In Wrongful Death Cases, No Expert Testimony is Needed to Establish the Value of the Services of a Loved One

Dutton v. Rando, 458 N.J. Super. 213 (App. Div. 2019).  In Lesniak v. County of Bergen, 117 N.J. 12 (1989), the Supreme Court stated that expert testimony is not required to establish the value of services such as advice, guidance, and companionship of a loved one in the context of a wrongful death case.  Today, in an opinion by Judge Mitterhoff, the Appellate Division reaffirmed that principle and upheld a jury verdict for plaintiff.

After recounting the facts at length, Judge Mitterhoff first addressed defendant’s claim that his motion for a new trial on liability was erroneously denied.  “The standard of review on appeal from decisions on motions for a new trial is the same as that governing the trial judge—whether there was a miscarriage of justice under the law.”  The jury’s verdict, Judge Mitterhoff emphasized, commands substantial deference.  It may be overturned only where it “shocks the judicial conscience.”  The Appellate Division upheld the Law Division’s denial of a new trial.

The main part of the panel’s opinion dealt with the question of the need for expert testimony as to the value of services.  After reviewing the background of New Jersey’s Wrongful Death Act, Judge Mitterhoff canvassed the laws of other jurisdictions, noting that fourteen states “strictly apply the pecuniary loss rule to preclude recovery for emotional damages in wrongful death actions, but allow recovery for the pecuniary component of lost advice, counsel, or companionship of the decedent through either case law or statute,” as New Jersey does.

Judge Mitterhoff then cited several New Jersey appellate decisions, including Lesniak and others, that held that although the damage assessment at issue may be “burdened with the element of speculation,” it is not so beyond the jury’s ken as to make expert testimony mandatory.  The fourteen states with wrongful death statutes similar to that of New Jersey similarly have held that expert testimony is not necessary in this regard, as Judge Mitterhoff proceeded to catalog.

Defendant had moved for involuntary dismissal of plaintiff’s wrongful death claim.  Under the applicable standard of review, that motion could be granted only ” where no rational juror could conclude that the plaintiff marshaled sufficient evidence to satisfy each prima facie element of a cause of action.”  Here, Judge Mitterhoff concluded after reviewing the evidence, it was sufficient to support the result.

Defendant relied heavily on Brown v. Kennedy Memorial Hosp., 312 N.J. Super. 579 (App. Div. 1998), but Judge Mitterhoff found that case distinguishable in a number of respects.  In Brown, the jury was left “futilely without guidance” by the evidence, so that its verdict was based on pure conjecture.  The evidentiary record here was more substantial, and the panel affirmed the result below.