SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0337-17T3

JASON RODRIGUEZ and

CHRISTINA RODRIGUEZ, 

husband and wife,

Plaintiffs-Appellants,

v.

MARNI MUELLER, ROBERT

MUELLER, and MICHAEL

LAXTON,

Defendants,

and

FAITH SHEPPARD,

Defendant-Respondent.

____________________________

Argued March 5, 2019 – Decided August 15, 2019

Before Judges Hoffman and Geiger.

On appeal from the Superior Court of New Jersey, Law 

Division, Burlington County, Docket No. L-1507-13.

Stephen W. Guice argued the cause for appellants.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the 

internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
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John Mastronardi argued the cause for respondent (Law 

Offices of Baumann & Viscomi, attorneys; Minos H. 

Galanos, on the brief).

PER CURIAM

In this rear-end-collision, automobile-negligence action, defendant Faith 

Sheppard conceded liability and a jury trial was held as to damages only. The 

primary issue at trial was whether plaintiff Jason Rodriguez 1sustained injuries 

sufficiently serious to overcome the strictures of the verbal threshold statute. 

N.J.S.A. 39:6A-8(a). After a jury found that he did not suffer such injuries, the 

trial judge entered a judgment of no cause for action. We now reverse that 

judgment, reinstate plaintiffs' complaint, and remand for a new trial. 

I

This case arises from an accident which occurred in June 2011, when 

plaintiff was stopped in the drive-through lane of a McDonald's restaurant in 

Voorhees. Defendant was in the drive-through lane when her foot became stuck 

between the brake and the gas pedal, causing her vehicle to accelerate forward 

and strike the rear end of the vehicle in front of her with sufficient force to cause 

that vehicle to propel forward and strike the rear of plaintiff's vehicle, which 

 

1

In this opinion, we refer to Jason and Christina Rodriguez collectively as 

"plaintiffs", and Jason Rodriguez individually as "plaintiff." Plaintiff's wife

sues per quod.
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was then propelled into the vehicle in front of him. The resulting property 

damage to plaintiff's vehicle exceeded $3300. 

Plaintiff's treating physicians certified that plaintiff sustained a fractured 

coccyx and related injuries in the accident. In September 2014, plaintiff 

underwent an independent medical examination by defendant's medical expert,

Dr. E. Michael Okin, a board-certified orthopedic surgeon. According to Dr. 

Okin, he "did trauma surgery in a Level Two trauma center for like thirty-five 

years." In his initial report, Dr. Okin summarized plaintiff's treatment records, 

including the emergency room (ER) record following the accident. According 

to Dr. Okin, the ER record indicated:

Chief complaint was motor vehicle accident with low 

back pain. X-rays were done and there appeared to be 

displaced fracture location of the lower portion of the 

sacrococcyx. Lumbosacral spine films demonstrated 

displaced fracture and dislocation of the lower portion 

of the sacrum, coccyx, otherwise unremarkable. He was 

placed on Motrin and Flexeril, and Percocet for pain. 

Dr. Okin also reviewed the records of plaintiff's treating physicians, 

including the records of Dr. Keith Preis,

2 which he summarized, in relevant part:

Saw him . . . in consultation on 3/24/12. Diagnosed with 

lumbar spine disc bulges L2-L3 through L5-S1 mostly

L4-L5 and L3-L4. X-rays revealed a fracture of the 

superior coccyx . . . . his EMG revealed abnormality 

 

2

 Dr. Preis, a neurologist, served as plaintiff's pain management doctor.
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on the left L5 level . . . . Had been treating him with 

trigger point injection and percutaneous electrical 

stimulation. His last visit was on 10/20/12.

Following his medical record review and examination of plaintiff, Dr. 

Okin concluded plaintiff "incurred a lumbosacral spine sprain historically," 

which injury had resolved. Dr. Okin's report also included the following:

Impression

1. Lumbosacral spine sprain

2. Normal examination of lumbar spine on today's 

examination.

3. Old fracture of coccyx, not related to this injury.

Dr. Okin then received the x-rays from plaintiff's ER visit and issued a 

supplemental report on November 13, 2014, setting forth his findings:

[Plaintiff] had lumbarization3 of the S1 vertebrae 

giving him a total of six lumbar vertebrae, otherwise, 

the x-rays are essentially completely unremarkable. 

