Thomas A. Fredella v. Township of Toms River

NOT FOR PUBLICATION WITHOUT THE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-3196-21

THOMAS A. FREDELLA and

KELLY A. KEARNY,

Plaintiffs-Appellants,

v.

TOWNSHIP OF TOMS RIVER,

STATE OF NEW JERSEY

DEPARTMENT OF

TRANSPORTATION, and

STATE OF NEW JERSEY

DEPARTMENT OF THE

TREASURY-FLEET

MANAGEMENT,

Defendants-Respondents.

_______________________________

Argued January 31, 2024 – Decided February 22, 2024

Before Judges Firko, Susswein, and Vanek.

On appeal from the Superior Court of New Jersey, Law

Division, Ocean County, Docket No. L-3198-17.

Phillip C. Wiskow argued the cause for appellants

(Gelman Gelman Wiskow & McCarthy, LLC,

attorneys; Phillip C. Wiskow, on the briefs).

Thomas E. Monahan argued the cause for respondent

Township of Toms River (Dasti, McGuckin,

McNichols Connors Anthony & Buckley, attorneys;

Thomas E. Monahan, of counsel; Patrick F. Varga, on

the brief).

PER CURIAM

This appeal arises out of a negligence lawsuit filed by plaintiffs Thomas

A. Fredella (plaintiff) 1 and his now ex-wife, Kelly A. Kearney, against

defendants Township of Toms River (the Township), State of New Jersey

Department of Transportation (DOT), and State of New Jersey Department of

the Treasury-Fleet Management arising out of a motor vehicle accident. On

November 5, 2016, at 9:10 p.m., plaintiff struck a parked DOT truck that was

responding to a call from the Toms River Police Department to remove a deer

carcass from Route 37.

Plaintiff drove into the back of the DOT truck, resulting in severe injuries

to his right leg. When emergency medical technicians (EMTs) arrived and had

difficulty locating a vein to administer medication to plaintiff, he told them that

he had used heroin earlier that day. The Township claimed plaintiff was

1

In our opinion, "plaintiff" refers to Thomas A. Fredella.

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contributorily negligent and a proximate cause of the accident because he was

inattentive while driving and was under the influence of heroin.

Prior to trial, plaintiff and Kearny reached a settlement with the DOT and

the Department of the Treasury (the DOT settlement). A jury returned a verdict

finding that all parties were responsible for the accident, allocating fault as

follows: plaintiff sixty percent responsible; the Township twenty percent

responsible; and the DOT twenty percent responsible. Based upon this verdict,

plaintiff did not receive any award of damages. 2

On appeal, plaintiff primarily challenges two trial court rulings, including

the admission of the testimony of the Township's medical expert, Lawrence

Guzzardi, M.D., without first holding a Frye/Daubert3 hearing to determine

whether the expert employed a reliable methodology. Dr. Guzzardi is an

emergency room doctor and a toxicologist. Plaintiff filed three pre-trial motions

objecting to Dr. Guzzardi testifying based on his expertise, arguing his opinion

was an improper net opinion, and that the expert lacked the requisite expertise

2

Pursuant to New Jersey's comparative negligence statute, as set forth in

N.J.S.A. 2A:15-5.1, "a plaintiff who is found to be more than fifty percent at

fault is entitled to no recovery." Brodsky v. Grinnel Haulers, 181 N.J. 102, 109

(2004).

3

Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); Daubert v. Merrell Dow

Pharm., Inc., 509 U.S. 579 (1993).

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to offer testimony on the effect that heroin allegedly had on plaintiff's vision at

the time of the accident. The trial court denied all of plaintiff's motions, finding

Dr. Guzzardi had the requisite knowledge, training, and expertise to opine

plaintiff was under the influence of heroin at the time of the accident. Plaintiff

also contends the trial court erred in providing the Model Jury Charge on settling

defendants.

For the reasons that follow, we remand for further proceedings and more

detailed findings by the trial court addressing each of the discrete factors set

forth in Daubert, as adopted with certain conditions by our Supreme Court in

the matter of In re Accutane Litig., 234 N.J. 340 (2018). We affirm, however,

the trial court's decision to use the Model Jury Charge to instruct the jury on

settling defendants.

I.

We summarize the facts from the record most significant to the issues

plaintiff has raised on appeal.

A. The Accident

A motorist struck a deer while driving on Route 37 at approximately 7:00

p.m. on the day of plaintiff's accident. After the accident, its carcass lay across

the right lane, with some innards and organs strewn into the center lane of the

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roadway. Officer Justin Lammer responded to the scene within five minutes, at

7:10 p.m. Lammer did not recall any details about the accident or seeing the

deer and left the scene at approximately 7:54 p.m. At 8:12 p.m., DOT received

a call from dispatch to remove the deer carcass.

