NOT FOR PUBLICATION WITHOUT THE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 only binding 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-4196-14T1
LISA HUNT, as guardian ad
litem of HAILEY ROSINA HUNT,
a minor, and LISA and RUSSELL
HUNT, as parents and natural
guardians of HAILEY ROSINA HUNT,
and LISA and RUSSELL HUNT,
individually,
Plaintiffs-Appellants,
v.
VIRTUA HEALTH, INC., VIRTUA
WEST JERSEY HOSPITAL VOORHEES,
LINDA FARAGASSO, R.N.C., CHRISTINE
PEASE, R.N., and BARBARA JONES, R.N.,
Defendants-Respondents,
and
WOMEN'S GROUP FOR OB/GYN,
PAMELA KOPELOVE, M.D., JEAN
TORRANCE, R.N.C., NOREEN
PALMAY, R.N., and DR. LYNCH,
Defendants.1
1
Virtua Health, Inc. was improperly pleaded as "Virtua"; Virtua
West Jersey Hospital Voorhees was improperly pleaded as "Virtue
Hospital" and "Virtua Health Systems Voorhees"; Linda Faragasso,
R.N., was improperly pleaded as "L. Faragasso, R.N.C.,"; and Jean
Torrance, R.N. was improperly pleaded as "Jean Torrance, R.N.C."
________________________________________________________________
Argued September 20, 2016 – Decided July 14, 2017
Before Judges Messano, Espinosa and Guadagno.
On appeal from Superior Court of New Jersey,
Law Division, Camden County, Docket No. L-
4509-11.
Michael J. Confusione argued the cause for
appellants (Hegge & Confusione, LLC, and
Creedon & Feliciani, P.C., attorneys; Mr.
Confusione and Heather A. Thomas, of counsel
and on the briefs).
Mary Kay Wysocki argued the cause for
respondents Virtua Health, Inc., Virtua West
Jersey Hospital Voorhees, Linda Faragasso,
R.N., Barbara Jones, R.N., and Christine
Pease, R.N. (Parker McCay, P.A., attorneys;
Ms. Wysocki, Thomas M. Walsh and Andrew S.
Winegar, on the brief).
PER CURIAM
Plaintiffs Lisa Hunt and Russell Hunt brought this medical
malpractice action on behalf of themselves and their minor child
Hailey Rosina Hunt (collectively, plaintiffs), alleging that
defendants were negligent during Lisa's labor and the delivery of
Hailey, causing extensive, permanent neurological injuries to
Hailey. Plaintiffs appeal from the dismissal of their complaint
against Virtua West Jersey Hospital Voorhees (Virtua Hospital) and
Virtua Health, Inc. (collectively, Virtua); and Linda Faragasso,
R.N., Barbara Jones, R.N., and Christine Pease, R.N.
2 A-4196-14T1
(collectively, Nurses).2 For the reasons set forth in this
opinion, we affirm.
I.
We summarize the facts pertinent to this appeal in the light
most favorable to plaintiffs. Brill v. Guardian Life Ins. Co.,
142 N.J. 520, 540 (1995); R. 4:46-2(c).
Lisa was admitted to Virtua Hospital at approximately 8:30
a.m. on September 7, 2009. Dr. Kopelove and Faragasso were
assigned as the attending physician and nurse, respectively, for
the labor and delivery.
The Nurses assessed Lisa and Hailey in approximately thirty-
minute intervals throughout the entire day, checking – among other
things – Lisa's blood pressure and Hailey's fetal heart rate (FHR),
including any variability, accelerations or decelerations. Pease
and Jones performed the assessments when Faragasso was
unavailable. Dr. Kopelove personally assessed Lisa and Hailey
approximately every two hours or as needed.
2
Plaintiffs' claims against Pamela Kopelove, M.D. and Women's
Group for OB/GYN were settled. Plaintiffs have not appealed from
the order granting summary judgment to defendant nurses Jean
Torrance, R.N., and Noreen Palmay, R.N. It is unclear from the
record what the disposition of plaintiffs' claims against Dr.
