Requirement to Provide Experts

August 12, 2013

Gordon v. Township of Toms River, Appellate Division A-5139-11T1

Requirement to provide experts

Submitted by New Jersey criminal lawyer Jeffrey Hark

 

August 8, 2013, the Appellate Division affirmed the trial court’s summary judgment against the plaintiff Richard Gordon. On September 27, 2009, Gordon had a few drinks that evening on the Seaside Heights Boardwalk and decided to sleep on the couch at his ex-girlfriend’s home. Upon arrival, he discovered she was not home and called her 14 times, receiving no response he entered the house through the bedroom window. When the plaintiff’s ex-girlfriend returned, she saw his vehicle parked outside and called police. The police arrived with their K-9 officer, Boris and went inside the home. Police made the “K-9 Announcement” and received no response. After a reasonable amount of time Boris was released and apprehended the plaintiff by biting him in his buttocks, right shoulder, left thigh and left calf. The plaintiff was charged with burglary, harassment, stalking and trespassing.

Pursuant to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to -12-3, the plaintiff alleged excessive force and negligence by the police in handling of the K-9 officer. Defendants moved for summary judgment on two arguments 1) the scarring by the dog bites were not substantial within the meaning of N.J.S.A. 59:9-2(d) and; 2) plaintiff failed to provide expert opinion necessary to establish negligent handling of the K-9 unit. At trial, the judge accepted the medical expert testimony that the dog bites resulted in significant scarring. The plaintiff did not present an expert on proper K-9 unit procedure and the judge thought this was a significant issue. The judge did not think a jury could pass judgment on proper police procedure without a qualified expert and provided the plaintiff an additional 30 days to find an expert. Plaintiff did not provide an expert on police procedure.

The Appellate Division affirmed the trial court’s decision that the plaintiff needed to present an expert on police procedure. Whether or not an expert is required is established in Butler v. Acme Markets, Inc., 89 N.J. 270 (1982), as to if the matter to be decided is so esoteric that jurors cannot form a valid judgment based on their common experience alone. The plaintiff in this case needed an expert on proper police procedure, his allegation of negligence alone was not sufficient. When most citizens have no personal knowledge of the subject matter at issue, such as how police should conduct themselves and their K-9 units, an expert is helpful to the jury to decide an issue which otherwise would be impossible for the jury to decide. The take away is that already high use of experts in litigation is not going to change in the future.