Mark R. Vespole on Townsend v. Pierre

In “Mark R. Vespole on Townsend v. Pierre, 221 N.J. 36 (2015),” the commentary initially observes that in Townsend v. Pierre, the New Jersey Supreme Court issued what, at first glance, could be viewed as a routine decision regarding an interpretation of the New Jersey Rules of Evidence as they pertain to the admissibility of expert testimony. However, the commentary finds that the decision accomplishes that and so much more. The more seminal aspect of the Court's decision is its practical impact on how courts and lawyers deal with summary judgment motions, and the time-honored tradition of courts denying summary judgment because of a purported factual dispute created by an opposing party's expert opinion. The commentary contends that after Townsend, that practice should, for the most part, be relegated to the trash heap. Along the way, the Court also had the opportunity to disabuse advocates and lower court judges of long-held, erroneous notions about what constitutes an issue of credibility for the purpose of creating an issue of material fact to deny a summary judgment motion. The commentary explores the Court’s reasoning in that regard as well.

The commentary’s analysis of New Jersey Rules of Evidence 702 delineates the requirements for the admissibility of expert testimony in general. It further analyzes Rule 703 setting forth that an expert opinion must be grounded in facts or data derived from sources that the Court enumerated. The commentary points out that the net opinion rule requires an expert "to identify the factual basis" for his or her conclusions and explain his or her methodology. An expert who speculates or provides unsubstantiated testimony is of no assistance to the fact finder. Mr. Vespole’s commentary provides an in-depth recitation of the facts of the case as well as the findings and reasoning of the lower courts in the matter. This is critical to understand the Supreme Court’s ultimate finding that the the opinion of plaintiffs' expert so "diverged from the evidence" on the issue of causation as to be a net opinion. As for the Appellate Division's attempted remedy of using a hypothetical question, the Supreme Court stated that such use would run afoul the  requirement of Rule 705 that hypothetical questions include "facts admitted or supported by the evidence." Because there was no evidence in the record to support a finding of fact in plaintiffs' favor on the issue of causation other than the inadmissible net opinion of plaintiffs' expert, the Court held that the trial judge properly decided the issue of proximate cause as a matter of law. 

Significantly, Mr. Vespole’s analysis proceeds to provide a number of useful takeaways for litigants. These include what expert testimony must provide to affect the disposition of motions for summary judgment. They address the threshold expert testimony must reach to establish a credibility challenge to the evidence presented in order to defeat a summary judgment motion. Moreover, the commentary imparts practical pointers in the litigation of a summary judgment motion. For example, it indicates what should precede the filing of a summary judgment motion that will be premised on the shortcomings of an expert report. It also discusses precisely how an evidentiary hearing with regard to proffered expert opinions could have affected this case, and by implication, others as well. Lastly, the commentary opines on “the sticky and murky issue of when the credibility of the proponent of an otherwise undisputed fact becomes an issue for the jury.”

Mark R. Vespole is the managing partner of the New Jersey office of Tressler LLP, a national litigation and insurance services firm. The author has tried and litigated numerous commercial, insurance, tort, and securities matters in state and federal courts and before arbitration panels throughout the country. Mr. Vespole's practice includes insurance coverage and defense litigation arising out of first-party and third-party property and casualty, life and health, professional liability, employment practices, and directors' and officers' liability policies, as well as corporate raiding, and securities arbitrations and compliance matters for broker-dealers and registered representatives. Mr. Vespole has written and lectured extensively for a variety of insurance and securities trade publications and organizations covering a broad range of topics, including insurance coverage, bad faith, corporate raiding in the securities and life insurance industries, noncompete agreements, replacements of life insurance policies, contestability clauses, product liability, and mold litigation.  Mr. Vespole is a graduate of the University of Notre Dame and Seton Hall Law School. He is admitted to practice in New Jersey, the United States Court of Appeals for the Second Circuit and Third Circuit, United States District Court of New Jersey, the United States District Court for the Southern, Eastern, Western, and Northern Districts of New York, and the United States Supreme Court. He has been certified by the New Jersey Supreme Court as a Civil Trial Attorney since 1988.

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