Opinion
DOCKET NO. A-1448-14T1
11-17-2015
DONNA DIELMO and NICHOLAS DIELMO, w/h, Plaintiffs-Appellants, v. ISADORE ANCES, M.D. and COOPER UNIVERSITY HOSPITAL, Defendants-Respondents, and RASHIDA LLOYD, M.D., Defendant.
Randi S. Greenberg argued the cause for appellants (Sacchetta & Baldino, attorneys; Thomas F. Sacchetta, of counsel; Ms. Greenberg, on the brief). Jared L. Silverstein argued the cause for respondents (Parker McCay, P.A., attorneys; Stacy L. Moore, Jr., of counsel; Mr. Silverstein, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Alvarez, Haas and Manahan. On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-1409-11. Randi S. Greenberg argued the cause for appellants (Sacchetta & Baldino, attorneys; Thomas F. Sacchetta, of counsel; Ms. Greenberg, on the brief). Jared L. Silverstein argued the cause for respondents (Parker McCay, P.A., attorneys; Stacy L. Moore, Jr., of counsel; Mr. Silverstein, on the brief). PER CURIAM
In this medical malpractice action, plaintiffs Donna and Nicholas Dielmo appeal from an October 10, 2014 order barring their expert's report as a net opinion and granting summary judgment in favor of defendants Isadore Ances, M.D. and Cooper University Hospital (Cooper). We affirm.
Because Donna and Nicholas share the same surname, we will sometimes refer to them by their first names. By doing so, we intend no disrespect to the parties.
The following facts are derived from the evidence submitted by the parties in support of, and in opposition to, the summary judgment motion, viewed in a light most favorable to plaintiffs, the non-moving parties. Polzo v. Cty. of Essex, 209 N.J. 51, 56 n.1 (2012) (Polzo II) (citing Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995)).
On March 24, 2009, Dr. Ances performed surgery to remove Donna's right ovary at Cooper. Plaintiffs allege that Dr. Ances damaged Donna's right ureter during the procedure. As a result, Donna had to undergo additional surgery.
On March 18, 2011, plaintiffs filed a medical malpractice complaint against Dr. Ances and Cooper. Defendants filed an answer, and the parties conducted discovery.
Plaintiffs also named Rashida Lloyd, M.D. as a defendant. However, the trial court subsequently granted Dr. Lloyd's motion for summary judgment, and plaintiffs have not appealed that determination. --------
On December 29, 2013, plaintiffs served the report of their standard of care expert, Gideon Panter, M.D. In his one-page report, Dr. Panter opined "that Dr. Ances departed from normal standards of gynecological surgery by failing to diagnose the ureteral injury which occurred during his surgery of [March 24, 2009]." He also discussed the blood loss that Donna experienced, calling it "suspicious." Dr. Panter stated that
the estimated blood loss at surgery was stated in the delayed operative report as 200cc, yet the drop in hemoglobin from pre-op to post[-]op specifically defines a loss of about 1500 cc [sic]. The supposed hematoma evacuated by interventional radiology was only 50cc, not accounting for the discrepancy. This implied a serious bleeding during surgery which contributes to the chances of ureteral injury while trying to control the blood loss.
Defendants subsequently took Dr. Panter's deposition. In his deposition, Dr. Panter defined the standard of care as "what I would expect one of my students to do in performing a procedure or taking care of a patient. It means not injuring the patient; not injuring the patient and leaving the patient injured." He also agreed "that a ureter injury is a known risk or complication of a surgical procedure to remove the right ovary." Dr. Panter confirmed that the only opinion he offered in his report "is that it is incumbent on the gynecological surgeon to detect or discover such an injury and repair it." According to Dr. Panter, the basis for his opinion was that "[t]he time sequence of events correlates to an intraoperative injury; but also [he] didn't find adequate evidence that anyone looked for an injury properly during the time of the surgery." Dr. Panter admitted that his opinion did not identify how the ureteral injury occurred during surgery. Dr. Panter also discussed Donna's blood loss. He opined that Donna "lost four pints of blood or more" during surgery based on her pre- and post-surgery hematocrit and hemoglobin levels.
