In a case titled Conrad v. Michelle and John, Inc., an appellate panel decided to reverse the trial court's decision to dismiss a plaintiff’s dram shop claim under N.J.S.A. 2A: 2-5 because the plaintiff failed to produce an expert witness at a plenary hearing to determine whether the expert’s opinion was grounded upon reliable scientific principles.

In the case, defendants filed a motion for summary judgment. The core of the motion related with the reliability of the plaintiff’s expert testimony. During the course of oral arguments, the court decided to conduct a plenary hearing under N.J.R.E. 104 to determine whether the methodology used by the expert was acceptable science.  This decision was made despite the fact that the defense attorney did not request this type of hearing. Indeed, the defense attorney readily recognize that the expert who he had work with in the past, has had his testimony admitted other cases.  Moreover, the propriety of the expert’s methodology was not part of defendant’s arguments in support of defendant’s the motion for summary judgment.

Notwithstanding, the trial court continued to press for the plenary hearing. The hearing was adjourned at plaintiff’s request on two separate occasions because of the unavailability of the expert. A third hearing was scheduled and when the plaintiff could not produce the expert because of his schedule, the trial court dismissed the plaintiff’s claim.

The appellate court reversed the trial judge's decision, noting that a lesser sanctions were available. It also observed that it was rather peculiar for the trial court to demand a plenary hearing when the defendant had not.