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Experts Require Objective Evidence to Survive Net Opinion Rule (NJ)


April 12, 2018 at 8:12:24 PM

Dining at the Cheesecake Factory is normally an enjoyable event.  However, in <a href="">Piper v. The Cheesecake Factory</a> a plaintiff in New Jersey filed suit for personal injuries after her lunch was ruined when a server allegedly dropped a plate onto the floor.  The dish shattered when it hit the floor, and the fragment allegedly struck the plaintiff in the left eye.  Noami Piper filed suit against the Cheesecake Factory claiming that the clumsy server caused her to suffer a corneal abrasion.
In support of her claim, the plaintiff served an expert report prepared by her treating ophthalmologist, Dr. Hitesh Patel.   Dr. Patel did not find any evidence of a foreign body in the plaintiff’s eye, or a corneal abrasion. However, in his report, Dr. Patel opined that, based on his experience with <span style="text-decoration: underline;">other</span> patients, a trauma may have exacerbated the plaintiff’s pre-existing conditions and prolonged her discomfort.
N.J.R.E. 703 addresses the foundational requirements for expert testimony. It requires an expert to ground their opinion in facts or data derived from one of the following sources: (1) the expert's own personal observations; (2) evidence admitted at trial; or (3) evidence of "the type . . . normally relied upon by experts." However, an expert is also required to "give the why and wherefore" in support of their opinion.  In other words, an opinion consisting of "bare conclusions" or speculative hypotheses "unsupported by factual evidence" is inadmissible as a net opinion.
The Cheesecake Factory filed a motion for summary judgment, arguing that Dr. Patel’s report constituted an inadmissible net opinion.  The court agreed, and dismissed plaintiff’s complaint. On appeal, the court upheld the decision, finding that Dr. Patel’s report was not based on objective medical evidence.  Without a medical expert, the plaintiff could not satisfy her burden of proof with respect to the element of proximate cause.   This case is important, since it highlights the need for a medical expert to support their conclusion with objective evidence.
Thanks to Heather Aquino for her contribution for this post.  Please write to <a href="">Vito A. Pinto</a> for further information.

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