NJ High Court Moves toward Daubert

The Supreme Court of New Jersey has finally adopted the Daubert factors for assessing the reliability of expert testimony and reaffirmed the trial court’s duty to engage in “rigorous gatekeeping” when adjudicating whether an expert opinion is admissible.

In re: Accutane Litigation involved allegations that the prescription cystic acne medication caused Crohn’s disease.  Despite numerous epidemiological studies finding no association b, plaintiff’s expert gastroenterologist relied on suspect data, animal studies and his own unique theory of biological plausibility to opine that Accutane can, in fact, cause Crohn’s disease. 

 The trial court concluded that there wasno epidemiological evidence establishing a causal link between Accutane and Crohn’s disease, and that plaintiff’s expert report was conclusion driven.  The Appellate Division reversed, concluding that plaintiff’s expert relied on methodologies and data of the type reasonably relied upon by comparable experts which wasthe standard in New Jersey for the admission of expert opinions.  It also held that it owes less deference to the trial court when making a determination on whether to admit or exclude an expert opinion.

New Jersey’s Supreme Court explicitly rejected the Appellate Division’s heightened standard of review and reaffirmed “that the abuse of discretion standard applies in the appellate review of a trial court’s determination to admit or deny scientific expert testimony on the basis of unreliability in civil matters.”

 The Supreme Court made clear that trial courts must “assess both the methodology used by the expert to arrive at an opinion and the underlying data used in the formation of the opinion”. Trial courts are now instructed to consider Daubert’s non-exhaustive list of factors when assessing the reliability of expert testimony:

  1. Whether the scientific theory can be, or at any time has been, tested;
  2. Whether the scientific theory has been subjected to peer review and publication, noting that publication is one form or peer review but is not a “sine qua non”;
  3. Whether there is any known or potential rate of error and whether there exists any standards for maintaining or controlling the technique’s operation; and
  4. Whether there does exist a general acceptance in the scientific community about the scientific theory.

Applying this standard, the Court determined that “the trial court did the type of rigorous gatekeeping that is necessary when faced with a novel theory of causation, particularly one, as here, that flies in the face of consistent findings of no causal association as determined by higher levels of scientific proof.”

Requiring trial courts to take their gatekeeping role seriously in NJ has been long overdue since defense counsel often seek to exclude a plaintiff’s expert report.  It is not uncommon for a report to be stricken, but then reinstated by the appellate division which has used New Jersey’s liberal standard for the admission of expert opinions.  The Supreme Court has now made clear that the trial court’s determination on these issues is owed deference by the trial court, just like any other evidence determination.

Thanks to Michael Noblett for his contribution to this post.


Attorney Client Privilege Under Siege in Philadelphia.

An issue that comes up when representing companies is whether the outside attorney defending the company also represents the company’s employees.  The issue is significant since, in Pennsylvania (unlike other states), if there is not an attorney-client privilege, then the attorney is obligated to produce notes of interviews and written communications with interviewed individuals (unless those notes involve the attorney’s mental impressions).

This is the issue that was raised before Judge Rau of the Court of Common Pleas of Philadelphia County (a/k/a trial court in Philly).  In the case, the plaintiff Karen Newsuan was run over by a 46,000 pound front end loader truck that resulted in an above the knee amputation of her right leg.  The plaintiff sued Waste Services, the waste management facility, and an attorney was retained to represent Waste Services.  In the regular course of discovery, the defense attorney identified 16 employee fact witnesses.  He then interviewed them and took their statements.  Privileged, right?

“No” said Judge Rau. She held that because the employees never specifically agreed to retain the attorney before their statements were taken, there was no attorney-client relationship and thus no privilege.  The Waste Services’ attorney was ordered to produce all of the interview notes and statements.

Because the issue involved is one of privilege, an interlocutory appeal is possible in this case and the matter has gone up on appeal.  Where the appellate court ultimately comes down remains to be seen.  But, in the meantime, make sure you/your attorneys are careful (and specific) as to whom you/they represent.  Merely representing the corporate defendant does not, for the moment, mean that your communications with the employees are also guaranteed to be privileged.

For more information about this post, please e-mail Bob at

Plaintiff Allowed To Take Swing against City For Fall at Citi Field (NY)

In Henn v. City of New York, Sterling Mets, et. al, plaintiff allegedly sustained injuries as a result of tripping and falling upon the sidewalk abutting Citi Field on July 6, 2014. Plaintiff alleges that defendants were responsible for the maintenance of the sidewalk and created the defective condition of the sidewalk. Defendants moved to dismiss under 3211(a)(7) – failure to state a cause of action. The lower Court denied defendants’ motion to dismiss and the defendants appealed.

