There Is More Than One Way to Skin a Cat



There is more than one way to skin a cat, or, as here, to win an appeal. Some ways of winning an appeal are obvious. Plaintiff wins at trial and that verdict is affirmed on appeal. Plaintiff loses at trial but wins a new trial on appeal. And then there is a third way to win an appeal.


The third way arose in a serious motor vehicle accident case. At 4:30 am, a lady was driving in New Jersey. A sign directed vehicles to merge to the left lane entering into a construction area. Ahead of her was a large garbage truck with mud obscuring its rear lights. The garbage truck was slowing down but did not use its brakes. By the time the lady saw the truck, it was too late and she crashed into the truck.


The lady sued. One of her experts estimated the speeds of the vehicles. The expert based his opinions on the police report, his inspection of the scene, many photos of the scene, and an inspection of the garbage truck. There are standard tests to estimate speed by measuring damage to vehicles in accidents or skid marks at the scene. In this case, the expert testified he could use none of those tests: the car was unavailable and there were no skid marks.


The defense challenged the expert’s opinion under the “net opinion” rule. That rule requires that an expert give the “why and wherefore” that supports his opinion, and not just a mere conclusion. The defense challenge focused on the expert’s failure to use any of the standard tests to estimate speed. The defense challenge was rejected at trial. The plaintiff won a substantial verdict. The challenge based on the net opinion rule became one of many issues raised by the defense on appeal.


The New Jersey Association for Justice (NJAJ) is concerned with cases that can make changes in the law that could either help or hurt plaintiffs. In this case, the NJAJ was concerned that the defense challenge might make the net opinion rule stricter and thus hurt plaintiffs. To present the argument to the New Jersey Supreme Court that this case should not change the net opinion rule, Mike Galpern and Jonathan Miller of Locks Law Firm prepared a friend of the court brief on behalf of the NJAJ. Jonathan was allowed to argue before the New Jersey Supreme Court.


That Court has just issued its opinion in this case, Torres v. Pabon. The Court found a number of trial errors and unfortunately reversed the plaintiff’s verdict and granted a new trial. However, we are happy to report that the Court did not address the net opinion rule. That rule was therefore not changed and so was not made stricter. Out of an appellate loss for the plaintiff, all plaintiffs in New Jersey received the benefit of no change in the net opinion rule.


This is the third way to win on appeal: persuade a court that we have enough merit on our side that existing favorable law should not be changed. This can be accomplished by the court’s explicitly addressing the issue, or, as here, deciding the case solely on other grounds.

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