Lynch was but those claims are not part of this appeal. Plaintiffs
also made additional claims against all defendants that are not
relevant to this appeal.
3 A-4196-14T1
Over the next six hours, Lisa was given morphine and an
epidural, and her membranes were artificially ruptured. Variable
decelerations in Hailey's FHR were consistently noted beginning
at 11:30 p.m.
At 2:40 p.m., Dr. Kopelove gave orders to begin inducing
labor by administering Pitocin, with a beginning flow rate of one
milliunit per minute (mu/min). Before Pitocin was administered,
preeclampsia labs were drawn. The urinalysis revealed protein in
Lisa's urine, "a sign of pregnancy induced hypertension and/or
preeclampsia." As a result, Dr. Kopelove ordered that magnesium
sulfate be administered.
At 3:00 p.m., Pease began administering Pitocin at the rate
ordered by Dr. Kopelove. The Pitocin was increased to two mu/min
at 5:30 p.m., and then, per Dr. Kopelove's order, to four mu/min.
at 6:00 p.m. At 6:10 p.m., the FHR decelerated to seventy-five,
which constituted fetal bradycardia. Pitocin was turned off four
minutes later at 6:14 p.m. due to the persistent late
decelerations.
At 6:30 p.m., "a severe bradycardia episode occurred"; Dr.
Kopelove determined that an emergency cesarean section (C-section)
was necessary and Lisa "was rushed to the operating room." Hailey
was delivered at 6:43 p.m. She was described at birth as
"lifeless," "limp, apneic, [and] pale with no heart rate." The
4 A-4196-14T1
diagnosis was severe asphyxia. Apgar scores were 0, 0 and 3 at
one, five and ten minutes after birth, respectively.
Hailey suffers from permanent neurological damage including
neurodevelopmental delay and cerebral palsy.
Plaintiffs filed their complaint in March 2012. The claims
relevant to this appeal are: Virtua was negligent in credentialing
and retaining Dr. Kopelove and the Nurses were negligent in
treating Lisa and Hailey. We review each of these claims in turn.
II.
Plaintiffs did not produce any expert report to articulate
the standard of care applicable to their direct claims against
Virtua. Nonetheless, they argue the trial judge erred in granting
summary judgment to Virtua because expert testimony was not
required. Plaintiffs also argue the trial judge abused his
discretion in issuing protective orders that limited their ability
to pursue their claims against Virtua. We are unpersuaded by
these arguments.
Plaintiffs submit that expert testimony would only have been
required if they had alleged "that Virtua 'should have known'
about Dr. Kopelove's patient care problems yet failed to uncover
her incompetence." They contend that because "Virtua actually
knew about" Dr. Kopelove's "patient care issues and problems,"
5 A-4196-14T1
expert testimony was not necessary to establish their claims. No
legal authority is cited to support this proposition.
"The admission or exclusion of expert testimony is committed
to the sound discretion of the trial court." Townsend v. Pierre,
221 N.J. 36, 52 (2015). Expert testimony is generally
indispensable to a plaintiff's burden of showing a breach of duty
when "the matter to be dealt with is so esoteric that jurors of
common judgment and experience cannot form a valid judgment as to
whether the conduct of a party was reasonable." Butler v. Acme
Markets, Inc., 89 N.J. 270, 283 (1982). In Davis v. Brickman
Landscaping, Ltd., 219 N.J. 395 (2014), the Court noted that, in
addition to the ordinary dental or medical malpractice action, the
following types of cases have been acknowledged to concern matters
sufficiently esoteric to require expert testimony:
"the responsibilities and functions of real-
estate brokers with respect to open-house
tours," precautions necessary to ensure "the
safe conduct of a funeral procession," the
appropriate "conduct of those teaching
karate," the proper application of "pertinent
skydiving guidelines," and the proper "repair
and inspection" of an automobile.
[Id. at 407-08 (citations omitted).]
Plaintiffs describe the duty breached by Virtua as a duty "to
select only competent physicians to appoint to its medical staff
and to sufficiently oversee the physician's care within the walls
of its facility." To determine the scope of such a duty without
6 A-4196-14T1
resorting to rank speculation, the jury would have to have an
appreciation of what constituted a "competent" physician and what
oversight was sufficient. Certainly, these are matters no less
esoteric than any of the cases noted by the Supreme Court in Davis.
We therefore discern no abuse of discretion in the trial judge's
determination that expert testimony was necessary to support
plaintiffs' claims. Because plaintiffs could not sustain their
burden of establishing both a duty and the breach of that duty,
Virtua was entitled to judgment as a matter of law. See Rowe v.
Mazel Thirty, LLC, 209 N.J. 35, 41 (2012) (noting that "the moving
party is entitled to summary judgment as a matter of law" unless
"there is a genuine issue as to any material fact").
III.
Plaintiffs also challenge the trial court's entry of
protective orders entered in May and June 2014 that prohibited
discovery on: (1) materials pertaining to Dr. Kopelove's guilty
plea to a driving while intoxicated (DWI) offense in 20083; (2)
Virtua's peer review of issues regarding Dr. Kopelove; and (3)
Virtua's investigation of prior incidents involving Dr. Kopelove.
3
The trial judge found the DWI conviction was not relevant in
the absence of any evidence that she was under the influence at
the time she treated plaintiffs or that the charge had any impact
on her ability to adhere to the appropriate standard of care, and
also found the only purpose for such discovery was to intimidate,
harass, offend and embarrass Dr. Kopelove.
7 A-4196-14T1
Plaintiffs settled their claims against Dr. Kopelove in November
2014 and argue that these orders impeded their ability to pursue
their claims against Virtua. They do not, however, argue that the
entry of the protective orders precluded them from obtaining an
expert to establish breach of duty by Virtua, a failure that
justified summary judgment in Virtua's favor. Because summary
judgment was properly granted on that basis, plaintiffs'
challenges to the protective orders are moot and therefore warrant
only limited discussion.
We review this issue pursuant to an abuse of discretion
standard. C.A. ex rel. Applegrad v. Bentolila, 219 N.J. 449, 459
(2014). We are satisfied that plaintiffs' argument regarding the
discovery of Dr. Kopelove's DWI conviction lacks sufficient merit
to warrant discussion, R. 2:11-3(e)(1)(E), and discern no abuse
of discretion as to the other challenged rulings.
The May 2014 order prohibited discovery of
any factual information regarding the reviews
and/or meetings conducted by the Virtua
Medical Staff, Obstetrics Department and other
members of the Executive and Administrative
Staff of [Virtua] regarding complaints,
incidents, and other issues raised about the
behavior of [Dr. Kopelove] at Virtua Hospital.
Defendants sought a second protective order to protect
documents relating to Dr. Kopelove’s patient care issues,
specifically Virtua’s investigation of an incident in May 2009.
8 A-4196-14T1
In June 2014, following an in camera review of the withheld
documents, the trial court observed that they concerned Virtua's
investigation of a patient care event in May 2009 and that,
pursuant to N.J.S.A. 45:1-36, such materials remain confidential
"if the result of the inquiry is a finding of no basis for
disciplinary action." The June 2014 order prohibited plaintiffs
"from demanding or eliciting in discovery any information
regarding issues investigated and addressed at Virtua regarding
the actions of Dr. Kopelove, including but not limited to the
incident of May 2009."4
Plaintiffs argue the trial court made the following errors
in these rulings: (1) failing to make specific determinations
regarding each document that was withheld as required by Payton
v. New Jersey Turnpike Authority, 148 N.J. 524 (1997); (2)
misconstruing N.J.S.A. 45:1-36 by interpreting it to extend
confidentiality after there has been a final disposition in an
investigation; and (3) declaring the materials not relevant to
plaintiffs' claims against Virtua. These arguments lack merit.