The Appellate Division Second Department concurred with the lower court and ruled that defendants did not reach their burden to dismiss. The sole criterion on a 3211(a)(7) motion is whether the factual allegations articulated in the four corners of the complaint itself manifest any cognizable cause of action. “When determining a motion to dismiss, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.”

The Second Department held that the documentary evidence submitted by the ballpark defendants in support of their motion failed to conclusively establish a defense as a matter of law. Further, the ballpark defendants failed to establish conclusively that the plaintiff had no cause of action. That the complaint alleged the ballpark defendants owned, operated, managed, maintained, or controlled the subject sidewalk upon which the plaintiff was injured was sufficient to go forward on a cause of action and the documentary evidence submitted by the ballpark defendants—a “Stadium Lease Agreement” and a “First Amendment to Stadium Lease Agreement” – was insufficient to show they did not own, operate, manage or control the subject sidewalk and therefore, was insufficient to provide a basis for dismissal under that subsection.

The case was allowed to move forward to discovery and depositions of all parties.

Thanks to Paul W. Vitale for his contribution to this post.

(Preserve) All The Evidence, Men (NY)

Most lawyers and insurance professionals know the importance of preserving evidence when a claim is asserted against an insured.  But insureds who are not involved in litigation as a matter of course often express the displeasure of the taking the time necessary to collect and preserve all relevant information.  As the recent First  Department decision in Davis v. Pathmark makes clear, the consequences for failing to take that time to preserve evidence, in a thorough, if not exhaustive manner, can be disastrous.

In Davis, the store being sued provided video surveillance footage of the plaintiff slipping and falling in the store along with 30 seconds of footage before the fall.  The problem was that the defendant deleted all other footage from that day.  According to  the trial court and the First  Department, that selective editing may have prevented the plaintiff from making its case about the origin of the liquid on the floor that caused the accident.  Thus, the court struck the defendant’s answer.

It may well be that the defendant in Davis acted in good faith by providing what it thought was relevant evidence.  But insureds often make poor judges of what may or may not be relevant or discoverable in litigation.  Davis should serve as a reminder to lawyers to instruct their clients to preserve all evidence when a suit is filed and to insurance professionals to request that all information be preserved when a claim is first submitted.  Thanks to Mike Gauvin for his contribution to this post.  Please email Brian Gibbons with any questions.

NJ Court Finds Death Certificate Inadmissible Hearsay Without Medical Examiner Testimony

In Quail v. Shop-Rite Supermarkets, Inc., plaintiff alleged his wife died as a result of blunt trauma from a cash register station that fell on her leg.  After the accident, plaintiff’s wife told Shop-Rite she was fine, not in need of medical attention.  Four days later, however, she was transported to the hospital where she died.  The following day, a Certificate of Death was issued.  It stated the cause of death was complications of blunt trauma to the right leg.  Plaintiff sought to forego calling the Examiner who issued the Certificate to the witness stand.  Instead, plaintiff sought to rely on the Certificate only.

The Appellate Division upheld the trial court’s dismissal of plaintiff’s case on Summary Judgment because plaintiff had no medical expert on the issue of medical causation.  The Court held that the Certificate, by itself, was inadmissible hearsay despite Rules of Evidence expressly deeming the Certificate to be admissible.  The Court reasoned that despite these Rules, the Certificate, by itself, was inadmissible without the Examiner being called to the witness stand to explain his findings.

This case serves as a reminder to attorneys to ensure that evidence is admitted properly at trial, and if not, motions to dismiss should be filed.

Thanks to Michael Noblett for his contribution to this post.

Court of Appeals Redefines Summary Judgment Landscape (NY)

Earlier this week, the Court of Appeals, New York’s highest Court, issued a decision which is certain to change the landscape of personal injury litigation in New York.

In Rodriguez v. City of NY, decided on April 3, 2018, four of the seven Justices agreed that a plaintiff can obtain summary judgment against a negligent defendant even if there is evidence that the plaintiff bears comparative fault. (Yes, you read that correctly.)

In Rodriguez, plaintiff was at work, standing between a parked car and a tire rack, when a City of NY vehicle rolled into the parked car, causing plaintiff to get “sandwiched,” and sustain back and neck injuries.   Both parties moved for summary judgment on the issue of liability. Both motions were denied by the trial Court. The trial court denied plaintiff’s motion, in part, because issues of fact existed as plaintiff’s comparative negligence. The plaintiff appealed and the Appellate Division upheld the trial Court’s decision. Thereafter, plaintiff was granted leave to appeal to the Court of Appeals.

