On appeal from Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-915-03.
The opinion of the court was delivered by: Fuentes, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Winkelstein, Fuentes and Baxter.
On June 16, 2001, plaintiff Leslie Conrad was a passenger in an automobile driven by Robert Isom, when he crashed into a utility pole in Deptford Township. Plaintiff filed a civil action alleging that the personal injuries she sustained in this accident were the result, at least in part, of the negligent service of alcoholic beverages by defendant, Michelle & John, Inc., d/b/a Nipper's Pub, a licensed alcoholic beverage server. N.J.S.A. 2A:22A-5.*fn1
This appeal concerns the propriety of the trial court's order dismissing plaintiff's case with prejudice, as a sanction for plaintiff's failure to produce her expert at a court-ordered N.J.R.E. 104 hearing. The court scheduled the hearing to determine the scientific methodology used by plaintiff's expert in concluding that Isom's blood alcohol content (BAC) was approximately .15 at the time he was still being served alcoholic drinks at defendant's tavern. The court also found that the material facts of the case were undisputed, entitling defendant to a judgment in its favor as a matter of law.
We reverse. We hold that, absent a bona fide and timely in limine application by defendant seeking to bar plaintiff's expert testimony, the trial court has no basis to order plaintiff's expert to respond to an N.J.R.E. 104 hearing to determine the scientific validity of his or her opinions. We further hold that there are sufficient material issues of fact in dispute, giving plaintiff the right to present her case to a jury. Although the record shows that plaintiff's eyewitness recanted a crucial part of his testimony at his deposition, the question of credibility remains fundamentally a jury issue; a jury is free to accept or reject, in whole or in part, any version of a witness's testimony.
We will address these issues in the following factual context.
At approximately 10:00 p.m. on the night of the accident, Isom drove his car to pick up plaintiff at her job at Pizzeria Uno in Deptford Township. He waited about forty minutes for her to finish her shift. As he waited, Isom drank a "tall" glass of beer. From there, the two went to defendant's tavern, arriving at approximately 11:00 p.m. He remained inside the tavern for about two hours, consuming at least one shot of Crown Royal whiskey and an undetermined number of Miller Lite beers. Plaintiff's co-worker Matthew Smogey was also at Nipper's Pub that night.
After leaving Nipper's Pub, plaintiff got into the front passenger seat of Isom's car; Isom got into the driver's seat.
The accident occurred at approximately 2:52 a.m.; police were notified of the crash about eight minutes later. Isom was transported to Cooper Hospital. At 5:30 a.m., two blood samples were taken from Isom. At the time, the police were investigating a possible charge of driving under the influence.
The two vials of blood were submitted to the South Regional Laboratory of the State of New Jersey for analysis. The report of a Headspace Gas Chromatography test, dated July, 12, 2001, revealed that Isom's BAC at the time the blood was taken on June 16, 2001, was .14.
After completion of discovery, defendant moved for summary judgment, arguing that plaintiff had failed to present any evidence to prove that Isom was visibly intoxicated when he was last served at Nipper's Pub. In opposition to the motion, plaintiff filed an affidavit from Smogey, who averred that, while seated at a table with both plaintiff and Isom, he observed "both of them to be extremely intoxicated and observed them both served alcohol [by defendant's employees] during this time."
Confronted with this material factual issue in dispute, the court denied defendant's summary judgment motion, and ordered defendant to depose all of the individuals who claimed to have seen Isom being served alcoholic drinks on the night of the accident. After some initial problems in securing his appearance, defendant was able to take Matthew Smogey's deposition.
Smogey testified that he worked with plaintiff at Pizzeria Uno. He arrived at defendant's tavern at approximately 10:00 p.m., and remained there until it closed at about 2:30 a.m. In the course of being questioned by plaintiff's counsel, Smogey gave the following testimony of his interactions with both plaintiff and Isom.
Q: Do you recall being with Leslie Conrad and Mr. Isom that evening at Nipper's?
Q: Okay. Do you recall where you were in the bar that evening with Leslie Conrad and Bob Isom?
A: We all sat together. It was a group.
Q: Okay. Who else was in the group that you were sitting with?
A: Co-workers. You know, they came out that night. You want names?
A: Carrie was there. Armstrong was there. Smith was there. And there was two other people that were there. I don't recall their names. It's been a while.
Q: Do you recall where you were in Nipper's that evening?
A: Yeah. We were out on the deck.
Q: Can you explain in more detail what out on the deck actually means or connotates [sic]?
A: We put two tables together. We sat out on the deck.
Q: Okay. And was Robert Isom and Leslie Conrad with you when you were out on the deck?
Q: Okay. What were you doing during ...