December 3, 2012
CARLYS ALEXANDER, PLAINTIFF-APPELLANT,
MID-EASTERN TRANSPORTATION, INC., MK&K LEASING, INC., ANTHONY DARNELL WILLIAMS, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0931-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 13, 2012
Before Judges Sapp-Peterson and St. John.
Plaintiff Carlys Alexander appeals from a January 21, 2011 order of the Law Division granting summary judgment for defendants Mid-Eastern Transportation, Inc., MK&K Leasing, Inc., and Anthony Darnell Williams.
On appeal, plaintiff challenges the exclusion of the expert report of Barry L. Brunstein, of Transport Safety Consultants Nationwide, arguing Brunstein provided an admissible opinion regarding the cause of the accident. Plaintiff also contends that expert testimony was not required. We find plaintiff's arguments unpersuasive.
Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.
The following facts are derived from the record before the motion judge. On June 22, 2007, defendant Anthony Darnell Williams was driving a tractor trailer in Alabama, accompanied by plaintiff, who was a passenger. The tractor trailer was owned by defendant MK&K Leasing, Inc. and operated by Mid-Eastern Transportation, Inc., Williams' employer. A tractor tire blew out causing the vehicle to veer off the highway which resulted in an accident and injury to plaintiff.
In Alexander's certification, he asserted that just before the accident, he estimated the speed of the vehicle at seventy-seven miles per hour, in a seventy mile per hour zone. He also contended that immediately after the accident, Williams told him that he was aware of a defective plug in the blown out tire and that he should not have been driving on that tire.
Defendants contend that there is no evidence linking the speed of the truck as a factor in the blowout. Defendants also posit that there is no evidence that a plugged tire is inherently defective. They assert that Alexander failed to inspect the tire, obtain an expert opinion with regard to the specific elements of the causal connection between the blowout and the accident, and depose any Mid-Eastern employee or the responding police officer. Defendants further argue that Alexander failed to provide any evidence that demonstrates defendants were negligent in failing to properly maintain, repair, service, inspect, and monitor the truck.
In a comprehensive oral opinion, Judge Paul Innes first addressed plaintiff's contention that the court should have extended the discovery end-date and that discovery was incomplete. The judge noted that on July 23, 2010, he denied Alexander's motion to extend discovery. The judge further noted that under Rule 4:46-2, "a claim of incomplete discovery will not defeat summary judgment where the party opposing the motion has sought discovery within the time prescribed by the Rule." The judge further stated that, "plaintiff's assertion that summary judgment should be denied based on defendants failure to appear for a deposition and outstanding discovery is rejected."
Previously, on December 17, 2010, the judge advised the parties that Alexander had failed to provide an appropriate expert report which opines that a plugged tire is unsafe.
Alexander served a supplemental expert report at 4:00 p.m., the day before the return date. The judge stated that after reviewing the supplemental report, "I find that the report itself is a net opinion." The judge further determined that, "plaintiff had full opportunity to conduct discovery with regard to the owner of the tractor trailer, had full opportunity to conduct an inspection of the vehicle and the tire, and had full opportunity to conduct other inspection and that was not done."
Plaintiff posits that the judge erred in granting summary judgment because he failed to find that defendants had a legal duty to place the plugged tire on a non-steering axle. Specifically, plaintiff argues that applicable commercial driving standards mandated that the plugged tire be on a non-steering axle. Further, plaintiff contends that since he was not an employee, he was an unauthorized passenger, and Section 392.60 of the Field Motor Carrier Safety Regulations, 60 C.F.R § 392.60, prohibits the transportation of unauthorized passengers.
Before turning to the merits of the appeal, we outline some of the legal principles that govern our review of the trial judge's decision, as well as the legal principles that govern the issues raised on appeal.
Our review of a ruling on summary judgment is de novo, applying the same legal standard as the motion judge. Chance v. McCann, 405 N.J. Super. 547, 563 (App. Div. 2009). We consider, as did the judge, "'whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.'" Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995). We view the evidence submitted by the parties in support of, and in opposition to, plaintiffs' summary judgment motion, in a light most favorable to plaintiffs. See Brill, supra, 143 N.J. at 540. Summary judgment must be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). If there is no genuine issue of material fact, "[we] must [then] decide whether the trial court correctly interpreted the law." Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494 (App. Div. 2007), certif. denied, 195 N.J. 419 (2008). Applying these standards, we are satisfied that the trial judge properly granted summary judgment.
The admissibility of expert testimony is guided by N.J.R.E. 702 and 703. N.J.R.E. 702 provides that "[i]f 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." In addition, N.J.R.E. 703 provides that "[t]he facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing." Importantly, N.J.R.E. 703 explicates that an expert's opinion must be founded on "facts or data." See Hisenaj v. Kuehner, 194 N.J. 6, 24 (2008).
Because an expert's opinion must be founded on "facts or data," the "net opinion rule 'requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion.'" State v. Townsend, 186 N.J. 473, 494 (2006) (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002). "The net opinion rule has been succinctly defined as 'a prohibition against speculative testimony.'" Koruba v.
Am. Honda Motor Co., 396 N.J. Super. 517, 525 (App. Div. 2007) (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div.), certif. denied, 154 N.J. 607 (1997)), certif. denied, 194 N.J. 272 (2008).
A net opinion "present[s] solely a bald conclusion, without specifying the factual bases or the logical or scientific rationale that must undergird that opinion." Polzo v. Cnty. of Essex, 196 N.J. 569, 583-84 (2008) (footnote omitted). The rule "frequently focuses . . . on the failure of the expert to explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting therefrom." Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). It also requires the expert's opinion be based on reasonable probabilities. Ibid. "Evidential support for an expert opinion is not limited to treatises or any type of documentary support, but may include what the witness has learned from personal experience." Rosenberg, supra, 352 N.J. Super. at 403 (citation omitted).
