                                NOT FOR PUBLICATION WITHOUT THE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-0703-18T3

THE ESTATE OF WILLIAM
MANOTOA, DECEASED, by
BLANCA RIOS, as Administrator
Ad Prosequendum, and BLANCA
RIOS, individually,

          Plaintiff-Appellant,

v.

ROBERT RUGGERIO,

          Defendant-Respondent,

and

THE WESTWOOD, and GEICO
INSURANCE COMPANY,

          Defendants,

and

ROBERT RUGGERIO,

          Defendant/Third Party
          Plaintiff-Respondent,

v.
RICKS WINES AND LIQUORS,

     Third-Party Defendant.
_____________________________

            Argued October 22, 2019 – Decided November 21, 2019

            Before Judges Hoffman and Currier.

            On appeal from the Superior Court of New Jersey, Law
            Division, Union County, Docket No. L-3265-17.

            Hector I. Rodriguez argued the cause for appellant
            (Law Offices of Hector I. Rodriguez, attorneys; Hector
            I. Rodriguez, on the brief).

            Robert D. Kretzer argued the cause for respondent
            (Lamb Kretzer, LLC, attorneys; Robert D. Kretzer, on
            the brief).

PER CURIAM

      On the evening of December 11, 2015, William Manotoa (decedent)

sustained fatal injuries when he was struck by a vehicle driven by defendant

Robert Ruggiero, as he attempted to cross a roadway on foot. In this appeal,

plaintiff Blanca Rios, decedent's wife, challenges Law Division orders that

dismissed her complaint asserting wrongful death and survival claims against

defendant and denied reconsideration. Having considered the parties' arguments

in light of the record and applicable legal standards, we affirm the summary

judgment dismissal of plaintiff's complaint.


                                                                      A-0703-18T3
                                       2
                                        I.

      On December 11, 2015, decedent attended a party hosted by his employer

at a restaurant in Garwood. Each attendee to the party received two tickets to

exchange for one drink each. Prior to attending the party, decedent stopped at a

liquor store and purchased nearly seventy dollars worth of alcohol.

      The decedent left the work party at an unknown time, and was involved

in a two-vehicle car accident in Westfield; according to the police report, the

accident occurred at 4:56 p.m. The decedent was the driver of his vehicle and

received a summons for improper passing.         The police report contains no

indication that defendant was impaired or smelled of alcohol.         Decedent's

actions for the following three hours remain unknown.

      At approximately 8:00 p.m. that night, defendant was driving south on

Springfield Avenue in Cranford. As defendant approached the intersection with

Pawnee Road, his vehicle struck decedent as he attempted to cross Springfield

Avenue on foot. The resulting impact launched decedent forty-five feet. The

speed limit for the street was thirty-five miles per hour.

      According to the police report of the accident, the impact occurred at the

front passenger side of defendant's vehicle, denting the vehicle's hood and A-

pillar, cracking the windshield, breaking the front parking lamp, and removing


                                                                         A-0703-18T3
                                         3
the side mirror. A bystander attempted CPR until emergency personnel arrived.

Emergency responders noted a strong odor of alcohol emanating from decedent.

      The police located decedent's vehicle on Pawnee Road, "a short distance

away with open containers of alcohol inside." They observed fresh damage to

the vehicle, consistent with decedent's accident three hours earlier; in addition,

they observed "fresh urine on the exterior of the vehicle."

      Decedent was transported to a nearby hospital, where he was pronounced

dead at 9:04 p.m. His injuries included multiple skull fractures, disconnection

of the brain stem, lacerated kidney and liver, multiple rib fractures, and a

compound fracture to the right leg. Decedent's blood alcohol content (BAC)

was .258.

      When questioned by police as to how fast he was traveling at the time of

the crash, defendant responded, "Maybe 30 or 40 MPH. I was keeping up with

traffic on the roadway at the time." Defendant stated he did not see the decedent

prior to the accident, explaining, "He walked right into the front of my car." The

police investigation did not indicate any fault on the part of defendant; instead,

the report concluded that decedent was "accidentally . . . struck by a motor

vehicle . . . while under the influence of alcohol."

