Opinion
DOCKET NO. A-3340-13T1
07-02-2015
MICHELE WENDELKEN, EXECUTRIX OF THE ESTATE OF MARIE MOCCIOLA, Plaintiff-Appellant, v. PATRICIA NEE, M.D. and EAST BRUNSWICK FAMILY PRACTICE, P.A., Defendants, and CARE ONE AT EAST BRUNSWICK, LLC, a/b/a CARE ONE AT EAST BRUNSWICK and ROBERT WOOD JOHNSON HOSPITAL, Defendants-Respondents.
Mario Apuzzo argued the cause for appellant. Sandra S. Moran argued the cause for respondent Care One at East Brunswick LLC (Buchanan Ingersoll & Rooney, PC, attorneys; Ms. Moran, David L. Gordon and Alexis M. Aloi, of counsel and on the brief). Robert J. Logan argued the cause for respondent Robert Wood Johnson University Hospital (Vasios, Kelly & Strollo, PA, attorneys; Lauren M. Strollo, of counsel; David W. Badie, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Sabatino, Simonelli and Gilson. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0953-11. Mario Apuzzo argued the cause for appellant. Sandra S. Moran argued the cause for respondent Care One at East Brunswick LLC (Buchanan Ingersoll & Rooney, PC, attorneys; Ms. Moran, David L. Gordon and Alexis M. Aloi, of counsel and on the brief). Robert J. Logan argued the cause for respondent Robert Wood Johnson University Hospital (Vasios, Kelly & Strollo, PA, attorneys; Lauren M. Strollo, of counsel; David W. Badie, on the brief). PER CURIAM
Plaintiff Michele Wendelken, Executrix of the Estate of Marie Mocciola, appeals two summary judgment orders, respectively, dismissing medical malpractice claims against defendants Robert Wood Johnson University Hospital ("RWJ Hospital") and Care One at East Brunswick, LLC ("Care One") related to the care and treatment provided to Mocciola. In an order dated April 5, 2013, the motion judge granted summary judgment to RWJ Hospital, holding that the two-year statute of limitations had expired. In an order dated February 14, 2014, the judge granted summary judgment to Care One, holding that plaintiff's expert was seeking to offer net opinions. Having conducted a thorough review of the record and having considered all of plaintiff's arguments, we affirm both summary judgment orders.
I.
We discern the following facts and procedural history from the record. This matter arises out of the care and treatment provided to decedent Marie Mocciola. Specifically, the complaints focused on Mocciola's development of pressure ulcers, also known as decubitus ulcers or bed sores, and the treatment of those ulcers.
In January 2009, Mocciola was eighty-three years old and suffered from a number of physical illnesses. Mocciola had been admitted to St. Peter's University Hospital ("St. Peter's Hospital") for treatment on a number of occasions during the period from August 2006 through late December 2008. The medical malpractice complaints in this action focus on the treatment Mocciola received during the first half of 2009.
Between January 6, 2009 and January 9, 2009, Mocciola was again treated at St. Peter's Hospital. From January 9, 2009 to January 12, 2009, Mocciola received rehabilitative care at Care One, which is a licensed nursing home and rehabilitation facility. On January 16, 2009, Mocciola was admitted to RWJ Hospital for emergency surgery involving a posterial spinal fusion and lumbar laminectomy. On January 20, 2009, Mocciola was discharged from RWJ Hospital to Care One. Mocciola remained at Care One until February 20, 2009. On that day, Mocciola was readmitted to RWJ Hospital, where she stayed until March 9, 2009.
On March 9, 2009, Mocciola was discharged to another nursing home, Genesis Cranbury Center. She stayed at the Genesis Cranbury Center until April 29, 2009, when she went to stay with her daughter, Michele Wendelken.
II.
On January 28, 2011, Mocciola filed a malpractice action claiming she developed pressure ulcers in January 2009 and that those ulcers were not properly treated for several months in the early part of 2009. In her original complaint, Mocciola named three defendants: Care One, Patricia Nee, M.D., who was Mocciola's primary care physician, and East Brunswick Family Practice, which is the medical practice with which Dr. Nee was associated. The original complaint also listed unknown, fictitious defendants as "John Doe 1-20."
On November 28, 2011, Mocciola filed an amended complaint adding RWJ Hospital as a named defendant. In the amended complaint, Mocciola contended that RWJ Hospital failed to provide proper medical care concerning her pressure ulcers when she was a patient at RWJ Hospital between January 16, 2009 to January 20, 2009, and February 20, 2009 to March 9, 2009.
