A Supreme Court Opinion About Net Opinions

Townsend v. Pierre, 221 N.J. 36 (2015).  In this opinion, issued yesterday, the Supreme Court reversed a ruling of the Appellate Division.  The Appellate Division’s decision was discussed here.  The Court’s unanimous opinion, written by Justice Patterson, contains an extensive discussion of the “net opinion” principle, which states that 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 reliable.”  The Court concluded that the expert opinion here did not rise to that level.  Instead, it was a net opinion that could not be admitted into evidence.

The case arose out of a fatal auto collision.  This appeal did not involve the defendant driver, Pierre.  Instead, the defendants in the appeal were the owner and lessee of property at the intersection where they accident occurred.  Plaintiffs sought to hold those defendants liable on the theory that shrubbery on that property had affected Pierre’s view, and that the shrubbery violated local ordinances.  Pierre had testified that the shrubbery had originally affected her view of the intersection, but that she had “edged up” further into the intersection, and by the time she turned, her view was not impeded by the shrubbery.  Her passenger corroborated that testimony.  No other witness testified that the shrubbery played a role in the collision.  Nonetheless, plaintiffs produced an expert report that noted Pierre’s testimony that the shrubbery did not ultimately affect her view but opined that Pierre must have been mistaken, and concluded that the shrubbery was a proximate cause of the collision.

The defendants in this appeal moved for summary judgment, which the Law Division granted.  The Appellate Division reversed, ruling that the expert’s opinion was sufficiently anchored in the record and that, in any event, plaintiffs could use hypothetical questions to deal with any problems in the esxpert’s report.  The Supreme Court granted review and reversed.  Plaintiffs’ expert “reconstituted the facts [and] asserted that Pierre’s testimony about her accident was wrong.”  Accordingly, the expert’s causation opinion was invalid as a net opinion.

The Appellate Division had found that the expert’s opinion fell short of what was required to allow “unconditional admission.”  But that court determined that “the [expert] opinion’s shortcomings could be remedied by the use of hypothetical questions.”  Justice Patterson did not agree.  Hypothetical questions are permitted by Evidence Rule 705 “provided that the questions include facts admitted or supported by the evidence.”  That was not so here.  “The hypothetical question suggested by the Appellate Division– in which the expert would be asked to assume that Pierre’s account of the accident was mistaken– not only lacks the requisite foundation in the facts, but is premised on a rejection of uncontroverted testimony.”  In those circumstances, there was no hypothetical question that could salvage the expert’s opinion.

With the expert’s opinion excluded, the Law Division granted summary judgment to the defense on the causation issue.  The review of that decision was de novo.  Though causation is an issue “ordinarily left to the factfinder,” proximate causation may be determined as a matter of law “in the highly extraordinary case in which reasonable minds could not differ on whether that issue has been established.”  This was such a case.  “[N]o facts in the record support plaintiffs’ contention that the shrubbery on the Property was a proximate cause of the fatal collision between Pierre and Townsend.”