DOROTHY L. MOODY, ETC. VS. VOORHEES CARE AND REHABILITATION CENTER (L-3643-16, CAMDEN 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NOT FOR PUBLICATION WITHOUT THE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-5561-18

DOROTHY L. MOODY, by and
through her power of attorney,
DOROTHY GATEWOOD-
GABRIEL,

Plaintiff-Respondent,

v.

THE VOORHEES CARE AND
REHABILITATION CENTER
and THE LAKEWOOD OF
VOORHEES OPERATOR, LLC,

Defendants-Appellants,

and

GINA KIRCHOFF, administrator,

Defendant.
_____________________________

Argued November 9, 2020 – Decided February 17, 2021

Before Judges Fasciale and Rothstadt.

On appeal from the Superior Court of New Jersey, Law
Division, Camden County, Docket No. L-3643-16.
 Susan J. Wall argued the cause for appellants (Gibley
and McWilliams, PC, attorneys; Susan J. Wall, on the
briefs).

Richard J. Talbot argued the cause for respondent (Law
Office of Andrew A. Ballerini and Foley & Foley,
attorneys; Richard J. Talbot, of counsel; Sherry L.
Foley and Timothy J. Foley, on the brief).

Anthony Cocca argued the cause for amicus curiae New
Jersey Defense Association (Cocca & Cutinello, LLP,
attorneys; Anthony Cocca and Katelyn E. Cutinello, of
counsel and on the brief).

PER CURIAM

Defendants the Voorhees Care and Rehabilitation Center and the

Lakewood of Voorhees Operator, LLC 1 appeal from the Law Division's August

14, 2019 final judgment that awarded $349,687.45 to plaintiff Dorothy L.

Moody, through her power of attorney, Dorothy Gatewood-Gabriel. The trial

judge entered the judgment based upon a jury's determination that defendants

were negligent in their care of plaintiff and that they violated the Nursing Home

Responsibilities and Residents' Rights Act (NHA), N.J.S.A. 30:13-1 to -17. On

appeal, defendants and amicus curiae, the New Jersey Defense Association

(NJDA), argue that the trial judge improperly barred defendant's report and his

1
As of April 9, 2019, defendant Gina Kirchoff, Administrator, was dismissed
from the case.
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testimony, that plaintiff's expert impermissibly testified about the NHA, was not

qualified to testify as to a standard of care for nurses, and that it was improper

for the trial judge to have denied defendants' motion for judgment

notwithstanding the verdict (JNOV).2

Having considered defendant's and NJDA's arguments in light of the

record and the applicable principles of law, we affirm as we conclude that

defendants' expert's testimony was properly barred due to the untimely service

of his report without explanation, and plaintiff's expert's testimony was properly

admitted as the expert was qualified to present his opinions and he did not usurp

the trial judge's responsibility to instruct the jury on the law . Finally, because

defendants did not appeal from the denial of its JNOV motion, we have no

reason to consider it on appeal.

2
We decline to address NJDA's argument that the jury should not have been
instructed as to defendants' noncompliance with 42 C.F.R. § 483.25 because this
argument was not addressed by the parties, and "as a general rule, the [c]ourt
'does not consider arguments that have not been asserted by a party, and are
raised for the first time by an amicus curaie.'" State in Interest of A.A., 240 N.J.
341, 359 n.1 (2020) (quoting State v. J.R., 227 N.J. 393, 421 (2017)).
A-5561-18
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 I.

A.

The facts giving rise to plaintiff's claims are derived from the trial record

and are summarized as follows. Plaintiff, who is eighty-nine years old, became

a resident of defendants' nursing facility on February 13, 2014. Plaintiff entered

the nursing facility due to her dementia and several medical issues, including

diabetes.

On June 8, 2016, at approximately 8:00 p.m., Gloria Myers, a nurse at

defendants' facility, administered a finger stick blood sugar test on plaintiff

without a physician's order because plaintiff was "lethargic," "irritable," and had

only eaten one quarter of her dinner. The test indicated a blood sugar count of

514.

The nurse then contacted a staff physician who ordered fast-acting insulin

be administered immediately and a complete blood count to be conducted the

following morning. According to the staff's records, after the insulin was given,

plaintiff had "[n]o acute distress" and was "more alert," and she would continue

to be monitored.