On January 8, 2012, Mocciola died of a heart condition unrelated to the pressure ulcers she had experienced in early 2009. Wendelken, her daughter and executrix, was substituted as the named plaintiff on August 1, 2012. Discovery was conducted, and Wendelken, who had been closely involved in the care of her mother in 2009, was deposed.
In February 2013, RWJ Hospital filed a motion for summary judgment contending that the applicable two-year statute of limitations had expired before it was named as a defendant. After hearing oral argument on April 5, 2013, Judge Barry A. Weisberg issued an oral decision and entered an order granting summary judgment to RWJ Hospital.
Judge Weisberg found that plaintiff's testimony at her deposition established that she and her mother knew in January 2009 that Mocciola had developed pressure ulcers and that Mocciola and plaintiff blamed RWJ Hospital at or about that time for the improper care of the pressure ulcers. Judge Weisberg further ruled that neither the fictitious named defendant rule nor the discovery rule applied to the facts of this case.
In January 2014, Care One filed a motion for summary judgment arguing that plaintiff's claims against it were dependent on plaintiff's malpractice expert, but that expert was seeking to offer net opinions. Plaintiff had identified Michael M. Bergman, M.D., as her malpractice expert. Dr. Bergman had submitted a written expert report and a supplemental written expert report. In his initial report, Dr. Bergman stated that the pressure ulcers first developed while Mocciola was at Care One in January and February of 2009. In his supplemental report, however, Dr. Bergman identified medical records that showed the ulcers first developed earlier in and around January 13, 2009, while Mocciola was at RWJ Hospital.
Care One did not depose Dr. Bergman. Instead, Care One argued that Dr. Bergman's expert reports failed to specify how Care One was negligent or give any support to establish a causal link between alleged negligence and Mocciola's injuries.
Judge Weisberg granted summary judgment to Care One on February 14, 2014. Judge Weisberg found that Dr. Bergman's reports failed to identify what standard of care Care One allegedly did not follow. Judge Weisberg also found that Dr. Bergman did not provide any factual support for his proposed opinions that the pressure ulcers were not properly treated at Care One and that the ulcers got worse while Mocciola was at Care One. The judge, therefore, ruled that Dr. Bergman's proposed opinions were inadmissible net opinions.
The claims against Dr. Nee and East Brunswick Family Practice were dismissed with prejudice by consent. While the record on appeal does not explain the basis for that dismissal, plaintiff apparently settled her claims against Dr. Nee and the family practice.
III.
Plaintiff appeals both summary judgment orders. With regard to the summary judgment granted to RWJ Hospital, plaintiff makes three arguments. First, she argues that she should have been accorded the benefit of the discovery rule to toll the statute of limitations. In that regard, plaintiff contends that she did not discover a cause of action against RWJ Hospital until September 2011 and, therefore, her November 28, 2011 amended complaint was timely. Second, plaintiff argues that her amended complaint should have related back to January 28, 2011, the date of her original complaint, because she named fictitious defendants in the original complaint. Finally, she argues that, at a minimum, she should have been accorded a Lopez hearing concerning when she knew of a cause of action against RWJ Hospital. Given the undisputed facts of this case, we reject each of these arguments.
Lopez v. Swyer, 62 N.J. 267 (1973).
Concerning the summary judgment granted to Care One, plaintiff makes two arguments. First, she contends that the motion judge erred in finding that Dr. Bergman was offering net opinions. Second, plaintiff argues that it was inappropriate to grant summary judgment before Dr. Bergman was deposed or a Rule 104 hearing was held where Dr. Bergman could have testified. We find no merit in either of these arguments.
IV.
We review a ruling on summary judgment de novo, applying the same standard governing the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014) (citations and internal quotation marks omitted). Thus, we consider, as the motion judge did, "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." Id. at 406. If there is no genuine issue of material fact, we must then "'decide whether the trial court correctly interpreted the law.'" DepoLink Court Reporting & Litig. Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540, 666 (1995)). We review issues of law de novo and accord no deference to the trial judge's conclusions on issues of law. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
"'[A] trial court confronted with an evidence determination precedent to ruling on a summary judgment motion squarely must address the evidence decision first.'" Konop v. Rosen, 425 N.J. Super. 391, 402 (App. Div. 2012) (alteration in original) (quoting Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384-85 (2010)). "Appellate review of the trial court's decisions proceeds in the same sequence, with the evidentiary issue resolved first, followed by the summary judgment determination of the trial court." Townsend v. Pierre, 221 N.J. 36, 53 (2015) (citing Hanges, supra, 202 N.J. at 385).
The evidentiary decision regarding the exclusion of the expert opinion is entitled to deference on appellate review. Id. at 52 (citing Bender v. Adelson, 187 N.J. 411, 428 (2006)). We review de novo the legal consequences of the exclusion of the expert opinion as it effects plaintiff's ability to establish causation necessary to maintain a malpractice claim. Id. at 59 (citing Davis, supra, 219 N.J. at 405).
A.
A two-year statute of limitations applies to claims for personal injuries. N.J.S.A. 2A:14-2; Giannakopoulos v. Mid State Mall, 438 N.J. Super. 595, 610 (App. Div. 2014), certif. denied, ___ N.J. ___ (2015). A cause of action for medical malpractice generally accrues on the date of the alleged negligent act or omission. Szczuvelek v. Harborside Healthcare Woods Edge, 182 N.J. 275, 281 (2005).
Statutes of limitations create repose and are "'practical and pragmatic devices to spare the courts from litigation of stale claims, and the citizen from being put to his [or her] defense after memories have faded, witnesses have died or disappeared, and evidence has been lost.'" Fox v. Millman, 210 N.J. 401, 415 (2012) (quoting Chase Sec. Corp. v. Donaldson, 325 U.S. 304, 314, 65 S. Ct. 1137, 1142, 89 L. Ed. 2d 1628, 1635 (1945)). When the statute of limitations expires before a plaintiff "[knows] or [has] reason to know that he [or she] has a cause of action against an identifiable defendant . . . the considerations of individual justice and the considerations of repose are in conflict and other factors may fairly be brought into play." Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 115 (1973).
To accommodate those considerations, our Supreme Court adopted the discovery rule. Fernandi v. Strully, 35 N.J. 434, 450 (1961); see also Szczuvelek, supra, 182 N.J. at 281; Graves v. Church & Dwight Co., 115 N.J. 256, 257 (1989). The discovery rule postpones accrual of a cause of action until "'the injured party discovers, or by an exercise of reasonable diligence and intelligence should have discovered that he [or she] may have a basis for an actionable claim.'" Szczuvelek, supra, 182 N.J. at 281 (alteration in original) (quoting Lopez, supra, 62 N.J. at 272 (internal quotation marks omitted)). The standard for determining whether a plaintiff "knew or should have known" of an actionable claim is an objective standard. Martinez v. Cooper Hosp.-Univ. Med. Ctr., 163 N.J. 45, 52 (2000) (citing Baird v. Am. Med. Optics, 155 N.J. 54, 72 (1998)).
Here, the motion judge correctly granted summary judgment to RWJ Hospital based on the two-year statute of limitations. Mocciola was treated at RWJ Hospital on two occasions: (1) January 16, 2009 to January 20, 2009, and (2) February 20, 2009 to March 9, 2009. Thus, if plaintiff knew of her pressure ulcers and that RWJ Hospital had caused or contributed to the alleged improper treatment of those ulcers by March 9, 2009, then the two-year statute of limitations began to run no later than March 9, 2009.
Plaintiff testified that both she and her mother (Mocciola) knew her mother had developed pressure ulcers in January 2009 and that plaintiff and Mocciola blamed the staff at RWJ Hospital for those ulcers and their alleged mistreatment of those ulcers. Specifically, in her deposition, plaintiff testified that she was personally involved in the care of her mother, when she visited while her mother was at RWJ Hospital in January, February, and March of 2009. Plaintiff also testified that she knew by that point that her mother had developed pressure ulcers in January 2009 and she had discussed with her mother at that time the development of the ulcers. Plaintiff further testified that both she and her mother blamed the staff at RWJ Hospital at that time for not properly treating the pressure ulcers.
Indeed, in plaintiff's response to the material undisputed statement of facts filed by RWJ Hospital in support of its summary judgment motion, plaintiff admitted, among other things:
January 20, 2009 to February 20, 2009: Mocciola . . . admitted to Care One. While under the care of Care One, Mocciola developed a decubitis ulcer which grew in size. . . .
February 20, 2009: Mocciola was transferred and admitted to Robert Wood Johnson University Hospital. . . .
