NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-1884-24
JANE JLW ROE,
Plaintiff-Appellant/ Cross-Respondent,
v.
JERSEY CITY PUBLIC SCHOOLS, and ACADEMY OF THE ARTS AT HENRY SNYDER HIGH SCHOOL,
Defendants,
and
THE JERSEY CITY BOARD OF EDUCATION,
Defendant-Respondent/ Cross-Appellant. _____________________________
Submitted March 10, 2026 – Decided April 8, 2026
Before Judges Gilson, Firko, and Perez Friscia.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4556-21. Motley Rice New Jersey, LLC, attorneys for appellant/cross-respondent (Daniel R. Lapinski, on the briefs).
Shah Law Group, attorneys for respondent/cross- appellant (Roshan D. Shah, of counsel and on the briefs; Dennis C. Schmieder and Jamayrah E. Moore, on the briefs).
PER CURIAM
Plaintiff Jane JLW Roe appeals from the January 17, 2025 trial court order
granting defendant the Jersey City Board of Education (Board) 1 summary
judgment and dismissing her complaint under the Tort Claims Act, N.J.S.A.
59:1-1 to 12-3 (TCA), after finding her medical expert's opinion was an
inadmissible net opinion. The Board cross-appeals from the court's order
denying its application to bar plaintiff's liability expert's opinion as an
inadmissible net opinion. After reviewing the record, parties' arguments, and
applicable law, we reverse the court's order barring Roe's medical expert's
opinion as a net opinion and vacate the dismissal of her complaint. We direct
the court on remand to conduct an N.J.R.E. 104 hearing to address the medical
1 We note that the trial court entered a January 30, 2025 order amending the January 17 order and dismissing the complaint "with prejudice as to . . . [d]efendants . . . Jersey City Public Schools[ and the] Academy of the Arts at Henry Snyder High School." Plaintiff does not challenge the dismissal of the co-defendants. Accordingly, we refer to only the Board throughout the opinion. A-1884-24 2 expert's opinion regarding the permanency of Roe's alleged psychiatric injuries.
Further, we affirm the court's order denying the Board's motion to bar plaintiff's
liability expert.
I.
In 1989, Roe attended Henry Snyder High School (HSHS) as a freshman.
The Board oversees and operates HSHS, which is part of the Jersey City Public
School District. Roe joined HSHS's girls' track team during her freshman year.
P.E.2 was the girls' track coach during Roe's freshman year. Because HSHS did
not have an outside running track for practice, the students ran after school
primarily "in the halls." Most school days, the girls practiced in HSHS's "third
floor" hallways. Roe asserted P.E. allowed the students to practice alone and
was not "always present." She further alleged P.E. sometimes left before the
team finished practicing, and there were no assistant coaches.
Roe alleged during practices at HSHS, she was "raped" by "a white
janitor" multiple times. She was about "fourteen[ or] fifteen" years old at the
time. She asserted that "[o]ne of [her] many rapes" was in a dark HSHS
"stairwell" against "a metal fence." Roe maintained the janitor "wore tan boots,
2 We use initials and pseudonyms to protect the privacy of the victim. See R. 1:38-3(a). A-1884-24 3 stone-washed jeans, [a] white T-shirt," and he had a "very neat ponytail." She
recalled the janitor "always had keys dangling from his jeans." She remembered
the janitor "ran his hand down her neck" and "pa[id] particular attention to [her]
hair" during an assault. Roe could not identify the janitor by name and he,
therefore, could not be joined as a defendant.
Roe described an instance in which the janitor approached her carrying
her "belongings and directed [her] to the stairwell." The janitor blocked her
path, refused to let her move, and "[led her] where he wanted." She felt
physically intimidated by him. She maintained the janitor "vaginal[ly] rape[d]"
her from behind and stated, "You can[no]t tell anyone. I will get in trouble."
Roe recalled he suggested "no one would believe" her if she reported it. Roe
represented she stayed on the track team because she would have had to explain
quitting the sport she loved.
Roe asserted the janitor also "raped [her] in the [men's] bathroom on the
third floor" of HSHS. Each time she was sexually assaulted during her freshman
year, Roe alleged the janitor pulled her pants down and vaginally penetrated her
from behind.
During an HSHS "sanctioned" summer camp "trip," after her freshman
year, Roe revealed at a campfire discussion attended by students, a female HSHS
A-1884-24 4 teacher, and a male "camp counselor" that she was "raped a lot of times" by "a
janitor." The male counselor told her that she would "be all right" and "[i]t
[ wa]s good to get it out." After the disclosure, Roe believed the female teacher
"informed [HSHS] of the abuse" because L.O. became the new track team coach
her sophomore year and instituted "a buddy system," along with other changes.
Roe recalled L.O. would drive her "home if [she] was by [her]self" and always
"knew . . . when [they] all left." Plaintiff stated L.O. was "present" and
"attentive" during practices, and had assistant coaches monitor the practices.