The next morning, another nurse, Teresa Higgins, observed that plaintiff

was lethargic and "non-arousable by verbal and tactile stimuli." She did not

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respond to a "sternal rub, was unable to take any of her medications, and did not

eat breakfast." She noted that plaintiff had refused to cooperate with the blood

draw scheduled for that morning. Higgins was concerned about plaintiff's blood

sugar, but she did not perform a finger stick blood sugar test because "she did

not have a physician's order . . . and . . . an order would be needed to obtain . . .

[plaintiff's] blood glucose." Instead, Higgins contacted the physician who again

ordered lab work on a stat basis to obtain plaintiff's blood sugar levels among

other things. Higgins thereafter contacted the lab and relayed the physician's

order. Eventually, the lab was able to obtain only one vial of blood.

During this time, plaintiff was unable to urinate and after two hours,

nurses gave her water, ginger ale, "five scoops of mashed potatoes and . . . ice

cream." By 3:00 p.m., plaintiff became even more lethargic.

At approximately 4:30 p.m., lab results were received that indicated that

plaintiff's blood sugar was 672, her blood urea nitrogen was 58, and her sodium

was 154. The lab rechecked to verify the high number, which was again

confirmed.

During Higgins's shift she administered two blood sugar tests, which

indicated plaintiff's blood sugar was 76, however, she could not recall when the

tests were administered. She testified that she did not need a physician's order

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to check plaintiff's blood glucose at that point because the "circumstances [we]re

different" from those of that morning when the physician had been "managing

all of [plaintiff's] care." Higgins notified the doctor of plaintiff's lab results and

he ordered that plaintiff be transferred to the hospital immediately.

Once at the hospital, plaintiff's blood sugar was tested and it indicated her

blood sugar level was 840. Her blood urea nitrogen was still 58, her ketones

measurement was 29.7, and her bicarbonate was low at 19. Plaintiff developed

severe hyperglycemia, which was the cause of her blood sugar rising to over

800. In addition, plaintiff suffered from dehydration, ketoacidosis,

hyperosmolar nonketosis, and hypokalemia.

Once her blood sugars stabilized, plaintiff was discharged on June 19,

2016. Although plaintiff still required treatment at a long-term care facility, she

never returned to defendants' facility.

B.

Plaintiff filed her complaint on October 7, 2016, alleging negligence and

violations of the NHA and several federal regulations dealing with nursing

homes under the Omnibus Budget Reconciliation Act of 1987, Pub. L. No. 100-

203, § 4211, 101 Stat. 1330, 182, 182-221 (OBRA), codified under 42 C.F.R.

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§§ 483.1-483.480. Defendants filed their answer on February 13, 2017.

Thereafter, the parties engaged in discovery.

The original discovery end date was April 14, 2018, which was then

extended twice upon plaintiff's motions to extend the discovery end date such

that the last discovery end date was October 31, 2018. Trial was scheduled for

January 14, 2019, but in response to defendant's November 26, 2018 request, the

trial judge relisted the trial first to February 11, 2019, and then to April 8, 2019 .

More than four months after the discovery end date and after the first two

trial dates passed, defendants served plaintiff with their expert's report on March

5, 2019, without amending their answers to interrogatories or explaining the

reason for the late service as required by Rule 4:17-7. Plaintiff filed a motion

to bar defendant's expert's report and his testimony. Defendants then filed a

motion to bar plaintiff's medical expert from discussing alleged violations of the

NHA. After considering the parties' oral arguments on April 9, 2019, the trial

judge granted plaintiff's motion and reserved his decision on defendants', stating

that he would make a final determination on the extent of plaintiff's medical

expert's testimony when the expert testified and advising defendants to renew

their objection during his testimony if they felt he was "going into some area

that" they thought was "forbidden."

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 Trial began the next day with defendants filing an in limine motion to

again exclude plaintiff's expert's testimony. The following morning, the trial

judge denied the motion and allowed plaintiff's expert to testify about the alleged

violations of plaintiff's rights under the NHA.

