JINWON BYUN v. ENGLEWOOD HOSPITAL AND MEDICAL CENTER (L-3026-18, BERGEN COUNTY AND STATEWIDE) ( 2022 )

NOT FOR PUBLICATION WITHOUT THE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-4020-19
JINWON BYUN a/k/a JACKIE
BYUN and ESTATE OF JACKIE
BYUN, by her mother and natural
guardian, MYONG AE BYUN,
MYONG AE BYUN, and
CHONG WON BYUN,
Plaintiffs-Appellants,
v.
ENGLEWOOD HOSPITAL
AND MEDICAL CENTER,
HEE JUNG PARK, MD,
AJAY JETLEY, MD,
JEAN READIE, MD, and
JOHN VOGT, RN,
Defendants-Respondents,
and
RACHNA SUBRAMONY, MD,
Defendant.
_____________________________
Argued June 8, 2022 – Decided September 2, 2022
Before Judges Gilson, Gooden Brown and Gummer.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-3026-18.
Michael S. Kimm argued the cause for appellants
(Kimm Law Firm, attorneys; Michael S. Kimm and
Jonathan Lugo, on the briefs).
John R. Scott argued the cause for respondents
Englewood Hospital and Medical Center and Ajay
Jetley, MD (Clare & Scott, LLC, attorneys; John R.
Scott, of counsel and on the briefs).1
Anthony A. Lenza, Jr., argued the cause for respondent
Hee Jung Park, MD (Amabile & Erman, PC, attorneys;
Anthony A. Lenza, Jr., of counsel and on the briefs).
Douglas F. Ciolek argued the cause for respondent Jean
Readie, MD (Rosenberg Jacobs Heller & Fleming, PC,
attorneys; Lawrence H. Jacobs, of counsel; Douglas F.
Ciolek, on the briefs).
Haley K. Grieco argued the cause for respondent John
Vogt, RN (Mattia, McBride & Grieco, PC, attorneys;
Philip F. Mattia, of counsel; Haley K. Grieco, on the
briefs).
PER CURIAM
1
We note plaintiffs identified the hospital defendant as "Englewood Hospital"
and the hospital in its submissions uses the name "Englewood Hospital and
Medical Center." We also note that plaintiffs' spelling of some of the doctors'
names differs from the doctors' spelling. For the sake of accuracy, we use the
doctors' spelling.
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2
In this medical-negligence case, plaintiffs appeal orders barring certain
expert opinions or testimony, granting defendants' summary-judgment motions,
and denying plaintiffs' motions to amend the complaint, to supplement plaintiffs'
expert reports, and for reconsideration of the expert-testimony orders.
Perceiving no error or abuse of discretion, we affirm.
Except for limited circumstances not applicable here, an expert opinion is
necessary to establish fundamental elements of a medical-negligence case. The
expert opinion must be made by someone qualified to render it and must set
forth the applicable standard of care, the ways in which the medical professional
failed to meet that standard of care, and how that deviation from the standard of
care harmed the patient. Without that expert opinion, a plaintiff has failed to
make a prima facie case of medical negligence. Despite repeated opportunities,
plaintiffs failed to meet that burden and the trial court ultimately and correctly
granted defendants' summary-judgment motions.
I.
We discern the facts from the summary-judgment record, viewing them in
the light most favorable to plaintiffs. See Richter v. Oakland Bd. of Educ., 246
N.J. 507, 515 (2021).
A-4020-19
3
On May 12, 2016, plaintiff Myong Ae Byun took her daughter, decedent
Jinwon Byun (also known as Jackie), to the emergency department of
Englewood Hospital. 2 Jackie was a twenty-five-year-old woman with autism, a
limited ability to communicate verbally, and a history of seizures. Earlier that
day, Jackie's neurologist recommended Myong take Jackie, who had not been
eating for two or three days, to her regular internist or a hospital to determine if
she was constipated, had a bladder or urinary-tract infection, or had pneumonia.
At the hospital, Jackie was running a fever, was dehydrated, and had a severely-
distended abdomen.
Defendant Dr. Hee Jung Park, an internal-medicine resident at the
hospital, met with Myong and Jackie. Dr. Park and Myong spoke to each other
in Korean. Dr. Park told Myong that Jackie needed a urine test and blood work.
Myong signed a consent for treatment for Jackie, which included "any x-rays,
laboratory, or other medical procedures . . . ." The blood work showed Jackie
had an elevated white blood count.
Myong asked Dr. Park to give her a cup so she could take Jackie to the
bathroom and collect a urine sample from her. Dr. Park declined her request,
2
Because the decedent and her mother shared a surname, we use Jackie and
Myong for ease of reading.
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4
saying a tube had to be inserted to collect a clean sample. Myong told Dr. Park
she would not be able to obtain a urine sample by a tube because Jackie would
not understand the procedure and "probably wouldn't go for it." Hospital records
indicate Dr. Park and defendant Dr. Ajay Jetley, a board-certified emergency-
medicine physician, co-signed orders for a urinalysis and urine culture at 4:04
p.m. and for "Straight cath for UA, C&S" and "Straight Cath for Urine
Specimen" at 5:05 p.m. Dr. Jetley and defendant Dr. Jean Readie, a board-
certified emergency-medicine physician, were Dr. Park's direct supervisors in
the emergency department that evening. In hospital records, Dr. Readie
indicated she had "[r]eceived signoff from Dr. Jetley" at 5:30 p.m.
According to Myong, two nurses entered Jackie's room and told Myong to
leave. Myong exited the room. According to defendant John Vogt, R.N., at
6:00 p.m. Jackie was "unable to tolerate[] straight cath for urine at th[at] point"
and a decision was made to wait until Jackie could receive "IV [A]tivan."
When she re-entered the room, Myong noticed Jackie's face and lips were
purple. Myong thought she might have had a seizure. Within fifteen to twenty
minutes, Jackie calmed down and her color returned to normal. Jackie
subsequently jumped off the bed and pulled an intravenous line (IV) out of her
arm. A nurse told Myong the IV had to be reinserted. According to Myong, the
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nurse and someone who looked like a guard lifted Jackie, placed her back in the
bed, and "flattened her down, on all arms and legs, by force." Jackie turned blue
and appeared to be having a seizure. Dr. Readie was called to Jackie's bedside
with Dr. Park. After efforts to intubate Jackie were unsuccessful, an airway was
created surgically. As Jackie was being transferred to an operating room "for
further airway stabilization and surgical exploration," she "abruptly developed
bradycardia and ventricular fibrillation." Advanced cardiac life support was
performed on Jackie, but it was unsuccessful and she died.
