a specific type of oil-fired furnace. An average juror would lack the “‘requisite special knowledge, technical training and background’ to make those determinations without an expert’s assistance.” Lucia v. Monmouth Med. Ctr., 341 N.J. Super. 95, 103 (App. Div. 2001) (quoting Kelly v. Berlin, 300 N.J. Super. 256, 264 (App. Div. 1997)).

The cases plaintiff cites to support the common knowledge exception do not apply, as none of them concern the standards of care and proximate cause in matters involving technical machinery or investigations of the origin and cause of a furnace fire. For example, Sommers v. McKinney, 287 N.J. Super. 1 (App. Div. 1996) involved a legal malpractice claim where a juror of common knowledge could determine without expert testimony whether the failure to file a brief and advise the client of settlement discussions constituted attorney negligence. Id. at 12. The case here involves specialized technical knowledge of the maintenance and service of a furnace.

Rosenberg is contrary to plaintiff’s position, and actually supports defendant’s position and the court’s opinion. In Rosenberg, the Court determined “that the common knowledge doctrine was not available . . . and [did] not obviate the need for competent expert testimony to establish the applicable duty of care with respect to the proper chiropractic practices” in the reading of x-rays. 99 N.J. at 327. Similarly, here, competent expert testimony is necessary to establish the applicable standard of care with respect to the maintenance and service of the furnace.

In Klimko v. Rose, 84 N.J. 496 (1980), the Court held that although expert testimony was required to determine causation, expert testimony was not required to establish the standard of care applicable to a chiropractor and whether the chiropractor breached that standard of care. Id. at 505-06. The Court reasoned that a layperson could determine whether the chiropractor acted within his standard of care by continuing to apply pressure to the patient’s neck where the patient had already once lost consciousness. Ibid. In contrast, the case here is not a case where the standard of care is readily apparent to a layperson.

In Butler v. Acme Markets, Inc., 89 N.J. 270, 274-75, 283-84 (1982), the Court held that the lack of expert testimony was “not fatal” for the jury to decide whether the defendant was negligent and breached its duty of care to its customers regarding a robbery that occurred in the defendant’s parking lot by failing to post and having one guard remain inside of the store in a known high crime area. In Butler, unlike here, no specialized skill or knowledge was required for a jury to determine whether the lack of signs or heightened security in a high crime area meant the defendant was negligent.

Finally, in Black v. Pub. Serv. Elec. & Gas Co., 56 N.J. 63, 68, 78-79 (1970), the defendant’s maintenance of a high voltage wire allegedly caused the decedent’s electrocution. The Court held that expert testimony was not necessary for the jury to decide whether the duty to exercise care commensurate with the risk involved was satisfied when the defendant failed to post warning signs on or near the poles or on the wires. Unlike here, no specialized skill or knowledge was necessary to determine whether or not warning signs were appropriate.

The more applicable case is Davis, where the Court held that “the inspection of fire sprinklers by qualified contractors . . . ‘constitutes a complex process involving assessment of a myriad of factors’ that ‘is beyond the ken of the average juror.'” 219 N.J. at 408 (quoting Giantonnio, 291 N.J. Super. at 44). Such is the case here. Expert testimony as to the cause of the fire requires technical knowledge of proper maintenance and servicing of a furnace that is beyond the ken of an average juror.


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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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