Plaintiff maintained the janitor committed no sexual assaults during her
sophomore year. After her sophomore year, Roe moved to Pennsylvania where
she finished high school.
On November 22, 2021, plaintiff filed a five-count complaint alleging
claims of: negligence, negligent training and supervision, negligent hiring and
retention, gross negligence, and negligent infliction of emotional distress. The
Board filed an answer and discovery ensued.
During her deposition, Roe revealed that sometime after the janitor
sexually assaulted her, two male strangers pulled her into a van and "vaginally
rape[d]" her. That assault did not occur at the school, rather it happened after
A-1884-24 5 Roe was abducted from a city street. She did not report the sexual assault to
anyone.
Roe claimed the sexual assaults at HSHS caused her "shock, emotional
distress, disgrace, humiliation, embarrassment, loss of self-esteem, . . . physical
injuries, including physical manifestations of emotional distress, panic attacks [,]
and the loss of enjoyment of life." She did not seek physical or mental health
treatment after the sexual assaults. Regarding how the sexual assaults changed
her, Roe maintained she has "triggers" when in bathrooms, when someone
approaches her from behind, and when thinking about her daughter's safety. Roe
obtained an associate's degree "in psychology." After she filed suit, she began
treatment with a therapist in 2023, incurring an "estimated treatment cost of at
least $3,120" from attending sessions "two times per month at a cost of $130 per
session."
At L.O.'s deposition in 2023, he testified that he started working for HSHS
in 1976. He acknowledged coaching the boys' and girls' track team "on and
off . . . for about [thirty] years." In 1989, he became HSHS's vice principal. He
confirmed P.E. was the HSHS track coach in 1989. L.O. had "knowledge of the
policy and procedures that were in place at" HSHS "related to administrative
functions." He explained teachers are responsible for students "from the time
A-1884-24 6 that students [arrive] in a classroom," but he did not have "a distinct memory . . .
of any written policy that was in place at that particular point in tim e." During
the years 1976 to 1984, he coached the track teams most years and had assistant
coaches. He relayed the coaches "took responsibility for the young ladies that
were on the team." He held practices each day after school, from approximately
3:15 p.m. to 6:15 p.m., with most sessions taking place in the school building.
He confirmed that during practice he "paired up" the similarly skilled track
athletes.
L.O. specifically recalled coaching Roe during her sophomore year and
remembered she was a "tremendous" and "[o]utstanding athlete." He got to
know her over the two years she was at HSHS. L.O. did not consider P.E. "to
be a proficient and skilled track coach," which resulted in L.O. expressing these
concerns at the time to "the then athletic director supervisor." Specifically, L.O.
observed "red flags that indicated that [P.E.] did not know what he was doing."
During discovery, plaintiff served the medical expert report of Howard L.
Forman, M.D., a board-certified psychiatrist. Dr. Forman had evaluated and
treated "over 2,500 victims of childhood sexual abuse during [his] career."
Dr. Forman conducted a forensic psychiatric examination of Roe on
September 6 and September 26, 2023. He considered Roe's and L.O.'s
A-1884-24 7 depositions, as well as other documents produced in discovery. In his report,
Dr. Forman recognized "it is important to not only absorb the information the
evaluee is sharing but then to ask, does this make sense both rationally and
according to the scientific literature?" Dr. Forman determined Roe "suffered
from generalized anxiety disorder (GAD) and post[-]traumatic stress disorder
(PTSD) based on the most widely used diagnostic criteria." He determined that
Roe's GAD and PTSD were caused from being "serial[ly] rape[d] by a single
male perpetrator working as a janitor at her school" and that "[t]he sexual
assaults occurred in school bathrooms and stairwells during after-school track
practice." His opinions were offered to "a reasonable degree of medical
certainty."
In the evaluation process, Dr. Forman assessed Roe using the "M.I.N.I.
International Neuropsychiatric Interview," which he asserted "is the most widely
used psychiatric structured diagnostic interview instrument in the world ." The
screening tests found Roe was positive for GAD and PTSD. Further, in reaching
Roe's psychiatric diagnoses, Dr. Forman used the well-recognized criteria in the
fifth edition of the Diagnostic and Statistical Manual of Mental Disorders'
(DSM-5).
A-1884-24 8 Dr. Forman relayed that Roe emotionally conveyed that "Jersey City did
[ not] protect little black girls" and she "had no reason to believe confiding in
other adults would help make her world more just" because the teacher she
disclosed the assaults to did not act on her behalf. In addressing causation, Dr.
Forman opined "Roe developed PTSD related to the serial rapes she experienced
at [HSHS]" and her "treatment of PTSD . . . is complex and requires expert
clinicians in at least two domains, psychopharmacology and psychotherapy."
