To admit expert testimony under N.J.R.E. 702, the matter must concern a subject that is beyond the understanding of an average juror, and the field testified to must be at a state of the art such that an expert’s testimony could be sufficiently reliable.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

N.J.S.A. 2A:53A-27 states:

In any action for damages for personal injuries, wrongful death or property damage resulting from an alleged act of malpractice or negligence by a licensed person in his profession or occupation, the plaintiff shall, within 60 days following the date of filing of the answer to the complaint by the defendant, provide each defendant with an affidavit of an appropriate licensed person that there exists a reasonable probability that the care, skill or knowledge exercised or exhibited in the treatment, practice or work that is the subject of the complaint, fell outside acceptable professional or occupational standards or treatment practices. . . .

Furthermore, N.J.S.A. 2A:53A-29 provides: “If the plaintiff fails to provide an affidavit . . . it shall be deemed a failure to state a cause of action.”

Although the statute refers to “the plaintiff,” a counterclaimant is considered to be the same as a plaintiff for purposes of the affidavit of merit statute. Charles A. Manganaro Consulting Eng’rs, Inc. v. Carney’s Point Twp. Sewerage Auth., 344 N.J. Super. 343, 348 (App. Div. 2001); Diocese of Metuchen v. Prisco & Edwards, AIA, 374 N.J. Super. 409, 415 (App. Div. 2005).

On appeal, the court’s standard of review is plenary from dismissal of a claim for failure to serve an affidavit of merit. Natale v. Camden County Corr. Facility, 318 F.3d 575, 579 (3d Cir. 2003); see also Smerling v. Harrah’s Entm’t, Inc., 389 N.J. Super. 181, 186 (App. Div. 2006) (“review of a trial court’s order of dismissal of a complaint pursuant to Rule 4:6-2(e) for failure to state a claim upon which relief may be granted, is plenary”).

“A claim against an attorney for alleged malpractice is a claim for property damage within the legislative intent and plain meaning of the statute.” Cornblatt v. Barow, 303 N.J. Super. 81, 86 (App. Div. 1997), rev’d on other grounds, 153 N.J. 218 (1998). Whether the affidavit of merit statute is applicable depends on whether “the claim’s underlying factual allegations require proof of a deviation from the professional standard of care applicable to that specific profession.” Couri v. Gardner, 173 N.J. 328, 340 (2002). “If such proof is required, an affidavit of merit shall be mandatory for that claim, unless either the statutory, N.J.S.A. 2A:53A-28, or common knowledge exceptions apply.” Id. at 341.

In Hubbard v. Reed, 168 N.J. 387, 390 (2001), the Court held that “an affidavit need not be provided in common knowledge cases when an expert will not be called to testify.” A common knowledge case is one in which “jurors’ common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant’s negligence without the benefit of the specialized knowledge of experts.” Id. at 394 (quoting Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J. 454, 469 (1999)).

In a related context, the Court said in Palanque v. Lambert-Wooley, 168 N.J. 398 (2001):

Because defendant’s careless acts are quite obvious, a plaintiff need not present expert testimony at trial to establish the standard of care. . . . [T]he case is treated as an ordinary negligence action in which a jury can determine without the aid of experts whether a defendant acted with reasonable care. . . . [R]equiring an affidavit of merit in such a case is not necessary to achieve the primary goal of the statute, that is, to weed out meritless malpractice lawsuits at an early stage and to prevent frivolous litigation.

[Id. at 406.]

This common knowledge exception to the affidavit of merit requirement is to be narrowly construed. Hubbard, supra, 168 N.J. at 397.

The court said in Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer & Gladstone, P.C. v. Ezekwo, 345 N.J. Super. 1, 12-15 (App. Div. 2001):

New Jersey courts have dispensed with the expert testimony requirement in cases where attorneys have failed to fulfill the most basic obligations. See, e.g., [Sommers v. McKinney, 287 N.J. Super. 1, 8-12 (App. Div. 1996)] (lawyer entirely failed to submit a legal argument in client’s defense); [Brizak v. Needle, 239 N.J. Super. 415, 431-32 (App. Div.), certif. denied, 122 N.J. 164 (1990)] (attorney failed to protect client’s claim against the running of the statute of limitations); Stewart v. Sbarro, [142 N.J. Super. 581, 591-92 (App. Div.) certif. denied 72 N.J. 459 (1976)] (lawyer sacrificed client’s creditor priority by failing to ensure that a bond and mortgage were properly recorded).

[345 N.J. Super. at 12-13.]

