CAROLYN SCHWARTZ VS. KESSLER INSTITUTE FOR REHABILITATION (L-2311-16, 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NOT FOR PUBLICATION WITHOUT THE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-1794-19

CAROLYN SCHWARTZ,

Plaintiff-Appellant,

v.

KESSLER INSTITUTE FOR
REHABILITATION and
SELECT MEDICAL
CORPORATION,

Defendants-Respondents.
__________________________

Argued June 8, 2021 – Decided June 28, 2021

Before Judges Haas and Natali.

On appeal from the Superior Court of New Jersey, Law
Division, Essex County, Docket No. L-2311-16.

Benjamin M. Del Vento, Jr., argued the cause for
appellant.

Walter F. Kawalec, III, argued the cause for
respondents (Marshall Dennehey Warner Coleman &
Goggin, attorneys; Walter F. Kawalec, III and Ryan T.
Gannon, on the brief).
PER CURIAM

In this appeal, plaintiff Carolyn Schwartz challenges a September 13,

2019 Law Division order dismissing her claims against defendants Kessler

Institute for Rehabilitation and Select Medical Corporation. We affirm.

I.

We begin by summarizing the facts submitted by the parties on defendants'

summary judgment motion, viewed in a light most favorable to plaintiff as the

non-moving party. Brill v. Guardian Life Ins., 142 N.J. 520, 540 (1995).

Plaintiff was a patient at defendants' facility in Chester between April 3, 2014

and April 17, 2014, while recovering from right total knee replacement surgery.

During her stay, plaintiff used either a wheelchair or walker. On or around April

4, 2014, Lisa Knight, a rehabilitation assistant, was assisting plaintiff from her

wheelchair to the toilet, when plaintiff claims Knight improperly pushed her

causing her knee to buckle, resulting in a tear to her patellar tendon.

Plaintiff filed a seven-count complaint, which she later amended, alleging

defendants violated their obligations under the Nursing Home Act, N.J.S.A.

30:13-1 to -19, and corresponding state and federal rules and regulations. She

also claimed defendants were negligent during and after the April 4, 2014

incident, and that they breached their contract with her to receive "quality care"

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in compliance with her statutory rights as a patient. She specifically alleged that

defendants had a duty to exercise reasonable care, "the degree of care being in

proportion to [plaintiff's] known physical and mental ailments" and that

"[d]efendants were bound to exercise that degree of care, skill[,] and diligence

used by . . . nursing homes . . . in the community."

Plaintiff testified at deposition that on April 4, 2014, Knight and a second

unnamed rehabilitation assistant were transferring her from her wheelchair to

the toilet. She stated that after she stood up from her wheelchair without

assistance, Knight pushed her from behind, after which she heard a "large pop"

in her knee and felt a "stabbing pain." Because plaintiff's legs were unstable,

Knight grabbed her arm, which prevented plaintiff from falling to the ground.

Plaintiff did not recall the second aide touching her at any point during

the incident. She "reviewed [the incident] over in [her] mind" and testified she

believed Knight's push was "intentional." However, plaintiff's daughter

provided deposition testimony stating that plaintiff called her after the incident

and told her "she slipped, but [that] she didn't actually fall on the floor."

Defendants' patient care notes confirm the incident, and that plaintiff heard a

popping noise in her knee.

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 Knight testified that she was employed by defendants as a rehabilitation

assistant for approximately a year and a half at the time of the incident. Prior to

her employment, Knight had never worked in the healthcare industry. She

testified her position did not require any specific training or certification beyond

a high school diploma, but that she completed in-person and online training

courses throughout the year.

Knight explained her training included instructions on the appropriate

levels of care when transferring patients from a mobility device, such as a

wheelchair, to a toilet. The first level of care required Knight to only provide

eye contact to "guard[]" the patient. Knight called the second level "min[imal]

assist," and applied when patients "basically [move] themselves and [she] just

[provides] a little contact" such as "holding their arm." Under the third level ,

which she characterized as "moderate" assistance, Knight would provide a "bit

more hands-on" aid. The highest level, or "[m]aximum assistance," obligated

Knight to use "[a]ll [her] strength" to ensure a patient did not fall during the

transfer.

In assessing the necessary level of assistance, Knight obtained

information from an attending nurse, and data contained on a patient's coded

wristband, residence information boards, or their mobility device. Knight stated

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she was "[v]ery active" in performing these types of transfers and never recalled

any difficulty with any patient during a transfer. She also did not recall plaintiff

or the incident specifically.