On April 25, 2018, plaintiffs filed a complaint naming as defendants the
hospital, Drs. Park, Jetley, Readie, and Rachna Subramony, Nurse Vogt, and
fictitious defendants Kathy Doe and John Doe, respectively a "technician" and
"paramedic student" allegedly involved in restraining Jackie.3 Plaintiffs faulted
defendants for failing to adhere to the standards of "The Joint Commission"
regarding communicating with and restraining patients, failing to allow Myong
to assist in collecting a urine specimen from Jackie, and "forcibly pinn[ing]
[Jackie's] entire body by [N]urse Vogt and another male staff person who
callously engaged in unconsented application of extreme physical force against
3
Plaintiffs subsequently voluntarily dismissed with prejudice all claims against
Dr. Subramony and all claims against the hospital based on vicarious liability
for Dr. Subramony.
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6
a helpless autistic patient." Plaintiffs alleged defendants had breached the
standard of care "for communication" and for "physical management,"
referencing the "physical restraint procedures implemented" by defendants.
Plaintiffs pleaded ten causes of action: reckless and negligent medical
malpractice, in which plaintiffs alleged defendants had failed "to provide
adequate, timely, competent medical treatment" for Jackie and had "caus[ed] her
to suffer cardiac arrest by placing her under severe duress that foreseeably would
have caused anyone to hyperventilate"; wrongful death under N.J.S.A. 2A:31-1
to -6; breach of contract for medical services; "Survival Act Claim," in which
plaintiffs alleged the "terror" defendants had created in Jackie "caused her to
hyperventilate," "to suffer severe psychiatric fears" and "a massive cardiac arrest
. . . ."; lack of consent; lack of informed consent; assault and battery; intentional
and negligent infliction of emotional distress 4; and "[h]ospital [l]iability," in
which plaintiffs alleged the hospital was directly and vicariously liable for its
failure to have a policy in compliance with "The Joint Commission," to train the
emergency-room staff, to enforce compliance with "the standards," and to have
an emergency room "minimally capable of servicing an autistic patient."
4
Plaintiffs subsequently did not oppose summary judgment on the claims for
assault and battery and intentional and negligent infliction of emotional distress.
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In the answer filed on behalf of the hospital and Dr. Jetley, defendants
identified Dr. Jetley as "a board[-]certified emergency room M.D." In her
answer, Dr. Readie described herself as "a board-certified emergency medicine
specialist" and asserted as a separate defense that plaintiffs had failed to comply
with the Affidavit of Merit statute, N.J.S.A 2A:53A-26 to -29. In her answer,
Dr. Park demanded plaintiffs submit an affidavit of merit, asserting she was a
"hospital resident . . . held to the standard of care of a general practitioner." In
his answer, under a heading "DESIGNATION OF SPECIALTY," Nurse Vogt
stated he was "a licensed registered nurse."
After defendants filed their answers, plaintiffs filed "certification[s]" of
merit prepared by Dr. Andrew Roy Williams, who stated he specialized in
"emergency medicine" and opined defendants had deviated from the standard of
care in "the field of medicine generally and in emergency medicine"; Dr. Lee
Wachtel, who stated she specialized in psychiatry and opined defendants had
deviated from the standard of care "in the field of medicine"; Dr. Robert Stark,
who stated he specialized in cardiology and opined defendants had deviated
from the standard of care in "the field of medicine generally and in cardiology
and emergency medicine"; Dr. Stephen Falk, who stated he specialized in the
field of otolaryngology and opined defendants had deviated from the standard
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of care in "the field of medicine generally and in emergency medicine"; and
Jeanine Frumenti, who stated she was a "practicing registered nurse"
specializing in "emergency medicine and nursing practices" and opined "the
non-doctor defendants" had deviated from the standard of care "in the field of
medicine generally and in emergency medicine."
On July 16, 2018, Judge Mary F. Thurber conducted a conference pursuant
to Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144 (2003). Defendants
raised various objections to the certifications of merit filed by plaintiffs, arguing
they failed to comply with the Affidavit of Merit statute. Plaintiffs agreed to
cure the deficiencies. In an order issued that day, the judge extended by sixty
days the time by which plaintiffs had to file affidavits of merit and scheduled
the conference to continue on August 14, 2018.
Plaintiffs subsequently served an affidavit of merit and curriculum vitae
(CV) prepared by Dr. Williams, who specified he submitted the affidavit as to
Drs. Park, Readie, and Jetley. In his CV, he stated he had become board certified
by the American Board of Emergency Medicine on November 16, 2016, after
the alleged malpractice had taken place in this case. Plaintiffs served an
affidavit of merit and CV prepared by Nurse Frumenti, who specified she
submitted the affidavit as to Nurse Vogt, the hospital, and "any other nurse
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whose identity may become known in discovery." Plaintiffs submitted an
affidavit of merit and CV prepared by Nancy Radoslovich, who described
herself as a "practicing [r]egistered [n]urse . . . currently work[ing] in an
operating room." She stated she submitted the affidavit as to Nurse Vogt, the
hospital, and "any other nurse . . . ." Plaintiffs served an affidavit and CV
prepared by Dr. Richard Parker, who stated he was "board certified in internal
medicine" and had been a hospital or medical-organization administrator since
2001. He submitted his affidavit as to the hospital and "any hospital
administrator whose identity may become known in discovery." Plaintiff served
an affidavit of merit and CV prepared by Dr. David Mark Nidorf, who stated he
was "a practicing physician with over [twenty] years of experience in the field
of emergency medicine." In his CV, he stated he had a board certification in
emergency medicine from the American Academy of Physician Specialists since
2000. Dr. Nidorf submitted the affidavit as to Drs. Readie, Jetley, and Park.
During the August 14, 2018 Ferreira conference, defense counsel objected
to Dr. Nidorf's affidavit, questioning whether he was board certified in
emergency medicine given that the American Board of Medical Specialties
(ABMS) listed him on its website as being board certified in family medicine,
not emergency medicine. Counsel did not object to the sufficiency of Dr.
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Williams's affidavit for purpose of the Affidavit of Merit statute but reserved
the right to object to his testimony. The judge issued an order stating the hospital
had consented to the sufficiency of Dr. Parker's affidavit as to direct claims
against the hospital; counsel for the board-certified defendants, except Dr.
Subramony, had stipulated to the sufficiency of Dr. Williams's affidavit; and all
physician defendants had reserved their right to object to Dr. Nidorf's affidavit
if Dr. Nidorf was not board certified in emergency medicine. The judge ordered
plaintiffs' counsel to provide a certification from Dr. Nidorf as to whether he
was board certified in emergency medicine and to file a motion regarding the
sufficiency of the nurses' affidavits.
On August 21, 2018, plaintiffs filed a certification of Dr. Nidorf, in which
he stated he was board certified in emergency medicine "through the American
Academy of Physician Specialists since 2000." In an August 22, 2018 letter,
counsel for Dr. Subramony advised the court and counsel that Dr. Subramony
objected to the sufficiency of Dr. Williams's affidavit because Dr. Williams was
not board certified in emergency medicine at the time of the alleged malpractice.
