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VOLUME 4 Spring 2004 | ||||||
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NET OPINION DOCTRINE IN NEW JERSEY By Christopher Hoffner, Esq.
Plaintiff’s expert report is in, and the expert has based his report on no facts and has apparently performed no research. What is the remedy? The remedy is to exclude the expert’s report and testimony based on New Jersey’s evidentiary rules and the “net opinion” doctrine. The smart attorney can use this rule both as a sword to attack his adversary’s experts and as a shield to protect the reports and testimony of his own.
The New Jersey Rules of Evidence state that an expert’s opinion will be based upon “facts or data,” even if the facts or data themselves are inadmissible, if they are of a type “reasonably relied upon by experts” in the field. The expert can make use of them in his opinion, but the expert must base his opinion on something and cannot just announce his conclusions in a report. Without evidence to support his opinion, the expert’s opinion is excludable “net opinion.”
The rules apply to both liability experts and damage experts. For example, in Kaplan v. Skoloff & Wolfe, a legal malpractice case, New Jersey’s Appellate Division found that a liability expert report had no factual support. Specifically, Plaintiff’s experts did not rely on any written authorities or standard practices in the legal profession to establish a duty of care that defendants breached. Plaintiff’s only evidence of a breached duty was an anecdote from his own experience. The Court held that this expert’s opinion was merely conclusion and opinion with no support. As a result, it was excluded.
As for damages experts, in Vitrano by Vitrano v. Schiffman, Defendant challenged Plaintiff’s expert report as net opinion because the only factual basis the expert had was the review of an operative report. This case involved a medical malpractice question where the birthing physician failed to diagnose a condition present in Plaintiff at birth.
The condition was not uncovered until the Plaintiff was sixteen. Although based solely on the notes of the physician who performed corrective surgery on the now sixteen-year-old Plaintiff, the court held that there was a sufficient factual basis to allow the expert report to stand.
Frequently, plaintiffs will attempt to incorporate a liability expert report to solidify their position. Defendants need to be on the lookout for liability reports that simply conclude that “the defendant is liable” but fail to offer any reasons for it. An expert who reviews photographs but does not inspect the site of an accident is open to attack. An expert who simply concludes that a condition is unsafe, without reference to OSHA manuals, building codes, zoning rules, or some form of standards, is rendering an opinion prone to attack.
Damages experts provide a special concern for defense counsel. Frequently, the defense experts we utilize have only one visit with a plaintiff. Their only other point of reference is medical records with which they are provided. While the physical exam provides a sound factual basis, a records review will likely endanger the expert’s ability to testify.
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