Shortly after that deposition, defendants filed a motion for summary judgment. Two days before oral argument, plaintiffs submitted a three-page supplemental affidavit from Dr. Panter. In the supplemental affidavit, Dr. Panter stated, "Regarding the definition of the standard of care, with regard to this specific matter, it is my understanding that [the] standard of care is the general accepted standard in the profession while providing care to a patient. I believe that this was clearly stated during my deposition." He further stated, "Specific to this case, the standard of care is to diagnose a ureteral injury and to address the injury prior to concluding surgery." Dr. Panter also explained that a "basis for [his] opinion is the lack of any records indicating that the ureter was properly evaluated before closing the patient. There is no evidence that the ureter was followed and traced throughout the course of surgery or that any dye was utilized . . . ." Finally, Dr. Panter stated that the time in between the surgery and the second hospitalization "suggests that the ureter was compromised" and that such a conclusion was supported by the excessive blood loss.
Following oral argument, the trial judge determined that Dr. Panter's opinion was a "classic net opinion" that could not be relied upon at trial. The judge found: (1) Dr. Panter never provided an opinion as to how the injury occurred, and merely stated that a surgeon needs to detect an ureteral injury; (2) Dr. Panter did not identify "what method of detection is required [by the standard of care] or if any was performed"; and (3) Dr. Panter failed to provide standards against which to measure Donna's bleeding. In so ruling, the judge did not consider Dr. Panter's supplemental affidavit because it was untimely. Based upon his decision barring plaintiffs from relying on Dr. Panter's report, the judge granted defendants' motion for summary judgment. This appeal followed.
On appeal, plaintiffs argue that "Dr. Panter's opinion was not a net opinion" and that the judge should have considered Dr. Panter's supplemental affidavit "clarifying and explaining his expert opinions." We disagree.
On appeal of an order granting summary judgment, our review is de novo, using the same standard as the trial court. Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 330 (2010); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). A motion for summary judgment should be granted if there are no material facts in dispute and if the undisputed evidence, viewed most favorably to the non-moving party, entitles the moving party to judgment as a matter of law. Brill, supra, 142 N.J. 520 at 540. On the other hand, we owe deference to a trial court's discretionary determination to grant or deny a motion to strike expert testimony. Townsend v. Pierre, 221 N.J. 36, 52-53 (2015) ("The admission or exclusion of expert testimony is committed to the sound discretion of the trial court."); Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008) (stating that trial court's evidentiary decision to admit expert testimony is reviewed for an abuse of discretion).
The Court in Townsend reviewed the law on net opinions. 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. Cty. of Essex, 196 N.J. 569, 583 (2008) (Polzo I), rev'd on other grounds by, Polzo II, 209 N.J. 51 (2012)). 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." Id. at 53-54 (quoting Polzo I, supra, 196 N.J. at 583). Therefore, an expert is required to "give the why and wherefore that supports the opinion, rather than a mere conclusion." Id. at 54 (quoting Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013)). 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." Id. at 55 (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992)).
On the other hand, "[t]he net opinion rule is not a standard of perfection." Id. at 54. The failure to rely on sources the opponent deems important, or to organize one's opinion in a way the adversary considers appropriate, does not warrant exclusion as a net opinion. Ibid. These matters are left for cross-examination. Id. at 54-55.
Applying these principles, we discern no abuse of discretion by the trial court. We have reviewed Dr. Panter's report and supplemental affidavit with care. Dr. Panter cites no standards, guidelines, or protocols governing the procedure Dr. Ances performed on Donna or the standard of care he should have employed. Dr. Panter did not explain how the ureter injury occurred or describe the method Dr. Ances should have used to prevent or detect the injury. With regard to Donna's bleeding, Dr. Panter provided no reference point regarding a normal amount of bleeding that could be expected during surgery. Without such a reference point, Dr. Panter's conclusion that Donna suffered excessive blood loss was unsupported. Finally, Dr. Panter acknowledged that an injury to the ureter was a recognized risk of the procedure. However, he failed to explain any causal connection between a deviation from the standard of care and Donna's injury.
We also conclude that the judge properly exercised his discretion in declining to consider Dr. Panter's belated supplemental affidavit. However, even if the affidavit were considered, Dr. Panter's report, as supplemented, would still constitute a net opinion. In his supplemental affidavit, as in his original report, Dr. Panter failed to identify the appropriate standard of care and did not explain how or when the injury to the ureter occurred.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION