                                NOT FOR PUBLICATION WITHOUT THE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-4890-16T1

PHILADELPHIA CONTRIBUTIONSHIP
INSURANCE COMPANY, a/s/o
DAVID MUNZ,

           Plaintiff-Appellant,

v.

RYAN, INC.,

     Defendant-Respondent.
____________________________

                    Submitted September 13, 2018 – Decided January 9, 2019

                    Before Judges Simonelli and DeAlmeida.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Union County, Docket No. L-2449-15.

                    Crawford and McElhatton, attorneys for appellant
                    (Brian J. James, and on the brief).

                    Hardin, Kundla, McKeon & Poletto, PA, attorneys for
                    respondent (Janet L. Poletto and Robert E. Blanton, Jr.,
                    on the brief).
PER CURIAM

      In   this   insurance    subrogation     matter,   plaintiff   Philadelphia

Contributionship Insurance Company appeals from the April 13, 2017 Law

Division order barring its experts' reports and testimony and granting summary

judgment to defendant Ryan, Inc. Plaintiff also appeals from the June 9, 2017

order denying its motion for reconsideration. We affirm.

                                        I.

      Defendant is a fuel oil company that provided fuel for the oil-fired furnace

located in the home of David Munz. Defendant also serviced the furnace for

many years. Approximately one month before December 16, 2013, and again

on that date, defendant's service technician, Anthony Perriello, serviced the

furnace after Munz reported having no heat.

      On January 4, 2014, a fire occurred at Munz's home, which originated

inside the furnace. Munz submitted a property damage claim to plaintiff, which

plaintiff paid. On July 6, 2015, plaintiff filed a complaint for subrogation

against defendant to recover the sum paid to Munz.

      The discovery deadline was July 21, 2016. On May 20, 2016, the parties

consented to a sixty-day extension. On August 30, 2016, defendant filed a

motion to further extend discovery and fix a date certain for plaintiff to furnish


                                                                          A-4890-16T1
                                        2
expert reports. In a September 16, 2016 order, the trial court extended discovery

to November 18, 2016, and ordered as follows, in pertinent part:

            Plaintiff shall furnish all written reports or written
            summaries of oral reports from all proposed expert
            witnesses on liability, causation, and/or damages by
            September 26, 2016[;]

            The testimony of the experts for [p]laintiff whose
            written reports are supplied by September 26, 2016
            shall be specifically limited to the scope of the
            reports[;] and

            The testimony of any expert witnesses on behalf of
            [p]laintiff whose reports are not supplied by September
            26, 2016 shall be barred at the time of trial.

Plaintiff did not seek relief from this order and does not challenge it on appeal.

      On September 26, 2016, plaintiff amended its interrogatory answers to

include the following written summary of the oral reports of its proposed origin

and cause expert, John Goetz, and furnace expert, Edward Carey:

            John Goetz – Origin and Cause Expert

                   [] Goetz conducted an inspection of [Munz's]
            property . . . to determine the origin and cause of the
            fire at the subject property. No exterior fire or smoke
            damage was observed.          An interior examination
            disclosed smoke and heavy soot damage throughout the
            first and second floor. The soot damage was observed
            to be coming from the hot air ducts for the oil fired
            furnace located in the basement. The basement was
            observed to have sustained smoke, soot, fire and water


                                                                           A-4890-16T1
                                        3
damage. Fire damage was observed in the area of the
oil-fired, hot air furnace.

      Fire patterns observed in the structure place the
area of origin as the oil-fired, hot air furnace. Above
the furnace was the duct system for the furnace as well
as some electrical lines. These electrical lines sustained
no damage, and no malfunctions were observed. The
duct system contained large amounts of soot.

       An examination of the oil-fired, hot air furnace
was conducted. The furnace sustained fire and heat
damage. The fire and heat damage was observed
mainly in the burner area of the furnace. Various
components of the furnace had been removed and
placed on top of the furnace. There was large amount
of soot in the flue for the chimney. The burner section
of the furnace displayed heavy heat damage. From the
fire patterns observed on the furnace, the furnace is the
point of origin of the fire. The only fire damage
observed within the basement was within the oil-fired,
hot air furnace.

