Opinion
DOCKET NO. A-2438-11T1
10-19-2012
JODY VERDI and PAUL VERDI, Plaintiffs-Appellants, v. BOROUGH OF HOPATCONG and HOPATCONG BOARD OF EDUCATION, Defendants-Respondents.
Steven B. Stein argued the cause for appellants (Stein & Stein, attorneys; Mr. Stein, on the brief). Michael A. Augello, Jr., argued the cause for respondent Borough of Hopatcong (Dorsey & Semrau, attorneys; Fred Semrau, of counsel; Mr. Augello, on the brief). James M. McCreedy argued the cause for respondent Hopatcong Board of Education (Wiley Malehorn Sirota & Raynes, attorneys; Mr. McCreedy, of counsel and on the brief; Erica M. Clifford, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Sabatino and Fasciale.
On appeal from the Superior Court of New Jersey, Law Division, Sussex County, Docket No. L-253-10.
Steven B. Stein argued the cause for appellants (Stein & Stein, attorneys; Mr. Stein, on the brief).
Michael A. Augello, Jr., argued the cause for respondent Borough of Hopatcong (Dorsey & Semrau, attorneys; Fred Semrau, of counsel; Mr. Augello, on the brief).
James M. McCreedy argued the cause for respondent Hopatcong Board of Education (Wiley Malehorn Sirota & Raynes, attorneys; Mr. McCreedy, of counsel and on the brief; Erica M. Clifford, on the brief). PER CURIAM
This case, brought against two public entities under the Torts Claims Act ("TCA"), N.J.S.A. 59:1-1 to 12-3, arises out of a slip and fall that took place at an entrance to a municipal administration building. Plaintiffs, Jody Verdi and Paul Verdi, filed suit in the Law Division against defendants, the Hopatcong Board of Education ("the Board"), which owns the building, and the Borough of Hopatcong ("the Borough"). Plaintiff fell and was injured as she stepped up onto a landing when entering the building. She contends that the landing was in an unsafe condition that caused her to fall, and she obtained a report from a liability expert to support that contention. She fractured her upper arm and also sustained a rotator cuff injury, eventually undergoing surgery after her shoulder did not heal completely.
When we refer to plaintiff in the singular, we mean Ms. Verdi. Her husband, Mr. Verdi, the co-plaintiff, has brought only per quod claims.
Following discovery, defendants moved on various grounds for summary judgment. Among other things, they argued that plaintiff had failed to establish a permanent injury arising from her fall and thus was barred by N.J.S.A. 59:9-2(d) from recovering non-economic damages. Defendants also moved to bar plaintiffs' liability expert from testifying, contending that his views comprise inadmissible net opinion.
The trial court granted defendants' motions, resulting in the dismissal of the complaint and the preclusion of the liability expert. Plaintiffs now appeal. For the reasons stated that follow, we reverse the entry of summary judgment and remand for a trial on the contested permanency issues under N.J.S.A. 59:9-2(d). We also remand the question of the admissibility of the liability expert's testimony for further consideration by the trial court, including the issuance of a statement of reasons as required by Rule 1:7-4.
I.
Viewed in a light most favorable to plaintiffs as the non-moving parties, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), the record contains these pertinent facts.
On March 26, 2008, plaintiff was planning to attend a school board meeting at the Hopatcong administration building. The meeting was scheduled for 7:00 p.m., and she left her home at roughly 7:15 p.m. She left her car at the building's parking lot and approached the front entrance.
The building is uphill from the parking lot. Plaintiff followed a walkway from the parking lot and went up a flight of stairs as she approached the door. The stairs are not immediately in front of the door but rather are part of the walkway leading to it. Directly in front of the door is a landing, which is raised up about four inches above the walkway.
The difference between the flight of stairs and the landing becomes relevant to the consideration of plaintiffs' liability expert report. In particular, it should be noted that plaintiff fell on the landing, not on the flight of stairs.
As plaintiff was stepping up onto the landing and reaching for the door, she fell down, face forward. She did not brace herself because she said she did not realize that she was falling. According to her deposition testimony, she struck her head on the door and then her "whole body hit the ground."
At first, plaintiff thought she had broken her leg. No one witnessed her fall. Plaintiff said she could not use her cell phone to call for help because her right arm had been injured.
