A trial judge’s authority to dismiss a cause of action at the close of a party’s case is found in Rules 4:37-2(b) and 4:40-1. Under those rules, the judge must determine whether the evidence and all reasonable inferences drawn from that evidence can sustain a judgment in favor of the claimant. See R. 4:37-2(b); Zive v. Stanley Roberts, Inc., 182 N.J. 436, 441 (2005).
If “reasonable minds could differ,” the motion to dismiss must be denied. Sons of Thunder v. Borden, Inc., 148 N.J. 396, 415 (1997); Dolson v. Anastasia, 55 N.J. 2, 5 (1969).

On the other hand, “when the proof of a particular fact is so meager or so fraught with doubt that a reasonably intelligent mind could come to no conclusion but that the fact did not exist[,]” the court may grant a motion to dismiss without further presentation of evidence. Ferdinand v. Agric. Ins. Co., 22 N.J. 482, 493 (1956); see City Check Cashing, Inc. v. Mfrs. Hanover Trust Co., 166 N.J. 49, 64-65 (2001); cf. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 532-40 (1995) (similar standards apply to a motion for dismissal under Rule 4:37-2(b) and a motion for summary judgment under Rule 4:46-2(c), including whether the evidence “‘is so one-sided that one party must prevail as a matter of law’” (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986))). A trial court must take into consideration the entirety of testimony from a witness rather than isolated excerpts favorable to one party or the other on a motion to dismiss. See Ritondo v. Pekala, 275 N.J. Super. 109, 111 (App. Div.), certif. denied, 139 N.J. 186 (1994).

On appeal, the appellate court applyes the same standard as the trial judge in considering dismissal of claims. RSB Lab. Servs., Inc. v. BSI Corp., 368 N.J. Super. 540, 555 (App. Div. 2004). That is, the appellate court conducts a plenary review of the record and consider de novo whether a claim should have been dismissed under Rules 4:37-2(b) or 4:40-1.

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

When the proof of a particular fact is so meager or so fraught with doubt that a reasonably intelligent mind could come to no conclusion but that the fact did not exist, the court may grant a motion to dismiss without further presentation of evidence originally appeared on NJ Family Issues on February 6, 2012.

Absent a valid excuse, a person who does not comply with a subpoena to testify may be held in contempt. The exercise of a valid testimonial privilege constitutes an adequate excuse. Privileges protect interests that have been determined to be of sufficient importance to justify some sacrifice of sources of facts needed in the administration of justice. Pursuant to N.J.R.E. 530, waiver of a privilege occurs if the holder enters into a contract not to claim the privilege or discloses part of the privileged matter or consents to disclosure. Courts also recognize that a privilege may be waived implicitly by placing a confidential communication in issue in the litigation.

The rules of evidence recognize two marital privileges that protect the tranquility and sanctity of marriage. The marital-communications privilege, N.J.R.E. 509, protects confidential communications made during a marriage. It is not at issue in this case. The spousal privilege, N.J.R.E. 501(2), provides that the spouse or civil union partner of the accused in a criminal action shall not testify in such action, except to provide the fact of the marriage or civil union, “unless (a) such spouse or partner consents, or (b) the accused is charged with an offense against the spouse or partner, a child of the accused or of the spouse or partner, or a child to whom the accused or the spouse or partner stands in the place of a parent, or (c) such spouse or partner is the complainant.” Unless one of the exceptions applies, all testimony is barred except that bearing on the fact of the marriage.

In In re Kozlov, 79 N.J. 232 (1979), the Court required that, aside from the express exceptions contained in the rules, a party seeking to pierce a privilege must advance a legitimate need for the evidence, show that it is relevant and material to the issue before the court, and establish that it cannot be secured from a less-intrusive source. Only in the most narrow of circumstances can the “need” prong be satisfied: (1) where a constitutional right is at stake, such as a defendant’s right to a fair trial, or (2) where a party has waived the privilege either expressly, as provided by statute, or implicitly by placing an otherwise protected matter in issue.

Pursuant to N.J.R.E. 530, waiver is only possible when it is exercised by a person while he or she is the holder of a privilege.

The “no less intrusive source” prong cannot be satisfied where other witnesses can testify about the events at issue.