See also Popwell v. Law Offices of Broome and Horn, 363 N.J. Super. 404, 410 (Law Div. 2002) (no affidavit of merit required where application for a trial de novo from an adverse arbitration decision was not timely filed).

In Brach, Eichler, supra, the court said:

A common thread runs through these cases, namely none of them required the trier of fact to evaluate an attorney’s legal judgment concerning a complex legal issue. Where a trier of fact would be put in such a position, New Jersey courts have required expert testimony to be presented. See, e.g., [Aldrich v. Hawrylo, 281 N.J. Super. 201, 214 (App. Div. 1995), appeal dism., 146 N.J. 493 (1996)] (expert testimony was required where an attorney told sellers of property that they did not need to disclose zoning restriction to buyers because the attorney reasoned that the restriction was invalid).

[345 N.J. Super. at 13.]

“Legal malpractice is a variation on the tort of negligence.” Garcia v. Kozlov, Seaton, Romanini & Brooks, P.C., 179 N.J. 343, 357 (2004); accord McGrogan v. Till, 167 N.J. 414, 425 (2001); see also N.J.S.A. 2A:53A-27 (reference to “malpractice or negligence.”). In assessing application of the affidavit of merit statute, the Court in Couri, supra, distinguished between ordinary negligence and malpractice:

[C]laims against licensed professionals acting in a professional capacity that require proof of ordinary negligence but not of a deviation from professional standards are not encompassed by the statute. For example, while the former standard would include allegations that a psychiatrist failed to diagnose a patient properly or provide proper treatment, it would exclude allegations that a psychiatrist negligently tripped a patient when the patient entered the doctor’s office, which clearly would be outside the scope of the statute.

[173 N.J. at 341.]

However, as the court held in Manganaro Consulting Engineers, supra, 344 N.J. Super. at 347, “the Affidavit of Merit Statute has no applicability to a defendant who asserts, as an affirmative defense to an action by a professional for the recovery of fees, that the plaintiff should be denied any relief because the professional services were not properly performed.”

NOTE: My legal and mediation services are offered to clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

Expert testimony is admissible under N.J.R.E. 702 when it “concern[s] a subject matter that is beyond the ken of the average juror.” Hisenaj v. Kuehner, 194 N.J. 6, 15 (2008). In this case, the court left for another day consideration of whether a judge, who is not an “average juror” because of his familiarity with the subject matter of a legal malpractice claim, can rely on his own knowledge and expertise in deciding the issues.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

Rule 5:3-3(a) provides as follows, in relevant part:

Whenever the court, in its discretion, concludes that disposition of an issue will be assisted by expert opinion, and whether or not the parties propose to offer or have offered their own experts’ opinions, the court may order any person under its jurisdiction to be examined by a physician, psychiatrist, psychologist or other health or mental health professional designated by it. No such appointment, however, shall be made of an expert who is providing or has provided therapy to any member of that person’s family.

Rule 5:3-3(i) provides as follows:

When the court appoints a medical, mental health, or social expert pursuant to R. 5:3-3(a), an economic expert pursuant to R.5:3-3(b), or should the parties agree on the selection of an expert consistent with R.5:3-3(c), the court may direct who shall pay the cost of such examination, appraisal, or report.

“Family part judges . . . have broad discretion to appoint economic, medical, psychological and other mental health experts to aid the court and to order the payment of their fees by one or both of the parties[.]” Gyimoty v. Gyimoty, 319 N.J. Super. 544, 550 n.1 (Ch. Div. 1998); Prol v. Prol, 226 N.J. Super. 394, 395 (Ch. Div. 1988). The court’s appointment of an expert and allocation of the expert’s fee, therefore, are subject to the abuse of discretion standard. Gyimoty, supra, 319 N.J. Super. at 550 n.1; Platt v. Platt, 384 N.J. Super. 418, 429 (App. Div. 2006).

If a hint of bias exists, defendant has safeguards available to him. For example, he is not bound by the expert’s report and can retain his own expert to counter it. R. 5:3-3(d) and (h). He may also expose any bias by deposing the expert and cross-examining him at trial. R. 5:3-3(e), (f) and (g).

Rule 5:3-3(e) provides as follows, in relevant part:

Any expert appointed by the court shall be permitted to conduct an investigation independently to obtain information reasonable and necessary to complete his or her report from any source, and may make contact directly with any party from whom information is sought within the scope of the order of appointment.

This rule permits either party to submit to the expert any information relevant to the matter.

See related Blog Post, published in the New Jersey Family Law blog.

