NEW JERSEY MANUFACTURERS INSURANCE COMPANY v. STEPHEN CUJDIK

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4048-09T2

NEW JERSEY MANUFACTURERS

INSURANCE COMPANY a/s/o

ELLEN AND ELIZABETH ROBINS,

Plaintiff-Appellant,

v.

STEPHEN CUJDIK and ASHLYN BORDO,

Defendants-Respondents.

_______________________________

February 14, 2012

 

Submitted March 16, 2011 - Decided

 

Before Judges R. B. Coleman and Lihotz.

 

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2679-07.

 

Law Offices of Dennis J. Crawford, attorneys for appellant (Douglas F. Fisher, on the briefs).

 

Law Offices of Debra Hart, attorneys for respondent Stephen Cujdik (Michael J. Jubanyik, of counsel and on the brief).

 

Powell, Birchmeier & Powell, attorneys for respondent Ashlyn Bordo (Erin R. Thompson, on the brief).

 

PER CURIAM

Plaintiff New Jersey Manufacture's Insurance Co., as subrogee of its insureds, Ellen and Elizabeth Robins (collectively Robins), appeals from a Law Division order precluding the testimony of its expert because the court found the report constituted an inadmissible net opinion. Thereafter, the court granted the summary judgment motions filed by defendants Stephen Cujdik and Ashlyn Bordo. On appeal, our review is limited to determining whether the trial court erred in barring plaintiff's expert testimony. We affirm.

Carol and Stephen Cujdik, mother and son, resided in one half of a side-by-side duplex, titled to Carol.1 The adjoining dwelling was owned by Robins.

At approximately 11:35 p.m. on April 20, 2006, a fire erupted in Stephen's room, destroying the Cujdik s residence and partially destroying the Robins' residence. Earlier that evening, defendants had been in Stephen's bedroom for approximately two hours watching television. Stephen was not a smoker and, although Ashlyn was, Carol forbade smoking in the house. Moreover, Ashlyn rarely smoked in Stephen's presence because he found it distasteful. Stephen confirmed Ashlyn had not smoked that evening and he had no candles in his room. Defendants left the residence at approximately 10:00 to 10:15 p.m. to comply with Ashlyn's curfew.

After taking Ashlyn home, Stephen returned to his residence at approximately 11:00 p.m. but did not immediately return to his room. Instead, he went to the upstairs computer room located next to his bedroom. Carol had already retired to bed. Shortly thereafter, Stephen smelled smoke. He checked the bathroom and hallway, and upon seeing smoke emanating from under his bedroom door, he opened the door to discover the fire in his room. Stephen woke his mother, called 911 to report the fire, and they safely evacuated the premises.

The Riverside Fire Department extinguished the fire and a full investigation commenced the following afternoon. Burlington County Assistant Fire Marshal Michael J. Reed issued a written report. The place of the fire's origin was established as "the second level of the dwelling in the middle room along the east side of the dwelling which was later identified as Stephen's bedroom." In examining the debris, "[t]he power strip, extension cord and other electrical items in the area of origin appeared to have [been] damaged as a result of the fire and not the ignition source." Reed concluded "the fire appears to have been accidental in nature, however, an ignition source could not be determined[.]"

Carol's home was insured by Proformance Insurance Company (Proformance), which engaged John P. Oakley, Jr. of O'Neill Associates to perform an investigation. In his written report, Oakley concurred with Reed's findings and conclusions, stating:

Based on the physical evidence, as well as facts developed through investigation, it is my opinion that the fire originated in the south, second floor bedroom identified as the insured's son's room. The most extreme fire damage occurred in this room and appears to have originated between the middle of the room and the southeast corner.

The cause for the fire could not be determined due to the severity of the damage.

 

The fire also damaged the Robins' adjoining residence. They submitted a claim to plaintiff, their property and casualty insurance carrier, seeking $223,412.81 for the fire damage and related expenses. Plaintiff also arranged for an investigation by Paul J. Boerner of National Forensic Consultants, Inc. Boerner similarly concluded "[t]he fire originated in the bedroom on the south side of the residence of Mrs. Cujdik and the fire traveled into the Robins['] residence. The cause of the fire is undetermined."

On July 10, 2007, plaintiff drafted a letter to Reed memorializing a conversation during which Reed expressed opinions not contained in his original report. Specifically, the correspondence stated:

This will confirm that, pursuant to our recent conversation, you advised me that it is your opinion that the . . . fire was not the result of an electrical cause. This will further confirm that, . . . you indicated that you are of the opinion that the fire was accidental in nature, and that you could not eliminate smoking material or the use of candles as the cause of the fire. You further indicated that you believe the origin of the fire was near a beanbag chair located between the bed and the television set.

 

Reed signed the letter, signifying the statements in the letter "accurately confirm[ed]" his prior statements during the conversation.

Plaintiff, as Robins' subrogee, filed a complaint against Carol and Stephen, alleging the fire was caused by negligence for which recovery and reimbursement of the sums paid on the Robins claim were sought. Ashlyn was later added as a defendant and Carol was dismissed from the litigation.

Defendants moved for summary judgment. The motions were denied, however, the motion judge ordered a "104 Hearing" to examine the admissibility of Reed's opinions.2

A different judge was assigned to conduct the evidential hearing. In presenting Reed as its expert, plaintiff sought to obtain an opinion on the fire's cause during this colloquy:

[PLAINTIFF'S COUNSEL]: Okay. And were you able to eliminate . . . electrical malfunction as a cause of the fire in your investigation?

 

[REED]: Based on my training and experience it appeared that all the electrical equipment was damaged as a result of the fire.

 

Q: Okay. And have you taken courses to make that type of assessment in part?

 

A: Yes.

 

Q: . . . And because it appeared that the electrical components had been attacked by the fire and were not the cause of the fire, did you eliminate the electrical as the cause of the fire?

 

. . . .

A: [A]s I said before, it appeared that it was all damaged as a result of the fire.

 

Q: All right.

 

A: I'm not an electrical engineer.

 

Q: I understand that. But in your report[,] did you eliminate electrical as a cause of the fire.

 

A: I left it as undetermined.

 

Q: I understand that. But did you eliminate electrical as a cause of the fire?

 

. . . .

 

A: [I]t appears that the fire damaged the electrical equipment.

 

Q: And, therefore, - -

 

A: If that's ruling it out, then I guess I did.

 

Q Yes. Okay. Now, with that being said, were you able to eliminate human error as a cause of the fire?

 

A: No.

 

Q . . . [D]id you do an analysis in your mind as to what the possible human error could have been in this room?

 

A: Not really.

 

Q: . . . [W]hen you say human error is a cause of the fire, . . . what does that mean?

 

A: It could be a very variable amount of things.

 

Q: Right. Does it mean . . . that someone could . . . accidentally drop a cigarette and it causes a fire?

 

A: Possibility.

 

Q: All right. Does it mean that somebody could knock over a candle and cause a fire?

 

A: Possibility.

. . . .

Q: Okay. . . . You could not eliminate human error as a cause of the fire. Is that correct?

 

A: That's correct.

 

. . . .

 

Q: Okay. Now, [in] the last sentence of the findings [section of your report], . . . your language is . . . the power strip, extension cord, and other electrical items in the area of origin appear to have damage as a result of the fire and not the ignition source. . . . [A]m I reading that correctly?

 

A: Yes.

 

Q: And in the findings you talk about the description of the burn patterns. Is that correct?

 

A: Yes.

 

Q: Okay. Then you reach your conclusion. And based on a careful and detailed examination of the fire scene, my training and experience, and information gathered from the Cujdiks, the fire appears to have been accidental in nature. However, an ignition source could not be determined, thus labeling the fire as undetermined for the ignition source. Did I read that correctly?

 

A: Yes, you did.

 

Q: Steven and his girlfriend were in the room watching a [DVD] prior to the fire. He took her home, then returned, went right to the room with the computer in it, then became aware of the fire. Everything was fine in his room when they were watching the [DVD]. . . . [D]id I read that correctly?

 

A: That's correct.

 

Q: So, is it fair to state that we have a scenario that they were the only two within the room prior to the fire?

 

A: As far as I know, yes.

 

Q: Okay. And of the two that were in the room, it's your understanding, based on your investigation, that [Ashlyn] was the only one that smoked? Not literally smoked at the time, but was the only one who was a smoker.

 

A: She was a smoker, yes.

 

Q: Okay. Now, subsequent to this report being generated, and after. . . I got this report . . . I picked up the phone and called you at some point. Is that correct?

 

A: Yes.

 

Q: And we had a discussion. And I guess it would have been sometime around July of 2007 we had that discussion. And as a follow-up I sent to you a letter dated July 10, 2007. Do you recall that?

 

A: Yeah. I believe I have a copy of it.

 

. . . .

 

Q: Okay. Do you recall us having a discussion as to what the human error could be within that room, and you indicating that the things that came to your mind at that time were careless smoking or possibly the candle[,] . . . what's your language?

A: Candles.

 

Q: And the candles. Do you recall that?

 

A: Yes.

 

Q: Okay. And the area of origin I think we've already established was near the beanbag chair. Is that correct?

 

A: Between the wall and the bed, which included the beanbag.

 

Q: Okay. And what was recited in that letter you agreed with, and that's why you signed it. Is that correct?

 

A: Yes.

 

But during cross examination, Reed testified he saw no signs the fire started from any candles in the room or from careless smoking, and again reiterated he could not determine causation:

[DEFENSE COUNSEL]: Okay. Now, with regard to smoking, did you see any evidence at all of any smoking in that room?

 

[REED]: No.

 

Q: Did you find any ashtrays?

 

A: No.

 

Q: Did you find any cigarette lighters?

 

A: No.

 

Q: Did you find any packages of cigarettes?

 

A: No.

 

Q: Any cigarette butts?

 

A: No.

 

Q: Okay. How about with regard to candles? Did you find any matches, lighters, candles, candle holders, anything like that in the room?

 

A: No.

 

Q: Okay. Now, as I understand it, you're not . . . telling us in your opinion today that this fire was caused by careless smoking, are you?

 

A: No, I am not.

 

Q: Okay. And, likewise, you are not offering this opinion today that this fire was caused by candles, are you?

 

A: No, I am not.

 

Q: Okay. And, again, as I said before, your opinion hasn't changed since . . . or you haven't given any information since you issued your original report dated April 20, 2006, have you?

 

A: No.

 

Q: And . . . your determination back then was that you could not determine an ignition source, thus labeling the fire undetermined back then, correct?

 

A: Correct.

At the conclusion of the evidential hearing, the trial judge found "no proof, either from [Ashlyn] or [Stephen], that [Ashlyn] was smoking in his [seven foot] by [thirteen foot] room on the night of this event. So, there's no evidence [Ashlyn was smoking]." Further, the judge determined, "[n]o one has ever said . . . that [Ashlyn] has ever smoked in this house. Was she smoking there on the night in question? . . . [S]he says no, [Stephen] says no, and there's no evidence that she did, in fact, smoke in that room on that night when the fire occurred." The judge concluded Reed's opinion was a net opinion as he "state[d] he d[id]n't know what caused this fire." Consequently, defendants' motion was granted, limiting Reed's testimony to his investigation and "the area of origin of the fire."

Plaintiff's motion for reconsideration was denied. Defendants moved for summary judgment. Another motion judge reviewed the matter and granted summary judgment because no evidence of causation was presented. Plaintiff's appeal ensued.

On appeal, plaintiff challenges the exclusion of Reed's testimony, arguing Reed provided an admissible opinion regarding the cause of the fire. We find plaintiff's argument unpersuasive.

