Supreme Court Rules That Expert Report Not Based Upon Evidence Should Be Suppressed – Shocking!?!

It is not uncommon to get in an expert report from the other side that makes you scratch your head. Maybe it is well written Maybe it is very interesting. Hopefully the math is right. Maybe it is even very persuasive. The reason why you are scratching your head, however, is that the factual basis of the report seems to have bare no relation to the actual, provable facts of the case. Rather, the report relies on supposition, innuendo, theory, hypothetical facts, etc. What it doesn't rely on, however, is the actual facts of your case.

So what do we do? We complain to the judge and maybe even file a motion to strike the report. As lawyers, how often have we heard judges fudge the application of the rules of evidence and dismissively say, "I'll let it in – your objection goes to the weight"? That said, if it is true "net opinion" -meaning an expert opinion that cannot be relied upon, the objection is about whether the report and testimony in the first place, and not what weight the judge, as the trier of fact gives to it.

Yesterday, the Supreme Court reminded us what the proper standard is, and more importantly, that an expert report must be based upon the evidence in the case, in the case of Townsend v. Pierre. Though this was a personal injury case, the same principles apply to family law cases. The facts in that case are not relevant for this discussion except for the fact that the ultimate facts were not in dispute.

As to expert opinions and net opinions, the Supreme Court reminded us that:

"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.'" Polzo, supra, 196 N.J. at 583 (quoting State v. Townsend, 186 N.J. 473, 494 (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." Ibid. 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 (2013) (quoting Pomerantz Paper Corp., supra, 207 N.J. at 372); see also Buckelew, supra, 87 N.J. at 524 (explaining that "an...