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Nick A. Musse v. the Port Authority of New York and New Jersey


April 26, 2012


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4742-08.

Per curiam.


Submitted February 29, 2012

Before Judges Cuff, Waugh, and St. John.

Plaintiff Nick A. Musse appeals the Law Division's April 11, 2011 order granting a directed verdict in favor of defendants Port Authority of New York and New Jersey (Port Authority) and Port Authority Trans-Hudson Corporation (PATH). We affirm.


We discern the following facts and procedural history from the record on appeal.

On December 19, 2007, Musse was traveling from Hoboken to Journal Square on the PATH system. He boarded a train in Hoboken and got off at the Pavonia-Newport station, where he intended to board a train to Journal Square. As he approached the edge of the platform to observe an approaching train, he slipped and fell from the platform onto the tracks below.*fn1 He was unable to get back onto the platform and was hit by the train, resulting in significant injuries.

In January 2010, Musse filed suit against the Port Authority, PATH, and defendant Modern Facilities Services, Inc. (Modern Facilities), which maintained the platform at the PATH station. The defendants answered and discovery was taken by all parties.

Trial commenced before a jury on April 5, 2011. On the third day of trial, the judge held a Rule 104 hearing, outside the presence of the jury, to determine whether Musse's proposed expert, Colon Fulk, would be permitted to testify concerning the alleged negligence of the engineer of the PATH train that hit Musse. The trial judge found that Fulk was not qualified and that he offered a net opinion. The judge precluded Fulk's testimony, at which point Musse rested.

The judge granted defendants' motions for directed verdicts in their favor. R. 4:37-2(b). With respect to the Port Authority and PATH, the judge held that Musse could not prove negligence without the testimony of a qualified expert. With respect to Modern Facilities, the judge found that Musse failed to establish that Modern Facilities was negligent in maintaining the platform and that he also failed to establish that it had notice of any condition that might have caused Musse to slip.

Musse appeals the order of dismissal, but only as to his claims against the Port Authority and PATH.


Musse argues that the trial judge erred in precluding Fulk's testimony because (1) he was qualified in the field of rail operations and (2) he did not give a mere net opinion.

Defendants urge us to uphold the trial judge's decision to exclude Fulk's testimony.


The decision to allow an expert to testify is within the trial judge's discretion, and will be overturned on appeal only if the judge's decision amounts to an abuse of that discretion. See Riley v. Keenan, 406 N.J. Super. 281, 295 (App. Div.), certif. denied, 200 N.J. 207 (2009).

N.J.R.E. 703 requires that an expert's opinion be based upon "facts or data . . . perceived by or made known to the expert at or before the hearing." "The net opinion rule is a prohibition against speculative testimony." Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997) (citing Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 300 (App. Div.), certif. denied, 122 N.J. 333 (1990)), certif. denied, 154 N.J. 607 (1998). "Under this doctrine, expert testimony is excluded if it is based merely on unfounded speculation and unquantified possibilities." Vuocolo, supra, 240 N.J. Super. at 300.

N.J.R.E. 703 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.), certif. denied, 145 N.J. 374 (1996). Therefore, 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). An expert's conclusion is inadmissible as a net opinion when it is a "bare conclusion[], unsupported by factual evidence." Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). See also State v. Townsend, 186 N.J. 473, 494 (2006) ("Simply put, the net opinion rule 'requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion.'" (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002))); Johnson v. Salem Corp., 97 N.J. 78, 91 (1984) ("The weight to which an expert opinion is entitled can rise no higher than the facts and reasoning upon which that opinion is predicated." (citations and internal quotation marks omitted)).


The disposition of this appeal requires us to determine whether Fulk was "qualified as an expert by knowledge, skill, experience, training, or education" to testify about the operation, including braking, of a PATH train, as required by N.J.R.E. 702, and, if he was, whether he was able "to give the why and wherefore" of his opinion, as opposed to "a mere conclusion." Jimenez, supra, 286 N.J. Super. at 540. As to the first issue, our opinion differs from that of the trial judge, in that we conclude that Fulk's extensive experience in railroading provided the basic qualifications required by N.J.R.E. 702.