During his deposition, Dr. Forman acknowledged Roe did not disclose to
him that after the janitor began sexually assaulting her at HSHS, she was "raped
by two people and then dumped out of the van." However, Dr. Forman explained
he considered the later sexual assault by two men because she revealed the
incident in her deposition. After considering the sexual assaults, Dr. Forman
was "confident that" the "PTSD diagnosis . . . [was] related to [Roe's] events at
the school with the janitor." He reasoned that "in terms of timing, [Roe]
indicated to [him] that [the first sexual assault at HSHS] was how she lost her
virginity." Dr. Forman expressed that the loss of "[Roe's] virginity" "was her
sentinel sexual event." Further, Dr. Forman relied on the external reminders that
Roe experienced related to the sexual assaults at HSHS, including her fear about
"the last stall of a public bathroom," her need to "participate in things like school
A-1884-24 9 drop-offs and school pickups" for her daughter, and her inability "to connect
with people."
Dr. Forman specifically explained differentiating between the school
incidents and the van incident based on "the content of the PTSD findings." He
described, in differentiating the van assault, that he considered Roe had "spent
a significant amount of her adult life" working in the auto industry without "an
avoidance." Conversely, he also considered her resulting "triggers . . . related
to . . . avoidance, hyperarousal, [and] intrusive memories of what went on in the
school." Regarding the diagnoses, he qualified that Roe's "GAD was really
submerged or super[s]eded by the PTSD diagnosis." Dr. Forman cited six
resources that he relied on regarding childhood sexual abuse. He acknowledged
Roe could undergo treatment to reduce her PTSD symptoms.
Roe also produced a liability expert report from Joseph Steven
Schwartzberg, Ed.D. Dr. Schwartzberg has a "Bachelor of Science in
Education," a master's degree "in Special Education," a doctorate "in Education
at Columbia University," multiple education related certifications, and
professional education experience. Dr. Schwartzberg relayed he is "an
education expert with particular expertise in areas of school administration
under circumstances similar to those present in this case, including school
A-1884-24 10 safety, staff supervision and safety, and the development of appropriate policies,
procedures, and programs to protect the health, safety, and welfare of students."
Dr. Schwartzberg "opine[d] on the issues related to the extent to which . . .
[the Board] . . . acted or failed to act in accordance with the standards of care in
place at the time of the alleged incident." In addressing the applicable standards
of care to this case, Dr. Schwartzberg opined that New Jersey requires
"[t]eachers and school administrators . . . to supervise children in their facilities"
and applies "the 'in loco parentis standard.'" He also cited to "the Child Abuse
Prevention and Treatment Act (CAPTA)[, 42 U.S.C. §§ 5101 to 5116]." Dr.
Schwartzberg reviewed the facts alleged in Roe's and L.O.'s depositions, as well
as the Board's answers to interrogatories and notice to produce. He concluded
there was "no evidence in the record that [the Board] had any policies or
procedures in place to ensure the health, welfare, and safety of students during
after[-]school activities," and the HSHS "sponsored activity was effectively
unsupervised."
Dr. Schwartzberg opined the following three breaches of the standard of
care were committed: a failure "to enact policies and procedures relative to the
health, welfare, and safety of its students for the relevant time frame," the failure
"to enforce basic policies and procedures related to the supervision and
A-1884-24 11 protection of students and, as a result, the risk of serious harm to students was
foreseeable and could have been easily corrected," and "a failure to properly
supervise and protect . . . Roe."
Months after Dr. Schwartzberg and Dr. Forman offered their reports, the
Board's corporate designee, E.R., was deposed. E.R. asserted he communicated
with previous administrative staff and reviewed documents in preparation for
his deposition. E.R. explained he began his employment with the Board in 2020
but had "worked for Jersey City since" 1995. E.R. confirmed he could not find
any policies and procedures from 1989 or 1990, and the Board had a general
policy of removing documents that were more than ten years old.
On November 22, 2024, the Board moved for summary judgment, which
Roe opposed. The Board argued Dr. Forman failed to specifically opine Roe's
psychological injuries were permanent and he rendered a net opinion. Further,
the Board argued Roe failed to demonstrate, under the TCA, that the "out of
pocket cost threshold" was met. 3 Regarding Dr. Schwartzberg's opinion, the
Board argued that because he failed to state an "objective standard of care" for
the relevant period of time, he also rendered a net opinion. The Board asserted
3 On appeal, the parties have stipulated that the applicable TCA threshold Roe had to establish was $1,000 in medical expenses.