NOTE: My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200; EM@IL

Although in 1993 the United States Supreme Court abandoned the general acceptability standard in Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) in favor of a more relaxed scientific reliability standard, Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993), codified in Fed. R. Evid. 702, the test in New Jersey continues to be whether the scientific community generally accepts the reliability of the proffered evidence. State v. Chun, 194 N.J. 54, 91, cert. denied, __ U.S. __, 129 S. Ct. 158, 172 L. Ed. 2d 41 (2008); Harvey, supra, 151 N.J. at 170.

General acceptability of a particular scientific methodology can be established in three ways:

(1) by expert testimony as to the general acceptance, among those in the profession, of the premises on which the proffered expert witness based his or her analysis;
(2) by authoritative scientific and legal writings indicating that the scientific community accepts the premises underlying the proffered testimony; and
(3) by judicial opinions that indicate the expert’s premises have gained general acceptance.

[Harvey, supra, 151 N.J. at 170 (quoting Kelly, supra, 97 N.J. at 210).]

The proponent of the evidence bears the burden to “clearly establish” each of these methods. Harvey, supra, 151 N.J. at 170.

General acceptance does not require a unanimous belief in the absolute infallibility of the technology or methodology at issue. Chun, supra, 194 N.J. at 91-92; In Re Commitment of R.S., 173 N.J. 134, 136 (2002). To meet this burden of general acceptability, the proponent of the evidence must prove that the technology is a “non-experimental, demonstrable technique[] that the relevant scientific community widely, but perhaps not unanimously, accepts as reliable.” Harvey, supra, 151 N.J. at 171. “It is reliability that must be assured.” R.S., supra, 173 N.J. at 136; see Kelly, supra, 97 N.J. at 210 (holding that “[t]he technique or mode of analysis used by the expert must have a sufficient scientific basis to produce uniform and reasonably reliable results”).

NOTE: My legal and mediation services are offered to Polish-speaking and other clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

The Million Clinical Multiaxial Inventory-III (MCMI-III) test is a 175 true/false statement test that objectively measures personality traits and functioning. See In re J.P., 339 N.J. Super. 443, 450 (App. Div. 200l). Results of the test will only be considered “clinically significant” where the score falls above a certain point. See e.g., Trantino v. N.J. State Parole Bd., 166 N.J. 113, 160 (2001).

NOTE: My legal and mediation services are offered to Polish-speaking and other clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.

The intent of N.J.R.E. 703 is to “permit an expert opinion to be corroborated, confirmed or bolstered by hearsay, but not to rely exclusively or primarily on it.” Glowacki v. Underwood Mem’l Hosp., 270 N.J. Super. l, l8 (App. Div. l994).

NOTE: My legal and mediation services are offered to Polish-speaking and other clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

A trial judge “is not obligated to accept an expert’s opinion” and “may . . . accept some of the expert’s testimony and reject the rest.” State v. M.J.K., 369 N.J. Super. 532, 549 (App. Div. 2004), appeal dismissed, 187 N.J. 74 (2005). As factfinder, a trial judge is not bound by the opinion of experts on either side. County of Middlesex v. Clearwater Vill., Inc., 163 N.J. Super. 166, 174 (App. Div. 1978), certif. denied, 79 N.J. 483 (1979).

Where an expert opinion provides a substantial basis for the trial judge’s decision, the obligation to specify clearly and precisely the elements of that opinion relied upon is an integral part of the judge’s duty to make specific findings of fact and to state the legal conclusions that flow from those findings. R. 1:7-4. Otherwise, the parties, as well as a reviewing court, are bereft of a basis on which to discern the rationale underlying the judge’s decision, Orgler v. Orgler, 237 N.J. Super. 342, 358 (App. Div. 1989), and are left to speculation.

NOTE: My legal and mediation services are offered to Polish-speaking and other clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.

A court in its discretion may appoint a psychologist to conduct an evaluation of a child’s best interests in a custody dispute whenever the court concludes that disposition of an issue will be assisted by an expert’s opinion. R. 5:3-3(a), (b). Before an expert can be appointed to render an opinion on an issue, there must be “some demonstration of good cause therefor.” Pressler, Current N.J. Court Rules, comment 1 on R. 5:3-3 (2010) (citing Ames v. Ames, 89 N.J. Super. 267, 274-75 (Juv. & Dom. Rel. Ct. 1965)). Of course, parents in custody disputes are not precluded from hiring their own experts, regardless of whether the court appoints one. R. 5:3-3(h); Kinsella v. Kinsella, 150 N.J. 276, 320 (1997). Rule 5:3-3(a) clearly indicates that the decision of the trial court on whether to appoint an expert is within the court’s discretion.