At trial, Lammer agreed that per department policy, he was required to

move animal carcasses to the side of the road if he could safely do so. Lammer

stated if an officer could not move a carcass or any other type of obstruction

from the road, the officer had to wait on the scene until the carcass was removed.

At 8:41 p.m. three DOT workers arrived—two in a pick-up truck with

flashing lights and one in a safety truck with flashing lights and an arrow

board—to direct traffic. The record is unclear as to whether the arrow board

was lit at the time of the accident. The DOT workers did not set up any

additional safety precautions, such as cones or signs. The DOT trucks were

initially parked on the shoulder lane of Route 37, but about a minute before the

accident, they moved off the shoulder and parked in the right lane to begin the

carcass removal process.

Plaintiff drove onto Route 37 from an exit ramp off the Garden State

Parkway. He recalled seeing taillights driving about "two football fields" ahead

of him. After merging onto Route 37, plaintiff moved to the center lane, then

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back to the right lane, when he struck the rear of the DOT safety truck. 4 Plaintiff

testified he did not see any vehicles ahead of him before he hit the truck and did

not see any lit signs or flashing lights.

Plaintiff sustained a severe open fracture in his lower right leg and had

multiple breaks in the bone. Between November 2016 and February 2018, he

underwent more than a dozen surgeries due to complications arising from

infections and bone alignment. Ultimately, due to reoccurring risk of infection,

plaintiff planned to have his leg amputated based on his doctor's

recommendation.

B. Heroin Evidence

Plaintiff testified he told the EMTs he had used two bags of heroin the day

of the accident, either late that morning or early that afternoon, because they had

difficulty finding a vein to inject medication. According to plaintiff, the amount

of heroin was the equivalent of drinking three beers and affected him for no

more than thirty to forty-five minutes. Neither the police reports nor the EMT

records noted plaintiff as being under the influence of any substance, but the

EMT records noted that plaintiff had "pinpoint" pupils, measuring at two

4

Plaintiff presented testimony from an accident reconstruction expert who

testified that regardless of plaintiff's lane changes or whether the arrow board

was on, he did not have sufficient time to stop his vehicle and avoid the collision.

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millimeters.5 There were no laboratory tests confirming the levels of heroin in

plaintiff's system at any time relevant to this matter.

On March 30, 2021, plaintiff and Kearny reached the DOT settlement.

That same day, plaintiff moved in limine to preclude Dr. Guzzardi from

testifying that plaintiff was under the influence of heroin at the time of the

accident, that the heroin impaired his vision and contributed to the accident.

Plaintiff contended that Dr. Guzzardi's opinion should not be presented to the

jury because he did not establish that plaintiff's heroin use was a substantial

contributing factor to the accident. 6 Plaintiff also moved to bar the Township

from advising the jury that he, Kearny, and DOT reached a settlement. The trial

court denied both motions, finding Dr. Guzzardi's reports did not constitute a

net opinion and that the Model Jury Charges expressly required such instruction.

5

The EMT records are contained in plaintiff's appendix but are difficult to read

due to the poor quality of the copy. Thus, our summary of the EMT's findings

is based on Dr. Guzzardi's testimony. Dr. Guzzardi testified that plaintiff's pupil

size gradually increased to four millimeters when measured at the hospital.

6

While plaintiff requested a Frye/Daubert hearing, his arguments on appeal

center on the Frye standard for admissibility, i.e., that of general acceptance by

the relevant scientific community. Frye, 293 F. at 1013-14. Regardless, now

on appeal and at the time of trial, New Jersey utilizes a "methodology-based test

for reliability" similar to the standard set forth by the United States Supreme

Court in Daubert. In re Accutane Litig., 234 N.J. at 397.

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Subsequently, Dr. Guzzardi was deposed. Dr. Guzzardi opined that at the

time of the accident, plaintiff was "under the influence of heroin." The expert

based his opinion on plaintiff's admission he had injected heroin earlier the day

of the accident and the EMT's notation that he had pinpoint pupils, meaning his

pupils measured only two millimeters. When assessing if someone is under the

influence of heroin, Dr. Guzzardi explained he looks at the patient's history,

their clinical presentation, and laboratory tests.

Dr. Guzzardi testified that here, two of the three factors were satisfied

because plaintiff had admitted to using heroin and presented with pinpoint pupils

at the scene of the accident. Dr. Guzzardi stated morphine had a "half life of

two to four hours," and that if plaintiff took heroin in the morning or early

afternoon, it "would still be present in his body at the time of his accident and

affecting the central nervous system." Dr. Guzzardi explained that heroin could

affect alertness, judgment, reaction time, and night vision.

