Absence of opposing expert testimony does not entitle a plaintiff to summary judgment or a directed verdict where the expert’s credibility is subject to question or facts in the expert’s opinion are subject to dispute.

The developer of a residential project engaged an engineering firm to perform surveys and provide designs for various elements of the project, including design of a retaining wall. The plaintiff, a purchaser of one of the residential lots, requested that the retaining wall be raised by at least one foot to accommodate a pool. The retaining wall was modified from its original design during construction, although the engineer wrote a letter to the Borough Engineer, at the developer’s request, stating that the wall had been constructed according to manufacturer specifications. After construction, cracks began to form in the foundation, and the plaintiff’s expert opined, among other things, that the retaining wall had questionable long-term stability and that the engineer breached the standard of care by issuing the letter without any attempt to determine how the wall was constructed. The engineer presented expert testimony that the retaining wall was not the cause of any damage and had been properly constructed, but the engineer did not present expert testimony as to whether preparation of the letter constituted a breach. There was evidence presented that some steps were taken by the engineer to confirm proper construction of the retaining wall. The Appellate Division affirmed reversal on a motion for reconsideration of an earlier award of summary judgment on liability in favor of the plaintiff, as well as denial of the plaintiff’s motion for a directed verdict following a jury finding in favor of the engineer. The court held that, even in the absence of formal opposition by a defense expert, the plaintiff was not entitled to summary judgment or a directed verdict where the expert’s credibility is reasonably subject to question or the factual predicate of the opinion remained subject to reasonable dispute.

_{Case Law Alerts, 2^nd Quarter, April 2015}

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