Deborah Townsend v. Noah Pierre (072357)

SYLLABUS
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the
interest of brevity, portions of any opinion may not have been summarized).
Deborah Townsend v. Noah Pierre (A-2-13) (072357)
Argued October 21, 2014 -- Decided March 12, 2015
PATTERSON, J., writing for a unanimous Court.
In this appeal, the Court addresses the net opinion rule and the standard for summary judgment in the
context of a negligence action.
On August 9, 2008, a fatal collision occurred at the intersection of Garfield Drive and Levitt Parkway in the
Township of Willingboro (Township). A lot on that intersection (the Property) was owned by Garland Property
Management, LLC (Garland) and leased to Sunset Family Dental, LLC (Sunset Family Dental). The tragic accident
occurred when Noah Pierre (Pierre) was turning left onto Levitt Parkway. As Pierre approached the intersection, she
stopped at a stop sign, pausing behind another stopped vehicle. Initially, shrubbery on the Property obstructed
Pierre’s view, but she “edged up” into the intersection, starting and stopping four times before attempting the left
turn. Pierre testified repeatedly that when she made her final stop, the shrubbery no longer impeded her view.
Pierre’s testimony was corroborated by her passenger, who stated that Pierre’s view of oncoming traffic was not
impeded by the shrubbery when she made her turn. As Pierre turned, her vehicle collided with a motorcycle
traveling in the left eastbound lane of Levitt Parkway. The motorcyclist died as a result of the collision.
Plaintiffs filed this action against several defendants, asserting claims pursuant to the Wrongful Death Act,
N.J.S.A. 2A:31-1 to -6, and the Survival Act, N.J.S.A. 2A:15-3. Plaintiffs alleged that Garland and Sunset Family
Dental negligently maintained overgrown shrubbery on the Property, blocking the view of oncoming traffic.
Plaintiffs also named the Township and County as defendants, alleging that they negligently designed the
intersection, causing the view of motorists to be obstructed.
After substantial discovery, the trial court denied motions for summary judgment on the ground that
plaintiffs had sought to serve an expert report. Plaintiffs subsequently served a report by Nicholas Bellizzi, P.E.
(Bellizzi), which primarily focused on the alleged negligence of the Township and County, but also addressed the
care allegedly owed by Garland and Sunset Family Dental, concluding that the shrubbery violated local ordinances.
Bellizzi’s report also addressed the critical issue, concluding that “[t]he restricted substandard and unsafe
intersection sight distance was a significant contributing cause” of the accident. Bellizzi noted Pierre’s testimony
that she did not turn until she had a clear view of oncoming traffic, but opined that Pierre must have been mistaken.
Defendants ultimately filed motions to bar Bellizzi’s report as a net opinion. The court granted the motions
and granted renewed summary judgment motions filed by defendants. The court dismissed plaintiffs’ claims against
the Township and County based on the immunity afforded to them by the Tort Claims Act (TCA), N.J.S.A. 59:1-1
to 12-3, and, with regard to Garland and Sunset Family Dental, held that the shrubbery was “not a factor in this
case” given Pierre’s testimony and the absence of evidentiary support for a theory of causation.
Plaintiffs appealed, and, in a ruling that plaintiffs do not challenge, the Appellate Division affirmed the
dismissal of plaintiffs’ claims against the Township and the County. Townsend v. Pierre, 429 N.J. Super. 522, 532
(App. Div. 2013). The panel reversed, however, the grant of summary judgment in favor of Garland and Sunset
Family Dental, holding that the expert’s conclusion was sufficiently grounded in the record and that plaintiffs could
elicit the expert’s opinion disputing Pierre’s testimony in the form of a hypothetical question at trial. This Court
granted Garland and Sunset Family Dental’s petition for certification. 215 N.J. 485 (2013).
HELD: Given the uncontradicted testimony that the driver’s view was unimpeded by the shrubbery on defendants’
property, the trial court properly barred the causation opinion of plaintiffs’ expert and granted summary judgment. The
opinion on the issue of causation was a net opinion that was directly contradicted by the factual evidence. The opinion
1
with regard to the duty of care owed by the property owner and lessee was properly substantiated and was therefore
admissible under N.J.R.E. 702 and 703.
1. To sustain a cause of action for negligence, plaintiff must establish four elements, including that defendants’
alleged negligence was a proximate cause of the collision and Townsend’s death. Accordingly, a pivotal issue of
fact is whether Pierre’s view was obstructed by shrubbery when she turned left. The evidence on that question
consists entirely of two excerpts from deposition testimony: Pierre’s testimony that she moved her car forward into
the intersection four times before turning, and that when she turned, her view was unobstructed by the shrubbery;
and her passenger’s testimony corroborating Pierre’s recollection regarding her clear line of vision at the crucial
moment. To rebut that factual record, plaintiffs relied entirely on a portion of Bellizzi’s expert report addressing the
issue of causation. In that setting, the trial court decided the two motions at the center of this appeal. (pp. 16-17)
2. The admission or exclusion of expert testimony is committed to the sound discretion of the trial court. When, as
in this case, a trial court confronts an evidence determination precedent to ruling on a summary judgment motion, it
must address the evidence decision first. Appellate review proceeds in the same sequence. (pp. 17-18).
3. When a trial court determines the admissibility of expert testimony, N.J.R.E. 702 and N.J.R.E. 703 frame its
analysis. The net opinion rule is a corollary of N.J.R.E. 703 which forbids the admission into evidence of an
expert’s conclusions that are not supported by factual evidence or other data. The rule requires that an expert “give
the why and wherefore that supports the opinion, rather than a mere conclusion.” Borough of Saddle River v. 66 E.
Allendale, LLC, 216 N.J. 115, 144 (2013) (internal quotation marks and additional citation omitted). The rule does
not mandate that an expert organize or support an opinion in a particular manner that opposing counsel deems
preferable. The net opinion rule, however, mandates that experts be able to identify the factual bases for their
conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are
reliable. By definition, unsubstantiated expert testimony cannot provide to the factfinder the benefit that N.J.R.E.