In September and October 2018, plaintiffs submitted certifications of
merit prepared by Drs. Lee Wachtel, a psychiatrist; Stephen Falk, an
otolaryngologist; and Robert Stark, a cardiologist. They each recognized they
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did not specialize in emergency medicine and asserted the care involved in
Jackie's case was not limited to or did not involve emergency medicine "as the
care involved the taking of urine sample from a hospital patient."
On January 17, 2019, plaintiffs served reports prepared by Drs. Nidorf and
Williams. In his report, Dr. Nidorf identified Dr. Park as the doctor who had
primarily treated Jackie and Dr. Readie as Dr. Park's attending physician and
noted they had been called to Jackie's bedside. Dr. Nidorf said nothing else
about Dr. Readie and said nothing at all about Dr. Jetley. In the opinion section
of his report, he faulted Dr. Park for inadequate charting and faulted Dr. Park
and "other staff members" for not listening to Myong about how to collect a
urine sample from Jackie and for not attempting first to obtain a sample by
giving Jackie the opportunity to urinate in a cup.
In his report, Dr. Williams stated Dr. Park had evaluated Jackie but did
not otherwise mention Dr. Park or make any specific reference of the other
individual defendants. Dr. Williams opined generally that Jackie's death was
caused by "the acts and omissions of all doctors and nurses, individually and
collectively, involved in these early events," presumably meaning the "traumatic
urethral catheterization attempt."
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On January 17, 2019, plaintiffs served expert reports prepared by Drs.
Stark, Parker, and Wachtel, and Nurse Frumenti. In his report, Dr. Stark, the
internist and cardiologist, did not make any reference to Drs. Readie or Jetley.
He asserted Dr. Park between 6:00 p.m. and 6:15 p.m. had repeatedly attempted
unsuccessfully to insert a urinary catheter into Jackie. He opined about the
standard of care only in emergency medicine even though he was not board
certified in emergency medicine. He concluded the "terror of being . . .
physically restrained by strangers . . . precipitated . . . [Jackie's] lethal cardiac
arrhythmia." In his report, Dr. Parker, the internist, does not reference Drs.
Readie, Jetley, or Park but discussed the hospital and its personnel generally.
Similarly, in her report, Dr. Wachtel, the psychiatrist, did not reference Drs.
Readie, Jetley, or Park but generally faulted "members of Jackie's Englewood
Emergency Department care team." In her report, Nurse Frumenti did not
identify any specific actions or omissions of Nurse Vogt and referenced only the
"nursing staff" generally.
On January 28, 2019, plaintiffs served the expert reports of Nurse
Radoslovich and Dr. Falk, the otolaryngologist. In her report, Nurse
Radoslovich set forth what she believed was the applicable nursing standard of
care and stated she believed Nurse Vogt had deviated from that standard of care
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by failing to: "address [Jackie's] unique communication needs by not allowing
her mother to remain with her during treatment"; "document that her special
needs were addressed"; "communicate effectively with [Jackie's] parents and
[Jackie] as to why a urinary catheter was necessary to obtain a urine sample as
opposed to a 'clean Catch' sample"; "follow [The Joint Commission] restraint
policy that states 'only used when less restrictive interventions are ineffective'";
"to document the need for restraint"; and "to document appropriately the
sequence of events that occurred in the emergency room." She also opined about
the cause of death.
Dr. Falk also did not specifically identify any actions or omissions of Drs.
Readie, Jetley, or Park that caused Jackie harm. He stated he was "familiar with
the standards of care applicable to the otolaryngologic treatment of patients like
Jackie" and opined "multiple seizures in [the ER] . . . lead to [Jackie's] premature
death."
On February 5, 2019, the hospital and Dr. Jetley moved to bar expert
testimony regarding hospital staff for which plaintiffs had not submitted an
affidavit of merit and to limit the testimony of plaintiffs' designated expert
witnesses Drs. Nidorf, Williams, Wachtel, Stark, and Parker and Nurse Frumenti
to the extent the expert witnesses in their reports (1) made vague, generic
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references to hospital staff members not identified in any affidavit of merit; (2)
referenced people not named as defendants; and (3) offered opinions on the
standard of care applicable to emergency-medicine physicians and nurses when
they did not share the same specialty or were not otherwise qualified to offer
those opinions. A week later, the hospital and Dr. Jetley filed a similar motion
regarding plaintiffs' expert witnesses Dr. Falk and Nurse Radoslovich. Dr.
Readie and Englewood cross-moved for similar relief.
At oral argument, plaintiffs' counsel acknowledged an expert witness who
was not board certified in emergency medicine could not offer an opinion on the
standard of care applicable to emergency-room physicians or nurses and stated
plaintiffs' expert witnesses would testify about a particular identified person and
not "bootstrap others in that expert's opinion." He also conceded Nurse
Radoslovich was not qualified to offer a medical opinion regarding Jackie's
cause of death.
After hearing oral argument, the motion judge issued an order on March
19, 2019, granting defendants' motions. The order barred plaintiffs' expert
witnesses from offering opinions concerning alleged acts or omissions of
"persons other than named defendants for whom an [a]ffidavit of [m]erit has
been provided" and from "using generic refences to 'staff,' '[emergency
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department] staff' and other non-specific identifiers." The order barred Drs.
Wachtel, Stark, Falk, and Parker and Nurses Frumenti and Radoslovich from
offering opinions concerning the standard of care applicable to Drs. Park, Jetley,
and Readie and Nurse Radoslovich from opining about any medical diagnosis
or causation because those opinions "would be outside the[ir] respective areas
of expertise." In the six months following the issuance of those orders, plaintiffs
did not serve any new or supplemental expert reports.
After conducting a conference, Judge Thurber on September 13, 2019,
issued an order extending the discovery period to April 10, 2020, and requiring
the parties to complete party and fact-witness depositions by November 11,
2019, plaintiffs to serve supplemental expert reports no later than December 11,
2019, defendants to serve all expert reports no later than February 10, 2020, and
the parties to complete expert depositions by April 10, 2020. The order directed
the parties to contact the court to "resolve disputes or difficulties in complying
with this [o]rder."
Plaintiffs did not serve any supplemental expert reports by the court-
ordered deadline of December 11, 2019, nor did they inform the court they were
having any difficulty complying with the deadlines set forth in the court's order
or otherwise seek an extension of time to serve supplemental expert reports. The
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hospital and defendant doctors served expert reports before the February 10,
2020 deadline.
On February 6, 2020, Dr. Park moved to bar plaintiffs' expert witnesses
Drs. Nidorf and Williams from testifying against her. Dr. Park argued Drs.
Nidorf and Williams had issued net opinions under the wrong standard of care
and were not qualified to opine about Dr. Park, who was a second-year internal-
medicine resident subject to the standard of care of a general practitioner when
she treated Jackie. The hospital and Drs. Jetley and Readie subsequently moved
or cross-moved to bar Drs. Nidorf and Williams from testifying against them.