4
Plaintiffs argue that they were entitled to discovery of the
documents protected in the June 2014 order pursuant to the common
law privilege recognized in Christy v. Salem, 366 N.J. Super. 535,
543 (App. Div. 2004). Although the trial court apparently failed
to consider the competing interests of the plaintiff's right to
discover the information for litigation purposes and the public
interest involved to determine if the peer review privilege
applied, id. at 541; see Applegrad, supra, 219 N.J. at 465; any
error is of no consequence because this issue is moot.
9 A-4196-14T1
In the first instance, plaintiffs' reliance on Payton is
misplaced. In Payton, supra, 148 N.J. at 554, the Court determined
that remand was necessary for the trial court to conduct an in
camera review of the documents at issue. The trial court did so
here prior to making its determination the documents should remain
confidential pursuant to N.J.S.A. 45:1-36. Absent any authority
that would require a trial court to provide "specific
determinations" regarding precluded discovery in every case,
plaintiffs' argument fails.
Plaintiffs' second argument – that the trial court
"misapplied" N.J.S.A. 45:1-36 because the withheld information
should have been released after the final disposition of the
investigation – also lacks merit. N.J.S.A. 45:1-36 explicitly
states:
If the result of the inquiry or investigation
is a finding of no basis for disciplinary
action, the information shall remain
confidential, except that the board or
division, as applicable, may release the
information to a government agency to
facilitate the discharge of its public
responsibilities.
[(Emphasis added).]
In light of the fact that the materials continued to be
protected as confidential, plaintiffs' last argument, that the
materials were relevant, has no merit.
10 A-4196-14T1
Accordingly, we discern no abuse of discretion in the issuance
of the protective orders.
IV.
We next turn to the arguments presented by plaintiffs relating
to their claims against the Nurses. These arguments arise from
the trial court's grant of summary judgment to the Nurses based
upon its determination that the plaintiffs failed to establish
proximate causation. Plaintiffs initially presented an expert
report by a nurse practitioner to support their argument that the
Nurses breached a duty that proximately caused Hailey's injuries.
They argue the trial court erred in finding the nurse practitioner
was not qualified to render an opinion on proximate cause. 5
Plaintiffs also argue the trial court erred in barring a
supplemental expert report provided by a physician on the issue
of proximate causation.
To provide context for these issues, we note that the
complaint was filed in March 2012. In May 2014, a trial notice
5
Plaintiffs argued in the alternative that a jury could have
found proximate cause proven by application of the "substantial
factor" analysis in the absence of expert opinion. This argument
lacks sufficient merit to warrant discussion, R. 2:11-3(e)(1)(E),
beyond the following brief comment. "New Jersey courts apply the
substantial factor test in medical malpractice cases involving
preexisting conditions." Reynolds v. Gonzalez, 172 N.J. 266, 280
(2002). Because plaintiffs did not allege there was a preexisting
condition, their claim would not be properly subject to analysis
under the substantial factor test.
11 A-4196-14T1
set the fourth listing for trial, November 10, 2014. Plaintiffs'
expert reports were due June 30, 2014. A court order was entered
on August 15, 2014, requiring defendants to submit expert reports
by September 12, 2014, and plaintiffs to submit rebuttal expert
reports by October 20, 2014. In addition, the order explicitly
provided that the October 10, 2014 discovery end date would not
be extended.
A.
Plaintiffs timely served expert reports from Dr. Bruce L.
Halbridge, an obstetrics expert, and Jennifer Johnson, R.N., a
registered nurse and board-certified nurse practitioner in women's
health. The contents of these reports plainly reveal that Dr.
Halbridge's opinion was intended to support plaintiffs' claim
against Dr. Kopelove and Johnson's opinion was intended to provide
the necessary expert opinion to support plaintiffs' claims against
the Nurses.
Dr. Halbridge's report identified the following
"[d]epartures":
1. The failure of Dr. Kopelove to recognize
the presence of:
a) Recurrent late and variable
decelerations
b) Significant and persistent loss of
fetal heart variability
2. The failure of Dr. Kopelove to deliver
the fetus by [1:30 p.m.] due to the presence
12 A-4196-14T1
of recurrent late and variable fetal heart
rate decelerations and significantly
decreased fetal heart rate variability
indicating fetal hypoxia.