Ed Carey – Furnace Expert

       [] Carey conducted an evidence examination of
the oil-fired, hot air furnace. The furnace is a Thatcher
[TM] Low Boy designed furnace, Model No. V120G,
Series I which was approximately [forty-six] years old.
The furnace sustained a fuel release in the burden
vestibule (front) of the furnace, which fire and burn
patterns indicate resulted in a hostile fire in the burner
vestibule.

      The chimney connector pipe is the pipe from the
breach/outlet of the furnace to the chimney. It is
presumed that the chimney connector pipe was


                                                             A-4890-16T1
                            4
            removed from the furnace by the fire department
            personnel’s fire suppression efforts.

                  Examination of the chimney pipe disclosed
            heavily corroded holes through the chimney connector
            pipe that would have been visible by any professional
            working on the subject furnace. Further inspection of
            the subject furnace revealed that the oil furnace also
            had large holes corroded through the metal surfaces of
            the heat exchanger. The extent and condition of the
            corrosion of the metal surfaces of the chimney
            connector pipe and heat exchanger indicate that said
            condition was not the result of the events of the subject
            fire. Rather, the holes corroded through the chimney
            connector pipe and heat exchanger were obviously
            preexisting, prior to the services performed by
            defendant, within a few weeks of the fire.

                  The subject furnace is long past its useful life
            expectancy. Also, it clearly appears that the subject oil
            furnace, chimney pipe and heat exchanger would not
            have been in safe and serviceable condition when the
            services were performed by defendant, within a few
            weeks of the fire.

                  The subject furnace should not have been
            repaired and returned to service when defendant
            worked on said furnace a few weeks prior to the
            incident. At that time, the subject furnace should have
            been declared unsafe and removed from service by the
            defendant’s service personnel.

      The court entered two more orders extending the discovery deadline for

the parties to complete specified discovery, which did not include serving

supplemental or rebuttal expert reports. On January 10, 2017, plaintiff filed a


                                                                        A-4890-16T1
                                       5
motion to extend discovery for thirty days to serve rebuttal expert reports and

complete specific depositions, including Perriello's deposition.        Perriello's

deposition occurred on January 19, 2017. Thereafter, in a February 3, 2017

order, the court extended discovery for thirty days, to March 6, 2017, 1 for the

parties to complete the specified deposition and denied plaintiff’s request to

serve rebuttal expert reports. The court also scheduled trial for May 15, 2017.

Plaintiff did not seek relief from this order and does not challenge it on appeal.

       Without leave of court, on March 1, 2017, plaintiff amended its answers

to interrogatories to include a supplemental expert report from Carey that gave

an entirely new opinion as to the cause of the fire. Defendant objected to the

supplemental report and reserved the right to contest it.

       On March 15, 2017, defendant filed a motion to bar Goetz's and Carey's

reports and testimony and for summary judgment dismissing the complaint for

plaintiff's lack of expert evidence establishing defendant's liability. Defendant

argued that Carey's supplemental report was untimely and served in violation of

the court's orders, and Goetz and Carey rendered net opinions that failed to

articulate the cause of the fire.




1
    March 4, 2017 was a Saturday. See R. 1:3-1.
                                                                           A-4890-16T1
                                        6
      Plaintiff countered that the court should allow Carey's supplemental report

because Perriello's deposition testimony provided newly discovered evidence as

to the cause of the fire. Plaintiff claimed this new evidence was not readily

available or discoverable prior to the deposition, but did not explain why.

      On April 13, 2017, the court entered an order barring Goetz's and Carey's

reports and testimony and granting summary judgment dismissing the

complaint. In an oral opinion, the court found the case required expert testimony

establishing the origin and cause of the fire and whether defendant was

negligent. The court then reviewed the written summary of Goetz's report and

found that other than saying the fire originated in the furnace, Goetz did not

establish the cause of the fire or give the whys and wherefores supporting

plaintiff's claim that defendant's actions caused the fire. The court concluded

that Goetz rendered an inadmissible net opinion and barred his report and

testimony.