While the Court did not address the facts of this case specifically[1], they did decide that, contrary to precedent,  a plaintiff can obtain summary judgment against a defendant even if there are questions as to plaintiff’s comparative fault. It was found that it was against the intent of New York’s comparative fault statutes to permit a total bar of recovery (or here, summary judgment relief), due to comparative fault. The Court found that where a plaintiff has been awarded summary judgment on liability against a defendant, the liability trial will only ask a jury to determine how much of the total liability is attributed to plaintiff, after they are told that the defendant has already been found liable.

The Court based this decision on the supposed legislative intent of the comparative fault statutes in New York and found that it is only to be considered when calculating the percentage of damages attributable to both parties, not in assessing whether the defendant was in fact, negligent. Furthermore, the Court found that it is not a plaintiff’s burden to prove the absence of comparative fault to obtain summary judgment, but instead to prove only that the defendant was negligent or somehow responsible for the damages plaintiff sustained.

The Court goes so far as to say that “comparative fault is not a defense to the cause of action of negligence, because it is not a defense to any element (duty, breach, causation) of plaintiff’s prima facie cause of action.” Because it is not a defense, issues of fact related to it are insufficient to raise triable issues of fact precluding summary judgment and as such, should not be considered when deciding a motion made under CPLR 3212.

As a result of this decision, every case, even where a plaintiff may be 99% liable, is a potential summary judgment win for plaintiffs, including slip and fall on ice cases, sidewalk defect cases, and likely pedestrian knockdown cases. This fact alone will embolden the plaintiff’s bar.

Now, if we may editorialize, this decision flies in the face of both precedent and of common sense.  Summary judgment is designed to confirm that there are no triable issues of fact for jury consideration.  Now defendants will be forced to litigate a plaintiff’s comparative fault at trial, with the jury already likely knowing the defendant has been found liable.  This scenario strikes us as prejudicial to defendants.  We also note that, while currently unclear, it is possible that interest may be running (at 9% per annum) from the date SJ is entered up to trial.  We’ll keep tabs on this issue.

If there is a silver lining, the Court of Appeals has redefined what summary judgment means.  Now, plaintiffs who are awarded summary judgment on liability have not truly been awarded summary judgment, since they must still litigate liability at trial, with their comparative fault at issue.  The silver lining is limited, however, and is certainly a huge win for the plaintiff’s bar.  The ramifications of Rodriguez will be felt for years to come, and the number of cases where plaintiffs move for SJ will increase immediately.  Thanks to Dana Purcaro for her contribution to this post.  Please email Brian Gibbons with any questions.

[1] The Court remanded the ultimate decision on plaintiff’s motion for summary judgment back down to the Appellate Division and focused this decision only on whether a plaintiff can obtain partial summary judgment even where there may be comparative fault.

Private Information Posted to Social Media Accounts To Be Produced When Relevant

The issue of discovery access to a party’s private social media postings had not previously been addressed by a Pennsylvania appellate court.  The Monroe County Court of Common Pleas dealt with this question in Roth v. Great Wolf Lodge of the Poconos, LLC by referring to trial courts from other jurisdictions.  It held that there was no evidentiary threshold that a party seeking private information from a social media account needs to meet so long as it can show that such information is relevant to the other party’s claims.

In Roth, plaintiff, Michael Roth, claimed he collided with his daughter on a waterslide at the Great Wolf Lodge.  Great Wolf Lodge demanded the Facebook wall posts of Michael and his wife, Lauren, made during the year immediately prior to the alleged accident and the year after.  The Roths refused to comply.  They objected on the grounds that Great Wolf Lodge failed to produce any evidence indicating that the private sections of their Facebook accounts would provide relevant information and argued that Great Wolf Lodge was entitled only to information posted to the public sections.  Great Wolf Lodge filed a motion to compel responses to its requests for the private information.

Without any binding Pennsylvania precedence, the court relied primarily on three cases from different federal district courts.  The first, Georgel v. Preece, a Kentucky federal case, required an evidentiary bar, holding that private information from social media accounts is discoverable only if the party seeking the information can show that the other party’s public postings contain information that undermines that party’s claims.  At the other end of the spectrum was Higgins v. Koch Development Corp., an Indiana federal case that held that all social media postings were relevant and required to be produced without any evidentiary showing by the party seeking the information.  Finally, Giachetto v. Patchogue-Medford Union Free School District, a New York federal court held that the proper method was to have the non-seeking party’s counsel review the information and determine what is relevant to the claims, keeping in mind the broad scope of discovery.

