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Hisenaj v. Kuehner

March 6, 2008


On certification to the Superior Court, Appellate Division, whose opinion is reported at 387 N.J. Super. 262 (2006).


(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

The narrow issue in this appeal is whether the Appellate Division overstepped its bounds when reviewing the trial court's admission of expert testimony from defendant's biomechanical engineer.

The case involves a low-impact, vehicle-on-vehicle collision that occurred in Mount Olive on March 2, 1998. Plaintiff, Hajrie Hisenaj, a forty-year-old woman, had stopped at an intersection and was preparing to turn left. Defendant Amanda Kuehner was driving toward the intersection and initially failed to notice Hisenaj's vehicle. Suddenly aware of the threat of an impending collision, Kuehner applied her brakes. But her reaction came too late and her vehicle collided with the rear bumper of Hisenaj's vehicle. At impact, Kuehner's vehicle was traveling at less than eight miles per hour, and the collision resulted in less than a five-mile-per-hour change in the velocity of Hisenaj's vehicle. An accident re-constructionist later likened the impact to that felt by riders in colliding amusement park bumper cars.

Hisenaj began experiencing chronic pain in her neck and lower back soon after the accident. Imaging of her back revealed degenerative disc disease (DDD), as well as herniated and bulging discs, in the cervical and lumbar portions of her spine. After four years of non-evasive treatments failed to alleviate her cervical and lumbar back pain, Hisenaj resorted to surgical treatment.

In 2000, Hisenaj filed the instant action claiming that the 1998 accident caused the herniated discs in her cervical and lumbar spine. Because summary judgment resolved liability in her favor, the trial focused on damages. Hisenaj claimed permanent injury. Both parties produced expert testimony on the disputed issues of causation and permanency of injury.

Defendant's biomechanical engineer, Harold Alexander, Ph.D., testified that given the circumstances of the low-impact collision, no biomechanical "mechanism" existed that would cause a chronic injury to result from this impact. He therefore opined that it was highly improbable that plaintiff suffered a chronic injury from such an accident. Dr. Alexander relied on a number of factors, including his review of seventeen scholarly analyses of studies that measured the effects of low-impact collisions on humans of various ages, and physical and mental make-ups. He appended those studies to his expert report.

Plaintiff moved in limine to exclude Dr. Alexander's testimony, alleging that the threshold requirements for admissibility under Evidence Rule 702 were not met because there was not a reliable scientific foundation for the opinion testimony. Plaintiff relied specifically on the Appellate Division decision in Suanez v. Egeland, 353 N.J. Super. 191 (App. Div. 2002). In addition, plaintiff argued that Dr. Alexander's testimony constituted a net opinion. After conducting a Rule 104 hearing, the trial court admitted Dr. Alexander's proffered testimony.

The jury found that the accident resulted in a "significant limitation of use of a body function or system," but that plaintiff did not suffer a permanent injury as a result of the collision. On appeal, plaintiff reasserted that Dr. Alexander's opinions did not have the requisite reliable scientific foundation needed to satisfy Evidence Rule 702's admissibility requirements and that, therefore, the trial court erred in admitting that testimony.

The Appellate Division directed the parties to submit the studies on which Dr. Alexander relied, which had not been moved into evidence, and to file briefs re-addressing whether Dr. Alexander's testimony met the threshold requirements for admissibility under Rule 702. The panel engaged in its own review of the bases for Dr. Alexander's expert testimony and concluded that the testimony did not rest on a scientifically reliable foundation.

The Appellate Division reversed and ordered a new trial.

HELD: Based on the record and arguments presented to the trial court, and applying the abuse-of-discretion standard, the trial court's evidential ruling on the admissibility of scientific evidence pursuant to N.J.R.E. 702 was within the range of sustainable trial determinations that the reviewing court should have affirmed.

1. The admissibility of Dr. Alexander's expert testimony is governed by N.J.R.E. 702. Rule 702 has three well-known prerequisites: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony. The burden of proving that the testimony satisfies those threshold requirements rests with the party proffering the testimony. It falls to the parties at trial, who are positioned best to gather and analyze the viability of an expert's proffered testimony, to highlight the strengths and shortcomings of the foundation for that testimony so that the trial court can reach an informed admissibility decision. The trial court's review, therefore, is as broad as the breadth of the proffer and the challenges thereto that the parties present. And, an abuse-of-discretion standard of review applies to the resultant admissibility determination made by the trial court. (Pp. 9-11)

2. During the Rule 104 hearing, plaintiff conceded that Dr. Alexander's testimony satisfied the first and third prongs of Rule 702, claiming only that it failed to satisfy the second prong -- the scientific reliability requirement. Scientific reliability of an area of research or expertise may be established in one of three ways: When an expert in a particular field testifies that the scientific community in that field accepts as reliable the foundational bases of the expert's opinion; acceptance as evidenced in scientific literature; and, existing judicial decisions that announce that particular evidence or testimony is generally accepted in the scientific community. (Pp. 12-13)

3. The record in the present case stands in contrast to that in Suanez v. Egeland. The trial court in this case held a Rule 104 hearing substantially dedicated to addressing Suanez. As compared to Suanez, there was in this case a closer nexus between plaintiff's injuries and the type of injuries addressed in the studies on which Dr. Alexander relied. The Suanez expert rendered an opinion about the effect of a low-impact vehicular collision on a middle-aged woman, relying solely on unspecified impact studies that were described as having employed cadavers and military personnel as subjects. The studies that Dr. Alexander identified involved tests conducted on a range of volunteer civilians, involved actual vehicular collisions, and included some subjects who were similar to plaintiff in age, gender, and physical composition. Plaintiff did not provide any support for counsel's bald assertion that the studies lacked scientific reliability. In addition, contrary to plaintiff's argument, identical data in scientific testing is not a prerequisite to admission of expert testimony. The Court is, therefore, persuaded that the court's admissibility determination did not constitute an abuse of discretion. The Court further notes that Rule 104 hearings are intended to determine admissibility, not credibility. The trial court did not abuse its discretion by not rejecting the testimony, at the conclusion of the Rule 104 hearing, on net opinion grounds. Finally, the Appellate Division engaged in an unconstrained review that included material not part of the evidentiary record and argument that went beyond that which was advanced before the trial court. That resulted in avoidance of the reviewing court's proper role, the application of the abuse-of-discretion standard. Under the circumstances of the present admissibility issue as litigated before the trial court, neither the Appellate Division nor this Court should rehabilitate the record against admissibility that was presented at trial. (Pp. 13-25)

The judgment of the Appellate Division is REVERSED. The matter is REMANDED to the Appellate Division for consideration of plaintiff's unresolved appellate issues.


The opinion of the court was delivered by: Justice LaVECCHIA

Argued November 13, 2007

The issue in this appeal arose out of the trial of a personal-injury action for injuries sustained in an automobile accident. The jury's verdict was largely in favor of defendant, and plaintiff appealed. A panel of the Appellate Division reversed and held that plaintiff was entitled to a new trial because the trial court erred in admitting expert testimony from defendant's biomechanical engineer. Hisenaj v. Kuehner, 387 N.J. Super. 262, 277 (App. Div. 2006). We granted defendant's petition for certification, 189 N.J. 427 (2007), and now reverse. Based on the record and arguments presented to the trial court, and applying the abuse-of-discretion standard, we hold that the trial court's evidential ruling was within the range of sustainable trial determinations that the reviewing court should have affirmed.



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