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Generally, “the results of scientific tests are admissible at a criminal trial only when they are shown to have ‘sufficient scientific basis to produce uniform and reasonably reliable results and will contribute materially to the ascertainment of the truth.’” Romano v. Kimmelman, 96 N.J. 66, 80 (1984) (quoting State v. Hurd, 86 N.J. 525, 536 (1981) (quoting State v. Cary, 49 N.J. 343, 352 (1967))). In Romano, the Court required the State to show that the breathalyzer machine was properly calibrated in order for the results to be admissible at trial. Romano, supra, 96 N.J. at 66. In this regard, “[t]rial courts are expected to perform a gatekeeper role in determining whether there exists a reasonable need for an expert’s testimony, and what the parameters of that testimony may be.” State v. Nesbitt, 185 N.J. 504, 514 (2006).

“Global Positioning System technology is defined as ‘[a] system of satellites, computers, and receivers that is able to determine the latitude and longitude of a receiver on Earth by calculating the time difference for signals from different satellites to reach the receiver.’” State v. Harte, 395 N.J. Super. 162, 165 n. 1 (Law Div. 2006) (quoting The American Heritage Dictionary of the English Language (4th ed. 2000)).

Expert testimony is essential to determining the accuracy and trustworthiness, and therefore admissibility, of the particular GPS device used in a case.

A common reason for rejecting computerized evidence is lack of a sufficient foundation to show the accuracy and trustworthiness of the evidence. See 14 Am. Jur. 2d Proof of Facts § 17 (1977). Where a challenge is lodged, a court requires the party offering the computer information to provide a foundation therefor sufficient to warrant a finding that such information is trustworthy, and allows the opposing party the opportunity to inquire into the accuracy of the computer and input procedures used. United States v. De Georgia, 420 F.2d 889, 893 n. 11 (9th Cir. 1969). In reversing the conviction of a marijuana smuggler whose boat, used to import the contraband from the Mexican border to the United States, was equipped with a GPS device, the Ninth Circuit Court of Appeals in United States v. Bennett, 363 F.3d 947 (9th Cir.), cert. denied, 543 U.S. 950, 125 S. Ct. 363, 160 L. Ed. 2d 268 (2004), noted that in addition to failing to produce the GPS or its output for trial, the government did not establish that the defendant’s GPS information was necessarily accurate or that the GPS itself worked properly. Id. at 954 n. 7.

As noted by the Court of Appeals, “malfunctioning GPS devices are not unknown to this court.” Ibid. (citing United States v. McIver, 186 F.3d 1119, 1123 (9th Cir. 1999), cert. denied, 528 U.S. 1177, 120 S. Ct. 1210, 145 L. Ed. 2d 1111 (2000)).

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“The net opinion rule is a prohibition against speculative testimony.” Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div.), certif. denied, 154 N.J. 607 (1997). “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 rule requires an expert “to give the why and wherefore” of his or her opinion rather than a mere conclusion. Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), cert. denied, 145 N.J. 374 (1996). 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). When an expert opinion is unsupported by factual evidence, it is inadmissible. Jimenez, supra, 286 N.J. Super. at 540.

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Expert’s reports are statements but, unlike answers to interrogatories, are not statements of a party and therefore cannot be treated as an admission simply because a party furnished them in discovery. Skibinski v. Smith, 206 N.J. Super. 349, 353 (App. Div. 1985). The reports themselves are hearsay and generally are not admissible. Hill v. Cochran, 175 N.J. Super. 542, 546-57 (App. Div. 1980).
N.J.R.E. 803(b), however, provides an exception to the hearsay rule for

(b) A statement offered against a party which is:
. . . .
(2) a statement whose content the party has adopted by word or conduct or in whose truth the party has manifested belief. . . .

An expert’s report can be admissible as an adoptive admission of a party pursuant to N.J.R.E. 803(b)(2) in some instances when the party provides the report in response to specific interrogatories and thus adopts the contents as its admission. Ratner v. General Motors Corp., 241 N.J. Super. 197, 201 n.2 (App. Div. 1990); Skibinski, supra, 206 N.J. Super. at 354; Mehalick v. Schwartz, 223 N.J. Super. 259, 262 (Law Div. 1987).

In determining whether the submission of an expert’s report is an adoptive admission, courts have focused on the wording of the interrogatory. For example, in Skibinski, supra, this court held that the plaintiff’s attachment of the expert’s report to his answers to interrogatories did not constitute an adoptive admission, because the interrogatories propounded by the defendants had merely contained a request for a copy of an expert’s report. Ibid. Thus, we held that a response to that interrogatory did “not produce admissions that can be used to limit the expert’s testimony at trial.” Ibid.

Similarly, in Mehalick v. Schwartz, supra, the defendant doctor in a medical malpractice case sought to introduce the plaintiffs’ expert report in evidence. The court held the report was inadmissible and explained that the interrogatories served by the defendant “simply asked for the names and addresses of expert witnesses, the subject matter on which the expert was to testify, a summary of the grounds for each opinion, and for a copy of the report pursuant to R. 4:17-4(a).” Id. at 263. “The interrogatory as worded did not ask for factual information from plaintiff which was within plaintiff’s knowledge as in Sallo [v. Sabatino, 146 N.J. Super. 416, 419 (App. Div. 1976)], but rather asked for the opinion to be given by the expert and as a result cannot be considered as an adoptive admission of plaintiffs.” 223 N.J. Super. at 263.

Where a party asks in an interrogatory for “the substance of the facts and opinions as to which the expert is expected to testify,” if the responding party responds “see attached expert’s report” to that interrogatory, the expert’s report constitutes an adoptive admission. Skibinski, supra, 206 N.J. Super. at 354. But, if the response does not refer to the expert’s report, the expert’s report does not constitute an adoptive admission.

A responding party’s failure to include a disclaimer that the report was not an adoptive admission, does not compel the conclusion that the party was relying upon the report and that it was an adoptive admission. A party may include “[a]n expression that the party does not adopt the report” and such an expression “is a sufficient disclaimer of the report.” Serrano v. Levitsky, 215 N.J. Super. 454, 458 (Law Div. 1986); however, that is not to say that the failure to include a disclaimer automatically converts the report to an adoptive admission.

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