06-19-07 A-1131-05T5
This appeal concerns the propriety of the trial court's
order dismissing with prejudice a dram shop cause of action, as
a sanction for plaintiff's failure to produce her expert at a
court-ordered N.J.R.E. 104 hearing. The trial court also
granted defendant's summary judgment motion, finding that there
were no material facts in dispute, thus entitling defendant to a
judgment in its favor as a matter of law.
We reversed. We held that, absent a bona fide and timely
in limine application by defendant seeking to bar plaintiff's
expert testimony, the trial court had no basis to order
plaintiff's expert to respond to an N.J.R.E. 104 hearing to
determine the scientific validity of his opinions. The trial
court also erred in imposing the ultimate sanction of dismissal
with prejudice, before first exhausting lesser sanctions.
Finally, we concluded that there are sufficient material issues
of fact in dispute, giving plaintiff the right to present her
case to a jury. An eyewitness's recantation of a crucial part
of his testimony presents a fundamental jury issue.