702 envisions: a qualified specialist’s reliable analysis of an issue beyond the ken of the average juror. (pp. 18-21)
4. A party’s burden of proof on an element of a claim may not be satisfied by an expert opinion that is unsupported
by the factual record or by an expert’s speculation that contradicts that record. Here, Bellizzi’s testimony must be
rejected as a net opinion to the extent that he speculated on the issue of causation. Had Bellizzi been proffered as an
expert only as to defendants’ duty of care, his opinion would have been admissible, subject to cross-examination.
With respect to causation, however, Bellizzi’s opinion diverged from the evidence, and, to reconcile his opinion
with the testimony, he reconstituted the facts and asserted that Pierre’s testimony about her accident was wrong. In
this crucial respect, Bellizzi’s proposed expert testimony is an inadmissible net opinion. (pp. 21-25)
5. Acknowledging that the “unconditional admission” of Bellizzi’s opinion on causation would be improper, the
Appellate Division reasoned that the opinion’s shortcomings could be remedied by the use of hypothetical questions.
Townsend, 429 N.J. Super. at 529. The Court disagrees. The hypothetical suggested by the Appellate Division -- in
which the expert would be asked to assume that Pierre’s account of the accident was mistaken -- not only lacks the
requisite foundation in the facts, but is premised on a rejection of uncontroverted testimony. On this record, no
hypothetical question could salvage the causation opinion proffered by Bellizzi. See N.J.R.E. 705. (pp. 25-27)
6. Having addressed the propriety of Bellizzi’s opinion, the Court turns to review the trial court’s grant of summary
judgment. Although the issue of causation is ordinarily left to the factfinder, summary judgment may be granted
dismissing the plaintiff’s claim in the unusual setting in which no reasonable factfinder could find that the plaintiff
has proven causation by a preponderance of the evidence. This case presents such a setting. No facts in the record
support plaintiffs’ contention that the shrubbery was a proximate cause of the fatal collision. The trial court properly
granted summary judgment dismissing plaintiffs’ claims against Garland and Sunset Family Dental. (pp. 27-30)
The judgment of the Appellate Division is REVERSED with respect to Garland and Sunset Family Dental,
and the trial court’s grant of summary judgment in favor of Garland and Sunset Family Dental is REINSTATED.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, ALBIN, and SOLOMON; and JUDGE
CUFF (temporarily assigned) join in JUSTICE PATTERSON’s opinion. JUSTICE FERNANDEZ-VINA did
not participate.
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SUPREME COURT OF NEW JERSEY
A-2 September Term 2013
072357
DEBORAH F. TOWNSEND,
administratrix ad prosequendum of
the Estate of Alvin J. Townsend,
Jr.; ALVIN J. TOWNSEND, SR.,
administrator ad prosequendum of
the Estate of Alvin J. Townsend,
Jr.; and ALVIN J. TOWNSEND, JR.,
deceased,
Plaintiffs-Respondents,
v.
NOAH PIERRE an individual; JEAN
HILAIREMONT, an individual; THE
PRECISION DENTAL SPECIALIST, LLC;
LEONARD H. JUROS, an individual;
JANET L. JUROS, an individual;
TOWNSHIP OF WILLINGBORO; and BOARD
OF CHOSEN FREEHOLDERS OF THE
COUNTY OF BURLINGTON,
Defendants,
and
GARLAND PROPERTY MANAGEMENT, LLC;
and SUNSET FAMILY DENTAL, LLC,
Defendants-Appellants.
Argued October 21, 2014 – Decided March 12, 2015
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at 429 N.J. Super. 522 (2013).
Michael Dolich argued the cause for
appellants (Bennett, Bricklin & Saltzburg,
attorneys; Mr. Dolich and Nicholas A.
Cummins, on the briefs).
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Donald M. Stanzione argued the cause for
respondents (Lombardi and Lombardi,
attorneys).
Michael G. Donahue, III, argued the cause
for amicus curiae New Jersey Association of
Justice (Stark & Stark, attorneys).
JUSTICE PATTERSON delivered the opinion of the Court.
In this appeal, we apply the net opinion rule and the
standard for summary judgment to a negligence action arising
from a fatal collision between an automobile and a motorcycle.
The accident occurred as the driver of the automobile, Noah
Pierre (Pierre), was turning left at an intersection controlled
by a stop sign. Among the defendants named in plaintiffs’
wrongful death and survival actions were the owner and lessee of
a property located on a corner of the intersection where the
accident occurred. Plaintiffs alleged that these defendants
negligently maintained overgrown shrubbery on their property,
blocking Pierre’s view of oncoming traffic at the intersection.
The role of the defendants’ shrubbery in the accident was
the subject of discovery. Pierre testified that shrubbery on
the property initially obscured her view when she was stopped at
the stop sign at the intersection, but that she edged forward,
starting and stopping four times until her view of oncoming
traffic was unimpeded. A passenger in Pierre’s vehicle
corroborated Pierre’s testimony that when she turned left, she
2
had an unobstructed view of approaching traffic. The record
contains no testimony to the contrary. However, an engineering
expert retained by plaintiffs opined that the overgrown
shrubbery on the property next to the intersection was a
proximate cause of the fatal collision. He acknowledged
Pierre’s testimony that she stopped four times before proceeding
and that the shrubbery on the adjoining property did not
obstruct her view, but contended that Pierre’s account of the
accident was mistaken.
The trial court granted defendants’ motion to strike the
expert’s testimony as a net opinion lacking support in the
record. The court then granted defendants’ motion for summary
judgment dismissing plaintiffs’ claims against the property
owner and lessee. The Appellate Division vacated the trial
court’s order barring the expert’s report and reversed the grant
of summary judgment, holding that the expert’s conclusion was
sufficiently grounded in the record and that plaintiffs could
elicit the expert’s opinion disputing Pierre’s testimony in the
form of a hypothetical question at trial.
Given the uncontradicted testimony of Pierre and her
passenger that Pierre’s view of oncoming traffic was unimpeded
by the shrubbery on defendants’ property when she made her left
turn, we hold that the trial court properly barred the causation
opinion of plaintiffs’ expert and granted summary judgment. The
3
expert’s opinion that the defendant property owner and defendant
lessee both had a duty to maintain the landscaping on their
property so that it did not obstruct the view of drivers was
properly substantiated and was therefore admissible under
N.J.R.E. 702 and 703. However, his opinion on the issue of
causation was a net opinion that was not only unsupported by the
factual evidence, but directly contradicted that evidence.