The jury returned its verdict on April 16, 2019, awarding $125,000 on

plaintiff's negligence claim and $100,000 on her NHA claim. The following

week, defendants filed their JNOV motion, which the judge denied on May 10,

2019, after considering the parties' submissions and oral arguments.

Plaintiff thereafter filed an application for attorney's fees under the NHA.

The trial judge granted the application and entered the final judgment in the

amount of $349,687.45, which included attorney's fees and costs in the amount

of $124,687.45. This appeal followed.

II.

A.

Defendants' and the NJDA's arguments focus on the trial judge's

determinations about whether and to what extent the parties' experts could

testify at trial, if at all. We review a trial judge's decision whether to bar a party's

expert's testimony for an abuse of discretion. Townsend v. Pierre, 221 N.J. 36,

52 (2015). An "abuse of discretion only arises on demonstration of 'manifest

A-5561-18
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error or injustice,'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v.

Torres, 183 N.J. 554, 572 (2005)), and occurs when the trial judge's "decision is

made without a rational explanation, inexplicably departed from established

policies, or rested on an impermissible basis." Milne v. Goldenberg, 428 N.J.

Super. 184, 197 (App. Div. 2012) (quoting Flagg v. Essex Cnty. Prosecutor, 171

N.J. 561, 571 (2002)).

Applying that standard, we begin our review by addressing defendants'

assertion that the trial judge improperly barred their expert from testifying. The

expert report defendants served plaintiff on March 5, 2019 was from Dr. Richard

G. Stefanacci and dated December 18, 2018. On March 8, 2019, the doctor

issued a supplemental report that was also served on plaintiff.

In her motion to bar the doctor from testifying, plaintiff filed a supporting

certification from her attorney that explained the facts leading up to defendants'

service of Dr. Stefanacci's report just weeks before the third scheduled trial date.

The certification stated that plaintiff's counsel had a conversation with defense

counsel on November 20, 2018, during which plaintiff's counsel advised defense

counsel of plaintiff's offer of judgment, his consent to defendant's request for an

adjournment of the trial date, and his objection to any attempt to serve late expert

reports. Plaintiff's counsel further explained that after trial was relisted for

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February 2019, defense counsel never filed a motion to extend the discovery end

date and never provided a certification of due diligence when counsel emailed

the doctor's report. He stated that defendants' expert report was submitted four

months after the October 2018 discovery end date, and the supplemental report

was submitted only eighteen days before trial was to take place.

Defendants filed an opposing certification that did not dispute the fact that

the report was untimely or that it was served without the required explanation

for its delay. Instead, defendants argued there would be no prejudice by

allowing in Dr. Stefanacci's report and testimony. By barring the report and

testimony, defense counsel contended that defendants would have no defense

and the case would not be heard on the merits.

As noted, after considering the parties' arguments, the trial judge granted

plaintiff's motion. The judge cited to defendant's failure to comply with Rule

4:17-7 and the report being served months after the latest discovery end date

without any explanation for the delay that would justify denying plaintiff's

motion.

B.

On appeal, defendants and NJDA argue that the trial judge erred in granting

plaintiff's motion because the exclusion of Stefanacci's testimony prevented the

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case from being heard on its merits and the judge's strict reliance on the Court

Rules created an injustice, especially since its admission would not have caused

any prejudice to plaintiff. According to defendants, as trial was still a few weeks

away and their expert was available to be deposed, plaintiff had adequate time

to address the expert's report in anticipation of trial. Defendants further contend

that plaintiff's motion to bar the expert's report and testimony was untimely and

was equivalent to a summary judgment motion, which must be filed at a

minimum of thirty days prior to trial. Last, defendants contend that the judge

imposed too harsh a sanction, which is contrary to case law, and other sanctions

should have been considered. We disagree.

It is beyond cavil that a trial judge can, in the exercise of his or her

discretion, fix the date upon which expert reports must be served. Casino

Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 488 (App. Div.

2000). Moreover, equally true is that our Court Rules expressly provide for the

extension of the discovery end date to allow for the late filing of expert reports

or completion of other discovery where a motion to extend discovery has been

filed prior to the close of discovery. Under Rule 4:24-1(c), on "good cause

shown," discovery extensions are granted where there is no scheduled trial or

arbitration date and no showing of prejudice to the other party. Leitner v. Toms

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River Reg'l Schs., 392 N.J. Super. 80, 93 (App. Div. 2007); Ponden v. Ponden,

374 N.J. Super. 1, 9-11 (App. Div. 2004). Where a trial date is fixed, an

extension can be obtained upon a showing of "exceptional circumstances." R.