                                        II.


                                                                          A-0703-18T3
                                         4
                                       A.

      Plaintiff argues that the trial court abused its discretion in rejecting the

report of George H. Meinschein, P.E., her liability expert, as a "net opinion."

She contends that Meinschein "had a vast amount of information [on] which to

base his conclusions," including his "education, training, experience in addition

to the discovery documents and technical papers reviewed." Defendant in turn

posits that Meinschein's report constitutes an inadmissible net opinion because

it "reflects opinions unsubstantiated by any evidence." In addition, the report

does not acknowledge or address the statement defendant gave to the police two

hours after the accident nor the evidence of decedent's intoxication. The report

also conflicts with the opinions reached by Detective William Pietrucha, 1 who

investigated the accident for the Cranford Police Department.

      We review a ruling on summary judgment de novo, applying the same

standard governing the trial court. Davis v. Brickman Landscaping, Ltd., 219



1
   In addition to twenty-two years of experience, Detective Pietrucha has
received special training in crash investigation and accident reconstruction.
According to Detective Pietrucha, defendant told him "that the pedestrian
walked into the side of his vehicle. Based on the damage and the injuries, that
was what I concluded as well." In support of this conclusion, Detective
Pietrucha identified a "photo indicat[ing] . . . scrapes that run across the
passenger[-]side mirror, which are also consistent and in line with scrapes that
run along the passenger front quarter panel."
                                                                          A-0703-18T3
                                        5
N.J. 395, 405 (2014) (citations and internal quotation marks omitted). Thus, we

consider "whether the competent evidential materials presented, when viewed

in the light most favorable to the non-moving party, are sufficient to permit a

rational factfinder to resolve the alleged disputed issue in favor of the non-

moving party." Id. at 406 (quoting Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 540 (1995)). "If there is no genuine issue of material fact, we must

then 'decide whether the trial court correctly interpreted the law.'" DepoLink

Court Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333

(App. Div. 2013) (citations omitted). We review issues of law de novo and

accord no deference to the trial judge's conclusions on issues of law. Nicholas

v. Mynster, 213 N.J. 463, 478 (2013).

      "[A] trial court confronted with an evidence determination precedent to

ruling on a summary judgment motion squarely must address the evidence

decision first[.]" Konop v. Rosen, 425 N.J. Super. 391, 402 (App. Div. 2012)

(quoting Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384-

85 (2010)). "Appellate review of the trial court's decisions proceeds in the same

sequence, with the evidentiary issue resolved first, followed by the summa ry

judgment determination of the trial court." Townsend v. Pierre, 221 N.J. 36, 53

(2015) (citing Hanges, 202 N.J. at 385).


                                                                         A-0703-18T3
                                        6
      "The admission or exclusion of expert testimony is committed to the

sound discretion of the trial court."       Townsend, 221 N.J. at 52 (citations

omitted). As such, we accord deference to the trial court's grant of a motion to

strike expert testimony, "reviewing it against an abuse of discretion standard."

Id. at 52-53 (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344,

371-72 (2011)).

      Expert testimony is admissible in the following circumstances:

            (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 that
            such an expert's testimony could be sufficiently
            reliable; and (3) the witness must have sufficient
            expertise to offer the intended testimony.

            [DeHanes v. Rothman, 158 N.J. 90, 100 (1999)
            (quoting State v. Kelly, 97 N.J. 178, 208 (1984)); see
            also Agha v. Feiner, 198 N.J. 50, 53 (2009).]

      Our analysis is also framed by N.J.R.E. 702 and N.J.R.E. 703. The former

establishes when expert testimony is permissible and requires the expert be

qualified in his or her respective field. The latter mandates that any expert

opinion "be grounded in 'facts or data derived from (1) the expert's personal

observations, [] (2) evidence admitted at the trial, or (3) data relied upon by the




                                                                           A-0703-18T3
                                        7
expert which is not necessarily admissible . . . but which is the type of data

normally relied upon by experts.'" Townsend, 221 N.J. at 53 (quoting Polzo v.

