Townsend v. Pierre, 429 N.J. Super. 522 (App. Div. 2013). Though this case, which arose out of an auto accident, is a decision on summary judgment, it may be of greatest interest to lawyers and clients whose cases are at the trial stage. In an opinion by Judge Fasciale, the Appellate Division reversed a grant of summary judgment for the defendant.
The summary judgment resulted from the :Law Division’s view that the opinion of plaintiff’s expert– that negligently maintained bushes were the proximate cause of the accident even though plaintiff testified to having pulled up past the bushes in order to get an unobstructed view before proceeding– was a net opinion that could not defeat defendant’s motion. Applying the abuse of discretion standard of review that is applicable to decisions as to the admissibility of expert opinion, Judge Fasciale disagreed.
The key to his ruling was the somewhat counterintuitive idea that “the jury potentially could determine that Pierre was mistaken about her recollection” of whether the bushes obstructed her view. Unconditional admission of the expert’s testimony would have been improper, given plaintiff’s own testimony. But “the use of a hypothetical question, with a corresponding limiting instruction,” could allow the jury to consider the expert’s opinion. The expert could be asked to assume that plaintiff’s view was obstructed by the bushes. The jury would then have to decide whether, on all the evidence, there was a believable basis for that assumption, and whether plaintiff had otherwise proven her case.
Plaintiff had at one time admitted that the bushes obstructed her view, and there was other evidence to indicate that her contrary statement might have been mistaken. “[W]here, as here, there is a reasonable basis for a jury to reject a credibility-based recollection of a fact witness, the expert can properly comment about alternative factual possibilities in a hypothetical manner.” The proper use of a hypothetical question thus could save the day for plaintiff.