JEREMY D. PETERS VS. BONNIE A. MCCARTHY (L-2626-16, OCEAN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5686-18

JEREMY D. PETERS,

Plaintiff-Appellant,

v.

BONNIE A. MCCARTHY,

Defendant-Respondent.
__________________________

Submitted April 19, 2021 – Decided October 22, 2021

Before Judges Hoffman, Suter, and Smith.

On appeal from the Superior Court of New Jersey, Law
Division, Ocean County, Docket No. L-2626-16.

Mallon & Tranger, attorneys for appellant (Randall L.
Tranger, of counsel; Daniel B. Glatz, on the brief).

Law Offices of Styliades and Jackson, attorneys for
respondent (Catherine A. Schmutz, of counsel and on
the brief).

The opinion of the court was delivered by

SMITH, J.A.D.
 After a verdict for defendant in a personal injury negligence trial, plaintiff

appealed, arguing the judge erred in a series of evidential rulings both before

and during trial. We reverse and remand for a new trial because defendant's

expert testimony on biomechanics should have been barred consistent with the

principles set forth in Hisenaj v. Kuehner, 194 N.J. 6 (2008).

I.

On the afternoon of April 18, 2016, defendant rear-ended plaintiff's

vehicle while it was stopped at a controlled intersection. No police were called

to the scene and no traffic citations were issued; however, later that day plaintiff

filed a report at a police station and went to the emergency room. The record

shows plaintiff sustained several injuries including: cervical disc herniation at

C4-5, C5-6, and C6-7; cervical radiculopathy; lumbar sprain and strain with

severe spasm; L5-S1 disc herniation; and lumbar radiculopathy.

Plaintiff sued defendant. After discovery ended, plaintiff filed several

pre-trial motions in limine, including a motion to bar all testimony from

defendant's expert, Dr. Samuel Wordeman, and to bar any reference to the fact

that the police were not called to the accident scene. The trial court denied both

motions after hearing argument from counsel. The court found the fact that

police were not called to the scene was relevant to the "disputed matter as to the

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degree of the impact . . . [and] the extent of the injuries suffered . . . ." As to the

expert testimony, the court barred Dr. Wordeman from testifying about airbag

deployment at the crash scene because his report contained no foundation for

such testimony. The court deferred its decision on the motion to bar all of Dr.

Wordeman's testimony, stating that it expected defendant to lay a foundation at

trial for the doctor's opinion consistent with the Supreme Court's holding in

Hisenaj. Id. at 25.

At trial, Dr. Wordeman testified that the subject accident was not severe

enough to cause plaintiff's injuries. The documents that he relied on included:

(1) the police report (filed by plaintiff during a trip to the police station after the

collision); (2) photographs and repair estimates for both vehicles; (3) plaintiff's

medical records; (4) the pleadings; and (5) answers to interrogatories and the

parties' depositions. Dr. Wordeman also reviewed various scientific studies and

cited calculations that he performed in arriving at his opinion on causation.

On July 16, 2019, the jury returned a verdict in favor of defendant. On

appeal, plaintiff argues three points: Dr. Wordeman's expert opinion testimony

should have been barred in its entirety; testimony that the police were not called

should have been excluded on relevancy grounds; and plaintiff should have been

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permitted to testify about why he discontinued treatment in February 2017, after

defendant raised the issue in opening arguments.

II.

When considering a trial court's evidentiary rulings, our standard of

review is well settled. "When a trial court admits or excludes evidence, its

determination is 'entitled to deference absent a showing of an abuse of

discretion, i.e., [that] there has been a clear error of judgment.'" Griffin v. City

of E. Orange, 225 N.J. 400, 413 (2016) (quoting State v. Brown, 170 N.J. 138,

147 (2001)) (alteration in original). "Thus, we will reverse an evidentiary ruling

only if it 'was so wide [of] the mark that a manifest denial of justice resulted.'"

Ibid. (quoting Green v. N.J. Mfrs. Ins. Co., 160 N.J. 480, 492 (1999)).

N.J.R.E. 702 provides: "[i]f scientific, technical, or other specialized

knowledge will assist the trier of fact to understand the evidence or to determine

a fact in issue, a witness qualified as an expert by knowledge, skill, experience,

training, or education may testify thereto in the form of an opinion or otherwise."

N.J.R.E. 703 provides:

The facts or data in the particular case upon which an
expert bases an opinion or inference may be those
perceived by or made known to the expert at or before
the proceeding. If of a type reasonably relied upon by
experts in the particular field in forming opinions or

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 inferences upon the subject, the facts or data need not
be admissible in evidence.

