SANDRA NICHOLAS VS. HACKENSACK UNIVERSITY MEDICAL CENTER (L-4839-12, MIDDLESEX COUNTY AND STATEWIDE) ( 2018 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5165-15T2
SANDRA NICHOLAS and CORY LEO,
individually and as Administrators
Ad Prosequendum of the ESTATE OF
SANTINO MICHAEL LEO,
Plaintiffs-Appellants,
v.
HACKENSACK UNIVERSITY MEDICAL CENTER,
Defendant-Respondent,
and
BRUCE FRIEDMAN, M.D., MARK SIEGEL, M.D.,
STEPHEN PERCY, M.D., and ABRAHAM
ZERYKIER, M.D.,
Defendants.
__________________________________________
Argued January 16, 2018 – Decided August 9, 2018
Before Judges Messano, Accurso and Vernoia.
On appeal from Superior Court of New Jersey,
Law Division, Middlesex County, Docket No. L-
4839-12.
William L. Gold argued the cause for
appellants (Bendit Weinstock, PA, attorneys;
William L. Gold, on the briefs).
Richard J. Mirra argued the cause for
respondent (Hoagland, Longo, Moran, Dunst &
Doukas, LLP, attorneys; Richard J. Mirra, of
counsel and on the brief; Andrew J. Obergfell,
on the brief).
PER CURIAM
Plaintiffs Sandra Nicholas and Cory Leo, individually and as
administrators ad prosequendum of the estate of their four-year-
old son Santino Michael Leo, appeal from orders resulting in the
dismissal of their medical malpractice action against defendant
Hackensack University Medical Center (HUMC). We reverse.
I.
After suffering seizures, Santino Michael Leo was admitted
to HUMC on April 30, 2011. While in HUMC's pediatric intensive
care unit (PICU), it was determined he had an airborne infection,
methicillin-resistant staphylococcus aureus, and pneumonia. He
developed acute respiratory distress, multiple organ failure and
sepsis, and passed away on May 13, 2011.
In July 2012, plaintiffs filed a wrongful death and
survivorship medical malpractice complaint against HUMC, the
child's treating physicians, Dr. Bruce Friedman, Dr. Stephen
Percy, and Dr. Mark Siegel,1 and fictitiously-named physicians,
1
Dr. Abraham Zerykier was also named as a defendant but was
subsequently dismissed from the action by stipulation of the
parties.
2 A-5165-15T2
nurses and other HUMC staff. At the time of the malpractice
alleged in the complaint, each of the named physicians was board
certified in pediatrics and in pediatric critical care.
In support of their complaint, plaintiffs filed affidavits
of merit (AOM) from Dr. Howard Eigen, and Alisha Wursten, R.N.,
B.S.N. In his AOM, Dr. Eigen states he is a licensed physician
in the state of Indiana, "board certified and credentialed by a
hospital for at least five years in the [sub]specialties of
pediatric pulmonology and critical care" and, "[d]uring the year
immediately preceding the date of the occurrence that is the basis
of the claim or action, . . . devoted a majority of [his]
professional time to the active clinical practice of pediatric
pulmonology and critical care." Dr. Eigen subsequently provided
three reports opining as to the alleged deviations from the
standard of care by Drs. Friedman, Percy and Siegel, and other
HUMC personnel,2 and the manner in which the deviations proximately
2
In Dr. Eigen's report dated June 18, 2014, he asserted the
absence of a "systematic method for enforcing infection control
measures" in HUMC's PICU fell "below the standard of care, and
increased the risk of nosocomial infections . . . at the time that
Santino [Michael] Leo was being treated." Dr. Eigen also noted
that the "[l]ack of sterile procedure has a high likelihood of
introducing bacteria into the blood stream at the time of the
central line placement" in the child, and other lapses in procedure
"greatly increased [the child's] risk of sepsis and death."
3 A-5165-15T2
caused the child's death. The parties waived the Ferreira3
conference.
Almost three years later, Dr. Eigen testified during his
March 2015 deposition that he was board certified in pediatrics
and in the subspecialty of pediatric critical care, and in 2011
was credentialed at the Riley Hospital for Children to practice
pediatric and pediatric critical care medicine. He also testified
that from 2006 through 2011, he served as the medical director of
the hospital's PICU, and was on call approximately ten weeks per
year providing care to the PICU patients. When he was not on
call, Dr. Eigen administered the PICU and served as the vice-
chairman of pediatrics for clinical affairs. Dr. Eigen testified
that between 2006 and 2011 he devoted twenty-five percent of his
time to direct patient care in the PICU, fifty percent to
administrative duties and twenty-five percent to seeing
outpatients and teaching residents in the outpatient clinics.
