MATTHEW T. MASCARI v. BORDENTOWN REGIONAL HIGH SCHOOL
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0315-16T1
MATTHEW T. MASCARI,
Plaintiff-Appellant,
v.
BORDENTOWN REGIONAL HIGH
SCHOOL, BORDENTOWN REGIONAL
BOARD OF EDUCATION, and
BORDENTOWN REGIONAL SCHOOL
DISTRICT,
Defendants,
and
VIRCO and VIRCO MANUFACTURING
CORPORATION,1
Defendants-Respondents.
_______________________________________
Argued December 19, 2017 – Decided January 25, 2018
Before Judges Hoffman, Gilson and Mayer.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No.
L-1849-13.
Michael G. Donahue argued the cause for
appellant (Stark & Stark, PC, attorneys;
1
Properly known as Virco Mfg. Corporation.
Michael G. Donahue, of counsel and on the
briefs).
Gita F. Rothschild argued the cause for
respondent (McCarter & English, LLP,
attorneys; Gita F. Rothschild, of counsel and
on the brief; Ryan Richman, on the brief).
PER CURIAM
In this product liability action, plaintiff Matthew Mascari
asserts he sustained injuries because of an alleged defectively
designed folding rollaway cafeteria table manufactured by
defendant Virco Mfg. Corporation (Virco). Plaintiff now appeals
from the May 13, 2016 Law Division order granting Virco's summary
judgment motion, entered after the trial court barred plaintiff's
sole expert witness on the ground that he offered a net opinion.
For the following reasons, we vacate the order granting summary
judgment and remand for the trial court to hold a Rule 104 hearing
to address the admissibility of plaintiff's expert testimony.
I
We discern the following facts from the record. On April 28,
2010, plaintiff, then a fifteen-year-old student, injured his
finger during his lunch period at Bordentown High School.
Plaintiff alleges he was sitting at a lunch table and "fidgeting"
with the locking mechanism of the table, when another student
stood up and leaned on the end of the table. This caused the
table to start to fold-up, catching plaintiff's right index finger
2 A-0315-16T1
in the table's locking hinge mechanism. Plaintiff's injured finger
required surgery to repair lacerations of his flexor muscle and
extensor tendon.
According to Virco, the table locks and unlocks by way of a
gravity-fed locking bar (sometimes referred to as a "safety bar")
located several inches in from the edge of the table. The locking
bar runs underneath the width of the table; on each side of the
table, a locking hinge is located four-and-eleven-sixteenths
inches from the edge of the table.
Plaintiff retained Dr. Kevin Rider, a human factors
engineering expert, to evaluate the table and the accident, and
provide an expert opinion. On May 12, 2015, Dr. Rider issued his
report, which listed the information he relied on, described the
table and the accident, and discussed user expectancy and
manufacturer responsibility.
In the report, Dr. Rider concluded:
1. [Plaintiff's] actions were reasonable and
not a cause of the incident.
2. By manufacturing the incident table with
locking hinges in close proximity to the
intended users, [defendant] created an
unreasonably dangerous condition that was the
cause of [plaintiff's] incident.
3. [Defendant's] failure to design the
incident table with an inaccessible locking
mechanisms [sic] deprived users, such as
3 A-0315-16T1
[plaintiff], of the safety afforded by the
same.
4. Had [defendant] designed the incident table
with a locking hinge in the center of the
table, users would still be able to manipulate
the metal bar to unlock and stow the table,
without being unreasonably exposed to the
locking mechanism, and this incident would not
have occurred.
The report also stated:
The locking mechanisms of the incident table
are located in line with the frame support of
the table, near the center of each side of the
table. This location allows easy and
immediate access for a student's fingers to
manipulate the bar in the same location as the
locking hinge. The proximity of the locking
hinge to the edge of the table increases the
likelihood that a user's finger will be
inadvertently located within the hinge as the
table is moved from its open position.
Dr. Rider's report did not list the specific distance of the
locking hinge from the edge of the table.
During a March 2016 deposition, Dr. Rider stated he measured
the distance of the locking hinge from the edge of the table;
however, his former employer retained the notes containing that
measurement and he no longer had access to them. He could not
remember the measurement during the deposition. When asked what
would constitute a safe distance between the hinge and the edge
of the table, Dr. Rider stated, "[A]s figure [two] lays out the
dimensions for reaching hazards such as pinch points, it would lay
4 A-0315-16T1
out between [three-and-one-half] inches and five inches as an
acceptable distance to, for someone to not reach a pinch point
with their finger tip." When asked to clarify, Dr. Rider stated
a safe distance would be the "[ninety-fifth] percentile hand."
