Net Opinion — Summary Judgement and questions of fact

Issues:   Net Opinion      —  Summary Judgement and questions of fact

Estate of Manotoa v. Ruggerio, N.J. Super. App. Div.

Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.

Facts:

On the evening of December 11, 2015, William Manotoa (decedent) sustained fatal injuries when he was struck by a vehicle driven by defendant Robert Ruggiero, as he attempted to cross a roadway on foot. In this appeal, plaintiff Blanca Rios, decedent’s wife, challenges Law Division orders that dismissed her complaint asserting wrongful death and survival claims against defendant and denied reconsideration. Having considered the parties’ arguments in light of the record and applicable legal standards, we affirm the summary judgment dismissal of plaintiff’s complaint.

I.

On December 11, 2015, decedent attended a party hosted by his employer at a restaurant in Garwood. Each attendee to the party received two tickets to exchange for one drink each. Prior to attending the party, decedent stopped at a liquor store and purchased nearly seventy dollars worth of alcohol.

The decedent left the work party at an unknown time, and was involved in a two-vehicle car accident in Westfield; according to the police report, the accident occurred at 4:56 p.m. The decedent was the driver of his vehicle and received a summons for improper passing. The police report contains no indication that defendant was impaired or smelled of alcohol. Decedent’s actions for the following three hours remain unknown.

At approximately 8:00 p.m. that night, defendant was driving south on Springfield Avenue in Cranford. As defendant approached the intersection with Pawnee Road, his vehicle struck decedent as he attempted to cross Springfield Avenue on foot. The resulting impact launched decedent forty-five feet. The speed limit for the street was thirty-five miles per hour.

According to the police report of the accident, the impact occurred at the front passenger side of defendant’s vehicle, denting the vehicle’s hood and A- pillar, cracking the windshield, breaking the front parking lamp, and removing the side mirror. A bystander attempted CPR until emergency personnel arrived. Emergency responders noted a strong odor of alcohol emanating from decedent. The police located decedent’s vehicle on Pawnee Road, “a short distance away with open containers of alcohol inside.” They observed fresh damage to the vehicle, consistent with decedent’s accident three hours earlier; in addition, they observed “fresh urine on the exterior of the vehicle.”

Decedent was transported to a nearby hospital, where he was pronounced dead at 9:04 p.m. His injuries included multiple skull fractures, disconnection of the brain stem, lacerated kidney and liver, multiple rib fractures, and a compound fracture to the right leg. Decedent’s blood alcohol content (BAC) was .258.

When questioned by police as to how fast he was traveling at the time of the crash, defendant responded, “Maybe 30 or 40 MPH. I was keeping up with traffic on the roadway at the time.” Defendant stated he did not see the decedent prior to the accident, explaining, “He walked right into the front of my car.” The police investigation did not indicate any fault on the part of defendant; instead, the report concluded that decedent was “accidentally . . . struck by a motor vehicle . . . while under the influence of alcohol.”

1.  Standard of Review

The police report did not assign any fault to defendant but concluded that decedent was accidentally struck by defendant’s vehicle while decedent was under the influence of alcohol. On appeal from the dismissal of her complaint, plaintiff argued that the trial court erred in rejecting her liability expert’s testimony as net opinion. The court affirmed, ruling that plaintiff’s expert’s opinion was speculative and/or lacked sufficient support in the record. The court noted that the expert report failed to identify any of the accident scene photographs as supporting his opinion or to explain how the photos led to the expert’s conclusions. The court further held that the expert’s opinion that the accident was caused by distracted driving was completely unsupported by any evidence. The court further rejected plaintiff’s contention that there were several issues of material fact that precluded summary judgment, finding insufficient evidence to create a material dispute over defendant’s speed at the time of the accident or where decedent impacted.

III. Net Opinion

“The admission or exclusion of expert testimony is committed to the sound discretion of the trial court.” Townsend, 221 N.J. at 52 (citations omitted). As such, we accord deference to the trial court’s grant of a motion to strike expert testimony, “reviewing it against an abuse of discretion standard.” Id. at 52-53 (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371-72 (2011)).

Expert testimony is admissible in the following circumstances:

(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 that such an expert’s testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.

[DeHanes v. Rothman, 158 N.J. 90, 100 (1999) (quoting State v. Kelly, 97 N.J. 178, 208 (1984)); see also Agha v. Feiner, 198 N.J. 50, 53 (2009).]