. . . While in Robert Wood, [healthcare] providers of that hospital allowed the decubitis ulcer to grow in size. . . . While a patient there, Mocciola experienced a worsening of her stage 2 ulcer which had developed at Care One. . . . That ulcer became larger and deeper and was identified as stage 3 on February 24, 2009 accompanied by surrounding redness (cellulites, an active soft-tissue infection).
Our review of the record leads us to conclude that the discovery rule does not apply to the facts of this case. Here, plaintiff knew the basis for a cause of action against RWJ Hospital no later than March 2009. Specifically, plaintiff knew of the injuries, her mother's pressure ulcers, and blamed RWJ Hospital, among others, for the mistreatment of those injuries.
On appeal, plaintiff argues that she first knew of her cause of action against RWJ Hospital on September 26, 2011, when a nurse working with Dr. Bergman called her attorney to report that the pressure ulcers developed during the January 2009 stay at RWJ Hospital. That contention, however, does not create a material issue of disputed fact. Here, plaintiff did not need to be told that the injuries complained of were caused or contributed to by RWJ Hospital. Plaintiff's clear and indisputable deposition testimony establishes the knowledge that triggered the running of the statute of limitations no later than March 2009.
Consequently, this is not a case where plaintiff needed a medical expert to explain the causal link between her alleged improper medical treatment and her injuries. To trigger the running of the statute of limitations, a plaintiff "must have an awareness of 'material facts' relating to the existence and origin of the injury rather than comprehension of the legal significance of such facts." Lynch v. Rubacky, 85 N.J. 65, 73 (1981) (citing Burd v. N.J. Tel. Co., 76 N.J. 284, 291-93 (1978)). Thus, the discovery rule does not apply to the facts of this case.
Nor is this a case where plaintiff can rely on the naming of a fictitious defendant in the original complaint to toll the statute of limitations. Rule 4:26-4 states, in relevant part:
In any action, irrespective of the amount in controversy, other than an action governed
by R. 4:4-5 (affecting specific property or a res), if the defendant's true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification.
Under this rule, a complaint may be amended after the statute of limitations has expired, to substitute a defendant's true name and effect service, where a defendant was sued in a fictitious name because of a plaintiff's inability to ascertain the identity of the defendant despite diligent efforts. See Farrell, supra, 62 N.J. at 120. Our Supreme Court, however, has explained that the fictitious-party rule applies only if the defendant's true name is unknown. Greczyn v. Colgate-Palmolive, 183 N.J. 5, 11 (2005) (citing Gallagher v. Burdette-Tomlin Med. Hosp., 318 N.J. Super. 485, 492 (App. Div. 1999), aff'd, 163 N.J. 38 (2000)). The rule does not apply "'where a plaintiff is unaware that an injury was caused by an identifiable defendant.'" Ibid. (quoting Pressler, Current N.J. Court Rules, comment on R. 4:26-4 (2005)). Here, the undisputed facts, as disclosed both in plaintiff's deposition and her responses to the material issues of undisputed facts, establish that she and her mother knew of RWJ Hospital. Indeed, the material undisputed facts establish that plaintiff knew of RWJ Hospital in early 2009, as well as when the original complaint was filed on January 28, 2011.
Finally, given the facts of this case, plaintiff was not entitled to a Lopez hearing. In Lopez, the New Jersey Supreme Court explained that when the discovery rule is to be applied to a statute of limitations, that application is a question of law to be made by a judge. Lopez, supra, 62 N.J. at 274-75. Moreover, if there are disputed fact issues concerning the accrual of the cause of action, the judge should conduct a hearing. Id. at 275-76. No hearing is required, however, where the facts concerning accrual are not in dispute. Dunn v. Borough of Mountainside, 301 N.J. Super. 262, 274 (App. Div. 1997) (explaining that no Lopez hearing was necessary where "[t]he material facts regarding plaintiff's effort to identify the tortfeasor were not in dispute, and credibly was not an issue"), certif. denied, 153 N.J. 402 (1998). Here, as already detailed, there are no disputed issues of material fact or credibility issues because plaintiff's own deposition and responses to the material issues of disputed fact establish the timing of her knowledge (and her mother's own knowledge) of the injuries and RWJ Hospital's alleged improper treatment of the injuries. Thus, here, no equitable tolling is warranted.