3
In Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003),
the Court determined that "a 'case management conference [shall]
be held within ninety days of the service of an answer in all
malpractice actions' . . . [where] a 'defendant [is] required to
advise the court whether he has any objections to the adequacy of
the affidavit' that has been served on him." Buck v. Henry, 207
N.J. 377, 394 (2011) (third alteration in original) (internal
citation omitted) (quoting Ferreira, 178 N.J. at 154-55); see also
Meehan v. Antonellis, 226 N.J. 216, 221 (2016) (reinforcing the
importance of such a conference).
4 A-5165-15T2
Drs. Friedman, Percy and Siegel moved for summary judgment,
arguing plaintiffs lacked proof they deviated from the requisite
standard of care because Dr. Eigen was not qualified to testify
as an expert under the New Jersey Medical Care Access and
Responsibility and Patients First Act, N.J.S.A. 2A:53A-37 to -42.
The physicians claimed Dr. Eigen was not qualified to testify
because he did not devote the majority of his professional time
to clinical practice during the year preceding the alleged
malpractice in 2011, and therefore did not satisfy the requirements
of N.J.S.A. 2A:53A-41(a)(2).
In its written opinion, the court noted the physicians'
summary judgment motions presented the following issue: "whether
[p]lainiffs' proffered expert[, Dr. Eigen,] is qualified as an
expert under N.J.S.A. 2A:53A-41(a)(1) or N.J.S.A. 2A:53A-41(a)(2)
as required under Nicholas v. Mynster, 213 N.J. 463 (2013)." The
court determined that although Dr. Eigen is board certified in
pediatrics and pediatric critical care, he did not satisfy the
requirements of either N.J.S.A. 2A:53A-41(a)(2)(a) or N.J.S.A.
2A:53A-41(a)(2)(b), "which require either devotion to practice or
the teaching requirement mandated for a board certified expert."
The court concluded Dr. Eigen did not satisfy the statutory
requirements because he "only devoted a small percentage of his
5 A-5165-15T2
practice time to pediatric critical care in the year prior to the
date of the alleged malpractice[.]"
In separate orders dated September 22, 2015, the court barred
Dr. Eigen's testimony against Drs. Siegel and Friedman, and granted
summary judgment in their favor, and barred Dr. Eigen's testimony
against Dr. Percy. Two weeks later, the court entered an order
granting Dr. Percy summary judgment.
In October 2015, plaintiffs moved for an order permitting Dr.
Eigen to testify as to the standard of care and causation against
HUMC. Plaintiffs argued the court's order barring Dr. Eigen's
testimony as to the defendant physicians under the Patients First
Act did not preclude him from testifying as an expert against
HUMC.
After hearing argument, the court denied the motion in a
December 11, 2015 order. In its written opinion, the court noted
plaintiffs' liability claims against HUMC were premised on the
hospital's alleged vicarious liability for the negligence of the
defendant physicians, who the court found were "employees of"
HUMC. The court reasoned that its prior disqualification of Dr.
Eigen as an expert against the physicians precluded his testimony
against the hospital, and found it could not "allow [p]laintiff[s]
to bootstrap into evidence the excluded testimony of [the]
dismissed defendant doctors['] deviation [from] the standard of
6 A-5165-15T2
care under the circumstances." The court determined that
plaintiffs could not use Dr. Eigen's testimony to support their
claim HUMC is liable due to the defendant physicians' deviation
from the standard of care because Dr. Eigen was not qualified to
testify concerning the physicians' alleged negligence under the
Patients First Act. The court concluded Dr. Eigen was not
permitted to testify as to HUMC's alleged deviation from the
standard of care "because it would violate the rule of N.J.S.A.
2A:53A-41(a) et. seq."
Plaintiffs filed a motion to correct the court's December 11,
2015 order to permit Dr. Eigen to offer proximate causation
testimony as to HUMC.4 In a February 11, 2016 order, the court
denied the motion. In its written opinion, the court found Dr.
Eigen's proximate causation testimony would be "unduly prejudicial
under the circumstances of this case" because he "disavowed"
offering standard of care opinions as to HUMC in his reports and
deposition. In addition, the court found that permitting Dr.
