In complex litigation the question often arises of whether expert testimony is necessary to prove any elements of a litigant’s claims or defenses. Cases are often won and lost on the basis of expert testimony. Now that you’ve made the decision to hire an expert will his or her testimony be admissible at trial?
New Jersey Rule of Evidence (N.J.R.E.) 702 allows a witness qualified as an expert to offer opinion testimony “[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue[.]”
There are three requirements that must be met before expert testimony may be admitted:
(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.
Hisenaj v. Kuehner, 194 N.J. 6, 15 (2008).
The decision on whether to admit expert testimony is “remitted to the sound discretion of the trial court. Absent a clear abuse of discretion, an appellate court will not interfere with the exercise of that discretion.” Carey v. Lovett, 132 N.J. 44, 64 (1993). A discretionary decision on the qualifications of an expert may be reviewed for “manifest error and injustice.” State v. Torres, 183 N.J. 554, 572 (2005).
When is Expert Witness Testimony Required?
Generally, experts are needed to establish the standard of care, such as in malpractice cases, because the jury lacks the “`requisite special knowledge, technical training and background[.]'” Kelly v. Berlin, 300 N.J. Super. 256, 265 (App. Div. 1997) (quoting Rosenberg ex rel. Rosenberg v. Cahill, 99 N.J. 318, 325 (1985)).
When is Expert Witness Testimony Not Required?
Expert testimony is not required when the subject can be readily understood by jurors utilizing their common knowledge and experience, provided it is not beyond the “ken of the average juror.” State v. Harvey, 121 N.J. 407, 426-27 (1990), cert. denied, 499 U.S. 931, 111 S. Ct. 1336, 113 L. Ed. 2d 268 (1991). A topic is beyond the ken of the jury and requires expert testimony to support the claim only “when the subject 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 party was reasonable.'” Rocco v. N.J. Transit Rail Operations, Inc., 330 N.J. Super. 320, 341 (App. Div. 2000) (quoting Butler v. Acme Mkts., Inc., 89 N.J. 270, 283 (1982)). Under the common knowledge doctrine, an expert is not needed when the issue of negligence is not technical and the “‘carelessness of the defendant is readily apparent to anyone of average intelligence and ordinary experience.'” Id. at 265-66 (quoting Rosenberg, supra, 99 N.J. at 325). In that circumstance, the trial would be “essentially no different from ‘an ordinary negligence case.'” Kelly, supra, 300 N.J. Super. at 266 (quoting Rosenberg, supra, 99 N.J. at 325).