Gavel and scales

Incomplete Expert Report Leads to New Trial

Written on Thursday, February 20th, 2020 by T.C. Kelly
Filed under: ExpertWitness, Working with Experts

Different states take different approaches to the potential liability of homeowners when someone slips and falls on ice that accumulates on a sidewalk outside the home. In New Jersey, commercial property owners have a duty to keep sidewalks that abut their property safe. Residential homeowners, on the other hand, only have a duty to avoid creating an unsafe condition on a sidewalk.

The underlying issue in McBride v. Fair-Willoughby was whether a homeowner was liable for allowing water to run onto the sidewalk from a downspout. Expert witnesses disagreed about the feasibility of using a drainage system that would have avoided the runoff. The issue on appeal from a verdict in the homeowner’s favor was whether the defense expert improperly testified about his observations of neighboring houses when he had not mentioned those observations in his expert report.

Facts of the Case

April McBride and Stephanie Fair-Willoughby lived on the same street in Jersey City. On a Sunday morning in January, McBride decided to take advantage of a break in the rain to walk her dog. The sidewalk looked wet but she had no trouble walking. When she reached Fair-Willoughby’s home, she slipped on a patch of ice and fell, breaking her ankle.

McBride called her husband, who walked to her location to assist her. He observed that the entire sidewalk was wet and that the condition of the sidewalk in front of Fair-Willoughby’s house seemed no different. After making a closer inspection, however, he realized that that portion of the sidewalk was covered with black ice, a transparent sheet of ice that blends with the surface it covers.

Expert Testimony

Michael Natoli, a professional engineer, testified as a liability expert for McBride. In his opinion, melting water from the roof accumulated in Fair-Willoughby’s gutters, then traveled through a downspout to her driveway. Because of the driveway’s pitch, the water then flowed across the sidewalk.

Natoli contended that ice on the sidewalk was formed from the water that exited the downspout. Natoli suggested a couple of methods that a homeowner can use to prevent water from a downspout from flowing onto a sidewalk.

Fair-Willoughby’s only witness was also a professional engineer. David Behnken wrote a report two years after the accident occurred. He testified that Natoli’s suggestions for avoiding the problem of water drainage were not practical because Fair-Willoughby’s lot was too small.

At trial, Behnken was asked whether there was “anything improper” about the construction of the downspout on Fair-Willoughby’s property. He testified that there was not. He then added that the neighbors on both sides of Fair-Willoughby’s house had “the exact same conditions.”

Behnke’s expert report made no mention of inspecting neighboring properties or comparing Fair-Willoughby’s downspouts to those of her neighbors. Behnke based the opinions he expressed in his expert report on photographs of the accident scene. The report did not suggest that he personally inspected neighboring homes.

McBride objected that Behnken was testifying about facts that he had not mentioned in his expert report. The trial judge overruled the objection. The trial judge concluded that Behnke was merely testifying to “his observation” and that he “isn’t tied to the corners” of his report. The jury returned a verdict for Fair-Willoughby and McBride appealed.

Deviations from Expert Reports in New Jersey

Under New Jersey law, a trial judge may exclude expert testimony that comes as a surprise to the opposing party if the testimony would be prejudicial. There was no dispute that McBride was surprised by Behnke’s reference to neighboring houses.

Experts in New Jersey are typically confined to testifying only about opinions that have been disclosed in an expert report, but are generally allowed to testify about logical predicates for, and conclusions drawn from, statements made in the report.

Appellate Opinion

The trial judge’s ruling assumed that it was fair for Behnke to discuss neighboring houses because that testimony was related to his opinion that the way Fair-Willoughby’s downspout was situated was “the proper way to do it.” The appellate court concluded that the trial judge misunderstood Behnke’s testimony. Behnke’s opinion that there was nothing improper about the construction of the downspout did not establish that it is “proper” to situate a downspout to pour water onto a sloped driveway and allowing it to flow onto a sidewalk.

More importantly, Behnke’s testimony about other houses was not a logical predicate for his opinion about Fair-Willoughby’s house. Since Behnke made no mention of examining those houses, McBride had no reason to believe that he would testify about them. McBride was prejudiced by the surprise testimony because she had no opportunity to inspect the neighbors’ homes so she could verify that the testimony was accurate.

Finally, the appellate court noted that Behnke’s testimony about what other homeowners did had no relevance. He essentially invited the jury to conclude that Fair-Willoughby was not negligent because her neighbors had similar drainage systems. The question was whether Fair-Willoughby was negligent. “Everybody does it that way” was not a defense. The potential negligence of other homeowners does not absolve a negligent homeowner of liability.

The court decided that, absent the improper testimony, the jury verdict could have gone either way. Since the improper testimony may have influenced the verdict, McBride was entitled to a new trial.

Lessons Learned

The McBride case illustrates the importance of disclosing all facts in an expert report that form the basis of an expert’s opinion. Of course, the appellate court concluded that the omitted facts were not relevant. Disclosing them might have prompted a pretrial ruling that the expert could not testify about those facts. Still, it is better to resolve evidentiary issues before trial than to face a second trial after a verdict is reversed on appeal.

Experts should always take care to discuss the facts thoroughly in their reports. If lawyers intend to ask experts about facts that are not included in a report, they should make that decision before the report is submitted so that the expert has an opportunity to revise the report by including those facts.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.

About T.C. Kelly

Prior to his retirement, T.C. Kelly handled litigation and appeals in state and federal courts across the Midwest. He focused his practice on criminal defense, personal injury, and employment law. He now writes about legal issues for a variety of publications.