Eigen to testify about proximate causation would be unduly
prejudicial to HUMC because the court's order barring his testimony
as to the defendant physicians would necessarily preclude HUMC
4
Plaintiffs intended to rely on Wursten as their expert witness
on HUMC's alleged deviation from the standard of care.
7 A-5165-15T2
from cross-examining Dr. Eigen about the physicians' alleged
deviations from the standard of care.
On February 17, 2016, HUMC moved for summary judgment claiming
plaintiffs lacked expert testimony establishing proximate
causation. Plaintiffs cross-moved to allow late service of an
expert report from Dr. Emily Dawson and substitution of Dr. Dawson
for Dr. Eigen as their expert. Plaintiffs argued that late
submission of the report should be permitted because they could
not have anticipated what they characterized as the court's "novel"
rulings barring Dr. Eigen's testimony, and because Dr. Eigen
retired and was no longer available.
On June 3, 2016, the court denied plaintiffs' cross-motion,
finding their need for a new expert was the result of their failure
to comply with N.J.S.A. 2A:53A-41, and their request was made too
late - a year and a half after the discovery end date and following
seven scheduled trial dates. The court granted HUMC's summary
judgment motion, finding plaintiffs lacked an expert on proximate
cause that was essential to their malpractice claim. On July 8,
2016, the court denied plaintiffs' motion for reconsideration of
its June 3, 2016 orders. This appeal followed.
Plaintiffs do not appeal the orders barring Dr. Eigen's
testimony as to the physicians or granting the physicians' summary
judgment motions. Instead, plaintiffs challenge the December 11,
8 A-5165-15T2
2015 order barring Dr. Eigen from testifying as to the standard
of care and proximate cause as to HUMC, the February 11, 2016
order barring Dr. Eigen from testifying as to proximate cause as
to HUMC, the June 3, 2016 orders granting HUMC summary judgment
and denying plaintiffs' cross-motion permitting the late filing
of a new expert report, and the July 8, 2016 order denying their
motion for reconsideration. In its brief on appeal, plaintiffs
make clear they do "not seek reversal of any of the [o]rders as
to any of the individual doctors and only seek[] to reinstate the
claim against HUMC."
Plaintiffs present the following arguments for our
consideration:
POINT I
THE MOTION COURT IMPROPERLY BARRED THE
TESTIMONY OF PLAINTIFFS' EXPERT UNDER THE
RELEVANT STATUTES WHICH ARE APPLICABLE ONLY
TO PHYSICIANS, NOT TO HOSPITALS.
POINT II
BECAUSE DR. EIGEN WAS QUALIFIED UNDER N.J.S.A.
2A:53A-41(a)(1), BARRING HIS TESTIMONY IS
REVERSIBLE ERROR.
POINT III
BARRING DR. EIGEN FROM TESTIFYING ON PROXIMATE
CAUSE IS REVERSIBLE ERROR.
9 A-5165-15T2
POINT IV
DISMISSAL OF PLAINTIFFS' CASE WAS TOO HARSH A
REMEDY.
II.
The orders barring Dr. Eigen's testimony against HUMC and
granting HUMC summary judgment are founded on the court's initial
determination that Dr. Eigen was not qualified to testify against
the physicians because he did not satisfy the requirements of
N.J.S.A. 2A:53A-41(a)(2)(a) or N.J.S.A. 2A:53A-41(a)(2)(b). We
therefore first consider whether the court correctly determined
Dr. Eigen was not qualified to testify as an expert under the
Patients First Act.
"[W]e apply . . . [a] deferential approach to a trial court's
decision to admit expert testimony, reviewing it against an abuse
of discretion standard." Borough of Saddle River v. 66 E.
Allendale, LLC, 216 N.J. 115, 154-55 (2013) (alterations in
original) (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207
N.J. 344, 371-72 (2011)). "Absent a clear abuse of discretion,
an appellate court will not interfere with the exercise of that
discretion." Carey v. Lovett, 132 N.J. 44, 64 (1993).
Enacted in 2004, "[t]he [Patients First Act] establishes
certain qualifications that expert witnesses in medical
malpractice actions must possess." Castello v. Wohler, 446 N.J.
Super. 1, 14 (App. Div.) (citation omitted), certif. denied, 228
10 A-5165-15T2
N.J. 154 (2016). The Patients First Act "generally requir[es] the
challenging expert to be equivalently-qualified to the
defendant[.]" Ryan v. Renny, 203 N.J. 37, 52 (2010).