In short, the undisputed facts in this case establish that the limitations period commenced no later than March 2009 and, thus, the statute of limitations expired no later than March 2011. Plaintiff filed her amended complaint naming RWJ Hospital as a defendant in November 2011, beyond the statute of limitations. Consequently, summary judgment was properly granted to RWJ Hospital.
B.
Next, we consider plaintiff's arguments concerning the summary judgment granted to Care One based on the exclusion of her medical expert for seeking to offer inadmissible net opinions. Two rules of evidence frame the analysis for determining the admissibility of expert testimony. See N.J.R.E. 702; N.J.R.E. 703. Evidence Rule 702 identifies when expert testimony is permissible and requires the experts to be qualified in their respective fields.
Evidence Rule 703 addresses the foundation for expert testimony. Expert opinions must be grounded in "'facts or data derived from (1) the expert's personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts.'" Townsend, supra, 221 N.J. at 53 (quoting Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008)); State v. Townsend, 186 N.J. 473, 494 (2006). "The net opinion rule is a 'corollary of [N.J.R.E. 703] . . . which forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data.'" Townsend, supra, 221 N.J. at 53-54 (alteration in original) (quoting Polzo, supra, 196 N.J. at 583); see also Creanga v. Jardal, 185 N.J. 345, 360 (2005) (citing Buckelew v. Grossbard, 87 N.J. 512, 524 (1981)).
Therefore, an expert is required to "'give the why and wherefore' that supports the opinion, 'rather than a mere conclusion.'" Townsend, supra, 221 N.J. at 54 (quoting Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013)); Davis, supra, 219 N.J. at 410 (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011)); Creanga, supra, 185 N.J. at 360 (quoting Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002)). The net opinion rule directs that experts "'be able to identify the factual bases for their conclusions, explain their methodology, and demonstrate that both the factual bases and the methodology are reliable.'" Townsend, supra, 221 N.J. at 55 (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992)). In short, the net opinion rule is "'a prohibition against speculative testimony.'" Harte v. Hand, 433 N.J. Super. 457, 465 (App. Div. 2013) (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div.), certif. denied, 154 N.J. 607 (1997)).
Generally, in malpractice actions, an expert must identify (1) an established standard of care, (2) how the defendant allegedly deviated from that standard, and (3) that the deviation proximately caused the injury. Nicholas, supra, 213 N.J. at 478 (quoting Gardner v. Pawliw, 150 N.J. 359, 375 (1997)); see also Toy v. Rickert, 53 N.J. Super. 27, 31-32 (App. Div. 1958) (stating that except in limited circumstances not relevant to this appeal, the standard of care must be established by expert testimony). Thus, a plaintiff in a medical malpractice case "ordinarily is required to establish that the defendant's treatment or care fell below the standard established and recognized by the medical profession for the indicated condition of the patient, and the standard must be proven by expert medical testimony." Terhune v. Margaret Hague Maternity Hosp., 63 N.J. Super. 106, 111 (App. Div. 1960) (citing Toy, supra, 53 N.J. Super. at 32).
There was no challenge to Dr. Bergman based on the affidavit of merit needed to claim that Care One breached its duty. Instead, the challenge to Dr. Bergman was based on the argument that he was seeking to offer net opinions.
Here, there is no issue concerning Dr. Bergman's qualifications. He is a board certified medical doctor familiar with the treatment of pressure ulcers. Instead, the issue with Dr. Bergman's proposed opinions is whether they identified an established standard of care, from which Care One allegedly deviated, and whether those opinions have factual support in the record. Judge Weisberg correctly found that Dr. Bergman failed to identify what standard of care should have been used to treat Mocciola, how Care One deviated from that standard, or how any alleged deviation was causally linked to Mocciola's injuries. Judge Weisberg also correctly found that Dr. Bergman did not identify the factual support for his proposed opinions.
Dr. Bergman was plaintiff's only medical expert. He prepared an initial report dated December 12, 2012, and a supplemental report dated September 27, 2013. In his initial report, Dr. Bergman stated that Mocciola's ulcers developed while at Care One in January 2009. In his supplemental report, however, Dr. Bergman changed that position and stated that the ulcers originally developed sometime around January 13, 2009, while Mocciola was at RWJ Hospital.
Dr. Bergman's reports merely chronicled where Mocciola received medical care in the first half of 2009, and that she developed pressure ulcers that progressed to stage four ulcers. Nowhere in his reports did Dr. Bergman explain what standard of care a nursing home or rehabilitative center should follow to prevent or treat ulcers once they develop. Moreover, Dr. Bergman does not explain how Care One deviated from any standard of care or that such a deviation was causally linked to the development and worsening of the ulcers.
Identifying the standard of care for Care One was particularly important in this case because Mocciola was treated at a number of facilities, including St. Peter's Hospital, Care One, RWJ Hospital and Genesis Cranbury Center. Interestingly, in Dr. Bergman's report he states that Mocciola's ulcers worsened at St. Peter's Hospital during a stay in June 2009. Plaintiff, however, never named St. Peter's Hospital as a defendant.
In her merits brief, plaintiff contends without citation to the record that Dr. Bergman did identify a standard of care; however, the doctor's actual reports do not disclose that he identified a standard of care for Care One.
Dr. Bergman also did not identify the factual support for his proposed opinions. While Dr. Bergman's report states that he reviewed "several thousand pages" of Mocciola's medical records, Dr. Bergman does not identify which medical records form the basis for any of his proposed opinions. Instead, Dr. Bergman merely offers the opinions without factual support.
Plaintiff also argues that Care One should have deposed Dr. Bergman or that Judge Weisberg should have conducted a Rule 104 hearing at which Dr. Bergman could have testified. While both procedures are available to explore an expert's proposed opinion, they are not required. See Townsend, supra, 221 N.J. at 54 n.5 (stating that a court "may" conduct a hearing).
A party must identify what his or her expert proposes to opine. See R. 4:10-2(d)(1); R. 4:17-4(e); Washington v. Perez, 219 N.J. 338, 361-62 (2014). Usually, that is accomplished by a written report submitted by the expert. When the scope of the expert opinion is identified, the expert is then generally limited to testifying to opinions within the ambit of the expert report and the inferences that logically flow from them. Conrad v. Robbi, 341 N.J. Super. 424, 440-41 (App. Div.), certif. denied, 170 N.J. 210 (2001); McCalla v. Harnischfeger Corp., 215 N.J. Super. 160, 171 (App. Div.), certif. denied, 108 N.J. 219 (1987).
Generally, therefore, when an opposing expert files a report, nothing requires a party to depose the expert before moving to preclude the expert's testimony. If the non-moving party believes the record is incomplete or inadequate, he or she can raise that issue and propose appropriate procedures such as a deposition or hearing. While the "sounder practice" is generally to conduct a Rule 104 hearing when the reliability of an expert is challenged, such a hearing is not always required. See Kemp v. State, 174 N.J. 412, 432-33 (2002) (explaining that the "sounder practice" is to hold a hearing particularly when there is a challenge on the scientific reliability of an expert's opinion, but also noting that "the need for a hearing is remitted to the trial court's discretion"); see also Townsend, supra, 221 N.J. at 48-49, 59-61 (reinstating summary judgment granted by a trial court after plaintiff's liability expert was precluded, on a motion and without a Rule 104 hearing, from offering an inadmissible net opinion).
Here, the record was sufficient to support the preclusion of plaintiff's medical expert because the expert's own reports establish that he was seeking to offer inadmissible net opinions. Accordingly, the record establishes that Judge Weisberg had ample support for his evidential ruling that plaintiff's medical expert proposed to offer inadmissible net opinions.
We, therefore, turn to a review of the entry of summary judgment in favor of Care One. To establish a cause of action for medical malpractice, the plaintiff must prove four elements: (1) "the relevant standard of care governing the defendant-doctor," (2) "a deviation from that standard," (3) "injury proximately caused by the deviation," and (4) damages. Komoldi v. Picciano, 217 N.J. 387, 409 (2014) (citing Verdicchio v. Ricca, 179 N.J. 1, 23 (2004)); see also Davis, supra, 219 N.J. at 406 (quoting Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576, 594 (2013)).
Here, plaintiff's malpractice action depended on testimony from a medical expert to establish the standard of care, the breach of that standard, and causation. See Nicholas, supra, 213 N.J. at 478 (quoting Gardner, supra, 150 N.J. at 375); Terhune, supra, 63 N.J. Super. at 111 (citing Toy, supra, 53 N.J. Super. at 32). It follows that once the expert was barred from testifying, plaintiff could not establish a cause of action against Care One. Consequently, Judge Weisberg's order of February 14, 2014, granting summary judgment to Care One, is affirmed.
V.
In summary, the orders granting summary judgment to defendant RWJ Hospital and defendant Care One are affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION