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NJ: Expert Testimony on Settlement Value

Fuschetti v. Berman 128 N.J. Super. 290, 319 A.2d 781 (Law Dvi. 1974)

NJ: Underlying personal injury action; statute of limitations

Student Contributor: Ryan O’Donnell

Facts: Plaintiff slipped and fell as she was leaving the General Motors exhibit at the World’s Fair. She consulted defendant who was then an attorney at law in New Jersey to help her make a personal injury claim. Plaintiff claims that for the next 6 years she phoned defendant 2 to 3 times a year to inquire about the case, and was told that it was moving slowly. After consulting with another attorney she found out that no personal injury suit had been instituted on her behalf, and that the New York statute of limitations barred her personal injury claim after 3 years. In the ensuing malpractice trial the plaintiff contended that since she lost the potential for settlement, expert testimony as to what a reasonable settlement would have been should be admitted.

Issue: In a malpractice action, can an expert testify as to what a reasonable settlement value for a settlement that was never reached would have been?

Ruling: No. Expert testimony as to the reasonable value of a would be settlement is inadmissible because it is questionable whether or not a settlement would have been able to have been reached.

“Because no expert can suppose with any degree of reasonable certainty the private blends of hopes and fears that might have come together to produce a settlement before or during trial, expert testimony as to reasonable settlement value will be excluded as irrelevant.”

The court found that the probative value of such testimony would be outweighed by the risk that it will confuse the issue and necessitate an undue consumption of time.

Lesson: Expert testimony will not be allowed to determine what a reasonable settlement would have been in the underlying case of a malpractice action. An expert can testify as to whether a previously reached settlement agreement was reasonable, but if no settlement was ever reached he can not testify as to the speculative value of a settlement that would have occurred. 

Editor’s Note: For a different and more current view, see Kelly v. Berlin, 300 N.J. Super 256 (App. Div. 1997), which allowed expert testimony on settlement value. 

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Posted in: Expert Witnesses, Litigation, New Jersey, Statute of Limitations, Torts/Personal Injury