Emil Binotto, the high school principal, was among the people who came outside when they heard plaintiff shouting. According to Binotto's deposition testimony, it "wasn't very late" at the time, and he "didn't have a problem seeing." He stated in his deposition that "there was a light outside of the doorway" in the alcove where plaintiff fell, and that the light was on.
The National Oceanic & Atmospheric Administration website, a portion of which is reproduced in the Board's appendix, reflects that sunset was at 7:18 p.m. in Hopatcong that night.
Plaintiff acknowledged at her deposition that she was familiar with the building and its entrance, having worked there for the Board from September 2003 through June 2005. Plaintiff stated that she had "probably" been through the doorway in question more than a hundred times before her fall. She explained that "there is a dark rug [on the landing] and truthfully when you do come up to this step if you are not aware that it is there you would be unaware that it is there."
The Board owns the building. It was erected in or around 1970. According to Binotto, the Board, not the Borough, is responsible for maintaining the building. Another local official, William O'Connor, similarly testified at his deposition that no Borough employees perform maintenance on the building, although the Borough's fire marshal does make inspections there.
Although the record is sparse on this point, there is no dispute about the building's approximate age.
There was no ruling by the trial court on whether the Borough was entitled to summary judgment on the basis of lack of ownership or a duty to maintain the premises.
Plaintiff was admitted to Saint Clare's Hospital in Dover on the day after her fall. Her admission record to the hospital reflects that her admitting diagnosis was a "commimuted [sic] right humerus." On March 29, 2008, an orthopedist affiliated with the hospital, Steven Stecker, M.D., issued a report regarding plaintiff's medical condition. The report indicated that plaintiff had a right segmental humeral shaft fracture with minimal comminution. Dr. Stecker's plan for treatment was to provide surgical stabilization by way of an "IM rod vs. open reduction internal fixation."
A segmental fracture is a fracture in two places on the same bone. Stedman's Medical Dictionary 712 (27th ed. 2000). The humeral shaft is the main body of the humerus. Id. at 1626-27.
"IM" is short for "intramuscular." Stedman's, supra, at 876. "Reduction" is the repositioning of a body part to its normal anatomic location. Id. at 1535. "Internal fixation" is the use of screws, pins, rods, surgical wires, or plates directly on the bone to bind broken bones together. Id. at 682.
A few days later, on April 1, Dr. Stecker noted that plaintiff had been placed in a coaptations splint in the operating room, and that the wound was "well aligned," but that she had swelling in her right hand. An x-ray confirmed the fracture to be well-aligned and that there was no interval change from the initial splinting. Dr. Stecker also noted that plaintiff had previously suffered a fracture of her right wrist.
"Coaptation" is the joining or fitting together of two surfaces, particularly the ends of a broken bone. Stedman's, supra, at 371.
"Interval" in this context refers to the space between two body parts. Stedman's, supra, at 914.
In a follow-up report dated July 9, 2008, Dr. Stecker noted that plaintiff had no new complaints and that she was undergoing physical therapy. He observed that her fracture was "moving as a unit" and that she had almost full range of motion of the elbow. However, plaintiff still had some digital swelling and she had difficulty bringing her hand up to her mouth. Moreover, Dr. Stecker observed that plaintiff's shoulder range of motion was actively limited.
On October 15, 2008, Dr. Stecker reported that plaintiff was improving, but that she was complaining of cervical pain, numbness, and pain in her left hand. He also observed that she could actively forward flex her right shoulder to only about ninety degrees, and that her passive range of motion for forward flexion was limited to 165 degrees and forty degrees of abduction. In addition, Dr. Stecker found that plaintiff had a positive Tinel's sign and a Phalen's maneuver, indicating the presence of carpal tunnel syndrome in her left upper extremity. He recommended continued physical therapy to address the range of motion problems, and a night splint for her carpal tunnel syndrome.
Abduction is movement away from the median plane of the body. Stedman's, supra, at 2. The median plane of the body is the vertical plane that divides the body into right and left halves. Id. at 1391.
A "Tinel's sign" is a tingling sensation at a lesion site or distally along the course of a nerve. Stedman's, supra, at 1640. A Phalen's maneuver is a type of flexion of the wrist, which, if accompanied by a certain sensation within sixty seconds, is an indicator of carpal tunnel syndrome. Id. at 1061.
