State Supreme Court Applies Net Opinion Rule

When you are a parent, you are often tempted to answer the question "why?" with "because I say so." Experts shouldn't get away with that in court.

The New Jersey Supreme Court recently addressed the scope of the so-called “Net Opinion Rule,” which precludes expert testimony that does not have a sufficient basis. See Townsend v. Pierre, 221 N.J. 36, 110 A.3d 52 (March 12, 2015).  The case involved a motorcycle vs. auto collision, so let's get right to the analysis.

When a New Jersey 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, 886 A.2d 633 (2005) (quoting Kemp ex rel. Wright v. State, 174 N.J. 412, 424, 809 A.2d 77 (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 is the type of data normally relied upon by experts. State v. Townsend, 186 N.J. 473, 494, 897 A.2d 316 (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. 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, 77 A.3d 1161 (2013) (quoting Pomerantz Paper Corp., supra, 207 N.J. at 372, 25 A.3d 221).

The net opinion rule, said the court, is not a standard of perfection. The rule does not mandate that an expert organize or support an 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, 886 A.2d 633 (quoting State v. Freeman, 223 N.J.Super. 92, 116, 538 A.2d 371 (App.Div.1988), certif. denied, 114 N.J. 525, 555 A.2d 637 (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, 800 A.2d 216 (App.Div.2002). Such omissions may be a proper subject of exploration and cross-examination at a trial. Rubanick v. Witco Chem. Corp., 242 N.J.Super. 36, 55, 576 A.2d 4 (App.Div.1990), modified on other grounds, 125 N.J. 421, 593 A.2d 733 (1991).

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. An expert’s conclusion must be excluded if it is based merely on unfounded speculation and unquantified possibilities.  So, when an expert speculates, he ceases to be an aid to the trier of fact and becomes nothing more than an additional juror. 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.” 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. 
And 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, the accident occurred when defendant turned left at an intersection controlled by a stop sign. The plaintiffs argued that the proximate cause of the accident was negligently maintained overgrown shrubbery, which blocked the view of oncoming traffic.  Their expert was well qualified in engineering, and could have opined as to the design of the intersection. But, said the court, with respect to the issue of causation, the opinion diverged from the only record evidence. He did not apply his engineering expertise to present empirical evidence undermining the undisputed and corroborated testimony that when the driver turned left, her view of traffic was unimpeded. He took no measurements to demonstrate the line of vision of a driver located at the point at which she recalled making her left turn. Instead, the expert analyzed the impact of the shrubbery on the line of vision of a driver stopped behind the stop sign, explaining that placement of a stop sign and negligent property maintenance proximately caused the accident. In an attempt to reconcile his opinion with the testimony, the expert simply reconstituted the facts. He asserted that the driver's testimony about her accident was simply wrong. In this crucial respect, the expert's proposed expert testimony was indeed an inadmissible net opinion.

 

Failure of Expert Testimony on Alternative Designs Dooms Claim

A New Jersey appeals court ruled recently that plaintiffs' expert testimony was indeed insufficient in a suit over a fire and explosion involving a furnace used to manufacture super alloys for aerospace uses. See Leonard et al. v. Consarc Corp., No. A-1413-10T4, (N.J. Superior Court,  Appellate Division).

Plaintiffs were employed by Howmet Dover Alloy, which uses a vacuum induction melting furnace (VIM) to manufacture super alloys for aerospace uses. Howmet contracted with Consarc to retrofit and upgrade a VIM located at its Dover facility. As part of that project, Consarc manufactured a new vacuum chamber and dome, an industrial crucible to fit inside the vacuum chamber, and controls for the device.  Allegedly, while Howmet employees were melting super alloys in the VIM's interior crucible, it tipped and spilled molten super alloy onto the floor, causing such extreme conditions of heat that fires broke out in adjacent areas. The fire department responded and got the blaze under control.

Allegedly, Howmet workers then began to assess the situation for clean-up. In an effort to get a better view of the condition of the crucible and chamber, the workers removed the glass from sight ports, opened various valves, and turned on the vacuum pumps to extract the smoke from the fire. The pumps expelled the smoke but also the argon gas used to suppress the fire. As the argon gas was removed, it was replaced by air drawn in through the sight ports, the now open valve, and, possibly, a hole in the chamber resulting from the original fire.

However, a substantial quantity of unburned oil and resulting vapor remained in the chamber, and  molten metal or still hot walls ignited the air-oil mixture and caused an explosion. Plaintiffs were allegedly injured.

They sued alleging defective product design. Plaintiffs retained a mechanical engineer as an expert in the analysis of "industrial accidents, mechanical malfunctions, fires and explosions." He issued a report which concluded that (1) the hydraulic hose used to deliver hydraulic fluid required to tilt the crucible containing the molten metal alloys was touching or extremely close to the interior floor of the chamber at the time of the accident, which constituted a defect in the design because the hose could not withstand coming into contact with molten alloy; and (2) the dome of the chamber was defectively designed because it should have been protected by exterior shields to repel any hazardous gases emerging from inside the furnace.

Defendant moved to exclude the expert as unqualified, but the trial judge concluded that he was qualified as an expert under Rule 702, and denied Consarc's motion. He held that, while the witness did "not have specific experience in the field of vacuum induction furnaces, [or] melting furnaces, [he] certainly has overall experience in the analysis of industrial accidents, mechanical malfunctions, fires and explosions."

At the conclusion of plaintiffs' case at trial, Consarc moved for an involuntary dismissal pursuant to NJ Rule 4:37-2(b).  Although the trial judge did not agree with all of Consarc's arguments in support of an involuntary dismissal, he granted the motion to dismiss on the following grounds: (1) the expert gave a net opinion as to the inadequacy of any existing hose and the proposed relocation of the connections for the interior hydraulic hose; (2) he gave a net opinion as to the
feasibility of placing protective shields around the dome of the furnace; and (3) Howmet's conduct after the explosion (the inspection actions) served as an intervening and superseding cause that precluded Consarc's liability.

In New Jersey, design defect is defined by the Products Liability Act, N.J.S.A. 2A:58C-1 to -11,
as something that renders a product not "reasonably fit, suitable, or safe for its intended purpose." N.J.S.A. 2A:58C-2. A design defect is further defined as a danger inherent in a product that has been manufactured as intended when that danger, as a public policy matter, is greater than can be justified by the product's utility.  When a product is manufactured as intended but the design renders the product unsafe, the first element of a design defect case exists.  In addition, the defect must have existed when the product left the hands of the manufacturer. If the plaintiff contends that an alternative design would have rendered the product safe, the plaintiff must also prove that a practical and feasible alternative design existed that would have reduced or prevented the harm.  Lewis v. Am. Cyanamid Co., 155 N.J. 544, 560 (1998).

A claim that there could have been an alternative design requires support by expert opinion that the proposed alternative design was available at the time of manufacture and that it was practical,
feasible and safer. Expert testimony in conclusory terms is insufficient to meet that burden. N.J.R.E. 703 requires an expert to give the why and wherefore of his or her opinion rather than a mere conclusion.  Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996). Therefore, experts must be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are scientifically reliable.

Plaintiffs appealed, and the court of appeals affirmed.  The witness did not have the expertise or the factual basis for opining that there was a feasible alternate design for the hose connection points. As a consequence, his opinion amounted to nothing more than a net opinion. The same problems apply to his opinion with respect to the dome. He testified that there should have been shields around the top of the dome to prevent discharged material from injuring anyone standing nearby. He also asserted that it would have been very simple to do so. However, he was not aware of any such design in actual use and he provided no details to demonstrate that his proposed design was actually feasible. The witness had no expertise in the field of vacuum
induction furnaces. His qualifications were, at best, minimal with respect to the type of  sophisticated machinery involved in this case. More importantly, he offered no specifics with respect to the details and feasibility of the alternative designs upon which he relied. For that reason, plaintiffs failed to meet their burden to prove that alternate designs were available, feasible, and practical at the time of manufacture.