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    SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

    New Jersey Rule of Evidence 702 governs the admission of expert testimony. The dispute in this appeal is whether Dr. Zarghami’s expert testimony is sufficiently reliable to be admitted into evidence under the Rule.
    
HELD:     A trial court may admit an expert’s differential diagnosis into evidence if the proper diagnostic procedures were followed; Dr. Zarghami’s testimony was admissible as a properly conducted differential diagnosis and was improperly excluded from trial.

To determine sufficient reliability, we must consider whether differential diagnosis is admissible as a general matter and, then, whether Dr. Zarghami’s differential diagnosis is admissible. If so, we then must consider whether the courts below erred when they precluded Dr. Zarghami’s opinion as a net opinion. (pp. 10-11)

2.    A differential diagnosis is a medical construct for determining which one of two or more diseases or conditions a patient is suffering from, by systematically comparing and contrasting their symptoms. Whereas most physicians use the term to describe the process of determining which of several diseases is causing a patient’s symptoms, courts have used the term to describe the process by which causes of the patient’s condition are identified. (p. 11)

3.    The first step in properly conducting a differential diagnosis is for the expert to rule in all plausible causes for the patient’s condition. The issue is which of the competing causes are generally capable of causing the patient’s symptoms or mortality. Second, after the expert rules in plausible causes, the expert then must rule out those causes that did not produce the patient’s condition, the ruling out based on a continuing examination of the evidence so as to reach a conclusion as to the most likely cause of the findings in a particular case. (pp. 11-12)

Differential diagnosis testimony has been permitted in New Jersey in toxic tort cases. Those cases do not suggest that its use is limited to only toxic tort cases. At the federal level, the use of differential diagnosis has been broadly accepted. Several state courts also have accepted differential diagnosis as a reliable form of expert testimony. Because of the widespread acceptance of differential diagnosis in the medical community, the recognition of the technique in state and federal courts, and its compatibility with our rules of evidence and prior case law, we

conclude that a trial court may admit an expert’s differential diagnosis into evidence. To be admitted, the expert witness must demonstrate that the proper diagnostic procedures were followed. (pp. 13-14)

5.    The Appellate Division held that Dr. Zarghami’s testimony was a net opinion because his opinion was based solely on his subjective belief. Dr. Zarghami’s conclusion was supported by his own records, other hospital records, his patient’s past treatment history, and his interview with his patient the day after the miscarriage. His testimony was improperly excluded. (pp. 19-22)    

    The judgments of the trial court and Appellate Division are REVERSED and the matter is REMANDED to the trial court for reinstatement of the complaint.

     CHIEF JUSTICE PORITZ and J USTICES LONG, LaVECCHIA, ALBIN, WALLACE and RIVERA-S OTO join in JUSTICE ZAZZALI’s opinion

    Plaintiffs-Appellants,

        v.

JOHN R. JARDAL, JR., and LUCENT TECHNOLOGIES,

    Defendants-Respondents.

Argued October 12, 2005 – Decided December 8, 2005

On certification to the Superior Court, Appellate Division.

Gerard J. Martillotti argued the cause for appellants (Davis & Martillotti, attorneys; Mr. Martillotti and Stephanie A. Gahagan, on the brief).

Thomas M. Madden argued the cause for respondents (Hack, Piro, O’Day, Merklinger, Wallace & McKenna, attorneys).

    JUSTICE ZAZZALI delivered the opinion of the Court.

Plaintiff Mihaela Creanga claims that an automobile accident was the proximate cause of her premature labor and the resultant death of one of her twins. In support of her claim, she offered the expert opinion of her treating physician who stated that the accident caused the miscarriage. He based that opinion on a differential diagnosis of plaintiff’s injury, that is, he identified the accident as the proximate cause of plaintiff’s injury after the elimination of other alternatives. In reaching his conclusion, the physician considered various factors including his treatment of plaintiff before, during, and after the premature labor and plaintiff’s medical records.
Prior to trial, defendants filed a motion to preclude the physician’s testimony, arguing that it was a “net opinion,” which is an opinion based on bare conclusions untethered to facts. The trial court granted defendants’ motion and dismissed the complaint. The Appellate Division affirmed. We, however, conclude that an expert opinion derived from a differential diagnosis is admissible under the New Jersey Rules of Evidence. As applied here, the physician’s expert testimony was based on a properly conducted differential diagnosis. We also hold that the physician’s opinion is not a net opinion, and, therefore, the lower courts improperly excluded his testimony. As a result, we reverse and remand the matter to the trial court for reinstatement of the complaint.