Plaintiff submitted an affidavit of merit 1 dated August 25, 2016 from Rose

Marie Valentine, R.N., L.N.H.A., a registered nurse and licensed nursing home

administrator. Valentine opined there was a reasonable probability that the

"care, skill, or knowledge exercised or exhibited in the treatment, practice, or

work" of defendants towards plaintiff fell outside professional treatment

standards. She did not, however, address whether Knight's assistance in

transferring plaintiff deviated from accepted standards of care.

Valentine also submitted an expert report and noted plaintiff's

rehabilitation progress "declined" after the transfer incident and that defendants

and their employees deviated from acceptable standards of nursing care by

failing to properly assess and alleviate plaintiff's pain after her knee "pop." An

1
N.J.S.A. 2A:53A-27 states that a plaintiff pursuing a claim for injuries
"resulting from an alleged act of malpractice or negligence by a licensed person
in his profession or occupation," must provide an affidavit of merit by an
appropriately-licensed person who attests under oath "that there exists a
reasonable probability that the care, skill or knowledge exercised" by the
defendant deviated from accepted professional standards. Neither party has
asserted that Knight was a licensed professional or that plaintiff failed to comply
with N.J.S.A. 2A:53A-27.
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expert report submitted by defendants disputed Valentine's conclusion and

determined defendants' employees did not deviate from the applicable standards

of care in their treatment of plaintiff.

Defendants thereafter moved for summary judgment on plaintiff's breach

of contract and claims for violations of their nursing home obligations. In a

January 20, 2017 order, Judge Thomas R. Vena granted defendants' application.

Judge Vena further granted defendants summary judgment in a June 23, 2017

order dismissing with prejudice "all claims of negligence or vicarious liability

based on the actions of [any] physician[] or physical therapist[]."2 As a result,

only plaintiff's claims for negligence and vicarious liability regarding the April

4, 2014 incident remained.

Plaintiff also submitted an expert report prepared by Burgess Lee Berlin,

M.D., P.A., in which he concluded plaintiff tore her patellar tendon as a

consequence of the April 4, 2014 incident, resulting in subsequent surgeries,

chronic pain, and swelling. David Bullek, M.D., an expert for defendant, agreed

that plaintiff tore her patellar tendon during the April 4, 2014 incident, but

concluded "[t]here [was] no evidence [that] a forceful event by the aide . . .

2
Plaintiff does not challenge the January 20, 2017 or June 23, 2017 orders on
appeal.
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contributed" to the rupture, other than plaintiff's deposition testimony. Dr.

Bullek also concluded plaintiff's care at defendants' facility was "appropriate

and with no violation of the standard of care."

After engaging in pretrial discovery, defendants moved for summary

judgment to dismiss plaintiff's remaining vicarious liability-based negligence

claims involving Knight's actions because "plaintiff d[id] not have expert

testimony to submit to the jury that the transfer . . . was negligently performed

causing the patella tendon rupture." Defendants alternatively argued they could

not be vicariously liable for any alleged intentional act performed by Knight.

In a September 13, 2019 order, Judge Vena granted defendants'

application and dismissed plaintiff's remaining claims. In his corresponding oral

decision, Judge Vena concluded plaintiff could not establish a negligence claim

"without expert testimony as to what [the applicable] duty of care was and how

it was breached." The judge acknowledged defendants had procedures on how

to correctly transfer a patient, but without an expert to address any violation of

the appropriate standard of care, it would be "impossible" for the jury to address

that critical issue.

Plaintiff filed a motion for reconsideration, which Judge Vena denied in a

November 22, 2019 order. In his accompanying oral decision, the judge

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reasoned nothing presented in plaintiff's motion "convince[d him] that the

determination the [c]ourt made on September 13[], 2019, should be changed."

This appeal followed.

II.

Our review of a ruling on summary judgment is de novo, applying the

same legal standard as the trial court. Townsend v. Pierre, 221 N.J. 36, 59

(2015) (citations omitted). Summary judgment must be granted if the court

determines "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." R.

4:46-2(c). The court must "consider whether the competent evidential materials

presented, when viewed in the light most favorable to the non-moving party, are

sufficient to permit a rational factfinder to resolve the alleged disputed issue in

favor of the non-moving party." Brill, 142 N.J. at 540. We accord no special

deference to the trial judge's conclusions on issues of law. Nicholas v. Mynster,

213 N.J. 463, 478 (2013) (citing Zabilowicz v. Kelsey, 200 N.J. 507, 512-13

(2009)).

III.

