In an insurance subrogation matter, Plaintiff Insurance Company appealed from an order barring its expert’s reports and testimony and granting summary judgment to Defendant.
Defendant was a fuel oil company that provided fuel for the oil-fired furnace located in a home and also serviced the furnace in that home for many years. Defendant’s service technician serviced the furnace after the homeowner said he had no heat.
About a month later, a fire occurred at the homeowner‘s home, which originated inside the furnace. The homeowner submitted a property damage claim to Plaintiff, which it paid. Plaintiff subsequently filed a complaint for subrogation against Defendant to recover the payout to the homeowner.
Without leave of court, Plaintiff amended its answers to interrogatories to include a supplemental expert report from a furnace expert that gave an entirely new opinion as to the cause of the fire. Defendant filed a motion to bar the furnace expert‘s report and testimony and for summary judgment dismissing the complaint for Plaintiff’s lack of expert evidence establishing Defendant’s liability. Defendant argued that the furnace expert‘s supplemental report was untimely and in violation of the court’s orders, and that the expert rendered net opinions that failed to articulate the cause of the fire.
Plaintiff responded that the court should allow the furnace expert‘s supplemental report because Defendant’s service technician‘s deposition testimony provided newly discovered evidence as to the cause of the fire. Plaintiff claimed this new evidence wasn’t readily available or discoverable prior to the deposition but failed to explain why. The court entered an order barring the furnace expert‘s reports and testimony and granting summary judgment dismissing the complaint. In an oral opinion, the court found the case required expert testimony establishing the origin and cause of the fire and whether Defendant was negligent.
The trial court reviewed the written summary of the furnace expert‘s reports and found that although the furnace expert concluded the furnace, chimney pipe, and heat exchanger would not have been in a safe and serviceable condition when the service technician serviced the furnace, he failed “to reference any textbook treatise, standard custom recognized practice or anything of the like other than his personal view” to support his opinion. The trial court also stated that the furnace expert talked about the chimney pipe and the holes in the system, but he didn’t say at all why—or provide any foundation other than his own training and experience as to why those were the problems.
The trial court also determined that the furnace expert‘s supplemental report was barred by court orders. Nevertheless, the trial court found that “the same is true of [the supplemental report]. . . . At no time is there any reference to anything other than [the furnace expert‘s] own personal viewpoint.” The court concluded that the furnace expert rendered inadmissible net opinions and barred his reports and testimony. Due to the lack of expert evidence, the court granted summary judgment and dismissed the complaint.
The per curiam opinion by New Jersey Superior Court Judges Simonelli and DeAlmeida first addressed the barring of the furnace expert‘s supplemental report. The Court held that Plaintiff’s late service of the expert‘s supplemental report violated the court order not only as to time, but also as to content. Plaintiff served the supplemental report well after the deadline, and the furnace expert asserted a completely new theory of liability that went beyond the scope of the written summary of his oral report. The supplemental report also violated another court order, which denied Plaintiff leave to serve further expert reports.
The Superior Court then addressed whether the court properly barred the furnace expert‘s initial expert report and testimony on which it was based. The judges explained that New Jersey Rule of Evidence 703 addresses the foundation for expert testimony. The rule 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 in forming opinions on the same subject.
Citing precedent, the Court noted that the net opinion rule is a “corollary” of Rule 703 that “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.’”
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,” the Court explained, quoting Landrigan v. Celotex Corp. (N.J. 1992). An expert’s conclusion will be excluded if it’s based merely on “unfounded speculation and unquantified possibilities.” By definition, unsubstantiated expert testimony cannot provide to the factfinder the benefit that Rule 702 envisions: a qualified specialist’s reliable analysis of an issue “beyond the ken of the average juror.” The Court held that 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.
Applying these standards, the Superior Court concluded the court correctly determined that the furnace expert rendered an inadmissible net opinion. His opinion was completely lacking in the “why[s ]and wherefore[s,]” of the cause of the fire, and he failed to explain the methodology for his opinions. The written summary of the expert‘s oral report stated that the furnace wasn’t in a serviceable condition when Defendant serviced it. But, as the trial court found, the furnace expert didn’t reference any source other than his personal view, and provided no explanatory analysis whatsoever. Thus, it cannot be said that anything in the furnace expert‘s report constituted “specialized knowledge [that] will assist the trier of fact.” Most importantly, as the Court noted, “while  the furnace expert may be able to establish that someone had a duty that was breached which caused the fire, because the report of [the other expert was] excluded, there’s nothing to definitely tie defendant to being the cause beyond mere speculation.”
The Court conclude the trial court properly barred the furnace expert‘s reports and testimony because he failed to meet the threshold requirements necessary to surpass a net opinion. Expert evidence was necessary in this case, the Court held, and because Plaintiff lacked expert evidence, summary judgment was properly granted.