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Plaintiff’s Gets Tangled in a "Net Opinion" (NJ)

May 3, 2018

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Expert reports can provide significant support for a party’s case- so long as the expert can provide the necessary support for his or her findings.  The conclusory remarks in plaintiff’s expert report were challenged in <em><a href="http://blog.wcmlaw.com/wp-content/uploads/2018/05/Perdomo-v.-Orgacki.pdf">Perdomo v. Orgacki</a></em>, when plaintiff submitted an expert report that defendant claimed should be barred as a net opinion.
In December 2010, plaintiff was a passenger in an automobile involved in an accident.
An MRI revealed that plaintiff sustained disc bulges that were attributable to the accident. Plaintiff’s expert, a chiropractor, had opined that there was some degree of permanency. Three years later, in November 2013, plaintiff was in a second accident, when she was rear-ended by an automobile driven by defendant. Subsequent MRIs revealed disc bulges in the same areas as found in her 2010 MRI results. The same chiropractor treated plaintiff for this subsequent accident, issuing a report that acknowledged his 2010 diagnosis of a low back injury with some degree of permanency. However, the doctor opined that plaintiff suffered further permanent partial impairment of her lower back that is 70% attributable to the 2013 accident.
Defendant subsequently moved for summary judgment, arguing that plaintiff failed to establish through credible objective medical evidence that she sustained a permanent injury because of the accident. In the alternative, defendant moved to bar plaintiff’s expert report as a net opinion. The trial court ultimately barred plaintiff’s expert report as a net opinion, leading to plaintiff’s appeal.
The appellate court opined that an expert report must be grounded in facts or data derived from the expert’s personal observations, evidence admitted at trial, or data relied upon by the expert which is not necessarily admissible in evidence, but is normally relied upon by experts. The net opinion rule forbids admission of reports into evidence wherein an expert’s conclusions are not supported by factual evidence. Expert reports must give the why and wherefore of their opinions.
Based on this analysis, the appellate court held that the trial court properly barred plaintiff’s expert report as a net opinion, as he failed to explain why the 2013 accident resulted in a partial impairment of plaintiff’s lower back.  Thanks to Steve Kim for his contribution to this post.  Please email <a href="mailto:BGibbons@wcmlaw.com">Brian Gibbons</a> with any questions.

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