Accordingly, we reverse the judgment of the Appellate
Division. We reinstate the trial court’s order barring the
expert testimony and its grant of summary judgment dismissing
plaintiffs’ claims against the owner and lessee of the property
adjoining the intersection.
I.
The tragic accident that gave rise to this litigation
occurred during the evening of August 9, 2008, at the
intersection of Garfield Drive and Levitt Parkway in the
Township of Willingboro (Township).1 Garfield Drive is a roadway
that runs north to south and is maintained by the Township.
Levitt Parkway is a roadway that runs east to west and is
maintained by Burlington County (County). A stop sign on
Garfield Drive regulated northbound traffic approaching the
1 Our summary of the facts is based on the limited record that
the parties presented to the trial court in connection with
defendants’ motion to strike the plaintiff’s expert report and
motion for summary judgment.
4
intersection on Garfield Drive, but no traffic signal or stop
sign controlled eastbound and westbound traffic on Levitt
Parkway.
The lot designated as 77 Garland Lane (the Property),
situated at the southwest corner of the intersection, was owned
by defendant Garland Property Management, LLC (Garland) and
leased to a dental practice, defendant Sunset Family Dental, LLC
(Sunset Family Dental). Plaintiffs allege that overgrown
shrubbery located on the northern border of the Property
obscured the lateral view of northbound drivers stopped at the
stop sign at the intersection of Garfield Drive and Levitt
Parkway.
According to Pierre’s deposition testimony given when she
was a defendant in this case, Pierre was traveling northbound on
Garfield Drive shortly before the accident. Pierre stated that
she approached the intersection and stopped at the stop sign,
initially pausing behind another stopped vehicle. She testified
that rather than turn left onto Levitt Parkway from the location
of the stop sign, she “edged up” into the intersection, starting
and stopping four times before attempting the left turn. Pierre
acknowledged that when she initially stopped at the stop sign,
the shrubbery on the Property obstructed her view of eastbound
vehicles on Levitt Parkway approaching the intersection.
However, Pierre repeatedly stated that when she made her fourth
5
and final stop before turning left, the shrubbery no longer
impeded her view of oncoming traffic. Pierre further recalled,
“I looked to my right. I looked to my left. I didn’t see
anything. It was safe. So, I began to make my left turn onto
Levitt.”
Pierre’s testimony regarding her view of oncoming traffic
when she turned left on Levitt Parkway was corroborated by her
front-seat passenger, Danielle Kirby. Kirby’s testimony
diverged from that of Pierre with respect to how many times
Pierre stopped the car before turning left; Kirby stated that
Pierre stopped only once, not four times. However, Kirby
testified that Pierre looked to her left before turning on to
Levitt Parkway, and that when Pierre made her turn, her view of
oncoming traffic was not impeded by the shrubbery on the
Property.
The driver of another car, Anna Nelson (Nelson), testified
that when she drove up to the intersection, she observed
Pierre’s car to her left, and that Pierre’s car was already
beyond the “stop line.” Nelson testified that Pierre’s car was
“at the stop sign with me and then proceeded to go ahead and
make a left-hand turn.”2
2 Although none of the parties to this appeal submitted the
testimony of Kirby and Nelson to the trial court, plaintiffs
represent that excerpts of the depositions of Kirby and Nelson
were submitted as part of the summary judgment record by the
6
It is undisputed that immediately after Pierre commenced
her left turn, her vehicle collided with Townsend’s motorcycle,
which was traveling in the left eastbound lane of Levitt
Parkway. Townsend died as a result of the collision.
Plaintiffs, the Administratrix and Administrator of
Townsend’s Estate and Townsend in his individual capacity, filed
this action in the Law Division. They asserted claims pursuant
to the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, and the
Survival Act, N.J.S.A. 2A:15-3, against several defendants.
Plaintiffs claimed that Pierre operated her vehicle in a
negligent manner, and that Pierre’s employer was vicariously
liable for Pierre’s negligence. They alleged that Garland,
Sunset Family Dental, and the previous owners of the Property
“failed to properly cut the overgrown vegetation and/or bushes
presenting a hazardous and dangerous condition” for drivers, and
that at the time of the accident, Pierre’s view “was obstructed
by the presence of the aforementioned overgrown vegetation” on
the Property. Plaintiffs also named the Township and County as
defendants. They alleged that those entities negligently
Township and County, neither of which remain defendants. Those
excerpts may, therefore, be considered in this appeal. See R.
2:5-4(a). We do not consider other deposition testimony that
was not presented to the trial court and that was submitted by
the parties for the first time on appeal. Id.; Davis v.
Devereux Found., 209 N.J. 269, 296 n.8 (2012) (citing R. 2:5-4;
N.J. Div. of Youth & Fam. Servs. v. M.M., 189 N.J. 261, 278
(2007); State v. Golotta, 178 N.J. 205, 211-12 (2003)).
7
designed the intersection, causing the view of motorists to be
obstructed by the “vegetation and/or bushes” on the Property.
Upon completing a substantial portion of discovery,
Garland, Sunset Family Dental, the Township, and the County
moved for summary judgment.3 The trial court denied defendants’
motions without prejudice on the ground that plaintiffs had
requested leave to serve an expert’s report in support of their
claims.
Plaintiffs subsequently served upon Garland, Sunset Family
Dental, the Township and the County a report dated November 15,
2010, by Nicholas Bellizzi, P.E. (Bellizzi), a professional
engineer. Bellizzi recited in his report that he inspected the
site of the accident and took measurements and photographs on
November 22, 2009, approximately fifteen months after the
accident. Bellizzi stated that he relied on his site
inspection, photographs that he took during his inspection,
photographs that plaintiffs’ representatives took ten days after
the accident, the police report, deposition transcripts, witness
statements, Township codes and related documents, and highway
3 On a date that is not specified in the record, plaintiffs settled
their claims against Pierre. Although it appears that plaintiffs’
claims against Pierre’s employer and the former owner of 77 Garland
Lane were also resolved, the record does not reveal whether those
claims were withdrawn, settled, or dismissed by court order.
