Family Court and NET Opinions

Submitted by New Jersey Domestic Violence Lawyer, Jeffrey Hark.

J.M. v. T.F., N.J. Super. App. Div.


Defendant appealed from a final restraining order entered in favor of plaintiff pursuant to the Prevention of Domestic Violence Act of 1991. Plaintiff went to defendant’s home to pick up their daughter and was presented with a cup of coffee. Plaintiff drank the coffee and soon became incapacitated and non-responsive. He was rushed to the hospital and arrived comatose and in critical condition. After his discharge from the hospital, plaintiff filed a complaint that sought a temporary restraining order against defendant under the PDVA.


The complaint alleged that defendant committed the predicate act of assault and asserted that defendant gave plaintiff a cup of coffee that contained benzodiazepine and that the benzodiazepine caused his life-threatening condition. Subsequently, the trial court rendered an opinion that found defendant committed the predicate act of aggravated assault and granted a FRO, finding that it was necessary to protect plaintiff from future acts of domestic violence.

After the FRO was entered, Defendant raised numerous issues on appeal, most notably that the trial court’s determination that she committed assault was not supported by credible evidence. She further argued that there was no evidence that established the reliability of the urine drug screen or that benzodiazepine caused the plaintiff’s condition. The court reversed the trial court’s entry of the FRO.

The Appellate panel ruled that plaintiff failed to present any expert testimony that established that benzodiazepine was the proximate cause of his medical condition. The court reasoned that the trial court was without sufficient evidence that supported its finding of a fact essential to its conclusion.  The court further found that because the trial court lacked any expert testimony to support its findings, the trial court relied on the testimony of the two treating physicians to support its causation determination. The court ruled it was error to do so. The court further found that the testimony of one of the treating physicians constituted an inadmissible net opinion because there was no evidence as to the standard the witness applied in forming his belief. Finally, the court held that the trial court’s conclusion was founded on a finding of causation that was so manifestly unsupported by competent, relevant, and reasonably credible evidence, that it offended the interests of justice.

This is yet another example of the trial court acting as the gate keeper for the introduction of competent medical evidence in a litter to support a claim. Obviously, in this case there was no toxicology report obtained from the hospital and or a blood test obtained with testimony revealing exactly what chemical substance could have actually caused the effect to this plaintiff’s condition. As a result, when the doctor testified he did not testify from the “evidence of the case”. With out linking the plaintiff’s subjective complaints to any chemical substances found in his bloodstream it is very clear that the doctor was merely “guessing” as to what caused the black out soon after plaintiff left defendant’s location. The interesting part of this case is the planus did go to the bank to bring to doctors to court to testify however the missing link was the chemical analysis of the blood to make a closer relationship connection between the Pena condition and why is condition took place.

This is another example of the net opinion being applied to any and all trial cases in New Jersey and not just in the car crash setting. This is a family court setting where the aggrieved party was seeking a final restraining order based on the defendants conduct.

Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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