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Expert’s Net Opinion Tangles Plaintiff’s Claim (NJ)

August 23, 2018

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Expert opinions can be crucial for establishing or defending against negligence claims. New Jersey evidence rules require trial courts to serve an important gatekeeping function when it comes to expert witness testimony at the time of trial. The New Jersey Rules of Evidence requires experts to base their opinions on facts or data. An expert may not offer an opinion at trial unless it is based on some facts or evidence in the record. The courts have described this as the “net opinion” rule, which bars expert opinions that are based solely on unsupported conclusions.
In <a href=""><em>Cabezas v. Spoleti</em></a>, defendant was the owner of a residential property adjacent to plaintiff’s home. Defendant’s son, Vincent, lived nearby and helped his parents by maintaining their property including performing snow and ice removal during the winter seasons. Vincent did not receive compensation for his services. A few years before plaintiff’s accident, Vincent replaced the sidewalk abutting his parent’s home. He obtained a municipal permit for the work and did not receive any citations, warnings, or complaints with respect to the sidewalk replacement.
Seven years after the sidewalk replacement, plaintiff walked past defendant’s home and slipped and fell on ice that had accumulated on the sidewalk. He was hospitalized for two days and underwent surgery on his right ankle. Plaintiff filed suit against defendants alleging negligent inspection and maintenance of the sidewalk.  Plaintiff retained an engineering expert who prepared a report about the dangerous, hazardous conditions that existed due to the improper construction performed by defendants.
The report cited general construction and property maintenance regulations but did not identify any building code or industry standard that required construction of a sidewalk in the manner the expert described. Plaintiff’s expert opined that a properly constructed sidewalk should be covered with a specific type of sealant, but cited only to his “personal engineering opinion” based on his experience and research rather than any specific industry standard.
The appellate court found that plaintiff expert’s opinion lacked any foundation for admissibility. There was no authoritative materials that would support the expert’s opinions about accepted sidewalk construction practices or any basis on which to draw the conclusions offered. The appellate court affirmed the trial court’s dismissal of plaintiff’s claim, opining that plaintiff’s expert offered nothing more than a series of personal views which constituted a net opinion not worth of consideration.  Thanks to Steve Kim for his contribution to this post.  Please email <a href="">Brian Gibbons </a>with any questions.


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