On May 3, 2016, Dr. Rider provided the court with a
certification in response to Virco's motion to bar him as an expert
witness. This certification listed the actual distance between
the locking mechanism and the edge of the table as four-and-three-
quarters inches. Dr. Rider then "confirmed that the [ninety-
fifth] percentile hand measurement referenced in [his] deposition
testimony would dictate a setback for the locking hinge of at
least five-and-one-half inches." He listed his source as a report
entitled "Comparative Anthropometry of the Hand." Defendant
contends this report lists the ninety-fifth percentile hand length
as 8.13 inches for men and 7.50 inches for women. Plaintiff
contends the trial judge misunderstood Dr. Rider's deposition
testimony stating a distance of three-and-one-half to five inches
referenced figure two, which depicts "the maximum allowable
openings with respect to the distance from the hazard . . . ."
Dr. Rider's certification failed to clarify the meaning of the
three-and-one-half to five inches measurement.
After the close of discovery, Virco filed a motion to bar the
testimony of plaintiff's expert and for summary judgment. The
5 A-0315-16T1
trial court barred Dr. Rider’s testimony, finding it constituted
a net opinion. The court reasoned that Dr. Rider, during his
deposition, employed a methodology that concluded a distance of
three-and-one-half to five inches between the hinge and the edge
of the table was safe; however, he then abandoned his methodology,
concluding the actual distance of four-and-three-quarters inches
was unsafe. The court applied the reasoning of Kumho Tire,2 a
federal case, in concluding Dr. Rider’s opinion constituted a net
opinion and therefore was inadmissible.
Plaintiff requested a Rule 104 hearing to prove the
admissibility of Dr. Rider’s opinion. However, the trial court
denied a separate hearing, reasoning the court afforded plaintiff
ample opportunity to present Dr. Rider's opinions, through both
his deposition and in his later written certification.
II
"The admission or exclusion of expert testimony is committed
to the sound discretion of the trial court." Townsend v. Pierre,
221 N.J. 36, 52 (2015) (citing State v. Berry,
140 N.J. 280, 293
(1995)). As such, we accord deference to the trial court's grant
of a motion to strike expert testimony, "reviewing it against an
2
Kumho Tire Co. v. Carmichael,
526 U.S. 137 (1999).
6 A-0315-16T1
abuse of discretion standard." Id. at 53 (quoting Pomerantz Paper
Corp. v. New Cmty. Corp.,
207 N.J. 344, 371-72, (2011)).
N.J.R.E. 702 and 703 frame the analysis for determining the
admissibility of expert testimony. N.J.R.E. 702 allows opinion
testimony from experts qualified in their fields. N.J.R.E. 703
addresses the foundation for expert testimony. Expert opinions
must "be grounded in 'facts or data derived from (1) the expert's
personal observations, or (2) evidence admitted at the trial, or
(3) data relied upon by the expert which is not necessarily
admissible in evidence but which is the type of data normally
relied upon by experts.'" Townsend,
221 N.J. at 53 (quoting Polzo
v. Cty. 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 (alteration in original) (quoting Polzo,
196 N.J. at 583). Therefore, courts require an expert 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 requires experts to "identify the factual bases for their
conclusions, explain their methodology, and demonstrate that both
the factual bases and the methodology are reliable." Id. at 55
7 A-0315-16T1
(quoting Landrigan v. Celotex Corp.,
127 N.J. 404, 417 (1992)).
In short, the net opinion rule prohibits "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. 1997)).
However, simply because the opinion may be subject to attack
on cross-examination for not including other meaningful
considerations, does not make it a net opinion. Rosenberg v.
Tavorath,
352 N.J. Super. 385, 402 (App. Div. 2002) (citing
Rubanick v. Witco Chem. Corp.,
242 N.J. Super. 36, 55 (App. Div.
1990)); see also Glowacki v. Underwood Mem'l Hosp.,
270 N.J. Super.
1, 16-17 (App. Div. 1994) (declining to strike an expert's
testimony as a net opinion as "[a]ny shortcoming in his method of
analysis was explored and it was for the jury to determine the
weight his opinion should receive.").
