Absent the identification of an act or omission that failed to conform to an articulated professional standard resulting in damages, a legal malpractice expert’s report lacks the “why and wherefore” amounting to a bare conclusion of professional negligence. Froom v. Perel, 377 N.J. Super. 298, 313 (App. Div.) (holding plaintiffs “must present evidence to support a finding that defendant’s negligent conduct was a ‘substantial factor’ in bringing about plaintiff’s injury, even though there may be other concurrent causes of the harm”), certif. denied, 187 N.J. 267 (2005).

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

Absent the identification of an act or omission that failed to conform to an articulated professional standard resulting in damages, a legal malpractice expert’s report lacks the why and wherefore amounting to a bare conclusion of professional negligence originally appeared on NJ Family Issues on January 17, 2012.

The admissibility of expert testimony is guided by N.J.R.E. 702 and 703. N.J.R.E. 702 provides that “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.” N.J.R.E. 703, which provides that “[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing[,]” recognizes that an expert’s opinion must be founded on “facts or data[.]” Hisenaj v. Kuehner, 194 N.J. 6, 24 (2008).

Experts “must be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are scientifically reliable.” Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992). They must be able to point to a generally accepted objective standard of practice and “not merely to standards personal to the witness.” Fernandez v. Baruch, 52 N.J. 127, 131 (1968). Because an expert’s opinion must be founded on facts or data, the “net opinion rule requires an expert witness to give the why and wherefore of his [or her] expert opinion, not just a mere conclusion.” Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996). When an expert opinion is unsupported by factual evidence, it is inadmissible. See Ibid. (stating “[a]n opinion lacking foundation is worthless”).

A net opinion is one that “present[s] solely a bald conclusion, without specifying the factual bases or the logical or scientific rationale that must undergird that opinion.” Polzo v. Cnty. of Essex, 196 N.J. 569, 583-84 (2008). See also Nextel of N.Y., Inc. v. Borough of Englewood Cliffs Bd. of Adjustment, 361 N.J. Super. 22, 43 (App. Div. 2003) (“An expert opinion that is not factually supported is a net opinion or mere hypothesis to which no weight need be accorded.”). “The net opinion rule has been succinctly defined as ‘a prohibition against speculative testimony.’” Koruba v. Am. Honda Motor Co., 396 N.J. Super. 517, 525 (App. Div. 2007) (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div.), certif. denied, 154 N.J. 607 (1997)), certif. denied, 194 N.J. 272 (2008). “Under this doctrine, expert testimony is excluded if it is based merely on unfounded speculation and unquantified possibilities.” Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 300 (App. Div.), certif. denied, 122 N.J. 333 (1990).

The net opinion rule also “focuses upon ‘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.’” Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 102 (App. Div. 2001) (quoting Buckelew v. Grossbard, 87 N.J. 512, 524 (1981)). The doctrine requires an expert’s opinion be based on reasonable probabilities. Buckelew, supra, 87 N.J. at 524. “Evidential support for an expert opinion is not limited to treatises or any type of documentary support, but may include what the witness has learned from personal experience.” Rosenberg v. Tavorath, 352 N.J. Super. 385, 403 (App. Div. 2002).

In Carbis Sales, Inc. v. Eisenberg, 397 N.J. Super. 64, 79 (App. Div. 2007), the court found a proposed expert’s report satisfactory when measured against the requirements of the net opinion rule. The report included references to case law, RPCs, cases, and treatises to establish a standard of care and then “identif[ied] the deficiencies he perceived in [defendant]‘s preparation of the case and the resulting ill-informed judgments[.]” Ibid. The report further explained “[s]uch deviations . . . constitute[d] a violation” of the legal standards he articulated. Ibid. The factual record satisfactorily linked the references to the stated legal standard of care. Id. at 80.

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Experts must be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are scientifically reliable originally appeared on NJ Family Issues on January 17, 2012.

Rule 5:3-3(f) provides that:

Any finding or report by an expert appointed by the court shall be submitted upon completion to both the court and the parties. At the time of submission of the court’s experts’ reports, the reports of any other expert may be submitted by either party to the court and the other parties. The parties shall thereafter be permitted a reasonable opportunity to conduct discovery in regard thereto, including, but not limited to, the right to take the deposition of the expert.

