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New Jersey in Need of a Uniform Procedure Regarding Expert Reports

January 26, 2018

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In New Jersey, the net opinion rule precludes expert conclusions not supported by factual evidence or other data. Plaintiffs often serve liability expert reports that are “net opinion” simply to survive summary judgment motions, and force a pre-trial settlement. Defendants can file a motion, during or after discovery, to bar an expert report. If granted, defendant can obtain a dismissal by way of summary judgment. Two recent decisions highlight the lack of clarity as to the pre-trial procedure for attacking expert decisions.
In <a href=""><em>Mascari v. Bordentown Regional High School</em></a>, plaintiff injured his finger while fiddling with a locking mechanism underneath a folding table. Plaintiff served a liability expert report opining that the lock was too close to the side of the table, and was the proximate cause of the accident. At deposition, the expert contradicted his report establishing the table and its locking mechanism were industry compliant. Defendant moved for summary judgment, and in opposition, the expert submitted an affidavit attempting to clarify. The trial court granted the motion, but on appeal, the Appellate Court reversed holding that there should have been a Rule 104 evidence hearing for the expert to explain and clarify.
On the other hand, two days earlier, another Appellate Court panel upheld the trial court’s dismissal of an expert report as net opinion. In <a href=""><em>Tran v. Nguyen</em></a>, plaintiff dove head first into the shallow end of a friend’s pool after imbibing several alcoholic beverages. Plaintiff served a liability expert report opining that the installer and servicer of the pool should have installed a rope separating the deep end from the shallow end, and they should have counseled the homeowners to display clear “no diving” warnings. Prior to the close of discovery, defendants moved to bar the report. The trial court barred the report since it did not cite any governing industry standards, and there were in fact warnings around the pool. The Appellate Court upheld the decision without any need for a Rule 104 evidence hearing.
So, what is the correct procedure in attacking an expert opinion? Is a Rule 104 hearing required in every circumstances so as to give a plaintiff four, five, how about six bites at the apple to proffer an admissible expert opinion? How do litigants save their clients costs by striking boilerplate reports before being subject to the costs involved in post-discovery pre-trial and trial practice? How are litigants supposed to assist the judiciary in reducing docket clogging and court resources? Hopefully, the Supreme Court can assist the bar by adopting a uniform procedure in the New Jersey Court Rules.
Thanks to Michael Noblett for his contribution to this post.

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