Recently, in a dram shop action, the Appellate Division of the Superior Court of New Jersey ruled that the Defendant bar could refute Plaintiff’s expert’s opinion regarding the alcohol tolerance of a patron without relying on an expert of its own. In Davis v. Barkaszi, Plaintiff brought an action against Defendants known collectively as KC’s Korner, a bar and grill. Plaintiff alleged that Defendants negligently served alcohol to a patron, Barkaszi, while he was visibly intoxicated, which resulted in a motor vehicle accident while Plaintiff was a passenger in Barkaszi’s car. A jury found in favor of Plaintiff and attributed 70% liability to Defendants. Thereafter, Defendants appealed, arguing, in part, that the trial court erred by precluding Defendants from countering Plaintiff’s expert’s opinion that Barkaszi was a man of average alcohol tolerance. Defendants had intended to argue that Barkaszi had an increased tolerance and was therefore not visibly intoxicated during the time he was served at Defendants’ establishment.
At trial, Plaintiff’s expert, in the field of alcohol pharmacology and forensic toxicology, testified that tolerance to alcohol can increase for alcoholics, but there was no evidence that Barkaszi was an alcoholic or had chronic alcohol problems. Based on this, Plaintiff’s expert concluded that Barkaszi was a person of average tolerance. Thereafter, the trial judge did not permit defense counsel the opportunity to explore the issue of Barkaszi’s tolerance to alcohol and, ultimately, instructed the jury that Barkaszi had an average tolerance.
Defense counsel had sought to examine both Barkaszi and Plaintiff about Barkaszi’s drinking habits in an attempt to establish that Barkaszi had developed a higher tolerance to alcohol. The argument that would have followed, was that Barkaszi would have been less likely to exhibit visible signs of intoxication than a person of average tolerance with the same blood-alcohol-content and thus, the bartender might not have known that Barkaszi was intoxicated and would not have been negligent in serving additional drinks.
The trial judge stated that Defendants needed to present expert testimony in order to contradict Plaintiff’s expert’s opinion as to Barkaszi’s tolerance. On appeal, Defendants argued that such an expert was not necessary, as the defense was “simply trying to undermine [Plaintiff’s expert’s] classification of Barkaszi as a “man of average tolerance” by showing that the facts underlying his expert opinion did not reflect the reality of the situation.” Defendants believed that their desired probe of Barkaszi’s drinking history was permissible so that the jury would have been able to assess whether the evidence supported Plaintiff’s expert’s conclusion.
The Appellate Division reviewed the trial Court’s decision on this issue using a “clear abuse of discretion” standard, and ultimately ruled that the trial judge did abuse his discretion by preventing Defendants from eliciting testimony as to Barkaszi’s drinking habits. The Court agreed with Defendants’ contention that Barkaszi’s tolerance was a question of fact for the jury to decide. Further, the Court noted that Plaintiff’s expert’s opinion on tolerance relied on factual observations derived from medical records and that these observations were subject to rebuttal. Citing Panko v. Grimes, the Court rejected Plaintiff’s argument that expert opinion is necessary to contradict prior expert testimony where it is the underlying facts, as opposed to the medical conclusions, that are being rebutted. Further, the Court concluded that the trial judge improperly removed the tolerance issue from the jury by instructing them that there was no evidence that Barkaszi had anything other than an average tolerance for alcohol.
The Appellate Court found that the trial court’s errors with respect to the alcohol tolerance issue amounted to reversible error and remanded the case for a new trial. “The [trial] judge’s refusal to allow [Defendants] to develop evidence concerning Barkaszi’s alcohol tolerance, coupled with [the jury] charge, erroneously deprived the jury of its opportunity to consider the issue, thereby potentially affecting the jurors’ decision as to liability, and thus, constituted reversible error.”
by Daniel C. Seger, Esq.