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Heather Tentoni v. Vincent E. Jeffers and Con-Way

January 13, 2011

HEATHER TENTONI, PLAINTIFF,
v.
VINCENT E. JEFFERS AND CON-WAY FREIGHT, INC., SAINT CLARE'S HEALTH SYSTEM MOBILE INTENSIVE CARE UNIT, DENNIS KRUK AND KEVIN WALTY,
DEFENDANTS,
AND
VINCENT E. JEFFERS AND CON-WAY TRANSPORTATION SERVICES, INC.,
THIRD-PARTY PLAINTIFFS,
v.
SAINT CLARE'S HEALTH SYSTEM MOBILE INTENSIVE CARE UNIT, DENNIS KRUK AND KEVIN WALTY,
THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Walls, Senior District Judge

NOT FOR PUBLICATION

OPINION

Defendants Con-Way Freight, Inc. ("Con-Way") and Vincent Jeffers move to bar the testimony of plaintiff's accident reconstruction expert, Frank Ghiorsi, P.E., as a "net opinion."

FACTUAL AND PROCEDURAL BACKGROUND

This case stems from a motor vehicle accident which occurred on September 20, 2005. Plaintiff Heather Tentoni was driving on Route 287 South when she was involved in a collision with a tractor trailer driven by Vincent Jeffers and owned by Con-Way. Ms. Tentoni has testified that she has no recollection of the accident. (Df. Ex. F, Tentoni Dep.) The parties dispute the sequence of events involved in the accident, but are in agreement as to how the accident began and ended. The accident began when the plaintiff, who was driving in the left lane of the highway, began to veer left onto the shoulder. She swerved to the right, entered the middle lane, then took another sharp turn to the left and struck the center guardrail. (Pl. Ex. A, Ghiorsi Report.) The parties also agree that, ultimately, Ms. Tentoni's vehicle was dragged under the tractor trailer, dislodged, and came to a stop with two wheels on the roadway and two wheels on the center concrete median. (Df. Ex. G, Jeffers Dep.) They dispute what occurred in the middle.

The defendants assert that after striking the guardrail, the plaintiff's car did a 360-degree turn into the center lane. (Df. Ex. G, Jeffers Dep.) After completing the turn, Tentoni's vehicle began rolling backwards directly into the front of Jeffers' truck. (Df. Ex. H, Salter Dep.) Mr. Jeffers was driving in the center lane, and began pressing hard on his brakes. However, he was unable to come to a stop before striking plaintiff's vehicle in the center lane. He was also unable to move to his right or left because there were cars in those lanes. The defendants' version of events relies upon the testimony of Mr. Jeffers and his passenger, Malcolm Salter, and the police report generated after the accident.

The plaintiff's version, meanwhile, depends upon the report generated by her accident reconstruction expert, Frank Ghiorsi, P.E. Mr. Ghiorsi concludes that after striking the guardrail, the plaintiff's car re-entered the roadway and veered right. (Pl. Ex. A, Ghiorsi Report.) Her car continued in this direction, braking as it went across the southbound lanes. It had just entered the I-80 exit lane when it collided with an unidentified southbound vehicle.

(Id.) At impact, Ms. Tentoni's car was either stopped or going very slowly and the unidentified vehicle was likely traveling at highway speed. (Id.) The momentum from this impact caused the plaintiff's car to rotate counter clockwise, and it came to a rest facing south, straddling the right and center lanes. (Id.) Ms. Tentoni's car was mostly in the right lane when it was struck in the rear by Jeffers' truck. (Id.) Mr. Ghiorsi bases his analysis upon the police report, the deposition testimony of Jeffers, Slater and Christopher Williams (the trooper on the scene who generated the police report), Ms. Tentoni's medical records, and photographs of Ms. Tentoni's vehicle and the accident site.

LEGAL STANDARD

The admissibility of expert testimony is a question of law governed by Rule 702 of the Federal Rules of Evidence and the United States Supreme Court's decision in Daubert v. Merrell Dow Pharm., Inc., 509 U.S. 579 (1993). Rule 702 states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case.

Fed R. Evid. 702. The Third Circuit has explained that the rule "embodies a trilogy of restrictions on expert testimony: qualification, reliability and fit." Schneider ex rel. Estate of Schneider v. Fried, 320 F.3d 396, 404 (3d Cir. 2003).

Under New Jersey law, an "expert's bare conclusions, unsupported by factual evidence" are an inadmissible "net opinion." Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). As the New Jersey Appellate Division explained:

Under New Jersey law, an expert's opinion must be based on a proper factual foundation. In other words, 'expert testimony should not be received if it appears the witness is not in possession of such facts as will enable him [or her] to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture. 'This prohibition against speculative expert opinion has been labeled by modern courts as the 'net opinion rule.' Under this ...


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