An abuse of discretion occurs where “‘the decision [was] made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.’” United States v. Scurry, 193 N.J. 492, 504 (2008) (quoting Flagg v. Essex County Prosecutor, 171 N.J. 561, 571 (2002)).

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.
My legal and mediation services are offered to Polish-speaking and other clients in Union, Middlesex, Somerset, Essex, Hudson, Bergen, and Morris counties in NJ.
My legal and mediation services are offered to Polish-speaking and other clients in Fanwood 07023; Garwood 07027; Kenilworth 07033; Mountainside 07092; New Providence 07974; Roselle Park 07204; Roselle 07203; Elizabeth 07201; Linden 07036; Plainfield 07060; Rahway 07065; Summit 07901; Westfield 07090; Berkeley Heights 07922; Clark 07066; Cranford 07016; Hillside 07205; Scotch Plains 07076; Springfield 07081; Union 07083; Winfield; Carteret 07008; Dunellen 08812; East Brunswick 08816; Edison 08817; Jamesburg 08831; Metuchen 08840; New Brunswick 08901; Old Bridge 08857; Perth Amboy 08861; Sayreville 08871; South Amboy 08878; South River 08877; Avenel 07001; Colonia 07067; Iselin 08830; Woodbridge 07095; Somerset 08873; Somerville 08876 and Watchung 07069, New Jersey.
My legal services include family law, divorce, child support, litigation, arbitration, mediation, child custody and visitation, alimony, equitable distribution, separation agreements, palimony, PSA, property settlement agreement, premarital and prenuptial agreements, midmarriage and marital agreements.
My Law Office is located at 726 West Saint Georges [W. St. Georges] Avenue (Route 27), Linden, Union County, NJ. Telephone: 908-486-2200
Adwokat / Prawnik Pawel Kostro mowi po polsku.

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“It is well-settled that a witness in a judicial or quasijudicial proceeding enjoys an absolute immunity from civil suit for his words and actions relevant to the judicial proceedings.” Durand Equipment Co., Inc. v. Superior Carbon Products, Inc., 248 N.J. Super. 581, 583 (App. Div. 1991). “This absolute immunity is afforded even if ‘the words are written or spoken maliciously, without any justification or excuse, and from personal ill will or anger against the party defamed.” Id. at 583-84 (quoting DeVivo v. Ascher, 228 N.J. Super. 453, 457 (App. Div. 1988)).

Furthermore, the immunity “‘is not limited to what a person may say under oath while on the witness stand. It extends to statements or communications in connection with a judicial proceeding.’” Id. at 584 (quoting DeVivo, supra, 228 N.J. Super. at 457). “The absolute immunity granted to witnesses is not designed to benefit the dishonest witness but to further the broad public interest in having witnesses who are unafraid to testify fully and openly.” Id. at 585.

However, in Levine v. Wise & Co., 97 N.J. 242 (1984), the Court held that the defendants were not entitled to immunity merely because the trial court had entered an order confirming the parties’ agreement selecting the defendants to perform the valuation. Id. at 252. The Court stated that “[a] court-appointment is not a talisman for immunity.” Ibid. The Court ruled that defendant had been “retained by the parties to perform a specific duty.” Ibid. The Court said, the “duty was to apply established accounting principles to the financial facts as [the defendants] found them.” Ibid.

Thus, claims against court appointed experts are barred by the litigation privilege when the expert owes a duty to the court, but not to any of the parties to the case. Such expert’s communications and statements are “cloaked in the litigation privilege” because they were “made in the context of the litigation[.]” P.T. v. Richard Hall Mental Health Care Center, 364 N.J. Super. 561, 583 (Law Div. 2002). The P.T. court stated:

Similar to the status of a court-appointed expert, although admittedly not identical to the position enjoyed by a court-appointed expert, it is clear that recommendations made by [the therapist] either to the court system, or in the context of the order directing that she made her recommendations to the parties, fall within the litigation privilege. The rationale underlying the litigation privilege itself would be undercut were we to conclude that a therapist . . . in a setting such as this is not entitled to rely on that privilege. The privilege rests on the need to ensure complete candor and forthright, open and honest communication of [the therapist's] views based upon her evaluation and therapy with this child, all of which would be severely compromised were we to determine that the privilege does not apply here.
[Id. at 583-84.]

See related Blog Post, published in the Law Office of Donald D. Vanarelli Blog.

NOTE: This Blog/Blawg, NJ Family Issues, is managed by Paul G. Kostro, Esq., an attorney/lawyer/mediator in Linden, Union County, New Jersey.

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