A determination on the admissibility of expert evidence 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)). A trial court's grant or

denial of a motion to preclude expert testimony is entitled to deference on

appellate review. Ibid. As instructed by the Supreme Court, "we apply [a]

deferential approach to a trial court's decision to admit expert testimony,

reviewing it against an abuse of discretion standard." Id. at 53 (quoting

Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371-72 (2011))

(alteration in original).

In New Jersey, scientific evidence is admissible in a civil case if

"it derives from a reliable methodology supported by some expert

consensus." Suanez v. Egeland, 353 N.J. Super. 191, 195 (App. Div. 2002)

(citations omitted). There are three ways a party offering the results of scientific

evidence can demonstrate its reliability: "(1) the testimony of knowledgeable

experts; (2) authoritative scientific literature; and (3) persuasive judicial

decisions." Id. at 195-96 (citations omitted). A party offering novel scientific

evidence bears the burden of demonstrating its reliability. Id. at 196 (citation

omitted).

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 In re Accutane Litigation, 234 N.J. 340 (2018), represents the Court's

adoption of certain factors that trial courts must utilize when assessing the

admissibility of expert testimony in civil cases.1 Id. at 347-48. The non-

exhaustive list of factors identified in Accutane to be used in conjunction with

N.J.R.E. 702 and 703 are as follows:

1) Whether the scientific theory can be, or at any time
has been, tested;

2) Whether the scientific theory has been subjected to
peer review and publication, noting that publication is
one form of peer review but is not a "sine qua non";

3) Whether there is any known or potential rate of error
and whether there exist any standards for maintaining
or controlling the technique's operation; and

4) Whether there does exist a general acceptance in the
scientific community about the scientific theory.

[Id. at 398.]

When determining whether to admit complex expert opinion testimony in a civil

case, trial courts serve a gatekeeper function, expected to "assess both the

methodology used . . . to arrive at an opinion and the underlying data used in the

formation of the opinion." Id. at 396-97.

1
These factors are referred to throughout Accutane as "Daubert factors," or the
"Daubert standard." See Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579
(1993).
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 III.

On appeal, plaintiff argues that Dr. Wordeman's expert opinion testimony

should have been barred from trial. We agree.

At the motion in limine hearing before trial, plaintiff moved to bar Dr.

Wordeman's opinion that the rear-end vehicle collision did not cause plaintiff's

spinal injuries. Plaintiff argued that the data and studies Dr. Wordeman relied

upon and referenced in his written expert report were insufficient to support his

conclusion. However, the trial court conditionally denied the motion in limine,

citing Hisenaj. The court stated that it "expect[ed] to hear . . . that the defense

expert relied upon studies involving specific crash-like conditions over a period

of time which [the expert] believes are analogous . . . not the same vehicles, not

the exact same accident, but low-velocity impact."

Hisenaj involved a low-impact, vehicle-on-vehicle rear-end collision in

which the plaintiff alleged cervical and lumbar injuries as a result of the

collision. Hisenaj, 194 N.J. at 10-11. The plaintiff moved to bar the defense

biomechanical expert opinion under N.J.R.E. 702. The trial court denied the

motion and admitted the opinion. After a trial, the jury found no permanent

injury and rendered a partial verdict for the defendant. We reversed, finding the

trial court erred in admitting the defense expert opinion. The Supreme Court

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found the trial court committed no error in admitting the expert opinion, noting

that the expert relied on seventeen studies which "examined the outcomes of

low-impact accidents on individuals of both genders and of various ages and

body types." Id. at 20. The studies were "performed over a period of thirty-four

years on more than two-hundred test subjects." Ibid. Further testimony revealed

similarities between the test subjects and the plaintiff. For example, at least

fifty-two of the two-hundred test subjects were the same gender as the plaintiff.

The Court found that the defense expert relied on these detailed studies, which

he testified were authoritative and generally accepted in the scientific

community. Id. at 22. The Court concluded the testimony was admissible,

finding that the record showed defense presented an "adequately reliable

scientific foundation" at trial. Id. at 25.

The Court contrasted the Hisenaj record to the defense biomechanical

expert record in Suanez, another low speed rear-end collision case where we

held the defense biomechanical expert opinion was not admissible. Suanez, 353

N.J. at 203. We found that the scientific literature cited by the expert in Suanez

simply did not provide a reliable basis for his opinion, as it involved tests

"performed . . . upon cadavers or upon military personnel . . . ." Id. at 200.

During testimony, the expert in Suanez struggled to indicate with particularity

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the studies that supported his conclusion. Id. at 199-200. Instead, he relied

mostly upon "unidentified articles" written by "unidentified authors" to support

his theories. Id. at 201.

Keeping in mind the trial court's statement that it expected defense to meet

the Hisenaj expert standard, we turn to the record to determine whether the trial

court "assess[ed] both the methodology used . . . to arrive at an opinion and the

underlying data used in the formation of the opinion." Accutane, 234 N.J. at

396-97.

After Dr. Wordeman was qualified as an expert without objection, the trial

court conducted a brief Rule 104 hearing to hear his proffered testimony.

Plaintiff objected to Dr. Wordeman's pending testimony, which the plaintiff

characterized as more medical than biomechanical in nature, and therefore more

properly the province of a medical witness rather than an engineering witness.

The trial court overruled the objection, admitting Dr. Wordeman's entire expert

testimony without hearing any additional proffer by the plaintiff. The court

found that Dr. Wordeman's testimony would come in under N.J.R.E. 703 without

undertaking further analysis.

Dr. Wordeman proceeded to testify at length concerning a wide range of

topics beyond the ken of the average juror, including but not limited to: the

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effect of forces on the cervical and lumbar spine; unspecified studies and

technical literature he used in forming his opinions; and his ultimate opinion

that the forces resulting from the collision did not cause plaintiff's cervical or

lumbar back injuries.

The trial court mistakenly exercised its discretion when it declined to

assess the methodology and underlying data Dr. Wordeman used in forming his

opinion during the Rule 104 hearing. Id. at 397-98. During the motion in limine

hearing, the trial court correctly anticipated the need to perform its gatekeeping

function in this highly complex and hotly contested expert field of

biomechanical engineering. Then, during trial, it failed to take the next step

under N.J.R.E. 703 and use the Daubert factors to assess the reliability of Dr.

Wordeman's testimony. Its failure to "determine whether the scientific

community would accept the methodology employed" by Dr. Wordeman before

admitting his testimony was an error "so wide [of] the mark that a manifest

denial of justice resulted." Griffin, 225 N.J. at 413.

Mindful of the clear boundaries set by the Court in Hisenaj, we are

committed to the deferential standard of review applicable when trial courts

decide the admissibility of expert opinion testimony. See Hisenaj, 194 N.J. at

25. We restrict the scope of our review to the record before the trial court, and

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do not engage in an "unconstrained review [of] . . . material not part of the

evidentiary record and argument . . . beyond that which was advanced before the

trial court." Ibid.

We simply note that the trial court's proper recognition of complex

scientific testimony during the motion in limine required assessment of the

reliability of that testimony pursuant to Rule 703 prior to its admission into

evidence. This was clear from the trial court's comments during the Rule 104

hearing: citing to Hisenaj and directly informing counsel that it expected to hear

testimony analogous to Hisenaj's expert testimony at trial. The trial court

recognized it had an obligation to use the Daubert/Accutane gatekeeper factors

to scrutinize Dr. Wordeman's opinion testimony before exposing the jury to it.

Unfortunately, the testimony analogous to Hisenaj's expert testimony was never

presented.

As a result, the trial court never performed the critical assessment required

by Hisenaj, thereby abdicating its gatekeeper role. Because we find this lapse

dispositive, we need not make findings on the sufficiency or reliability of Dr.

Wordeman's referenced studies, as that would require us to reach beyond the

trial record.

Difficult as it may be, the gatekeeping role must be
rigorous. In resolving issues of reliability of an expert's

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 methodology in a new and evolving area of medical
causation . . . [t]he court's function is to distinguish
scientifically sound reasoning from that of the self-
validating expert, who uses scientific terminology to
present unsubstantiated personal beliefs.

[Accutane, 234 N.J. at 390.]

Our view of proper gatekeeping in a methodology-
based approach to reliability for expert scientific
testimony requires the proponent to demonstrate that
the expert applies his or her scientifically recognized
methodology in the way that others in the field practice
the methodology. When a proponent does not
demonstrate the soundness of a methodology, both in
terms of its approach to reasoning and to its use of data,
from the perspective of others within the relevant
scientific community, the gatekeeper should exclude
the proposed expert testimony on the basis that it is
unreliable.

[Id. at 399-400.]

Defendant, the proponent of the Dr. Wordeman's testimony, made no such

demonstration, nor did the trial court require it. On this record we discern no

recourse but to reverse and remand this matter for a new trial.

For completeness, we comment upon plaintiff's remaining two appeal

issues: the trial court's admission of testimony that the police were not called to

the collision scene; and the trial court's exclusion of plaintiff's testimony about

why he discontinued medical treatment. The trial court placed its reasons on the

record in each matter, and our review reveals no abuse of discretion. We

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conclude that the trial judge is entitled to deference on these two aspects of

plaintiff's appeal. Griffin, 225 N.J. at 413.

Reversed and remanded for a new trial. We do not retain jurisdiction.

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