Opinion
DOCKET NO. A-1038-13T2
05-19-2015
JOSEPH R. TORDELLA, D.O., Plaintiff-Appellant/Cross-Respondent, v. INFOSHARE, INC., a New Jersey, Non-Profit Corporation, and ATLANTICARE HEALTH SYSTEM, INC., a New Jersey Corporation and/or ATLANTICARE HEALTH SERVICES, INC., a New Jersey Corporation, Defendants-Respondents/Cross-Appellants.
Kimberly D. Sutton argued the cause for appellant/cross-respondent (Obermayer Rebmann Maxwell & Hippel, LLP, attorneys; Ms. Sutton, on the briefs). Sarah Beth Johnson argued the cause for respondents/cross-appellants (Fox Rothschild, LLP, attorneys; Ms. Johnson and Jacob S. Perskie, on the briefs).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz and St. John. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1410-10. Kimberly D. Sutton argued the cause for appellant/cross-respondent (Obermayer Rebmann Maxwell & Hippel, LLP, attorneys; Ms. Sutton, on the briefs). Sarah Beth Johnson argued the cause for respondents/cross-appellants (Fox Rothschild, LLP, attorneys; Ms. Johnson and Jacob S. Perskie, on the briefs). PER CURIAM
Plaintiff Joseph R. Tordella, D.O., appeals a post-trial order dismissing in part his claim as being barred by the six-year statute of limitations, N.J.S.A. 2A:14-1, and denying his motion to conform the judgment to include defendants AtlantiCare Health Systems, Inc. (AtlantiCare) and AtlantiCare Health Services, Inc. (Services). Defendants InfoShare, Inc., AtlantiCare and Services (collectively defendants) cross-appeal contending plaintiff's entire claim should have been barred, and plaintiff's expert should have been precluded from offering an unsubstantiated net opinion. In the circumstances here, we are satisfied that the trial judge correctly barred a portion of plaintiff's claim and the expert did not offer a net opinion. Accordingly, we affirm the judgment appealed from by the parties.
The underlying facts are complicated and involve a long chronology of business transactions and relationships. We shall summarize them from the record.
In 1991, Tordella formed Ocean City Medical Center, P.C. (OCMC). OCMC operated as an urgicenter rendering family medicine services, treatment, and care for non-life threatening emergencies. OCMC treated approximately 15,000 patients annually. After patient services were provided, bills or "claim[s] for payment," which created "account[s] receivable" (AR), were sent from OCMC to patients' health insurance companies or to other applicable payors to obtain payment of the fees for the medical services provided by OCMC.
According to Tordella, when a claim was sent for payment, OCMC would not receive payment for the services it rendered for approximately three to six months and sometimes longer because it took several months for out-of-state insurance carriers to approve a claim for payment. At times, it took years for payments to be made because claims were contested and sometimes litigated. OCMC carried about $500,000 in AR, which represented about six months of income. Prior to September 2002, OCMC's annual gross billings were over $1.1 million. OCMC historically collected seventy-two percent of its AR, but insurance companies decreased payments for services so that by September 2002, OCMC was collecting approximately fifty-five percent of its AR.
In 2000, AtlantiCare retained Tordella as a consultant to assist with the formation of outpatient networks of urgicenters and medical practice acquisitions. Tordella worked as a consultant for AtlantiCare for the next five years, reporting to Donald Parker. In June, Tordella and Services discussed the acquisition of OCMC by Services. Tordella also expressed to Parker his dissatisfaction with OCMC's billing and collection vendor. Parker recommended InfoShare, a company related to Services.
InfoShare and OCMC entered into a written Professional Billing Services Agreement dated September 1, 2002 to perform billing and collection services on accounts of OCMC for medical services rendered to patients after September 4, 2002. This obligation continued through May 12, 2003, when AtlantiCare purchased OCMC from Tordella. Tordella also claimed that the parties entered into an implied contract for the collection of AR that were accumulated by OCMC prior to September 4, 2002. OCMC received periodic payments of approximately $94,000 from InfoShare for collected AR with the last payment in March 2005. According to Tordella, InfoShare took full charge of the proceeds from the collections, depositing the revenue it received on behalf of OCMC from insurance carriers and other payers directly into InfoShare's account. Tordella did not receive bank statements or other records that reflected the amount of money that InfoShare collected on OCMC's AR. From September 1, 2002 to February 25, 2003, Tordella did not receive any checks from InfoShare that reflected any of the proceeds that were collected on OCMC's behalf.
According to Tordella, in late February 2003, OCMC received its first payment from InfoShare in the amount of $17,963.82. Tordella could not determine how much money InfoShare had collected during the past five months it had been providing services or how it arrived at the amount paid. The next month, Tordella received a second payment from InfoShare in the amount of $14,993.53. These payments were notably less than the revenue that OCMC had historically generated during winter which had approached $38,000.
On April 30, 2003, pursuant to an Asset Purchase Agreement, OCMC sold its assets to Services, and Tordella entered into a consulting agreement to assist in the transition. Excluded from the sale were "all accounts receivable related to services rendered prior to closing." The pre-closing AR would be collected and paid by InfoShare to Tordella, and post-closing AR would be paid to Services. At some point in 2004, AtlantiCare allegedly assumed InfoShare's billing and collection business operations.
Sometime around May 2003, Tordella notified Parker that the payments he received from InfoShare were less than he had expected. According to Tordella, Parker agreed to look into the problem and rectify the concern. In July or August 2003, Tordella requested that Paul Szklarski look into InfoShare's collection of OCMC's AR to determine why the receipts were not reflective of OCMC's historical collections.
Szklarksi holds an MBA in Health and Medical Services Administration and was a certified accounts manager with American Guild of Patient Accounts Managers. He had experience and knowledge in the medical billing and collections industry.
In August 2003, Szklarski allegedly met with Gina Russo-Healy at AtlantiCare's office park in Absecon. Russo-Healy advised Szklarski that InfoShare had been unable to open the computerized files for OCMC. After the meeting, fifteen boxes of OCMC's billings and collection records were taken out of storage and delivered to Szklarski. Szklarski testified that he reviewed the fifteen boxes and saw that they did not include any reports or other documentation from InfoShare concerning its billing and collection efforts.
There is dispute in the record as to whether this meeting occurred — and if so, where it occurred and what was discussed.
Szklarski performed an inventory of the boxes, pulling out approximately one hundred files, admittedly three percent of the files, to see if they had been billed to an insurance company; to see if the reports that were provided by the prior billing company were accurate and valid; and to determine the outstanding value of the AR that had been delivered to InfoShare. He was not asked to calculate the total amount of AR for which InfoShare was responsible, but did so.
At the conclusion of his review and based on the information available to him, Szklarski was of the opinion that InfoShare had not started the billing and collection process, and there was a significant amount of money that had not yet been collected. He also was of the opinion that there were $500,000 in charges outstanding as of September 2002, of which he estimated that $180,000 was collectable.
Szklarski told Tordella the results of his inquiries. At that time, Tordella was still serving as an AtlantiCare consultant in which he reported to Parker, as well as providing services pursuant to the transition agreement. Tordella allegedly relayed the information that Szklarski had provided to Parker. Parker told Tordella that he would look into the problems and assured him that the outstanding funds would be collected.
Parker confirmed that the information Szklarski had was erroneous and that InfoShare acquired OCMC's electronic billing files from the prior medical billing company and only some of the files had difficulty transferring. Parker stated that the files that could not be opened and billed electronically had been billed manually by InfoShare. Tordella testified that Parker assured him that he would eventually receive the funds he expected. Tordella testified that he regularly reached out to Parker who assured him that they were still working on getting the money owed to him.
Through March 31, 2005, Tordella continued to receive checks from InfoShare, but they were less than what he expected to be paid; and, in turn, he continued to reach out to Parker, who advised him that he was looking into it. Tordella received no further checks after March 31, 2005, and in Spring 2006, he was advised that his services as a consultant with AtlantiCare were no longer needed.
On April 23, 2008, Tordella sent a letter to Parker further expressing his concerns, and Parker responded saying he was unable to do anything and said Tordella would need to take legal action to recover the money he believed was owed to him. Tordella did not file a complaint until April 2010.
