• Just Because An Expert Says It, Doesn’t Make It So
  • August 28, 2018 | Authors: Robert J. Fitzgerald; Ray C. Freudiger; Lawrence Brent Berg; Christopher E. Dougherty
  • Law Firms: Marshall Dennehey Warner Coleman & Goggin, P.C. - Cherry Hill Office; Marshall Dennehey Warner Coleman & Goggin, P.C. - Philadelphia Office; Marshall Dennehey Warner Coleman & Goggin, P.C. - Cherry Hill Office; Marshall Dennehey Warner Coleman & Goggin, P.C. - Cincinnati Office
  • New Jersey courts have generally recognized that in the ordinary negligence/malpractice case against an insurance producer, the standard of practice for the insurance producer must be established by expert testimony since a jury generally lacks the requisite special knowledge, technical training and background to be able to determine the applicable standard of care. Mindful of this requirement, plaintiffs will frequently produce an expert report in which the purported expert opines that the conduct at issue failed to meet the standard of care because he/she would have handled the situation differently. However, such an opinion, premised solely upon the expert’s explanation of how he/she would have acted, constitutes a net opinion and will not support a cause of action. New Jersey courts have consistently held that net opinion, or purported expert opinion based upon speculation or conjecture, is inadmissible at trial. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). Net opinion can best be described as an expert’s “bare conclusion” unsupported by factual evidence. See Jimenez v. GNOC Corp., 286 N.J. Super. 533, 540 (App. Div. 1996). The rule often focuses upon 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. Therefore, the net opinion rule requires the expert witness to give an explanation and basis for the opinion, not just a mere conclusion.

    The New Jersey Appellate courts have instructed that in a professional negligence case, the plaintiff must produce expert testimony upon which the jury could find that the consensus of the particular profession involved recognizes the existence of the standard defined by the expert. It is not sufficient for the plaintiff’s expert simply to follow slavishly an “accepted practice” formula. Put more simply, a standard that is personal to the expert is equivalent to a net opinion.

    In Taylor v. DeLosso, 319 N.J. Super. 174 (App. Div. 1999), the plaintiff’s expert witness testified that the defendant architect deviated from accepted standards of architectural practice by failing to make a site inspection of the plaintiff’s property to verify the location of a maple tree before preparing the site plan. The appellate court held that this opinion was materially deficient since the expert presented no authority supporting his opinion and there was no reference made to any written document, or even unwritten custom or practice, indicating that the opinion represented the consensus of the architectural community. The total absence in the expert’s testimony to any text book, treatise, standard, custom or recognized practice, other than his personal view, rendered the the conclusions to be a net opinion.

    This requirement was recently revisited in Satec v. The Hanover Group, et al., 450 N.J. Super. 319 (App. Div. 2017), in the context of a claim that an insurance producer failed to secure flood insurance for its client. In reaching its decision on the insurance broker’s motion to strike, the Appellate Court noted that the plaintiff’s expert had failed to offer objective support for his personal views on the applicable standard of care. The Appellate Court pointed out that the expert failed to identify the source of the standard of care by which to measure the plaintiff’s claimed deficiencies or to determine whether there was a breach of duty.

    Applying this requirement to a claim handled by our office, we were able to secure the dismissal of a malpractice claim against an insurance producer when the court found that the plaintiff’s expert’s opinion—that the agent had an obligation to annually re-offer a client flood insurance after the client had indicated that they were not interested in the coverage—was based upon nothing more than the expert’s personal view of how he would have handled the situation. It was not based upon accepted standards or requirements within the professional community.

    In defending a malpractice claim, it is essential to determine at an early point in the litigation whether expert testimony is required and to ensure that the opinions being offered in support of the claim represent a true standard in the industry, not just the personal view of the expert. Many times an expert will take the easy way out and simply indicate that he/she would have handled the situation differently, and by doing so, the conclusion may constitute a net opinion and open the claim to potential dismissal.