In professional liability cases, there are many allegations that an expert has given a “net opinion”. This can be legitimate, but it has gotten out of hand, particularly in legal malpractice. I did a Westlaw search today, and found that phrase in no less than 749 New Jersey cases.
The net opinion rule “forbids the admission into evidence of an expert’s conclusions that are not supported by factual evidence or other data…simply put, [it] requires an expert to give the why and wherefore of his or her opinion, rather than a mere conclusion”, State v. Townsend, 186 N.J. 473, 494 (2006). “The rules governing expert opinion testimony do not allow the wholesale admission of every expert’s opinion, even those of qualified experts opining in an area appropriate for expert opinion”, Polzo v. County of Essex, 196 N.J. 569, 582 (2008).
“The net opinion rule is a prohibition against speculative testimony”, Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997). But is the problem that the expert’s analysis invites a jury to guess about what would have happened, or is it that the expert wants to hold a defendant to a duty with which the judge disagrees? These cases were paralleled by cases about “junk science”, e.g., expert opinions asserting that cancer was caused by everything from fluoridated water to living near high-voltage power lines. The definitive case on a court’s “gatekeeper” function was Daubert v. Merrill Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), about whether a drug caused birth defects. Now, courts ask whether the expert uses methods generally accepted in his own field, or merely creates “a free-for-all in which befuddled juries are confounded by absurd and irrational pseudoscientific assertions”, Id. at 596.
Trial judges have been cautioned against trying to determine the soundness of scientific opinion, and are instead advised to let the parties prove what they will, at trial, and then rule on that, Hisenaj v. Kuehner, 194 N.J. 6, 16-17 (2008). Note that medical opinion testimony about causation is not inadmissible “simply because it fails to account for some particular condition or fact which the adversary considers relevant”, Id. at 24. However, perhaps under pressure to dispose of cases, some judges don’t let them come to trial.
The net opinion rule first appeared in the legal malpractice setting in Kaplan v. Skoloff & Wolfe, 339 N.J. Super 97 (App. Div. 2001), where the expert gave a “bald assertion that if he had represented plaintiff, he could and would have effectuated a more favorable settlement on her behalf… even if that were so, that does not establish a standard by which to judge defendant’s conduct”, Id. at 104. Since then, the issue comes up constantly. I have won the argument in some of these, and lost in others. However, I feel that the rule misleads some judges, because they have difficulty switching from issues of science and technology, to issues of how words are used, which is really all that lawyers do. Lack of experience in the relevant field of law can be a problem too, but I think the net opinion rule simply doesn’t fit.
“[T]he expert’s opinion must be based on standards accepted by the legal community and not merely on the expert’s personal opinion”, Kaplan, 339 N.J. Super. at 103. Scientific opinions are based on research that finds its way into literature. But professionals, even medical doctors, do not often look in a book to determine how to handle a particular situation. The real test is what practitioners do, when making a strategy and day-to-day decisions.
In C.W. v. Cooper Health System, 388 N.J. Super. 42 (App. Div. 2006), the court struck the expert’s opinion as “net”, even while finding a new duty to advise outpatients and their sexual partners of AIDS test results. It refused to let a well-qualified expert say that somebody ought to be responsible, and to outline a practical modality for carrying that duty out.
The trial judge in Rosenberg v. Tavorath, 352 N.J. Super. 385 (App. Div. 2002), granted involuntary dismissal because her oncology expert’s opinion was imprecise, and not accepted in the medical community. But it wasn’t contrary to any standard either. He had vast experience, and “provided a plausible explanation, which a jury could weigh and determine whether to accept or disregard”, Id. at 402. Hence, the judge had “intruded on the function of the jury to determine the credibility and probative value of the expert’s testimony”, Id. at 399.
In Carbis Sales, Inc. v. Eisenberg, 397 N.J. Super. 64 (App. Div. 2007), the court found the plaintiff’s expert’s testimony sufficient, despite his “failure to reference, in either his report or at trial, any written document or unwritten custom accepted by the legal community recognizing the standards that he claimed to exist”, Id. at 79. Townsend v. Pierre, 429 N.J. Super. 522 (App. Div. 2013), calmly notes that where an important fact is disputed, the expert should at least be allowed to answer a hypothetical question.
But while purely personal views of duty are insufficient, some courts go too far, and translate the lack of treatises into disagreement with the substantive opinion. The court in Trivedi v. Allstate Ins. Co., 2007 WL 1388102 (2007) expected “citation to professional standards or customs as reflected in defense lawyers’ journals or articles in support of his opinion that defendants committed legal malpractice”. What journals are those? Even more extreme is Bunkers v. Snyder, 2011 WL 5082225 (App. Div. 2011), where a plaintiff had to appeal, just because her expert’s tendency to overuse the figure of speech “I believe” caused the motion judge to strike her opinions as personal.
The problem with this is that what attorneys do in particular situations only rarely finds its way into written authorities. It is hard to distinguish “this is what I would have done” from “this is what others should do”. Worse, some lawyers move for summary judgment before they have deposed the adverse expert. In New Jersey, we serve formal expert reports during discovery. But if the motion only addresses the written report, then that judge will have no interplay with that expert.
The sufficiency of my opinion as an expert witness has come up twice on appeal; I thought my opinion was stronger in the one I lost than in the one I won. My approach was upheld in Kimm v. Seok Jin Kim, 2009 WL 498322 (2009), in which I testified at trial about a rather unique set of facts. Some argue that unique facts mean there is no standard. By contrast, in a case that ended in summary judgment, Hedinger & Lawless, LLC v. Betal Enterprises, Inc., 2011 WL 813047 (App. Div. 2011), the motion judge decided that mine was a net opinion on liability, though he was satisfied that if that were incorrect, then there was clearly proximate cause. A law firm which had previously represented Betal, a builder, was asked to do so again, but the client could not pay the retainer. The firm had nonetheless become involved with the case, before dropping it.
A two-judge panel, possibly unaware of the reasons behind it (the lawyer for whom I wrote the report had substituted out and there was no cross-motion), took exception to my analysis of what a construction lawyer should have done. Betal’s owner wanted to delay the case, until he had money from another job, because that was the only way that the surety plaintiff would ever collect anything, not to mention saving his company. The panel was so offended at the notion that a lawyer should ever slow a case down, that it overlooked the fact that the adversary didn’t mind.
I based my opinion not on what most attorneys would have done, but on the client’s instructions. There wasn’t only one right way to proceed, for sometimes, the lawyer’s function is all art, and no science. The surety plaintiff wound up with no money, exactly what Betal had intended to avoid; bad cases make bad law. The Hedinger court rejected my substantive opinion of tort law, but expressed it as an attack on my “net opinion”. Exposition of these issues at trial would have served justice far better than this skewed presentation.
Ironically, the panel reversed the motion judge on what had been the fighting issue in the case: the law firm’s right to simply drop the matter, after some involvement. It criticized the motion judge’s “musing” about proximate cause. This was the first New Jersey legal malpractice case finding an attorney-client relationship by estoppel.
How many lawyers have never had an objection sustained against them? If judges hearing legal malpractice cases disagree with an expert’s assertion on what the law is, or should be, then that is a matter of substance, not of net opinion. Gatekeeping simply doesn’t work very well in legal malpractice cases.
William H. Michelson is a solo attorney in Fanwood, N.J., who specializes in legal malpractice and ethics.
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This article appeared in the New Jersey Law Journal in the June 24, 2013 issue.
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