About ten months after plaintiff's fall, Dr. Stecker stated in a February 4, 2009 report that she was about seventy percent improved. There was no tenderness near the fracture, and she could actively forward flex to approximately 130 degrees. Her passive range of motion extended to about 160 degrees. However, Dr. Stecker noted that plaintiff still had "significant weakness of the arm and shoulder musculature." Dr. Stecker's plan was to have plaintiff continue physical therapy and reevaluate her in six weeks, and if she was "significant for endurance" he would send her for an MRI of the shoulder for evaluation of "her rotator cuff tear."
The shoulder MRI was subsequently performed in May 2009. It revealed "a small tear of the supraspinatus tendon[,] which appear[ed] to be a complete full-thickness tear." The MRI study also noted, "[p]resumed old fracture greater tuberosity [sic]." The MRI findings, coupled with plaintiff's continued inability to achieve a full recovery, prompted Dr. Stecker to operate on the shoulder.
"Supraspinatus" is a muscle of the shoulder joint, the tendon of which forms part of the rotator cuff. Stedman's, supra, at 1157.
"Tuberosity" is a rounded elevation, particularly on the surface of a bone. Stedman's, supra, at 1891.
Consequently, on July 14, 2009, plaintiff underwent surgery for her right rotator cuff tear, which was performed by Dr. Stecker. Dr. Stecker's operative report stated that the rotator cuff appeared to have hemorrhaged and that it was scarified. There were no operative complications. Plaintiff was temporarily placed in a sling after the surgery.
On September 9, 2009, about two months after the surgery, a physical therapist assessed plaintiff. The therapist's report stated that plaintiff was in "a lot" of pain that day. The therapist noted that plaintiff said she had mopped a floor and cleaned a closet the day before with no pain at that time, but on the next day at the assessment she was "really sore." The therapist further indicated that plaintiff was experiencing weakness in performing activities at shoulder height or above.
A second report by the same physical therapist nine days later similarly noted that plaintiff was continuing to have weakness with activities at shoulder height or above, although she felt no pain unless she tried to lift her arm and use it.
Several months later, a March 28, 2011 "shoulder function questionair[r]e," which was based on a series of questions about the ease of performing specific tasks, rated plaintiff's shoulder functionality at sixty-eight percent.
At her deposition in the fall of 2010, plaintiff described the impact of these arm movement limitations upon her regular activities. She stated that it has been more difficult for her to do house cleaning, vacuuming, and bathing, and that she cannot do laundry. She can walk her dog with her left hand, but not with her right. She can drive, but not for long distances. She goes grocery shopping, but not for large bulk items, and uses her left hand for bags that are filled. She stated that she can lift five pounds at most, and that she cannot always lift even that weight with her arm extended. Plaintiff also testified that her injury has diminished her physical relationship with her husband.
The record does not indicate the exact date of the deposition.
Plaintiff denied any subsequent accidents after her March 2008 fall. She testified that for a period of time after her injury, her sister would check in on her "one or two days a week" to see how she was doing. In addition, plaintiffs' son came to live with them for a year, and he has assisted them in various unspecified ways.
In his interrogatory answers, Paul Verdi confirmed that his wife was continuing to have physical limitations from the accident. He stated that cooking and cleaning took twice as long for her to do and that sometimes she could not do these activities at all. He noted that entertaining at home was physically draining for plaintiff, and that their physical relations had been adversely affected. He further noted that they "stayed home a lot" and that, when they did go out to a restaurant, he had to cut food for his wife.
Plaintiff has not sought work since March 2008. As of the time of her deposition, she was receiving monthly Social Security disability payments. The Notice of Award from the Social Security Administration ("SSA") contained in the record indicates that the SSA deemed plaintiff disabled as of March 26, 2008, i.e., the date of the subject accident, but it does not specify the reasons for that conclusion.
In a March 8, 2010 narrative report summarizing his findings and his overall treatment of plaintiff, Dr. Stecker explained that plaintiff's post-accident physical therapy had insufficiently progressed, which led to the MRI revealing her rotator cuff tear. Dr. Stecker opined that the rotator cuff tear was "likely sustained" at the time of her fall. Although Dr. Stecker acknowledged that plaintiff "continues to improve at every visit," he qualified that assessment by also noting that she "still complains of weakness and pain."