A-1884-24 12 that "CAPTA has nothing to do with the issues in this case" and cannot be used
as a standard. Finally, the Board argued Roe's claims for negligent training and
supervision, negligent hiring and retention, and negligent infliction of emotional
distress should be dismissed because she could not identify the janitor. 4
After argument, the court granted the Board's motion, finding Dr. Forman
rendered a net opinion and plaintiff failed to demonstrate sufficient medical
expenses to vault the TCA threshold. The court determined Dr. Forman's
opinion did not "demonstrate how [p]laintiff's GAD and PTSD were caused
solely by the sexual assaults she endured at [HSHS]." The court cited our
holding in J.H. v. Mercer County Youth Detention Center, where we affirmed
summary judgment based on the expert's failure to "differentiate" between a
plaintiff's "emotional distress caused by the [sexual assault] events at the
detention center [and] plaintiff's preexisting personality disorder." 396 N.J.
Super. 1, 21 (App. Div. 2007). The court reasoned that Dr. Forman did not
differentiate Roe's "emotional distress caused by the subject events from any
emotional distress that transpired as a result of the other sexual assaults that
[she] had endured." The court also determined Dr. Forman's opinion and Roe's
future treatment costs were "speculative."
4 Roe does not appeal the dismissal of these three claims. A-1884-24 13 Regarding whether Dr. Schwartzberg's opinion was a net opinion, the
court found he "adequately set[] forth the 'why and wherefore' that support[ed]
his opinion." The court reasoned that Dr. Schwartzberg's opinions were based
on the record and recognized a "level of oversight and protection." It highlighted
Dr. Schwartzberg's reliance on L.O.'s deposition testimony that he was
"[un]aware of any written school policies or procedures in the 1989-1990
timeframe."
On appeal, plaintiff contends: the court abused its discretion in
characterizing Dr. Forman's expert opinion as an impermissible "net opinion";
Dr. Forman is qualified to render an expert opinion concerning Roe's sexual
assault and psychological response to same; the court erroneously disregarded
the weight of the evidence demonstrating the reliability of Dr. Forman's opinion
that Roe's serial sexual assaults at HSHS were more traumatizing to her
psychological state than the later unrelated assault; the court also erred in
excluding evidence of Roe's psychiatric injuries and projected costs of her future
psychological treatment; Roe's out-of-pocket medical expenses resulting from
the sexual abuse satisfy the monetary threshold of N.J.S.A. 59:9-2; and Roe has
demonstrated permanent and substantial injuries that satisfy N.J.S.A. 59:9-2. In
A-1884-24 14 its cross-appeal, the Board argues the court erred in failing to exclude Dr.
Schwartzberg's opinion as a net opinion.
II.
We review a trial court's summary judgment decision de novo, "applying
the same standard used by the trial court" under Rule 4:46-2(c). Samolyk v.
Berthe, 251 N.J. 73, 78 (2022). "The court's function is not 'to weigh the
evidence and determine the truth of the matter but to determine whether there is
a genuine issue for trial.'" Rios v. Meda Pharm., Inc., 247 N.J. 1, 13 (2021)
(quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)). To
rule on summary judgment, courts must determine "whether the evidence
presents a sufficient disagreement to require submission to a jury or whether it
is so one-sided that one party must prevail as a matter of law." DepoLink Ct.
Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App.
Div. 2013) (quoting Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189
N.J. 436, 445-46 (2007)); see also Rozenblit v. Lyles, 245 N.J. 105, 121 (2021)
(applying same standard for cross-motions for summary judgment).
The TCA seeks to accomplish "the public policy of this State that public
entities shall only be liable for their negligence within the limitations of this act
and in accordance with the fair and uniform principles established herein."
A-1884-24 15 N.J.S.A. 59:1-2. Under the TCA, the Legislature established that "[g]enerally,
immunity for public entities is the rule and liability is the exception." Nieves v.
Adolf, 241 N.J. 567, 575 (2020) (quoting Fleuhr v. City of Cape May, 159 N.J.
532, 539 (1999)). The TCA "delineates both procedural and substantive
requirements for bringing a tort claim against the State, public entities, and
public employees." Ibid. The TCA "preclud[es] damages for pain and suffering
[against a public entity] unless certain circumstances are met." C.W. v. Roselle
Bd. of Educ., 474 N.J. Super. 644, 650 (App. Div. 2023) (quoting E.C. by D.C.
v. Inglima-Donaldson, 470 N.J. Super. 41, 55 (App. Div. 2021)).
N.J.S.A. 59:9-2(d) addresses the threshold a plaintiff must establish for an
award for pain and suffering under the TCA. At the time of plaintiff's alleged
assault, subsection (d) provided the following:
No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $1,000.00. 5
5 The limit was increased to $3,600 from $1,000 effective September 21, 2000. L. 2000, c. 126, § 32. Here, the parties had argued below that the $3,600 threshold applied but have now stipulated on appeal that plaintiff must only demonstrate medical treatment expenses of $1,000. See Knowles v. Mantua Twp. Soccer Ass'n, 176 N.J. 324, 329 (2003) (applying the TCA threshold applicable at the time of the underlying cause of action). A-1884-24 16 For purposes of this section[,] medical treatment expenses are defined as the reasonable value of services rendered for necessary surgical, medical[,] and dental treatment of the claimant for such injury, sickness[,] or disease, including prosthetic devices and ambulance, hospital[,] or professional nursing service.