Cty. of Essex, 196 N.J. 569, 583 (2008)).

      "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.'" Id. at 53-54 (quoting Polzo, 196 N.J. at 583);

accord Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 300

(App. Div. 1990) (barring expert testimony "based merely on unfounded

speculation and unquantified possibilities."). Therefore, an expert is required to

"give the why and wherefore' that supports the opinion, 'rather th an a mere

conclusion." Townsend, 221 N.J. at 54 (quoting Borough of Saddle River v. 66

E. Allendale, LLC, 216 N.J. 115, 144 (2013)). The net opinion rule directs

experts must "be able to identify the factual bases for their conclusions, explain

their methodology, and demonstrate that both . . . are reliable." Id. at 55 (citation

omitted).    In short, the rule invokes "a prohibition against speculative

testimony." Harte v. Hand, 433 N.J. Super. 457, 465 (App. Div. 2013) (quoting

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

because a speculating expert "ceases to be an aid to the trier of fact and becomes

nothing more than an additional juror[,]" Jimenez v. GNOC, Corp., 286 N.J.


                                                                             A-0703-18T3
                                         8
Super. 533, 540 (App. Div. 1996), affording no benefit to the fact finder. See

N.J.R.E. 702.

      In his June 29, 2019 report, Meinschein concluded, based on his review

of the photographs taken by the Cranford Police, that the decedent "was struck

by the front of [defendant's vehicle]." Meinschein further opined that defendant:

                • [S]hould have been able to avoid striking
                  [decedent] if he had been driving at the speed of
                  35 [m]iles per hour or less and doing so in a safe
                  manner;

                • [W]as either driving in an unsafe manner and/or
                  driving a vehicle with deficient headlamps; and

                • If the . . . headlamps (on defendant's vehicle)
                  were operating properly and [defendant] was not
                  distracted as he approached [the decedent],
                  [defendant's vehicle] struck [the decedent]
                  because [defendant] was traveling to the right of
                  the vehicles that he was following, his view
                  ahead was obstructed by the leading vehicles, and
                  he was following the lead vehicles too closely for
                  the speed of his vehicle.

      Meinschein's opinion that defendant "was either driving in an unsafe

manner and/or driving a vehicle with deficient headlamps" is speculative and

lacks competent support in the record. Meinschein's report does not identify any

of the 132 photographs as supporting his opinion, nor does he explain how any of

the photos led to his conclusion.


                                                                          A-0703-18T3
                                        9
       Meinschein's report then states that the "available lighting [on the roadway]

should have been sufficient to illuminate [decedent] in the roadway and allow

[defendant] to avoid striking him if he had been driving at a speed of 35 mph or less

and doing so in a safe manner." It appears Meinschein came to this conclusion

simply based on the fact that the police report stated the street light at the intersection

was on and defendant's statement that the roadway lighting was "pretty good." There

was no independent evaluation or assessment of the brightness of the street lamp or

the headlights of vehicles similar to that driven by defendant. Meinschein provides

no explanation as to how he determined the lighting was "sufficient." Nor does he

discuss reaction time or stopping time by a driver under the circumstances. He does

not address the testimony by the defendant that he was driving as slow as thirty miles

per hour. The essence of Meinschein's opinion is that the area was lit so defendant

should have seen the decedent in time to stop.

       Meinschein's report also contains a wholly unsupported opinion that

"distracted driving" potentially played a role in the accident. It also contains an

unsupported assertion that defendant followed the vehicles in front of him too

closely. However, the record lacks any evidence to support these assertions.

       Meinschein's opinion that defendant must have been distracted is

speculative and similarly lacks competent support in the record. Defendant


                                                                                  A-0703-18T3
                                           10
exhibited no signs of impairment and was not on his cell phone or otherwise

distracted.