On the whole, Dr. Stecker estimated in his narrative report that plaintiff had improved about sixty-five percent since her rotator cuff surgery. He noted that, as of January 2010, her active shoulder flexion was about 140 degrees, and her active abduction was one-hundred degrees. Plaintiff's main concerns and complaints were her continued pain and her inability to handle objects and lift overhead for prolonged periods of time. Dr. Stecker commented that "[c]learly her fracture has healed but has hindered the use of the right upper extremity." He also noted that plaintiff's ability to perform her former job working in a doctor's office would be limited with regard to any overhead activity, lifting, or the continued use of her right arm.
Based upon these observations, Dr. Stecker concluded in his narrative summary, within a reasonable degree of medical probability, that plaintiff has "sustained a permanent injury to the right upper extremity." He acknowledged that it was difficult to gauge the extent of that permanency because plaintiff was still recovering from her surgery that had taken place eight months earlier.
Joseph W. Dryer, M.D., who is also an orthopedist, examined plaintiff as a defense medical expert for the Board on March 3, 2011. Based on that examination and his review of her medical records, Dr. Dryer agreed with Dr. Stecker that plaintiff's right humerus had been fractured as a result of her fall. Dr. Dryer also agreed that she had developed a right rotator cuff tear from the incident. According to Dr. Dryer, plaintiff had been given appropriate treatment with "excellent results." He opined that "[m]aximum medical improvement" had been reached, with what he characterized as only "mild functional limitation." Upon having the opportunity to review the pertinent radiologic studies, Dr. Dryer's opinions remained unchanged.
After other discovery was exchanged, defendants moved for summary judgment. As part of their arguments, defendants contended that plaintiff had failed to establish a triable issue that she had sustained a "permanent" injury, as is required to recover pain and suffering damages from a public entity under the TCA. See N.J.S.A. 59:9-2(d). Defendants also moved to bar the testimony of plaintiffs' liability expert, H. Dale Wilson, a certified industrial hygienist, arguing that his findings that the area where plaintiff fell was in an unsafe condition were inadmissible net opinion.
Following oral argument, the motion judge granted defendants summary judgment, agreeing in a written opinion with defendants that plaintiff failed to establish that she sustained in this accident a permanent injury within the meaning of N.J.S.A. 59:9-2(d). The judge also ordered that Wilson's liability expert report be stricken as net opinion, although the judge gave no reasons for that separate determination.
Plaintiffs now appeal the judge's rulings on the permanency issue and the net opinion issue. We address them in turn.
II.
We first consider the entry of summary judgment based on N.J.S.A. 59:9-2(d). In doing so, we review the grant of summary judgment de novo, applying the same standard governing the trial court under Rule 4:46-2. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). Generally, the court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill, supra, 142 N.J. at 540; R. 4:46-2(c).
The general rule of liability for public entities under the TCA is that they are immune from suit unless a specific statutory provision provides otherwise. Polzo v. Cnty. of Essex, 209 N.J. 51, 65 (2012). The present action was brought under the TCA, and, in particular, the TCA's provisions imposing liability for injuries caused by the dangerous condition of public property where the failure to guard against it was palpably unreasonable. See N.J.S.A. 59:4-2.
Although defendants have additionally argued on appeal that summary judgment is warranted because they did not engage in "palpably unreasonable" conduct with respect to the condition of the landing, the motion judge did not address that issue, and we decline to reach it for the first time on appeal. See Ins. Co. of N. Am. v. Gov't Emps. Ins. Co., 162 N.J. Super. 528, 537 (App. Div. 1978). Moreover, the resolution of that liability issue may hinge upon the admissibility of the expert's opinion, which we are directing the trial court to reexamine on remand.
The TCA also contains a provision, N.J.S.A. 59:9-2(d), which is at the heart of this appeal, limiting the recovery of non-economic damages from public entity defendants. It reads:
No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $ 3,600.00.
[N.J.S.A. 59:9-2(d).]
To meet this threshold requirement of N.J.S.A. 59:9-2(d), a permanent loss of bodily function must be substantial. Brooks v. Odom, 150 N.J. 395, 406 (1997). Therefore, the statute mandates three basic requirements before a plaintiff can obtain pain and suffering damages from a public entity: (1) an objective permanent injury, (2) a permanent loss of a bodily function that is substantial, and (3) medical treatment expenses exceeding $3600. See Kahrar v. Borough of Wallington, 171 N.J. 3, 12 (2002).
