dissenting.
In Evers v. Dollinger, 95 N.J. 399, 471 A.2d 405 (1984), we adopted the substantial-factor test for proximate causation in medical malpractice cases involving a plaintiff’s preexistent medical condition. We further clarified in Scafidi v. Seiler, 119 N.J. 93, 574 A.2d 398 (1990), that the test requires a two-pronged analysis in order for a plaintiff to recover for the increased risk caused by a defendant’s negligence. First, a plaintiff must prove “as a matter of reasonable medical probability, that the deviation is within the class, i.e., that it increased the risk of harm from the preexistent condition.” Id. at 109, 574 A.2d 398. Assuming a plaintiff demonstrates that a defendant caused the increased risk, the plaintiff next must prove that “the deviation, in the context of the preexistent condition, was sufficiently significant in relation to the eventual harm to satisfy the requirement of proximate cause.” Ibid. Once a plaintiff satisfies both prongs, then the jury may apportion the damages caused by the increased risk, in effect distinguishing between the damages from the preexistent condi*40tion and those caused by the defendant’s negligence. Id. at 110, 574 A.2d 398. See also Reynolds v. Gonzalez, 172 N.J. 266, 286, 798 A.2d 67 (2002) (reinforcing soundness of two-part substantial factor test that includes “need for proof of causal connection between defendant’s negligence and the resultant harm”). In that apportionment of damages, “a plaintiffs recovery [should] be limited to the value of the lost chance of avoiding the harm.” Scafidi, supra, 119 N.J. at 111, 574 A.2d 398 (emphasis added).
The majority’s recitation of the proofs in this case draws the reader to the seemingly ineluctable conclusion that plaintiffs met their proof requirements under that two-pronged test for causation. Therein lies my disagreement. Like the two courts that considered this matter below, I cannot help but conclude that plaintiffs failed to establish the causation requirements for this claim at the time when, pursuant to the strict application of our court rules, plaintiffs’ proofs must be judged.
The plaintiffs provided the testimony of Dr. Morrow (their only expert) that the treatment provided by Dr. Rieca (defendant) deviated from the requisite standard of care in failing to diagnose Stephen Verdicchio’s bone cancer. Dr. Morrow testified that in January 1994 Dr. Rieca should have examined further Stephen’s extremities in an attempt to discover any abnormalities because “it is difficult for anyone, and in particular a child, to tell you precisely where the discomfort is coming from. And they will give you usually a direction rather than a particular spot.” Dr. Morrow, a family practitioner, not an oncologist, further testified that he did not know within a reasonable degree of medical probability when Stephen’s cancer had metastasized. He stated with confidence though, from his review of the medical records and laboratory studies, that the mass in Stephen’s thigh was present in January 1994. Later in cross-examination he estimated that Stephen probably first developed the cancer, osteosarcoma, in the Fall of 1993 because “the usual time to lung metastasis [is] 12 to 18 months” and because pain, which is the “cardinal manifestation of osteosrcoma” was initiated at about that time. Dr. Morrow *41expressed the view that if the cancer had not metastasized by January 1994 then Stephen had an eighty-five percent chance of survival over a five-year period. When questioned further, Dr. Morrow testified that if Stephen’s metastasized cancer had been diagnosed in May 1994, then he would have had at that point a twenty to thirty percent chance of survival over a five-year period.
At the conclusion of plaintiffs’ case, defendant moved for an involuntary dismissal of the wrongful death and survivorship claims. Defendant noted that the cause of death, within a year of diagnosis, was metastatic lung cancer that had been diagnosed in mid-July, 1994, and was extensive at that time. The earliest alleged negligence by defendant occurred at the end of January, 1994. Defendant asserted that, in their case in chief, plaintiffs did not produce expert testimony to establish that Stephen did not have metastatic lung cancer in January or February, 1994. There was no opinion offered on his chance of survival if there was evidence of cancer in his lungs at that time. Nor was there any expert testimony that the hospitalizations, operative procedures, and pain and suffering would not have occurred if a diagnosis had been made at that earlier time.
The trial court was concerned about the seriousness of the deficiencies in plaintiffs’ case and stated to counsel during oral argument:
Let me just say this to you. Unfortunately, I try a number of these cancer cases, failure to diagnose cancer cases. And I can’t remember, and I’m not being critical at all, I can’t remember one of them where an oncologist was not offered to opine to the jury the staging of the cancer, the survival rates, had the cancer been discovered earlier, et cetera. That was not done here.
Importantly, however, the court did not rule on defendant’s motion at that time notwithstanding that defendant argued, correctly, that he was entitled to have the court rule on the basis of plaintiffs’ proofs exclusively:
This is the end of the plaintiffs case. I don’t have to put on any case. He has to prove his case, the damages and liability at this point. And to say that we’re going to try to fill in during the defense case, doesn’t go to the motion I’m making now.
