New Jersey Appellate Court Excludes Expert Testimony as Net Opinion

An Appellate Division panel in New Jersey has affirmed a lower court order barring a plaintiff’s expert from testifying at trial because his conclusions were net opinion, offering no basis for the opinion that a sidewalk was a dangerous condition at the time of a slip and fall.

In Fisher v. Yum Yum Bagel Café, plaintiff, a 75-year-old woman, was vacationing in New York City and staying in Cliffside Park. After returning from a trip to the city, she was walking to her residence when her “right foot was caught” on a raised edge surround a handicap ramp. As she fell, she attempted to catch herself with her left foot but there was debris on the ramp, which caused her foot to slip. Fisher injured her left knee and right wrist.

The handicap ramp was part of the sidewalk that allowed handicap access from the sidewalk to the crosswalk and street. The building next to the location of the slip-and-fall was a commercial building owned by a property owner and rented to a tenant, Yum Yum Bagel Café. Plaintiff filed a complaint against both the property owner and tenant. During discovery, Fisher learned that neither party built the ramp, so Fisher amended her complaint to name the County of Bergen and Cliffside Park as defendants. A voluntary dismissal was entered in favor of Bergen County, and Fisher settled her claims with the property owner.

Plaintiff hired a liability expert, a licensed engineer, to inspect the portion of the sidewalk in question. The expert also consulted Fisher’s answers to interrogatories and relied on her account of the accident. In his report, the expert gave a general description of the sidewalk and ramp at issue with dimensions. The expert also went to other ramps on the same block and gave descriptions of their dimensions, as well as the differences to the subject ramp. The expert then concluded that the sidewalk and ramp were not properly constructed and that it existed in that condition for two to three years.

Cliffside Park filed a motion to bar the expert from testifying and for summary judgment, which the motion court denied. Then on the first day of trial, Cliffside Park filed a motion in limine, renewing its motion to bar the expert testimony. The trial judge granted the motion. At close of trial, the trial court granted the defendant’s motion for judgment dismissing Fisher’s claims.

Fisher appealed the order barring the expert’s testimony as well as the dismissal. Fisher contended that the trial judge erred in barring the expert’s testimony on grounds of net opinion. She also argued that the in limine motion was untimely and a repeat of the motion for summary judgment which was previously denied.

The Appellate Division, reviewing the matter de novo, found Fisher’s arguments unpersuasive. The panel found that although the motion was untimely, the trial court did not deny Fisher due process because she had previously seen and contested the contents of the motion. The panel also found that the Fisher was bound to her expert’s opinion, which was clearly a net opinion “fatal to her ability to present a theory of liability.”

The panel stated that an expert must be able to “identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual basis and methodology are reliable.” Townsend v. Pierre, 221 N.J. 36, 55 (2015). Here, the expert concluded that (1) defendant was negligent in constructing the sidewalk; (2) the sidewalk was dangerous since its construction; defendant was on notice of the condition; and (4) the condition was palpably unreasonable. “Palpably unreasonable” means a condition that is unacceptable at the time, and a higher standard than mere negligence. However, the panel found that the conclusions were unfounded because the expert never demonstrated that defendant was on actual or constructive notice of condition. The expert also offered no evidence for his conclusion that the sidewalk maintained that condition for a long period. The panel found that the trial court did not abuse its discretion by barring the testimony as net opinion.

The panel also found that the trial court did not err by granting a judgment of dismissal.  “A public entity must have actual or constructive notice, meaning actual knowledge of the dangerous condition, or should have known of the dangerous condition.” Plaintiff did not meet the threshold to hold Cliffside Park responsible for the accident. The expert examined the property two years after the accident. In his report, he offered no basis for his opinion that the sidewalk existed in the dangerous condition at the time of the fall. With regard to notice, the expert stated that the sidewalk existed that way since its construction, but again provided no basis for his conclusion. The panel opined that without notice, a public entity’s conduct does not reach the level of palpably unreasonable. Because Fisher failed to prove that Cliffside Park had notice of the condition, she could not prove that Cliffside Park acted in a palpably unreasonable manner. Thus, the panel affirmed the trial court’s dismissal of Fisher’s claims.

Fisher v. Yum Yum Bagel Café demonstrates the importance of a properly executed expert report. Plaintiffs can face exclusion of expert testimony and ultimately dismissal of their claims when an expert does not offer the proper evidence to support their opinions and conclusions.