There appears to be no dispute that plaintiff's medical expenses exceed the $3600 requirement.
The motion judge concluded that plaintiff has made a sufficient recovery from the accident and her surgery to be unable to vault the permanency threshold of N.J.S.A. 59:9-2(d). The judge also expressed doubts about plaintiff's ability to prove that her residual limitations and pain were caused by this accident. However, viewing the record, as we must, in a light most favorable to plaintiff, we conclude that there are genuine issues of material fact on permanency and causation that plaintiff is entitled to present to a jury.
Other TCA cases involving a plaintiff's alleged failure to recover fully from an accident, even after surgical intervention, provide useful guidance. For example, in Gerber ex rel. Gerber v. Springfield Board of Educ, 328 N.J. Super. 24 (App. Div. 2000), a girl had been attacked by one of her classmates, leaving her with multiple fractures in her nose and difficulty breathing. Id. at 31. She underwent surgery, but it did not resolve her breathing problems. Id. at 31-32. Her treating doctor suggested more surgery, but noted that "there was no possibility of obtaining a completely normal airway," and in time her problem would most likely become worse. Id. at 32. We concluded that such a condition sufficed as a permanent injury under N.J.S.A. 59:9-2. Id. at 36.
Similarly, the Supreme Court held in Kahrar, supra, that the plaintiff's shoulder injury satisfied the statutory requirement. 171 N.J. at 15. In that case, the plaintiff was injured when her right foot entered an uncovered hole in the middle of a street outside a market, causing her to fall. Id. at 5. Her injuries did not seem severe at first, and it was not until the next day that she went to the hospital, where an X-ray revealed a broken elbow and right ankle. Id. at 6. One month later, an MRI revealed a massive rotator cuff tear and surgery was performed the following month to repair it. Ibid. Her recovery went well at first, but eventually came to a plateau. Id. at 7. Her doctor observed that she could rotate that shoulder only twenty-five degrees, and could lift it only 120 degrees as compared to 170 degrees on the other arm. Ibid. Her external rotation with the arm abducted (described as "moving the arm horizontally with the elbow at the side, extending the hand sideways") was forty-five degrees on her left side, but eighty degrees on her right. Ibid. The defendant's expert in Kahrar similarly found that the plaintiff had "only 90 degrees of abduction, 100 degrees of forward flexion as compared to 180 degrees of abduction and forward flexion of the opposite shoulder." Id. at 7-8. He further found that she had forty-five degrees of external rotation of the left shoulder but ninety degrees on the right. Id. at 8.
The plaintiff in Kahrar eventually returned to work, but missed roughly one hundred days. Ibid. She required help from her husband in doing household tasks, and it took her longer to perform her normal duties at her job as a secretary. Ibid. She was left-hand dominant, and compensating with her right hand led to swelling in her right shoulder. Ibid.
Given those circumstances, the Court concluded in Kahrar that plaintiff had suffered a permanent injury. Id. at 16. The Court noted that "despite the successful surgery," the plaintiff's ability to use her arm was "significantly impaired because [the] plaintiff [had] lost approximately forty percent of the normal range of motion." Id. at 16. The Court further noted that "dicta in Brooks should not be understood to suggest that plaintiffs with permanent and substantial impairments who, nevertheless, can manage to perform adequately routine tasks at work and at home are barred from recovery." Id. at 15.
Plaintiff's persisting arm injury in this case is sufficiently comparable to the arm injury in Kahrar to be presented to a jury. Considering the objective opinions of plaintiff's treating orthopedist and surgeon, Dr. Stecker, and the sworn factual assertions of plaintiff and her husband, a jury reasonably could conclude that plaintiff has sustained a permanent and substantial injury from her fall. She continues to have restrictions on her range of motion and lifting strength. She has difficulty with many routine household tasks, some of which she cannot perform at all. She and her husband also assert that their sexual relations have been curtailed. Unlike in Brooks, where the plaintiff found certain post-accident tasks to be merely difficult, plaintiff here identifies tasks that she cannot even do. Supra, 150 N.J. at 400.