The admissibility of expert testimony is guided by Evidence Rules 702 and 703. "Our Rules have fixed, clear guidelines that govern the admissibility of expert opinions and against which trial courts must make their evaluations." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011). "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." N.J.R.E. 702.

"[T]he rule sets forth three basic requirements for the admission of expert testimony: (1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art that an expert's testimony could be sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony."

 

[State v. Townsend, 186 N.J. 473, 491 (2006) (quoting State v. Torres, 183 N.J. 554, 567-68 (2005)).]

 

Additionally, an expert's opinion or inference must be based on "facts or data in the particular case . . . perceived by or made known to the expert at or before the hearing." N.J.R.E. 703. See also Hisenaj v. Kuehner, 194 N.J. 6, 24 (2008) (holding an expert's opinion must be founded on "facts or data"). In this regard, an expert's opinion cannot present merely a bare conclusion unsupported by factual evidence.

"The burden of proving that the testimony satisfies those threshold requirements rests with the party proffering the testimony." Hisenaj, supra, 194 N.J. at 15. In reviewing the admissibility of a proposed expert's opinion, the "court must ensure that the proffered expert does not offer a mere net opinion." Pomerantz Paper, supra, 207 N.J. at 372.

"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). 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.'" Townsend, supra, 186 N.J. at 494 (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002)).

A net opinion is one that "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). An expert's opinion may be based on reasonable probabilities and "[e]vidential 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.

At issue in this matter is the cause of the fire. "A competent opinion addressing the cause of a fire must be framed in terms of probability or a reasonable degree of certainty." Scully v. Fitzgerald, 179 N.J. 114, 128 (2004). An expert opinion about fire causation cannot be based on a "mere possibility." Ibid.

In Scully, the fire chief was called upon to offer his opinion on the cause of a fire. Id. at 120. At his deposition, the chief testified he could "not pinpoint the exact cause of the fire, [but] he was able to eliminate several potential sources[.]" Ibid. When asked his opinion regarding the most probable cause of the fire, the fire chief stated "his best guess was that the fire started accidentally when a lit cigarette or match ignited loose debris in the storage area." Ibid.

The Court concluded the expert's opinion in response to the question regarding the most probable cause of the fire framed as his "best guess" was "inadmissible because it was founded on a mere possibility[.]" Id. at 128. The court cautioned that "[a] competent opinion addressing the cause of a fire must be framed in terms of probability or a reasonable degree of certainty." Ibid.

Here, Reed was able to trace the origin of the fire to Stephen's bedroom and actually pinpointed a site near the beanbag chair as the fire's starting place. Beyond that, any suggestion regarding the cause was speculation. While Reed noted certain indicia suggesting the source was not electrical, he also could not confidently rule out that the fire's cause was electrical. Also, as to human error, Reed said this possibility also could not be ruled out, but nothing supported such a conclusion. Reed never linked smoking to the fire's cause in his report or his trial testimony, likely because no traces of cigarettes, smoking materials, or candles were found and defendants presented testimony that Ashlyn had not been smoking in Stephen's room. Reed concluded that: "an ignition source could not be determined." In light of this record, the proposition that a discarded cigarette ignited the fire was no more than an unsupported theory.

We determine the trial court's preclusion of presenting Reed's conjecture, suggesting the fire erupted because of human error, possibly smoking, was not an abuse of discretion. Hisenaj, supra, 194 N.J. at 12. Rather, the determination was well-grounded in the evidence and will not be disturbed.

A

ffirmed.

1 Carol was named as a defendant in the complaint; however, on September 23, 2009 a stipulation of dismissal with prejudice was filed with the court, dismissing her from the litigation.

2 The reference is to N.J.R.E. 104(a) which allows a trial court to hold hearings outside the presence of the jury when making decisions regarding the admissibility of evidence. The Rule provides:

When the qualification of a person to be a witness, or the admissibility of evidence, . . . is in issue, that issue is to be determined by the judge. . . . The judge may hear and determine such matters out of the presence or hearing of the jury.