Plaintiff argues Judge Vena erred in granting defendants summary

judgment because the applicable standard of care Knight owed plaintiff, as a

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non-licensed, non-professional, is within the common knowledge of jurors and

does not require an expert. In support, plaintiff relies primarily on Nowacki v.

Cmty. Med. Ctr., 279 N.J. Super. 276, 292 (App. Div. 1995), and asserts

Knight's testimony regarding defendants' training, and her description of the

varying degrees of support rehabilitation assistants provide during transfers,

provided the necessary context to establish Knight's duty of care and breach.

We disagree.

To establish negligence, a plaintiff must prove: "(1) a duty of care, (2) a

breach of that duty, (3) actual and proximate causation, and (4) damages." Davis

v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014) (quoting Jersey Cent.

Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594 (2013)). "[P]laintiff

bears the burden of establishing those elements 'by some competent proof.'"

Townsend, 221 N.J. at 51 (quoting Davis, 219 N.J. at 406).

"In most negligence cases, the plaintiff is not required to establish the

applicable standard of care." Davis, 219 N.J. at 406 (citing Sanzari v. Rosenfeld,

34 N.J. 128, 134 (1961)). In those instances, "[i]t is sufficient for [the] plaintiff

to show what the defendant did and what the circumstances were. The

applicable standard of conduct is then supplied by the jury[,] which is competent

to determine what precautions a reasonably prudent man in the position of the

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defendant would have taken." Id. 406-07 (alterations in original) (citation

omitted). "Such cases involve facts about which 'a layperson's common

knowledge is sufficient to permit a jury to find that the duty of care has been

breached without the aid of an expert's opinion.'" Ibid. (quoting Giantonnio v.

Taccard, 291 N.J. Super. 31, 43 (App. Div. 1996)).

"In some cases, however, the 'jury is not competent to supply the standard

by which to measure the defendant's conduct,' and the plaintiff must instead

'establish the requisite standard of care and [the defendant's] deviation from that

standard' by 'present[ing] reliable expert testimony on the subject.'" Ibid.

(alterations in original) (citations omitted); see also N.J.R.E. 702 (permitting

expert testimony "[i]f scientific, technical, or other specialized knowledge will

assist the trier of fact to understand the evidence or to determine a fact in issue").

The Supreme Court has explained that, "when deciding whether expert

testimony is necessary, a court properly considers 'whether 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 the [defendant] was reasonable.'"

Davis, 219 N.J. at 407 (alteration in original) (quoting Butler v. Acme Mkts.,

Inc., 89 N.J. 270, 283 (1982)); see also Hubbard v. Reed, 168 N.J. 387, 394

(2001) (holding expert testimony is not needed under the affidavit of merit

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statute when the jury's "common knowledge as lay persons is sufficient to enable

them, using ordinary understanding and experience, to determine a defendant's

negligence" (quoting Est. of Chin v. St. Barnabas Med. Ctr., 160 N.J. 454, 469

(1999))). In cases where "the factfinder would not be expected to have sufficient

knowledge or experience," expert testimony is needed because the jury "would

have to speculate without the aid of expert testimony." Torres v. Schripps, Inc.,

342 N.J. Super. 419, 430 (App. Div. 2001) (citation omitted).

Our courts have previously found expert testimony is required to establish

an accepted standard of care with regard to: "ordinary dental or medical

malpractice," Sanzari, 34 N.J. at 134-35; "the responsibilities and functions of

real-estate brokers with respect to open-house tours," Hopkins v. Fox & Lazo

Realtors, 132 N.J. 426, 444 (1993); "the safe conduct of a funeral procession,"

Giantonnio, 291 N.J. Super. at 44; the "conduct of those teaching karate,"

Fantini v. Alexander, 172 N.J. Super. 105, 108 (App. Div. 1980); "applying

pertinent skydiving guidelines," Dare v. Freefall Adventures, Inc., 349 N.J.

Super. 205, 215 (App. Div. 2002); the "repair and inspection" of automobile

engines, Ford Motor Credit Co. v. Mendola, 427 N.J. Super. 226, 237 (App. Div.

2012); "the inspection of fire sprinklers by qualified contractors," Davis, 219

N.J. at 408; and the duties of a licensed nurse when "a patient remove[s a

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medical] tube herself and refuse[s] replacement," Cowley v. Virtua Health Sys.,

242 N.J. 1, 9 (2020).

Conversely, our courts have found expert testimony is not required to

establish the appropriate standard of care for explaining: "the dangers that might

follow when a lit cigarette is thrown into a pile of papers or other flammable

material," Scully v. Fitzgerald, 179 N.J. 114, 127 (2004); whether an attorney in

a malpractice suit should have "briefed an issue," "report[ed] . . . settlement

discussion[s] accurately," or "recommend[ed] a disposition of the case" after

settlement discussions, Sommers v. McKinney, 287 N.J. Super. 1, 12 (App. Div.