In pertinent part, the Patients First Act provides:
In an action alleging medical malpractice, a
person shall not give expert testimony or
execute an affidavit pursuant [N.J.S.A.
2A:53A-26 to -28]5 on the appropriate standard
of practice or care unless the person is
licensed as a physician or other health care
professional in the United States and meets
the following criteria:
a. If the party against whom or on whose
behalf the testimony is offered is a
specialist or subspecialist recognized by the
American Board of Medical Specialties [ABMS]
or the American Osteopathic Association and
the care or treatment at issue involves that
specialty or subspecialty . . . , the person
providing the testimony shall have specialized
at the time of the occurrence that is the basis
for the action in the same specialty or
subspecialty, . . . , as the party against
whom or on behalf the testimony is offered,
and if the person against whom or on whose
behalf the testimony is being offered is board
certified and the care or treatment at issue
involves that board specialty or subspecialty
. . . the expert witness shall be:
5
In relevant part, N.J.S.A. 2A:53A-26 to -28 generally provides
that in any action for damages for personal injury, wrongful death
or property damage resulting from the negligence of certain
licensed persons, including physicians in the practice of medicine
or surgery, the plaintiff must file an affidavit of an
appropriately licensed person that there exists a reasonable
probability the defendant's conduct fell outside of acceptable
professional or occupational standards.
11 A-5165-15T2
(1) a physician credentialed by a hospital to
treat patients for the medical condition, or
to perform the procedure, that is the basis
for the claim or action; or
(2) a specialist or subspecialist recognized
by the American Board of Medical Specialties
or the American Osteopathic Association who
is board certified in the same specialty or
subspecialty, . . . during the year
immediately preceding the date of the
occurrence that is the basis for the claim or
action, shall have devoted a majority of his
professional time to either:
(a) the active clinical practice of the same
health care profession in which the defendant
is licensed, and, if the defendant is a
specialist or subspecialist . . . , the active
clinical practice of that specialty or
subspecialty . . . ; or
(b) the instruction of students in an
accredited medical school, other accredited
health professional school or accredited
residency or clinical research program in the
same health care profession in which the
defendant is licensed, and, if that party is
a specialist or subspecialist . . .
accredited residency or clinical research
program in the same specialty or subspecialty
. . . ; or
(c) both.
[N.J.S.A. 2A:53A-41(a) (emphasis added).]
In Nicholas, our Supreme Court explained N.J.S.A. 2A:53A-
41(a)'s requirements where, as here, a plaintiff proffers an expert
who is board certified in a specialty and a subspecialty to testify
about the care or treatment rendered by another physician in the
12 A-5165-15T2
same specialty and subspecialty.6 213 N.J. at 479-88. The Court
first noted that where "a physician is a specialist and the basis
of the malpractice action 'involves' the physician's specialty,
the challenging expert must practice in the same specialty." Id.
at 481-82; accord Castello, 446 N.J. Super. at 16. A plaintiff's
expert "must be a specialist in the same field in which the
defendant physician specializes . . . ." Nicholas, 213 N.J. at
482; see N.J.S.A. 2A:53A-41(a); see also Meehan, 226 N.J. at 233
(explaining N.J.S.A. 2A:53A-41(a) requires that a "proposed expert
. . . must have specialized in the same specialty or subspecialty"
as the defendant physician).
N.J.S.A. 2A:53A-41(a) imposes additional expert
qualifications where a defendant physician practices in an ABMS
specialty and is also board certified in the specialty. Nicholas,
213 N.J. at 482. The Court explained that "if the defendant-
physician specializes in a practice area 'and . . . is board
certified and the care or treatment at issue involves that board
6
Where the treatment at issue is not provided by a specialist,
or is provided by a specialist but does not involve the physician's
specialty, the requirements for the qualification of an expert to
testify against a general practitioner apply. Buck, 207 N.J. at
391; see also N.J.S.A. 2A:53A-41(b). The standard has no
application here because the defendant physicians were specialists
in pediatrics and subspecialists in pediatric critical care and
their alleged malpractice involved that specialty and
subspecialty.
13 A-5165-15T2
specialty . . . , the expert witness' then must" satisfy the
requirements of "either" N.J.S.A. 2A:53A-41(a)(1) "or" N.J.S.A.
