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NOT FOR PUBLICATION WITHOUT THE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
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,
APPROVED FOR PUBLICATION
Plaintiffs-Appellants,
September 24, 2018
v. APPELLATE DIVISION
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).
The opinion of the court was delivered by
VERNOIA, J.A.D.
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.
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Bruce Friedman, Dr. Stephen Percy, and Dr. Mark Siegel,1 and fictitiously-
named physicians, 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
1
Dr. Abraham Zerykier was also named as a defendant but was subsequently
dismissed from the action by stipulation of the parties.
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 l ine
(continued)
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in which the deviations proximately 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
(continued)
placement" in the child, and other lapses in procedure "greatly increased [the
child's] risk of sepsis and death."
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).
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duties and twenty-five percent to seeing outpatients and teaching residents in
the outpatient clinics.
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
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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 testifyi ng 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[']
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deviation [from] the standard of 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
4
Plaintiffs intended to rely on Wursten as their expert witness on HUMC's
alleged deviation from the standard of care.
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preclude HUMC 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,
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plaintiffs challenge the December 11, 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.
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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
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omitted), certif. denied, 228 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.
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(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
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rendered by another physician in the 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 specialty . . . , the expert
witness' then must" satisfy the requirements of "either" N.J.S.A. 2A:53A-
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.
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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.
Measured against the statutory standards as explained by the Court in
Nicholas, we are convinced the court erred by determining Dr. Eigen was not
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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 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"
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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 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).
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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 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.
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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 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 test ify against
HUMC, the court expressly found the defendant physicians were HUMC
(continued)
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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 erred by
denying their motions to serve the late expert report of Dr. Dawson and for
reconsideration.
(continued)
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.
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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.
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