Additionally, although there is some evidence that plaintiff had a subsequent fall which may have injured her shoulder, both plaintiff's treating doctor and the Board's own medical expert concluded that the rotator cuff tear was from the initial fall that is the focus of the present action. The motion judge erroneously resolved this factual question in favor of defendants without affording plaintiffs the opportunity to present these genuine issues of causation to a jury.
We also noted that the motion judge gave no weight to the SSA's finding that plaintiff has been permanently disabled as a result of her fall, because it did not constitute "objective evidence" of the permanence of her injury. Although the SSA's findings of disability are not dispositive in this case, they provide some indicia that plaintiff has sustained a permanent and significant injury. See Golian v. Golian, 344 N.J. Super. 337, 342-43 (App. Div. 2001) (holding that an SSA finding of disability "constitutes a prima facie showing that plaintiff is disabled"). Although Golian involved a matrimonial proceeding and not a tort action, its reasoning logically extends to a civil action as well. That said, we reserve for the trial court the question of whether the SSA's findings are admissible at trial without additional supporting documentation showing the basis for the SSA's determination, as well as what limiting instruction for the jury would be appropriate if such proof is ultimately admitted.
We also point out, as defense counsel conceded at oral argument before us, that the most that defendants can gain from a successful invocation of N.J.S.A. 59:9-2(d) is the dismissal of plaintiff's claims for pain and suffering. Plaintiffs have retained two economic experts who have quantified the lost earnings and loss of household services resulting from her injury. Those claimed economic damages are unaffected by N.J.S.A. 59:9-2(d). E.g., Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 334 (App. Div. 2000).
For these reasons, we reverse the entry of summary judgment in favor of defendants and remand for further proceedings, without prejudice to whatever separate grounds for relief that may be pursued at or before trial.
III.
We now turn to the net opinion issue. Wilson, plaintiffs' liability expert, authored a report on how the condition of the landing may have contributed to plaintiff's fall. Wilson's report described the alleged circumstances of plaintiff's fall. The report stated that one is required to go up a single step before entering through the doorway into the building in question. The report further noted that the dimensions of the step are 3.8 inches high, 91.5 to 91.75 inches wide, and is of variable depth from 52 inches on the east side (the left side, facing the door) to 53 inches on the west side. The report observed that the top surface of the step is partially covered with a rubber-backed rug.
In his expert opinion, Wilson concluded that the non-uniform depth of the stair was a "non-conforming condition that may reasonably be expected to contribute to a fall." He wrote that the 2006 International Building Code ("IBC") requires dimensional uniformity in size and shape with a tolerance of no greater than .375 inches. He pointed out that the difference in depth of one inch exceeded such tolerance.
Wilson also noted that the IBC and the 1998 International Code Council and American National Standard require stair riser heights to be between four inches and seven inches. He stated that the measured height of 3.8 inches was not within this range. He also stated that a minimum riser height is specified so that "the different heights are readily observable by a person in motion."
Wilson also noted that the unattached, red area rug with a one-inch black border created a tripping hazard on the stair. He stated that the IBC requires stairway treads and landings to have a solid surface and that all carpet must be securely attached to a surface. He further noted that the sidewalk in front of the step and the step itself are both cement and off-white in color. He concluded that the "low" height of the step, the similar colors of the walkway and step, and the dark edging of the rug created a hazard because "this combination of factors can visually obscure the leading edge of the step." He suggested that the leading edge's visibility would be increased if it were painted with a "high-visibility yellow paint . . . ."
Defendants moved to bar Wilson's expert testimony on these matters, arguing that it would be inadmissible net opinion. See generally Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344 (2011). "[A] court must ensure that the proffered expert does not offer a mere net opinion." Id. at 372. A net opinion is "an expert's bare opinion that has no support in factual evidence or similar data . . . ." Ibid. An expert witness's opinions that are not supported by the factual record and an explanatory analysis from the expert may be excluded as a net opinion. See Creanga v. Jardal, 185 N.J. 345, 360 (2005); see also Greenberg v. Pryszlak, 42 6 N.J. Super. 591, 607 (App. Div. 2012). In general, an expert should provide the "why and wherefore" supporting his or her analysis. Pomerantz, supra, 207 N.J. at 372; Beadling v. William Bowman Assocs., 355 N.J. Super. 70, 87 (App. Div. 2002).