3. The failure of Dr. Kopelove to recognize
that it is contraindicated to administer
Pitocin to increase contraction frequency,
intensity, and duration in the presence of
recurrent late and variable fetal heart rate
decelerations and associated significantly
decreased fetal heart rate variability.
In defining the damages suffered, Dr. Halbridge found Dr.
Kopelove's "failure to deliver the fetus by [1:30 p.m.] . . . was
the direct and proximate cause of the avoidable and permanent
neurologic damage suffered by the baby." Dr. Halbridge's report
offered no opinions regarding the quality of the nursing care that
was provided or that the care provided by the Nurses contributed
to the injury.
Johnson's report critiqued the nursing care provided to Lisa
and Hailey and opined that it "did not meet the standard required
and expected for such care resulting in the injury to the child."
(Emphasis added). She identified specific deviations from the
standard of care by the nurses that included "[f]ailure to properly
assess ongoing fetal well being and uterine activity throughout
labor." She also found the monitoring revealed contraindications
that rendered "[t]he initiation and continuation of Pitocin . . .
a breach of the standard of care by the labor and delivery nurses
13 A-4196-14T1
which put [Hailey] at increased risk for hypoxia as exhibited by
the recurring decelerations." (Emphasis added).
Pursuant to Rule 4:46-1, summary judgment motions had to be
filed in time to have a return date thirty days prior to the
November 10, 2014 trial date. The Nurses moved for summary
judgment in August 2014, arguing plaintiffs had failed to present
an admissible expert opinion on causation because Dr. Halbridge
had not rendered such an opinion and Johnson, a nurse practitioner,
could not "establish medical causation." The trial court agreed
and entered an order granting summary judgment to the Nurses on
September 19, 2014, dismissing the complaint and all cross-claims
with prejudice.
Plaintiffs attempted to revive their claims against the
Nurses by submitting new expert reports by Dr. Halbridge and
Johnson and filing a motion for reconsideration.
As we have noted, in his first report, Dr. Halbridge offered
no opinions regarding the nurses and laid the blame for Hailey's
injuries squarely and unequivocally upon Dr. Kopelove, stating her
failure to deliver the fetus approximately five hours earlier "was
the direct and proximate cause of" Hailey's injuries.
Dr. Halbridge prefaced his second report with: "In this report
I will list additional departures from the standard of care. . . ."
The "additional departures," however, did not address Dr.
14 A-4196-14T1
Kopelove's departures from the standard of care. Instead, for the
first time, he added "[t]he Labor [and] Delivery nurses" as persons
who deviated from the standard of care and caused Hailey's
injuries. Their alleged deviations were that, like Dr. Kopelove,
they failed to recognize the presence of repetitive variable and
late decelerations in the presence of significantly reduced
variability that clearly indicated that the fetus was experiencing
significant hypoxia and needed to be delivered promptly.
Dr. Halbridge did not opine that the Nurses had any duty to
take action to override, rather than follow, the orders given by
Dr. Kopelove throughout Lisa's labor.
In her supplemental report,6 Johnson opined for the first time
that the Nurses breached a duty in failing to challenge Dr.
Kopelove's orders:
If the nurse is concerned about the
progression or issues of variability and
compromise of the infant or the Mother the
nurse is required to follow the chain of
command per policy in order to assure a
positive outcome in both the Mother and
infant. In failing to do so, the labor and
delivery nurses in this situation breached the
standard of care and [sic] resulting in the
injury to [Hailey].
6
Johnson's supplemental report was provided after the due date
for plaintiffs' rebuttal reports.
15 A-4196-14T1
These reports were submitted as rebuttal reports and as
grounds for the trial court to reconsider its order granting
summary judgment.
Reconsideration is not appropriate merely because a litigant
is dissatisfied with a decision of the court or wishes to reargue
a motion. Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div.