8
design standards promulgated by the American Association of
State Highway and Transportation Officials (AASHTO).
Bellizzi’s analysis was premised on the assumption that the
relevant location, for purposes of determining a driver’s
ability to see traffic on Levitt Parkway, was behind the stop
sign on Garfield Drive. The primary focus of his report was the
alleged negligence of the Township and County. Bellizzi opined
that the Township and the County maintained the intersection of
Garfield Drive and Levitt Parkway in an unsafe condition. The
expert contended that both entities had actual and constructive
notice that the “large shrubbery” in front of the Property
created “a visual barrier and obstruction to the safe
intersection sight distance at the intersection.” He further
opined that the stop sign at the intersection should have been
situated further north “to a point where a northbound motorist
on Garfield Drive would have had an adequate line of sight at
the intersection by seeing past, i.e., to the west of, the
subject shrubbery,” and that a white stop bar could have been
painted “at an appropriate location to provide motorists with
adequate sight distance.”
Bellizzi’s report also addressed the duty of care allegedly
owed by Garland and Sunset Family Dental. He concluded that the
height of the shrubbery in front of 77 Garland Lane violated the
Township’s Traffic and Parking Code, Willingboro, N.J., Rev.
9
Gen. Ordinances § 13-11.1 (2003), re-adopted as Willingboro,
N.J., Code § 356-42 (2013). That ordinance imposed upon
property owners and tenants the obligation to ensure that “no
brush, hedge, or other plant life” close to roads and
intersections “shall be cut to a height of more than 2 1/2 feet
where it shall be necessary and expedient, as determined by the
director of public safety, for the preservation of public
safety.” Id.4 Bellizzi also cited, but did not discuss, a
portion of the Township’s Property Maintenance Code,
Willingboro, N.J., Rev. Gen. Ordinances §§ 21-1 to 21-13 (2003),
re-adopted as Willingboro, N.J., Code §§ 272-4 to -16 (2013).
Bellizzi’s report briefly addressed the critical issue in
this appeal: whether Garland’s and Sunset Family Dental’s
alleged breach of the Township’s ordinances was a cause of the
fatal collision. The expert asserted that “[t]he restricted
substandard and unsafe intersection sight distance was a
significant contributing cause” of the accident and Townsend’s
death. With respect to the conflict between his opinion and the
evidence, Bellizzi offered only the following comment:
4 The Township’s Traffic and Parking Code prescribes a procedure
by which the Township Director of Public Safety notifies a
property owner or tenant that “brush, hedge, or plant life” is
overgrown, and the owner or tenant has ten days after notice of
a violation to comply. Id. There is no evidence that prior to
the accident that gave rise to this action, the Township ever
notified Garland or Sunset Family Dental that the landscaping on
the Property was overgrown.
10
I am mindful of the testimony of Noah Pierre
regarding her allegedly stopping four (4)
times before proceeding. However, given her
testimony that the bushes obstructed her view
of eastbound traffic on Levitt Parkway, and
given that she never saw the approaching
motorcycle, I reasonably conclude that she did
not have an unobstructed view of Levitt
Parkway when she proceeded into the roadway.
Bellizzi thus opined that when Pierre testified that she
did not turn left until she had proceeded to the point at which
she had an unobstructed view of the eastbound traffic on Levitt
Parkway, she must have been mistaken. The expert offered
neither factual evidence nor expert analysis contradicting
Pierre’s recollection. Instead, Bellizzi discounted Pierre’s
testimony that she did not turn until she had a clear view of
oncoming traffic, based on Pierre’s statement that her view was
impeded before she edged into the intersection.
Following plaintiffs’ service of Bellizzi’s report, the
Township, the County, Garland, and Sunset Family Dental renewed
their motions for summary judgment. Noting that no motion to
strike the expert’s testimony as a net opinion had been filed,
the trial court denied the summary judgment motions without
prejudice. All four defendants then filed motions to bar
Bellizzi’s expert report as a net opinion. No party requested
that the trial court conduct an evidentiary hearing on the
expert opinion pursuant to N.J.R.E. 104(a), and the court did
not hold such a hearing.
11
The trial court granted the motion to strike Bellizzi’s
report. It held that an expert’s opinion must be supported with
facts in the record, that Bellizzi offered neither evidentiary
support nor an engineering analysis to counter Pierre’s
testimony, and that the expert report therefore stated a net
opinion. Pursuant to Rule 4:46-2, the trial court subsequently
granted renewed summary judgment motions submitted by the
Township, the County, Garland, and Sunset Family Dental. It
dismissed plaintiffs’ claims against the Township and County
based on the immunity afforded to them by the New Jersey Tort
Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. Addressing the
summary judgment motion filed by Garland and Sunset Family
Dental, the trial court held that the shrubbery on the disputed
property was “not a factor in this case” given Pierre’s
testimony and the absence of evidentiary support for a theory of
causation.
Plaintiffs appealed the trial court’s determination. In a
ruling that plaintiffs do not challenge before this Court, an
Appellate Division panel affirmed the trial court’s dismissal of
plaintiffs’ claims against the Township and the County on TCA
grounds. Townsend v. Pierre, 429 N.J. Super. 522, 532 (App.
Div. 2013). The panel reversed, however, the grant of summary
judgment in favor of Garland and Sunset Family Dental. Ibid.
It held that the trial court had abused its discretion when it
12
determined that Bellizzi’s report constituted a net opinion.
Id. at 528.
Noting that “Bellizzi’s opinion that the bushes proximately
caused the accident depends on the believability of Pierre’s
statement that she had an unobstructed view,” the panel
acknowledged that “the unconditional admission of Bellizzi’s
opinions on causation would be inappropriate, given Pierre’s
deposition testimony and that of her passenger.” Id. at 529.
The panel reasoned, however, that through “the use of a
hypothetical question, with a corresponding limiting
instruction,” plaintiffs could offer Bellizzi’s opinions to
counter Pierre’s fact testimony. Ibid. It concluded that where
there is a reasonable basis “to reject a credibility-based
recollection of a fact witness,” the expert could, in response
to a hypothetical question, comment about “alternative factual
possibilities” that are inconsistent with the testimony --
specifically, the possibility that “Pierre was unable to see
clearly to her left as she made the turn.” Id. at 531. Based
on that reasoning, the panel reversed the grant of summary
judgment in favor of Garland and Sunset Family Dental. Id. at
532.
We granted certification. Townsend v. Pierre, 215 N.J. 485
(2013).
II.
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Garland and Sunset Family Dental contend that Bellizzi’s
proposed testimony regarding causation constitutes a net
opinion. They argue that the standards supporting Bellizzi’s
opinion on the question of negligence do not buttress his
opinion on the issue of causation, which, in their view,
challenged Pierre’s uncontroverted testimony and lacked
foundation in either expert analysis or the facts of this case.
Garland and Sunset Family Dental assert that an expert is not
authorized to invent facts contravening the testimony of
witnesses without supporting evidence. They argue that the
trial court properly granted summary judgment dismissing
plaintiffs’ claims.
Plaintiffs counter that the Appellate Division properly
reversed the trial court’s grant of the motion to strike the
expert report and the motion for summary judgment filed by
Garland and Sunset Family Dental. They contend that a
reasonable jury could reject Pierre’s testimony that her view of
oncoming traffic was unobstructed by the shrubbery on the
Property when she turned left, because Pierre testified that
before she entered the intersection, the shrubbery at 77 Garland
Lane obscured her view, and because she did not see Townsend’s
motorcycle before the collision. Plaintiffs argue that
Bellizzi’s report was premised on objective standards, that it
14
was not a net opinion, and that it created a fact issue that
should be resolved by a jury.
Amicus curiae New Jersey Association for Justice (NJAJ)
argues that the Appellate Division correctly concluded that
Bellizzi’s opinion should be admitted by means of a hypothetical
question. NJAJ contends that the issue of proximate cause
should be submitted to a jury, rather than determined by the
court in a summary judgment motion, in all but the extraordinary
case. Raising an issue not asserted by the parties, NJAJ
contends that the trial court should have conducted a hearing
pursuant to N.J.R.E. 104(a) before striking Bellizzi’s report as
a net opinion.
III.
A.
We consider the trial court’s net opinion and summary
judgment determinations in light of the legal framework that
governs plaintiffs’ negligence claim and the factual evidence in
the record that relates to that claim.
To sustain a cause of action for negligence, a plaintiff
must establish four elements: “‘(1) a duty of care, (2) a
breach of that duty, (3) proximate cause, and (4) actual
damages.’” Polzo v. Cnty. of Essex, 196 N.J. 569, 584 (2008)
(alterations omitted) (quoting Weinberg v. Dinger, 106 N.J. 469,
484 (1987)). A “plaintiff bears the burden of establishing
15
those elements ‘by some competent proof.’” Davis v. Brickman
Landscaping, Ltd., 219 N.J. 395, 406 (2014) (citing Buckelew v.
Grossbard, 87 N.J. 512, 525 (1981); Overby v. Union Laundry Co.,
28 N.J. Super. 100, 104 (App. Div. 1953), aff’d o.b., 14 N.J.
526 (1954)). Proximate cause consists of “‘any cause which in
the natural and continuous sequence, unbroken by an efficient
intervening cause, produces the result complained of and without
which the result would not have occurred.’” Conklin v. Hannoch
Weisman, 145 N.J. 395, 418 (1996) (quoting Fernandez v. Baruch,
96 N.J. Super. 125, 140 (App. Div. 1967), rev’d on other
grounds, 52 N.J. 127 (1968)); Dawson v. Bunker Hill Plaza
Assocs., 289 N.J. Super. 309, 322 (App. Div.), certif. denied,
146 N.J. 569 (1996).
Applied here, the proximate cause element of a negligence
claim requires that plaintiffs do more than simply demonstrate
that Garland and Sunset Family Dental owed a duty of care to
Townsend, a motorcyclist traveling on the county road past their
property, and that they breached that duty by maintaining
shrubbery in an overgrown condition. Plaintiffs must also prove
by a preponderance of the evidence that the defendants’ alleged
negligence was a proximate cause of the collision and Townsend’s
death.
Accordingly, the question whether Pierre’s view was
obstructed by the shrubbery when she turned left is a pivotal
16
issue of fact. In the record that was submitted to the trial
court, the evidence regarding that question consists entirely of
two excerpts from deposition testimony: Pierre’s testimony that
she moved her car forward into the intersection four times
before turning, and that when she made her left turn, her view
was unobstructed by the shrubbery; and Kirby’s testimony
corroborating Pierre’s recollection regarding her clear line of
vision at the crucial moment. To rebut that factual record
before the trial court, plaintiffs relied entirely on a portion
of Bellizzi’s expert report addressing the issue of causation.
In that setting, the trial court decided the two motions that we
review in this appeal.
B.
The admission or exclusion of expert testimony is committed
to the sound discretion of the trial court. State v. Berry, 140
N.J. 280, 293 (1995). As a discovery determination, a trial
court’s grant or denial of a motion to strike expert testimony
is entitled to deference on appellate review. See Bender v.
Adelson, 187 N.J. 411, 428 (2006); Carey v. Lovett, 132 N.J. 44,
64 (1993); Rivers v. LSC P’ship, 378 N.J. Super. 68, 80 (App.
Div.), certif. denied, 185 N.J. 296 (2005). As this Court has
noted, “we apply [a] deferential approach to a trial court’s
decision to admit expert testimony, reviewing it against an
abuse of discretion standard.” Pomerantz Paper Corp. v. New
17
Cmty. Corp., 207 N.J. 344, 371-72 (2011). When, as in this
case, a trial court is “confronted with an evidence
determination precedent to ruling on a summary judgment motion,”
it “squarely must address the evidence decision first.” Estate
of Hanges v. Metro. Prop. & Cas. Ins., 202 N.J. 369, 384-85
(2010). Appellate review of the trial court’s decisions
proceeds in the same sequence, with the evidentiary issue
resolved first, followed by the summary judgment determination
of the trial court. Id. at 385.
When a trial court determines the admissibility of expert
testimony, N.J.R.E. 702 and N.J.R.E. 703 frame its analysis.