A jury trial on the merits was conducted between June 24 and June 28, 2013. At the conclusion of the case, the trial judge instructed the jury that the parties agreed that OCMC and InfoShare entered into a contract, whereby InfoShare agreed to service the billing and collection for the corporation from September 4, 2002 until May 12, 2003, when AtlantiCare purchased OCMC from Tordella. There was no dispute that InfoShare had a duty and responsibility to use reasonable efforts to collect OCMC's AR. The judge further instructed that Tordella claimed InfoShare breached its agreement because "it failed to collect monies owed to Dr. Tordella for services performed after September 4, 2002 and through May 12, 2003." The judge noted that InfoShare denied that it had the responsibility to attempt to collect the AR that existed at the time that it took over the collection process. Tordella contends that the written contract obligated InfoShare to collect the AR that existed before September 4, 2002. InfoShare asserted that the language of the contract only applied to services that were performed after September 4, 2002. In addition to claiming that the expressed contract was breached, Tordella contended that an implied contract existed for the collection of the pre-September 4 AR, which was also breached by InfoShare.
The judge further instructed it was Tordella's burden to prove there was a breach of the contract. The judge pointed out it was Tordella's assertion that even if the contract did not obligate InfoShare to collect the AR generated before September 4, "there was an implied contract between the parties based upon their course of conduct that obligated [InfoShare] to do just that." The judge set forth the definition of an expressed contract and further instructed a jury that a contract may be expressed or implied or it may be a mixture of the two. The judge then defined an implied contract for the jury.
After instructing the jury on the issues of law, the judge reviewed the verdict sheet with the jurors. The first question submitted to the jury was whether Tordella established that OCMC and InfoShare entered into a contract, expressed or implied, requiring InfoShare to use reasonable efforts to collect the AR that accumulated prior to September 4, 2002, and, if so, whether the contract was breached by InfoShare. The second question was whether plaintiff established that OCMC and InfoShare entered into a contract that required InfoShare to use reasonable efforts to collect the AR that accumulated from September 4, 2002 through May 12, 2003, and, if so, whether that obligation was breached by InfoShare. The third question concerned the covenant of good faith and fair dealing and whether plaintiff established that InfoShare breached that obligation. The fourth question was whether plaintiff established that he was damaged as a proximate result of the breach of contract by defendant. The jury found affirmatively with regard to the first four questions by a vote of seven to one. Question five addressed the issue of damages and the jury awarded, by an eight to zero vote, the amount of $390,000.
After the jury rendered its verdict, the court instructed counsel to submit additional briefs addressing the issue of the statute of limitations with specific references to the testimony and evidence produced at trial. On August 23, 2013, the court granted defendants' motion to impose the statute of limitations to bar plaintiff's recovery of monies related to AR accruing before September 4, 2002, thereby reducing the award by $180,000. On October 11, 2013, the court denied plaintiff's motion for reconsideration.
On appeal, plaintiff argues the court erred when it barred his claim for AR created prior to September 4, 2002. He asserts that it was error to conclude those claims accrued when he became concerned about InfoShare's billing practices and not when InfoShare made the last payment to him. He argues the court abused its discretion when it determined that equitable estoppel was not applicable and when it denied his request to conform the judgment to include all defendants, not just InfoShare.
Prior to trial, InfoShare moved for summary judgment, contending plaintiff's claim was barred by the statute of limitations and to exclude Szklarski's net opinion. The motion was denied. On cross-appeal, defendants' argue the court erred in denying InfoShare's motion for summary judgment barring the entire award based on the statute of limitations, and in refusing to preclude Szklarski from offering, what they assert, was an unsubstantiated net opinion.
We begin by noting that a trial court "has the inherent power to be exercised in its sound discretion, to review, revise, reconsider and modify its interlocutory orders at any time prior to the entry of final judgment." Lombardi v. Masso, 207 N.J. 517, 534 (2011) (emphasis omitted) (citation and internal quotation marks omitted).
"A ruling on summary judgment is reviewed de novo." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014). In determining whether summary judgment is proper, we "apply the same standard governing the trial court," Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012), and do not defer to the trial court's interpretation of "the meaning of a statute or the common law." Nicholas v. Mynster, 213 N.J. 463, 478 (2013). On the other hand, we will defer to a trial court's factual findings, particularly those influenced by the court's opportunity to assess witness testimony firsthand, provided the findings are supported by "sufficient credible evidence in the record. . . ." Brunson v. Affinity Fed. Credit Union, 199 N.J. 381, 397 (2009) (citation and internal quotation marks omitted); see also Cesare v. Cesare, 154 N.J. 394, 412 (1998).
Motions for reconsideration pursuant to Rule 4:49-2 are addressed to "the sound discretion of the Court, to be exercised in the interest of justice." Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996) (citation and internal quotation marks omitted). Reconsideration is to be utilized narrowly and reserved for situations where the court relied "'on plainly incorrect reasoning[,]'" where the court failed to consider probative, competent evidence, or where "'there is good reason for [the court] to reconsider new'" evidence. Town of Phillipsburg v. Block 1508, Lot 12, 380 N.J. Super. 159, 175 (App. Div. 2005) (emphasis omitted) (quoting Pressler, Current N.J. Court Rules, comment 2 on R. 4:49-2 (2005)). Reconsideration should be exercised "'in the service of the ultimate goal of substantial justice.'" Casino Reinvestment Dev. Auth. v. Teller, 384 N.J. Super. 408, 413 (App. Div. 2006) (quoting Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 264 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)).
We review the jury's determination in accordance with a deferential standard. "A jury verdict is entitled to considerable deference and should not be overthrown except upon the basis of a carefully reasoned and factually supported (and articulated) determination, after canvassing the record and weighing the evidence, that the continued viability of the judgment would constitute a manifest denial of justice." Risko v. Thompson Muller Auto. Grp., Inc., 206 N.J. 506, 521 (2011) (citation and internal quotation marks omitted). An appellate court should not disturb the findings of the jury merely because it would have found otherwise upon review of the same evidence. Carrino v. Novotny, 78 N.J. 355, 360 (1979).
First, we sustain the trial judge's decision insofar as it treats any claims for payments due for services rendered before September 4, 2002, as time-barred because such claims were not filed within the six-year limitations period under N.J.S.A. 2A:14-1. Our "courts have generally stated that a claim accrues, for statute of limitations purposes, on the date on which the right to institute and maintain a suit first arose." Cnty. of Morris v. Fauver, 153 N.J. 80, 107 (1998) (citations and internal quotation marks omitted).
The record supports the judge's perceptive observation that Szklarski was retained by Tordella "to investigate whether or not InfoShare was collecting the accounts receivable due and owing as of September 4, 2002" and that "Szklarski clearly advised Dr. Tordella that as of August or September of 2003 that with respect to the money that was due and owing as of September 4, 2002, InfoShare was not doing its job and was not collecting that money. . . ." The judge concluded Tordella,
as a reasonably prudent individual, in August of 2003, based upon what the individual who he hired to review the documents told him, knew or should have known of the existence of a cause of action at that point and that he was being damaged
because InfoShare was not collecting that money.Tordella's sophistication cannot be overlooked. He had owned and managed OCMC since 1991 and had extensive experience in the collection of his AR. Therefore, it was reasonable for the trial judge to find the existence of sufficient knowledge by 2003 to trigger operation of the statute of limitations for the AR generated prior to September 4, 2002.
We are equally satisfied that the "discovery rule" sometimes invoked to toll a limitations statute does not apply. Id. at 110 (holding that the discovery rule is usually not applied in breach of contract cases because the parties are deemed to be aware of the provisions of their contract).
Tordella further asserts, notwithstanding Szklarski's investigation, his cause of action did not arise while he was receiving payments from InfoShare "in the [S]pring of 2003 to March 30, 2005." However, Tordella's experience and the investigation by Szklarski provided the knowledge sufficient to trigger commencement of the statute. See Axelrod v. CBS Publ'ns, 185 N.J. Super. 359, 369 (App. Div. 1982) (continuing royalty payments did not toll statute of limitations where author previously had managed publishing company, had signed numerous royalty contracts, had believed for more than two years previous to commencement of suit that he was not being given fair count, and had sufficient knowledge to discover evidence of fraud within period of limitations).
Additionally, Tordella argues that even if his claim accrued in 2003, the statute was tolled because of the "payments on account and acknowledgement of the debt." He contends tolling applies where there is a running book account with partial payments made as part of a larger debt. These contentions misconstrue the contractual relationship between the parties. InfoShare did not purchase the AR from OCMC and, in exchange, incur a debt to OCMC. The contractual relationship was a service contract whereby InfoShare did not own the AR but acted solely as a company to provide medical billing and collection services for OCMC.
It is further argued by Tordella, although not pleaded by him in the complaint, that InfoShare breached a fiduciary duty and that breach tolled the statute. He urges our decision in Dynasty Building Corporation v. Ackerman, 376 N.J. Super. 280 (App. Div. 2005), which involved the alleged improper disbursement from an attorney trust account, supports the tolling of the statute. Although we concluded in Dynasty that the motion judge erred in applying the statute of limitations to dismiss the plaintiff's cause of action, we noted that the plaintiff was not advised of the improper disbursement until after December 31, 1996, and the complaint was filed on December 20, 2002, within the six-year statute period. Id. at 286-87. Here, the trial judge found knowledge sufficient to trigger running of the statute chargeable to Tordella no later than 2003.
Next, Tordella contends that the trial judge erred by not applying equitable tolling. In contract actions, equitable estoppel has been used to prevent a defendant from asserting the statute of limitations when the defendant engages in conduct that is calculated to mislead the plaintiff into believing that it is unnecessary to seek civil redress. Thus, we have recognized that equitable estoppel may be appropriate where "a defendant has lulled a plaintiff into a false sense of security by representing that a claim will be amicably settled without the necessity for litigation." W.V. Pangborne & Co. v. N.J. Dep't of Transp., 116 N.J. 543, 553-54 (1989) (citations and internal quotation marks omitted). See also Pressler & Verniero, Current N.J. Court Rules, comment 36.4.1 on R. 4:5-4 (2015) ("The doctrine of equitable tolling is typically applied to relieve a plaintiff who has been induced or tricked by defendant into missing a deadline."); Price v. N.J. Mfrs. Ins. Co., 368 N.J. Super. 356, 363 (App. Div. 2004), aff'd, 182 N.J. 519 (2005); Villalobos v. Fava, 342 N.J. Super. 38, 50 (App. Div.), certif. denied, 170 N.J. 2010 (2001).
Tordella primarily contends representations by Parker should trigger equitable estoppel and toll the statute. The judge reasonably found that equitably tolling principles are inapplicable to such pre-September 2002 claims. As the judge found, "Szklarski clearly advised Dr. Tordella that as of August or September of 2003 that with respect to the money that was due and owing as of September 4, 2002, InfoShare was not doing its job and not collecting that money[.]" We conclude the record does not support the application of equitable estoppel for the pre-September 4, 2002 claims.
Finally, Tordella asserts the court erred when it denied his motion to conform the judgment to include all defendants, in addition to InfoShare. Plaintiff states that InfoShare has no separate existence and that it served as a division or business unit of AtlantiCare. Further, Tordella represents AtlantiCare took over InfoShare's business operations and thus became liable for the judgment as the surviving corporation. An argument was also proffered on appeal that defendants failed to present any evidence that InfoShare had a corporate existence that was separate from AtlantiCare. In effect, Tordella argues that by operation of law, the liabilities of InfoShare attach to the other defendants. We disagree.
Paragraph 2 of plaintiff's complaint states InfoShare "is a New Jersey Non-Profit Corporation."
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According to N.J.S.A. 14A:10-6(e):
The surviving or new corporation shall be liable for all the obligations and liabilities of each of the corporations so merged or consolidated; and any claim existing or action or proceeding pending by or against any of such corporations may be enforced as if such merger or consolidation had not taken place. Neither the rights of creditors nor any liens upon, or security interests in, the property of any of such corporations shall be impaired by such merger or consolidation.Thus, in a statutory merger, all of the liabilities of a former corporation attach to the surviving corporation. See Baker v. Nat'l State Bank, 161 N.J. 220, 228 (1999) (holding that proof of a merger was sufficient to establish successor liability under N.J.S.A. 14A:10-6(e)); Vega v. Standard Mach. Co., 290 N.J. Super. 434, 440-41 (App. Div. 1996) (holding that a wholly-owned subsidiary merged into its parent ceases to exist and "its liabilities become the obligation of the surviving parent" under N.J.S.A. 14A:10-6(e)); Brotherton v. Celotex Corp., 202 N.J. Super. 148, 153-55 (Law Div. 1985) (holding in an asbestos-related personal injury action that the effect of N.J.S.A. 14A:10-6(e) is to impose liability on a successor corporation for any obligation incurred by its predecessor--including claims of punitive damages--so long as a merger took place); Dep't of Transp. v. PSC Res., Inc., 175 N.J. Super. 447, 453 (Law Div. 1980) (holding that a purchasing corporation is liable for claims against a company that it acquired if the acquisition was in the form of a statutory merger or consolidation).
In denying Tordella's motion, the judge noted that the contracting party was InfoShare, "the trial focus was between InfoShare and Dr. Tordella, not against AtlantiCare." The judge concluded there was not a basis "to enter a judgment against AtlantiCare." We agree. Although Tordella posits the concept of merger or consolidation, he had the burden of proof and such proof was lacking. Further, we note both the jury charge and the verdict form was directed against InfoShare and not any other defendant.
In its cross-appeal, InfoShare claims the trial court erred in denying its motion for summary judgment, and Tordella's entire claim should have been barred. InfoShare argues "[a]s a matter of law, Dr. Tordella's claims accrued in early 2003, when he first became 'concerned' that InfoShare was not collecting OCMC's A/R under the InfoShare Contract." This issue turns on the question of whether the "InfoShare Contract" was one contract or, as found by the jury, two contracts, one expressed and one implied.
The jury found Tordella established that OCMC and InfoShare entered into a contract, expressed or implied, requiring InfoShare to use reasonable efforts to collect the AR that accumulated prior to September 4, 2002. Szklarski advised Tordella, with respect to the money that was due and owing as of September 4, 2002, InfoShare was not doing its job and not collecting that money. Szklarski did not examine the AR generated on and after September 4, nor did he advise Tordella concerning InfoShare's performance under the written contract for the collection of September 4 and thereafter AR between it and OCMC. The jury found in count two Tordella established that OCMC and InfoShare entered into a contract that required InfoShare to use reasonable efforts to collect the accounts receivable that were accumulated from September 4, 2002 through May 12, 2003, and that obligation was breached by InfoShare. This was a separate and distinct contractual obligation from the pre-September 2002 contract.
As the judge determined,
with respect to the accounts receivable that were collected or should have been collected after September of 2002, Szklarski was not involved in that aspect of the collection process. He didn't evaluate InfoShare's activities with respect to the collection of
those accounts receivable, and from Dr. Tordella's perspective he's receiving funds all the way through, as I recall, March 31, 2005, he was receiving money on . . . accounts receivable for his business. There, I think he was lulled into a false sense of security, and I think that a reasonable time after March 31, 2005, the statute of limitations was triggered, it's a six-year statute of limitations, and obviously the suit was filed on April 1, 2010, within five years — well, almost five years — of March 31, 2005, when Dr. Tordella received his last check.We determine there is sufficient credible evidence in the record to support the judge's conclusion.
Finally, InfoShare asserts the trial court erred by not precluding Szklarski from offering an unsubstantiated net opinion. We are guided by the principle that an expert may not provide an opinion at trial that constitutes "mere net opinion." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011). The rule prohibiting net opinions is a "corollary" of N.J.R.E. 703, State v. Townsend, 186 N.J. 473, 494 (2006), which provides that an expert's testimony "may be based on facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts in forming opinions on the same subject," Weissbard & Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E. 703 (2014). Thus, the net opinion rule can be considered a "restatement of the established rule that an expert's bare conclusions, unsupported by factual evidence, [are] inadmissible." Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). The net opinion rule "requir[es] that the expert 'give the why and wherefore' that supports the opinion, 'rather than a mere conclusion.'" Pomerantz Paper Corp., supra, 207 N.J. at 372 (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)). For example, "a trial court may not rely on expert testimony that lacks an appropriate factual foundation and fails to establish the existence of any standard about which the expert testified." Id. at 373. Therefore, an expert offers an inadmissible net opinion if he or she "cannot offer objective support for his or her opinions, but testifies only to a view about a standard that is 'personal.'" Ibid.
Prior to trial, several motions were made by defendants seeking to bar the expert's report. The motion judge, who was not the trial judge, denied the motion and a motion for reconsideration. In the judge's written decision, the due diligence supporting the "why" and "wherefore" of the expert's opinion were set forth.
Subsequent to those decisions, a N.J.R.E. 104 hearing was conducted by the trial judge at which Szklarski testified. The trial judge, in his oral decision, set forth the factual due diligence undertaken by Szklarski that formed the basis for his opinion. The judge also determined that the conclusion set forth in Szklarski's opinion was "based upon his experience with respect to the collectability of aging accounts, the history of Dr. Tordella's collection from the period of 2000 through April of 2002 and his experience in the industry in general." Consequently, we agree with the judge's determination not to bar the opinion of Szklarski as a net opinion.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION