Expert Reports Must Be Based on Facts Contained in the Record and Must Fall Within the Scope of The Expert’s Criteria
Docket No.: A-4961-18T4
Decided October 21, 2020
Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.
In a recent unpublished decision, the Appellate Division reviewed a trial court’s dismissal of plaintiff’s personal injury complaint where he fell off a ladder working on defendant’s home, as he had failed to prove what caused the ladder to fall.
In Salasevicius, plaintiff sustained injury when he fell from a ladder while performing home improvement and maintenance services at defendants’ residence. The ladder was placed on defendant’s deck so plaintiff could reach the roof. The ladder moved while plaintiff was on the ladder, causing him to fall. Plaintiff was unsure of what actually caused the ladder to move, and speculated in his deposition that the paint peeling up from the deck may have caused it.
It was undisputed that the peeling paint was visible on the deck. Plaintiff had been working on defendant’s roof for at least a week prior to the fall. Plaintiff also continued to work on the ladder even after he had fallen.
Plaintiff brought a lawsuit for personal injury against defendant. To support his claim, plaintiff hired an expert that opined based on reasonable engineering probability that the condition of the deck was unsafe and it was reasonably foreseeable that a ladder placed on the deck would result in slippage, causing the plaintiff’s injury.
The trial court dismiss plaintiff’s complaint on summary judgment, ruling plaintiff had failed to prove that defendant could have reasonably foreseen that the deck was in a dangerous condition. Plaintiff appealed. The Appellate Division affirmed the trial court’s dismissal of plaintiff’s personal injury complaint. They found that because plaintiff had worked on the ladder on the deck for a week prior, then worked after he had fallen, and the paint peeling was noticeable, that it was not reasonably foreseeable the deck was any more dangerous than reasonably apparent to the plaintiff.
The Appellate Division also found that plaintiff’s expert report was a net opinion, lacking a factual basis to make the expert’s conclusion on causation. The expert report was made without a site inspection or inspection of the ladder. Thus the expert by simply looking at statements and concluding that the deck caused the fall lacked a grounding of fact to tie plaintiff’s injury to the deck’s condition, and was an impermissible net opinion.
For personal injury matters, expert reports can make or break a case. In order to have an admissible report, and not an impermissible net opinion, the expert’s report and conclusions must be based on facts contained in the record and must fall within the scope of the expert’s criteria. An expert cannot opine on material outside of their expertise, and they cannot rely on facts not contained in the record. Perhaps what is more important is hiring an attorney that understands these requirements and has a variety of trusted experts to ensure that the expert reports used to prove your case are admissible that get the compensation you are entitled.
If you or someone you know has been injured in a product liability, slip and fall, motor vehicle accident, truck crash, wrongful death, or other premises related injury, you need to make sure you contact a personal injury attorney with experience today. Failing to consider these issues could result in your case be dismissed permanently. Do not hesitate to contact Hark & Hark today to discuss your personal injury.
For personal injury matters, you pay nothing upfront, and our fee is paid as a percentage of your recovery. At Hark & Hark, we represent clients in all towns in New Jersey, including Audubon, Gloucester City, Oaklyn, Audubon Park, Gloucester Township, Pennsauken, Barrington, Haddon Heights, Pine Hill, Bellmawr, Haddon Township, Pine Valley, Berlin Borough, Haddonfield, Runnemede, Berlin Township, Hi-Nella, Somerdale, Brooklawn, Laurel Springs, Stratford, Camden, Lawnside, Voorhees, Cherry Hill, Lindenwold, Waterford, Chesilhurst, Magnolia, Winslow, Clementon, Merchantville, Woodlynne, Collingswood, Mt. Ephraim, and Gibbsboro.