August 21, 2009
MOHAMMED ALI AND SHARIFA MINA, PLAINTIFFS-APPELLANTS,
THANH DAO, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1209-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued August 4, 2009
Before Judges Lihotz and Baxter.
Plaintiffs Mohammed Ali and Sharifa Mina*fn1 appeal from a November 7, 2008 order that granted defendant Thanh Dao's summary judgment motion and dismissed plaintiffs' complaint. We reject plaintiff's contention that the motion judge erred when he excluded plaintiff's expert report as a net opinion, and decline to consider plaintiff's alternative argument that no expert report was required. We affirm.
Plaintiff operated a convenience store in Atlantic City in a building that he leased from defendant. On October 19, 2005, an unknown assailant attacked plaintiff and stole $6,000 from the cash register. Four months prior to this attack, defendant had damaged a water pipe while attempting to repair a toilet in an apartment located above the convenience store. The resulting water damage rendered the store's surveillance video system inoperable. Defendant acknowledged his responsibility for causing the damage, and repeatedly assured plaintiff that he would repair or replace the video surveillance system. Despite plaintiff's repeated requests, defendant did not do so. Plaintiff had never been assaulted or robbed prior to October 19, 2005, and has not been attacked since. Defendant repaired the security system after the October 2005 attack on plaintiff.
Plaintiff provided a report of a security expert who opined that because plaintiff's store was located in a high crime area, a video surveillance system was vital to protecting plaintiff from attack. The expert commented that he observed many "rough characters" in the area of the store on the day of his site visit. He reasoned that the "deterrence effect" of a security video camera system "was lost for the duration of the breakdown" and "[d]uring this period, anyone entering [plaintiff's store] could easily see that the system was down and that their activities were not being recorded." He opined that the lack of a security system was the cause of plaintiff's injuries:
The defendant caused the security video camera system to be damaged and [his] failure to maintain a security video camera system for an extended period of time, in a high crime area, was both negligent and in violation of the lease.
[Defendant] mishandled the overall security system in the face of high crime and [plaintiff's] complaints about inadequate security camera coverage at [defendant's] property. This neglect of security improperly resulted in a robbery attack of the plaintiff, which should never have happened.
According to the expert, the lack of a security system was particularly significant because Atlantic City "suffer[s] from extraordinarily high serious crime rates," a conclusion he supported only by referring to FBI Uniform Crime Reports and the National CAP Index Report for Atlantic City as a whole. Notably, he did not provide the actual statistics; he merely reported that according to those two sources, the Atlantic City crime rate was high. He also asserted that he had "relied on" a source entitled "Police Operations," published by West Publishing Company in 1976. He did not mention -- much less discuss -- the content of "Police Operations" or even attempt to explain how such document supported his conclusions. Moreover, plaintiff's expert never analyzed the crime statistics for the particular section of the city in which the store was located.
In addition, the report contained no statistical analysis comparing the crime rates at businesses which have video surveillance systems with those that do not, and no studies demonstrating that video surveillance systems are an effective method of crime prevention. Plaintiff's expert merely concluded, after a cursory mention of Atlantic City crime statistics, that defendant, as owner of the property, had a duty to replace the security system and that such failure was "a substantial cause" of the injuries sustained by plaintiff on the day in question. Other than his expert's report, plaintiff's opposition to defendant's summary judgment motion contained no materials asserting that lack of a surveillance camera played any role in the incident in question.
On November 7, 2008, at the conclusion of oral argument, the motion judge granted defendant's motion for summary judgment. The judge agreed with plaintiff's assertion that as the owner of a commercial property, defendant had a duty to provide reasonably safe premises for plaintiff's use and that by failing to provide a functioning video surveillance system, defendant had breached that duty. He held that the only issue before him was "whether the plaintiff can establish a proximate causational relationship that would permit the jury to conclude that the defendant's negligence was indeed a proximate cause of plaintiff's injuries." In particular, the judge observed that to defeat defendant's motion, plaintiff was required to submit an expert opinion demonstrating that defendant's failure to maintain a functioning security system was a proximate cause of plaintiff's injuries.
