Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark
My son was injured at a basketball game and I want to sue the athletic association.
My child was injured at religious school and I want to make a claim against the school.
All of these cases have the same legal issues in common, that is what is the threshold of legal proves I need to have against these private/Nonprofit entities.
The next issue is the use of an expert to prove that “gross negligence”.
I have written many blogs about the use an appointment of experts and negligent cases. This court reiterates that the expert opinions must be tied to the facts and the relevant standard of care in the industry. In addition the judge is not there to weigh the evidence! Why? Because at the stage of the summary judgment motion the judge is required to give the nonmoving party, here’s the plaintiff, every benefit of the doubt with regards to the evidence. The judge can only dismiss the case if there is no question of fact and no disagreement of fact with regards to the evidence in front of him. In this case the judge disregarded the plaintiffs fax outlined in the expert opinion and gave him the benefit of the doubt to the school/moving party which was a procedural error.
A review of the appellate division opinion reflect that the trial judge should have conducted a separate hearing concerning the experts opinions, their bases in the facts of the case, and their bases in the standards of care in the industry concerning the door closing mechanism in this case. The Appellate Division send the case back to a new trial judge to conduct that hearing before determining if the expert opinion should be allowed to be presented to a jury at trial. The appellate court was directing the trial court to perform its gatekeeping function of prohibiting those ‘net opinions’ or ‘junk science’ from being presented to a jury. The court stated:
In Townsend, the Court explained the required analysis. It stated:
When a trial court determines the admissibility of expert testimony, N.J.R.E. 702 and N.J.R.E. 703 frame its analysis. N.J.R.E. 702 imposes three core 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 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. It 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.” 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.” The rule requires that an expert “‘give the why and wherefore’ that supports the opinion, ‘rather than a mere conclusion.'” [Id. at 53-54 (alteration in original) (emphasis added) (citations omitted).] In conducting its analysis in the context of a summary judgment motion, a court should not reject an expert’s opinion merely because it does not agree with facts advanced by the movant “if he otherwise offers sufficient reasons which logically support his opinion.” Id. at 54 (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 402 (App. Div. 2002)). But, “[a] party’s burden of proof on an element of a claim may not be satisfied by an expert opinion that is unsupported by the factual record or by an expert’s speculation that contradicts that record.” Id. at 55.