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

Absent a valid excuse, a person who does not comply with a subpoena to testify may be held in contempt — the exercise of a valid testimonial privilege constitutes an adequate excuse originally appeared on NJ Family Issues on January 30, 2012.

The Government’s attachment of the GPS device to a vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.

The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The Government’s physical intrusion on an “effect” for the purpose of obtaining information constitutes a “search.” This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted.

This conclusion is consistent with this Court’s Fourth Amendment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360.

The Court need not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test. See Alderman v. United States, 394 U. S. 165, 176; Soldal v. Cook County, 506 U. S. 56, 64. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468 U. S. 705 — post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing another form of electronic monitoring — do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v. United States, 466 U. S. 170, also do not support the Government’s position.

The Government’s alternative argument — that if the attachment and use of the device was a search, it was a reasonable one — was forfeited because it was not raised below.

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

The Government’s attachment of the GPS device to a vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment originally appeared on NJ Family Issues on January 23, 2012.

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.

Spoliation is usually referenced in instances where evidence has been altered or destroyed. See Micron Technology, Inc. v. Rambus Inc., 645 F.3d 1311, 1320 (Fed. Cir. 2011) (Spoliation occurs when evidence is destroyed or altered, or when a party fails to preserve evidence in instances where litigation is pending or reasonably foreseeable.).

However,

When the contents of a document are relevant to an issue in a case, the trier of fact generally may receive the fact of the document’s nonproduction or destruction as evidence that the party that has prevented production did so out of the well-founded fear that the contents would harm him. Gumbs v. International Harvester, Inc., 718 F.2d 88, 96 (3d Cir.1983); United States v. Cherkasky Meat Co., 259 F.2d 89 (3d Cir. 1958).

Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 334 (3d Cir. 1995).

A party’s failure to produce a document can have the same practical effect as destroying it and, under certain circumstances, nonproduction of evidence is rightfully characterized as spoliation.

Spoliation occurs where: the evidence was in the party’s control; the evidence is relevant to the claims or defenses in the case; there has been actual suppression or withholding of evidence; and, the duty to preserve the evidence was reasonably foreseeable to the party. Id. ^[1] )

For the [spoliation] rule to apply .. . it must appear that there has been an actual suppression or withholding of the evidence. No unfavorable inference arises when the circumstances indicate that the document or article in question has been lost or accidentally destroyed, or where the failure to produce it is otherwise properly accounted for. See generally 31A C.J.S. Evidence § 156(2); 29 Am.Jur.2d Evidence § 177 (“Such a presumption or inference arises, however, only when the spoliation or destruction [of evidence] was intentional, and indicates fraud and a desire to suppress the truth, and it does not arise where the destruction was a matter of routine with no fraudulent intent.”).

Brewer, 72 F.3d at 334.

Therefore, a finding of bad faith is pivotal to a spoliation determination. Withholding requires intent. ^[2]

Submitting a copy or facsimile of a document rather than the original may constitute spoliation of evidence where the originals “might yield relevant evidence that is simply not available from copies.” “[T]heoretically — producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information.”

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

1. sanctions analysis includes the following factors: “(1) the degree of fault of the party who altered or destroyed the evidence; (2) the degree of prejudice suffered by the opposing party; and (3) whether there is a lesser sanction that will avoid substantial unfairness to the opposing party, and, where the offending party is seriously at fault, will serve to deter such conduct by others in the future.” Schmid, 13 F.3d at 79.
2. The verb “withhold” is defined as “To keep from doing something, to keep in check or under restraint; to hold back, restrain.” Oxford English Dictionary. http://www.oed.com/view/Entry/229665?redirectedFrom=wit hhold#eid, last viewed December 5, 2011. It inherently expresses an intentional act.

Producing copies in instances where the originals have been requested may constitute spoliation if it would prevent discovering critical information originally appeared on NJ Family Issues on January 10, 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).

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

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.

If “a litigant seeking affirmative relief claims a Fifth Amendment privilege to avoid discovery with respect to the subject matter of his case” the court may dismiss his pleadings. Fidelity Union Bank v. Hyman, 214 N.J. Super. 177, 182 (App. Div. 1986).

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.

If a litigant seeking affirmative relief claims a Fifth Amendment privilege to avoid discovery with respect to the subject matter of his case the court may dismiss his pleadings 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.