Dr. Guzzardi acknowledged there were unknown variables regarding

plaintiff's level of intoxication, such as the exact time of the heroin injection,

and whether any amount was in his system at the time of the accident, because

no drug test was administered. A critical facet of Dr. Guzzardi's analysis was

he did not know plaintiff's level of intoxication at the time of the accident and

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to what extent it had impacted his driving. However, Dr. Guzzardi stated that

plaintiff's pinpoint pupils sufficiently demonstrated that he remained "adversely

affected by heroin" and that his pupil size negatively impacted his vision, which

"adversely affected" his driving.

Dr. Guzzardi testified there are four potential causes for pinpoint pupils:

severe brain hemorrhage; pilocarpine—a drug used to treat glaucoma; exposure

to high levels of organophosphate toxins (like insecticides); and narcotics. Dr.

Guzzardi stated pupils can measure from two millimeters to eight-and-a-half

millimeters, and that the average pupil measured from three-and-a-half

millimeters to seven millimeters. 7

The size of plaintiff's pupils recorded at the scene of the accident—two

millimeters—was significant to Dr. Guzzardi because he felt it restricted

plaintiff's ability to see light and limited his peripheral vision. Because the

accident occurred at night, Dr. Guzzardi elaborated that regardless of whether

the safety truck had its lights on, "if your eyes are made small, pinpoint, your

eyes cannot get enough light in." Dr. Guzzardi stated that narcotics impact the

7

Plaintiff's counsel cross-examined Dr. Guzzardi with the American

Ophthalmological Society's definition of pinpoint pupils as measuring less than

two millimeters, and normal pupils as measuring between two and eight

millimeters.

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eye's ability to adjust, and with pinpoint pupils, "you don't get enough light in."

Dr. Guzzardi opined that the heroin impacted plaintiff's peripheral vision and

might have been the reason why he did not notice the DOT truck directly ahead

of him, especially in light of the fact plaintiff was changing lanes at the time. 8

Although Dr. Guzzardi offered an opinion, he conceded that he is not an

ophthalmologist and could not explain or quantify to what extent plaintiff's

vision was impacted. And without bloodwork, Dr. Guzzardi could not determine

whether plaintiff's heroin use adversely impacted his judgment or reflexes at the

time of the accident.

Following Dr. Guzzardi's deposition, plaintiff again moved to bar his

testimony at trial because plaintiff's expert—who did not testify—disputed Dr.

Guzzardi's opinion that two-millimeter pupils qualify as pinpoint pupils. In

addition, plaintiff argued that under New Jersey caselaw, a party's intoxication

could not be introduced without supplementary evidence that the party's

intoxication had contributed to the accident. The trial court denied plaintiff's

motion, finding that any disagreement between the experts was a matter of

8

Plaintiff testified that he used mirrors to change lanes because he drove a van

for years and came to rely on mirrors when driving. Dr. Guzzardi commented

that he did not know if plaintiff used mirrors out of habit or because he was a

"chronic heroin user" and relied on mirrors because he always had pinpoint

pupils.

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weight, not admissibility, Dr. Guzzardi's testimony was sufficient to link

plaintiff's admitted heroin use to his impaired driving, and the proffered

testimony was not unduly prejudicial.

At his deposition, Dr. Guzzardi did not cite to any articles or studies in

support of his opinion, which he stated was based on his clinical experience and

review of plaintiff's medical records. When pressed on cross-examination on

his failure to cite to any authority about heroin use and pupil size, Dr. Guzzardi

answered this was "well known" to toxicologists and emergency physicians, and

that "[e]very emergency physician knows that two-millimeter pupils are myotic

pupils compatible with morphine abuse." When questioned whether this

information was contained in a learned treatise, Dr. Guzzardi responded it was

"such common knowledge that [he] did not cite it." Dr. Guzzardi added that he

had "published . . . on the effect of morphine and opiates on pupil size" and had

"testified about this [issue] before our Supreme Court."

In his second motion, plaintiff again argued that his expert disputed Dr.

Guzzardi's definition of pinpoint pupils as measuring two millimeters. And,

plaintiff asserted that regardless, his heroin use could not be introduced without

supplemental evidence that he was intoxicated at the time of the accident, and

his intoxication impaired his driving. The trial court denied the motion and

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again held that any dispute about pupil size went to the weight of the testimony,

not its admissibility. In addition, the trial court disagreed with plaintiff's

interpretation of the caselaw, holding Dr. Guzzardi's testimony was sufficient to

link plaintiff's admitted heroin use to his impaired driving. The trial court

reiterated its prior finding that Dr. Guzzardi's opinion was not a net opinion and

determined his testimony was not excludable under N.J.R.E. 403 because its

probative value was not substantially outweighed by the risk of undue prejudice.

On April 21, 2022, plaintiff sent a letter to the trial court making his third

motion requesting a Frye/Daubert hearing to ascertain the admissibility of Dr.