1996); or the "risk involved in [a chiropractor] repeating the further neck

adjustment[s]" after the chiropractor knew the patient became

uncharacteristically dizzy and unwell after treatment, Klimko v. Rose, 84 N.J.

496, 505 (1980).

In Nowacki, the plaintiff filed negligence claims against a hospital and its

employee therapists after the plaintiff sustained injuries after she fell from a

radiation treatment table. 279 N.J. Super. at 279-80. The plaintiff alleged that

while she was trying to lift herself on the table, the hospital's employees stood

nearby and there was "some question as to whether [one employee] had her hand

on [the] plaintiff's back." Id. at 281. The plaintiff alleged the employees "failed

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to secure the stool or table with a handle bar or grip bar, failed to assist [the]

plaintiff 'in climbing on the table,' failed to maintain the radiation room in a

reasonably safe condition, and failed to attend to '[the] plaintiff's special needs.'"

Id. at 292. After the jury returned a verdict finding the hospital and employees

liable, the defendants asserted in an unsuccessful motion for new trial that the

plaintiff failed to provide evidence of the applicable standard of care. Id. at 279,

291.

We affirmed and noted that in certain circumstances the standard of care

"would be clear to a juror of average experience and intelligence, so that expert

testimony on the standard of care is not required." Id. at 291 (citations omitted).

We concluded the issue of "whether restraints or special supervision should have

been provided [in a hospital setting] to prevent an accident" was a matter of

"common sense" and "simple negligence," and did not require an expert to

explain the standard of care. Id. at 292 (citation omitted).

As noted, Judge Vena determined the applicable standard of care was not

within the ordinary ken of typical jurors, and plaintiff therefore, required an

expert report on liability. We agree, as jurors of "common judgment and

experience," Davis, 219 N.J. at 407, would be unacquainted with the appropriate

protocols and methods of transferring disabled patients in a rehabilitation

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setting. Such transfers, as Knight stated, are not simple or straightforward

events.

Jurors would be unfamiliar with the type and extent of training

rehabilitation assistants receive, or the factors necessary to correctly evaluate

the amount of assistance required. As Knight described, such an assessment

required her to consider multiple factors including information provided by the

attending nurse, data contained on a patient's coded wristband, and the type of

mobility device used by a patient. We conclude in such circumstances an expert

was necessary to explain whether the transfer and force used by Knight, and as

described by plaintiff, deviated from the applicable standard of care.

Unlike the therapists in Nowacki, 279 N.J. Super. at 292, Knight's alleged

negligence stems from her duties as a rehabilitation assistant and whether she

performed duties consistent with the applicable standard of care of similar

professionals. Indeed, plaintiff specifically alleged in her complaint that

defendants' duty of care was defined "by . . . nursing homes . . . in the

community." The plaintiff in Nowacki, however, asserted the employees failed

to fulfill their ordinary duties in securing the table, or assisting her, not that they

violated their unique job functions and responsibilities.

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 At bottom, we are satisfied that a determination to the appropriate

standard of care, and any deviation, related to Knight's transfer of plaintiff,

involved an "assessment of a myriad of factors" that are "beyond the ken of the

average juror." Giantonnio, 291 N.J. Super. at 44. We agree with Judge Vena

that Knight's duties were not a matter of "common sense," and that a jury could

not determine those obligations without the assistance of an expert. Nowacki,

279 N.J. Super. at 292. Of the expert reports that plaintiff produced in the

summary judgment motion record, plaintiff does not contend that Valentine and

Dr. Berlin offered opinions pertaining to a rehabilitation assistant's standard of

care during a transfer of a disabled patient.

IV.

As we have concluded the court correctly dismissed the matter based on

plaintiff's failure to support her negligence claim with the necessary expert

opinion, we need not consider whether Knight's alleged intentional conduct was

outside the scope of her employment and precluded defendants' vicarious

liability. See Carter v. Reynolds, 175 N.J. 402, 408-09 (2003) (noting the

purpose of holding employers vicariously liable for the torts of their employees

is that "one who expects to derive a benefit or advantage from an act performed

on his behalf by another must answer for any injury that a third person may

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sustain from it"). To the extent we have not addressed any of plaintiff's

remaining arguments, it is because we have determined that they are without

sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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