N.J.R.E. 104(a) provides a "judge may hear and determine"
matters relating to "the qualification of a person to be a witness,
or the admissibility of evidence" outside the presence of the
jury. The decision to conduct a Rule 104 hearing rests within the
sound discretion of the trial court. Kemp ex rel. Wright v. State,
174 N.J. 412, 432 (2002). However, when "the court's ruling on
admissibility may be dispositive of the merits, the sounder
practice is to afford the proponent of the expert's opinion an
opportunity to prove its admissibility at a Rule 104 hearing."
8 A-0315-16T
1 Id. at 432-33. "The Rule 104 hearing allows the court to assess
whether the expert's opinion is based on scientifically sound
reasoning or unsubstantiated personal beliefs . . . ." Id. at 427
(citing Landrigan,
127 N.J. at 414).
Here, plaintiff requested a Rule 104 hearing to decide the
admissibility of Dr. Rider’s opinion. The trial court denied a
hearing reasoning it gave Dr. Rider the opportunity to present his
case both during the deposition and in his later written
certification in response to defendant's motion to bar him as an
expert witness.
Plaintiff contends the distance of three-and-one-half to five
inches, which Dr. Rider referenced during his deposition, was not
the safe distance between the edge of the table and the hinge,
rather it was the safe distance from the gap between the tables
to the "pinch point." We concede Dr. Rider's deposition testimony
was not a model of clarity; however, a Rule 104 hearing would have
allowed plaintiff a fair opportunity to clarify any confusion so
the court could determine if the expert's testimony is "based on
scientifically sound reasoning or unsubstantiated personal
beliefs." Kemp,
174 N.J. at 427. The trial court should have
provided Dr. Rider the opportunity to explain himself and clarify
his deposition testimony during a Rule 104 hearing. A Rule 104
hearing was especially indicated here because barring plaintiff's
9 A-0315-16T1
expert would clearly result in the dismissal of plaintiff's case.
See Kemp,
174 N.J. at 432-33. Therefore, we remand for the trial
court to provide plaintiff the opportunity to prove Dr. Rider's
opinion meets the requirements of an expert witness, pursuant to
N.J.R.E. 702 and 703, at a Rule 104 hearing.
We further find the trial judge erroneously relied on F.R.E.
702 governing admissibility of expert testimony. While N.J.R.E.
702 tracks the original version of F.R.E. 702, it does not
incorporate the language added to the Federal Rule in 2000, which
codified the principles of Daubert v. Merrell Dow Pharms.,
509 U.S. 579 (1993) (outlining the federal requirements for scientific
expert testimony).
In January 2009, the New Jersey Supreme Court Committee on
the Rules of Evidence explicitly declined to amend N.J.R.E. 702
to follow the 2000 amendment to F.R.E. 702. 2007 – 2009 Report
of the Supreme Court Committee on the Rules of Evidence, p. 3.
The Committee reasoned that if the exact
language of F.R.E. 702 was adopted, since the
federal rule was intended to incorporate
Daubert, it would create the erroneous
impression that the Daubert standard governed
the admission of expert testimony in New
Jersey. Further, the Committee was concerned
that New Jersey judges would be too inclined
to be guided by the federal case law
interpreting F.R.E. 702 and Daubert. The
federal cases . . . are sometimes overly
restrictive in the admission of expert
testimony, tending to exclude evidence that,
10 A-0315-16T1
under current New Jersey law, would be
properly admitted as having a reliable basis.
[Ibid. (citing Edward K. Cheng & Albert H.
Yoon, Does Frye or Daubert Matter? A Study of
Scientific Admissibility Standards, 91 Va. L.
Rev. 471, 473 (2005)).]
Our Supreme Court recently granted certification in a case
where the Court is expected to address the Daubert standard. In
re Accutane Litig.,
451 N.J. Super. 153 (App. Div.), certif.
granted, ___ N.J. ___ (2017). However, we remain bound by the
Court's decision in Kemp until the Court provides further direction
on the matter. Here, the trial judge relied on Kumho Tire, a
federal case applying the Daubert analysis, to bar plaintiff's
expert report. The judge should have applied the Kemp standard
instead.
We therefore conclude the trial court misapplied its
discretion in barring Dr. Rider from testifying without first
conducting a Rule 104 hearing. Accordingly, we vacate the orders
entered barring Dr. Rider's testimony and dismissing plaintiff's
complaint on summary judgment, and remand the case to the trial
court for further proceedings consistent with this opinion. We
clarify that on remand, the Rule 104 hearing can explore all
legally recognized grounds for precluding Dr. Rider's opinion as
inadmissible. We do not retain jurisdiction.
Vacated and remanded.
11 A-0315-16T1
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
