2015 NJSBA Annual Meeting Certified Civil Litigation Track Using Motions in Limine to Win at Trial Moderator/Speaker: Robert B. Hille, NJSBA Second Vice-President McElroy Deutsch Mulvaney & Carpenter, LLP, Morristown Speakers: Hon. Garry Furnari, J.S.C., Essex County Hon. Thomas R. Vena, J.S.C., Essex County Craig M. Aronow, Esq. Rebenack, Aronow & Mascolo, LLP, New Brunswick John E. Keefe, Jr., Esq., NJSBA Treasurer Keefe Bartels LLC, Red Bank William H. Mergner, Jr., Esq. Leary Bride Tinker & Moran, PC, Cedar Knolls

© 2015 New Jersey State Bar Association. All rights reserved. Any copying of material herein, in whole or in part, and by any means without written permission is prohibited. Requests for such permission should be sent to the New Jersey State Bar Association, New Jersey Law Center, One Constitution Square, New Brunswick, New Jersey 08901-1520. The material contained in these pages is for educational purposes only and not intended as a substitute for the professional services an attorney would normally provide to a client, including up to the minute legal research.

“In limine” ( at the threshold or outset; preliminarily) is a LATINISM not likely to be displaced in lawyers’ JARGON, esp. in the phrase motion in limine.” A Dictionary of Modern Legal Usage – Second Edition – Bryan A. Garner - Author

May 14, 2015

Motions in Limine

Dismiss Expert's Net Opinion

• NJREs 403, 702, 703

• Cases: Buckelew v. Grossbard, 87 N.J. 512 (1984), Rosenberg v. Tavorath, 352 N.J. Super. 385 (App.Div. 2002), Anderson v. A.J. Friedman, 416 N.J. Super. 46 (App.Div. 2010)

• Expert opinion must be supported by fact, not speculation, must provide the "whys and wherefores"

703

NJRE 703:

The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Buckelew v. Grossbard • Buckelew v. Grossbard, 87 N.J. 512, 524 (1984), says,

“an expert’s bare conclusion, unsupported by factual evidence, is inadmissible.”

• Rosenberg v. Tavorath, 352 N.J. Super 385, 401 (App. Div. 2002), provides that the “net opinion” rule requires an expert to give the “why and wherefore” of his or her opinion, rather than a mere conclusion.

• Anderson v. A.J. Friedman Supply Co., 416 N.J. Super. 46, 74 (App. Div. 2010), an expert opinion lacking “a proper factual foundation” and “consist[ing] of bare conclusions unsupported by factual evidence is inadmissible as a net opinion.”

Expert's Opinion Based Upon Inadmissible Evidence

• NJREs 105, 401, 403, 703, 704, 801, 802, 803(c)(6), 808

• Cases: James v. Ruiz, 2015 N.J. Super. LEXIS 46 (App.Div. 2015), Agha v. Feiner, 198 N.J. 50 (2009), Brun v. Cardoso, 390 N.J. Super. 409 (App.Div. 2006)

• Experts may not testify to hearsay opinions from non-testifying experts opinions

• Bootstrapping is prohibited

703 & 808 NJRE 703

If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence

NJRE 808

Expert opinion which is included in an admissible hearsay statement shall be excluded if the declarant has not been produced as a witness unless the trial judge finds that the circumstances involved in rendering the opinion, including the motive, duty, and interest of the declarant, whether litigation was contemplated by the declarant, the complexity of the subject matter, and the likelihood of accuracy of the opinion, tend to establish its trustworthiness.

James v. Ruiz

James v. Ruiz, 2015 N.J. Super. LEXIS 46 (App.Div. 2015):

A civil trial lawyer may not ask consistency/inconsistency questions to a testifying expert in order to have the jury consider a non-testifying expert's hearsay opinions about complex and disputed matters.

Campione Motion

• NJRE 104

• Cases: Campione v. Soden, 150 N.J. 163 (1996), Biazzo v. Parker, 2014 N.J. Super. Unpub. LEXIS 1721 (App.Div. 2014), Reichert v. Vegholm, 366 N.J. Super. 209 (App.Div. 2004)

• Apportionment burden shifting in single injury, multiple impact case

Campione & Biazzo Campione v. Soden, 150 N.J. 163 (1996)

1. The Court is to determine, as a matter of law, whether the jury is capable of apportioning damages.

2. The jury should be permitted to render an allocation of damages even when the evidence concerning allocation is not conclusive.

3. However, if the court establishes as a matter of law that the jury cannot apportion damages, then the court is to apportion damages equally among the various causative elements.

Biazzo v. Parker, 2014 N.J. Super. Unpub. LEXIS 1721 (App.Div. 2014) follows the Campione analysis

Admissibility of Demonstrative Evidence

• NJREs: 104, 401, 403, 702, 703, 901

• "Evidence ... that demonstrates some matter material to the case or illustrates certain aspects of an expert's opinion." Rodd v. Raritan Diagnostic, 373 N.J.Super. 154 (App.Div. 2004)

• It is admissible and such admission is within the discretion of the trial judge. See State v. Scherzer, 301 N.J.Super. 363, 434 (App.Div. 1997)

CRAIG ARONOW

Specializing in civil trial practice and litigation in personal injury cases Craig, a RAM Law partner, focuses on civil trial practice and litigation in the areas of personal injury, construction and commercial law. He is licensed in both New Jersey and New York. He graduated in 1995 from Pennsylvania State University with a B.A. in Political Science and a minor in Philosophy. In 1998, Craig earned his Juris Doctor with honors, Cum Laude, from Quinnipiac University School of Law. He graduated in the top 10% of his class. While at Quinnipiac Law, Craig served as the Associate Editor of the Quinnipiac Probate Law Journal (1997-98), the vice president of the Student Bar Association (1997-98), and president of the Mock Trial Law Society (1997-1998). He also received the following awards: Scholarship for Academic Achievement (1996-98); The Award for Distinguished Academic Achievement (1995-96, 1997-98); The Award for Outstanding Legal Scholarship; The Award for Outstanding Performance in Oral Advocacy, and the Sayegh-Oberst Mock Trial Award. Following law school, Craig served as Law Clerk to the Honorable Alan A. Rockoff, Judge of the Superior Court of the State of New Jersey in Middlesex County (1998-99). Craig has attained Martindale Hubbell’s highest peer review rating of AV Preeminent. This rating means that Craig’s peers have rated him as having the highest professional ability. New Jersey’s Supreme Court has certified him as a civil trial attorney. Less than 2% of the attorneys licensed to practice law in New Jersey, as of 2005, held this distinction. Craig has substantial litigation and trial experience in personal injury claims, including: construction site accidents, premises liability, products liability, slip and falls, trip and falls, motor vehicle accidents, assault, legal malpractice and medical malpractice. His construction law experience includes the litigation, arbitration and mediation of multi-million dollar architectural, engineering, and land surveying malpractice claims; design defect cases; contractor delay damage claims; contract disputes and copyright disputes. He has also assisted homeowners in bringing claims for faulty construction, represented contractors in bid disputes and claims against owners and design professionals. Craig has advised homeowners, small businesses, community service organizations and design professionals on risk management issues both within the general business community and the construction industry. Craig has provided legal service on a pro bono basis. He assisted 9/11 widows in obtaining compensation for the loss of their loved ones. Craig is actively involved in professional organizations at the local, state and national levels. He is the President-Elect of the Middlesex County Bar Association, chair of the MCBA Civil Trial Practice and Lawyer Referral Service Committees. With respect to the New Jersey State Bar Association, Craig is a member of its Board of Trustees, past chair of the Solo and Small Firm Section, a former member of the Nominating Committee and organizer of New Jersey’s first ever Solo and Small Firm Practice Conference. He has previously served as a New Jersey Delegate to the American Bar Association’s Young Lawyers Division and is a barrister in the Joseph Halpern Civil Inn of Court. Craig was named a Superlawyer in 2012, 2013, 2014 and 2015. Craig is also a published author. In the June 2012 edition of New Jersey Lawyer, Craig co-authored "The Bona Fide Office Rule: Will Virtual Offices Be Allowed?"

Craig received the NJSBA Young Lawyer Division’s Award for Service to the Bar in 2008 and an Appreciation Award in 2011 for his two years as chair of the Solo and Small Firm Section. Craig has presented the following lectures and panel discussions: * Jury Selection in Auto Cases, New Jersey Association for Justice (2015) * Technology at Trial: A Civil Case, New Jersey State Bar Association (2014) * How to Build Your Own Practice, Middlesex County Bar Association (2013) * Hanging out a Shingle, New Jersey State Bar Association Women in the Profession Section (2013) * Deposing the Expert Witness, Middlesex County Bar Association (2012) * Marketing Bootcamp Panel, Moderator for NJSBA (May 2011) * Virtual Lawyering: The Bona Fide Office Rule Panel, Moderator for NJSBA (May 2011) * Building a Law Practice, MCBA (2010) * Fee Agreements that Work, NJICLE (August 2009) * Building and Marketing Your Law Practice, NJICLE (June 2009) * How to Take a Deposition, NJSBA and MCBA (3 times 2007-2009) * How to Take an Expert Deposition, NJSBA and MCBA (2 times 2008-2009) * Building a Law Practice Panel, Moderator for NJSBA (2008) * Negotiating Settlements Panel, Moderator for NJSBA (2008) * Professional Ethics, Panelist for NICLE Skills and Methods (2007) * Careers in the Law, Panelist for NJSBA (May 2007)

Hon. Garry J. Furnari is a judge on the Vicinage 5 Superior Court in New Jersey. Judge Furnari was appointed to the court in 2004. He received his undergraduate degree from Rutgers University in 1976 and his J.D. from Pace University Law School in 1980.

ROBERT B. HILLE is a Partner at McElroy, Deutsch, Mulvaney & Carpenter, LLP.Concentrating on insurance and healthcare law, Mr. Hille has extensive trial experience andhas litigated a number of insurance defense and coverage, healthcare, professional liabilitydefense, fraud and abuse, and regulatory matters. Mr. Hille has published and lecturedwidely in the areas of insurance and healthcare law.

He is certified by the Supreme Court of New Jersey as a civil trial attorney and is a pastpresident of the Bergen County Bar Association. He is also a member of the ABA, healthand tort law sections and Trustee of the NJSBA where he chairs the insurance benefits andamicus committees and is also a member of the malpractice insurance committee and healthand hospital law section.

Mr. Hille also serves as member of the New Jersey Supreme Court Civil PracticeCommittee.

Mr. Hille is admitted to practice in New Jersey and New York, the United States ThirdCircuit Court of Appeals and the United States Supreme Court.

Education

Seton Hall Law School (J.D. 1983)

Bucknell University (B.A. 1980)

Admissions

State of New Jersey

State of New York

Supreme Court of The United States

U.S. Court of Appeals, 3rd Circuit

U.S. District Court, EDNY

U.S. District Court, SDNY

Memberships & Associations

LegalAmerican Bar Association

Robert B. Hille

Partner

Office: Morristown, NJ

973-348-5234

973-425-0161

rhille@mdmc-law.com

© 2015 McElroy, Deutsch, Mulvaney & Carpenter, LLP All rights reserved.

Bergen County Bar Association

Certified Civil Trial Attorney

Martindale Hubbell - AV Preeminent

New Jersey State Bar Association

Publications

"Extrapolation Nation: The Recent Challenges to the Use of Governmental AuditSampling," American Bar Association, Health Law Section, Vol. 10 No. 12, 8.1.2014

Is a Captive Right for You?, HFMA New Jersey Chapter, January/February 2012, vol 58,num 4, 1.1.2012

Awards & Recognitions

2013 Top Rated Lawyer for “Healthcare Law" by American Lawyer Media and

Martindale-Hubbell™

Recognized by ALM as a 2014 Top Rated Lawyer in Insurance Law.

Listed in Super Lawyers® (2006, 2008-2014), a Thomson Reuters business, in the areas of

Health Care, Professional Liability: Defens and Insurance Coverage. A description of the

standard or methodology on which the accolade is based can be found HERE (No aspect

of the advertisement has been approved by the Supreme Court).

© 2015 McElroy, Deutsch, Mulvaney & Carpenter, LLP All rights reserved.

John Keefe Jr. Keefe Bartels About John E. Keefe, Jr., a Certified Civil Trial Attorney, has devoted much of his time to civil trial practice throughout the State and Federal Courts of New Jersey specializing in negligence and product liability as well as complex mass tort litigation. John was admitted to the bar in 1990.

Having founded Keefe Bartels in 1996, John, the firm’s co-managing partner, leads our plaintiffs’ personal injury, mass tort litigation and complex litigation department. He has tried numerous matters to verdict and prosecuted hundreds of cases on behalf of victims of catastrophic loss. He has been appointed by the Superior Court as plaintiffs liaison counsel in an historic consumer fraud national class action, Talalai v. Cooper Tire & Rubber Co. (Docket No.: MID-L-8830-00-MT ) the settlement of which is valued at between one billion ($1,000,000,000) and three billion ($3,000,000,000) dollars to consumers.

John was lead counsel on behalf of plaintiffs in one of the largest pollution cases in New Jersey, Janes v. Ciba Geigy Corporation (Docket No.: MID-L- 1669-01-MT). John served as local counsel in the securities class action litigation, In Re Sears, Roebuck & Co. Securities Litigation (Docket No. 02-C-07527) which resulted in a two hundred and fifteen million dollar ($215,000,000) cash settlement. John recently resolved a complex wrongful death case on behalf of a young widow and small children against New Jersey Transit Corporation for Wrongful Death Caused by Electrocution and Severe Burns for $10,000,000.00 Also, John served as liaison counsel in In Re Royal Dutch/Shell Transport Securities Litigation – (Civil Action No.: 04-374 (JWB)) before Judge Joel Pisano and the Hormone Replacement Therapy Litigation (Docket No.: ATL-2093-04 MT) before Judge Carol E. Higbee.

He has also served as Co-Counsel in a national consumer fraud class settlement in Chicago, Illinois on behalf of thousands of consumers nationwide. Additional matters John has handled include: motor vehicle wrongful death, product liability, disfigurement, total disability, premises liability, burn injuries, worksite OSHA violations, multiple trauma, hospital negligence wrongful death and long term care negligence involving burns and wrongful death.

AV rated by Martindale-Hubbell, John earned his B.A. degree from Gettysburg College in 1987 and his Juris Doctor degree at Seton Hall University School of Law in 1990. He is admitted to the Bar of the State of New Jersey, U.S. District Court, District of New Jersey and the U.S. District Court, Northern District of Florida, and Washington D.C.

Education: • Seton Hall University School of Law, Newark, New Jersey J.D. • Gettysburg College, Gettysburg, Pennsylvania B.A. Major: English

Birth Information: • 1965, New Brunswick, New Jersey, United States of America

Certification / Specialties • Certified Civil Trial Attorney, New Jersey Supreme Court, 2004 • Certified Civil Trial Recertification 2010

Bar Admissions: • New Jersey, 1990 • U.S. District Court District of New Jersey, 1990 • District of Columbia, 2005 • U.S. District Court Northern District of Florida, 2005

THOMAS R. VENA, J.S.C. Superior Court Judge THOMAS R. VENA was appointed in 2000 following a more than two (2) year stint as an Administrative Law Judge. After a seven (7) year assignment in the Criminal Division, he served two (2) years in the Family Part of the Chancery Division and is now beginning his sixth year assigned to the Civil Division. Judge Vena has served during his judicial career as a member of the Supreme Court Committee on Criminal Practice, Arbitration & Special Civil Part and has been the Domestic Violence Lead Judge and Supervising Judge of the Special Civil Part. He has written Opinions frequently published on the Judiciary Web Site especially during his current assignment in Civil.