NJ High Court Bars Expert Testimony as Net Opinion Where Expert Does Not Reference an Objective Standard of Care

In cases involving allegations of negligence, the injured party has to prove that the person or entity being sued failed to act reasonably, causing harm to the victim. In those cases, the injured person must show that the responsible party failed to observe the standard of care. A “standard of care” refers to the manner in which persons in like circumstances should act. It is used to establish what the responsible party should have done or failed to do, resulting in injury. A standard of care may be identified by reference to a law, statute, regulatory requirement, industry practice, or standard-setting agency publication. Someone who has been injured cannot establish a standard of care simply by stating that the responsible party should have done something different. There must be some verifiable, objective basis.

The New Jersey Supreme Court recently spoke to this requirement in the case of Davis v. Brickman Landscaping, Ltd. That case arose following a fire at a hotel that unfortunately took the lives of two children. The parents of the children sued the fire inspectors and others for not telling the hotel that a sprinkler should have been located in a utility closet. An expert hired by the defendants opined that a standard developed by the National Fire Protection Agency did not require the inspectors to evaluate the need for a sprinkler in the utility closet or report it to the hotel owner. The parents argued that this one standard was not proof positive of the standard of care, and their expert opined that the inspectors had a duty to exercise reasonable care that exceeded the scope of the National Fire Protection Agency standard. However, the parents’ expert did not offer an objective source for their conclusion that the inspectors owed a higher standard of care.

Industry Standards Are Not Dispositive Proof of a Standard of Care, But Objective Support for Alternative Standards Is Necessary

When an expert’s opinion is not based on objective criteria, it is said to be a “mere net opinion.” Net opinions will not withstand scrutiny before the Courts and reliance on a net opinion could lead to dismissal of all or part of a case. New Jersey Court’s have said that “the net opinion rule “requir[es] that the expert ‘give the why and wherefore’ that supports the opinion, ‘rather than a mere conclusion.’” While the expert in this particular case did not present an objective standard apart from the Fire Code relied on by the defense, the Court took care to explain that “[t]he customs of an industry are not conclusive on the issue of the proper standard of care” because “to allow [an industry] to set its own standard of conduct is tantamount to allowing it to set the limits of its own legal liability, even though those limits are below a level of care readily attainable.” In this case, specifically because the Department of Community Affairs was directed to promulgate a uniform fire safety code (UFC) by the Legislature, the Court found that UFC  “provides the standard of care absent competent expert testimony that a standard of care other than the UFC or its successor is generally recognized in the fire prevention field.” The Court explained that the parents’ expert may have been correct that a reasonable inspector may have identified design deficiencies, but without providing objective support for that assertion, his opinion was not sufficiently supported. Without sufficient support for the asserted standard of care, the parents could not make their negligence claim and it was dismissed.

Environmental Litigation Is Rife with Scientific and Expert Issues; Consult Attorneys Experienced In These Areas

The Davis decision underscores the importance of expert opinion in negligence claims, especially as it regards the standard of care. Lieberman Blecher & Sinkevich’s complex environmental litigation practice keeps our attorneys at the forefront of where the legal meets the scientific: our attorneys know the science and routinely handle the examination of scientific and medical experts in disciplines relating to environmental law.

You can read the Supreme Court’s opinion by following this link: Davis v. Brickman Landscaping, Ltd.