4:24-1(c).

Similarly, our Rules allow for an amendment to answers to interrogatories

that is necessary to identify an expert and provide his or her report. R. 4:17-7.

However, where the amendment is made after "the end of the discovery period,

as fixed by the track assignment or subsequent order," the party serving the

amendment must "certif[y] . . . that the information requiring the amendment

was not reasonably available or discoverable by the exercise of due diligence

prior to the discovery end date. In the absence of said certification, the late

amendment shall be disregarded by the court and adverse parties." Ibid.

Disregarding the late report is required without any showing of prejudice by the

opposing party. See Ponden, 374 N.J. Super. at 8-9.

Despite these requirements, defendants took absolutely no steps toward

seeking the judge's permission to allow for an extension of discovery, nor did

they make any showing of good cause or exceptional circumstances or provide

any explanation by certification or otherwise as to why their expert's report was

filed months after the close of discovery.

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 Under these circumstances, we conclude that the trial judge properly

exercised his discretion by barring defendants' expert's report and testimony.

While cases should always be determined on the merits where possible,

defendants undermined that possibility by completely disregarding the Court

Rules. Any injustice that occurred here was simply defendants' own creation.

We are not persuaded otherwise by defendants' additional argument that

plaintiff's in limine motion was barred by our holding in Cho v. Trinitas

Regional Medical Center, 443 N.J. Super. 461, 471 (App. Div. 2015) because

the motion was a dispositive motion that should have been brought under Rule

4:46-1 as a summary judgment motion. We note initially that defendants did

not raise this issue before the trial court, and an appellate court will generally

decline to address issues that the trial court did not have the opportunity to

address. See Nieder v. Royal Indem. Ins. Co., 62 N.J. 229, 234 (1973); Correa

v. Grossi, 458 N.J. Super. 571, 576 n.2 (App. Div. 2019). Even were we to

consider the argument, defendants' contention has no merit. Plaintiff's motion

was not based upon the merits of the claim, or upon defendants' expert's

qualifications or any deficiency in his report.3 Rather, it arose at the last minute

3
Effective September 1, 2020, after the trial in this matter, our rules were
amended to add Rule 4:25-8 to address motions in limine, which are "defined as

A-5561-18
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because of defendants' conduct, and it sought relief for a discovery violation.

Such motions are expressly provided for by our Court Rules. See R. 4:23-5(b)

("The court at trial may exclude the testimony of a[n] . . . expert whose report is

not furnished pursuant to [Rule] 4:17-4(a) to the party demanding the same.").

The judge's determination was supported by the Court Rules and not inconsistent

with Cho.

III.

Next, we address defendants' argument that the trial judge abused his

discretion by denying their motion to bar plaintiff's expert, Dr. John Kirby, from

testifying about violations of the NHA. Again, we find no abuse of discretion.

A.

During discovery, plaintiff served defendants with Dr. Kirby's report.

Although the report primarily focused upon defendants' staff's failure to

properly monitor plaintiff's sugar level and to timely contact a physician and get

her to a hospital sooner, it also included a discussion of the relevant federal and

an application returnable at trial for a ruling regarding the conduct of the trial,
including admissibility of evidence, which motion, if granted, would not have a
dispositive impact on a litigant's case." By the Rule's express terms, in limine
motions do not include "an application to bar an expert's testimony in a matter
in which such testimony is required as a matter of law to sustain a party's burden
of proof."
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state statutes and regulations. As part of that discussion, the report described

and quoted from N.J.S.A. 30:13-5(j) of the NHA as

specif[ying] a patient's "right to a safe and decent living
environment and considerate and respectful care that
recognizes the dignity and individuality of the resident,
including the right to expect and receive appropriate
assessment, management and treatment of pain as an
integral component of that person's care consistent with
sound nursing and medical practices."

