Expert opinions often seem to be nothing more than bare conclusions and utterly lacking in any explanation of the why and wherefore for the positions taken.  Yet, very few net opinion challenges succeed.  In Townsend v. Pierre, the New Jersey Supreme Court weighed in on whether an expert could opine on an issue by contradicting the otherwise uncontroverted testimony of witnesses.

The case involved a traffic accident in which a driver pulled from a stop sign to make a left turn and encountered a motorcyclist. The motorcyclist was killed as a result of the ensuing collision.  In addition to making a claim against the driver, the estate pursued the property owner whose shrubbery on the corner allegedly obstructed the driver’s view.  The problem was that the driver and her passenger both testified that she had had unobstructed view of the roadway before she pulled from the stop sign.  To establish the case against the property owner, the plaintiff relied upon the opinion of an expert who contended the driver must have been mistaken.

The Court noted that expert testimony is permissible when an average juror would not have knowledge of the subject matter offered.  However, the expert’s opinion must be supported by factual evidence.  The net opinion rule recognizes that an expert is not an aid to the trier of fact where he cannot explain the basis for his opinion.   Yet, the jury may give undue weight to the unsubstantiated opinion since it comes from an “expert.”

In Townsend, the expert opined that the shrubbery was an obstruction in direct contradiction to the driver’s testimony.   The expert’s opinion was neither based upon the factual evidence in the case nor facts otherwise within the expert’s knowledge.  This the court found to be inadmissible opinion.

What makes the case interesting is its history as it wended through the courts.  The motion judge ruled that the expert’s opinion was inadmissible net opinion and then granted summary judgment as to the property owner on the basis that there was no evidence of proximate cause.  The appellate division reversed suggesting that the expert’s opinion could somehow be cured by a hypothetical question that asked the expert to assume the driver’s vision was obstructed.  The Supreme Court ultimately held this was not permissible.  A hypothetical must conform to the evidence of the case.

The case is a good example of how difficult it is to challenge an expert opinion.  Yet, in the final analysis, this ruling establishes that an expert cannot simply dismiss uncontroverted testimony and must explain the factual basis for his opinions.

For more information, contact Denise Fontana Ricci at .