Davis v. Barkaszi, 2012 N.J. Super. LEXIS 15 (App.Div. Feb. 9, 2012), defendant bar appealed an unfavorable jury verdict claiming that, inter alia, the trial judge excluded important evidence challenging expert opinion regarding defendant patron’s alcohol tolerance.

This litigation arose from personal injuries sustained by plaintiff, Douglas Davis, while a passenger in a motor vehicle driven by defendant, Justin Barkaszi. Prior to the accident, Barkaszi was observed consuming multiple alcoholic beverages at defendant bar. One witness testified that she observed Barkaszi consume multiple shots of vodka, but she did not recall him exhibiting signs of drunkenness. She further testified that Barkaszi left defendant bar sometime between 9:30 p.m. and 10:00 p.m. to pick up plaintiff.

Following the accident, Barkaszi was determined to have a blood alcohol concentration (BAC) of between .189 and .191 percent. In New Jersey, a driver with a BAC of .08 percent or more is guilty of driving while intoxicated. N.J.S.A. 39:4-50 (a).

Plaintiff sued the bar and Barkaszi for damages under New Jersey’s Dram Shop Act, N.J.S.A. 2A:22A-5. Pursuant to the Act, “a person who sustains personal injury … as a result of the negligent service of alcoholic beverages … may recover damages from a licensed alcoholic beverage server only if: (1) The server is deemed negligent ….” A licensed alcoholic beverage server is negligent if it is found to have served a “visibly intoxicated” person.

To demonstrate that Barkaszi was “visibly intoxicated” while at defendant bar, plaintiff introduced the testimony of an expert in alcohol pharmacology and forensic toxicology. The expert concluded that Barkaszi consumed 18 ounces of vodka on the night of the accident. He explained that most people exhibit visible signs of intoxication at a BAC of .15 percent, and based on his review of other relevant factors, Barkaszi would likely have reached this level of intoxication while still at defendant bar.

In his analysis, the expert also considered the testimony of individuals familiar with Barkaszi’s drinking habits, including testimony from Barkaszi himself. The expert concluded that, based on those habits, Barkaszi was a person of “average tolerance” and would have therefore been “visibly intoxicated” while still at defendant bar.

At trial, defense counsel sought to examine both defendant Barkaszi and plaintiff regarding Barkaszi’s past drinking habits. Defense counsel attempted to establish that defendant Barkaszi drank alcohol frequently enough to have developed a higher tolerance, and would therefore be less likely to exhibit visible signs of intoxication than a person of average tolerance at the same BAC. If Barkaszi’s tolerance to alcohol would render him less likely to exhibit visible signs of drunkenness, then the bartender might not have known Barkaszi was intoxicated and would not have been negligent in serving him additional drinks.

The trial judge, however, refused to allow defense counsel to pursue this line of questioning with either defendant Barkaszi or plaintiff. The trial judge then removed this issue from the jury’s consideration by stating that there was “no evidence in this case that Mr. Barkaszi had anything other than average tolerance for alcohol.” The trial judge opined that the defendant would need to present expert testimony to contest the expert’s determination that Barkaszi was a man of “average tolerance.”

On appeal, the Appellate Division held that “[t]he judge’s refusal to allow [defense counsel] to develop evidence concerning Barkaszi’s alcohol tolerance, coupled with this 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.” The Appellate Division found important the fact that the expert’s knowledge of Barkaszi’s drinking habits was derived, in part, from statements of people familiar with his drinking history. These statements were not medical conclusions, but rather factual observations subject to rebuttal. Thus, the foundation for these facts could properly be called into question by examining individuals, such as Barkaszi and plaintiff, who might testify as to contrary observations.

This opinion of the Appellate Division illustrates the important distinction between an expert’s opinion—that can only be challenged by another competent expert—and the facts upon which that opinion is based. If that opinion is based on the testimony and statements of lay persons, then those testimony and statements may be subject to rebuttal even though the expert opinion is not.

What It Means to You

This opinion of the Appellate Division illustrates the important distinction between an expert’s opinion—that can only be challenged by another competent expert—and the facts upon which that opinion is based. If that opinion is based on the testimony and statements of lay persons, then those testimony and statements may be subject to rebuttal even though the expert opinion is not.