N.J.R.E. 702 imposes three core requirements for the admission
of expert testimony:
“(1) the intended testimony must concern a
subject matter that is beyond the ken of the
average juror; (2) the field testified to must
be at a state of the art such that an expert’s
testimony could be sufficiently reliable; and
(3) the witness must have sufficient expertise
to offer the intended testimony.”
[Creanga v. Jardal, 185 N.J. 345 (2005)
(quoting Kemp ex rel. Wright v. State, 174
N.J. 412, 424 (2002)).]
N.J.R.E. 703 addresses the foundation for expert testimony.
It mandates that expert opinion 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
18
is the type of data normally relied upon by experts.’” Polzo,
supra, 196 N.J. at 583 (quoting State v. Townsend, 186 N.J. 473,
494 (2006)). The net opinion rule is a “corollary of [N.J.R.E.
703] . . . which forbids the admission into evidence of an
expert’s conclusions that are not supported by factual evidence
or other data.” Ibid.5 The rule requires that an expert “‘give
the why and wherefore’ that supports the opinion, ‘rather than a
mere conclusion.’” Borough of Saddle River v. 66 E. Allendale,
LLC, 216 N.J. 115, 144 (2013) (quoting Pomerantz Paper Corp.,
supra, 207 N.J. at 372); see also Buckelew, supra, 87 N.J. at
524 (explaining that “an expert’s bare conclusion[], unsupported
by factual evidence, is inadmissible”).
The net opinion rule is not a standard of perfection. The
rule does not mandate that an expert organize or support an
5 When it decides a motion to strike an expert report, a trial
court may conduct a hearing under N.J.R.E. 104(a). N.J.R.E.
104(a) prescribes a procedure by which a trial court may “assess
the soundness of [an expert’s] proffered methodology and the
qualifications of the expert.” Rubanick v. Witco Chem. Corp.,
125 N.J. 421, 454 (1991). Such a hearing “allows the court to
assess whether the expert’s opinion is based on scientifically
sound reasoning or unsubstantiated personal beliefs couched in
scientific terminology.” Kemp, supra, 174 N.J. at 427 (citing
Landrigan v. Celotex Corp., 127 N.J. 404, 414 (1992)). We do
not address the argument asserted by amicus curiae NJAJ that the
trial court abused its discretion by failing to sua sponte order
an N.J.R.E. 104(a) hearing before deciding the motion to strike
the expert report, as that issue was not raised by any party.
Nicholas v. Mynster, 213 N.J. 463, 477 n.13 (2013) (citing
Bethlehem Twp. Bd. of Educ. v. Bethlehem Twp. Educ. Ass’n, 91
N.J. 38, 48-49 (1982)).
19
opinion in a particular manner that opposing counsel deems
preferable. An expert’s proposed testimony should not be
excluded merely “‘because it fails to account for some
particular condition or fact which the adversary considers
relevant.’” Creanga, supra, 185 N.J. at 360 (quoting State v.
Freeman, 223 N.J. Super. 92, 116 (App. Div. 1988), certif.
denied, 114 N.J. 525 (1989)). The expert’s failure “to give
weight to a factor thought important by an adverse party does
not reduce his testimony to an inadmissible net opinion if he
otherwise offers sufficient reasons which logically support his
opinion.” Rosenberg v. Tavorath, 352 N.J. Super. 385, 402 (App.
Div. 2002) (citing Freeman, supra, 223 N.J. Super. at 115-16).
Such omissions may be “a proper ‘subject of exploration and
cross-examination at a trial.’” Ibid. (quoting Rubanick v.
Witco Chem. Corp., 242 N.J. Super. 36, 55 (App. Div. 1990),
modified on other grounds, 125 N.J. 421 (1991)); see also State
v. Harvey, 151 N.J. 117, 277 (1997) (“‘[A]n expert witness is
always subject to searching cross-examination as to the basis of
his opinion.’” (quoting State v. Martini, 131 N.J. 176, 264
(1993))).
The net opinion rule, however, mandates that experts “be
able to identify the factual bases for their conclusions,
explain their methodology, and demonstrate that both the factual
bases and the methodology are reliable.” Landrigan, supra, 127
20
N.J. at 417. An expert’s conclusion “‘is excluded if it is
“‘based merely on unfounded speculation and unquantified
possibilities.’” Grzanka v. Pfeifer, 301 N.J. Super. 563, 580
(App. Div. 1997) (quoting Vuocolo v. Diamond Shamrock Chem. Co.,
240 N.J. Super. 289, 300 (App. Div.), certif. denied, 122 N.J.
333 (1990)), certif. denied, 154 N.J. 607 (1998). As the
Appellate Division noted, when an expert speculates, “he ceases
to be an aid to the trier of fact and becomes nothing more than
an additional juror.” Jimenez v. GNOC, Corp., 286 N.J. Super.
533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996),
overruled on other grounds, Jerista v. Murray, 185 N.J. 175
(2005). By definition, unsubstantiated expert testimony cannot
provide to the factfinder the benefit that N.J.R.E. 702
envisions: a qualified specialist’s reliable analysis of an
issue “beyond the ken of the average juror.” Polzo, supra, 196
N.J. at 582 (citations omitted); see N.J.R.E. 702. Given the
weight that a jury may accord to expert testimony, a trial court
must ensure that an expert is not permitted to express
speculative opinions or personal views that are unfounded in the
record.
A party’s burden of proof on an element of a claim may not
be satisfied by an expert opinion that is unsupported by the
factual record or by an expert’s speculation that contradicts
that record. In Polzo, supra, an expert witness opined that,
21
for purposes of the TCA, N.J.S.A. 59:4-3(b), the defendant had
constructive notice of the depression or declivity on a roadway
that it maintained. 196 N.J. at 581. Despite the absence of
factual evidence as to when the depression or declivity had
developed, the expert speculated that it “would have existed for
a significant period of time [--] i.e. months if not years,
based on the recorded changes,” and opined that such a defect
“would, or should, have been noticed by those responsible for
the maintenance” of the road. Ibid. (alteration in original).