The hospital and Dr. Jetley argued (1) Dr. Nidorf had not been certified by
ABMS but by the American Academy of Physician Specialists, which was not
recognized as a certifying board in N.J.S.A. 2A:53A-41, which is part of the
New Jersey Medical Care Access and Responsibility and Patients First Act
(Patients First Act), N.J.S.A. 2A:53A-37 to -42; (2) Dr. Williams was not board
certified until after defendants' May 12, 2016 treatment of Jackie; (3) Dr.
Williams was not a nurse and not qualified to testify about nursing care; and (4)
neither doctor had opined about the standard of care applicable to Dr. Jetley or
how Dr. Jetley had deviated from a standard of care. Dr. Readie made similar
arguments. Nurse Vogt joined in the hospital's and Drs. Park's and Jetley's
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motions. Plaintiffs opposed defendants' motions and moved to amend the
complaint to identify Kathleen Cookson as defendant "Kathy Doe."
During oral argument on February 28, 2020, plaintiffs' counsel conceded
Dr. Nidorf had held Dr. Park to the standard of care of an emergency-room
doctor and was not "qualified to express an opinion as to [Dr. Jetley]."
Plaintiffs' counsel also conceded Dr. Williams had not "name[d] Dr. Jetley by
name" in his report and plaintiffs did not have any evidence to contradict
hospital records establishing Dr. Jetley had left the hospital before the attempted
catheterization. Plaintiffs' counsel confirmed plaintiffs were not submitting Drs.
Nidorf or Williams as expert witnesses concerning Nurse Vogt.
The judge granted Dr. Park's motion, finding plaintiffs' experts in their
reports had "not identif[ied] the standard of care for Dr. Park identifying her . .
. in her proper capacity." The judge granted defendants' motion as to Dr. Jetley
because (1) plaintiffs' experts did not identify a standard of care applicable to
Dr. Jetley or explain how he had breached any applicable standard of care and
(2) neither Dr. Nidorf nor Dr. Williams was qualified to testify against Dr. Jetley
given that Dr. Nidorf was not board certified by ABMS and Dr. Williams was
not board certified at the time of the alleged malpractice. For the same reasons
and because it was undisputed Dr. Readie's first contact with Jackie was after
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the attempted catheterization and her first seizure, the judge granted Dr. Readie's
cross-motion. That same day, the judge issued four orders barring Drs. Nidorf
and Williams from testifying against Drs. Park, Jetley, and Readie and Nurse
Vogt and the hospital as to alleged acts of those individuals.
The judge denied plaintiffs' motion to amend the complaint to add
Cookson as a party defendant. The judge found the amendment would be futile
because the claim against Cookson would be barred by the statute of limitations
and plaintiffs had not acted with the required due diligence to amend the
complaint to name Cookson pursuant to the fictitious-defendant rule, R. 4:26-4.
Defendants subsequently moved or cross-moved for summary judgment.
Plaintiffs opposed those motions and moved for reconsideration of the February
28, 2020 orders barring Drs. Nidorf and Williams from testifying and for leave
to "supplement discovery" with "supplemental [expert] reports."
After hearing oral argument, the judge denied plaintiffs' motions, granted
summary judgment in favor of the defendant doctors, granted the hospital's
motion as to liability based on the defendant doctors, and reserved decision on
Nurse Vogt. The judge issued orders memorializing those decisions on April 9,
2020. The judge subsequently granted summary judgment in favor of Nurse
Vogt and the hospital for any alleged vicarious liability associated with Nurse
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Vogt's alleged acts or omissions and heard oral argument and granted the
hospital's summary-judgment motion on the remaining direct claims against the
hospital.
On appeal, plaintiffs argue the trial court erred in (1) granting defendants'
motions to bar certain expert testimony, which, according to plaintiffs, were
improper and premature motions in limines; (2) not rejecting any of defendants'
expert-based arguments given that any issues regarding the experts were
addressed during Ferreira conferences and were waived by defendants, the
treatment at issue did not involve defendants' specialties, and the Nidorf and
Williams reports were not impermissible net opinions; (3) granting defendants'
summary-judgment motions because plaintiffs' affidavits of merit and other
submissions identified the defendants about whom plaintiffs' experts would
testify, expert testimony was not needed under the common-knowledge
exception, and the motions were premature because discovery was on-going;
and (4) in denying plaintiffs' motions to amend the complaint, for
reconsideration, and to submit supplemental expert reports.
II.
We review a grant of summary judgment "de novo and apply the same
standard as the trial court." Rios v. Meda Pharm., Inc., 247 N.J. 1, 13 (2021).
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Summary judgment should be granted "if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the affidavits, if any, show
that there is no genuine issue as to any material fact challenged and that the
moving party is entitled to a judgment or order as a matter of law." Templo
Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,
199 (2016) (quoting R. 4:46-2(c)). "An issue of material fact is 'genuine only
if, considering the burden of persuasion at trial, the evidence submitted by the
parties on the motion, together with all legitimate inferences therefrom favoring
the non-moving party, would require submission of the issue to the trier of fact.'"
Grande v. St. Clare's Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat v.
Bhagat, 217 N.J. 22, 38 (2014)).
An allegation is not enough to defeat summary judgment; the non-moving
party "must produce sufficient evidence to reasonably support a verdict in its
favor." Invs. Bank v. Torres, 457 N.J. Super. 53, 64 (App. Div. 2018), aff'd and
modified by 243 N.J. 25 (2020); see also Sullivan v. Port Auth. of N.Y. & N.J.,
449 N.J. Super. 276, 279-80 (App. Div. 2017) (explaining that "bare
conclusions" lacking "support in affidavits" are "insufficient to defeat [a]
summary judgment motion"). When determining if a genuine issue of material
fact exists, the judge must determine "whether the evidence presents a sufficient
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disagreement to require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of law." Brill v. Guardian Life Ins. Co. of
Am., 142 N.J. 520, 533 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251-52 (1986)); see also Petro-Lubricant Testing Lab'ys, Inc. v.
Adelman, 233 N.J. 236, 257 (2018). We do not defer to the trial court's legal
analysis. RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018).
We review a trial judge's reconsideration, discovery, and evidentiary
rulings, including decisions regarding expert witnesses, under the abuse-of-
discretion standard. State v. Garcia, 245 N.J. 412, 430 (2021) (evidentiary);
Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (reconsideration);
State v. Brown, 236 N.J. 497, 521 (2019) (discovery); Townsend v. Pierre, 221
N.J. 36, 52 (2015) (expert). We do not substitute our judgment for the trial
judge's judgment unless the trial judge's "ruling is 'so wide of the mark' that it
constitutes 'a clear error in judgment,'" Garcia, 245 N.J. at 430 (quoting State v.
