PAULA WILKINSON, ETC. VS. BRENNTAG NORTH AMERICA (L-7510-15, ESSEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2210-17T2
PAULA WILKINSON, as
ADMINISTRATRIX AD
PROSEQUENDUM of the
ESTATE OF ZACHARY GEHL,
Plaintiff-Appellant,
v.
BRENNTAG NORTH AMERICA,
ENTERPRISES FM TRUST,1
BRENNTAG SPECIALTIES INC.,
and WILLIAM LEWIS,
Defendants,
and
BROCK LEWIS, MICHAEL
MACHADO, and JULIO JORGE,
Defendants-Respondents.
_____________________________________
Argued March 20, 2018 – Decided July 30, 2018
Before Judges Fasciale, Sumners and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-7510-
15.
1
Brenntag North America and Enterprise FM Trust were dismissed
by stipulation; they are not a party to this appeal.
Caesar D. Brazza, argued the cause for
appellant.
Albert L. Piccerilli, argued the cause for
respondent Brock Lewis (Montgomery McCracken
Walker & Rhoads, LLP, attorneys; Albert L.
Piccerilli, on the brief).
Thomas N. Zuppa, Jr., argued the cause for
respondents Michael Machado and Julio Jorge
(Chasan Lamparello Mallon & Cappuzzo, PC,
attorneys; John V. Mallon, of counsel and on
the brief; Thomas N. Zuppa, Jr., on the
brief).
PER CURIAM
In this negligence action arising from a motor vehicle
accident, we granted plaintiff Paula Wilkinson, administratrix ad
prosequendum of the estate of Zachary Gehl, leave to appeal Law
Division orders granting defendants' motions barring testimony of
her expert witness because his reports were considered net opinion;
dismissing her wrongful death claim due to lack of an expert
report; and denying reconsideration of those orders. Because we
conclude that the motion court mistakenly applied its discretion
in barring Wilkinson's expert reports, we reverse and remand for
trial.
The motion record reveals the following facts and allegations
derived from deposition testimony and documents produced during
discovery. Wilkinson is the mother of Gehl, who was a passenger
in a vehicle driven by Brock Lewis and owned by Brenntag North
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America and Enterprise FM Trust, which was involved in an accident
with a vehicle driven by Michael Machado and owned by Julio Jorge.
Following the accident, Gehl was treated at a hospital for several
injuries and released that same day. Three days later, he was
found dead at his father's home with several packets of heroin and
a syringe near his body. An autopsy revealed that the cause of
death was acute hemorrhagic pneumonia due to acute and chronic
heroin abuse.
Wilkinson sued Lewis, Machado, and Jorge (collectively
defendants) for damages due to Gehl's personal injuries and his
wrongful death as a result of their alleged negligence. As for
the wrongful death claim, Wilkinson contended her son had recovered
from using narcotics at the time of the accident and his death was
caused by his abuse of narcotics again because of the accident.
To the contrary, Lewis, Gehl's long-time friend, stated that he
used heroin with Gehl on three separate occasions following Gehl's
release from jail five days prior to the accident.
To prove the accident was responsible for Gehl's death,
Wilkinson proffered expert's reports by Dr. Kiernan Ayre, a
psychotherapist and substance abuse specialist. In one of his
reports, Ayre stated that, even though he could not rule out Gehl's
heroin usage in the past, "[i]t does appear that at the time of
the . . . accident that [he] was abstinent from offending
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substances." Ayre admitted that he was unqualified in the area
of toxicology and did not review any toxicology records from the
hospital to confirm whether there were any illegal substances in
Gehl's body at the time of the accident. He instead relied upon
Wilkinson's assertion that Gehl was not abusing substances at the
time of the accident. Ayre also saw nothing in the police accident
report or the hospital records indicating that Gehl was under the
influence of heroin at the time of the accident. Considering
Gehl's history of chemical dependency and relying upon medical
articles stating that trauma can be a factor that can cause a
relapse, Ayre opined that the injuries Gehl suffered from the
accident can cause a relapse to use heroin.