This Court commented:
On its face, [the expert]’s report appears to
provide no explanation for any of his
conclusions: it does not explain the basis
for his conclusion that the
depression/declivity “would have existed for
a significant period of time;” it does not
support, in any manner whatsoever, the
statement that the depression/declivity
existed “for months if not years;” and it does
not cite to or otherwise explain the relied-
upon “recorded changes.”
[Id. at 583 (alterations omitted).]
Although the defendant in Polzo had not moved to strike the
expert report, this Court held that the expert had stated
nothing more than a net opinion that was insufficient to sustain
the plaintiff’s burden of establishing that the public entity
was on constructive notice for purposes of the TCA. Id. at 584
& n.5. The Court remanded to the trial court for consideration
22
of the constructive notice issue on the basis of other evidence.
Id. at 586.
In Smith v. Estate of Kelly, 343 N.J. Super. 480, 497 (App.
Div. 2001), the Appellate Division similarly precluded an
expert’s unfounded report as a net opinion. There, the
plaintiff sought to toll the statute of limitations on her
action against a parish and several individuals for failing to
act on her report that her father had sexually abused her. Id.
at 486. The plaintiff proffered the expert report of a priest,
who opined that because of “religious duress,” the plaintiff had
felt compelled to “‘remain silent, refrain from making any
public accusations, remarks or complaints and above all, avoid
any contact with civil authorities in search of justice.’” Id.
at 497. The expert contended that by virtue of “religious
duress,” the plaintiff was unable to initiate her civil action
until her father was convicted and imprisoned. Ibid. The
Appellate Division affirmed the trial court’s rejection of the
report as a net opinion because the expert’s comments
contravened the evidence. Ibid. The panel noted that:
[T]he facts in the record directly contradict
[the priest]’s conclusion. Plaintiff did not
remain silent, but spoke out to numerous
individuals, including family members,
friends, public officials and law enforcement
authorities. She sought out and successfully
obtained the assistance of civil authorities
in prosecuting her father, and she played an
active role in that prosecution. This she did
23
more than three years before instituting this
civil law suit.
[Ibid.]
Applied here, the principle set forth in Polzo and Smith
warrants the rejection of Bellizzi’s testimony as a net opinion
to the extent that he speculated on the issue of causation.
Bellizzi’s qualifications to opine on issues within his
expertise as an engineer are unchallenged. His opinions with
respect to the duty of entities that design and maintain
roadways to ensure that shrubbery does not impede the view of
drivers, and of landowners to comply with ordinances in the
maintenance of landscaping, are adequately supported by relevant
standards. Had Bellizzi been proffered as an expert only to
generally define the defendants’ duty of care, his opinion would
have been admissible, subject to the scrutiny of cross-
examination at trial.
With respect to the issue of causation, however, Bellizzi’s
opinion diverged from the evidence. Bellizzi did not apply his
engineering expertise to present empirical evidence undermining
Pierre’s undisputed and corroborated testimony that when she
turned left, her view of traffic on Levitt Parkway was
unimpeded. He took no measurements to demonstrate the line of
vision of a driver located at the point at which Pierre recalled
making her left turn. Indeed, his expert opinion does not
24
suggest that at the location identified by Pierre as the point
at which she turned, the shrubbery was capable of blocking a
driver’s view of oncoming traffic.
Instead, the expert analyzed the impact of the shrubbery on
the line of vision of a driver stopped behind the stop sign,
explaining that defective placement of a stop sign and negligent
property maintenance proximately caused the accident. In an
attempt to reconcile his opinion with the testimony, Bellizzi
reconstituted the facts. He asserted that Pierre’s testimony
about her accident was wrong. In this crucial respect,
Bellizzi’s proposed expert testimony is an inadmissible net
opinion.
Acknowledging that the “unconditional admission” of
Bellizzi’s opinion on causation would be improper, the Appellate
Division reasoned that the opinion’s shortcomings could be
remedied by the use of hypothetical questions. Townsend, supra,
429 N.J. Super. at 529. The Appellate Division envisioned that
Bellizzi would be asked “to assume hypothetically that Pierre
was unable to see clearly to her left as she made the turn.”
Id. at 530. We disagree with the Appellate Division that such a
hypothetical question could convert Bellizzi’s net opinion on
the issue of causation into admissible expert testimony.
The use of hypothetical questions in the presentation of
expert testimony is permitted by N.J.R.E. 705, “provided that
25
the questions include facts admitted or supported by the
evidence.” Biunno, Weissbard & Zegas, Current N.J. Rules of
Evidence, comment 4 on N.J.R.E. 705 (2014) (citing Wilsey v.
Reisinger, 76 N.J. Super. 20, 25 (App. Div.), certif. denied, 38
N.J. 610 (1962)). As this Court noted in Stanley Co. of America
v. Hercules Powder Co., “[t]he opinions of experts must be based
either upon facts within their own knowledge which they detail
to the jury or upon hypothetical questions embracing facts
supported by the evidence upon which the expert opinion is
sought.” 16 N.J. 295, 305 (1954) (citing Beam v. Kent, 3 N.J.
210, 215 (1949)); see also Savoia v. F. W. Woolworth Co., 88
N.J. Super. 153, 162 (App. Div. 1965). “Expert opinion is
valueless unless it is rested upon the facts which are admitted
or are proved.” Stanley, supra, 16 N.J. at 305 (citing Bayonne
v. Standard Oil Co., 81 N.J.L. 717, 722 (E. & A. 1910)); see
also State v. Sowell, 213 N.J. 89, 100 (2013) (holding that
hypothetical question in criminal case must be limited to facts
presented at trial); accord State v. Nesbitt, 185 N.J. 504, 519
(2006); State v. Odom, 116 N.J. 65, 78-79 (1989). Consequently,
“a hypothetical question cannot be invoked to supply the
substantial facts necessary to support the conclusion.”
Stanley, supra, 16 N.J. at 305 (citations omitted); Wilsey,
supra, 76 N.J. Super. at 25.
26
That principle governs this case. The hypothetical
question suggested by the Appellate Division -- in which the
expert would be asked to assume that Pierre’s account of the
accident was mistaken -- not only lacks the requisite foundation
in the facts, but is premised on a rejection of uncontroverted
testimony. On this record, no hypothetical question that
conforms to our standard can salvage the causation opinion
proffered by Bellizzi.