Guzzardi's testimony. The trial court heard oral argument on the request that

day and reserved decision. A week later, on April 28, 2022, the trial court issued

an order accompanied by a written decision denying plaintiff's request for a

Frye/Daubert hearing and concluding a pre-trial hearing was unnecessary

because Dr. Guzzardi had the requisite knowledge, training, or expertise to opine

that plaintiff was under the influence of heroin at the time of the accident, which

impaired his ability to operate a motor vehicle.

The trial court found Dr. Guzzardi had the "appropriate credentials to offer

the opinions expressed in his report," and he provided "sufficient 'whys and

wherefores' in support of his opinion." The trial court noted plaintiff could raise

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timely objections at trial about Dr. Guzzardi's "qualifications, foundation,

scope," and the court's N.J.R.E. 403 ruling. The trial court further stated that

an expert's opinion need not be based on "treatises or any type of documentary

support but may include what the witness has learned from personal experience."

The trial court did not make findings about Dr. Guzzardi's ability to testify as to

the impact of opioids on vision. However, during trial, the trial court ruled ,

consistent with its prior decision, that Dr. Guzzardi's inability to quantify the

extent to which plaintiff's pinpoint pupils impacted his vision went to the weight

of his testimony, not its admissibility. This appeal followed.

II.

Our Supreme Court has instructed that in determining the admissibility of

scientific expert testimony in civil, and now criminal cases, our trial courts must

utilize a "methodology-based test for reliability" similar to the standard set forth

by the United States Supreme Court in Daubert. In re Accutane, 234 N.J. at 397.

This standard is as follows:

Our view of proper gatekeeping in a methodology-

based approach to reliability for expert scientific

testimony requires the proponent to demonstrate that

the expert applies his or her scientifically recognized

methodology in the way that others in the field practice

the methodology. When a proponent does not

demonstrate the soundness of a methodology, both in

terms of its approach to reasoning and to its use of data,

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from the perspective of others within the relevant

scientific community, the gatekeeper should exclude

the proposed expert testimony on the basis that it is

unreliable.

[Id. at 399-400.]

Applying this standard, our courts must consider "whether an expert's

reasoning or methodology underlying the testimony is scientifically valid" and

"whether that reasoning or methodology properly can be applied to facts in

issue." Id. at 397 (citing Daubert, 509 U.S. at 591, 594-95; Rubanick v. Witco

Chem. Corp., 125 N.J. 421, 449 (1991)).

The trial court's role is not to "substitute its judgment for that of the

relevant scientific community," but "to distinguish scientifically sound

reasoning from that of the self-validating expert, who uses scientific

terminology to present unsubstantiated personal beliefs." Id. at 414. Thus,

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

their methodology, and demonstrate that both the factual bases and the

methodology are scientifically reliable." Id. at 417. Moreover, when an expert

relies on scientific or medical studies, "the trial court should review the studies,

as well as other information proffered by the parties, to determine if they are of

a kind on which such experts ordinarily rely," and if they are "derived from a

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sound and well-founded methodology that is supported by some expert

consensus in the appropriate field." Ibid.

When applying this standard, our judges should now address the multiple

Daubert factors, a "'helpful—but not necessary or definitive—guide' for trial

courts in New Jersey" to follow when assessing the reliability of scientific or

technical expert testimony. State v. Olenowski, 253 N.J. 133, 149 (2023)

(quoting In re Accutane, 234 N.J. at 398). These factors are as follows:

(1) Whether the scientific theory can be, or at any time

has been, tested;

(2) Whether the scientific theory has been subjected to

peer review and publication, noting that publication is

one form of peer review but is not a "sine qua non";

(3) Whether there is any known or potential rate of error

and whether there exist any standards for maintaining

or controlling the technique's operation; and

(4) Whether there does exist a general acceptance in the

scientific community about the scientific theory.

[In re Accutane, 234 N.J. at 398 (citing Daubert, 509

U.S. at 593-95).]

The first enumerated Daubert factor—testability—relates closely to the

dual components of the third factor, error rate and standards. Testability is "a

key question" that entails whether a theory or technique "can be (and has been)

tested." Daubert, 509 U.S. at 593.

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The second Daubert factor—peer review and publication—is significant

because submission of a methodology "to the scrutiny of the scientific

community is a component of 'good science'" and "increases the likelihood that

substantive flaws in methodology will be detected." Ibid.

The third Daubert factor concerns both the known or potential rate of error

in testing the methodology as well as any standards for maintaining or

controlling the methodology's operation. Id. at 594. As the Court noted in

Daubert, a trial court "ordinarily" should account for the "known or potential

rate of error" of a methodology. Ibid. In addition, a methodology is more

reliable if it is governed by well-established standards for operation. Ibid. See

also Kumho Tire Co. v. Carmichael, 526 U.S. 137, 154-57 (1999) (rejecting as

inadmissible an expert who had not consistently adhered to a protocol with

appropriate standards).

Lastly, the fourth Daubert factor—general acceptance—(the former test

of Frye is no longer the dispositive test since the Court has adopted the

multifactor Daubert approach) is still pertinent. Daubert, 509 U.S. at 594-96; In

re Accutane, 234 N.J. at 398.

As the Supreme Court stated in In re Accutane, 234 N.J. at 398, and again

in Olenowski, these specific factors are not a rigid set of considerations for

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ascertaining the reliability of a proffered expert's methodology. 253 N.J. at 149.

Nonetheless, they provide an important framework for guiding the analysis. The

trial court's consideration of each of these factors is integral to the appellate

court's review of whether the trial court abused its discretion in concluding

whether an expert's methodology was sufficiently reliable to be admitted to a

jury. In re Accutane, 234 N.J. at 391.

In the matter under review, plaintiff contends that the trial court erred in

admitting Dr. Guzzardi's testimony without first determining whether his

opinion satisfied the Frye standard. Plaintiff also challenges the accuracy of the

measurement of his pupils—and the definition of pinpoint pupils—arguing that

this undermines Dr. Guzzardi's basis for concluding the pupil size meant

plaintiff was under the influence of heroin at the time of the accident.

Plaintiff maintains an evidentiary hearing was necessary first to establish

that Dr. Guzzardi correctly defined pinpoint pupils as measuring two

millimeters, and second to determine whether there was scientific support for

the proposition that pinpoint pupils are a sign the person is under the influence

of opiates. Relatedly, plaintiff argues that Dr. Guzzardi's testimony was

inadmissible because he could not quantify plaintiff's level of impairment and ,

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thus, could not determine whether his impairment was a substantial contributing

factor for the accident.

In reviewing a trial court's decision on admission of expert testimony in a

civil action, we apply an abuse of discretion standard. In re Accutane Litig.,

234 N.J. at 392. This standard extends to the decision to conduct a pre -trial

evidentiary hearing. Kemp by Wright v. State, 174 N.J. 412, 432 (2002). The

trial court's ruling should be reversed "only if it 'was so wide off the mark that

a manifest denial of justice resulted.'" Rodriguez v. Wal-Mart Stores, Inc., 237

N.J. 36, 57 (2019) (quoting Griffin v. City of E. Orange, 225 N.J. 400, 413

(2016)).

The admission of expert testimony is generally governed by N.J.R.E. 702,

which provides that "[i]f scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence or to determine a f act in

issue, a witness qualified as an expert by knowledge, skill, experience, training,

or education may testify thereto in the form of an opinion or otherwise." To

satisfy this standard, the proponent of expert testimony must establish that: (1)

the subject matter of the testimony is "beyond the ken of the average juror"; (2)

the field of inquiry is "at a state of the art such that an expert's testimony could

be sufficiently reliable"; and (3) the witness has "sufficient expertise" to offer

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the testimony. In re Accutane Litig., 234 N.J. at 349 (quoting State v. Kelly, 97

N.J. 178, 223 (1984)). This is "the baseline for the admissibility of expert

testimony." Ibid.

Here, the first prong of N.J.R.E. 702 is satisfied because there is no dispute

that the impact of opiates on vision is beyond the ken of the average juror. The

third prong of N.J.R.E. 702 was addressed by the trial court's finding that Dr.

Guzzardi had sufficient expertise to opine that plaintiff was under the influence

at the time of the accident. But the trial court did not address the second prong

of N.J.R.E. 702—whether Dr. Guzzardi's opinion was based on a reliably sound

methodology—and instead focused on whether his testimony amounted to an

impermissible net opinion.

On appeal, plaintiff does not dispute that heroin use causes pinpoint pupils

but rather he challenges the definition of pinpoint pupils, whether his

presentation fit this definition, whether the presence of pinpoint pupils was an

accurate estimator that he remained under the influence of heroin, and whether

his pinpoint pupils impacted his vision. Our review of the record reveals the

trial court did not consider these arguments, all of which challenge the reliability

of Dr. Guzzardi's opinion.

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We have an overarching concern that the trial court's analysis failed to

sufficiently adhere to the Daubert standard and the principles set forth by our

Supreme Court more recently in Accutane and Olenowski. Put succinctly, Dr.

Guzzardi opined that because plaintiff had admitted to using heroin earlier in

the day, and because he presented with pinpoint pupils at the time of the

accident, he was still under the influence of heroin at the time of the accident.

Dr. Guzzardi did not claim that plaintiff's heroin use impaired his

judgment or reaction time; he conceded that he could not make those

determinations because he did not know how much heroin was in plaintiff's

system. Nonetheless, Dr. Guzzardi opined that plaintiff's pinpoint pupils

impaired his peripheral vision and ability to see at night. This conclusion is

salient because the only adverse effect of plaintiff's heroin use according to Dr.

Guzzardi, was its impact on plaintiff's vision. The trial court never determined

that Dr. Guzzardi was qualified to testify about vision under N.J.R.E. 702.

Moreover, there is no real dispute that heroin can cause pinpoint pupils,

and that Dr. Guzzardi, having expertise in toxicology, can opine as to that fact.

But, Dr. Guzzardi's opinion went beyond this point, opining about how pinpoint

pupils, in turn, impact one's peripheral vision and ability to see at night. While

our Supreme Court has taken a liberal approach when assessing an individual's

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qualifications to testify on a topic as an expert witness, State v. Jenewicz, 193

N.J. 440, 454 (2008), the trial court did not address whether Dr. Guzzardi's

expertise—as a toxicologist and emergency room physician—extended to how

opioids impact one's vision, despite his lack of qualifications as an

ophthalmologist. In this respect, Dr. Guzzardi's lack of expertise in the area of

ophthalmology may constitute a flawed analysis, and the trial court failed to

properly assess Dr. Guzzardi's qualifications to testify on this point. We add

that Dr. Guzzardi's testimony to the jury that plaintiff's heroin use adversely

impacted his vision, without being able to quantify to what extent it impacted

plaintiff's vision, may constitute speculation and a net opinion.

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.'" Townsend v. Pierre, 221 N.J. 36, 53-54 (2015)

(quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)). It "mandates that

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

methodology, and demonstrate that both the factual bases and the methodology

are reliable.'" Id. at 55 (quoting Landrigan, 127 N.J. at 417). An expert's

conclusion may be excluded "if it is based merely on unfounded speculation and

unquantified possibilities." Ibid. (quoting Grzanka v. Pfeifer, 301 N.J. Super.

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563, 580 (App. Div. 1997)). Such an opinion is excluded because "when an

expert speculates, 'he [or she] ceases to be an aid to the trier of fact and becomes

nothing more than additional juror." Ibid. (quoting Jimenez v. GNOC, Corp.,

286 N.J. Super. 533, 540 (App. Div. 1996), overruled on other grounds, Jerista

v. Murray, 185 N.J. 175 (2005)). The net opinion rule also "focuses upon 'the

failure of the expert to explain a causal connection between the act or incident

complained of and the injury or damage allegedly resulting therefrom.'" Kaplan

v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 102 (App. Div. 2001) (quoting

Buckelew v. Grossbard, 87 N.J. 512, 524 (1981)).

Plaintiff also maintains that Dr. Guzzardi's opinion should have been

excluded because he could not conclusively determine whether plaintiff's heroin

use was a significant contributing factor for the accident. In Gustavson v.

Gaynor, 206 N.J. Super. 540, 545-46 (App. Div. 1985), we addressed

admissibility of intoxication evidence and its potential for prejudice in a

personal injury action where a party purportedly drank alcohol prior to his car

accident. We held that a party's consumption of alcohol could not be admitted

unless there was "supporting evidence" that the driver was unfit to drive due to

his or her intoxication at the time of the accident. Id. at 545. Such evidence

may include proof of excessive drinking or erratic driving. Ibid. Similarly, our

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Supreme Court recently commented that where a driver's ingestion of drugs is

alleged to have caused the driver's impairment, the impairment "must be proven

by the State with independent evidence." State v. Olenowski, 255 N.J. 529, 609

(2023) (Olenowski II) (citing State v. Bealor, 187 N.J. 574, 577 (2006)). Such

independent evidence may include factual observations of intoxication by the

arresting officer, a driver's admission, or drug paraphernalia found in the car.

Id. at 610. Plaintiff also questions whether there is medical support for Dr.

Guzzardi's opinion that pinpoint pupils mean one is still under the influence of

heroin and whether the probative value of the heroin evidence is outweighed by

the potential for undue prejudice.9

9

As discussed in Olenowski II, 255 N.J. at 549, under the influence means "a

substantial deterioration or diminution of the mental faculties or physical

capabilities of a person whether it be due to intoxicating liquor, narcotic,

hallucinogenic or habit-producing drugs." (quoting State v. Tamburro, 68 N.J.

414, 420-21 (1975)). Yet in terms of criminal liability, unlike with alcohol

consumption, there is no designated blood level that constitutes a "per se

violation" of driving under the influence of drugs. Id. at 545, 548.

Consequently, while a toxicology report can corroborate the presence of drugs

in the driver's system, it "cannot prove that the driver was actually impaired by

drugs while behind the wheel," and it is unclear what "drug level . . . establishes

impairment per se." Id. at 608. While this language refers to criminal

culpability, it also relates to the lack of clarity as to what constitutes drug-

impaired driving.

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Although we do not resolve these questions here, we are persuaded the

best course is to remand this matter to the trial court for a more fulsome analysis

of the Dauber factors. We accordingly remand this matter to the trial court to

conduct a Daubert hearing and to provide a more detailed and complete factor-

by-factor Daubert analysis.

For the benefit of the trial court, the parties shall provide the trial court,

within twenty days of this opinion, their appellate briefs, and appendices. The

trial court has the discretion to require supplemental briefing. If the trial court

determines that Dr. Guzzardi offered a proper expert opinion, and that the heroin

evidence was not unduly prejudicial, the verdict should stand, otherwise, a new

trial will be necessary. The remand shall be concluded by April 26, 2024. We

intimate no views on the appropriate outcome.

III.

Next, plaintiff argues the trial court erred in following the Model Jury

Charge on settling defendants. Plaintiff contends the trial court should have

rejected use of the Model Jury Charge, as the trial court did in the case of

Hernandez v. Chekenian, 447 N.J. Super. 355 (Law Div. 2016), because the

settlement was irrelevant to the jury's deliberations. We disagree.

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Appropriate and proper jury instructions are essential for a fair trial.

Prioleau v. Ky. Fried Chicken, Inc., 223 N.J. 245, 256 (2015). "A jury is entitled

to an explanation of the applicable legal principles and how they are to be

applied in light of the parties' contentions and the evidence produced in the

case." Ibid. (quoting Viscik v. Fowler Equip. Co., 173 N.J. 1, 18 (2002)). Thus,

"[j]ury charges 'must outline the function of the jury, set forth the issues,

correctly state the applicable law in understandable language, and plainly spell

out how the jury should apply the legal principles to the facts as it may find

them[.]'" Ibid. (quoting Velazquez v. Portadin, 163 N.J. 677, 688 (2000)).

Instructions given in accordance with the Model Jury Charges, or which

closely track the Model Jury Charges, are generally not considered erroneous.

Mogull v. CB Com. Real Estate Grp., Inc., 162 N.J. 449, 466 (2000). "As a

general matter, [appellate courts] will not reverse if an erroneous jury instruction

was 'incapable of producing an unjust result or prejudicing substantial rights.'"

Prioleau, 223 N.J. at 257 (quoting Mandal v. Port Auth. of N.Y. & N.J., 430 N.J.

Super. 287, 296 (App. Div. 2013)).

At trial, plaintiff moved to exclude any mention of the DOT settlement to

the jury, arguing it was irrelevant and would result in undue speculation by the

jury as to the amount of the settlement, and thus adversely influence any award

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to him. The trial court disagreed, stating the jury would learn of DOT's role in

the accident during trial, and during deliberations would consider whether DOT

was negligent and a proximate cause of the accident, making it "the elephant in

the room with the jury free to speculate in any direction to the unfair detriment

to either party because . . . DOT was not a participant at trial."

At the start of trial and following counsels' summations, the trial court

instructed the jury that DOT was a named defendant in this case, but "[b]efore

the trial started, . . . plaintiff and . . . DOT . . . resolved their differences." The

trial court directed the jury "not to speculate as to the reasons why . . . plaintiff

and . . . DOT settled this dispute," or what amount, if any, was paid to resolve

the claim. The trial court then instructed the jury to consider whether the

Township was negligent, and if it was, whether its negligence was a proximate

cause of the accident. Next, the trial court instructed the jury to consider

whether DOT was negligent, and if so, whether its negligence was a proximate

cause of the accident.

On appeal, plaintiff reprises the argument he made before the trial court

that it should have followed the holding in Hernandez, 447 N.J. Super. at 358-

59, and departed from the Model Jury Charge because the charge contains

irrelevant information regarding a settlement and highlighting the settlement

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invited speculation. Plaintiff further argues that since the jury had to consider

DOT's level of culpability anyway, the settlement terms were irrelevant,

comparing the situation to cases where parties are barred from addressing a

related worker's compensation claim in a third-party lawsuit based on the theory

the jury may be influenced to give the plaintiff's claim less consideration if it

thinks plaintiff has other avenues of redress. We are unpersuaded.

Pertinent here is the language contained in Model Jury Charges 1.11G and

1.17 on "Settling Defendants," given by the trial court at the beginning and end

of the trial. The preliminary charge advises the jury that the plaintiff had raised

a claim against another party, and before the trial started, the other party and

plaintiff had settled and the other party "will no longer be involved in this trial."

Model Jury Charges (Civil), 1.11G, "Settling Defendants" (rev. Apr. 2018).

The Model Jury Charge given before deliberations is more detailed,

notifies the jury that there was another defendant in the case; that plaintiff and

the other defendant reached a settlement; and instructs the jury not to speculate

as to the reasons for the settlement or the amount, if any, of the settlement.

Model Jury Charges (Civil), 1.17, "Instructions to Jury in Cases in Which One

or More Defendants Have Settled with the Plaintiff" (rev. Apr. 2018). The

charge continues that the jury must first determine if the remaining defendant

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was negligent and the proximate cause of the accident, and then if the settling

defendant also was negligent and a proximate cause of the accident. Ibid.

However, the Model Jury Charges include a "Note to Judge," which reads

as follows:

In Hernandez v. Chekenian, 447 N.J. Super. 355 (Law

Div. 2016), Judge Rea held that Model Civil Jury

Charges 1.11G and 1.17 should only be used in cases

where the defendant settles during trial. It should not

be given when defendants settle before the trial begins

because it is irrelevant and unduly prejudicial. In dicta,

he questioned the use of the terms "settlement" and

"settled" as being irrelevant as well as prejudicial. This

case, while published, has not been the subject of

appellate review. The Supreme Court Committee for

Model Civil Jury Charges is providing this for

informational purposes for the trial judge.

[Model Jury Charges (Civil), 1.11G; Model Jury

Charges (Civil), 1.17.]

Plaintiff relies on the holding in Hernandez, 447 N.J. Super. at 357, where

the trial court held that the settling defendant jury charge should not be given if

the party in question settled the case before trial began. The case involved a

three-car accident, where one of the defendants settled with the plaintiff through

his insurance carrier. Id. at 356. There, the trial court declined to read the

settling defendants jury charge, finding that there was "no legitimate reason that

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a jury needs to be told that there was another defendant(s) who settled their

dispute(s) by paying an amount of money." Id. at 357.

The trial court in Hernandez questioned the language of the Model Jury

Charge, stating that it raised an issue that was not relevant to the deliberations

process, and then immediately told the jury to disregard it. Id. at 358. The trial

court there noted that the settling defendant charge was combined with the

language about comparative negligence, where a settling party appears on the

verdict sheet to determine the percentage of negligent conduct attributable to

that party. Id. at 358-59. The trial court added that this does not mean, however,

that the jury should also be told that the settling party paid money to the plaintiff.

Id. at 359. We note the trial court's decision in Hernandez did not result in any

substantive changes to Model Jury Charges (Civil) 1.116 and 1.17. The "Note

to Judge" specifies the Hernandez decision is provided for informational

purposes for the trial judge and has not been the subject of appellate review.

Here, the trial court's jury instructions correctly adhered to the Model Jury

Charges. "[A] jury charge is presumed to be proper when it tracks the [M]odel

[J]ury [C]harge because the process to adopt [M]odel [J]ury [C]harges is

'comprehensive and thorough.'" State v. Cotto, 471 N.J. Super. 489, 543 (App.

Div. 2022) (quoting State v. R.B., 183 N.J. 308, 325 (2005)). See also Mogull,

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162 N.J. at 44 ("It is difficult to find that a charge that follows the Model Jury

Charge so closely constitutes plain error."). However, the Model Jury Charges

"are not binding authority," State v. Bryant, 419 N.J. Super. 15, 28 (App. Div.

2011), and may be reviewed on appeal. Morlino v. Med. Ctr., 152 N.J. 563, 590

(1998) (although the Court concluded that the disputed Model Jury Charge did

not have the capacity to mislead the jury, it nevertheless remanded the charge to

the Supreme Court Committee on Model Jury Charges, Civil, to reconsider and

rework the charge in consideration of the Court's findings).

The jury in this case was advised in a straightforward manner that plaintiff

and DOT "resolved their differences" prior to trial, and the jury was not to

speculate about what the resolution was. Moreover, it has long been the practice

in New Jersey that,

where multiple tort-feasors are or may be jointly

responsible for an individual's injuries and losses, and

one or more of them effect a settlement in exchange for

a covenant not to sue, the fact of the settlement, but not

the amount paid, is generally brought to the attention of

the jury at the trial.

[Theobold v. Angelos, 40 N.J. 295, 303-04, 191 A.2d

465 (1963).]

Essentially, jurors have to be told the facts of a settlement in order to avoid juror

speculation. Theobold, 40 N.J. at 304. The danger of this speculation arises

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whenever a jury is asked to make a liability determination regarding an absent

party, regardless of whether that party appeared for any portion of the trial.

Finally, a reviewing court is concerned with the "overall effect" of a jury

charge rather than allegedly erroneous words "in isolation." State v. Savage,

172 N.J. 374, 387 (2002). In this case, the trial court was not bound to follow

the dicta in Hernandez, and it clearly was appropriate to use the Model Jury

Charges as given, which complied with well-established precedent, and in these

circumstances, did not create prejudice.

Affirmed in part, and remanded in part for a Daubert hearing. We do not

retain jurisdiction.

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