      We acknowledge that an expert's proposed testimony should not be

excluded merely "because it fails to account for some particular condition or

fact which the adversary considers relevant." Townsend, 221 N.J. at 54 (quoting

Creanga v. Jardal, 185 N.J. 345, 360 (2005)). Nonetheless, "[a] party's burden

of proof on an element of a claim may not be satisfied by an expert opinion that

is unsupported by the factual record or by an expert's speculation that contradicts

that record." Id. at 55. As in Townsend, "[t]his case presents such a setting."

Id. at 60.

      We conclude the trial court properly rejected Meinschein's expert report

as it was highly speculative and omitted or ignored critical, undisputed facts.

We share the trial court's conclusion that Meinschein rendered a net opinion and

that plaintiff failed to establish a prima facie case of negligence against

defendant. The mere happening of the accident did not establish defendant's

negligence, see Long v. Landy, 35 N.J. 44, 54 (1961), and Meinschein's opinion

that defendant must have been distracted is pure speculation.

                                     B.




                                                                           A-0703-18T3
                                       11
      Even without reference to Meinschein's report, plaintiff argues that

several material issues of fact existed to preclude summary judgment. We

disagree.

      First, plaintiff relies on defendant's statement to police that he was

traveling "Maybe 30 or 40 MPH. I was keeping up with the traffic on the

roadway at that time." According to plaintiff, because the speed limit was only

thirty-five miles per hour, defendant could have been speeding. Plaintiff then

argues that if a jury determines plaintiff was traveling above the speed limit, that

fact would establish negligence per se. Plaintiff's brief fails to cite any

supporting authority for this negligence per se argument.

      Rather than negligence per se, at most, the evidence in that case suggests

that defendant may have been speeding, given his uncertainty of his speed when

the accident occurred.     "The motor vehicle statutes establish standards of

conduct for motorists on our highways and, under usual circumstances, the

violation of motor vehicle statutes is evidence of negligence." Paiva v. Pfeiffer,

229 N.J. Super. 276, 280 (App. Div. 1988).

      However, plaintiff presented no evidence of defendant's rate of travel

other than defendant's uncertain statement to police.        Notwithstanding the

abundant evidence that resulted from the extensive police investigation of this


                                                                            A-0703-18T3
                                        12
fatal accident, which would have given a competent expert a basis for providing

an opinion as to defendant's speed, if in fact he had been speeding, plaintiff

submitted no expert opinion to support her speeding claim. Because plaintiff

retains the burden of persuasion in a negligence action, there are not sufficient

facts for a rational factfinder to determine, by a preponderance of the evidence,

that defendant exceeded the speed limit. As our Supreme Court has stated,

"While proof of certainty is not required, the evidence must be such as to justify

an inference of probability as distinguished from the mere possibility of

negligence on the part of the defendant." Hansen v. Eagle-Picher Lead Co., 8

N.J. 133, 141 (1951) (quoting Callahan v. National Lead Co., 4 N.J. 150, 154

(1950); Woschenko v. C. Schmidt & Sons, 2 N.J. 269, 277 (1949); McCombe v.

Public Service Railway Co., 95 N.J.L. 187, 189 (E. & A. 1920)).

        Plaintiff next suggests the point of impact represents a material fact.

Defendant stated to police that decedent "came into the passenger side of my

car."    Conversely, plaintiff cites Meinschein's report to argue the impact

occurred with decedent in front of the vehicle. Thus, plaintiff argues a material

issue of fact exists as to where the impact occurred. However, plaintiff cannot

rely upon the properly rejected net opinion of her expert to create this dispute.

In addition, plaintiff fails to demonstrate how the point of impact relates to the


                                                                          A-0703-18T3
                                       13
issue of negligence. Thus, the issue cannot be considered material, and therefore

cannot preclude summary judgment.

      We conclude plaintiff's complaint against defendant was properly

dismissed. Any arguments not specifically addressed lack sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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                                      14