The judge concluded that plaintiff's expert's report was a net opinion because it was devoid of any "factual foundation" to support the expert's conclusion that the failure to maintain the video monitor was a proximate cause of plaintiff's injuries. The judge observed that the report contained "no factual analysis whatsoever" and "no statistical analysis" to establish "the linkage" between the breakdown of the security system and the attack on plaintiff. The judge excluded the report as an inadmissible net opinion and held that without expert opinion a jury could not find proximate cause. Consequently, he granted defendant's motion and dismissed plaintiff's complaint.
On appeal, plaintiff asserts that the grant of summary judgment was improper because: 1) the robbery and assault were clearly foreseeable in the absence of a security system in a high crime area; 2) his expert report was wrongly excluded as a net opinion; and 3) defendant's motion was untimely. Finally, although not described in a specific point heading, plaintiff also asserts that no expert opinion is required on the issue of causation and that, as in most cases, causation is an issue for the jury. Plaintiff argues that even if his expert's report was a net opinion, summary judgment should nonetheless have been denied because no expert report was required. He did not raise this latter argument in the Law Division, and has raised it for the first time on appeal, asserting that "as a matter of justice and fairness," we should entertain this claim even though he did not present it in the Law Division.
"The net opinion rule is a prohibition against speculative testimony." Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div.), certif. denied, 154 N.J. 607 (1997). "Under this doctrine, expert testimony is excluded if it is based merely on unfounded speculation and unquantified possibilities." Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 300 (App. Div.), certif. denied, 122 N.J. 333 (1990).
The rule requires an expert "to give the why and wherefore" of his or her opinion rather than a mere conclusion. Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), cert. denied, 145 N.J. 374 (1996). Experts "must be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are scientifically reliable." Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992). They must be able to point to a generally accepted, objective standard of practice, and "not merely to standards personal to the witness." Fernandez v. Baruch, 52 N.J. 127, 131 (1968). When an expert opinion is unsupported by factual evidence, it is inadmissible. Jimenez, supra, 286 N.J. Super. at 540.
Here, plaintiff's expert report contained nothing other than a reference to general FBI and National CAP Index statistics about crime in Atlantic City to support his contention that defendant's failure to provide a video surveillance system was a proximate cause of his injuries. Plaintiff presented no police reports or other data on crime in the immediate vicinity of the premises he leased from defendant, no statistics or other data demonstrating that such surveillance system could have prevented the attack, no studies demonstrating that stores with such systems are targeted less frequently than those without them, and no evidence that the assailant's decision to assault plaintiff was influenced in any way by the absence of a video camera. We agree with the motion judge's conclusion that plaintiff's expert report contained "no . . . analysis whatsoever," no "factual foundation," and contained nothing more than the expert's mere conclusion unsupported by the "why and wherefore" that we required in Jimenez, supra, before an expert report is admissible. 286 N.J. Super. at 540. We therefore affirm the judge's determination that the report in question was a net opinion, devoid of any analysis, and was therefore inadmissible.
We decline to consider plaintiff's alternative argument that the judge erred when he concluded that plaintiff was required to provide an expert report and could not survive a summary judgment motion without one. Absent exceptions not pertinent here, we decline to consider on appeal an argument not raised in the Law Division. Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973).
We likewise decline to consider plaintiff's argument that Zeph v. Hilton Hotel & Casino, 346 N.J. Super. 6, 14-15 (App. Div. 2001) and Braitman v. Overlook Terrace Corp., 132 N.J. Super. 51, 55 (App. Div. 1974), aff'd, 68 N.J. 368 (1975), require the reversal of the motion judge's grant of summary judgment to defendant. Zeph dealt with the question of whether the defendant owed a duty to its business invitees, 346 N.J. Super. at 14-15, an issue not presented here. Braitman involved a landlord's duty to his residential tenant, 68 N.J. at 382-83, which is also not at issue here. Moreover, neither case addressed the sole issue under review in this appeal, whether plaintiff's expert report was an inadmissible net opinion.
Plaintiff's remaining contention that the judge should have declined to consider defendant's motion because it was untimely lacks sufficient merit to warrant discussion.