Rule 4:10-2(a) provides that “[p]arties may obtain discovery regarding any matter, not privileged, which is relevant to the subject matter involved in the pending action[.]” Relevant evidence is defined in N.J.R.E. 401 as “evidence having a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” Rule 4:10-2(d) sets forth the procedure for discovery of “facts known and opinions held by experts[.]”

Pursuant to the court rules, a parent is entitled to a reasonable opportunity to conduct discovery of a court-appointed expert. Rente v. Rente, 390 N.J. Super. 487, 493 (App. Div. 2007).

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A parent is entitled to a reasonable opportunity to conduct discovery of a court-appointed expert originally appeared on NJ Family Issues on January 8, 2012.

A fact finder is never bound to accept the testimony of expert witnesses, even if it is unrebutted by any other evidence. State v. M.J.K., 369 N.J. Super. 532, 549 (App. Div. 2004), appeal dismissed, 187 N.J. 74 (2005). Thus, a judge is entitled to select the expert testimony he or she finds most compelling, and weigh and judge it as any other testimony. Waterson v. Gen. Motors Corp., 111 N.J. 238, 248 (1988); Mandel v. UBS/Paine Webber, Inc., 373 N.J. Super. 55, 71 (App. Div. 2004), certif. denied, 183 N.J. 213, 214 (2005).

NOTE: My legal and mediation services are offered to 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.

A fact finder is never bound to accept the testimony of expert witnesses, even if it is unrebutted by any other evidence originally appeared on NJ Family Issues on January 6, 2012.

N.J.R.E. 703 requires that an expert’s opinion be based on “facts or data” lest it be inadmissible as a “net opinion.” Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008). The net opinion rule has been succinctly defined as “a prohibition against speculative testimony.” Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div.), certif. denied, 154 N.J. 607 (1997); see also Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 300 (App. Div.), certif. denied, 122 N.J. 333 (1990). An expert is required to give the “why and wherefore” of his opinion, not just a mere conclusion. Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996); see also Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002); accord Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 102 (App. Div. 2001) (stating the rule in a legal malpractice case). When an expert opinion “‘is based merely on unfounded speculation and [unqualified] possibilities,’” Grzanka, supra, 301 N.J. Super. at 580 (quoting Vuocolo, supra, 240 N.J. Super. at 300), or is unsupported by factual evidence, it is inadmissible. Jimenez, supra, 286 N.J. Super. at 540. Consequently, experts must “identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are . . . reliable.” Koruba v. Am. Honda Motor Co., 396 N.J. Super. 517, 526 (App. Div. 2007), certif. denied, 194 N.J. 272 (2008). They must be able to point to generally accepted, objective standards of practice and not merely standards personal to them. Ibid. We review a trial court’s determination that an expert’s opinion is net for an abuse of discretion. Riley v. Kennan, 406 N.J. Super. 281, 295 (App. Div.), certif. denied, 200 N.J. 207 (2009).

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

The net opinion rule has been succinctly defined as a prohibition against speculative testimony originally appeared on NJ Family Issues on January 5, 2012.

The common knowledge doctrine allows plaintiffs in a malpractice action to “present triable issues without resort to the testimony of an expert. In such a case the jury itself is allowed ‘to supply the applicable standard of care and thus to obviate the necessity for expert testimony relative thereto.’” Rosenberg, supra, 99 N.J. at 325 (quoting Sanzari, supra, 34 N.J. at 141). Significantly, “it is the unusual professional malpractice case in which the common knowledge doctrine can be invoked,” as it was intended to apply in “situations where the carelessness of the defendant is readily apparent to anyone of average intelligence and ordinary experience.” Ibid. The doctrine has applied in such cases of a dentist pulling the wrong tooth, Steinke v. Bell, 32 N.J. Super. 67, 70 (App. Div. 1954), or a physician failing to inform a patient of a needle left in the patient’s body after a medical procedure, Tramutola v. Bortone, 118 N.J. Super. 503, 512-13 (App. Div.1972).

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

The common knowledge doctrine allows plaintiffs in a malpractice action to present triable issues without resort to the testimony of an expert originally appeared on NJ Family Issues on December 16, 2011.

The net opinion rule precludes an expert from offering a “mere conclusion” that is not supported by factual evidence or other data. Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008); Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).

NOTE: 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.

The net opinion rule precludes an expert from offering a mere conclusion that is not supported by factual evidence or other data originally appeared on NJ Family Issues on December 13, 2011.