Although the motion judge evidently agreed with defendants that the Wilson expert report comprised a net opinion, the judge presented no analysis or reasons for that determination. At most, the judge's written decision granting summary judgment on the pain and suffering damages only made the following recitation of facts that obliquely implicates the net opinion issue on liability:
The entrance landing at issue in this matter was constructed, along with the rest of the building, on or before 1970. The entrance landing measures four inches in height and was covered by a dark burgundy textured mat with beveled edges. As its construction pre-dates the effective date of the New Jersey State Uniform [Construction] Code, the International Building Code, and the BOCA National Building Code, the entrance landing is not required to comply with these standards.However, the judge's written decision, perhaps inadvertently, did not otherwise address Wilson's analysis, and there was no oral bench ruling addressing this subject.
Given these circumstances, we remand this issue to the trial court for further consideration of the net opinion issue and to generate a statement of reasons for that decision. Pursuant to Rule 1:7-4, a trial court is required to render a statement of reasons on every motion decided by a written order that is appealable as of right. The court may rely by reference to the reasons advanced by one of the parties, but the judge must make such reliance explicit. Allstate Ins. Co. v. Fisher, 408 N.J. Super. 289, 301 (App. Div. 2009); In re Trust Created by Agreement Dated Dec. 20, 1961, 399 N.J. Super. 237, 253-54 (App. Div. 2006) aff'd 194 N.J. 276 (2008); Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2013).
We add that, in reexamining the net opinion issue, the trial court should give further consideration as to whether the fact that the building codes and standards cited by Wilson were adopted after the school building was constructed renders those codes and standards entirely irrelevant to whether the building was in a safe condition at the time of plaintiff's fall.
When the Legislature passed the Uniform Construction Code Act, N.J.S.A. 52:27D-119 to -141, it stated that one purpose of the Act was to "permit . . . the use of modern technical methods . . . consistent with reasonable requirements for health." N.J.S.A. 52:27D-120. The Legislature also observed that a modern construction code would "insure health, safe, and sanitary construction." N.J.S.A. 52:27D-122. The Legislature thus intended that to some degree the standards given in the Uniform Construction Code would represent what is "safe."
According to the Third Restatement on Torts, a statute which is not legally binding may nevertheless "set[] forth a norm that is seemingly pertinent in evaluating an actor's conduct." Restatement (Third) of Torts: Liab. for Physical and Emotional Harm § 14(j) (2005). The Third Restatement advises that the weight afforded such a violation and inapplicable law "depends on the circumstances, as they are assessed by the court." Ibid. In particular, a later-enacted statute "can be admissible evidence bearing on the actor's negligence," especially if the statute at issue "can properly be understood as an expression of a consensus of well-informed opinion as to what are desirable practices." Ibid. The time difference between the conduct at issue and the enactment of the inapplicable law may be a factor to consider in determining whether the inapplicable law nonetheless provides evidence bearing on the actor's negligence. Ibid. If the later-adopted enactment is a regulation as opposed to a statute, the statutory criteria justifying the promulgation of the regulations are important. Ibid. (Reporters' Note, comment j). The more those criteria resemble criteria for negligence, the more likely the regulation would be considered an effort by the government and its experts to "identify precautions and practices that the negligence-liability rule itself might require." Ibid. "At the least, the statute can provide a rational basis for the testimony of an expert as to the likely safety benefits of a particular precaution and the extent of the burdens that the precaution involves." Ibid. (main text). Although we do not hold that these principles from the Third Restatement are necessarily controlling in New Jersey, we suggest that the trial court and counsel address their potential relevance, or lack thereof, in resolving the net opinion issues on remand.
See also Hammond v. Int'l Harvester Co., 691 F.2d 646, 651 (3d Cir. 1982) (in a Pennsylvania products liability case, applying Occupational Safety and Health Administration regulations promulgated at least six months after the manufacture of the tractor in question because "OSHA's very decision to promulgate [those] regulations provides strong support for the proposition that" the tractor did "not possess every element necessary to make it safe"); see also Hansen v. Abrasive Eng'g & Mfg., Inc., 856 P.2d 625, 629-30 (Or. 1993) (holding that OSHA rules were relevant to the standard of care, even though technically inapplicable, because "they pertain[ed] to the issue of whether [the] defendant met the standard of care" and were "similar to evidence of industry custom or trade practice").
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Reversed and remanded. We do not retain jurisdiction.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION