New Jersey Supreme Court Says Hypothetical Questions Can’t Save Expert Opinions that Contradict Uncontroverted Facts in Evidence
In Townsend v. Pierre, the New Jersey Supreme Court clarified that the net opinion rule bars expert testimony that contradicts uncontroverted factual evidence and further held that the use of hypothetical questions at trial cannot be used to salvage such an opinion. While the net opinion rule is usually formulated as “forbid[ding] the admission into evidence of an expert’s conclusions that are not supported by factual evidence or other data,” Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008), the Court definitively stated that the rule also operates to bar expert testimony where the expert rejected as “mistaken” uncontroverted facts in evidence.
Townsend concerned a negligence suit arising out of a fatal car accident, but its broadly applicable holding must be kept in mind whenever expert testimony is used.
In Townsend, the plaintiff’s expert provided an opinion on the issue of causation which contradicted the only record evidence—deposition testimony of one of the drivers—on that issue. In dealing with the contradictory deposition testimony, the expert simply concluded that the witness was mistaken, even though there was no factual evidence contradicting the witness’s testimony.
The trial court concluded that the expert’s conclusion on causation violated the net opinion rule and thus struck the report and granted summary judgment against the plaintiff. The Appellate Division, however, held that the trial court should not have struck the expert’s report, reasoning that, because the expert’s causal analysis depended on the believability of the witness’s testimony, the opinion could be saved by asking the expert a hypothetical question and providing a limiting instruction. More particularly, the Appellate Division held that “where there is a reasonable basis to reject a credibility-based recollection of a fact witness, the expert could, in response to a hypothetical question, comment about alternative factual possibilities that are inconsistent with the testimony.”
The New Jersey Supreme Court granted certification and reversed. While the net opinion rule does not require experts to present reports that are perfectly acceptable to the opposing party, the rule does require experts to support opinions with reference to facts or expert analysis. Thus, an expert’s conclusion should be excluded “if it is based merely on unfounded speculation and unquantified possibilities.” Because the expert’s conclusion on causation lacked factual support in the record, it ran afoul of the net opinion and was properly excluded.
The New Jersey Supreme Court also rejected the Appellate Division’s holding that the expert’s error could be cured by asking the expert a hypothetical question. As the Court explained, the type of hypothetical envisioned by the Appellate Division—which, of necessity would ask the expert to reject uncontroverted evidence—would violate N.J.R.E. 705, which permits only such hypothetical questions as “include facts admitted or supported by the evidence.”
As a takeaway for practitioners, experts should be cautioned when preparing their reports to ensure that no factual evidence they review is discounted in completing the analysis. To the extent an expert finds evidence conflicts with his or her conclusion, the report should provide what contradictory factual evidence the expert relied on to reach that conclusion, or provide analysis as to why the evidence has been appropriately discounted.