The Roth court favored the approach from Giachetto.  It opined that imposing the Georgel evidentiary bar could shield relevant evidence from disclosure merely because a social media user chose not to share any information publicly.  A more balanced approach was adopted.  The court decided that counsel for the Roths would have to review the Facebook accounts for private postings related to the alleged accident, and the Roths’ ability or inability to enjoy physical activity, which it deemed relevant to the Roths’ claims.

Thanks to Robert Truchick for his contribution to this post.



New York’s Highest Court Rules Private Facebook Posts Are Discoverable

WCM Partners Michael Bono and Brian Gibbons and associate Christopher Soverow have obtained a ruling from the New York Court of Appeals holding that social media records, such as Facebook posts, are not subject to a heightened standard of discovery, and that instead the traditionally broad rules of New York apply.

In Forman v Henkin, the plaintiff allegedly fell from a horse due to the negligence of the defendant.  As a result of the fall, plaintiff claimed she suffered various injuries, including traumatic brain injury, which resulted in cognitive impairment, emotional damages, and impairment of her ability to socialize or engage in accustomed recreational activities.  Among the cognitive effects, the plaintiff alleged she had difficulty reading, using a computer, or composing messages.  With respect to Facebook, the plaintiff posted “a lot” prior to the accident, but could not testify as to her post-accident Facebook usage and ultimately deactivated her account some six months later.

The trial court granted WCM’s motion for disclosure of Facebook records, but limited such disclosure to all non-romantic post-accident Facebook photos, and information about the date, time, and amount of characters of any Facebook post made after the accident.  On appeal, the First Department reversed and held that under the current standard applying to Facebook disclosure, the defendant was unable to establish that there was information on the public section of the plaintiff’s Facebook account that contradicted her claims, and as such, defendant was not entitled to access plaintiff’s private Facebook account.

Due to a lengthy two justice dissent, WCM was awarded leave to appeal to the Court of Appeals.  The Court of Appeals rejected the heightened standard set by the First Department, holding “[w]hile Facebook – and sites like it – offer relatively new means of sharing information with others, there is nothing so novel about Facebook materials that precludes application of New York’s long-standing disclosure rules to resolve this dispute.”  The Court reasoned litigants should not be arbitrarily limited by the account holder’s privacy settings, while on the other hand, also recognizing the mere possession of a Facebook account does not render all contents subject to discovery.

Rather than embrace a heightened standard or a “one-size-fits-all rule,” the Court provided three broad guidelines to lower courts:  (1) consider whether relevant material is likely to be found given the nature of the claims made; (2) balance utility of the records against “any specific ‘privacy’ or other concerns raised by the account holder; and (3) evaluate whether temporal limits are appropriate.  With regard to sensitive or embarrassing information, the Court observed the party’s remedy lies in moving for a protective order under CPLR § 3103(a).

Citing to privacy concerns, however, is not an automatic restriction on disclosure.  Although the Court declined to rule on the controversial question of whether there is any privacy expectation for social media posts, the Court held relevancy trumps privacy, citing the ubiquitous example of disclosure of confidential medical records in personal injury cases.  Thus, “[f]or purposes of disclosure, the threshold inquiry is not whether the materials sought are private but whether they are reasonably calculated to contain relevant information.”

It will be interesting to see how courts apply this ruling in the future. Of significance, here the Court focused on plaintiff’s prior usage of Facebook, and how post-accident Facebook activity could specifically demonstrate or undercut her claimed injuries, such as cognitive impairment and diminished enjoyment of life.  We would expect that similar connections will need to be established in order to trigger disclosure of social media records in future cases, and it will be interesting to see how the standard develops going forward.

Thanks to Chris Soverow for his contribution to this post and please write to Mike Bono for more information.

New Jersey in Need of a Uniform Procedure Regarding Expert Reports

In New Jersey, the net opinion rule precludes expert conclusions not supported by factual evidence or other data. Plaintiffs often serve liability expert reports that are “net opinion” simply to survive summary judgment motions, and force a pre-trial settlement. Defendants can file a motion, during or after discovery, to bar an expert report. If granted, defendant can obtain a dismissal by way of summary judgment. Two recent decisions highlight the lack of clarity as to the pre-trial procedure for attacking expert decisions.

In Mascari v. Bordentown Regional High School, plaintiff injured his finger while fiddling with a locking mechanism underneath a folding table. Plaintiff served a liability expert report opining that the lock was too close to the side of the table, and was the proximate cause of the accident. At deposition, the expert contradicted his report establishing the table and its locking mechanism were industry compliant. Defendant moved for summary judgment, and in opposition, the expert submitted an affidavit attempting to clarify. The trial court granted the motion, but on appeal, the Appellate Court reversed holding that there should have been a Rule 104 evidence hearing for the expert to explain and clarify.

On the other hand, two days earlier, another Appellate Court panel upheld the trial court’s dismissal of an expert report as net opinion. In Tran v. Nguyen, plaintiff dove head first into the shallow end of a friend’s pool after imbibing several alcoholic beverages. Plaintiff served a liability expert report opining that the installer and servicer of the pool should have installed a rope separating the deep end from the shallow end, and they should have counseled the homeowners to display clear “no diving” warnings. Prior to the close of discovery, defendants moved to bar the report. The trial court barred the report since it did not cite any governing industry standards, and there were in fact warnings around the pool. The Appellate Court upheld the decision without any need for a Rule 104 evidence hearing.

So, what is the correct procedure in attacking an expert opinion? Is a Rule 104 hearing required in every circumstances so as to give a plaintiff four, five, how about six bites at the apple to proffer an admissible expert opinion? How do litigants save their clients costs by striking boilerplate reports before being subject to the costs involved in post-discovery pre-trial and trial practice? How are litigants supposed to assist the judiciary in reducing docket clogging and court resources? Hopefully, the Supreme Court can assist the bar by adopting a uniform procedure in the New Jersey Court Rules.

Thanks to Michael Noblett for his contribution to this post.



Expert Not Needed to Overcome Summary Judgment (PA)

The Pennsylvania Superior Court recently vacated two orders of summary judgment following review of the trial court’s determination regarding the existence of a genuine issue of material fact.  In Medsger v. Hawaiian Tan, No. 1635 WDA 2016,  Nov. 20, 2017, the Superior Court held that the trial court’s granting of summary judgment for defendants was erroneous, and vacated the orders as well as remanding the case for trial.

The case arose from an incident in which defendant Matkovich, a patron of Hawaiian Tan salon, was turning left onto a highway after exiting the salon.  Plaintiff Medsger was traveling on his motorcycle northbound on the highway.  While turning onto the highway, Matkovich’s vehicle collided with Medsger, causing serious injuries to Medsger.  At the time of the collision, there were five temporary yard signs advertising Hawaiian Tan’s business that were located along the highway between the exit Matkovich was using and the entrance to the highway.  Plaintiff alleged that Hawaiian Tan was negligent in placing the sings too close to the highway in violation of local ordinances.  Plaintiff also alleged that the property owner of the building in which Hawaiian Tan was located was negligent by permitting Hawaiian Tan to erect and maintain the signs too close to the highway.

The trial court granted summary judgment in favor of Hawaiian Tan and the property owner, concluding that Plaintiff failed to present a prima facie case that the placement of the advertising signs contributed to the accident by blocking Matkovich’s view of the highway.  In granting defendants’ motions for summary judgment, the trial court rejected an affidavit by Plaintiff’s son which attached several photographs depicting the location of the signs.  The trial court ruled that the affidavit was an unscientific recreation of the accident scene and that it lacked assurance that it accurately reflected Matikovich’s viewpoint at the time of the accident; thus failing to raise a genuine issue of fact as to whether the sign placement impaired Matkovich’s view of the highway.

On appeal, the Superior Court applied a de novo standard of review as to the presence of a genuine issue of fact.  In reversing the trial court’s granting of summary judgment, the Superior Court stated that, under Pennsylvania law, credibility and weight of witness testimony are not proper considerations at summary judgment stage, but rather that they fall under the purview of the jury.  The Superior Court further stated that, when viewing the facts in the light most favorable to Plaintiff (the non-moving party), the information and photographs contained in the affidavit created a genuine issue of fact.  The court noted that, at the summary judgment stage, it was irrelevant whether Plaintiff’s son qualified as an expert witness, and that Plaintiff was entitled to introduce the photographs and have the jury weigh the credibility of the affidavit.  In its opinion, the PA Superior Court provides a concise and helpful articulation of the Pennsylvania standard for summary judgment, while also citing the specific examples of layperson’s affidavits and photographs from the scene of an accident.

The reality is, this decision is likely good news for plaintiffs in PA, who are seeking to avoid incurring expert witness fees at the motion stage.  Thanks for Greg Herrold for his contribution to this post.  Please email Brian Gibbons with any questions.