2010). To be entitled to reconsideration, "a litigant must
initially demonstrate that the Court acted in an arbitrary,
capricious, or unreasonable manner, before the Court should engage
in the actual reconsideration process." D'Atria v. D'Atria, 242
N.J. Super. 392, 401 (Ch. Div. 1990). Reconsideration is properly
utilized only in cases "in which either 1) the Court has expressed
its decision based upon a palpably incorrect or irrational basis,
or 2) it is obvious that the Court either did not consider, or
failed to appreciate the significance of probative, competent
evidence." Palombi, supra, 414 N.J. Super. at 288 (quoting
D'Atria, supra, 242 N.J. Super. at 401). Plainly, the submission
of new expert reports that differed from the reports available
when the summary judgment motion was decided did not bring the
trial court's decision within either of these two narrow categories
of cases in which reconsideration is appropriate. Notwithstanding
the dubious grounds for granting reconsideration, the trial court
found that Dr. Halbridge's new report established causation as to
16 A-4196-14T1
Faragasso. By order dated October 27, 2014, the trial court
granted reconsideration in part, reinstating plaintiffs' claims
against Faragasso, but affirmed the dismissal of claims against
Jones and Pease.
Thereafter, defendants moved to bar Dr. Halbridge's and
Johnson's supplemental expert reports, arguing they did not
constitute proper rebuttal. The trial court barred Dr. Halbridge's
report, later clarifying that only the new opinions expressed on
the standard of care and causation regarding the Nurses were
barred. The trial court denied defendant’s motion to bar Johnson's
report, finding that her opinion as to the chain-of-command was a
logical extension of her initial report.
Faragasso filed a motion for summary judgment, arguing that
since Dr. Halbridge's opinion regarding the Nurses was barred,
there was no admissible opinion that any alleged deviation
attributed to her caused Hailey's injuries. Plaintiffs argued
Johnson's opinion that the Nurse's actions increased the risk of
harm to Hailey "satisfie[d] the causation requirements." The
trial court agreed with Faragasso that this was a medical diagnosis
Johnson was not qualified to make; and thus, without Dr.
Halbridge's rebuttal report, plaintiffs could not establish
causation as to Faragasso. The trial court granted summary
17 A-4196-14T1
judgment to Faragasso, and dismissed the complaint and any cross-
claims with prejudice.
B.
We turn first to the argument that the trial court erred in
concluding Johnson was not qualified to render the requisite
opinion regarding causation.
"Ordinarily, the competency of a witness to testify as an
expert is remitted to the sound discretion of the trial court.
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); see also Townsend, supra, 221 N.J. at 52-
53.
A plaintiff in a medical malpractice action "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." Nicholas v. Mynster,
213 N.J. 463, 478 (2013) (citation omitted). To establish
proximate cause, the "plaintiff must prove that [the] defendant's
conduct constituted a cause in fact of his injuries and loss. An
act or omission is not regarded as a cause of an event if the
event would have occurred without it." Skripek v. Bergamo,
200 N.J. Super. 620, 634 (App. Div.), certif. denied, 102 N.J. 303
(1985).
18 A-4196-14T1
Usually, a witness presented as an expert "must be a licensed
member of the profession whose standards he professes to know."
Sanzari v. Rosenfeld, 34 N.J. 128, 136 (1961). However, licensed
or even unlicensed individuals involved in another profession can
testify as an expert "depend[ing] on the claim involved, the
specific allegations made, and the opinions that the expert
proposes to offer at trial." Garden Howe Urban Renewal Assocs.
v. HACBM Architects Eng'rs Planners, L.L.C., 439 N.J. Super. 446,
456 (App. Div. 2015).
It is undisputed that the causation issue in this case
requires sufficient knowledge, training and experience to
determine the cause of a complex neurological injury in the context
of labor and delivery. Plaintiffs rely on the Advanced Practice
Nurse Certification Act (APNCA), N.J.S.A. 45:11-45 to -52, to
support their argument that Johnson was qualified to opine on the
causation issue in this case. N.J.S.A. 45:11-49(a), articulates
the [p]ermitted duties of [an] advanced practice nurse"7 and
states:
In addition to all other tasks which a
registered professional nurse may, by law,
perform, an advanced practice nurse may manage
preventive care services and diagnose and
manage deviations from wellness and long-term
illnesses, consistent with the needs of the
7
Under the APNCA, the titles "advanced practice nurse," "nurse
practitioner" and "clinical nurse specialist" are used
interchangeably. N.J.S.A. 45:11-46(c).