2A:53A-41(a)(2). Ibid. (citation omitted); see also Castello, 446
N.J. Super. at 15 (noting that where the defendant physician is
board certified in the specialty involved in the alleged
malpractice, the challenging expert must satisfy the requirements
of N.J.S.A. 2A:53A-41(a), and "the additional qualifications set
forth in subsections (a)(1) or (a)(2)"); Lomando v. United States,
667 F.3d 363, 383 (3d Cir. 2011) (finding N.J.S.A. 2A:53A-41(a)
requires that an expert offering testimony against a board-
certified specialist share that specialty and meet the
requirements of either N.J.S.A. 2A:53A-41(a)(1) or (a)(2)).
To satisfy N.J.S.A. 2A:53A-41(a)(1)'s requirements, the
expert must be "credentialed by a hospital to treat the condition
at issue . . . ." Nicholas, 213 N.J. at 482. To satisfy the
requirements of N.J.S.A. 2A:53A-41(a)(2), the expert must be
"board certified in the same specialty in the year preceding 'the
occurrence that is the basis for the claim or action,'" ibid.
(quoting N.J.S.A. 2A:53A-41(a)(2)), and during the year
immediately preceding the occurrence he or she must have devoted
a majority of his or her time to "either" clinical practice as
defined in N.J.S.A. 2A:53A-41(a)(2)(a) or the instruction of
students as defined in N.J.S.A. 2A:53A-41(a)(2)(b), ibid.
14 A-5165-15T2
Measured against the statutory standards as explained by the
Court in Nicholas, we are convinced the court erred by determining
Dr. Eigen was not qualified to testify against the defendant
physicians. In the first instance, Dr. Eigen met the requirements
of N.J.S.A. 2A:53A-41(a). He was a licensed physician and, at the
time of the alleged malpractice, "specialized . . . in the same
specialty, [pediatrics, and] subspecialty [pediatric critical
care,]" involved in the treatment and care at issue. See N.J.S.A.
2A:53A-41(a). Although Dr. Eigen's administrative duties as
director of the PICU and as a hospital administrator consumed a
substantial amount of his professional time in 2011, his clinical
practice was devoted exclusively to the practice of pediatrics and
pediatric critical care. See Buck, 207 N.J. at 391 (finding "[a]
physician may practice in more than one specialty").
N.J.S.A. 2A:53A-41(a) does not require that a proposed expert
devote a majority of his or her professional time to the practice
of the pertinent specialty. It requires only a showing that a
proposed expert "practice in the same specialty" as a defendant
physician. Nicholas, 213 N.J. at 486. In Nicholas, the Court
determined the plaintiff's proposed expert did not satisfy
N.J.S.A. 2A:53A-41(a)'s requirements because although credentialed
at a hospital and board certified in the pertinent specialties,
the expert "did not specialize" in those specialties when the
15 A-5165-15T2
alleged malpractice occurred. Id. at 487. Similarly, in Castello,
446 N.J. Super. at 16-17, we determined that a proposed expert did
not satisfy "the preliminary qualification of specialization"
under N.J.S.A. 2A:53A-41(a) because he retired from the practice
of medicine prior to the time of the alleged malpractice
occurrence.
In contrast, here the evidence shows Dr. Eigen practiced
pediatrics and pediatric critical care in 2011 when the defendant
physicians provided the care at issue. Although he had duties
independent of his clinical practice, he devoted all of his
clinical practice to pediatrics and pediatric critical care in
2011. Thus, Dr. Eigen satisfied N.J.S.A. 2A:53A-41(a)'s
requirement that he practice and specialize in the specialty and
subspecialty of the defendant physicians.
The defendant physicians were board certified in pediatrics
and pediatric critical care, and therefore Dr. Eigen was required
to satisfy the additional requirements of either N.J.S.A. 2A:53A-
41(a)(1) or (a)(2) to qualify as an expert witness under the
Patients First Act. Nicholas, 213 N.J. at 482; Castello, 446 N.J.
Super. at 15-16. The court found Dr. Eigen was not qualified
because he did not devote the majority of his professional time
to the active clinical practice of pediatrics and pediatric
critical care during the year immediately preceding the alleged
16 A-5165-15T2
malpractice. In other words, the court found Dr. Eigen was not a
qualified expert because he failed to satisfy the requirements of
N.J.S.A. 2A:53A-41(a)(2)(a).