“‘Under contract law, a party who breaches a contract is liable for all of the natural and probable consequences of the breach of that contract.’” Totaro, Duffy, Cannova and Co., L.L.C. v. Lane, Middleton & Co., L.L.C., 191 N.J. 1, 13 (2007) (quoting Pickett v. Lloyd’s, 131 N.J. 457, 474 (1993)). Although a non-breaching party need not demonstrate “the exact amount of the loss,” “the loss must be a reasonably certain consequence of the breach[.]” Id. at 14 (quoting Donovan v. Bachstadt, 91 N.J. 434, 445 (1982)). There must “‘be a reasonably accurate and fair basis for the computation of alleged lost profits.’” J.L. Davis & Assocs. v. Heidler, 263 N.J. Super. 264, 276 (App. Div. 1993) (quoting Borbonus v. Daoud, 34 N.J. Super. 54, 61 (Ch. Div. 1955)).

Although the amounts at stake in the Special Civil Part generally are relatively small, and the burdens of proving damages can be significant by comparison, the evidence to support plaintiff’s lost profits claim must not be too scant and conjectural to be upheld.

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Although the amounts at stake in the Special Civil Part generally are relatively small, and the burdens of proving damages can be significant by comparison, the evidence to support plaintiff’s lost profits claim must not be too scant and conjectural to be upheld originally appeared on NJ Family Issues on November 29, 2011.

N.J.S.A. 9:6-8.46(a)(3) provides as follows, in part:

any writing, record . . . made as a memorandum or record of any condition, act, transaction, occurrence or event relating to a child in an abuse or neglect proceeding of. . . any public or private institution or agency shall be admissible in evidence in proof of that condition, act, transaction, occurrence or event, if the judge finds that it was made in the regular course of the business of any . . . public or private institution or agency, and that it was in the regular course of such business to make it, at the time the condition, act, transaction, occurrence or event, or within a reasonable time thereafter, shall be prima facie evidence of the facts contained in such certification.

See also R. 5:12-4(d) (“[DYFS] shall be permitted to submit into evidence, pursuant to [N.J.R.E.] 803(c)(6) and 801(d), reports by staff personnel . . . . Conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal.”)

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

DYFS is permitted to submit into evidence reports by staff personnel; however, conclusions drawn from the facts stated therein shall be treated as prima facie evidence, subject to rebuttal originally appeared on NJ Family Issues on November 18, 2011.

The standard of review that applies to decisions regarding the admission or exclusion of expert testimony, the scope of direct and cross-examination of an expert, and the evaluation of expert testimony are reviewed in accordance with an abuse of discretion standard. State v. Torres, 183 N.J. 554, 572 (2005).

A net opinion is one identified by an expert as a deviation from a standard of care, which is based on speculation or mere possibilities. Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer & Gladstone, P.C. v. Ezekwo, 345 N.J. Super. 1, 11 (App. Div. 2001); Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 300 (App. Div.), certif. denied, 122 N.J. 333 (1990). Such opinion is inadmissible. Brach Eiler, supra, at 11. A net opinion violates the requirement set in N.J.R.E. 703 that an expert’s opinion must be based on “facts, data, or another expert’s opinion, either perceived by or made known to the expert, at or before trial.” Carbis Sales, Inc. v. Eisenberg, 397 N.J. Super. 64, 78-79 (App. Div. 2007) (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002)). Thus, the expert’s opinion in a legal malpractice action must be based “on standards accepted by the legal community and not merely the expert’s personally held views.” Carbis, supra, 397 N.J. Super. at 79. The expert must offer “some evidential support . . . establishing the existence of the standard.” Taylor v. DeLosso, 319 N.J. Super. 174, 180 (App. Div. 1999).

In addition, the expert generally must “`explain a causal connection between the [alleged malpractice] and the injury or damage allegedly resulting there from.’” Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 102 (App. Div. 2001) (quoting Buckelew v. Grossbard, 87 N.J. 512, 524 (1981)). In other words, the expert must “`give the why and wherefore of his or her opinion, rather than a mere conclusion.’” Ibid. (quoting Jimenez v. GNOC Corp., 286 N.J. Super. 353, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996)).

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

An expert must give the why and wherefore of his or her opinion, rather than a mere conclusion originally appeared on NJ Family Issues on November 15, 2011.