*42The court reserved, stating that the arguments would be revisited before the court charged the jury. That reservation of judgment was inappropriate. Rule 4:37-2(b) does not authorize a reservation of judgment. Cf. R. 4:40-2(a) (expressly providing option of reserving judgment on motion for judgment at close of evidence). Pursuant to Rule 4:37-2(b), the court either should have granted or denied defendant’s motion for judgment at the close of plaintiffs’ case; it should not have avoided the decision owed defendant with a promise of “revisiting” the unanswered motion prior to charging the jury. Castro v. Helmsley Spear, Inc., 150 N.J.Super. 160, 164, 375 A.2d 274 (App.Div.1977).1
In my view, had the proofs been evaluated timely and properly, that is, limited exclusively to that which plaintiffs had submitted, the case should have been dismissed then. Plaintiffs had not submitted any expert testimony to establish Stephen’s survival rate if Stephen had metastatic cancer in January 1994. Plaintiffs had compared only survival rates of non-metastatic cancer as of January 1994 with metastatic cancer present in May 1994. Even were the court to assume that testimony could be relied upon (as a duly supported opinion coming from an appropriate expert), the court nonetheless must assess whether Dr. Morrow’s testimony established the requisite link between the alleged negligent act by Dr. Ricca and the alleged injury. See Reynolds, supra, 172 N.J. at 286, 798 A.2d 67 (rejecting contention that jury should be allowed to apportion damages only upon showing of increased risk of harm, without proof by plaintiff of “causal connection between defendant’s negligence and the resultant harm”). As noted, the *43trial court ultimately found that such a connection was not proven, and the Appellate Division agreed. The majority now concludes that because the jury was presented with evidence that Stephen had either an eighty-five percent chance of survival of non-metastatic cancer, or a twenty to thirty percent chance of survival of metastasized cancer, the lower threshold for proximate causation in an increased-risk ease was satisfied. To me, Dr. Morrow’s testimony failed to establish an increased-risk of harm that satisfied the “causal connection” requirement discussed in Reynolds, supra, 172 N.J. at 286, 798 A.2d 67.
In addition, I am concerned about the fairness of the process employed in this matter. Defendant was required to refute a case on increased-risk proximate causation before the trial court had ruled on the merits of defendant’s Rule 437-2(b) motion. Placing defendant in that procedural posture posed significant consequences for defendant’s presentation in respect of the issue of damages. A defendant in an increased-risk case already is burdened with the responsibility of showing that damages can, in fact, be apportioned between the harm caused by the preexisting condition and that caused by the defendant’s negligence, and what the apportionment should be. Id. at 283, 798 A.2d 67 (citing Scafidi supra, 119 N.J. at 112, 574 A.2d 398). That formidable task imposed on a Scafidi defendant should not be required before a defendant has received the benefit of a decision on a motion for judgment at the close of a plaintiffs case when such motion has been made pursuant to Rule 4:37-2(b). In permitting a relaxed proof requirement on the issue of damages to a Scafidi plaintiff, this Court did not, I presume, intend that a plaintiff be able to skip the step that requires establishment of a prima facia case on causation. Because of the unique difficulties inherent in defending against an increased-risk case, I am uncertain whether the majori*44ty’s clarification of Castro, supra, will provide sufficient protection against unfairness to Scafidi defendants who have moved pursuant to Rule 4:37-2(b). I believe that the topic would benefit from a more thorough analysis by our Civil Practice Committee that could include the broader question whether the issue of damages in Scafidi cases fairly should be presented to the jury at the time that causation is being determined.
That said, in this matter, Dr. Ricca’s ability to defend against this increased-risk case was affected by the uncertainty resulting from the court’s seeming reservation on the Rule 4:37 — 2(b) motion. That uncertainty plainly caused trial strategy consequences. As the record demonstrates, Dr. Ricca did not present any direct evidence on apportionment of damages. Apparently, Dr. Ricca chose not to make a presentation to the jury on allocation of damages that would be inconsistent with his claim of no proximate causation. In my judgment, the trial court’s failure to rule on defendant’s involuntary dismissal application substantially affected the fairness of this trial, particularly in respect of defendant’s ability to address the issue of allocation of damages.2 Finally, and in addition, I note that defendant also claimed that numerous other errors plague this record, none of which were addressed by the Appellate Division in light of its assessment of the merits of plaintiffs’ case. To the extent the Court is unmoved by the significance of those trial rulings, I would suggest that it misperceives their individual and cumulative prejudicial effect.
I respectfully dissent.
Justice VERNIERO joins in this opinion.
For reversal and remandment — Chief Justice PORITZ and Justices LONG, ZAZZALI, and ALBIN — 4.
For affirmance — Justices VERNIERO and LaVECCHIA — 2.
Notwithstanding the majority's clarification of Castro for the future, the trial court's reservation on the Rule 4:37-2(b) motion denied defendant the ruling to which he was entitled at the close of plaintiffs' case. As a consequence, defendant had to submit to a later review of his motion clouded by proofs defendant was required to advance during presentation of the defense case. That circumstance forced defendant to make strategy decisions unique to defending increased-risk cases while uninformed about plaintiffs' prima facia satisfaction of their causation requirements. See infra at 43-44, 843 A.2d at 1068-69.
I would note, moreover, that it is difficult to discern any rationale for the jury's allocation of fifty-five percent liability to Dr. Ricca and forty-five percent to Stephen's preexistent condition.