There is some ossification at the inferior most distal 

portion of the coccyx, which may represent old trauma, 

but no acute trauma. There is no fracture of the sacrum.

There are no fractures seen and the disc spaces 

are well-maintained. The impression is essentially 

normal x-rays of the lumbar spine.

 

3

 According to Dr. Okin, "[T]he sacrum is usually a solid bone. A lumberized 

sacrum means that the upper bone part of the sacrum didn't infuse with the lower 

part, so you have a disk space there[,]" resulting in "six lumbar vertebrae."
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Dr. Okin issued a third and final report on January 20, 2015. He issued

this report in response to an assertion by plaintiff's counsel that Dr. Okin "missed 

a fracture of the sacrum/coccyx" on plaintiff's ER x-ray. In response, Dr. Okin 

indicated he 

re-reviewed those x-rays and apparently it appears that 

[plaintiff] had what I felt was an old fracture of the 

coccyx, but not really a fracture, but a dislocation 

through the coccygeal intervertebral joint. . . . 

[Plaintiff] was the third car in a four[-]car collision. The 

first car struck the second car, which then moved into 

the third car, which was [plaintiff's] car. His vehicle 

was rear-ended and was pushed into the fourth car (car 

in front of his vehicle). He was sitting in his vehicle in 

a McDonald's line waiting to go to the window to get 

the food. The nature of the accident was one of rear[-

]end collision, which caused forward and backward 

mechanism of injury. He was sitting on the car seat. A 

fracture of the coccyx first of all does not occur with 

that mechanism of injury. . . . [T]his fracture is old, has 

nothing to do with his injury involving the motor 

vehicle accident. In reality what is seen on x[-]ray is a 

dislocation through the disk space of the coccyx and not 

a fracture. There was no mechanism of injury for 

coccygeal fracture or dislocation.

In September 2015, defendant completed the videotape de bene esse 

deposition of Dr. Okin. In the deposition, defendant's attorney qualified Dr.

Okin as an expert in "orthopedic surgery," without objection. Dr. Okin testified 

that plaintiff "had a lumbosacral spine sprain as a result of this accident. He had 
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a normal examination of lumbar spine during his exam. And he had an old 

fracture of the coccyx not related to this injury." 

Dr. Okin concluded the coccyx fracture was "an old injury" because 

"[t]here's ossification at the interior most distal portion of the coccyx, which 

may represent old trauma but no acute fracture." He explained that 

"[o]ssification is bone formation," which "means that the body has already 

healed it or attempted to heal what was there. That's the body's mechanism of 

healing." 

Dr. Okin then attempted to provide further support for his opinion, when 

he added, "Also, the mechanism would not be the cause of this fracture." 

Plaintiff's attorney immediately objected to this last testimony, noting that Dr. 

Okin "has been qualified as an orthopedic surgeon, not an accident 

reconstruction expert. And so, mechanism of injury goes to accident 

reconstruction and biomechanical engineering. And he is not qualified to make 

an opinion in that regard." Plaintiff's attorney lodged a "[s]tanding objection" 

to all such testimony. The balance of Dr. Okin's testimony included numerous 

references to the mechanism of plaintiff's injury.

Following the deposition, plaintiff filed a motion to edit the videotape of 

Dr. Okin's testimony, pursuant to Rule 4:14-9(f). Initially, defendant did not 
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oppose plaintiff's motion. Plaintiff finally received a letter brief in opposition 

to the motion on March 30, 2016, twelve days after the return date, along with 

notification that the judge assigned to try the case would hear the motion on 

April 22, 2016. The assigned judge did not reach the motion on that date and 

indicated she would hear the motion on April 25, prior to jury selection. On that 

date, before counsel appeared for the motion, they received notification not to 

appear as the assigned trial judge was ill. Counsel were then advised to appear 

before another judge the following day, April 26. At that time, the newly 

assigned trial judge decided to hear two defense in limine motions filed that 

date, regarding defense objections raised at the de bene esse videotape 

deposition of plaintiff's pain management expert. Instead of then addressing 

plaintiffs' long-outstanding motion to edit the trial testimony of Dr. Okin, the 

court elected to proceed with jury selection, and then went right into opening 

statements and trial testimony.

4

 Plaintiffs were required to present the testimony 

of two of their medical experts before the court finally addressed plaintiff's 

motion on May 2, 2016. 

 

4

 The record contains no explanation for beginning the trial before addressing 

plaintiff's motion to edit Dr. Okin's deposition. 
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At the motion hearing, plaintiff's counsel did not challenge Dr. Okin's 

testimony that "this coccyx fracture is old," since Dr. Okin's review of plaintiff's 

x-rays and medical records obviously could provide him with a basis for 

articulating this opinion; however, he argued that Dr. Okin 

is not qualified to talk about the mechanism of injury 

. . . . [H]e not only doesn't have the qualifications, he 

doesn't even have the proper facts . . . . that could even 

allow him to talk about the mechanism of injury.

. . . .

To begin with[,] he would need all the 

photographs of all the vehicles so he could do a proper 

crash analysis because you can't do a crash analysis 

with[out] at least the photographs, you have to . . . 

evaluate . . . all the damages . . . [and] all the records 

from all the repairs done. . . . 

At one point, the court agreed with plaintiff's counsel that if an expert 

testifies "as to the forces involved in an accident[,] which would cause certain 

things[,] that you have to have some sort of analytical, scientific approach"; 

however, the court then noted "there's no accident reconstruction expert 

involved in this case because liability is stipulated." 

In response, plaintiff's counsel pointed out that

[a]n accident reconstruction expert and a 

biomechanical expert testify about how the injuries are 

caused from the trauma from the impact, not 

necessarily just how the accident occurred. [Dr. Okin 
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is] not a biomechanical engineer. He can't say whether 

or not this coccyx fracture can be caused by this 

particular accident. . . . 

The court rejected plaintiff's arguments, concluding that Dr. Okin did not 

testify as an accident reconstructionist, but as a doctor who knows how a coccyx 

is "generally injured," and who found "no evidence that it was injured that way 

in this case." The jury then viewed the video of Dr. Okin's de bene esse 

deposition with no redactions, the last testimony presented in the case.

After the jury returned its verdict, finding that plaintiff did not sustain a 

fracture of the coccyx in the accident, plaintiff filed a motion for a new trial 

returnable on June 10, 2016. The trial judge denied the motion fourteen months 

later, on August 11, 2017. This appeal followed.

II

We review decisions to admit expert testimony "against an abuse of 

discretion standard." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 

371-72 (2011) (citing Kuehn v. Pub Zone, 364 N.J. Super. 301, 319-21 (2003)). 

"However, [w]hen the trial court fails to apply the proper test in analyzing the 

admissibility of proffered evidence, our review is de novo." Konop v. Rosen, 

425 N.J. Super. 391, 401 (App. Div. 2012) (alteration in original) (internal 

quotation marks omitted).
10 A-0337-17T3

There are three basic requirements for the admission of expert testimony: 

1. the intended testimony must concern a subject 

matter that is beyond the ken of the average juror; 

2. the field testified to must be at a state of the art 

that an expert's testimony could be sufficiently 

reliable; and

3. the witness must have sufficient expertise to offer 

the intended testimony.

[State v. Townsend, 186 N.J. 473, 491 (2006) 

(quoting State v. Torres, 183 N.J. 554, 567-68 

(2005)).]

Additionally, "an expert's opinion must be based on a proper factual 

foundation," meaning "[e]xpert testimony should not be received if it appears 

the witness is not in possession of such facts as will enable him [or her] to 

express a reasonably accurate conclusion as distinguished from a mere guess or 

conjecture." Endre v. Arnold, 300 N.J. Super. 136, 139 (App. Div. 1997) 

(alteration in original) (quoting Dawson v. Bunker Hill Plaza Assocs., 289 N.J. 

Super. 309, 322-23 (App. Div. 1996)). 

"The net opinion rule is a 'corollary of [N.J.R.E. 703] . . . which forbids the 

admission into evidence of an expert's conclusions that are not supported by factual 

evidence or other data.'" Townsend v. Pierre, 221 N.J. 36, 53-54 (2015) (alteration 

in original) (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)). Therefore, 
11 A-0337-17T3

an expert must "'give the why and wherefore' that supports the opinion, 'rather than 

a mere conclusion.'" Id. at 54 (quoting Borough of Saddle River v. 66 E. Allendale, 

LLC, 216 N.J. 115, 149 (2013)). The net opinion rule directs "that experts 'be able 

to identify the factual bases for their conclusions, explain their methodology, and 

demonstrate that both the factual bases and the methodology are reliable.'" Id. at 55 

(quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992)). In short, the net 

opinion rule is "a prohibition against speculative testimony." Harte v. Hand, 433 

N.J. Super. 457, 465 (App. Div. 2013) (quoting Grzanka v. Pfeifer, 301 N.J. Super. 

563, 580 (App. Div. 1997)).

An expert's opinion must be based on "facts or data in the particular case 

. . . perceived by or made known to the expert at or before the hearing." N.J.R.E. 

703. See also Hisenaj v. Kuehner, 194 N.J. 6, 24 (2008) (holding an expert's 

opinion must be founded on "facts or data"). In this regard, an expert's opinion 

cannot present merely a bare conclusion unsupported by factual evidence.

"The burden of proving that the testimony satisfies those threshold 

requirements rests with the party proffering the testimony." Id. at 15. In 

reviewing the admissibility of a proposed expert's opinion, the "court must 

ensure that the proffered expert does not offer a mere net opinion." Pomerantz 

Paper, 207 N.J. at 372.
12 A-0337-17T3

"[E]xperts generally[] must be able to identify the factual bases for their 

conclusions, explain their methodology, and demonstrate that both the factual 

bases and the methodology are scientifically reliable." Landrigan, 127 N.J. at 

417. Thus, 

expert opinion [must] be grounded in facts or data 

derived from (1) the expert's personal observations, or 

(2) evidence admitted at the trial, or (3) data relied upon 

by the expert which is not necessarily admissible in 

evidence but which is the type of data normally relied 

upon by experts.

[Townsend, 221 N.J. at 53 (citation omitted).] 

The net opinion rule can be considered a "restatement of the established 

rule that an expert's bare conclusions, unsupported by factual evidence, [are] 

inadmissible." Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).

III

Plaintiff argues that because Dr. Okin was qualified only as an expert in 

orthopedic surgery, and not as an accident reconstruction expert or biomedical 

engineer, he was not competent to testify that the degree of trauma plaintiff 

sustained in the accident could not have caused him to sustain a fractured 

coccyx. Plaintiff further argues that even if Dr. Okin were qualified to offer an 

opinion on the degree of trauma plaintiff sustained, the record lacks the 
13 A-0337-17T3

evidential foundation for him to provide a competent opinion on this issue. We 

agree with plaintiffs on both points.

Dr. Okin is not a biomechanical expert qualified to comment on physical 

forces. The record contains no evidence that Dr. Okin has any background, training, 

or experience in biomechanics or accident reconstruction, nor did defendant offer 

him as expert in these fields. Moreover, the record lacks any credible information 

regarding relevant details of the accident, including information regarding the 

damage to each vehicle, the size of each vehicle, the speed of each vehicle, as well 

as information regarding the interior of plaintiff's vehicle. 

The judge should have ruled that those portions of Dr. Okin's testimony where 

he addressed – in his words – "mechanism of injury," constituted net opinions and 

ordered their redaction. The record lacks any substantial credible evidence to 

support Dr. Okin's testimony regarding mechanism of injury. The heart of the 

dispute here was not whether plaintiff sustained a serious injury, but rather what 

caused it. In that context, it was impermissible for the court to allow Dr. Okin 

to testify regarding mechanism of injury, since he lacked both the qualifications 

and the relevant facts to offer anything but a net opinion to the jury.

The jury likely accepted Dr. Okin's conclusions regarding mechanism of 

injury because they came from a medical expert. We therefore conclude the failure 
14 A-0337-17T3

of the trial court to exclude these improper net opinions unfairly prejudiced 

plaintiffs and was "clearly capable of producing an unjust result." R. 2:10-2. 

Because of the real prospect that Dr. Okin's net opinion testimony impacted the 

jury's determination of the critical issue in the case, a new trial is required. We 

therefore reverse the no cause judgment and remand for a new trial.

Reversed and remanded. We do not retain jurisdiction.