DIANA DASENT VS. TODD KOPPEL, M.D.(L-3743-14, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-5328-15T4

DIANA DASENT,

Plaintiff-Appellant,

v.

TODD KOPPEL, M.D., GARDEN
STATE PAIN MANAGEMENT, and
CLIFTON SURGERY CENTER,

Defendants-Respondents.

______________________________

Submitted September 26, 2017 – Decided October 4, 2017

Before Judges Fasciale and Moynihan.

On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-3743-
14.

Rothenberg, Rubenstein, Berliner & Shinrod,
LLC, attorneys for appellant (Alan Berliner,
on the brief).

Rosenberg, Jacobs & Heller, P.C., attorneys
for respondents Todd Koppel, M.D. and Garden
State Pain Management (Scott T. Heller, of
counsel and on the brief; Ronald J. Morgan,
on the brief).

Farkas & Donohue, LLC, attorneys for
respondent Clifton Surgery Center (Beth A.
 Hardy, of counsel; Meredith T. Zaita, on the
brief).

PER CURIAM

In this medical malpractice case, plaintiff appeals from a

July 18, 2016 order granting Todd Koppel, M.D., Garden State Pain

Management (GSPM), and Clifton Surgery Center's (CSC)

(collectively defendants) motions for involuntary dismissal

pursuant to Rule 4:37-2(b). Judge Stephanie A. Mitterhoff entered

the order and rendered an oral opinion dated July 11, 2016. We

affirm.

Plaintiff sustained injuries from an automobile accident, and

sought medical treatment from defendants. Dr. Koppel, a pain

management specialist, performed epidural injections in

plaintiff's cervical spine at the C4-5, C5-6 and C6-7 vertebrae.

The doctor performed injections without complications. The

discharge instructions informed plaintiff to use ice every few

hours for twenty-minute intervals if she experienced discomfort

in the area of the injections.

Plaintiff went home and experienced discomfort in her right

upper shoulder, which was not the location of the injections. She

applied ice to her shoulder, fell asleep, and awakened the next

day with blistering of the skin in the area she had iced.

Approximately one week later, plaintiff went to the emergency room

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and stated that she applied ice, fell asleep, and woke up the next

morning with the blistering.

Plaintiff filed this complaint alleging that the injections

burned her skin. Plaintiff's expert opined that the use of an

electrical grounding pad during the injection procedure caused the

burning. It is undisputed that defendants did not use such a pad.

Defendants filed a motion to bar the expert from testifying at

trial and contended that the expert rendered a net opinion. A

different judge agreed with defendants and granted defendants'

motion.1

Judge Mitterhoff entered the order under review at the

beginning of the trial. She acknowledged that plaintiff would be

unable to proceed without an expert. The judge concluded that the

doctrine of res ipsa loquitor was inapplicable, and that the

conditional res ipsa loquitor charge did not apply. Consequently,

she dismissed the case.

On appeal, plaintiff argues that she does not need an expert

in this medical malpractice case. Plaintiff asserts that the

doctrine of res ipsa loquitor obviates the need to submit expert

testimony. Plaintiff also contends that even if res ipsa loquitor

1
Plaintiff did not appeal from the order barring the expert
from testifying.

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is inapplicable, then she was entitled to a conditional res ipsa

loquitor charge.

We begin by addressing our standard of review of the order

dismissing plaintiff's complaint. Defendants moved for

involuntary dismissal pursuant to Rule 4:37-2(b), providing in

part that

[a]fter having completed the presentation of
the evidence on all matters other than the
matter of damages . . . , the plaintiff shall
so announce to the court, and thereupon the
defendant, without waiving the right to offer
evidence in the event the motion is not
granted, may move for a dismissal of the
action . . . on the ground that upon the facts
and upon the law the plaintiff has shown no
right to relief. . . . [S]uch motion shall
be denied if the evidence, together with the
legitimate inferences therefrom, could
sustain a judgment in plaintiff's favor.

"If the court, 'accepting as true all the evidence which supports

the position of the party defending against the motion and

according him the benefit of all inferences which can reasonably

and legitimately be deduced therefrom,' finds that 'reasonable

minds could differ,' then 'the motion must be denied.'" ADS

Assocs. Grp., Inc. v. Oritani Sav. Bank, 219 N.J. 496, 510-11

(2014) (quoting Verdicchio v. Ricca, 179 N.J. 1, 30 (2004)). "An

appellate court applies the same standard when it reviews a trial

court's grant or denial of a Rule 4:37-2(b) motion for involuntary

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dismissal." Id. at 511. Applying these standards, we conclude

that Judge Mitterhoff properly granted the motion.

To prevail in a medical malpractice action, "ordinarily, 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."

Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (internal quotation

marks and citation omitted). Such "[e]xpert testimony is permitted

to 'assist the trier of fact to understand the evidence or to

determine a fact in issue.'" Ibid. (quoting N.J.R.E. 702).

Further, an expert must be qualified to testify, meaning he or she

must have the requisite "knowledge, skill, experience, training,

or education . . . ." N.J.R.E. 702. Plaintiff's failure to

present an expert is fatal to her case.

The res ipsa loquitor doctrine permits an inference of

negligence establishing a prima facie case of negligence. Jerista

v. Murray, 185 N.J. 175, 191-92 (2005). To invoke the doctrine,

a plaintiff must establish that "(a) the occurrence itself

ordinarily bespeaks negligence; (b) the instrumentality [causing

the injury] was within the defendant's exclusive control; and (c)

there is no indication in the circumstances that the injury was

the result of the plaintiff's own voluntary act or neglect."

Szalontai v. Yazbo's Sports Cafe, 183 N.J. 386, 398 (2005)

5 A-5328-15T4
(alteration in original) (quoting Brown v. Racquet Club of

Bricktown, 95 N.J. 280, 288 (1984)). Plaintiff failed to establish

each prong.

The first prong, that the occurrence ordinarily bespeaks

negligence, is dependent on "whether based on common knowledge the

balance of probabilities favors negligence, thus rendering fair

the drawing of a res ipsa inference." Jerista, supra, 185 N.J.

at 199. Where, like here, "the res ipsa inference falls outside

of the common knowledge of the factfinder and depends on

scientific, technical, or other specialized knowledge . . . expert

testimony [is] required." Ibid.; see also Buckelew v. Grossbard,

87 N.J. 512, 527 (1981) (holding that "expert testimony to the

effect that the medical community recognizes that an event does

not ordinarily occur in the absence of negligence may afford a

sufficient basis for the application of the doctrine of res ipsa

loquitur"). We cannot say on the facts before us that plaintiff's

burn to her shoulder, which appeared in a different location than

the site of the injections, as a matter of common understanding,

raises an inference of negligence.

Plaintiff cannot credibly argue that such an expert is

unnecessary, especially because she unsuccessfully retained one

who rendered a net opinion. Here, the res ipsa loquitor inference

falls outside of the common knowledge of the factfinder. It is

6 A-5328-15T4
undisputed that plaintiff's alleged burn occurred to her right

upper shoulder. The doctor did not apply the injections to

plaintiff's right upper shoulder. Whether the burn to the shoulder

ordinarily bespeaks negligence, when the doctor injected

plaintiff's neck at the C4-5, C5-6 and C6-7 levels, is not a matter

of common knowledge.

As to the second prong, that the instrumentality causing the

injury was within the defendants' exclusive control, plaintiff is

unable to describe without expert testimony what conduct and

instrumentality caused the burn. Without expert testimony about

the instrumentality, the jury would be speculating as to what

caused the burn. Indeed, plaintiff did not have a theory as to

what instrumentality caused the alleged injury.

As to the third prong, that there is no indication that the

injury was the result of the plaintiff's own voluntary act or

neglect, plaintiff iced the area of the burn overnight. Applying

ice overnight, rather than every twenty minutes for a few hours,

is inconsistent with the discharge instructions. Thus, there is

a suggestion that the injury was the result of plaintiff's own

voluntary act or neglect.

Under the facts of this case, a conditional res ipsa loquitor

charge is unwarranted. Where a plaintiff's entitlement to the

charge is dependent on the jury's resolution of a specific factual

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dispute, a court should consider what has been referred to as a

"'conditional res ipsa' instruction." Khan v. Singh, 200 N.J.

82, 98 (2009) (citing Roper v. Blumenfeld, 309 N.J. Super. 219,

234 (App. Div. 1998)). The "conditional res ipsa" theory is

premised on the principle "that there is a question of fact that,

if the jury decides it in plaintiff's favor, would entitle

plaintiff to the res ipsa charge." Id. at 103.

[I]f the evidence presents a factual issue as
to how an accident occurred, and the res ipsa
loquitur doctrine would be applicable under
only one version of the accident, the court
should give a "conditional" res ipsa loquitur
instruction, under which the jury is directed
first to decide how the accident happened and
to consider res ipsa loquitur only if it finds
that the accident occurred in a manner which
fits the doctrine.

[Id. at 98 (citation and internal quotation
marks omitted).]

The charge should only be given if plaintiff's expert provides

"the required basis needed for a conclusion that the injury[,] [if

the jury agrees with plaintiff's version,] ordinarily bespeaks

negligence or that the medical community recognizes the injury to

be one that meets that defining criteria." Id. at 99 (citation

and internal quotation marks omitted). Here, plaintiff is without

an expert and is unable to make the requisite showing to warrant

a conditional res ipsa loquitor charge.

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Affirmed.

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