In reviewing the trial court's evidentiary ruling, we are limited to examining the decision for an abuse of discretion. Hisenaj, supra, 194 N.J. at 12. Trial courts are "granted broad discretion in determining both the relevance of the evidence to be presented and whether its probative value is substantially outweighed by its prejudicial nature." Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999).
At issue in this matter is the cause of the accident. In his report, Brunstein stated:
In the trucking industry it is customary that when Motor Carriers have to patch or plug tires used on a steering axle, that those tires are converted to use on other axles, either drive axles or conversion to use on trailers. This is done because of the critical position of the steering axle. When a front tire blow-out (steering axle) occurs, the front axle drops rapidly to the surface of the road, very often resulting in a complete loss of control of the vehicle.*fn1
Mid-Eastern Transportation ignored a safe standard of practice in the trucking industry by failing to remove the subject tire from the steering axle of the tractor and placing it in service as a drive axle tire or trailer tire, at the time it required a patch/plug.
The admissibility rule has been aptly described as requiring the expert to "give the why and wherefore" that supports his opinion, "rather than a mere conclusion." See Polzo, supra, 196 N.J. at 583 (quoting Townsend, supra, 186 N.J. at 494). Further, if an expert cannot offer objective support for his or her opinions, but testifies only to a view about a standard that is "personal," it fails because it is a mere net opinion. As we have stated:
It is insufficient for . . . [an] expert simply to follow slavishly an "accepted practice" formula; there must be some evidential support offered by the expert establishing the existence of the standard.
A standard which is personal to the expert is equivalent to a net opinion. [Taylor v. DeLosso, 319 N.J. Super. 174, 180 (App. Div. 1999) (citations omitted).]
We see no reason to disturb the trial judge's decision that Brunstein's bare opinion, that has no support in factual evidence or similar data, is a mere net opinion which is not admissible and may not be considered. See Polzo, supra, 196 N.J. at 583.
Plaintiff also asserts that Brunstein's opinion as to liability was based on defendants' violation of certain "National Truck Safety Standards" and transportation of plaintiff, an unauthorized passenger. We find this contention to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). We add the following comment.
If a "plaintiff does not fall within the class of persons for whose benefit the statute was enacted," such statute is "not applicable either as evidence of a duty or as evidence of negligence arising from a breach of such alleged duty."
Fortugno Realty Co. v. Schiavone-Bonomo Corp., 39 N.J. 382, 393 (1963). See also Restatement (Second) of Torts § 288 (1965) ("The court will not adopt . . . an administrative regulation whose purpose is found to be exclusively . . . (d) to protect a class of persons other than the one whose interests are invaded, or . . . (f) to protect against other harm than that which has resulted, or . . . (g) to protect against any other hazards than that from which the harm has resulted."); Prosser & Keeton on Torts § 36 (5th ed. 2001) ("the harm suffered must be of the kind which the statute was intended, in general, to prevent . . . [and] a statute may well be assumed to include all risks that reasonably may be anticipated to follow from its violation."); 8 Am. Jur. 2d Automobiles and Highway Traffic § 729 (2011) ("The plaintiff must establish further that the violation of the statute or ordinance was the proximate cause, or at least a proximate cause, of the accident and resulting injuries. There must be a direct relation of cause and effect between the violation of the statute or ordinance and the ensuing accident and injury, otherwise there is no liability.").
We recognize that violation of a statute may sometimes be considered by a jury in determining issues of negligence or contributory negligence. See, e.g., Braitman v. Overlook Terrace Corp., 68 N.J. 368, 385 (1975); Horbal v. McNeil, 66 N.J. 99, 103-104 (1974); Ellis v. Caprice, 96 N.J. Super. 539, 553 (App. Div.), certif. denied, 50 N.J. 409 (1967). However, "this rule is subsumed by the overriding principle that the statutory violation, to be evidential, must be causally related to the happening of the accident, since a permissible inference of causality is indispensable to its relevancy." Mattero v. Silverman, 71 N.J. Super. 1, 9 (App. Div. 1961), certif. denied, 36 N.J. 305 (1962).
Finally, plaintiff argues that summary judgment should not have been granted as expert liability testimony was not required under the circumstances. We find this contention to be without sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).
For completeness, we add the following comments. Plaintiff directs our attention to our opinion in Apuzzio v. J. Fede Trucking, Inc., 355 N.J. Super. 122, 129 (App. Div. 2002) (considering application of res ipsa loquitor to claim that victims were injured when wheel became detached from passing truck and struck them).
Ordinarily, it is a plaintiff's burden to prove negligence and it is never presumed. Hansen v. Eagle-Picher Lead Co., 8 N.J. 133, 139 (1951). Even so, there is a place in our system of justice for the doctrine of res ipsa loquitur. See Bornstein v. Metro. Bottling Co., 26 N.J. 263, 269-70 (1958) (citing cases and authorities). The theory, which can be translated from Latin as the maxim "the thing speaks for itself," permits the jury to infer negligence in certain circumstances, effectively reducing the plaintiff's burden of persuasion, but not shifting the burden of proof. Eaton v. Eaton, 119 N.J. 628, 638 (1990).
There are three fundamental predicates for the application of the doctrine. These are that "(a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality was within the defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect." Bornstein, supra, 26 N.J. at 269.
Here, the plaintiff has not offered any proof that a repaired tire "ordinarily bespeaks negligence."