After Wilkinson moved to bar defendants' pathology expert's
report regarding Gehl's cause of death, defendants cross-moved to
bar Ayre's opinion as net opinion and for summary judgment
dismissal of the wrongful death claim. The trial court entered
an order granting defendants' motions. In its written opinion,
the court found that although Ayre was qualified to posit an
opinion on drug use and relapse, his opinion that the trauma from
the accident caused Gehl's heroin-related death was not based on
the "why and wherefore" of the facts presented. The court
emphasized that despite Ayre's conclusion the accident caused
Gehl's relapse, Ayre acknowledged there could be other potential
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causes of his relapse and there was a possibility he was using
heroin in the days prior to the accident. The court determined
Ayre's opinion was a net opinion and, thus, inadmissible. Having
barred Ayre's opinion, the court then granted defendants' summary
judgment and dismissal of the wrongful death claim with prejudice
as there was no proof that defendants' actions were proximate
causes of Gehl's death.2 The court denied Wilkinson's motion for
reconsideration.3
Before us, Wilkinson contends the court erred in granting
defendants' motion barring Ayre's reports and, in turn, granting
summary judgment dismissal of her wrongful death claim due to lack
of proofs. Based upon the applicable legal principles guiding our
analysis, we conclude the court mistakenly applied its discretion
to exclude his expert testimony, and should not have barred Ayre's
opinion that the trauma Gehl suffered from the accident led him
to relapse into heroin use, causing his death. See Townsend v.
Pierre, 221 N.J. 36, 52-53 (2015) (a motion court's decision to
admit or exclude evidence turns on whether it abused its
discretion).
2
Because the court granted defendants' cross-motions, it denied
Wilkinson's motion to bar defendants' expert's report as moot,
which is not the subject of this appeal.
3
The record provided does not set forth the basis for the court's
decision.
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Under N.J.R.E. 703, an expert opinion must "be grounded in
'facts or data derived from (1) the expert's personal observations,
or (2) evidence admitted at the trial, or (3) data relied upon by
the expert which is not necessarily admissible in evidence but
which is the type of data normally relied upon by experts.'" Id.
at 53 (quoting Polzo v Cty. of Essex, 196 N.J. 569, 583 (2008)).
From this evidentiary standard, the net opinion rule has developed,
to "forbid[] the admission into evidence of an expert's conclusions
that are not supported by factual evidence or other data." Polzo,
196 N.J. at 583 (quoting State v. Townsend, 186 N.J. 473, 494
(2006)). That is, an expert must "explain a causal connection
between the act or incident complained of and the injury or damage
allegedly resulting therefrom." Buckelew v. Grossbard, 87 N.J.
512, 524 (1981). Otherwise, "[a]n expert's conclusion 'is excluded
if it is based merely on unfounded speculation and unquantified
possibilities.'" Townsend, 221 N.J. at 55 (quoting Grzanka v.
Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997)). Simply put,
experts must "give the 'why and wherefore'" of their opinions, not
"mere conclusion[s]." Koruba v. Am. Honda Motor Co., 396 N.J.
Super. 517, 526 (App. Div. 2007).
We agree with Wilkinson's contention that Ayre's opinion is
not speculation because he specifically references evidence found
in the record – her assertion that her son had recovered and was
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not using heroin prior to the accident and the post-accident
hospital records that do not evidence recent narcotic use – and
he cites to reputable medical literature listing trauma as a cause
for an addict's relapse. Ayre's opinion is contrary to the net
opinion rule; it attributes Gehl's relapse to trauma from the
accident, thereby providing a "why and wherefore" and not just a
"mere conclusion." The fact that Ayre relied upon medical
literature, which listed numerous other factors that can place a
recovering addict at risk to relapse, should not have made his
opinion inadmissible. Those other factors go to the weight a jury
may give to his opinion at trial, but not to the court's evaluation
as to whether Ayre's opinion is mere speculation, constituting a
net opinion. Simply put, the medical literature, Wilkinson's
deposition testimony, and the hospital records, provide the "hook"
upon which Ayre can hang his opinion on to overcome a motion to
bar his expert's reports.
In finding the court should not have barred Ayre's reports,
we are unpersuaded by defendants' contentions that Gehl was using
heroin prior to the accident; that Wilkinson had not seen her son
after he was released from jail and prior to the accident; and
that Ayre was not in a position to render an opinion because he
did not review any of Gehl's addiction-related records, did not
interview him, and did not investigate Gehl's family history or
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environment. While these are legitimate arguments to question
Ayre's opinion, they go towards the weight the jury may give to
Ayre's opinion at trial, not its admissibility.
Given our conclusion that Ayre should be permitted to render
his expert opinion attributing Gehl's heroin-related death to the
motor vehicle accident, it reasons that summary judgment should
not have been granted to dismiss Wilkinson's wrongful death claim.
Reversed and remanded for trial.
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