      The court reviewed the written summary of Carey's report and found that

although Carey concluded the furnace, chimney pipe and heat exchanger would

not have been in a safe and serviceable condition when Perriello serviced the

furnace, he failed "to reference any textbook treatise, standard custom




                                                                         A-4890-16T1
                                       7
recognized practice or anything of the like other than his personal view" to

support his opinion. The court also stated that Carey

             talk[ed] about the chimney pipe and the holes in the
             system and things like that. And having done that, he
             [did not] say at all why ̶ provide any foundation other
             than his own training and experience as to why ̶ that
             those were the problems and not let the [furnace]
             continue to be [in] serviceable condition and continue
             to be operated. So there is no, I find, explanatory
             analysis provided.

      The court determined that Carey's supplemental report was barred by court

orders. Nevertheless, the court found that "the same is true of [the supplemental

report]. . . . At no time is there any reference to anything other than [Carey's]

own personal viewpoint." The court concluded that Carey rendered inadmissible

net opinions and barred his reports and testimony. Due to the lack of expert

evidence, the court granted summary judgment and dismissed the complaint.

      Plaintiff filed a motion for reconsideration, reiterating that the court

should allow Carey's supplemental report based on newly discovered evidence

from Perriello's deposition testimony that was not readily available or

discoverable prior to the deposition, but again did not explain why. In the

alternative, plaintiff argued for the first time that expert testimony was not

necessary.



                                                                         A-4890-16T1
                                       8
      Defendant countered that the September 16, 2016 order required plaintiff

to serve all expert reports or written summaries by September 26, 2016, and the

order limited the testimony of plaintiff's experts to the scope of the reports

furnished and barred any expert reports not timely served. Defendant also

argued that the February 3, 2017 order barred plaintiff from submitting further

expert reports; expert testimony was necessary to prove the cause of the fire;

and Goetz and Carey rendered net opinions as to the cause of the fire. Defendant

further argued that Perriello's deposition testimony was not newly discovered

evidence that was not readily available or discoverable prior to the deposition

because plaintiff could have deposed Perriello prior to submitting the written

summaries of Goetz's and Carey's oral expert reports.

      On June 9, 2017, the court entered an order denying the motion, finding

plaintiff did not satisfy the requirements for granting reconsideration. In an oral

opinion, the court again found the case required expert testimony, reasoning as

follows:

            This is not a case that's so plain on its facts that it would
            not be beyond the ken of an average juror as to the
            operation of the [furnace], the way the [furnace] should
            be maintained, and how if there were a failure to
            maintain the [furnace] correctly specifically that that
            would lead to the fire in question. It would absolutely
            cause a jury to speculate. So it is the plaintiff's burden
            to prove negligence in this matter.

                                                                            A-4890-16T1
                                         9
The court also concluded that Goetz and Carey rendered inadmissible net

opinions for the reasons the court expressed in granting defendant's motion to

bar Goetz's and Carey's reports and testimony and for summary judgment.

                                         II.

      On appeal, plaintiff argues that Carey's expert opinions are admissible

because they satisfy the foundational requirements for the admission of expert

testimony. Plaintiff also reiterates that the court should have allowed Carey's

supplemental report because it was based on newly discovered evidence from

Perriello's deposition testimony.2

      We first address the barring of Carey's supplemental report. Rule 4:17-

4(a) provides, in pertinent part: "If the interrogatory requests the name of an

expert . . . of the answering party or a copy of the expert's . . . report, the party

shall comply with the requirements of [Rule 4:17-4(e)]."            Rule 4:17-4(e)

provides, in pertinent part:



2
  Plaintiff did not specifically address the barring of Goetz's expert report and
testimony. Thus, the issued is deemed waived. See Sklodowsky v. Lushis, 417
N.J. Super. 648, 657 (App. Div. 2011); Pressler & Verniero, Current N.J. Court
Rules, cmt. 5 on R. 2:6-2 (2019). In any event, we agree with the court that
Goetz rendered an inadmissible net opinion. Goetz failed to opine as to where,
how, and why the fire started in the furnace and that defendant's actions caused
the fire.
                                                                             A-4890-16T1
                                        10
            If an interrogatory requires a copy of the report of an
            expert witness . . . as set forth in [Rule] 4:10-2(d)(1),
            the answering party shall annex to the interrogatory an
            exact copy of the entire report or reports rendered by
            the expert . . . . The report shall contain a complete
            statement of that person's opinions and the basis
            therefor; the facts and data considered in forming the
            opinions; the qualifications of the witness, including a
            list of all publications authored by the witness within
            the preceding ten years; and whether compensation has
            been or is to be paid for the report and testimony and,
            if so, the terms of the compensation. If the answer to
            an interrogatory requesting the name and report of the
            party's expert . . . indicates that the same will be
            supplied thereafter, the propounder may, on notice,
            move for an order of the court fixing a day certain for
            the furnishing of that information by the answering
            party. Such order may further provide that an expert . .
            . whose name or report is not so furnished shall not be
            permitted to testify at trial.

"The first two sentences of [Rule 4:17-4(e)] define the answering party's

obligation with respect to furnishing the full reports received by him and all

supplementary reports." Pressler & Verniero, Current N.J. Court Rules, cmt. 5

on R. 4:17-4(e) (2019).

      Rule 4:17-7 provides, in pertinent part:

            Except as otherwise provided by [Rule] 4:17-4(e), if a
            party who has furnished answers to interrogatories
            thereafter obtains information that renders such
            answers incomplete or inaccurate, amended answers
            shall be served not later than [twenty] days prior to the
            end of the discovery period, as fixed by the track
            assignment or subsequent order. Amendments may be

                                                                        A-4890-16T1
                                      11
            allowed thereafter only if the party seeking to amend
            certifies therein that the information requiring the
            amendment was not reasonably available or
            discoverable by the exercise of due diligence prior to
            the discovery end date. In the absence of said
            certification, the late amendment shall be disregarded
            by the court and adverse parties.

      Here, defendant filed a motion for an order fixing a date certain for the

furnishing of plaintiff's expert reports.   The September 16, 2016 order set

September 26, 2016 as the deadline for plaintiff the furnish "all written expert

reports or written summaries of oral reports from all proposed expert witnesses

on liability, causation, and/or damages." (Emphasis added). The order also

specifically limited the testimony of plaintiff's experts whose reports were

timely furnished to the scope of the reports furnished, and barred the testimony

of any expert whose report was not timely furnished. In addition, the February

3, 2017 order barred plaintiff from serving further expert reports.

      Plaintiff's late service of Carey's supplemental report violated the

September 16, 2016 order not only as to time, but also as to content. Plaintiff

served the supplemental report well after the September 26, 2016 deadline, and

Carey asserted a completely new theory of liability that went beyond the scope

of the written summary of his oral report. The supplemental report also violated




                                                                        A-4890-16T1
                                      12
the February 3, 2017 order, which denied plaintiff leave to serve further expert

reports.

      In addition, the court had extended discovery to March 6, 2017, but not

for the purpose of allowing plaintiff to amend its answers to interrogatories to

include supplemental expert reports. Nonetheless, on March 1, 2017, less than

twenty days prior to the discovery deadline, plaintiff amended its interrogatory

answers to include Carey's supplemental expert.           Plaintiff claimed that

Perriello's deposition testimony provided newly discovered evidence that was

not reasonably available or discoverable by the exercise of due diligence prior

to the discovery deadline, but gave no explanation whatsoever as to why

Perriello was not deposed prior to the submission of the written summary. For

all of these reasons, Carey's supplemental report and testimony based thereon

were properly barred.

      We next address whether the court properly barred Carey's initial expert

report and testimony based thereon. A trial court's evidentiary rulings, including

those regarding expert testimony, are "entitled to deference absent a showing of

an abuse of discretion[.]" State v. Brown, 170 N.J. 138, 147 (2001) (quoting

State v. Marrero, 148 N.J. 469, 484 (1997)); see also Townsend v. Pierre, 221

N.J. 36, 53 (2015); Bender v. Adelson, 187 N.J. 411, 428 (2006). "[An] abuse


                                                                          A-4890-16T1
                                       13
of discretion only arises on demonstration of 'manifest error or injus tice[,]'"

Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J. 554,

572 (2005)), and occurs when the trial judge's "decision is 'made without a

rational explanation, inexplicably departed from established policies, or rested

on an impermissible basis.'" Milne v. Goldenberg, 428 N.J. Super. 184, 197

(App. Div. 2012) (quoting Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571

(2002)). We discern no abuse of discretion here.

      Generally, the admission of expert testimony is governed by N.J.R.E. 702,

which provides:

            If 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.

Admissibility turns on three basic requirements:

            (1) the intended testimony must concern a subject
            matter that is beyond the ken of the average juror; (2)
            the field testified to must be at a state of the art such
            that an expert's testimony could be sufficiently reliable;
            and (3) the witness must have sufficient expertise to
            offer the intended testimony.

            [Agha v. Feiner, 198 N.J. 50, 62 (2009) (quoting State
            v. Kelly, 97 N.J. 178, 208 (1984)).]



                                                                          A-4890-16T1
                                       14
      N.J.R.E. 703 addresses the foundation for expert testimony. The rule

mandates that expert opinion be grounded in "facts or data derived from (1) the

expert's personal observations, or (2) evidence admitted at the trial, or (3) data

relied upon by the expert which is not necessarily admissible in evidence but

which is the type of data normally relied upon by experts in forming opinions

on the same subject." Polzo v. Cty. of Essex, 196 N.J. 569, 583 (2008) (quoting

State v. Townsend, 186 N.J. 473, 494 (2006)).

      The net opinion rule is a "corollary of [N.J.R.E. 703] . . . which forbids

the admission into evidence of an expert's conclusions that are not supported by

factual evidence or other data." Ibid. (alteration in original). The rule requires

that an expert "'give the why and wherefore' that supports the opinion, 'rather

than a mere conclusion.'" Borough of Saddle River v. 66 E. Allendale, LLC,

216 N.J. 115, 144 (2013) (quoting Pomerantz Paper Corp. v. New Cmty. Corp.,

207 N.J. 344, 372 (2011)); see also Buckelew v. Grossbard, 87 N.J. 512, 524

(1981) (explaining that "an expert's bare conclusion[], unsupported by factual

evidence, is inadmissible").

      The net opinion does not mandate an expert organize or support an opinion

in a particular manner that opposing counsel deems preferable. Pierre, 221 N.J.

at 54. An expert’s proposed testimony should not be excluded merely "because


                                                                          A-4890-16T1
                                       15
it fails to account for some particular condition or fact which the adversary

considers relevant." Creanga v. Jardal, 185 N.J. 345, 360 (2005) (quoting State

v. Freeman, 223 N.J. Super. 92, 116 (App. Div. 1988)).

      The net opinion rule, however, mandates that experts "be able to identify

the factual bases for their conclusions, explain their methodology, and

demonstrate that both the factual bases and the methodology are reliable."

Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992). An expert's conclusion

"is excluded if it is based merely on unfounded speculation and unquantified

possibilities." Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997)

(quoting Vuocolo v. Diamond Shamrock Chem. Co., 240 N.J. Super. 289, 300

(App. Div. 1990)). By definition, unsubstantiated expert testimony cannot

provide to the factfinder the benefit that N.J.R.E. 702 envisions: a qualified

specialist’s reliable analysis of an issue "beyond the ken of the average juror."

Polzo, 196 N.J. at 582; see N.J.R.E. 702. Given the weight that a jury may

accord to expert testimony, a trial court must ensure that an expert is not

permitted to express speculative opinions or personal views that are unfounded

in the record. Pierre, 221 N.J. at 55.

      Applying these standards, we conclude the court correctly determined that

Carey rendered an inadmissible net opinion. Carey's opinion is completely


                                                                         A-4890-16T1
                                         16
lacking in the "why[s ]and wherefore[s,]" of the cause of the fire, Pomerantz

Paper Corp., 207 N.J. at 372, and he did not explain the methodology for his

opinions. Landrigan, 127 N.J. at 417. The written summary of Carey's oral

report stated that the furnace was not in a serviceable condition when defendant

serviced it. However, as the court found, Carey did not reference any textbook,

treatise, standard custom, or recognized practice other than his personal view,

and provided no explanatory analysis whatsoever. Thus, it cannot be said that

anything in Carey's report constituted "specialized knowledge [that] will assist

the trier of fact." N.J.R.E. 702. Most importantly, as the court noted on

reconsideration, "while [] Carey may be able to establish that someone had a

duty that was breached which caused the fire, because the report of [Goetz was]

excluded, there's nothing to definitely tie defendant to being the cause beyond

mere speculation."

      Given our standard of review, we conclude the court properly barred

Carey's expert report and testimony, as he failed to meet the threshold

requirements necessary to surpass a net opinion.




                                                                        A-4890-16T1
                                      17
                                        III.

      Plaintiff argues that this case does not require expert testimony because

jurors of common knowledge can form a valid conclusion on the standard of

care. We disagree.

      "In most negligence cases, the plaintiff is not required to establish the

applicable standard of care." Davis v. Brickman Landscaping, Ltd., 219 N.J.

395, 406 (2014). In the majority of negligence cases, "[i]t is sufficient for [the]

plaintiff to show what the defendant did and what the circumstances were. The

applicable standard of conduct is then supplied by the jury[,] which is competent

to determine what precautions a reasonably prudent man in the position of the

defendant would have taken." Id. at 406-07 (alterations in original) (quoting

Sanzari v. Rosenfeld, 34 N.J. 128, 134 (1961)). In cases that do not require

expert testimony, the facts are such that "a layperson's common knowledge is

sufficient to permit a jury to find that the duty of care has been breached without

the aid of an expert's opinion." Id. at 407 (quoting Giantonnio v. Taccard, 291

N.J. Super. 31, 43 (App. Div. 1996)).

      However, in some instances, "the 'jury is not competent to supply the

standard by which to measure the defendant's conduct,' and the plaintiff must

instead 'establish the requisite standard of care and [the defendant's] deviation


                                                                           A-4890-16T1
                                        18
from that standard' by 'present[ing] reliable expert testimony on the subject[.]"

Ibid. (first and second alteration in original) (citations omitted). To determine

whether expert testimony is required, a court should consider "whether the

matter to be dealt with is so esoteric that jurors of common judgment and

experience cannot form a valid judgment as to whether the conduct of the

[defendant] was reasonable." Ibid. (alteration in original) (quoting Butler v.

Acme Mkts, Inc., 89 N.J. 270, 283 (1982)).

      The common knowledge doctrine applies in circumstances "where 'jurors'

common knowledge as lay persons is sufficient to enable them, using ordinary

understanding and experience, to determine a defendant's negligence without the

benefit of the specialized knowledge of experts.'" Hubbard v. Reed, 168 N.J.

387, 394 (2001) (quoting Estate of Chin v. Saint Barnabas Med. Ctr., 160 N.J.

454, 469 (1999)), superseded by Affidavit of Merit statutory amendment, L.

2001, c. 372, § 1, N.J.S.A. 2A:53A-26 to -29, as recognized in Meehan v.

Antonellis, 226 N.J. 216, 228 (2016). "The most appropriate application of the

common knowledge doctrine involves situations where the carelessness of the

defendant is readily apparent to anyone of average intelligence and ordinary

experience." Rosenberg v. Cahill, 99 N.J. 318, 325 (1985).




                                                                          A-4890-16T1
                                       19
      This case is not a common knowledge case. It is the type of case where

evidence of defendant’s negligence is not so readily apparent as to justify use of

the common knowledge exception.         Rather, this case involves specialized

technical knowledge that is necessary to provide the jury with the applicable

standard of care for the maintenance and servicing of a specific type of oil-fired

furnace.   An average juror would lack the "'requisite special knowledge,

technical training and background' to make those determinations without an

expert's assistance." Lucia v. Monmouth Med. Ctr., 341 N.J. Super. 95, 103

(App. Div. 2001) (quoting Kelly v. Berlin, 300 N.J. Super. 256, 264 (App. Div.

1997)).

      The cases plaintiff cites to support the common knowledge exception do

not apply, as none of them concern the standards of care and proximate cause in

matters involving technical machinery or investigations of the origin and cause

of a furnace fire. For example, Sommers v. McKinney, 287 N.J. Super. 1 (App.

Div. 1996) involved a legal malpractice claim where a juror of common

knowledge could determine without expert testimony whether the failure to file

a brief and advise the client of settlement discussions constituted attorney

negligence. Id. at 12. The case here involves specialized technical knowledge

of the maintenance and service of a furnace.


                                                                          A-4890-16T1
                                       20
      Rosenberg is contrary to plaintiff's position, and actually supports

defendant’s position and the court’s opinion.         In Rosenberg, the Court

determined "that the common knowledge doctrine was not available . . . and

[did] not obviate the need for competent expert testimony to establish the

applicable duty of care with respect to the proper chiropractic practices" in the

reading of x-rays. 99 N.J. at 327. Similarly, here, competent expert testimony

is necessary to establish the applicable standard of care with respect to the

maintenance and service of the furnace.

      In Klimko v. Rose, 84 N.J. 496 (1980), the Court held that although expert

testimony was required to determine causation, expert testimony was not

required to establish the standard of care applicable to a chiropractor and

whether the chiropractor breached that standard of care. Id. at 505-06. The

Court reasoned that a layperson could determine whether the chiropractor acted

within his standard of care by continuing to apply pressure to the patient’s neck

where the patient had already once lost consciousness. Ibid. In contrast, the

case here is not a case where the standard of care is readily apparent to a

layperson.

      In Butler v. Acme Markets, Inc., 89 N.J. 270, 274-75, 283-84 (1982), the

Court held that the lack of expert testimony was "not fatal" for the jury to decide


                                                                           A-4890-16T1
                                       21
whether the defendant was negligent and breached its duty of care to its

customers regarding a robbery that occurred in the defendant's parking lot by

failing to post and having one guard remain inside of the store in a known high

crime area. In Butler, unlike here, no specialized skill or knowledge was

required for a jury to determine whether the lack of signs or heightened security

in a high crime area meant the defendant was negligent.

      Finally, in Black v. Pub. Serv. Elec. & Gas Co., 56 N.J. 63, 68, 78-79

(1970), the defendant's maintenance of a high voltage wire allegedly caused the

decedent's electrocution.     The Court held that expert testimony was not

necessary for the jury to decide whether the duty to exercise care commensurate

with the risk involved was satisfied when the defendant failed to post warning

signs on or near the poles or on the wires. Unlike here, no specialized skill or

knowledge was necessary to determine whether or not warning signs were

appropriate.

      The more applicable case is Davis, where the Court held that "the

inspection of fire sprinklers by qualified contractors . . . 'constitutes a complex

process involving assessment of a myriad of factors' that 'is beyond the ken of

the average juror.'" 219 N.J. at 408 (quoting Giantonnio, 291 N.J. Super. at

44). Such is the case here. Expert testimony as to the cause of the fire requires


                                                                            A-4890-16T1
                                        22
technical knowledge of proper maintenance and servicing of a furnace that is

beyond the ken of an average juror.

                                      IV.

      Plaintiff argues the court erred in granting summary judgment because

there was enough circumstantial evidence to overcome summary judgment. We

have considered this argument in light of the record and applicable legal

principles and conclude it is without sufficient merit to warrant discussion in a

written opinion. R. 2:11-3(e)(1)(E). Expert evidence was necessary in this case.

Because plaintiff lacked expert evidence, summary judgment was properly

granted.

      Affirmed.




                                                                         A-4890-16T1
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