To be sure, Dr. Eigen's qualifications did not satisfy the
requirements of N.J.S.A. 2A:53A-41(a)(2)(a). The court erred,
however, because it did not consider that Dr. Eigen satisfied the
requirements of N.J.S.A. 2A:53A-41(a)(1). When the alleged
malpractice occurred in 2011, Dr. Eigen was credentialed at the
Riley Hospital for Children to provide pediatric and pediatric
critical care, and thus "to treat patients for the medical
condition, or to perform the procedure, that is the basis for"
plaintiffs' medical malpractice claim. See N.J.S.A. 2A:53A-
41(a)(1). Dr. Eigen satisfied the requirements of N.J.S.A. 2A:53A-
41(a)(1), and his lack of qualifications under N.J.S.A. 2A:53A-
41(a)(2) did not permit or require his disqualification as an
expert witness against the defendant physicians. Nicholas, 213
N.J. at 412; Castello, 446 N.J. Super. at 15-16. The court erred
in holding otherwise and in barring Dr. Eigen's testimony as to
the defendant physicians.
The court's orders granting HUMC summary judgment and denying
plaintiffs' request to serve a late expert report were founded on
its determination Dr. Eigen was not a qualified expert under the
Patients First Act in the first instance. Because we conclude the
17 A-5165-15T2
determination was in error, we are constrained to reverse the
court's order granting summary judgment to HUMC and denying
plaintiffs' request to serve a late expert report.
We are not persuaded by HUMC's contention that even if Dr.
Eigen was qualified to testify under the Patients First Act, the
court properly barred his testimony as to proximate causation and
granted HUMC summary judgment because Dr. Eigen disavowed
providing a proximate causation opinion as to HUMC in his
deposition. The record does not support HUMC's contention.
During his deposition, Dr. Eigen was asked directly if his
reports included an opinion that HUMC "and its nurses or personnel
departed from the applicable standard of care of a hospital." He
incorrectly stated his reports did not include such an opinion,7
and agreed, subject to a caveat,8 that he did not express an opinion
concerning HUMC's deviation from the standard of care.
7
Dr. Eigen's June 18, 2014 report included an opinion HUMC
deviated from the standard of care that was not dependent on the
actions of the defendant physicians. See footnote 2, supra.
8
The caveat was that he did not offer an opinion as to HUMC's
deviation from the standard of care but only if the defendant
physicians were not HUMC employees. In other words, Dr. Eigen
made clear that if the physicians were HUMC employees, his opinion
was that HUMC was liable for their deviation from the standard of
care detailed in his reports and otherwise in his testimony. The
record is unclear whether the defendant physicians were HUMC
employees. In its brief, HUMC states it is undisputed the
physicians were not HUMC employees, but fails to cite to any
18 A-5165-15T2
Dr. Eigen was not similarly asked if he had an opinion on
proximate causation, and our review of the portion of the
transcript from his deposition provided by HUMC makes clear he
never disavowed offering an opinion on proximate cause. HUMC's
contention Dr. Eigen was properly barred as an expert witness
because he disavowed offering an opinion on proximate causation
as to HUMC is unavailing.
It is unnecessary to address plaintiffs' arguments that the
court's orders should be reversed for reasons other than its
erroneous conclusion Dr. Eigen was not a qualified expert under
the Patients First Act. Because the court's order granting HUMC
summary judgment was founded on the incorrect conclusions that Dr.
Eigen was not a qualified expert witness and he disavowed offering
an opinion as to proximate cause, we reverse the summary judgment
order and remand for further proceedings. Our determination
renders it unnecessary to address plaintiffs' contention the court
evidence in the record supporting the assertion. See R. 2:6-2;
see also State v. Mauti, 448 N.J. Super. 275, 314 n.17 (App. Div.)
(noting it is the parties' responsibility to refer to specific
parts of the record to support their arguments on appeal), certif.
denied, 230 N.J. 170 (2017). In the trial court's written opinion
supporting its December 11, 2015 order denying plaintiffs' motion
to permit Dr. Eigen to testify against HUMC, the court expressly
found the defendant physicians were HUMC employees. It is
unnecessary to resolve this factual dispute, however, because we
have determined the court erred by finding Dr. Eigen was not a
qualified expert under the Patients First Act.
19 A-5165-15T2
erred by denying their motions to serve the late expert report of
Dr. Dawson and for reconsideration.
Dr. Eigen has retired and is no longer available to provide
expert testimony. On remand, the court shall allow plaintiffs to
serve Dr. Dawson's report as plaintiffs' new expert report, and
permit such other discovery as the court deems necessary under the
circumstances.
Reversed and remanded for further proceedings in accordance
with this opinion. We do not retain jurisdiction.
20 A-5165-15T2