19 A-4196-14T1
patient and within the scope of practice of
the advanced practice nurse, by:
(1) initiating laboratory and other
diagnostic tests;
(2) prescribing or ordering
medications and devices, as authorized
by subsections b. and c. of this
section; and
(3) prescribing or ordering
treatments, including referrals to
other licensed health care
professionals, and performing specific
procedures in accordance with the
provisions of this subsection.
[(Emphasis added).]
Plaintiffs argue legislative amendments clarify that the
scope of an advanced practice nurse's permitted practices exceeds
that of a registered nurse and encompasses the diagnosis and
management of a patient's condition. Notably, however, the statute
does not provide any clear authority that an advanced practice
nurse may diagnose the neurological injury at issue here or, more
important, how it was caused. We note further that the autonomy
of an advanced practice nurse is limited. N.J.A.C. 13:37-8.1
requires that a nurse practitioner be supervised by an appropriate
physician under joint protocols or collaborative agreements.
Given the complexity of the medical causation in this case
and the limits upon Johnson's scope of expertise, we cannot
conclude the trial court abused its discretion in concluding she
was not qualified to render the requisite opinion on causation.
20 A-4196-14T1
Relying upon Kemp v. State, 174 N.J. 412 (2002), plaintiffs
also contend the trial court erred in ruling Johnson was not
qualified to render an opinion without first conducting, sua
sponte, an N.J.R.E. 104 hearing. Because plaintiffs did not ask
the trial court to conduct an N.J.R.E. 104 hearing, we review this
argument for plain error. R. 2:10-2.
In Kemp, supra, 174 N.J. at 432, the Court held it was plain
error for the trial court to exclude the testimony of an expert
without conducting an evidentiary hearing to determine the
reliability of the expert's testimony. The issue in Kemp was
whether the expert's analysis was "scientifically reliable,"
meaning "the scientific medical community accepts the process by
which [the expert] arrived at his conclusion as one that is
consistent with sound scientific principles." Id. at 430-31.
Although the Court noted that an in limine hearing provides an
efficient means for determining the reliability of expert
testimony when a Daubert8 objection is raised, it did not require
an in limine hearing in every case in which such an objection is
made:
Whether to hold one rests in the sound
discretion of the [trial] court. But when the
ruling on admissibility turns on factual
issues, as it does here, at least in the
8
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct.
2786, 125 L. Ed. 2d 469 (1993).
21 A-4196-14T1
summary judgment context, failure to hold such
a hearing may be an abuse of discretion.
[Id. at 428 (quoting Padillas v. Stork-Gamco,
Inc., 186 F. 3d 412, 418 (3d Cir. 1999)).]
There was no Daubert objection here. The issue regarding the
admissibility of Johnson's expert opinion was not its scientific
reliability but, rather, whether the witness was qualified in her
profession to render an expert opinion.
Plainly, the trial judge had the authority to conduct an in
limine hearing regarding Johnson's qualifications to render an
opinion on causation. N.J.R.E. 104(a) provides that a "judge may
hear and determine" matters relating to "the qualification of a
person to be a witness" at an in limine hearing. See also Rubanick
v. Witco Chem. Corp., 125 N.J. 421, 454 (1991); Biunno, Weissbard
and Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E.
104 (2017) ("If there is a dispute about the qualifications of a
proffered expert witness to testify in a particular field, a
preliminary hearing may be utilized to resolve the question." But
the decision to conduct a N.J.R.E. 104 hearing rests within the
sound discretion of the trial court. Kemp, supra, 174 N.J. at
432. Under the circumstances here, we discern no abuse of
discretion and, therefore, no plain error.
22 A-4196-14T1
C.
