DEBORAH RODRIGUEZ v. THOMAS PROSSER et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0203-05T10203-05T1

DEBORAH RODRIGUEZ, as Administratrix

Ad Prosequendum of ESTATE OF NELSON

RODRIGUEZ,

Plaintiff-Appellant,

v.

THOMAS PROSSER and SURF COLLECTION

AGENCY,

Defendants-Respondents.

________________________________________

 

Argued October 4, 2006 - Decided November 6, 2006

Before Judges Holston and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Monmouth County,

L-3686-01.

David P. Corrigan argued the cause for

appellant (Hobbie, Corrigan, Bertucio &

Tashjy, attorneys; Mr. Corrigan, of counsel

and on the brief).

James D. Carton, III argued the cause for

respondents (Carton Law Firm, attorneys;

Mr. Carton, on the brief).

PER CURIAM

Plaintiff Deborah Rodriguez, as administrator of the estate of Nelson Rodriguez, appeals from the denial of her motion for a new trial. Nelson was killed when his motorcycle and a car, driven by defendant Thomas Prosser and owned by defendant Surf Collection Agency, collided at the intersection of South Bath Avenue and Ocean Boulevard in Long Branch. The case was tried to a jury, which attributed fifty-one percent of the negligence to Nelson. Judgment was entered in favor of defendants.

Plaintiff moved for a new trial on several grounds, including a claim that the court erred by permitting the jury to consider the testimony of defendants' expert. She raises the same issue on appeal.

The pertinent evidence is as follows. On June 30, 2001, Nelson stopped the motorcycle he was riding at a traffic light on Ocean Boulevard in Long Branch. He was heading south. Christopher Kelly was a passenger in a car his sister was driving. They stopped at the same traffic light behind Nelson and another motorcyclist. Kelly noticed Nelson and the other driver; they were immediately in front of his sister's car and were first in line at the traffic light.

Prosser arrived at the intersection of South Bath Avenue and Ocean Boulevard, which is one block south of the intersection of Ocean Boulevard and North Bath Avenue. The South Bath Avenue intersection is controlled by a stop sign for drivers on that street. Prosser stopped at the sign and looked both ways. He saw traffic halted at the red light a block away and no vehicles moving on Ocean Boulevard. He proceeded through the intersection.

At the light, Kelly looked away from the motorcyclists for a moment. He heard the drivers rev their engines to a high-pitched whine and take off. He then heard a crash. Nelson's motorcycle had struck Prosser's car near the trunk panel on the driver's side. When Kelly looked up, he saw Nelson's motorcycle "flying in the air." At that point in time, his sister had just driven through the North Bath Avenue intersection and was continuing south on Ocean Boulevard toward its intersection with South Bath Avenue. Kelly estimated that his sister was driving at a speed of thirty to forty miles per hour and that the motorcycle had hit the car about 150 feet ahead of them.

Plaintiff and defendants presented expert testimony. Both experts considered a diagram of the accident scene, prepared by a police investigator, in developing their respective opinions on the speed at which Nelson was driving. Plaintiff's expert explained that the diagram depicted a 100-foot skid mark. He did not agree with that measurement, however. He explained that he visited the site and did his own calculations based on photographs of the skid mark taken at the time of the accident. He concluded that the mark was fifty to sixty feet in length. Defendants' expert relied on the skid mark depicted on the police diagram. The experts reached different conclusions about the speed of Nelson's motorcycle at the time of impact. In large part, the difference of opinion was a consequence of their differing views about the length of the skid mark.

The police diagram was not admitted into evidence. The court excluded the diagram because it was not authenticated and because the significance of the various markings on the document was not readily apparent.

Because the diagram was not admitted and because defendants' expert relied upon the length of the skid mark shown on that diagram, plaintiff argued that the defense expert's opinion was a net opinion. Judge Coogan rejected that argument.

Relying on N.J.R.E. 703, Judge Coogan determined that the factual support for defendants' expert opinion was adequate to permit its admission. He noted that the diagram was "part of the overall law enforcement investigation and response" and found that "[t]he fact that the document did not present sufficient indicia of reliability to allow its admissibility [did] not disallow its use" by the expert. Because the experts for both parties agreed that the diagram showed a 100-foot skid mark and plaintiff's expert explained why he rejected that measurement, the judge concluded that the factual issue went to the weight, not the admissibility of the opinion offered by defendants' expert. For that reason, he determined that it was a matter that should be addressed in the jury charge, not by exclusion of the opinion testimony.

Judge Coogan then instructed the jurors as follows:

The weight of an expert's opinion depends on the facts upon which the expert bases his opinion. You have to decide as jurors whether the facts relied upon by the expert actually exist. . . . You may give [expert opinion] whatever weight you deem . . . appropriate.

On appeal plaintiff argues that the judge erred when he denied the motion to strike the opinion of defendants' expert. We affirm substantially for the reasons stated by Judge Coogan on July 13, 2005, and add the following explanation.

"[T]he admission or exclusion of evidence is within the discretion of the trial court." State v. Torres, 183 N.J. 554, 567 (2005). "An expert's conclusion is considered to be a 'net opinion,' and thereby inadmissible, when it is a bare conclusion unsupported by factual evidence." Creanga v. Jardal, 185 N.J. 345, 360 (2005). N.J.R.E. 703 does not require every fact upon which an expert relies to be established by evidence admitted at trial. N.J.R.E. 703 provides:

The facts or data . . . upon which an expert bases an opinion or inference may be

those . . . made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field . . . , the facts or data need not be admissible in evidence.

In this case, both experts looked to the police diagram for information relevant to the formulation of an opinion on the speed of Nelson's motorcycle. They agreed that the police diagram reflected a 100-foot skid mark. Plaintiff's expert disagreed with the measurement and explained why, and plaintiff does not claim that experts in the field do not reasonably rely on such diagrams. See N.J.R.E. 703. The jury was instructed on the importance of considering the factual basis for the opinions given.

Plaintiff places unwarranted reliance on cases that recite the foundation for expert opinion required by former Evid.

R. 56(2), which has been replaced by N.J.R.E. 703. Evid.

R. 56(2) permitted expert opinion only when "'based primarily on facts, data or other expert opinion established at trial.'" Buckelew v. Grossbard, 87 N.J. 512, 524-25 (1981); see e.g., Nguyen v. Tama, 298 N.J. Super. 41, 49 (App. Div. 1997) (describing N.J.R.E. 703 as embodying former Evid. R. 56(2)(a)). While the fundamental purpose of the former and present rules is the same, the specific requirements governing the necessary foundation are not identical. As noted above, N.J.R.E. 703 permits expert opinion based on facts or data of a "type reasonably relied upon by experts in the particular field in forming" opinions on the subject. It does not limit admissible expert opinions to those "based 'primarily on facts, data or other expert opinion established at the trial.'" Buckelew, supra, 87 N.J. at 524-25 (quoting Evid. R. 56(2)(a)). Thus, there was no error in the admission of the defense expert's opinion and there is no basis for us to conclude that the ruling was capable of producing an unjust result or warranted the grant of a new trial. See R. 2:10-2.

Affirmed.

 

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A-0203-05T1

November 6, 2006