The Danger of Leaving the Door Open During Witness Examination

 

Posted by New Jersey Civil Law Attorney, Jeffrey Hark.

Sallee v. Stagnitti, decided June 2, 2015, arose out of an incident where the plaintiff allegedly was walking on the sidewalk in the parking lot of a restaurant called The Mill at Spring Lake Heights when she was struck by Mr. Stagnitti. It should be noted that there were conflicting stories at trial as to whether she actually was on the sidewalk, there were no eyewitnesses, and the exact location was never determined. Furthermore, Mr. Stagnitti died before trial began, so that left the plaintiff as the only living person actually at the scene of the incident.

Ms. Sallee hired Dr. Wayne Nolte, Ph.D., P.E., as a liability expert who testified that bollards (barriers) should have been used to protect the sidewall. Of course this theory of contributory negligence by the restaurant is premised on the assumption that the plaintiff was utilizing the sidewalk to begin with. A defense expert testified to the opposite claiming that the bollards were not necessary and would not have prevented the accident even had they existed. The defense expert claimed he based his conclusion on U.S. military studies. The plaintiff objected to this testimony but the court accepted the testimony because the plaintiff had opened the door. “Opening the door” is a legalism that may refer to a topic that would normally not be permitted during the examination of a witness but Side B but if initiated by Side A then for the sake of fairness the topic is opened to both.

On appeal plaintiff argued that a new trial should have been granted because she was “ambushed” by the defense expert’s opinion. The restaurant claimed that plaintiff’s expert offered a “net opinion,” which is a conclusion with no basis and inadmissible as evidence. The details of what constitutes a “net opinion” is often the subject of dispute.

Rule 4:17-4(3) simply states that an expert report “shall contain a complete statement of that person’s opinions and the basis therefore; [and] the facts and data considered in forming the opinions.” In the case of expert testimony this rule can viewed in combination with the evidence requirement that an expert’s opinion must be based on facts, data or another expert’s opinion (See N.J.R.E. 703). If Expert A relies on Expert B’s opinion, N.J.R.E. 703 also requires that Expert B’s opinion be perceived or made known to Expert A at or before trial. But, expert testimony cannot deviate so far from the pretrial expert report that it amounts to surprise and prejudices the other side, in this case the plaintiff who objected to the testimony.

The Court here agreed with the trial court and cited a sentence from an earlier N.J. Supreme Court case in 1996 (State v. James) concerning the “opening the door” doctrine which stated “the doctrine of opening the door allows a party to elicit otherwise inadmissible evidence when the opposing party has made unfair prejudicial use of related evidence.” In this case once plaintiff’s expert opened the door to the topic of the bollards it would be manifestly unfair to deny the defense the right to rebut those conclusions.

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