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NJ: The Latest on the Net Opinion Rule

Richard Tietjen, Robert H. Ahrens, III, and Wainwright Estates Partners, LLC v. Richard Mazawey, Esq. (per curiam) (NJ App. Div. Jan. 12, 2012 UNPUBLISHED)

NJ: Underlying Commercial Action

Student Contributor: Jennifer Hanley

Facts: In this legal malpractice case, plaintiffs appeal from the order summarily dismissing their legal malpractice claim against defendant. Plaintiffs had retained defendant to represent them as they negotiated a commercial real estate transaction with another corporation. Defendant warned plaintiffs on various occasions about problematic provisions in the contract they were negotiating. Ultimately, the plaintiffs’ transaction fell through, defendant stopped being their attorney, and plaintiffs hired new representation to resurrect the agreement. Plaintiffs filed a legal malpractice claim against Defendant. At trial, they produced an expert witness report, purporting to demonstrate defendant’s negligence while representing plaintiffs. However, the trial court held that the witness’s expert report was actually inadmissible “net opinion,” in that it failed to provide any factual underpinnings to support the expert witness’s opinion that legal malpractice had occurred.

Issue: In a legal malpractice case, does the “net opinion” rule require that an expert report, submitted to show an attorney’s negligence, must identify specific acts or omissions through which the attorney’s conduct deviated from the standard of care?

Ruling: Yes. Under New Jersey law, an expert opinion “must be founded on ‘facts or data.’” Hinsenaj v. Kuehner, 194 N.J. 6, 24 (2008). As such, the “net opinion rule requires an expert witness to give the why and wherefore of his [or her] expert opinion, not just a mere conclusion.” Jimenez v. GNOC, Corp., 286 N.J.Super. 533, 540 (App.Div.), certif. denied, 145 N.J. 374 (1996). When an expert opinion is unsupported by factual evidence, it is inadmissible. See id.

Lesson: In this case, the expert opinion submitted by the plaintiff’s expert failed to draw a proximate cause connection between the defendant’s alleged negligence and plaintiffs’ damages. The expert report made no reference to any actual occurrence of the defendant failing to meet any contracted deadlines or failing to inform the plaintiffs they were going to miss a deadline in their contract. Unlike a satisfactory expert report, the report submitted by the plaintiffs’ expert was an inadmissible “net opinion,” because it only listed statements of factual history and “general principles gleaned from case law” without connecting the two.

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Posted in: Commercial, Expert Witnesses, New Jersey