Medina, 242 N.J. 397, 412 (2020)), or is based on a "misapplication of the law,"
Cap. Health Sys., Inc. v. Horizon Healthcare Servs., Inc., 230 N.J. 73, 79-80
(2017).
In addition to those standards of review, in deciding this appeal we are
guided by the following cornerstone principle of medical-negligence law: "To
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prove medical malpractice . . . 'a plaintiff must present expert testimony
establishing (1) the applicable standard of care; (2) a deviation from that
standard of care; and (3) that the deviation proximately caused the injury.'"
Haviland v. Lourdes Med. Ctr. of Burlington Cnty., 250 N.J. 368, 384 (2022)
(quoting Nicholas v. Mynster, 213 N.J. 463, 478 (2013)).
A.
Regarding the March 19, 2019 order limiting the scope of plaintiffs' expert
witness's opinions, plaintiffs label the motions that led to that order as "motions
in limine" and fault Judge Thurber for considering them prematurely instead of
leaving them to the trial judge to decide, citing Cho v. Trinitas Regional Medical
Center, 443 N.J. Super. 461, 470-71 (App. Div. 2015), and McLean v. Liberty
Health System, 430 N.J. Super. 156, 160 (App. Div. 2013). In making that
argument, plaintiffs forget the concessions their attorney made during oral
argument and misconstrue Cho and McLean.
In the March 19, 2019 order, the judge barred plaintiffs' expert witnesses
from opining about "persons other than named defendants for whom an
[a]ffidavit of [m]erit has been provided" and about standards of care outside
their areas of expertise and from using generic references. When asked if he
had any argument to make in response to defendants' contention that pursuant to
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Nicholas, 213 N.J. 463, plaintiffs' expert witnesses could not "offer opinions on
standard of care issues applicable to emergency room physicians," plaintiffs'
counsel responded, "No, Judge." When asked if plaintiffs were contesting the
merits of defendants' argument concerning the experts' use of generic references
to unnamed employees and opining about employees not named as defendants,
plaintiffs' counsel responded, "No, Judge. We . . . have seven named
defendants." When asked if it was "fair to say that the experts will be limited
from any sort of . . . generic or group references to other people . . . an actor
who was not identified as to which there wasn't an affidavit of merit," plaintiffs'
counsel answered, "Correct, Judge." In the order, the judge also barred Nurse
Radoslovich from opining about any medical diagnosis or causation as being
outside her area. During oral argument, plaintiffs' counsel advised the judge
that the motions as to Nurse Radoslovich was "unopposed." In the March 19,
2019 order, Judge Thurber memorialized the concessions plaintiffs' counsel had
made during oral argument.
Plaintiffs' reliance on Cho and McLean is misplaced. In McLean, 430 N.J.
Super. at 165, we held the trial court had erred in limiting the number of expert
witnesses based on an alleged duplication of evidence – an issue not raised
before or found by Judge Thurber. In Cho, we faulted a trial court for deciding
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the defendant's motion on the eve of trial, thereby violating the plaintiff's due-
process rights by depriving him of the time provided in the Rules of Court to
oppose the motion. 443 N.J. Super. at 472-75. Had Judge Thurber treated these
motions like motions in limine and waited until the eve of trial to decide them,
she would have made the same mistake the trial judge in Cho made and would
have deprived plaintiffs of their due-process rights. Instead, by deciding the
motions when she decided them, Judge Thurber gave plaintiffs the appropriate
time to respond to the motions, brought necessary clarity to the case, and gave
plaintiffs time to cure any deficiencies.
B.
Plaintiffs contend the judge erred in granting defendants' motions to bar
the testimony of Drs. Nidorf and Williams in the February 28, 2020 orders
because (1) defendants had waived any objections to plaintiffs' expert witnesses
in the Ferreira conferences; (2) the treatment at issue did not involve defendants'
specialties; and (3) the reports were not impermissible net opinions. Perceiving
no abuse of discretion in Judge Thurber's decision to grant defendants' motions,
we affirm.
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1.
In their waiver argument, plaintiffs conflate the Affidavit of Merit statute,
N.J.S.A 2A:53A-26 to -29, and the Patients First Act, N.J.S.A. 2A:53A-37 to -
42. The Affidavit of Merit statute addresses the affidavit a plaintiff in a
professional malpractice case must submit in the early stages of the case to
establish as a threshold matter that his or her claim has merit. See Buck v.
Henry, 207 N.J. 377, 382 (2011) ("In the early stages of a medical malpractice
action, a plaintiff must provide an affidavit from an equivalently credentialed
physician attesting 'that there exists a reasonable probability that the' defendant
physician's treatment 'fell outside acceptable professional' standards." (quoting
N.J.S.A. 2A:53A-27)). "The core purpose underlying the statute is 'to require
plaintiffs . . . to make a threshold showing that their claim is meritorious, in
order that meritless lawsuits readily could be identified [and dismissed] at an
early stage of litigation.'" Ryan v. Renny, 203 N.J. 37, 51 (2010) (quoting In re
Petition of Hall, 147 N.J. 379, 391 (1997)). See also Meehan v. Antonellis, 226
N.J. 216, 228 (2016) (purpose of Affidavit of Merit statute is "to weed out
frivolous claims against licensed professionals early in the litigation process") .
The Patients First Act establishes the required qualifications of a medical-
malpractice plaintiff's testifying expert. Specifically, N.J.S.A. 2A:53A-41 of
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the Patients First Act "requires that plaintiffs' medical expert must 'have
specialized at the time of the occurrence that is the basis for the [malpractice]
action in the same specialty or subspecialty' as defendant physicians." Nicholas,
213 N.J. at 468 (quoting N.J.S.A. 2A:53A-41) (alteration in the original).
Pursuant to the Patients First Act, a plaintiff "cannot establish the standard of
care through an expert who does not practice in the same medical specialties as
defendant physicians," id. at 468, and who is not "equivalently credentialed in
the same specialty or subspecialty as the defendant physician," id. at 467.
Whether plaintiffs met the standard under the Affidavit of Merit statute
does not relieve them of their obligation to meet the requirements of the Patient
First Act. In Nicholas, one defendant physician had been board certified in
emergency medicine and another in family medicine. 213 N.J. at 469. The
plaintiff submitted affidavits of merit from two doctors who were board certified
in internal medicine. Id. at 471. The emergency-medical defendant moved for
summary judgment based on the plaintiff's failure to submit an affidavit of merit
from an emergency-medicine specialist but subsequently withdrew that motion.
Ibid. The record did not indicate whether the family-medicine defendant had
objected to an affidavit of merit. The plaintiff submitted an expert report from
one of the internists who had submitted an affidavit of merit. Defendants moved
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to bar the plaintiffs' use of that internist as an expert witness "on the ground that,
under N.J.S.A. 2A:53A-41, [he] did not have the requisite credentials to testify
to the standard of care applicable to board-certified physicians in emergency
medicine and family medicine" and moved for summary judgment because the
plaintiffs did not have the expert testimony necessary to establish the applicable
standard of care. Id. at 473-74.
