Expert’s “Gut Feeling” Survives Dismissal Claim
An expert witness’s “gut feeling” about the cost of a plaintiff’s construction claim was sufficient to withstand a motion to dismiss according to a recent New Jersey Appellate Division opinion. The holding in Nevins v. Toll Brothers, Inc., has the potential to affect similar motions in real estate valuation litigation such as eminent domain and real estate tax appeals where an expert seeks to rely on his or her experience to support a conclusion or opinion. In Nevins, defendant constructed a residential home for plaintiff who later complained certain construction defects needed to be remedied. After a failed settlement and multiple discovery extensions, defendant deposed plaintiff’s expert, Dowling, about how he reached his construction cost opinion which led to the following exchange:
[Defense Counsel]: . . . I’m asking you what you base[] [your calculations] upon, what experience . . . ?
Dowling: My gut feeling.
[Defense Counsel]: Gut feeling?
Dowling: Yes.
[Defense Counsel]: You’re going to go with the gut feeling?
Dowling: I know what things cost.
Defendant’s first motion to bar Dowling’s testimony was denied without prejudice, but the trial judge granted defendant’s second motion relying on the deposition testimony and dismissed the case because it found that the opinion was a “net opinion” and plaintiff did not have an expert to testify to the costs. The Appellate Division reversed the trial judge’s decision because the judge should have heard Dowling’s direct testimony at trial or in a Rule 104 hearing. The Appellate Division additionally found that Dowling “is by training and profession a construction cost estimator,” and similar testimony had been permitted in Correa v. Maggiore, 196 N.J. Super. 273 (App. Div. 1984). Thus, the matter was reversed and remanded to the trial court for further proceedings.
Experts in valuation cases must similarly base their conclusions on facts or data like comparable sales, zoning requirements, and a property’s highest and best use. Whether the expert’s opinion, such as an opinion about a percentage adjustment to a comparable sale, qualifies as an impermissible “net opinion” or not will therefore depend upon the circumstances involved, and may result in an evidentiary hearing to determine the basis for that opinion. For an example of when an expert’s report may be dismissed in the eminent domain context, please see this post on our Condemnation Blog.
The Appellate Division’s opinion in Nevins v. Toll Brothers, Inc., Docket No. A-0946-10 (App. Div. July 5, 2011), may be found here.
The author wishes to acknowledge the assistance of Cory K. Kestner, Esq., of McKirdy & Riskin, PA, in the preparation of this article.
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