Necessarily Unhelpful: If Expert Opinion Is ‘Unnecessary’ for the Plaintiff to Prove a Warning Case, Can the Defendant Seek to Exclude It as ‘Unhelpful?’

A recent trial court opinion granting a defendant’s motion to strike an expert’s “net opinion” on the sufficiency of a warning, but then denying summary judgment on the grounds that expert testimony is not necessary in an otherwise straightforward failure-to-warn case, raises an interesting question: If expert testimony is not necessary to prove a failure-to-warn claim in the first instance, then shouldn’t defendants be moving to strike the expert testimony more often on the grounds that such testimony is “unhelpful” to the jury?

Vazquez v. Riddell Sports, Inc. was decided by Essex County Superior Court Judge Thomas Vena on September 4, 2012. The plaintiff was injured at a local school when she was trying to move a volleyball stanchion and pole. As she was carrying the assembly, the pole dislodged from the heavy base. The plaintiff was injured when the base landed on her foot and the pole struck her thigh. The plaintiff served an expert report from John Tesoriero, P.E., a licensed civil engineer, who inspected the scene, the product, and discovery documents. The expert initially opined that the volleyball stanchion was improperly assembled in that the pole ends were not properly bolted to the base. Upon receipt of the defendant’s expert report, pointing out that the product was (mis)assembled by the school, the plaintiff’s expert served a supplemental report essentially conceding that the “defect” (i.e., misassembly) arose after the product left the defendant’s control, but then asserting the new theory that the warnings and assembly instructions were insufficient. Specifically, the expert opined:

“… the defects were (1) the failure to provide proper labeling of the subject equipment for the proper assembly of the subject volleyball equipment; and (2) the failure to provide assembly instructions.”

The defendant then moved to preclude the plaintiff expert’s opinion on the grounds that the expert’s newly-found warning opinion was an inadmissible “net opinion.” The defendant also challenged the expert’s qualifications with respect to the adequacy of warnings. The trial court agreed:

“‘The weight to which an expert opinion is entitled can rise no higher than the facts and reasoning upon which that opinion is predicated,’ Johnson v. Salem Corp., 97 N.J. 78, 91 (1984). Although Mr. Tesoriero can point to Mr. Anderson’s report as the basis for his opinion that the equipment did not include adequate warning labels, the defendants correctly point out that Mr. Tesoriero is a professional civil engineer with no education or experience in the adequacy or warnings. Additionally, as the defendants argue in their reply brief, the plaintiff herself cannot positively identify the specific volleyball stanchion that caused her injury; as a result, Mr. Tesoriero’s conclusion that the stanchion did not include proper assembly instructions, is mere speculation that cannot qualify as expert testimony. Expert opinions cannot be based on ‘guess or conjecture,’ Pelose v. Green, 222 N.J. Super. 545, 549-551 (App. Div. 1988), ‘educated guesses,’ Vuocolo v. Diamond Chem., 240 N.J. Super. 289, 299 (App. Div. 1990), or ‘gut feelings,’ Princeton Research Lands v. Upper Freehold Tp., 4 N.J. Tax 402, 407 (Tax Ct. 1982). Thus, Mr. Tesoriero’s supplemental report finding that the stanchion contained an inadequate warning and lacked proper assembly instructions is barred.”

The second part of the defendant’s motion was for summary judgment. The defendant argued that without admissible expert testimony, the plaintiff could not prove the warnings were inadequate. The court disagreed. The court held that a plaintiff does not need an expert to prevail on a failure to warn claim because “the adequacy of a warning label is ordinarily a question of fact for the jury.” The court further stated:

“… whether Mr. Tesoriero’s reports and testimony are barred are of no matter in allowing the jury to determine the adequacy of a warning label. Not all products liability cases require expert testimony; the need for expert testimony depends on the complexity of the subject matter. Some product issues are within the ken of the average juror and do not require the assistance of expert testimony. (See Dreier, Keefe & Katz, Current N.J. Products Liability & Toxic Torts Law (GANN) 9:4-1(a)). Consequently, Ridenour v. Bat Em Out 309 N.J. Super. 634 (App. Div. 1998) held that no expert was needed to support a claim that a warning against the foreseeable misuse of rocking or pushing should have accompanied a change-making machine capable of being tipped over by an 11-year-old boy. Conversely, ‘expert testimony is only required to support a claim when the subject matter is so esoteric that jurors of common judgment and experience are unable to make a determination without the benefit of the information and opinions possessed by a person with specialized knowledge,’ Macri v. Ames McDonough Co., 211 N.J. Super. 636, 642 (App. Div. 1986). Macri also noted that in inadequate warnings cases, it is left to the court to determine whether, based on all the evidence presented, there is a need for expert testimony.”

Warning claims are the last bastion of every expert scoundrel. The vast majority of experts offering opinions on the adequacy of warnings are general engineers who are no more qualified than Mr. Tesoriero. But this opinion reminds defendants to focus also on the requirement that the expert testimony must be helpful, that is, it must be something that is “beyond the ken of the average juror.” A trial court considering the admissibility of a proposed warning expert should ask itself the following question: would I let this case go to the jury on an inadequate warning claim without expert testimony on the adequacy of the warning? In other words, if expert testimony is not necessary then how can it be helpful?

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