Dawkins v. One Bus, Decided December 29, 2017
Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.
The facts of this case are very straight forward. The plaintiff-bus passenger was injured when several unruly passengers came onto the bus and assaulted the plaintiff when she was about to exit the bus, striking her and throwing bleach in her face. The plaintiff sued ONE BUS alleging the driver knew or should have been aware of the danger of the unruly passengers and failed to call dispatch to have them removed. In support of her claim her attorney hired an expert to provide a professional opinion regarding safety protocols and other issues concerning the bus company’s duties to their passengers and hence the bus company’s failure to satisfy their legal duty which resulted in injury to the plaintiff.
The trial court dismissed the case when ONE BUS filed a Motion for Summary Judgement ruling their was ‘No Question of Materials Fact’, giving plaintiff the benefit of any doubt. The court stated, in this case, Plaintiff failed to establish defendant owed a duty to the duty was breached, or an actual or proximate cause linking such duty to her injuries. Therefore, the motion judge properly dismissed plaintiff’s case for failure to establish a prima facie case of negligence.
The court also barred the plaintiff’s expert from testifying, had the case gone to trial, because his opinions were ‘NET OPINIONS”, not supported by any facts or generally accepted scientific theory. Specifically, the court comments:
“[I]n reviewing a trial court’s evidential ruling, an appellate court is limited to examining the decision for abuse of discretion[.] “[W]e apply the same deferential approach to a trial court’s decision to admit expert testimony, reviewing it against an abuse of discretion standard.” An abuse of discretion “arises when a decision is ‘made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.‘”
A net opinion is one rendered with only “an expert’s bare conclusions, unsupported by factual evidence[.]” Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). “ In essence, the net opinion rule requires an expert witness to give the why and wherefore of his expert opinion, not just a mere conclusion.” Vitrano v. Schiffman, 305 N.J. Super. 572, 577 (App. Div. 1997) (quoting Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div. 1996)). The net opinion rule “frequently focuses . . . on the failure of the expert to explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting therefrom.” Buckelew, 87 N.J. at 524 (citations omitted). “Where . . . an expert offers an opinion without providing specific underlying reasons . . . he ceases to assist the trier of fact and becomes nothing more tha[n] an additional juror.” Vitrano, 305 N.J. Super. at 577 (alteration in original) (quoting Jimenez, 286 N.J. Super. at 540). “An expert’s conclusion ‘is excluded if it is “based merely on unfounded speculation and unquantified possibilities.”‘” Townsend v. Pierre, 221 N.J. 36, 55 (2015) (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997)).
“[E]xpert testimony must relate to generally accepted . . . standards, not merely to standards personal to the witness.” Fernandez v. Baruch, 52 N.J. 127, 131 (1968). “A standard which is personal to the expert is equivalent to a net opinion.” Taylor v. DeLosso, 319 N.J. Super. 174, 180 (App. Div. 1999) (citing Crespo v. McCartin, 244 N.J. Super. 413, 422—23 (App. Div. 1990)). “In other words, plaintiff must produce expert testimony upon which the jury could find that the consensus of the particular profession involved recognized the existence of the standard defined by the expert.
The court examined the expert’s report and concluded his/her opinion ad deposition testimony were “all conjecture…… He’s not qualified to give any of those opinions and he doesn’t have any foundation — he might have the expertise to say when there’s trouble on the bus the first thing you do is you call the dispatcher because he owns a bus company, albeit it’s a private bus company that transports only special needs people. But the rest of his opinion, the cascading elements that are added to it, and then if you called the dispatcher, the dispatcher would know what to do and the dispatcher would do something that would diffuse the situation and the cops would come and that would deter — this is all just — it’s not based on anything in his expertise. He provides no study, no studies, no information.
The appellate court reviewing the case agreed as well, stating: “We agree. Einstein’s report and testimony failed to support his claim that the generally accepted industry standard is for a driver operating under similar circumstances of this case to contact the dispatcher. Rather, Einstein derived a duty and the standard of care from personal experience and speculation. Therefore, the trial court did not abuse its discretion, and properly barred the plaintiff’s expert opinion as a net opinion. Although plaintiff argues the jury would be aided by expert opinion, for the first time on appeal she argues expert testimony was not required in order to establish a prima facie case of negligence. We disagree. “The test of need of expert testimony is 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 party was reasonable.” Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982). Generally, “[a] jury should not be allowed to speculate without the aid of expert testimony in an area where laypersons could not be expected to have sufficient knowledge or experience.” Kelly v. Berlin, 300 N.J. Super. 256, 268 (App. Div. 1997) (alteration in original) (quoting Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 2 on N.J.R.E. 702 (1996-97)).
In Sanchez v. Indep. Bus Co., Inc., 358 N.J. Super. 74, 80- 81 (App. Div. 2003), we stated: [A] common carrier . . . would owe a high degree of care for the safety of its passengers so as to avoid dangers that are known or reasonably anticipated. By accepting passengers entrusted to their care the carrier undertakes to use great care consistent with the nature of the undertaking. The issue becomes whether the wrongful act of the third person could have been reasonably anticipated.
To understand the high degree of care owed to passengers plaintiff would have to articulate the industry standard practices and safety standards affecting passengers employed by common carriers. Only an expert can explain these practices and standards to the jury.
Whether the driver should have called the dispatcher and what effect that would have had on plaintiff’s injuries required an expert to establish the duty owed under such circumstances and how it was breached. The motion judge’s findings demonstrate fact – witness testimony alone could not make the connection between defendant’s duty and plaintiff’s injuries.