It wasn’t too long ago that, down the shore, New Jersey hosted one of the most notorious litigation hellholes in the country. That’s not the case anymore, as the current (2014-15) ATRA Judicial Hellholes report explains in a suitably defense-oriented way. That’s good news because so many of our clients are headquartered in New Jersey.
But the substantive law, as well, played a part in Joisey gaining a reputation as an unusually pro-plaintiff forum. That’s been changing too – for some time, as we pointed out here. Earlier this month we reported that the Accutane mass tort in New Jersey finally went to ground (or to the dogs), as the state court belatedly recognized what federal judges applying Daubert had known for years – allegations that the drug caused intestinal injuries were scientifically bogus from beginning to end, and at all points in between. See In re Accutane Products Liability, 511 F. Supp.2d 1288 (M.D. Fla. 2007).
Last week, the New Jersey Supreme Court took another step in the right direction on the expert front in Townsend v. Pierre, ___ A.3d ___, 2015 WL 1058036 (N.J. March 12, 2015), by reaffirming and strengthening the state’s “net opinion rule” for expert witnesses.
The what you say?
For those of you not steeped in New Jersey law, think back to the most memorable (or at least the most quoted) statement in General Electric Co. v. Joiner, 522 U.S. 136 (1997) – “nothing in either Daubert or the Federal Rules of Evidence requires . . . admi[ssion of] opinion evidence that is connected to existing data only by the ipse dixit of the expert.” Id. at 146. Well, the New Jersey net opinion rule is a lot like that – a ban on ipse dixit − and just as important in the perpetual struggle against the other side’s hordes of junk scientists.
Townsend wasn’t a prescription medical product case. Heck, it wasn’t even a product liability case. Its expert analysis, however, will be equally applicable to all civil litigation in the Garden State for years to come. Townsend involved an accident where a left turning car (Pierre) collided with a motorcycle driven by the plaintiff (Townsend). Who sues whom in this situation is essentially determined by the laws of physics. Motorcyclists tend to come off worse in collisions with four (or more) wheeled vehicles. See Duane Allman and Berry Oakley.
Also named as a defendant was a property owner on the corner where the collision happened, on a theory that “overgrown shrubbery” on the property obscured the driver defendant’s view of the approaching motorcycle. Townsend, 2015 WL 1058036, at *1. Trouble was, there was no evidence to support that theory, and affirmative evidence against it:
[Driver] 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 [driver’s] vehicle corroborated [this] testimony that when she turned left, she had an unobstructed view of approaching traffic. The record contains no testimony to the contrary.
Did plaintiff drop this factually unsupported theory of liability? Of course not. This is Joisey. Evidence? I don’t need no stinkin’ evidence! I have an expert.
Umm…. Not so fast.
The expert’s first ploy was to “assume” the wrong thing – that the “relevant location . . . was behind the stop sign,” even though three people had testified that the car had inched forward well past the sign. Townsend, 2015 WL 1058036, at *3. The expert followed that up by simply disregarding testimony that got in the way of his opinion:
I am mindful of the testimony of [the driver] regarding her allegedly stopping four (4) times before proceeding. However, given . . . that she never saw the approaching motorcycle, I reasonably conclude that she did not have an unobstructed view . . . when she proceeded into the roadway.
Id. at *4. All the uncontradicted testimony to the contrary “must have been mistaken.” Id. For support, “[t]he expert offered neither factual evidence nor expert analysis contradicting [driver’s] recollection.” Id.
That led to multiple defense motions to strike the expert’s proposed testimony as a “net opinion,” which the trial court granted. Id. The New Jersey Appellate Division, however, reversed, holding that the driver’s testimony was subject to “credibility” challenge by virtue of the expert’s testimony, and therefore a jury question was created. A “hypothetical question” to the expert, assuming facts that had no basis in the factual record, was enough, according to that court. Townsend v. Pierre, 60 A.3d 800, 804 (N.J. Super. App. Div. 2013).
Umm…. Not so fast.
The New Jersey Supreme Court ruled – unanimously – that the expert’s opinion had no factual support, and therefore was an excludable net opinion.
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.
Townsend, 2015 WL 1058036, at *7 (citations and quotation marks omitted). The first takeaway is that the “net opinion” rule is alive and well in New Jersey.
Sounding like a Daubert court expounding on the evils of expert ipse dixit, Townsend further explained:
The net opinion rule . . . 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. An expert’s conclusion is excluded if it is based merely on unfounded speculation and unquantified possibilities. . . . [W]hen an expert speculates, he ceases to be an aid to the trier of fact and becomes nothing more than an additional juror.
Townsend, 2015 WL 1058036, at *8 (citations and quotation marks omitted). A net opinion cannot satisfy a party’s burden of proof. Id.
Invalid assumptions create a net opinion. No testimony put the driver behind the stop sign. “In an attempt to reconcile his opinion with the testimony, [the expert] reconstituted the facts. He asserted that [the driver’s] testimony about her accident was wrong. In this crucial respect, [his] proposed expert testimony is an inadmissible net opinion.” Townsend, 2015 WL 1058036, at *10.
Nor could the proponent of this factually baseless opinion conjure up a basis through a hypothetical question. “Expert opinion is valueless unless it is rested upon the facts which are admitted or are proved.” Id. at *11 (citation and quotation marks omitted). A hypothetical cannot be used to “supply” facts that don’t exist. Id.
[A] hypothetical question . . . in which the expert would be asked to assume that [the driver’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.
Id. at *11.
From now on (if not before), any New Jersey expert opinion needs to be analyzed in accordance with the strengthened net opinion rule. The court in Townsend found no fault with either the expert’s qualifications or his opinion on duty, Id. at *9, but defeating the causation opinion was all that was necessary to a grant of summary judgment. Id. at *11. Similarly, in drug and device cases, causation claims are often bases on “assumptions” – particularly about what is stated in medical literature – that turn out to be contrary to fact. Experts in broken device cases often pile one factually unsupported statement on top of another. As occurred in Townsend, inconvenient facts are frequently ignored without any basis for doing so during bogus “differential diagnoses.”
The net opinion rule in New Jersey should now cast a wider net – removing ipse dixit expert opinions from litigation in that state similarly to federal court practice under Daubert.