Even though the defendants effectively had accepted the internist's
affidavit of merit, the Court reversed the denial of defendants' summary -
judgment motions, holding the plaintiff had failed to meet the requirement under
the Patients First Act that a plaintiff's testifying medical expert at the time of the
alleged malpractice be equivalently credentialed in the same specialty as the
defendant doctor. Id. at 468. Thus, a failure to object to an affidavit of merit
under the Affidavit of Merit statute does not constitute a waiver of the right
under the Patients First Act to have a plaintiff prove his case through the
testimony of a qualified expert.
Contrary to plaintiffs' blanket assertion about waiver, some defense
counsel had raised concerns about Dr. Nidorf and Dr. Williams in the course of
the Ferreira conferences. Some questioned whether Dr. Nidorf was board-
certified in emergency medicine according to ABMS, questioned whether Dr.
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Williams was board certified in emergency medicine at the time of the alleged
malpractice in this case, and expressly reserved the right to object to Dr.
Williams's testimony. Moreover, defendants' motions to bar the testimony of
Drs. Nidorf and Williams were not based on the Affidavit of Merit statute b ut
plaintiffs' failure to meet the statutory qualifications for expert testimony under
the Patients First Act. As in Nicholas, even if defendants did not object to
plaintiffs' affidavits of merit under the Affidavit of Merit statute, that does not
constitute a knowing waiver of their rights under the Patients First Act and does
not prevent them from moving to bar testimony pursuant to the Patients First
Act.
2.
Labelling this case as a routine urine-collection case, plaintiffs contend
the treatment at issue did not involve defendants' specialties and, consequently,
plaintiffs did not have to support their case with testimony from a qualified
specialist. To accept that argument, we would have to ignore the facts of this
case. And that we cannot do. "It is not the label placed on the action that is
pivotal but the nature of the legal inquiry." Couri v. Gardner, 173 N.J. 328, 340
(2002). Instead of focusing on a label, "courts should determine if the claim's
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underlying factual allegations require proof of a deviation from the professional
standard of care applicable to that specific profession." Ibid.Myong brought Jackie, who was autistic and had a history of seizures, to
the emergency department of the hospital not simply for the collection of a
specimen for a urine test but because Jackie had not been eating for days and
her neurologist was concerned she might have a bladder or urinary-tract
infection or pneumonia. At the hospital, Jackie was running a fever, was
dehydrated, and had a severely-distended abdomen. Blood tests showed Jackie
had an elevated white blood count. Considering as we must those circumstances
in their entirety, we are convinced, contrary to plaintiffs' contention, that
defendants' treatment of Jackie involved the practice of emergency medicine.
See Nicholas, 213 N.J. at 469 n.1 (stating emergency-medicine doctors "focus
'on the immediate decision making and action necessary to prevent death or any
further disability'" and "provide 'immediate recognition, evaluation, care,
stabilization and disposition of a generally diversified population of adult and
pediatric patients in response to acute illness and injury.'" (quoting ABMS
Member Boards, Emergency Medicine, http://www.certificationmatters.org/
abms-member-boards/emergency-medicine.aspx (last visited Apr. 9, 2013))).
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Consequently, plaintiffs had to support their case with testimony from a
qualified emergency-medicine specialist.
We also find meritless plaintiffs' argument that they were relieved of that
obligation because Drs. Jetley and Readie did not state in their answers that the
treatment at issue involved their specialty. Judge Thurber found plaintiffs were
aware throughout the litigation that defendants had claimed their treatment of
Jackie involved emergency medicine and that to hold otherwise would be
"inconsistent with everything that has taken place . . . in the case up to this
point." We see no basis to disturb that finding, which is supported by the record.
3.
Plaintiffs fault the judge for granting defendants' motions barring the
testimony of Drs. Nidorf and Williams as insufficient net opinions, contending
Drs. Nidorf and Williams had given in their reports the whys and wherefores of
their opinions and had articulated sufficiently and accurately the applicable
standard of care, defendants' deviations from the applicable standard of care,
and how defendants' deviations from the standard of care caused injury. We
disagree and affirm.
To testify against a defendant doctor, an expert witness must actually
discuss the defendant doctor in his or her report. Neither Dr. Nidorf nor Dr.
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Williams mention Dr. Jetley in their reports. Dr. Williams said nothing about
Dr. Readie in his report. Dr. Nidorf's generic references to "other staff
members" and Dr. Williams's reference to "all doctors" are insufficient and do
not constitute an articulation of what standard of care applied to Drs. Jetley or
Readie, how those two doctors deviated from the applicable standard of care, or
how their alleged deviation proximately caused injury. See Haviland, 250 N.J.
at 384 (finding a medical-malpractice plaintiff must present "expert testimony
establishing (1) the applicable standard of care; (2) a deviation from that
standard of care; and (3) that the deviation proximately caused the injury"
(quoting Nicholas, 213 N.J. at 478)). That they may have mentioned Drs. Readie
or Jetley in prior affidavits does not excuse their failure to opine about them in
their reports.
Dr. Nidorf merely identified Dr. Readie as Dr. Park's attending physician
who had been called to Jackie's bedside after Jackie pulled out her IV and had a
seizure. He did not state how Dr. Readie had deviated from an applicable
standard of care. With nothing more in their reports about these two defendant
doctors, Judge Thurber properly barred Drs. Nidorf and Williams from testifying
against Drs. Jetley and Readie.
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Both Dr. Nidorf and Dr. Williams reference Dr. Park in their reports. For
residents, like Dr. Park, the applicable standard of care is the same as that for a
general practitioner. Clark v Univ. Hosp.-UMDMJ, 390 N.J. Super. 108, 115
(App. Div. 2006). In opposition to Dr. Park's motion to bar his testimony, Dr.
Nidorf submitted a certification in which he conceded he had held her to the
standard of care of an emergency-medicine physician. Because Dr. Nidorf had
based his opinions regarding Dr. Park on an inapplicable standard of care, Judge
Thurber correctly determined Dr. Nidorf could not testify against Dr. Park.
Dr. Williams did not articulate what standard of care applied to Dr. Park.
Instead, he asserted "there was a violation of the standard of care in attempting
to obtain a urine sample through the use [of] physical restraint and urinary
catheterization despite the obvious and extreme mental and physical distress of
the patient." He then identified four "[a]cceptable alternatives that a prudent
emergency team may have attempted." An "[a]cceptable alternative" is not the
same thing as a standard of care. Judge Thurber reasonably concluded Dr.