[N.J.S.A. 59:9-2(d).]
In 2019, the Legislature enacted the Child Victims Act (CVA), L. 2019,
c. 120, which expanded the rights of sexual assault victims. The CVA includes
N.J.S.A. 59:2-1.3, which establishes that "immunity from civil liability granted
by [the TCA] to a public entity or public employee shall not apply to an action
at law for damages as a result of a sexual assault . . . , which was caused by a
willful, wanton[,] or grossly negligent act." In "disabling . . . [TCA] immunities
in sexual misconduct cases, the Legislature undoubtedly intended to make the
plaintiff's pursuit of a remedy realistic rather than illusory ." E.C. by D.C., 470
N.J. Super. at 51.
The Legislature has clearly "stated [a] desire to expand the rights of
victims of sexual assaults and other sexual misconduct." Id. at 47. In
furtherance of expanding sexual assault victims claims, the Legislature, "[i]n
addressing the fact that victims might also encounter sexual misconduct
involving public entities and public employees, . . . disabled [TCA] immunities
in circumstances defined by N.J.S.A. 59:2-1.3(a) and eliminated the procedural
A-1884-24 17 notice-of-claim requirements" under N.J.S.A. 59:8-3(b). Id. at 46-47. We have
held N.J.S.A. 59:2-1.3(a)(1)'s "plain language expresses that the public entity's
immunities will be disabled when the sexual offense was caused by the willful,
wanton[,] or grossly negligent conduct of the public entity 'or' public employee."
Id. at 48 (quoting N.J.S.A. 59:2-1.3(a)(1)). In E.C. by D.C., we explained:
It may be true the phrase 'willful, wanton or grossly negligent' becomes unnecessary when a public employee is the sex offender, but [N.J.S.A. 59:2- 1.3(a)(1)] encompasses much more than that particular instance. For example, subsection (1) would apply when a public entity is an occupier of real property – like a school – and provides woefully inadequate security, thereby allowing a predator to enter the school and commit a sexual crime against a student. In that circumstance, the acts or omissions of the public entity would have to be assessed through application of the willful, wanton[,] or grossly negligent standard.
[Id. at 49-50.]
In interpreting N.J.S.A. 59:2-1(a)(1), we determined that "when the wrongful
state of mind is provided by the public employee's sexual offense, there is no
need for a plaintiff to establish that the public entity also engaged in willful,
wanton[,] or grossly negligent conduct." Id. at 52.
Our Supreme Court, in Hornor v. Upper Freehold Regional Board of
Education, ___ N.J. ___ (March 11, 2026) (slip op. at 5), recently interpreted
whether N.J.S.A. 59:2-1.3(a) "authorizes the imposition of vicarious liability on
A-1884-24 18 a school district for a [school employee's] sexual abuse of a student outside the
scope of [his or her] employment." The Court noted "N.J.S.A. 59:2-1.3(a)'s
opening clause -- '[n]otwithstanding any provision of the [TCA] to the contrary'
-- reflects that any TCA provision that confers immunity in other settings simply
does not apply to sexual assault and sexual misconduct claims within the scope
of that statute." Id. at ___ (slip op. at 37) (alterations in original); see also id. at
___ (slip op. at 38).
The Court went on to explain "since the [CVA]'s effective date, no TCA
immunities protect public entities and public employees in . . . civil actions
governed by N.J.S.A. 59:2-1.3(a)(1)." Id. at ___ (slip op. at 38). Further, the
Court "tether[ed] vicarious liability to a determination [whether], under the
totality of the circumstances, it reasonably appeared that the school employee's
sexual abuse or other sexual misconduct involving the student was tacitly
approved by the school." Id. at ___ (slip op. at 45). "That requirement focuses
the inquiry on the knowledge and culpability of school officials and other school
employees in a position to prevent or stop the abuse." Ibid.
The Court held that "in order to prevail on a vicarious liability claim . . .
under N.J.S.A. 59:2-1.3(a)(1) against a public school arising from a school
employee's sexual abuse or sexual misconduct against a student caused by a
A-1884-24 19 willful, wanton, or grossly negligent act of the school employee," the plaintiff
must show:
(1) The school gave the employee who allegedly committed sexual abuse or other sexual misconduct described in N.J.S.A. 59:2-1.3(a)(1) the authority to control the student's educational environment;
(2) the school employee's exercise of that authority resulted in the sexual abuse or sexual misconduct; and
(3) it reasonably appeared that the school employee's sexual abuse of or sexual misconduct against the student was tacitly approved by the school.
[Id. at ___ (slip op. at 46).]
The Court further explained "[r]elevant considerations may include (a)
any policies, training, or other procedures implemented by the school to prevent
or address the sexual abuse of students; (b) whether those policies . . . were
enforced"; (c) the circumstances under which the abuse occurred and continued;
"(d) whether the abuse took place on school property, at school-related
events . . . , or in settings unconnected to the school; (e) whether the sexual
abuse or sexual misconduct took place during school hours; and (f) whether "
and how "the abuse was reported to school officials or other school employees,
and . . . how and when those officials or employees responded to such a report."
Id. at ___ (slip op. at 46-47). The Court offered an example, providing that
A-1884-24 20 when the abusive "conduct occurred in the teacher's classroom over a period of
days or weeks and school officials in the vicinity who reasonably should have
been aware of the abuse did not intervene, a factfinder may reasonably find that
the school tacitly approved the abuse." Id. at ___ (slip op. at 47-48).
III.
We first address Roe's arguments that the court erred in barring Dr.
Forman's psychiatric opinion because it constituted a net opinion. Roe contends
the court's net opinion determination was erroneous because Dr. Forman's
"written report and deposition testimony . . . articulated the facts, evidence, and
data relied upon in forming his opinion and established the necessary 'why and
wherefore' underlying his opinion." She argues the court improperly determined
Dr. Forman "fail[ed] to differentiate" between Roe's sexual assaults in reaching
his PTSD causation opinion because it is clear he considered her "deposition
testimony" regarding the "sexual[] assault[] in a van" before writing his report.
Roe further asserts Dr. Forman's opinion establishes a fact question regarding
whether she sustained a permanent injury. After our review of Dr. Forman's
report and deposition testimony, we conclude the court erred in excluding his
opinion as a net opinion but remand for the court to hold an N.J.R.E. 104 hearing
to address his conclusion on permanency.
A-1884-24 21 Plaintiff bears the burden of proving her personal injury claims under the
TCA. To meet that burden, it is well-recognized that "[e]xpert medical
testimony . . . is used to demonstrate a causal link between the defendant's
allegedly negligent conduct and the plaintiff's injury." Creanga v. Jardal, 185
N.J. 345, 354 (2005). Relevant here, our Supreme Court has concluded a
medical expert's opinion that a plaintiff has suffered a "permanent psychological
harm in the form of [PTSD] resulting from [a] rape . . . [may] constitute[] a
'permanent loss of a bodily function' within the meaning of N.J.S.A. 59:9-2(d)."
Collins v. Union Cnty. Jail, 150 N.J. 407, 421 (1997).
"The admission or exclusion of expert testimony is committed to the
sound discretion of the trial court." Townsend v. Pierre, 221 N.J. 36, 52 (2015).
Our Supreme Court, in In re Accutane Litigation, "reaffirm[ed] that the abuse of
discretion standard must be applied by an appellate court assessing whether a
trial court has properly admitted or excluded expert scientific testimony in a
civil case." 234 N.J. 340, 348 (2018). The admissibility of expert testimony is
governed by N.J.R.E. 702. Generally, "(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 such that an expert's testimony could be
A-1884-24 22 sufficiently reliable; and (3) the witness must have sufficient expertise."
Townsend, 221 N.J. at 53 (quoting Creanga, 185 N.J. at 355).
The Supreme Court has recognized that "[t]he 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.'"
Id. at 53-54 (second alteration in original) (quoting Polzo v. County of Essex,
196 N.J. 569, 583 (2008)). "An expert is required to give the 'why and
wherefore' of his or her opinion, not just a mere conclusion or speculation."
Riley v. Keenan, 406 N.J. Super. 281, 295 (App. Div. 2009) (quoting Koruba v.
Am. Honda Motor Co., 396 N.J. Super. 517, 525-26 (App. Div. 2007)). "To
support a causal connection between the act complained of and the resulting
injury or damage, experts 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." Ibid. (quoting Koruba,
396 N.J. Super. at 526).
The Supreme Court explained in Creanga that an "expert witness must
demonstrate what he or she did and that the proper diagnostic procedures were
followed when performing the diagnosis." 185 N.J. at 357. It determined that
a reliable "expert opinion derived from a differential diagnosis is admissible
A-1884-24 23 under the New Jersey Rules of Evidence." Id. at 349. The Supreme Court
considered that "courts" use the term "differential diagnosis" "in a more general
sense to describe the process by which causes of the patient's condition are
identified." Id. at 355-56 (quoting Clausen v. M/V New Carissa, 339 F.3d 1049,
1057 n.4 (9th Cir. 2003)). After an "expert 'rules in' plausible causes, the expert
then must rule out those causes that did not produce the patient's condition by
engaging 'in a process of elimination . . . so as to reach a conclusion as to the
most likely cause of the findings in that particular case." Id. at 356 (quoting
Clausen, 339 F.3d at 1057 n.4).
"The net opinion rule is not a standard of perfection. The rule does not
mandate that an expert organize or support an opinion in a particular manner
that opposing counsel deems preferable." Townsend, 221 N.J. at 54. When a
"defendant raises a genuine factual issue about the causation of plaintiff's
claimed injuries by pointing to other injuries the plaintiff may have experienced "
it is for a jury to decide "that disputed issue of causation," "except in those
unusual instances when no reasonable fact-finder could conclude that the
permanent injury was caused by the subject [incident]." Davidson v. Slater, 189
N.J. 166, 170 (2007). The Supreme Court in Davidson considered a plaintiff's
verbal threshold claim, under the Automobile Insurance Cost Reduction Act,
A-1884-24 24 N.J.S.A. 39:6A-1.1 to -35, and explained that "a plaintiff need not produce
affirmative medical evidence segregating what plaintiff considers to be non -
causes of the alleged injury in order to avoid a directed verdict." Id. at 187.
After reviewing Dr. Forman's report and deposition testimony, we are
convinced he provided the requisite medical foundation and factual reasons for
his opinion. He described the "widely" accepted forensic "psychiatric"
assessment screening and the "[d]iagnostic [f]ormulation" he used in
determining that Roe's suffered sexual assaults at HSHS caused her PTSD.
Further, Dr. Forman explained the assessment methodology he administered to
Roe was a "structured" "[n]europsychiatric [i]nterview" and based on the DSM-
5 criteria. At his deposition, Dr. Forman acknowledged his report did not
include his consideration of Roe's sexual assault in the van, but he attested to
reviewing her deposition testimony regarding the later assault and to considering
the information in his medical evaluation. After Dr. Forman considered Roe's
subsequent sexual assault and the facts surrounding the janitor's sexual assaults,
he opined within a reasonable degree of medical certainty that Roe "developed
PTSD related to the serial rapes she experienced at" HSHS.
Dr. Forman specifically delineated the facts he found relevant in
formulating his psychiatric opinion against recognized forensic standards. He
A-1884-24 25 opined with medical certainty that Roe's PTSD was caused by the sexual assaults
at HSHS because: the sexual assaults at HSHS occurred first and "repeatedly";
Roe had disclosed the assaults to "a teacher . . . soon after" but the teacher failed
"to protect her"; Roe's primary triggers were related to the sexual assaults at
HSHS; and it was "devastating" to Roe that the "perpetrator [was] employed by
an institution charged with educating and nurturing her." Dr. Forman also
highlighted that the "serial rapes" at HSHS were especially "devastating" to Roe
as a "member [of] a heavily discriminated against minority" group. Because Dr.
Forman's report provided the accepted standards and facts he relied upon, we
part ways with the trial court's determination that Dr. Forman's opinion "failed
to differentiate . . . the other sexual assaults that [p]laintiff had endured."
Further, his opinion and the omission of Roe's sexual assault in the van from his
report are the "proper 'subject of exploration and cross-examination at a trial.'"
Townsend, 221 N.J. at 54-55 (quoting Rosenberg v. Tavorath, 352 N.J. Super.
385, 402 (App. Div. 2002)).
We next address whether Dr. Forman's failure to use the word
"permanent" in his opinion warrants barring his testimony. Dr. Forman's report
indicated that, after he diagnosed Roe with PTSD, he concluded her
symptomology had continued into her adult life. He found Roe's PTSD had
A-1884-24 26 "profound" "repercussions" and highlighted: Roe's childhood sexual abuse
caused "deep-seated psychological trauma that persists into adulthood"; "the
traumatic past casts long shadows over her adult life"; "Roe's sexual
victimization has [continued affecting] her adult mental functioning";
"[n]euroscientific research has provided" that childhood sexual abuse can create
"a biological change to one's brain – a physical injury"; she continuously
"experiences her victimization"; "the traumatic nature of her experience can trap
her in a state of silence"; and research supports "the subsequent onset of PTSD"
and "the long-term effects."
Dr. Forman's opinion did not use the TCA permanency terminology but
clearly contained multiple references to Roe's continued long-term PTSD.
Therefore, because a fair reading and extrapolation of his report indicates that
Dr. Forman concluded Roe's PTSD sequelae will persist, this issue needs to be
clarified. Accordingly, the court is directed on remand to hold an N.J.R.E. 104
hearing to address his opinion on permanency.
When determining whether "to strike an expert report, a trial court may
conduct a hearing under N.J.R.E. 104(a)." Id. at 54 n.5. "The court shall decide
any preliminary question about whether a witness is qualified, . . . or evidence
is admissible" and "may hear and determine such matters out of the presence or
A-1884-24 27 hearing of the jury." N.J.R.E. 104(a). On remand, the court shall determine
whether Dr. Forman opines that Roe continues to suffer PTSD "repercussions"
in adulthood to satisfy that she suffers a "permanent loss of a bodily function"
within a reasonable degree of medical certainty.
We also conclude Roe has established a genuine issue of material fact that
her medical expenses exceeded the TCA's $1,000 threshold. Again, the parties
have stipulated on appeal that the applicable TCA threshold amount is $1,000 ,
rather than the current "$3,600 threshold." Roe certified in her responses to
interrogatories that she began therapy in December 2023, and was in treatment
with "a Primary Therapist at Sun Point Wellness Center." She estimated her
treatment costs over the year were "at least $3,120" and Dr. Forman noted Roe
was "participating in therapy sessions two[]times per month at a cost of $130.00
per visit." The record does not disclose whether defendant received medical
releases for the treatment and payments made. Because Roe has demonstrated
sufficient disputed facts showing she vaulted the $1,000 threshold, we need not
address whether Dr. Forman's estimated "future treatment costs satisfy the
monetary threshold." C.W., 474 N.J. Super. at 653.
In remanding this matter, we have not determined that Roe's claim against
the Board must be submitted to the jury. Instead, the facts will need to be
A-1884-24 28 developed at trial during Roe's case. If Roe cannot present facts from which a
reasonable jury could find that the school "tacitly approved" the misconduct that
led to Roe's sexual assaults, her claim against the Board may be subject to a
directed verdict motion. See Hornor, ___ N.J. at ___ (slip op. at 46).
Finally, we address the Board's cross-appeal argument that the court erred
in finding Dr. Schwartzberg's opinion admissible. The Board contends Dr.
Schwartzberg's liability opinion was a net opinion because it "fail[ed] to identify
the objective standard of care." After a review of Dr. Schwartzberg's opinion
and the record, we disagree.
Dr. Schwartzberg based his opinions on the "school district's obligations
and duties known as the 'in loco parentis standard'" and referenced CAPTA. He
opined the Board did not have the required policies and procedures in place at
the time Roe was a student, that they did not follow, "properly implement[,] or
enforce" policies and procedures, and defendants failed to "properly supervise
and protect" Roe. The court found Dr. Schwartzberg "set forth the why and
wherefore" required because his opinion was "based on . . . evidence" in the
record.
We are unpersuaded by the Board's argument that Dr. Schwartzberg was
not permitted to rely on the in loco parentis principle. Dr. Schwartzberg opined
A-1884-24 29 that the "'in loco parentis standard' means that a school district, in assuming
physical custody and control over one of its students, effectively t[akes] the
place of the student's parents." This doctrine, which serves as the primary basis
for his opinions, is well established. Our Supreme Court has recognized that
"[s]chool officials have a general duty 'to exercise reasonable supervisory care
for the safety of students entrusted to them, and [are accountable] for injuries
resulting from failure to discharge that duty.'" Jerkins v. Anderson, 191 N.J.
285, 296 (2007) (quoting Caltavuturo v. City of Passaic, 124 N.J. Super. 361,
366 (App. Div. 1973)). "The standard of care imposed upon school personnel
in carrying out this duty to supervise is that degree of care which a person of
ordinary prudence, charged with comparable duties, would exercise under the
same circumstances." Caltavuturo, 124 N.J. Super. at 366.
Dr. Schwartzberg also sufficiently provided his "education, training, and
substantial experience" in areas of school administration, including supervision
and safety. He has over "[forty-five] years" of "professional educational
experience." Dr. Schwartzberg's reference to CAPTA was in the context of
defining "child abuse and neglect," which contemplates "at a minimum, any
recent act or failure to act on the part of a parent or caretaker . . . ." 42 U.S.C.
A-1884-24 30 § 5106g (1996) (amended 2023). For these reasons, we are satisfied Dr.
Schwartzberg did not provide a net opinion.
We note the Board further asserts that "Dr. Schwartzberg is . . . factually
incorrect that the [Board] did[ not] have policies concerning the prevention of
sexual abuse in 1989 or 1990." The Board highlights E.R.'s deposition
testimony as its "corporate designee." E.R. testified that "regulations had been
put into place," he "was able to find . . . the updated versions of . . . the
document" containing the regulations, but he could not "locate any prior"
policies existing at the time Roe attended HSHS. The Board did not depose Dr.
Schwartzberg to address his opinion in light of E.R.'s testimony and the lack of
HSHS policies and procedures produced regarding student safety and
supervision. See Congiusti v. Ingersoll-Rand Co., 306 N.J. Super. 126, 131
(App. Div. 1997) (deposing experts before trial more "fully reveal[s] the bases
for" the "theories in their reports"); see also R. 4:10-2(d)(2). At trial, the Board
will have the opportunity to cross-examine the expert regarding his factual
bases, including whether he considered that the Board was called to produce
records from over thirty years ago. For these reasons, we discern no error in the
court's finding that Dr. Schwartzberg did not render a net opinion.
A-1884-24 31 To the extent that we have not addressed the parties' remaining
contentions, it is because they lack sufficient merit to be discussed in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed in part, reversed in part, and remanded. We do not retain
jurisdiction.
A-1884-24 32