On Dec. 7, 2017, the court provided the bench and bar with much needed guidance for determining when a plaintiff needs an expert to sustain a cause of action. Jacobs v. Jersey Central Power & Light Co., ___ N.J. Super. ____ ( App. Div. 2017).

On April 22, 2012, defendant's employee disconnected and removed a streetlight pole which had fallen down on plaintiff's property. He then placed the remaining wire in a hole, covered it with dirt and placed an orange cone over the hole, which disappeared shortly thereafter.

Almost two months later, on June 18, 2012, because defendant had still not replaced the missing pole, grass had grown over the hole. As a result, plaintiff did not notice the hole and was injured when she stepped into the hole and fell to the ground.

On appeal of a jury verdict in favor of plaintiff, defendant contended its motion for a directed verdict on liability should have been granted because plaintiff failed to produce an expert. Defendant argued that an expert was needed to establish utility industry standards with respect to whether defendant adequately secured the site after removing the pole and whether defendant's delay in repairing the hole, shortly after plaintiff's fall, was reasonable.

Judge Sabatino, in a well-reasoned opinion, affirmed the trial court's denial of defendant's motion and its allowing the case to go to the jury without expert testimony.

In doing so, Judge Sabatino pointed out that the expert witness rule, R. 702, “is permissive.” The rule provides that “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, (an expert witness) … may testify thereto in the form of an opinion or otherwise.” (Emphasis added.) However, this does not mean whether or not an expert is needed is always discretionary. Indeed, an expert's testimony is necessary where the subject matter of the intended testimony is “beyond the ken of the average juror.”

However, this begs three questions: (1) who decides whether an expert is needed? (2) when is a subject matter “beyond the ken”? and (3) who has the burden of establishing the need for an expert? Judge Sabatino answered these questions as follows.

(1) Because this question requires an interpretation of the rules of evidence, the court must, of course, decide whether an expert is required, i.e., whether, without it, the court can dismiss the action.

(2) A matter is “beyond the ken” when it “is so distinctively related to some science, profession, business or occupation … (or is) so esoteric that jurors of common knowledge and experience cannot form a valid conclusion.” For example, the court pointed out that an expert has been required where the issue is whether an automobile has been properly repaired because “an automobile is a complex instrumentality … thus diminishing the general public's familiarity with its functioning.”

(3) The burden of establishing the need for an expert, the court properly held, should be on the party contending an expert is required. Thus, in this case, the court agreed that plaintiff could proceed without an expert because JCP&L did not identify “any provision set forth in a statute, regulation, or industry guidline that specifies a standard of care addressing the specific questions of negligence posed here (and) has failed to show that those questions are so esoteric or technical to be beyond jurors' common notions of reasonableness. Nor did JCP&L itself proffer a liability expert.”

Applying the above guidelines, the court noted that there were two issues before the trial court : (1) whether JCP&L acted reasonably with respect to the condition defendant left on plaintiff's property after removing the pole, and (2) whether waiting approximately two months to return to the site to make the necessary repair was unreasonable. Judge Sabatino properly held that these issues were subjects “within the common knowledge of laypersons and are capable of being decided by the jury without expert opinion.”

To which this author adds that such decisions do not require a knowledge of rocket science. Our system of justice has worked for over 200 years. It will continue to work so long as we continue to have faith in our jury system made up of people with good old fashioned common sense. This author, prior to retiring from the bench, having full faith in our jury system, has on many occasions submitted similar issues to a jury without expert testimony.

Therefore, I fully support applaud, and appreciate Judge Sabatino's formulation of guidelines for the bench and bar concerning the need for expert testimony in a particular case. Using these guidelines, attorneys can obviate the costs of retaining experts, courts can save time in trying cases without having to work around experts' schedules, and juries can be relied upon to continue to use common sense to render justice. A win-win situation.

Locascio, a Monmouth County Superior Court judge from 1992 until 2009, is now of counsel with the Red Bank office of Gold, Albanese, Barletti & Locascio, where he heads up their civil and family mediation/arbitration department. He is a certified civil and criminal trial lawyer.