                        NOT FOR PUBLICATION WITHOUT THE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-2210-17T2

PAULA WILKINSON, as
ADMINISTRATRIX AD
PROSEQUENDUM of the
ESTATE OF ZACHARY GEHL,

        Plaintiff-Appellant,

v.

BRENNTAG NORTH AMERICA,
ENTERPRISES FM TRUST,1
BRENNTAG SPECIALTIES INC.,
and WILLIAM LEWIS,

        Defendants,

and

BROCK LEWIS, MICHAEL
MACHADO, and JULIO JORGE,

     Defendants-Respondents.
_____________________________________

              Argued March 20, 2018 – Decided July 30, 2018

              Before Judges Fasciale, Sumners and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Docket No. L-7510-
              15.
1
   Brenntag North America and Enterprise FM Trust were dismissed
by stipulation; they are not a party to this appeal.
           Caesar D.    Brazza,    argued   the     cause    for
           appellant.

           Albert L. Piccerilli, argued the cause for
           respondent Brock Lewis (Montgomery McCracken
           Walker & Rhoads, LLP, attorneys; Albert L.
           Piccerilli, on the brief).

           Thomas N. Zuppa, Jr., argued the cause for
           respondents Michael Machado and Julio Jorge
           (Chasan Lamparello Mallon & Cappuzzo, PC,
           attorneys; John V. Mallon, of counsel and on
           the brief; Thomas N. Zuppa, Jr., on the
           brief).

PER CURIAM

     In   this   negligence   action   arising    from   a   motor   vehicle

accident, we granted plaintiff Paula Wilkinson, administratrix ad

prosequendum of the estate of Zachary Gehl, leave to appeal Law

Division orders granting defendants' motions barring testimony of

her expert witness because his reports were considered net opinion;

dismissing her wrongful death claim due to lack of an expert

report; and denying reconsideration of those orders.            Because we

conclude that the motion court mistakenly applied its discretion

in barring Wilkinson's expert reports, we reverse and remand for

trial.

     The motion record reveals the following facts and allegations

derived from deposition testimony and documents produced during

discovery.   Wilkinson is the mother of Gehl, who was a passenger

in a vehicle driven by Brock Lewis and owned by Brenntag North


                                   2                                 A-2210-17T2
America and Enterprise FM Trust, which was involved in an accident

with a vehicle driven by Michael Machado and owned by Julio Jorge.

Following the accident, Gehl was treated at a hospital for several

injuries and released that same day.                Three days later, he was

found dead at his father's home with several packets of heroin and

a syringe near his body.             An autopsy revealed that the cause of

death was acute hemorrhagic pneumonia due to acute and chronic

heroin abuse.

      Wilkinson     sued     Lewis,     Machado,    and    Jorge    (collectively

defendants) for damages due to Gehl's personal injuries and his

wrongful death as a result of their alleged negligence.                     As for

the wrongful death claim, Wilkinson contended her son had recovered

from using narcotics at the time of the accident and his death was

caused by his abuse of narcotics again because of the accident.

To the contrary, Lewis, Gehl's long-time friend, stated that he

used heroin with Gehl on three separate occasions following Gehl's

release from jail five days prior to the accident.

      To prove the accident was responsible for Gehl's death,

Wilkinson     proffered      expert's    reports    by    Dr.   Kiernan    Ayre,    a

psychotherapist and substance abuse specialist.                    In one of his

reports, Ayre stated that, even though he could not rule out Gehl's

heroin usage in the past, "[i]t does appear that at the time of

the   .   .   .   accident    that    [he]    was   abstinent      from   offending


                                          3                                 A-2210-17T2
substances."       Ayre admitted that he was unqualified in the area

of toxicology and did not review any toxicology records from the

hospital to confirm whether there were any illegal substances in

Gehl's body at the time of the accident.             He instead relied upon

Wilkinson's assertion that Gehl was not abusing substances at the

time of the accident. Ayre also saw nothing in the police accident

report or the hospital records indicating that Gehl was under the

influence of heroin at the time of the accident.                  Considering

Gehl's history of chemical dependency and relying upon medical

articles stating that trauma can be a factor that can cause a

relapse, Ayre opined that the injuries Gehl suffered from the

accident can cause a relapse to use heroin.