Accordingly, we hold that the trial court properly
exercised its discretion when it rejected Bellizzi’s causation
testimony as a net opinion.
C.
In the wake of its exclusion of Bellizzi’s opinion, the
trial court granted summary judgment on the ground that
plaintiffs had failed to present a prima facie showing of
causation. That determination is reviewed de novo. Davis,
supra, 219 N.J. at 405 (citing Manahawkin Convalescent v.
O’Neill, 217 N.J. 99, 115 (2014)). We apply the same standard
that governs the trial court, which requires denial of summary
judgment when “‘the competent evidential materials presented,
when viewed in the light most favorable to the non-moving party,
are sufficient to permit a rational factfinder to resolve the
alleged disputed issue in favor of the non-moving party.’” Id.
27
at 406 (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J.
520, 540 (1995)).
The issue of causation is ordinarily left to the
factfinder. Fluehr v. City of Cape May, 159 N.J. 532, 543
(1999) (citing Scafidi v. Seiler, 119 N.J. 93, 101 (1990)); J.S.
v. R.T.H., 155 N.J. 330, 351 (1998) (citing Martin v. Bengue,
Inc., 25 N.J. 359, 374 (1957)). That rule, however, is not
absolute. As this Court has noted, the issue of proximate cause
“may be removed from the factfinder in the highly extraordinary
case in which reasonable minds could not differ on whether that
issue has been established.” Fleuhr, supra, 159 N.J. at 543
(citing Vega by Muniz v. Piedilato, 154 N.J. 496, 509 (1998));
J.S., supra, 155 N.J. at 352 (“[O]ur courts have, as a matter of
law, rejected the imposition of liability for highly
extraordinary consequences.”). For example, in Fleuhr, supra,
this Court reinstated the grant of summary judgment in favor of
a municipality because dangerous ocean conditions and a surfer’s
conduct, not the alleged negligence of a lifeguard, caused a
surfing accident. 159 N.J. at 543-45; see also Vega, supra, 155
N.J. at 507-09 (holding summary judgment properly granted where
no reasonable jury could find condition of property, with an
open air shaft, and not plaintiff’s “undisputed” attempt to leap
air shaft, was proximate cause of injury); Dawson, supra, 289
N.J. Super. at 322-25 (holding summary judgment properly granted
28
where expert report was inadmissible “net opinion” on proximate
cause between defendant’s negligent handling of roof trusses and
truss collapse). Thus, in the unusual setting in which no
reasonable factfinder could find that the plaintiff has proven
causation by a preponderance of the evidence, summary judgment
may be granted dismissing the plaintiff’s claim.
This case presents such a setting. As this Court has
noted, to prove the element of causation, plaintiffs bear the
burden to
introduce evidence which affords a reasonable
basis for the conclusion that it is more
likely than not that the conduct of the
defendant was a cause in fact of the result.
A mere possibility of such causation is not
enough; and when the matter remains one of
pure speculation or conjecture, or the
probabilities are at best evenly balanced, it
becomes the duty of the court to direct a
verdict for the defendant.
[Davidson v. Slater, 189 N.J. 166, 185 (2007)
(quoting Reynolds v. Gonzalez, 172 N.J. 266
(2002)).]
Here, no facts in the record support plaintiffs’ contention
that the shrubbery on the Property was a proximate cause of the
fatal collision between Pierre and Townsend. None of the three
witnesses to the accident whose testimony was before the trial
court suggested that the shrubbery impeded Pierre’s view of
oncoming traffic when she made her left turn. Against her
interest as a defendant in this case, Pierre denied that the
29
shrubbery obscured her view, and Kirby corroborated Pierre’s
testimony. No engineering analysis undermined Pierre’s
recollection of the accident. Plaintiffs’ contention that the
fact of the accident itself provides circumstantial evidence
that the shrubbery was a cause of the collision, because Pierre
did not notice the approaching motorcycle before the impact, is
nothing more than speculation.
There is, in short, no evidence in the record that would
support a factfinder’s determination in plaintiffs’ favor on the
crucial element of proximate cause. The trial court properly
granted summary judgment dismissing plaintiffs’ claims against
Garland and Sunset Family Dental.
IV.
The judgment of the Appellate Division is reversed with respect
to Garland and Sunset Family Dental, and the trial court’s grant of
summary judgment in favor of Garland and Sunset Family Dental is
reinstated.
CHIEF JUSTICE RABNER, and JUSTICES LaVECCHIA, ALBIN, and
SOLOMON, and JUDGE CUFF (temporarily assigned) join in JUSTICE
PATTERSON’s opinion. JUSTICE FERNANDEZ-VINA did not participate.
30
SUPREME COURT OF NEW JERSEY
NO. A-2 SEPTEMBER TERM 2013
ON CERTIFICATION TO Appellate Division, Superior Court
DEBORAH F. TOWNSEND,
Administratrix ad prosequendum of
the Estate of Alvin J. Townsend,
Jr.; ALVIN J. TOWNSEND, SR.,
administrator ad prosequendum of
the Estate of Alvin J. Townsend,
Jr.; and ALVIN J. TOWNSEND, JR.,
deceased,
Plaintiffs-Respondents,
v.
NOAH PIERRE an individual; JEAN
HILAIREMONT, an individual; THE
PRECISION DENTAL SPECIALIST, LLC;
LEONARD H. JUROS, an individual;
JANEL L. JUROS, an individual;
TOWNSHIP OF WILLINGBORO; and BOARD
OF CHOSEN FREEHOLDERS OF THE
COUNTY OF BURLINGTON,
Defendants,
and
GARLAND PROPERTY MANAGEMENT, LLC;
and SUNSET FAMILY DENTAL, LLC,
Defendants-Appellants.
DECIDED March 12, 2015
Chief Justice Rabner PRESIDING
OPINION BY Justice Patterson
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY
REVERSE/
CHECKLIST
REINSTATE
CHIEF JUSTICE RABNER X
JUSTICE LaVECCHIA X
JUSTICE ALBIN X
JUSTICE PATTERSON X
JUSTICE FERNANDEZ-VINA ------------------------ ----------------------
JUSTICE SOLOMON X
JUDGE CUFF (t/a) X
TOTALS 6
1