Our analysis is also framed by N.J.R.E. 702 and N.J.R.E. 703. The former establishes when expert testimony is permissible and requires the expert be qualified in his or her respective field. The latter mandates that any expert opinion “be grounded in ‘facts or data derived from (1) the expert’s personal observations, [] (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible . . . but which is the type of data normally relied upon by experts.'” Townsend, 221 N.J. at 53 (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 583 (2008)).

“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.'” Id. at 53-54 (quoting Polzo, 196 N.J. at 583); accord Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 300 (App. Div. 1990) (barring expert testimony “based merely on unfounded speculation and unquantified possibilities.”). Therefore, an expert is required to “give the why and wherefore’ that supports the opinion, ‘rather than a mere conclusion.” Townsend, 221 N.J. at 54 (quoting Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013)). The net opinion rule directs experts must “be able to identify the factual bases for their conclusions, explain their methodology,and demonstrate that both…are reliable.” Id.at55(citation omitted). In short, the rule invokes “a prohibition against speculative testimony.” Harte v. Hand, 433 N.J. Super. 457, 465 (App. Div. 2013) (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997). This results because a speculating expert “ceases to be an aid to the trier of fact and becomes nothing more than an additional juror[,]” Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div. 1996), affording no benefit to the fact finder. See N.J.R.E. 702.

In his June 29, 2019 report, Meinschein concluded, based on his review of the photographs taken by the Cranford Police, that the decedent “was struck by the front of [defendant’s vehicle].” Meinschein further opined that defendant:

• [S]hould have been able to avoid striking [decedent] if he had been driving at the speed of 35 [m]iles per hour or less and doing so in a safe manner;
• [W]as either driving in an unsafe manner and/or driving a vehicle with deficient headlamps; and
• If the . . . headlamps (on defendant’s vehicle) were operating properly and [defendant] was not distracted as he approached [the decedent], [defendant’s vehicle] struck [the decedent] because [defendant] was traveling to the right of the vehicles that he was following, his view ahead was obstructed by the leading vehicles, and he was following the lead vehicles too closely for the speed of his vehicle.

Meinschein’s opinion that defendant “was either driving in an unsafe manner and/or driving a vehicle with deficient headlamps” is speculative and lacks competent support in the record. Meinschein’s report does not identify any of the 132 photographs as supporting his opinion, nor does he explain how any of the photos led to his conclusion.

Meinschein’s report then states that the “available lighting [on the roadway] should have been sufficient to illuminate [decedent] in the roadway and allow [defendant] to avoid striking him if he had been driving at a speed of 35 mph or less and doing so in a safe manner.” It appears Meinschein came to this conclusion simply based on the fact that the police report stated the street light at the intersection was on and defendant’s statement that the roadway lighting was “pretty good.” There was no independent evaluation or assessment of the brightness of the street lamp or the headlights of vehicles similar to that driven by defendant. Meinschein provides no explanation as to how he determined the lighting was “sufficient.” Nor does he discuss reaction time or stopping time by a driver under the circumstances. He does not address the testimony by the defendant that he was driving as slow as thirty miles per hour. The essence of Meinschein’s opinion is that the area was lit so defendant should have seen the decedent in time to stop.

Meinschein’s report also contains a wholly unsupported opinion that “distracted driving” potentially played a role in the accident. It also contains an unsupported assertion that defendant followed the vehicles in front of him too closely. However, the record lacks any evidence to support these assertions.

Meinschein’s opinion that defendant must have been distracted is speculative and similarly lacks competent support in the record. Defendant exhibited no signs of impairment and was not on his cell phone or otherwise distracted.

We acknowledge that an expert’s proposed testimony should not be excluded merely “because it fails to account for some particular condition or fact which the adversary considers relevant.” Townsend, 221 N.J. at 54 (quoting Creanga v. Jardal, 185 N.J. 345, 360 (2005)). Nonetheless, “[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. As in Townsend, “[t]his case presents such a setting.” Id. at 60.

We conclude the trial court properly rejected Meinschein’s expert report as it was highly speculative and omitted or ignored critical, undisputed facts. We share the trial court’s conclusion that Meinschein rendered a net opinion and that plaintiff failed to establish a prima facie case of negligence against defendant. The mere happening of the accident did not establish defendant’s negligence, see Long v. Landy, 35 N.J. 44, 54 (1961), and Meinschein’s opinion that defendant must have been distracted is pure speculation.