The real question is whether Fulk's opinion was more than a net opinion. Before turning to that issue, however, we note that neither the trial judge nor we are concerned with the weight to be given to an expert's opinion, nor is it our role to determine whether or not an expert is proficient at his or her craft. Those are tasks for the jury. As we observed in Espinal v. Arias, 391 N.J. Super. 49, 58-59 (App. Div.), certif. denied, 192 N.J. 482 (2007), [w]hile the trial judge must determine whether the expert's training and experience are sufficient to permit the expert to state an opinion, it remains the jury's function to determine the worth of that opinion. Sanzari v. Rosenfeld, 34 N.J. 128, 138 (1961). "It is for the jury to determine the credibility, weight and probative value of the expert's testimony. . . ." Rubanick v. Witco Chem. Corp., 242 N.J. Super. 36, 48 (App. Div. 1990), modified and remanded by 125 N.J. 421 (1991). "Deficiencies in the qualification of an expert is a matter to be weighed by the jury." Ibid. An "expert's skill or knowledge go to the weight to be accorded the expert testimony." Waldorf v. Shuta, 142 F.3d 601, 627 (3d Cir. 1998); see also Carbone v. Warburton, 11 N.J. 418, 426 (1953) (deficiencies in expert's qualifications go to weight given to expert's opinion; sufficient evidence of qualifications permits the expert to testify, "leaving to the jury the determination of its worth"); Angel v. Rand Express Lines, Inc., 66 N.J. Super. 77, 86 (App. Div. 1961) (expert's qualifications subject to jury's scrutiny).

The core of Fulk's opinion was that the engineer of the PATH train that hit Musse was negligent because (1) he could have stopped the train prior to impact had he seen Musse in a timely manner and (2) he did not see Musse in time because he was inattentive. Based upon his measurements at the station, Fulk opined that Musse would have been visible to the engineer 210 feet before the train entered the station. Because Musse was located on the tracks 140 feet from the entrance to the station, according to Fulk's calculations, Fulk further opined that the engineer could first have seen Musse 350 feet from the point of impact.

Based upon his review of the video of the accident, Fulk determined that fourteen seconds elapsed between Musse's fall and the impact. Fulk calculated that the train would have been 513 feet away from the point of impact when Musse fell, which means that it would have traveled 163 feet before reaching the point at which Fulk believed that Musse first became visible to the engineer. According to Fulk's report, the maximum speed allowed by PATH rules is twenty-five miles per hour. Using Fulk's figure of 36.675 feet per second as the speed of the train at twenty-five miles per hour, it would have taken approximately 4.4 seconds to reach the point at which Musse was first visible. As a result, the engineer would have had approximately ten seconds to observe Musse, apply the brakes, and bring the train to a stop without hitting Musse.

Fulk opined that it would take between 180 and 300 hundred feet for a train going twenty-five miles an hour to stop. Rather than relying on instruction manuals or literature concerning the operating specifications of the equipment involved, Fulk relied on his own estimation of the stopping distance based upon (1) his experience riding in a PATH train operated by an unnamed individual whom he described as the supervisor of locomotive engineers, and (2) his observation of the video of the accident. According to Fulk, it would normally take between 200 and 300 feet to stop a PATH train, based on his observations riding with the supervisor. Fulk further estimated that the engineer stopped the train that hit Musse within 180 feet of applying the breaks, based upon his observation of the video, his observation of the point at which he believed the engineer began to apply the breaks, the engineer's version of the accident, and the engineer's estimate of his distance from Musse when he first observed him.

Fulk also maintained that his estimate was confirmed during a conversation he had with the supervising engineer. However, hearsay statements relied upon by an expert are only admissible for the limited purpose of apprising the jury of the basis of the expert's opinion if they are of a type reasonably relied upon by experts in the field. See Agha v. Feiner, 198 N.J. 50, 62 (2009). The conversation at issue here does not satisfy that requirement.

If the stopping distance was 300 feet, the outside of Fulk's estimated range, the engineer would have had approximately 1.36 seconds to observe Musse and apply the breaks. If it was 180 feet, the shortest distance estimated by Fulk, the engineer would have had approximately 4.64 seconds to make the observation and apply the brakes.

The stopping distances upon which Fulk's opinion relied were not based on hard data, such as manuals, train specifications, or even his own measurements under similar conditions. Instead, they were estimates, based largely on his own minimal observations, his interpretation of the accident video, and extrapolations from statements made by others. In addition, Fulk offered no testimony or opinion about the reaction times required for the engineer to observe Musse and take appropriate action, an especially crucial factor given the imprecise nature of Fulk's estimates of the stopping time.

Despite his reliance on some facts based on his experience, research, and measurements, Fulk's ultimate conclusion, that the engineer was negligent because he could have seen Musse and stopped the train in time, was overly reliant on imprecise estimates, rather than measurements that could have been made or facts that could have been obtained from reliable sources or scientific observations. For those reasons, it amounted to a bare conclusion unsupported by sufficient factual evidence. Buckelew, supra, 87 N.J. at 524. Consequently, we find that the trial judge did not abuse her discretion in excluding Fulk's testimony.


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