Client Advisory

The New Jersey Appellate Division affirmed the trial court’s grant of summary judgment in favor of a defendant grocery store and denial of a plaintiff-customer’s motion for reconsideration in Cvetanka Neceva v. Stop and Shop #0820, when the testimony of the plaintiff’s expert failed to establish his methodology to determine that the outstretched leg of a store employee stocking the shelves was a hazard amounting to negligence.

In ruling on the motions, the trial court considered plaintiff’s expert report, submitted by a doctor with expertise in “human factors” who detailed arbitrary requirements constituting a “trip hazard.” The trial court excluded the doctor’s proposed testimony as net opinion because he failed to provide any code, regulation, or manual governing shelf-stocking procedures that the defendant store violated.

On appeal, plaintiff argued the trial court erred by excluding the report. Upon review, the Appellate Division explained that the net opinion rule requires experts to identify the factual bases for their conclusions, explain the methodology used, and demonstrate that both are reliable. In assessing the reliability of an expert’s methodology, the Appellate Division relied on Daubert v. Merrell Dow Pharmacy, Inc.

With this framework in mind, the Court determined the expert’s report referenced no methodology or scientific materials subjected to peer review or publication, nor were his conclusions supported by identified standards, data, or regulations. Finding none of the Daubert factors were present, the doctor’s expected testimony was not reliable. Moreover, the subject matter of the suit was not beyond the common knowledge of lay jurors, and accordingly, the expert testimony was unnecessary in addition to being inadmissible. Therefore, the Appellate Division affirmed.

In addition to affirming the decision on the inadmissibility of the expert, the Court separately determined that the outstretched leg of an employee stocking shelves was not a dangerous condition because it did not create an unforeseeable risk of harm, and there was no defect in the property itself.

Key Takeaway: This case reaffirms the principle that plaintiffs’ experts cannot offer conclusions without grounds to overcome summary judgment. Defendants should take advantage of poorly-written and poorly-supported plaintiffs’ experts’ reports to secure summary judgment.