RICHARD GOLDRICK, SR v. NANCY A. CENTANNI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

RICHARD GOLDRICK, SR.,

Plaintiff-Appellant,

v.

NANCY A. CENTANNI,

Defendant-Respondent,

and

STATE FARM INSURANCE COMPANIES,

Defendants,

and

STATE FARM INDEMNITY COMPANY,

Defendant/Intervenor-

Respondent.

______________________________________________

July 23, 2015

Before Judges St. John and Rothstadt.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7759-10.

Andrew J. Calcagno argued the cause for appellant (Calcagno & Associates, attorneys; Mr. Calcagno, of counsel and on the briefs).

Peter DeSalvo, Jr., argued the cause for respondent Nancy A. Centanni (Soriano, Henkel, Biehl & Matthews, attorneys; Mr. DeSalvo, on the brief).

Carl Mazzie argued the cause for respondent State Farm Indemnity Company (Foster & Mazzie, LLC, attorneys; Jennifer L. Sanyshyn, of counsel and on the brief).

PER CURIAM

In this personal injury suit arising from a roadside altercation, plaintiff Richard Goldrick, Sr., appeals from the trial court's granting of defendant Nancy A. Centanni's motion to strike plaintiff's medical expert's testimony as a net opinion. Having reviewed the arguments advanced in light of the record and governing law, we affirm.

I.

The trial record discloses the following facts and procedural history. On May 23, 2009, plaintiff and defendant were involved in an altercation on the street where they both reside in Nutley. Plaintiff testified that upon pulling out of his driveway and making a left turn onto the street, he heard a car horn. He alighted his vehicle to see what happened and stated he observed defendant shouting obscenities, accusing him of cutting her off. Plaintiff testified defendant then moved her car forward, hitting his right knee with her front bumper and running over his left foot. After plaintiff screamed, defendant moved forward off of plaintiff's foot, at which point he fell to the ground. Defendant's son exited defendant's vehicle and helped plaintiff back to his car. Police arrived at the scene shortly thereafter.

In her trial testimony, defendant challenged plaintiff's version of events. She testified that, as she was driving down the street, plaintiff cut her off before stopping abruptly next to her vehicle. Although defendant admitted making an inappropriate gesture at plaintiff, she denied ever touching him with any part of her car. Rather, she maintained, defendant approached her bumper and then inexplicably fell to the ground after they exchanged words.

That same day, plaintiff went to the hospital and had an x-ray taken of his left foot before being released. Approximately a week later, plaintiff returned to the hospital complaining of knee pain, which prevented him from walking. His treating physician ordered x-rays and referred plaintiff to an orthopedist, Dr. Kent Lerner. Lerner recommended an MRI, which revealed a torn meniscus in plaintiff's right knee. Plaintiff underwent arthroscopic surgery to repair the knee in September 2009 and began physical therapy thereafter. A subsequent re-tearing of the same meniscus required a second surgery, after which, Lerner stated, plaintiff's condition began to improve. However, at a follow-up visit roughly six months later, plaintiff again complained of pain in his right knee.

Plaintiff filed suit against defendant, alleging her failure to exercise the proper care in operating her vehicle caused plaintiff permanent injury.1 The trial took place over two days in January 2014. Lerner, plaintiff's medical expert, testified to obtaining plaintiff's medical history at their first consultation a week after the incident. According to Lerner, plaintiff informed him "he had gotten out of his car and there were apparently some words exchanged. And the car drove off and went over his left foot, and in the process he injured his right knee." Lerner testified plaintiff's injury was consistent with the provided medical history. Lerner stated he was able to form an opinion "within a reasonable degree of medical probability" as to how plaintiff injured his knee

Knowing that the meniscal tears occur with forced flexion, the knee bends and it rotates, and that a car apparently went over his foot. In some way, his knee was forced into flexion and rotation, maybe trying to avoid this or get out of the way and that's what my opinion is that caused the injuries to his knee.

Lerner further testified that any residual pain plaintiff experienced was a result of the accident.

However, on cross-examination, Lerner admitted plaintiff never told him that his right knee was struck by a motor vehicle or that plaintiff in any way twisted the knee. He acknowledged no x-ray was taken of the knee during plaintiff's initial hospital visit the day of the incident. Moreover, Lerner stated he never reviewed plaintiff's emergency room records from that day to ascertain whether plaintiff complained of any knee pain. Nevertheless, Lerner testified plaintiff suffered permanent injury, likely requiring a knee replacement, with increasing pain as plaintiff ages.

At the conclusion of Lerner's testimony, defendant moved to strike his testimony as a net opinion. The trial court granted the motion, stating

I'm going to rule and I'm going to grant defendant's motion because there is absolutely no factual basis for the expert['s] opinion about what caused this injury.

The history given by [] plaintiff to the doctor, according to the doctor, was there was an interaction . . . between the two cars, no contact. [Plaintiff] got out of his vehicle, approached [] defendant's vehicle, there were some words exchanged and according to the doctor's testimony, he was told by [plaintiff] that the car drove off and ran over his foot[] . . . [and] "hurt" [plaintiff]'s right knee. There was never any explanation past that.

. . . The doctor never said any explanation was given to him with regard to any facts as to how the knee was hurt.

. . . We have a doctor who saw [] plaintiff sometime after [the incident] for an injury that [] plaintiff did not immediately complain to his doctor about.

. . . [W]hen asked about this injury, when phrased as sort of a general, did this accident cause this injury, the doctor answers, yes. It's a net opinion unless he can explain how it caused the injury. And how it caused the injury requires a factual basis. And the doctor was actually candid, he admitted he was never told that . . . [plaintiff] twisted his knee; that's for [plaintiff] to say or some other witness to say. That's a factual issue, not a medical issue. And unless there was some factual basis for, oh, he twisted his [knee] and that's how he hurt it, well that's just the doctor's net opinion. And there is no factual basis for that.

Since plaintiff presented no other testimony with respect to the issue of permanent injury, defendant then moved to dismiss the complaint based upon the failure to meet the verbal threshold established by the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35.2 The trial court granted the motion, and subsequently entered an order for judgment in favor of defendant.

On appeal, plaintiff argues the trial court erred in striking Lerner's opinion testimony because there was sufficient evidence the car accident caused the injury to plaintiff's knee.3

II.

"The admission or exclusion of expert testimony is committed to the sound discretion of the trial court." Townsend, supra, 221 N.J. at 52. As such, we accord deference to the trial court's grant of a motion to strike expert testimony, "'reviewing it against an abuse of discretion standard.'" Id. at 52-53 (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371-72 (2011)).

Our analysis is framed by N.J.R.E. 702 and N.J.R.E. 703. The former establishes when expert testimony is permissible and requires the expert be qualified in his or her respective field. The latter mandates that any expert opinion "be grounded in 'facts or data derived from (1) the expert's personal observations, [] (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible . . . but which is the type of data normally relied upon by experts.'" Townsend, supra, 221 N.J. at 53 (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)). "The net opinion rule is a 'corollary of [N.J.R.E. 703] . . . which forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data.'" Id. at 53-54 (alterations in original) (quoting Polzo, supra, 196 N.J. at 583).

Therefore, an expert is required to "'give the why and wherefore' that supports the opinion, 'rather than a mere conclusion.'" Id. at 54 (quoting Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013)). The net opinion rule directs that experts "be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both . . . are reliable.'" Id. at 55 (citation and internal quotation marks omitted). In short, the net opinion rule is "'a prohibition against speculative testimony.'" Harte v. Hand, 433 N.J. Super. 457, 465 (App. Div. 2013) (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div.), certif. denied, 154 N.J. 607 (1997)).

Applying these principles, the trial court did not err in finding Lerner's proposed opinions were improperly based on assumptions without sufficient factual support. Lerner testified "within a reasonable degree of medical probability" the injury to plaintiff's knee was caused by defendant's car. However, Lerner rendered that opinion without ever having reviewed the records from plaintiff's initial hospital visit on the day of the incident. Moreover, Lerner admitted plaintiff never informed him defendant's car allegedly struck plaintiff's knee, or that plaintiff in any way twisted the knee. In short, Lerner's opinion was "'based merely on unfounded speculation and unquantified possibilities.'" Townsend, supra, 221 N.J. at 55 (quoting Grzanka, supra, 301 N.J. Super. at 580). It was therefore correctly excluded as a net opinion.

Affirmed.

1 Plaintiff also asserted a personal injury protection (PIP) claim against State Farm Insurance Companies, which was later voluntarily dismissed in favor of arbitration. Thereafter, State Farm Indemnity Company successfully intervened in contemplation of a possible uninsured/under-insured motorist (UM/UIM) claim.

2 See N.J.S.A. 39:6A-8(a) (requiring plaintiffs in automobile negligence cases to provide objective and persuasive proof they suffered "a permanent injury within a reasonable degree of medical probability").

3 Plaintiff does not challenge the trial court's subsequent dismissal of the complaint for failure to satisfy AICRA's verbal threshold. We therefore limit our discussion to the striking of Lerner's testimony. We add only that, in ruling on the questions of the admissibility of Lerner's testimony and plaintiff's failure to meet the verbal threshold independently of one another, the trial court employed the proper two-step analysis as set forth by the Court in Townsend v. Pierre, 221 N.J. 36, 53 (2015) ("When . . . a trial court is 'confronted with an evidence determination precedent to ruling on a summary judgment motion,' it 'squarely must address the evidence decision first.'" (quoting Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384-85 (2010))).