      After Wilkinson moved to bar defendants' pathology expert's

report regarding Gehl's cause of death, defendants cross-moved to

bar   Ayre's   opinion   as   net    opinion   and    for   summary    judgment

dismissal of the wrongful death claim.             The trial court entered

an order granting defendants' motions.             In its written opinion,

the court found that although Ayre was qualified to posit an

opinion on drug use and relapse, his opinion that the trauma from

the accident caused Gehl's heroin-related death was not based on

the   "why   and   wherefore"   of   the   facts     presented.       The   court

emphasized that despite Ayre's conclusion the accident caused

Gehl's relapse, Ayre acknowledged there could be other potential


                                       4                                A-2210-17T2
causes of his relapse and there was a possibility he was using

heroin in the days prior to the accident.         The court determined

Ayre's opinion was a net opinion and, thus, inadmissible.          Having

barred Ayre's opinion, the court then granted defendants' summary

judgment and dismissal of the wrongful death claim with prejudice

as there was no proof that defendants' actions were proximate

causes of Gehl's death.2     The court denied Wilkinson's motion for

reconsideration.3

     Before us, Wilkinson contends the court erred in granting

defendants' motion barring Ayre's reports and, in turn, granting

summary judgment dismissal of her wrongful death claim due to lack

of proofs.   Based upon the applicable legal principles guiding our

analysis, we conclude the court mistakenly applied its discretion

to exclude his expert testimony, and should not have barred Ayre's

opinion that the trauma Gehl suffered from the accident led him

to relapse into heroin use, causing his death.           See Townsend v.

Pierre, 221 N.J. 36, 52-53 (2015) (a motion court's decision to

admit   or   exclude   evidence   turns   on   whether   it   abused   its

discretion).



2
   Because the court granted defendants' cross-motions, it denied
Wilkinson's motion to bar defendants' expert's report as moot,
which is not the subject of this appeal.
3
  The record provided does not set forth the basis for the court's
decision.

                                   5                              A-2210-17T2
     Under N.J.R.E. 703, an expert opinion must "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.'"      Id.

at 53 (quoting Polzo v Cty. of Essex, 196 N.J. 569, 583 (2008)).

From this evidentiary standard, the net opinion rule has developed,

to "forbid[] the admission into evidence of an expert's conclusions

that are not supported by factual evidence or other data."    Polzo,

196 N.J. at 583 (quoting State v. Townsend, 186 N.J. 473, 494

(2006)).   That is, an expert must "explain a causal connection

between the act or incident complained of and the injury or damage

allegedly resulting therefrom."       Buckelew v. Grossbard, 87 N.J.

512, 524 (1981). Otherwise, "[a]n expert's conclusion 'is excluded

if it is based merely on unfounded speculation and unquantified

possibilities.'"   Townsend, 221 N.J. at 55 (quoting Grzanka v.

Pfeifer, 301 N.J. Super. 563, 580 (App. Div. 1997)).     Simply put,

experts must "give the 'why and wherefore'" of their opinions, not

"mere conclusion[s]."   Koruba v. Am. Honda Motor Co., 396 N.J.

Super. 517, 526 (App. Div. 2007).

     We agree with Wilkinson's contention that Ayre's opinion is

not speculation because he specifically references evidence found

in the record – her assertion that her son had recovered and was


                                  6                          A-2210-17T2
not using heroin prior to the accident and the post-accident

hospital records that do not evidence recent narcotic use – and

he cites to reputable medical literature listing trauma as a cause

for an addict's relapse.      Ayre's opinion is contrary to the net

opinion rule; it attributes Gehl's relapse to trauma from the

accident, thereby providing a "why and wherefore" and not just a

"mere   conclusion."    The   fact   that   Ayre   relied   upon   medical

literature, which listed numerous other factors that can place a

recovering addict at risk to relapse, should not have made his

opinion inadmissible.   Those other factors go to the weight a jury

may give to his opinion at trial, but not to the court's evaluation

as to whether Ayre's opinion is mere speculation, constituting a

net opinion.    Simply put, the medical literature, Wilkinson's

deposition testimony, and the hospital records, provide the "hook"

upon which Ayre can hang his opinion on to overcome a motion to

bar his expert's reports.

     In finding the court should not have barred Ayre's reports,

we are unpersuaded by defendants' contentions that Gehl was using

heroin prior to the accident; that Wilkinson had not seen her son

after he was released from jail and prior to the accident; and

that Ayre was not in a position to render an opinion because he

did not review any of Gehl's addiction-related records, did not

interview him, and did not investigate Gehl's family history or


                                     7                             A-2210-17T2
environment.   While these are legitimate arguments to question

Ayre's opinion, they go towards the weight the jury may give to

Ayre's opinion at trial, not its admissibility.

     Given our conclusion that Ayre should be permitted to render

his expert opinion attributing Gehl's heroin-related death to the

motor vehicle accident, it reasons that summary judgment should

not have been granted to dismiss Wilkinson's wrongful death claim.

     Reversed and remanded for trial.




                                8                          A-2210-17T2