The report also stated that this section of the NHA "required that nursing

facilities recognize the dignity of residents. The failure of [defendants] to

monitor [plaintiff's] blood sugar appropriately was a failure to provide a safe

and decent living environment that recognized and upheld [plaintiff's] dignity

and individuality."

In their motion to bar Dr. Kirby from testifying, defendants argued that

Dr. Kirby could not testify about whether defendants' actions were a violation

of plaintiff's dignity under the NHA in N.J.S.A. 30:13-5(j).

The trial judge initially held that he was "going to permit Dr. Kirby to say

that not checking the blood sugars over a period of [twenty] hours . . . did not

afford the dignity that the statute requires." Relying on Ptaszynski v. Atlantic

Health Sys., 440 N.J. Super. 24 (App. Div. 2015), defendants later argued that

the testimony was not allowed as an "expert can't give extra weight to a statute

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by testifying as to what dignity is," as that would be usurping the role of the

judge to give instructions on law to the jury. The judge found that Ptaszynski

only prohibited an expert from providing an opinion on the meaning of

"dignity," as also conceded by plaintiff, who agreed that the expert could not

give definitions of words in a statute, but the expert was allowed to testify as to

whether defendants' actions violated the statute.

Before ruling with finality, the judge informed defendants that if they

could find any case law that focused specifically on this issue, he would consider

it the next morning. Although there is no record that defendants ever produced

any case law, the next morning, defendants requested a Rule 104 hearing to

determine the extent of Dr. Kirby's testimony, which the judge would not allow

as it was too late.

The judge further indicated that he was inclined to allow Dr. Kirby to

testify about whether defendants' actions violated the statute but would consider

any objections as Dr. Kirby's testimony went on. Defendants made a "standing

objection in terms of [Dr. Kirby's] testimony . . . pursuant to [their] motions in

limine and also [their] request for a Rule 104 hearing."

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 During his testimony, Dr. Kirby,4 who the judge determined was qualified

as an expert in internal medicine and geriatrics and was called as an expert as to

defendants' negligence and violation of the statutes, explained that he was

familiar with federal and state statutes and regulations, including the NHA, as

he "need[ed] to know what sort of the broad brush standard of care is [as] a

physician's work and a nurse's work will fall under those regulations." After

testifying in detail as to why he believed that defendants' staff deviated from the

applicable standard of care, which caused harm to plaintiff, Dr. Kirby addressed

the NHA and stated that plaintiff's "rights as a nursing home resident were

violated," specifically "her rights to a safe and decent living environment," "her

right to care that recognized her dignity," and "her right to care that recognized

her individuality." On cross-examination, when defense counsel asked the

doctor about the meaning of "dignity" under the NHA, plaintiff's attorney

objected. The trial judge overruled the objection, but defense counsel decided

not to pursue an answer to the question.

4
Plaintiff also presented testimony from a different expert, Nurse White, as to
the nurses' breach of the applicable standard of care. The trial judge ruled that
the nurse expert could testify as to the negligence claim, but not as to plaintiff's
violation of NHA rights claim.

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 During his charge to the jury, the judge instructed the jury as to their right

to accept or reject any expert's opinions and that it had to accept the judge's

instructions as to the law. The trial judge instructed the jury as to the NHA as

follows:5

The plaintiff . . . asserts that the defendant
violated NJSA 30:13-5(j) which states, "Every resident
of a nursing home shall have the right to a safe and
decent living environment and considerate and
respectful care that recognizes the dignity and
individuality of the resident."

If you find that the defendant has violated any of
these statutes, you have found a violation of the New
Jersey Nursing Home Responsibilities and Residents
Rights Act and a violation of Dorothy L. Moody's
rights. You are not, however, simply to duplicate
damages for the negligence claims.

Evidence of violations. The plaintiff alleges that
the defendant violated various laws under the federal
regulations and the New Jersey Nursing Home
Responsibilities and Residents Rights Act. The
plaintiff also alleges that the defendant violated NJSA
30:13-5, Nursing Home Responsibilities and Rights of
Residents, including paragraph j of that statute which
states that nursing home residents "have the right to a
safe and decent living environment and considerate and

5
Defendants insisted that specific language from Ptaszynski be added to the
charge. The judge granted defendants' request, modifying the charge and verdict
sheet to include the language, "You, the jury, cannot award the plaintiff damages
for the defendant's violations of the Nursing Home Act and its negligence based
upon the same injuries or harm to [plaintiff]."
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 respectful care that recognizes the dignity and
individuality of the resident."

In support of the claims of violation of rights, the
plaintiff alleges violation of federal law under the code
of federal regulations. One federal regulation, for
example, that the plaintiff has claimed was violated is
that of 42 CFR Section 483.25, Quality of Care. That
regulation states that, "Each resident[] must receive and
the facility might [sic] provide the necessary care and
services to attain or maintain the highest practicable
physical, mental and psychosocial well-being
consistent with the resident's comprehensive
assessment and plan of care."

The statutes and regulations in question set up
standards of conduct for nursing homes. If you find that
the defendant has violated any nursing home law which
caused harm to Ms. Moody, the defendant violated the
plaintiff's nursing home rights.

As to damages, the judge instructed that if the jury found a violation under

the NHA, they were not to "simply . . . duplicate damages for the negligence

claims." He explained that the jury could not "award . . . plaintiff damages

for . . . defendant[s'] violations of the [NHA] and its negligence based upon the

same injuries or harm to [plaintiff]." Consistent with that instruction and

defendants' request, the verdict sheet separated the negligence claim from the

NHA claim. The jury found defendants were negligent and violated the NHA,

and made separate awards for each claim, in different amounts.

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 B.

On appeal, relying on Ptaszynski, defendants contend that it was improper

for the trial judge to allow "Dr. Kirby to provide opinion testimony interpreting

a pertinent section of the NHA," after they objected to the testimony.

Specifically, defendants argue that plaintiff's expert should not have been

allowed to testify about "dignity," "safe and decent living environment," and

"individuality." They contend that Dr. Kirby usurped the responsibility of the

judge to instruct the jury on the law by discussing the NHA. We disagree.

The NHA "was enacted in 1976 to declare 'a bill of rights' for nursing

home residents and define the 'responsibilities' of nursing homes." Ptaszynski,

440 N.J. Super. at 32. The patient's "rights" are enumerated in N.J.S.A. 30:13-

5(a) to (n). The nursing home's "responsibilities" are enumerated in N.J.S.A.

30:13-3(a) to (j). Under N.J.S.A. 30:13-8(a), a person can only bring an action

for violation of one of the enumerated residents' "rights," set forth in N.J.S.A.

30:13-5. Ptaszynski, 440 N.J. Super. at 33-36.

While there are several rights enumerated under the act, in relevant part,

N.J.S.A. 30:13-5(j) specifically states:

Every resident of a nursing home shall . . . [h]ave the
right to a safe and decent living environment and
considerate and respectful care that recognizes the
dignity and individuality of the resident, including the

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 right to expect and receive appropriate assessment,
management and treatment of pain as an integral
component of that person's care consistent with sound
nursing and medical practices.

In discussing these rights in Ptaszynski, we determined that expert

testimony would generally not be allowed on domestic law. 440 N.J. Super. at

38. For that reason, we found the trial judge "erred by permitting [the expert]

to testify extensively as an expert in 'nursing law'" and "to provide her opinion

of the meaning of the word 'dignity' in N.J.S.A. 30:13-5(j)" without the judge

"provid[ing] any guidance to the jury," other than telling "the jury that it was

not bound by the testimony of an expert, . . . [and] merely read[ing] N.J.S.A.

30:13-5(j) to the jurors." Id. at 37. By doing so, we found "the jury was left

with only [the expert's] interpretation of the statute to guide its deliberations."

Ibid.

We also observed that "the trial judge has the exclusive responsibility to

instruct the jury on the law to be applied to avoid the 'danger . . . that the jury

may think that the expert in the particular branch of the law knows more than

the judge[.]'" Ibid. (alteration and omission in original) (quoting State v.

Grimes, 235 N.J. Super. 75, 80 (App. Div. 1989)). However, we made clear that

while the expert was allowed to cite to specific laws "as support for her opinions

on the applicable standard of care," she was not able to testify "extensively as

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an expert in 'nursing law.'" Ibid. To that end, we held "[t]he judge . . . erred

because he permitted [the expert] to provide her opinion of the meaning of the

word 'dignity' in N.J.S.A. 30:13-5(j)." Ibid. We also concluded that the judge

failed to properly instruct the jury as to their being required to "allocate[] the

damages to the separate claims, based on the different theories of liability being

asserted." Id. at 40.

Here, the testimony of Dr. Kirby involving the NHA did not contravene

our holding in Ptaszynski. Dr. Kirby was not qualified as an expert in nursing

home law or any law. Rather he was questioned extensively about his

professional experience and familiarity with nursing home procedures and was

found to be "qualif[ied] as an expert in internal medicine and geriatrics."

Moreover, he never defined "dignity" or any other words in the NHA.

Dr. Kirby only confirmed that he believed plaintiff's rights under the NHA

to "a safe and decent living environment," "to care that recognized her dignity,"

and her "right to care that recognized her individuality" were violated. It was

defense counsel who attempted to question Dr. Kirby on the meaning of

"dignity," but after the trial judge overruled plaintiff's objection to the question,

defense counsel thought better not to ask. There were no definitions given by

the doctor, as there were in Ptaszynski, that could have misled the jurors from

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applying the plain meaning of the act's language as instructed by the trial judge.

And, the jury was properly instructed that they could not award plaintiff

damages for defendants' violation of the NHA and its negligence based on the

same injuries, unlike in Ptaszynski. Permitting Dr. Kirby to testify as he did

was not an abuse of discretion.

IV.

We turn to defendants' argument that the judge erred in allowing Dr. Kirby

to testify beyond his expertise. According to defendants and the NJDA, as a

doctor, Dr. Kirby was not in a position to discuss the expertise, training of

nurses, and the nursing standards of care. They contend that this contradicted

the judge's prior ruling that barred Dr. Kirby from testifying about the nurses'

standards of care. We disagree.

A.

While testifying to his qualifications at trial, Dr. Kirby explained that not

only was he a physician, but he also specialized in geriatric medicine and had

experience in working "in long-term care facilities [where he took] care of

patients . . . who [were] undergoing rehabilitation after an acute illness." During

his career, he had privileges at three different nursing homes and was a former

medical director at two nursing homes. Dr. Kirby testified that seventy percent

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of his "patients [fell] into the geriatric age category, age [sixty-five] and older."

He indicated that he had "been working intimately with nurses . . . for over

[thirty] years." He also described his familiarity with federal and state laws and

regulations that apply to nursing homes that was based upon his work in nursing

homes being subject to those standards. However, he never had an

"administration license" for nursing, he was not part of any nursing professional

association, and he never worked as a nurse.

After being qualified by the judge, Dr. Kirby testified in detail about

plaintiff's medical conditions, the test results, and her need for specific

treatment. According to Dr. Kirby, if the nurses would have rechecked

plaintiff's blood sugar anywhere from one to four hours after the original check,

they would have been aware of plaintiff's rising blood sugar and would have

been able to treat it with further insulin, without having to go to the hospital.

Dr. Kirby also explained that no physician's order would be needed to

administer a blood sugar test. He described a sternal rub as a maneuver that was

"very, very painful" and plaintiff's failure to respond to it demonstrated how

serious her condition was at the time. Dr. Kirby found that plaintiff's lethargy

and her inability to eat or urinate from the morning to early afternoon of June 9,

2016, was consistent with dehydration due to high blood sugar. He stated that

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it made no sense why the nurses would have given "her ginger ale and . . . ice

cream" and analogized the act to "taking gasoline and throwing it on a fire." In

general, if sugar-free drinks and food were given, Dr. Kirby explained that most

nurses would note that in their documentation.

He further explained that plaintiff's high blood urea nitrogen verified that

plaintiff was dehydrated. It also did not make sense to him that the blood sugar

test conducted by the nurses on June 9, 2016, would only be 76, when the lab

results stated 672 and he observed that this likely "indicate[d] a malfunction of

the glucose meter." The ketones that tests identified in plaintiff's blood when

she was in the hospital were a further consequence of high blood sugar.

On cross-examination, Dr. Kirby stated it was an impossibility for

plaintiff's blood sugar to go from 672 to 76 and back up to 840. Even though a

physician's note did not tell the nurses to continuously check plaintiff's blood

sugar, he stated that most nurses he worked with would logically conduct a blood

sugar test with plaintiff's high numbers.

B.

"To prove medical malpractice, 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.'"

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Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (quoting Gardner v. Pawliw, 150

N.J. 359, 375 (1997)). Where the claim is against a nurse,

in the hierarchal setting of a multi-disciplinary medical
team providing care to a [nursing home] patient, . . .
[t]o assess a deviation in the standard of care in such a
setting, one must know the procedures, protocols, and
scope of duties of the licensed professional nurses in
such circumstances. An expert is required for that
explanation. Such information is outside of the realm
of common knowledge.

[Cowley v. Virtua Health Sys., 242 N.J. 1, 20 (2020).]

As to nursing homes, the NHA established standards of care for the

treatment of such facilities' residents. Estate of Ruszala ex rel. Mizerak v.

Brookdale Living Cmtys., Inc., 415 N.J. Super. 272, 293 (App. Div. 2010). The

breach of those standards also requires expert explanation as the subject matter

is beyond the "ken of the average juror." Townsend, 221 N.J. at 55 (quoting

Polzo v. Cnty. of Essex, 196 N.J. 569, 582 (2008)).

A witness qualifies "as an expert by knowledge, skill, experience, training,

or education." N.J.R.E. 702. "[E]xpert testimony must meet three basic

requirements" for admissibility: "(1) the intended testimony must concern a

subject matter that is beyond the ken of the average juror; (2) the field testified

to must be at a state of the art that an expert's testimony could be sufficiently

reliable; and (3) the witness must have sufficient expertise to offer the intended

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testimony." Polzo, 196 N.J. at 582 (quoting State v. Townsend, 186 N.J. 473,

491 (2006)). A "trial court has discretion in determining the sufficiency of the

expert's qualifications and [its decision] will be reviewed only for manifest error

and injustice." Rodriguez v. Wal-Mart Stores, Inc., 237 N.J. 36, 68 (2019)

(quoting Torres, 183 N.J. at 572).

Here, plaintiff produced two experts: Nurse White as to the nurses'

standard of care, and Dr. Kirby as to the nursing home's standard under the NHA.

Moreover, the trial judge specifically ruled that neither could testify as to the

other's profession's standard. As the judge stated, "nurses testify about nurses"

and "doctors testify about doctors." Dr. Kirby never testified to the expertise,

training of nurses, or the nursing standards of care. However, because both

experts by necessity had to address the treatment of plaintiff while at the nursing

home and by definition, under the nurses' care, there was a natural overlap

between their testimonies when addressing why they believed that the nurses

and the nursing home violated their respective standards of care. The

discussions about plaintiff's treatment in that context did not breach the required

separation of their testimony about their specific areas of expertise.

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 V.

Finally, we address defendants' contention that the trial judge erred by

denying their motion for JNOV. However, as noted we cannot review the

judge's order because defendants did not include in their notice of appeal the

judge's May 10, 2019 order denying their motion, nor did they mention it in their

appellate case information statement.6 They also never provided us with a

transcript from oral argument or with the judge's decision.

Under these circumstances we are constrained to not consider their appeal

from that order. See R. 2:5-1(e)(3)(i) (stating that a notice of appeal "shall

designate the judgment, decision, action or rule, or part thereof appealed from");

Fusco v. Bd. of Educ., 349 N.J. Super. 455, 461-62 (App. Div. 2002) (stating

that appellate review pertains only to judgments or orders specified in the notice

of appeal); Sikes v. Twp. of Rockaway, 269 N.J. Super. 463, 465-66 (App. Div.)

(holding that an issue raised in a brief but not designated in the notice of appeal

was not properly before the court), aff'd o.b., 138 N.J. 41 (1994). See also

Silviera-Francisco v. Bd. of Educ. of Elizabeth, 224 N.J. 126, 142 (2016)

6
On January 31, 2020, our court clerk wrote to defense counsel advising of this
deficiency. Defendants took no action in response to the letter.
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(stating an order "clearly identified [in a] Case Information Statement submitted

with [a] Notice of Appeal" is deemed properly before the court for review).

Affirmed.

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