Plaintiffs next contend the trial court abused its discretion
by barring Dr. Halbridge's second expert report based on its
finding that the report expressed "entirely new opinion[s]" rather
than an appropriate rebuttal report. They argue the report was
sufficiently related to Dr. Halbridge's first report because his
initial opinions "applied to both Dr. Kopelove and [the Nurses]"
and the alleged breaches by the Nurses arose from the same set of
facts as for Dr. Kopelove. Plaintiffs also argue the additional
opinions expressed by Dr. Halbridge constituted "proper rebuttal
evidence . . . with respect to the causation element" because he
"respond[ed] to the opinions set forth in the defense reports."9
The limited purpose of rebuttal evidence is to rebut evidence
presented for the first time in the opposing party's case, and
should not be cumulative or repetitive. D.G. ex rel. J.G. v. N.
Plainfield Bd. of Educ., 400 N.J. Super. 1, 22-23 (App. Div.),
certif. denied, 196 N.J. 346, cert. denied, 555 U.S. 1085, 129 S.
Ct. 776, 172 L. Ed. 2d 756 (2008). Determining "[w]hat is proper
rebuttal evidence and whether it should be admitted" is a decision
9
Three of defendants' experts opined that the Nurses' actions
during the labor and delivery met the appropriate standard of
care. Three other defense experts opined that Hailey's injuries
were due to preexisting conditions that defendants had no control
over, with one expert stating: "Nothing the health care providers
caring for Hailey's mother did or did not do could have prevented
the child's injury."
23 A-4196-14T1
that rests "within the sound discretion of the trial judge, and
the exercise of that discretion will not be disturbed in the
absence of gross abuse." State v. Sanducci, 150 N.J. Super. 400,
402 (App. Div.), certif. denied, 75 N.J. 524 (1977).
We discern no abuse of discretion in the trial court's
decision to bar the opinion in Dr. Halbridge's supplemental report
that the Nurses deviated from a standard of care that proximately
caused the injury here. These opinions cannot remotely be
considered an amplification of the opinion he expressed in his
initial report, before summary judgment was granted to the Nurses,
when he unequivocally opined that Dr. Kopelove's deviation was the
proximate cause for the injury suffered. Rather than a genuine
rebuttal report, this report represented a transparent effort to
take a second bite at the apple after expert reports had been
exchanged and summary judgment had been granted to the Nurses
based on the very deficiency in expert opinion that Dr. Halbridge's
second report was designed to cure.
Plaintiffs urge that they should be spared the ultimate
sanction of dismissal with prejudice because lesser sanctions,
such as an extension of discovery or the assessment of counsel
fees and costs, could suffice to serve the interests of justice.
We disagree.
24 A-4196-14T1
The expert report plaintiffs seek to rely upon was not
produced until October 20, 2014, approximately three weeks before
the fourth listed trial date, after the October 10, 2014 discovery
end date and after summary judgment had been granted to the Nurse
defendants. No argument has been made that the opinion in question
could not have been obtained and presented during the normal course
of discovery. There are, then, no extraordinary circumstances to
justify the late alteration in expert theory that was adopted to
rescue plaintiffs' claims against the Nurses. See R. 4:24-1(c).
Moreover, even if Dr. Halbridge's report were accepted in
full, it fails to establish a critical point necessary for the
imposition of liability upon the Nurses. It is undisputed that
Dr. Kopelove was the attending physician and that the Nurses
followed her orders throughout labor. Dr. Halbridge opined that
it was Dr. Kopelove's five-hour delay in ordering a C-section that
was the proximate cause of Hailey's injuries. Nowhere in his
supplemental report does Dr. Halbridge state the Nurses had grounds
to attempt to override Dr. Kopelove's orders, a duty to do so and
deviated from that duty. Absent that, his supplemental report
fails to provide the requisite opinion regarding causation to
support plaintiffs' claims against the Nurses. Affirmed.
25 A-4196-14T1
LISA HUNT VS. VIRTUA HEALTH, INC.(L-4509-11, CAMDEN COUNTY AND STATEWIDE)
Combined Opinion