Williams, like Dr. Nidorf, had based his opinions regarding Dr. Park on a
standard of care for an emergency-medicine doctor. Given Dr. Williams's
reference to "a prudent emergency team," we see no reason to disturb that
conclusion. In addition, Dr. Williams did not articulate how Dr. Park had
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deviated from any applicable standard of care. He stated only that Dr. Park had
"evaluated" Jackie. If his reference to "attempting to obtain a urine specimen
through the use of physical restraint and urinary catheterization" was his attempt
to identify a deviation from a standard of care, Dr. Williams failed to articulate
what role, if any, Dr. Park had played in that purported deviation. 5
Given their reports' multiple deficiencies in critical areas, we perceive no
error in the judge's decision to grant defendants' motions and bar Drs. Nidorf
and Williams from testifying. Having affirmed the February 28, 2020 orders
granting defendants' motion, we also affirm the April 9, 2020 order denying
plaintiffs' motion for reconsideration of those orders.
C.
As a result of the March 19, 2019 and February 28, 2020 orders, which
we affirm, plaintiffs had no expert witness who could testify about the standard
of care that applied to the defendant doctors, deviations from the standard of
care by the defendant doctors, or how their deviations proximately caused harm
5
In their reply brief, plaintiffs assert plaintiffs could have relied on the reports
of Drs. Wachtel, Stark, and Falk to prove their case against Dr. Park. Even if
we were to consider that argument, see Pannucci v. Edgewood Park Senior Hous.
– Phase 1, LLC, 465 N.J. Super. 403, 409-410 (App. Div. 2020) (noting it is
improper to raise new issues in a reply brief), it is unconvincing. Those doctors
expressly based their opinions on a standard of care related to their specialties,
not on a standard of care applicable to a general practitioner.
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to Jackie. Accordingly, because plaintiffs could not provide the essential expert
testimony required to prove medical malpractice, see Haviland, 250 N.J. at 384,
Judge Thurber correctly granted the summary-judgment motions as to Drs. Park,
Readie and Jetley. And because plaintiffs could not prove the negligence of the
defendant doctors, Judge Thurber correctly granted summary judgment as to the
hospital on all vicarious-liability claims related to the defendant doctors.
Walker v. Choudhary, 425 N.J. Super. 135, 152 (App. Div. 2012) ("[a] verdict
which exonerates the employee from liability requires also the exoneration of
the employer." (quoting Kelley v. Curtiss, 16 N.J. 265, 270 (1954))); see also
G.A.-H. v. K.G.G., 238 N.J. 401, 418 (2019) (after finding plaintiffs could not
prove an employee had committed a tort, Court held employer could not be
vicariously liable for employee's conduct).
Plaintiffs' expert submissions as to Nurse Vogt were similarly deficient.
Plaintiffs' expert Nurse Frumenti referenced Nurse Vogt but only as being at
Jackie's bedside at a certain time, dispensing Ativan, and authoring certain notes.
She did not identify any deviation by Nurse Vogt from any standard of care.
Unlike Nurse Frumenti, plaintiffs' expert Nurse Radoslovich in her report set
forth standard-of-care deviations by Nurse Vogt. But that's not enough. A
plaintiff in a medical-negligence case must also present "expert testimony
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establishing . . . (3) that the deviation proximately caused the injury." Haviland,
250 N.J. at 384 (quoting Nicholas, 213 N.J. at 478). As plaintiffs' counsel
conceded during oral argument and as the judge memorialized and found in the
March 19, 2019 order, Nurse Radoslovich was not qualified to opine about
causation. Plaintiffs did not provide any other expert report with respect to
Nurse Vogt establishing that any deviation asserted by Nurse Radoslovich
proximately caused injury to Jackie. Without that critical proof of causation,
plaintiffs' claim against Nurse Vogt is not legally viable and summary judgment
was appropriately granted as to plaintiffs' claims against him and vicarious-
liability claims against the hospital based on Nurse Vogt.
In the "Hospital Liability" count of their complaint, plaintiffs allege the
hospital was directly liable for its failures to "have a policy in compliance with
The Joint Commission," "train the ER staff," "to enforce compliance with the
standards," and "to have an emergency room that is minimally capable of
servicing an autistic patient." Each of those direct claims against the hospital
required plaintiffs to prove the elements of a negligence claim, including that
the hospital had failed in a duty owed to plaintiffs and that that breach of a duty
actually and proximately had caused injury. Fernandes v. DAR Dev. Corp., 222
N.J. 390, 403-04 (2015) (identifying elements of a negligence claim); see also
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G.A.-H., 238 N.J. at 416 (2019) (to prove negligent supervision or training, a
plaintiff must prove the employer "knew or had reason to know that the failure
to supervise or train an employee in a certain way would create a risk of harm ,"
"that risk of harm materializes," and the failure to supervise or train "cause[d]
the plaintiff's damages"). Given the judge's prior orders, which we affirm,
plaintiffs cannot prove that any hospital staff member – whether through lack of
training or supervision or the hospital not having a particular policy in p lace –
proximately caused Jackie harm. Accordingly, plaintiffs could not prove their
direct-liability claims against the hospital, and Judge Thurber appropriately
granted summary judgment as to plaintiffs' direct claims against the hospital.
In their argument for reversal of the summary-judgment orders, plaintiffs
rely on Fink v. Thompson, 167 N.J. 551 (2001). That reliance is misplaced. In
Fink, the Court addressed whether the plaintiff had substantially complied with
the Affidavit of Merit statute. Id. at 565. Judge Thurber granted defendants'
summary-judgment motions not based on any failure to comply with the
Affidavit of Merit statute but because plaintiffs, lacking the expert testimony
required to establish medical malpractice, could not prove their case.
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Plaintiffs' argument that the summary-judgment motions were premature
is equally unconvincing. 6 Generally, summary judgment is premature when the
opposing party has not yet had an opportunity to conduct discovery and develop
facts on which he or she intends to base his or her claims. Friedman v. Martinez,
242 N.J. 449, 472 (2020) (cautioning against granting summary judgment when
discovery is incomplete and "critical facts are peculiarly within the moving
party's knowledge" (quoting James v. Bessemer Processing Co., 155 N.J. 279,
311 (1998))). A summary-judgment motion is not premature merely because
discovery has not been completed, unless the plaintiff is able to "demonstrate
with some degree of particularity the likelihood that further discovery will
supply the missing elements of the cause of action." Friedman, 242 N.J. at 472-
73 (quoting Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 555 (2015)). Plaintiffs
fail to meet that standard.
Plaintiffs assert they had until the close of discovery to "update, modify
or supplement" their expert reports. That assertion, made with no legal support,
6
Plaintiffs also seem to argue the hospital moved too late for summary judgment
on the direct-liability claims against it, contending the hospital should have
moved on those claims when it moved for summary-judgment on the vicarious-
liability claims against it. But no court rule or order required the hospital to
move on those issues at the same time or to file its motion on the direct-liability
claims before it did.