Two days after the accident, on October 1, 2000, Dr. Zarghami was called to the hospital to assist and care for plaintiff because she was in premature labor. He participated in the delivery of one of the twins who, according to the doctor, was born alive and “probably gasped one or two times and then [stopped] breathing.” The other twin remained inside the womb and, after receiving permission from plaintiff, the doctors closed plaintiff’s open cervix so that she could continue that pregnancy.
    After the surgery, Dr. Zarghami reviewed plaintiff’s history with her in an effort to determine what caused the miscarriage. At that time, plaintiff told Dr. Zarghami that she had been in a car accident two days earlier. Dr. Zarghami explained that, in reaching his conclusion that the accident caused the miscarriage, he “tried to rule out the other causes of premature labor like preeclampsia, high blood pressure, any trauma or accident, [or] any infective cause to cause infection and premature labor.” The only cause that remained for the premature labor was “trauma of the accident.” He concluded: “With a reasonable degree of medical certainty, yes, I think [the trauma of the accident was] probably the cause of her premature labor.”
    On cross-examination, defendants questioned Dr. Zarghami concerning whether the miscarriage was in fact the result of an incompetent cervix rather than the accident as he had concluded. When asked to define “cervical incompetence,” Dr. Zarghami explained that it means that the cervix “is not able to hold the pregnancy.” Counsel then asked whether plaintiff’s family history, particularly the fact that her mother had an incompetent cervix and eleven miscarriages, made it more likely that she had suffered from an incompetent cervix. Dr. Zarghami responded that plaintiff’s family history was irrelevant because she did not have an incompetent cervix when she gave birth to her first child. He also explained that an incompetent cervix is not more likely to occur with twins because “[t]wins are more prone to premature labor, not incompetent cervix.” He added that plaintiff’s three prior abortions did not have an impact on the premature labor. When asked if premature labor and incompetent cervix are in any way related, Dr. Zarghami explained that they are two different medical conditions. Premature labor is usually associated with contractions, but births resulting from an incompetent cervix generally do not involve contractions. The only relationship, he testified, is that when a woman has an incompetent cervix and commences premature labor she will deliver faster.
    Dr. Zarghami acknowledged that he had signed the preoperative diagnosis report, which stated that the cause of plaintiff’s premature labor was an incompetent cervix, not an automobile accident. He explained that the report was prepared by a resident physician, not by him, and that he had never written “anything in terms of incompetent cervix” on plaintiff’s chart. Dr. Zarghami also acknowledged that the preoperative diagnosis report did not mention that there was an automobile accident. Counsel then directed Dr. Zarghami’s attention to plaintiff’s discharge summary that was prepared and signed by him. In that summary there is a postoperative note, prepared and signed by the resident that, like the preoperative report, diagnosed an incompetent cervix. Dr. Zarghami explained that he disagreed with that diagnosis because the other twin was not delivered at the same time. He was “certain” that plaintiff did not have an incompetent cervix because “[a]s soon as the first baby delivered, all the contractions stopped on [their] own.” He stated that there was at least an eight-hour gap between the first delivery and the surgery to close the cervix and that, if plaintiff was suffering from an incompetent cervix, then the second baby would have been delivered during that time.
Dr. Zarghami testified that plaintiff first told him about the accident early in the evening of October 1, 2000 while he was reviewing her medical history with her. He acknowledged, however, that his medical records did not mention that plaintiff had informed him of the accident. Counsel then challenged the doctor on his conclusion that plaintiff had suffered a direct trauma to her abdomen during the accident. The following exchange took place:
Q. Do you know if Mrs. Creanga suffered a direct trauma to her abdomen?

A. She had a car accident.

Q. But what do you base --

A. And then within two days after the car accident she went into labor.

Q. But do you have any information that she suffered a direct trauma to her abdomen during that car accident?

A. What information do you need?

Q. Did she tell you that?

A. No. Actually, when I was trying to figure out why she went [in]to premature labor, went to her history, she said by the way I did have [an] accident, because I did ask her did you have any trauma or anything to your belly. She said I was rear-ended by a car two days ago but I’m not sure that that’s related to this.

I said well it’s concomitant and it should be related because I have no reason for you to go into premature labor.

A. Not necessarily.

Dr. Zarghami also stated that he did not know whether plaintiff was wearing a seat belt at the time of the accident.
Further testing his opinion, counsel asked Dr. Zarghami whether plaintiff’s pregnancy had been high-risk. The doctor admitted that a twin pregnancy is high-risk but said that plaintiff’s family history and her prior abortions did not add to the risk. The fact that plaintiff was carrying twins, “at this stage of the game,” also was not a factor in causing the premature labor. Additionally, the doctor stated that if plaintiff was injured during her abortions, such an injury could have had an effect on the pregnancy, but she would not have had contractions.
Prior to trial, defendants filed a motion for summary judgment seeking to dismiss plaintiff’s claim for the loss of the fetus. The trial court denied defendants’ summary judgment motion, and defendants then filed a motion in limine to preclude Dr. Zarghami’s testimony on the basis that it was a “net opinion.” The trial court granted that motion, dismissed plaintiff’s complaint, and denied reconsideration of the dismissal. The Appellate Division affirmed both the preclusion of the expert’s opinion and the dismissal of the complaint, reasoning that “Dr. Zarghami’s opinion was not based on the facts in the case, but was a net opinion, based solely on his subjective belief.” We granted certification. 183 N.J. 213 (2005).

        [N.J.R.E. 702.]

This Court has recognized that N.J.R.E. 702
imposes three basic requirements: “(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 sufficiently reliable; and (3) the witness must have sufficient expertise to offer the intended testimony.”

[Kemp ex rel. Wright v. State, 174 N.J. 412, 424 (2002) (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 413 (1992).]

The only element of Rule 702 disputed in this appeal is whether Dr. Zarghami’s expert testimony is sufficiently reliable. As the Court has stated, “in order to meet that requirement the proponent of the expert testimony [is] required to demonstrate that the expert’s opinion or theory [is] generally accepted within the scientific community.” Ibid. To determine sufficient reliability in this matter we must consider whether differential diagnosis is admissible as a general matter, and, specifically, whether Dr. Zarghami’s differential diagnosis is admissible. If so, we then must consider whether the courts below erred when they precluded Dr. Zarghami’s opinion as a net opinion.

Also, as discussed earlier, Dr. Zarghami explained in his de bene esse deposition that he considered numerous alternatives in reaching his determination. See supra pp. 4-9, 15-17. He also testified that trauma is a known cause of premature labor and noted that the accident was only a couple of days prior to the labor. See Carlson, supra, 675 N.W. 2d at 106-07 (finding testimony relying on temporal proximity of accident and plaintiff’s condition admissible because trauma was known cause of plaintiff’s injury). Additionally, as in Nguyen, supra, Vitrano, supra, and Costantino, supra, Dr. Zarghami’s conclusion was supported by reference to both his records and hospital records prepared by other doctors who had examined plaintiff, as well as his own medical experience, his past history of treating plaintiff, and his interview with plaintiff the day after the miscarriage. He also stated that he reached his conclusion with a reasonable degree of medical certainty as required by Freeman, supra, 223 N.J. Super. at 116 . Accordingly, Dr. Zarghami not only provided his conclusion that plaintiff’s premature labor was caused by the automobile accident, but also gave the “why and wherefore” for that conclusion. Rosenberg, supra, 352 N.J. Super. at 401.
    To be sure, there may be inconsistencies in Dr. Zarghami’s testimony, but those inconsistencies go to the weight to be given by the fact-finder to Dr. Zarghami’s testimony, and not to its admissibility. In this context, it is the role of the jury -- and not of the court on summary judgment -- to consider any inconsistencies when it decides how much weight to assign to his testimony. In this appeal, the alleged inconsistencies do not render Dr. Zarghami’s opinion inadmissible. His testimony, therefore, was improperly excluded.

    SUPREME COURT OF NEW JERSEY

NO.     A-100    SEPTEMBER TERM 2004
ON CERTIFICATION TO Appellate Division, Superior Court    

MIHAELA CREANGA and RADU
CREANGA,

    Plaintiffs-Appellants,

        v.

JOHN R. JARDAL, JR., and
LUCENT TECHNOLOGIES,

    Defendants-Respondents.

DECIDED December 8, 2005
    Chief Justice Poritz    PRESIDING
OPINION BY Justice Zazzali    
CONCURRING/DISSENTING OPINIONS BY
DISSENTING OPINION BY    

CHECKLIST	REVERSE AND REMAND
CHIEF JUSTICE PORITZ	X
JUSTICE LONG	X
JUSTICE LaVECCHIA	X
JUSTICE ZAZZALI	X
JUSTICE ALBIN	X
JUSTICE WALLACE	X
JUSTICE RIVERA-SOTO	X
TOTALS	7