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is contrary to the September 13, 2019 order, in which the judge extended
discovery to April 10, 2020, required the parties to complete all party and fact
witness depositions by November 11, 2019, and plaintiffs to serve supplemental
expert reports no later than December 11, 2019, and directed the parties to
contact the court to "resolve disputes or difficulties in complying with" the
order. Plaintiffs failed to meet that deadline or advise the court before the
deadline passed that they needed more time to comply with it. Plaintiffs had a
full and extended opportunity to conduct discovery and have not demonstrated
that additional discovery would have supplied the missing elements of their case.
Plaintiffs rely on the common-knowledge doctrine.7 Under the common-
knowledge doctrine, "a malpractice case against a licensed professional may
present triable issues without resort to the testimony of an expert. In such a case
the jury itself is allowed 'to supply the applicable standard of care and thus to
obviate the necessity for expert testimony relative thereto.'" Rosenberg v.
7
Plaintiffs argue in their reply brief expert testimony was not necessary because
Myong should have been allowed to offer a lay opinion to the jury about her
ability to collect from Jackie a reliable clean catch urine sample. We decline to
consider that argument, which was improperly raised for the first time in an
appellate reply brief and not raised before the trial court. See Alloco v. Ocean
Beach & Bay Club, 456 N.J. Super. 124, 145 (App. Div. 2018) (applying "well-
settled" principle that an appellate court will not consider an issue that was not
raised before the trial court); State v. Amboy Nat'l Bank, 447 N.J. Super. 142,
148 n.1 (App. Div. 2016) (deeming waived an issue raised first in a reply brief).
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Cahill, 99 N.J. 318, 325 (1985) (quoting Sanzari v. Rosenfeld, 34 N.J. 128, 141
(1961)). See also Zuidema v. Pedicano, 373 N.J. Super. 135, 147 (App. Div.
2004) (when the common knowledge exception applies, the standard of care
need not be established by expert testimony). "The basic postulate for the
application of the common knowledge doctrine in a malpractice action 'is that
the issue of negligence is not related to technical matter peculiarly within the
knowledge of the licensed practitioner.'" Rosenberg, 99 N.J. at 325 (quoting
Sanzari, 34 N.J. at 142).
"The most appropriate application of the common knowledge doctrine
involves situations where the carelessness of the defendant is readily apparent
to anyone of average intelligence and ordinary experience." Ibid. It is unusual
to invoke the common knowledge doctrine in a medical-malpractice case. Ibid.;
see also Komlodi v. Picciano, 217 N.J. 387, 409-410 (2014) ("In medical
malpractice cases, the standard of care generally is not a matter of common
knowledge and must be established by experts . . . ."). Examples of
circumstances falling under the common-knowledge exception include a dentist
extracting the wrong tooth, Hubbard v. Reed, 168 N.J. 387, 396-97 (2001), a
doctor reading specimen identification numbers as actual test results, Palanque
v. Lambert-Woolley, 168 N.J. 398, 407-08 (2001); and a surgeon leaving a
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sponge in a patient after an operation, Buckelew v. Grossbard, 87 N.J. 512, 526-
27 (1981).
Plaintiffs assert, without any support, it is common knowledge that
defendants should have given Myong a cup to obtain a urine sample from Jackie.
We disagree. This case involves a patient with autism and a history of seizures
who had not been eating for days and had a severely-distended abdomen, a fever,
and an elevated white blood count, and was brought to the hospital's emergency
department on the advice of her treating neurologist who was concerned she had
a bladder or urinary-tract infection or pneumonia. Determining what needed to
be done to determine the source of a possible infection, what tests to perform,
how to perform those tests, what samples to collect from that patient, whether it
was necessary to collect sterile samples, and how to collect those samples under
those circumstances is beyond the common knowledge of the average juror.
D.
We perceive no abuse of discretion in the judge's denial of plaintiffs'
motion for leave to amend and motion for leave to serve supplemental discovery.
Accordingly, we affirm those orders.
Plaintiffs filed their complaint on April 25, 2018. Plaintiffs named as a
fictitious defendant "Kathy Doe," who was "a technician . . . involved in the
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forcible restraining of Jackie . . . ." Plaintiffs named the fictitious defendant
"Kathy" based on medical records already in plaintiffs' possession identifying
the technician by her first name. Plaintiffs had the full name and address of
Kathleen Cookson by at least September 25, 2019. Plaintiffs did not serve a
subpoena on Cookson until January 2020, after the close of fact discovery . In
response to defendants' motions to bar the testimony of Drs. Nidorf and
Williams, plaintiffs on February 20, 2020, cross-moved to amend the complaint
to clarify Cookson was Kathy Doe.
Rule 4:26-4 permits a plaintiff to move to amend a complaint to state a
fictitious defendant's true name, even if the statute of limitations has run.
However, Rule 4:26-4 requires a plaintiff to demonstrate two phases of due
diligence: (1) before filing the original complaint naming the fictitious
defendant, a plaintiff must exercise due diligence in attempting to identify the
responsible defendants; and (2) a plaintiff must act with due diligence in
ascertaining the fictitious defendant's true name and substituting it upon learning
that defendant's identity. Baez v. Paulo, 453 N.J. Super. 422, 439 (App. Div.
2018). Judge Thurber found plaintiffs had failed to demonstrate the required
due diligence. The record contains no evidence of any effort by plaintiffs to
identify Cookson pre-suit. Plaintiffs knew her identity no later than September
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25, 2019, but waited almost five months to move to amend the complaint to
name her. That delay does not bespeak of diligence. Judge Thurber did not
commit any error or abuse her discretion in denying plaintiffs' motion to amend.
Between the issuance of the March 19, 2019 order, which put plaintiffs on
notice of deficiencies in their expert reports, and the September 13, 2019 case
management order, plaintiffs took no action to supplement their expert reports.
In the September 13, 2019 order, the judge set a December 11, 2019 deadline
for plaintiffs to serve supplemental expert reports. Plaintiffs did not comply
with that court-ordered deadline, did not contact the court as directed to resolve
any difficulties in complying with that deadline, did not cross-move to
supplement their expert reports in response to defendants' motions to bar the
testimony of Drs. Nidorf and Williams, and did not move to extend that deadline
until after defendants had served their responsive expert reports and filed
summary-judgment motions. Judge Thurber concluded plaintiffs had made a
"tactical decision to present limited expert reports and not to supplement those
within the allowed time." Plaintiffs failed to articulate a good-faith basis to
explain their failure to comply with the court-ordered deadline or to extend that
deadline. See R. 4:24-1(c) (setting a good-cause standard for the extension of a
discovery deadline before the court has scheduled arbitration or trial). Judge
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Thurber did not abuse her discretion in denying plaintiffs' motion to submit
supplemental expert reports.
We find insufficient merit in plaintiffs' remaining arguments to warrant
discussion in a written opinion, R. 2:11-3(e)(1)(E).
Affirmed.
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