JINWON BYUN v. ENGLEWOOD HOSPITAL AND MEDICAL CENTER (L-3026-18, BERGEN COUNTY AND STATEWIDE)

• Court: New Jersey Superior Court Appellate Division
• Decided: September 2, 2022
• Docket: A-4020-19
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-4020-19

JINWON BYUN a/k/a JACKIE BYUN and ESTATE OF JACKIE BYUN, by her mother and natural guardian, MYONG AE BYUN, MYONG AE BYUN, and CHONG WON BYUN,

Plaintiffs-Appellants,

v.

ENGLEWOOD HOSPITAL AND MEDICAL CENTER, HEE JUNG PARK, MD, AJAY JETLEY, MD, JEAN READIE, MD, and JOHN VOGT, RN,

Defendants-Respondents,

and

RACHNA SUBRAMONY, MD,

Defendant. _____________________________

Argued June 8, 2022 – Decided September 2, 2022 Before Judges Gilson, Gooden Brown and Gummer.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3026-18.

Michael S. Kimm argued the cause for appellants (Kimm Law Firm, attorneys; Michael S. Kimm and Jonathan Lugo, on the briefs).

John R. Scott argued the cause for respondents Englewood Hospital and Medical Center and Ajay Jetley, MD (Clare & Scott, LLC, attorneys; John R. Scott, of counsel and on the briefs).1

Anthony A. Lenza, Jr., argued the cause for respondent Hee Jung Park, MD (Amabile & Erman, PC, attorneys; Anthony A. Lenza, Jr., of counsel and on the briefs).

Douglas F. Ciolek argued the cause for respondent Jean Readie, MD (Rosenberg Jacobs Heller & Fleming, PC, attorneys; Lawrence H. Jacobs, of counsel; Douglas F. Ciolek, on the briefs).

Haley K. Grieco argued the cause for respondent John Vogt, RN (Mattia, McBride & Grieco, PC, attorneys; Philip F. Mattia, of counsel; Haley K. Grieco, on the briefs).

PER CURIAM

1 We note plaintiffs identified the hospital defendant as "Englewood Hospital" and the hospital in its submissions uses the name "Englewood Hospital and Medical Center." We also note that plaintiffs' spelling of some of the doctors' names differs from the doctors' spelling. For the sake of accuracy, we use the doctors' spelling. A-4020-19 2 In this medical-negligence case, plaintiffs appeal orders barring certain

expert opinions or testimony, granting defendants' summary-judgment motions,

and denying plaintiffs' motions to amend the complaint, to supplement plaintiffs'

expert reports, and for reconsideration of the expert-testimony orders.

Perceiving no error or abuse of discretion, we affirm.

Except for limited circumstances not applicable here, an expert opinion is

necessary to establish fundamental elements of a medical-negligence case. The

expert opinion must be made by someone qualified to render it and must set

forth the applicable standard of care, the ways in which the medical professional

failed to meet that standard of care, and how that deviation from the standard of

care harmed the patient. Without that expert opinion, a plaintiff has failed to

make a prima facie case of medical negligence. Despite repeated opportunities,

plaintiffs failed to meet that burden and the trial court ultimately and correctly

granted defendants' summary-judgment motions.

I.

We discern the facts from the summary-judgment record, viewing them in

the light most favorable to plaintiffs. See Richter v. Oakland Bd. of Educ., 246

N.J. 507, 515 (2021).

A-4020-19 3 On May 12, 2016, plaintiff Myong Ae Byun took her daughter, decedent

Jinwon Byun (also known as Jackie), to the emergency department of

Englewood Hospital. 2 Jackie was a twenty-five-year-old woman with autism, a

limited ability to communicate verbally, and a history of seizures. Earlier that

day, Jackie's neurologist recommended Myong take Jackie, who had not been

eating for two or three days, to her regular internist or a hospital to determine if

she was constipated, had a bladder or urinary-tract infection, or had pneumonia.

At the hospital, Jackie was running a fever, was dehydrated, and had a severely-

distended abdomen.

Defendant Dr. Hee Jung Park, an internal-medicine resident at the

hospital, met with Myong and Jackie. Dr. Park and Myong spoke to each other

in Korean. Dr. Park told Myong that Jackie needed a urine test and blood work.

Myong signed a consent for treatment for Jackie, which included "any x-rays,

laboratory, or other medical procedures . . . ." The blood work showed Jackie

had an elevated white blood count.

Myong asked Dr. Park to give her a cup so she could take Jackie to the

bathroom and collect a urine sample from her. Dr. Park declined her request,

2 Because the decedent and her mother shared a surname, we use Jackie and Myong for ease of reading. A-4020-19 4 saying a tube had to be inserted to collect a clean sample. Myong told Dr. Park

she would not be able to obtain a urine sample by a tube because Jackie would

not understand the procedure and "probably wouldn't go for it." Hospital records

indicate Dr. Park and defendant Dr. Ajay Jetley, a board-certified emergency-

medicine physician, co-signed orders for a urinalysis and urine culture at 4:04

p.m. and for "Straight cath for UA, C&S" and "Straight Cath for Urine

Specimen" at 5:05 p.m. Dr. Jetley and defendant Dr. Jean Readie, a board-

certified emergency-medicine physician, were Dr. Park's direct supervisors in

the emergency department that evening. In hospital records, Dr. Readie

indicated she had "[r]eceived signoff from Dr. Jetley" at 5:30 p.m.

According to Myong, two nurses entered Jackie's room and told Myong to

leave. Myong exited the room. According to defendant John Vogt, R.N., at

6:00 p.m. Jackie was "unable to tolerate[] straight cath for urine at th[at] point"

and a decision was made to wait until Jackie could receive "IV [A]tivan."

When she re-entered the room, Myong noticed Jackie's face and lips were

purple. Myong thought she might have had a seizure. Within fifteen to twenty

minutes, Jackie calmed down and her color returned to normal. Jackie

subsequently jumped off the bed and pulled an intravenous line (IV) out of her

arm. A nurse told Myong the IV had to be reinserted. According to Myong, the

A-4020-19 5 nurse and someone who looked like a guard lifted Jackie, placed her back in the

bed, and "flattened her down, on all arms and legs, by force." Jackie turned blue

and appeared to be having a seizure. Dr. Readie was called to Jackie's bedside

with Dr. Park. After efforts to intubate Jackie were unsuccessful, an airway was

created surgically. As Jackie was being transferred to an operating room "for

further airway stabilization and surgical exploration," she "abruptly developed

bradycardia and ventricular fibrillation." Advanced cardiac life support was

performed on Jackie, but it was unsuccessful and she died.

On April 25, 2018, plaintiffs filed a complaint naming as defendants the

hospital, Drs. Park, Jetley, Readie, and Rachna Subramony, Nurse Vogt, and

fictitious defendants Kathy Doe and John Doe, respectively a "technician" and

"paramedic student" allegedly involved in restraining Jackie.3 Plaintiffs faulted

defendants for failing to adhere to the standards of "The Joint Commission"

regarding communicating with and restraining patients, failing to allow Myong

to assist in collecting a urine specimen from Jackie, and "forcibly pinn[ing]

[Jackie's] entire body by [N]urse Vogt and another male staff person who

callously engaged in unconsented application of extreme physical force against

3 Plaintiffs subsequently voluntarily dismissed with prejudice all claims against Dr. Subramony and all claims against the hospital based on vicarious liability for Dr. Subramony. A-4020-19 6 a helpless autistic patient." Plaintiffs alleged defendants had breached the

standard of care "for communication" and for "physical management,"

referencing the "physical restraint procedures implemented" by defendants.

Plaintiffs pleaded ten causes of action: reckless and negligent medical

malpractice, in which plaintiffs alleged defendants had failed "to provide

adequate, timely, competent medical treatment" for Jackie and had "caus[ed] her

to suffer cardiac arrest by placing her under severe duress that foreseeably would

have caused anyone to hyperventilate"; wrongful death under N.J.S.A. 2A:31-1

to -6; breach of contract for medical services; "Survival Act Claim," in which

plaintiffs alleged the "terror" defendants had created in Jackie "caused her to

hyperventilate," "to suffer severe psychiatric fears" and "a massive cardiac arrest

. . . ."; lack of consent; lack of informed consent; assault and battery; intentional

and negligent infliction of emotional distress 4; and "[h]ospital [l]iability," in

which plaintiffs alleged the hospital was directly and vicariously liable for its

failure to have a policy in compliance with "The Joint Commission," to train the

emergency-room staff, to enforce compliance with "the standards," and to have

an emergency room "minimally capable of servicing an autistic patient."

4 Plaintiffs subsequently did not oppose summary judgment on the claims for assault and battery and intentional and negligent infliction of emotional distress. A-4020-19 7 In the answer filed on behalf of the hospital and Dr. Jetley, defendants

identified Dr. Jetley as "a board[-]certified emergency room M.D." In her

answer, Dr. Readie described herself as "a board-certified emergency medicine

specialist" and asserted as a separate defense that plaintiffs had failed to comply

with the Affidavit of Merit statute, N.J.S.A 2A:53A-26 to -29. In her answer,

Dr. Park demanded plaintiffs submit an affidavit of merit, asserting she was a

"hospital resident . . . held to the standard of care of a general practitioner." In

his answer, under a heading "DESIGNATION OF SPECIALTY," Nurse Vogt

stated he was "a licensed registered nurse."

After defendants filed their answers, plaintiffs filed "certification[s]" of

merit prepared by Dr. Andrew Roy Williams, who stated he specialized in

"emergency medicine" and opined defendants had deviated from the standard of

care in "the field of medicine generally and in emergency medicine"; Dr. Lee

Wachtel, who stated she specialized in psychiatry and opined defendants had

deviated from the standard of care "in the field of medicine"; Dr. Robert Stark,

who stated he specialized in cardiology and opined defendants had deviated

from the standard of care in "the field of medicine generally and in cardiology

and emergency medicine"; Dr. Stephen Falk, who stated he specialized in the

field of otolaryngology and opined defendants had deviated from the standard

A-4020-19 8 of care in "the field of medicine generally and in emergency medicine"; and

Jeanine Frumenti, who stated she was a "practicing registered nurse"

specializing in "emergency medicine and nursing practices" and opined "the

non-doctor defendants" had deviated from the standard of care "in the field of

medicine generally and in emergency medicine."

On July 16, 2018, Judge Mary F. Thurber conducted a conference pursuant

to Ferreira v. Rancocas Orthopedic Associates, 178 N.J. 144 (2003). Defendants

raised various objections to the certifications of merit filed by plaintiffs, arguing

they failed to comply with the Affidavit of Merit statute. Plaintiffs agreed to

cure the deficiencies. In an order issued that day, the judge extended by sixty

days the time by which plaintiffs had to file affidavits of merit and scheduled

the conference to continue on August 14, 2018.

Plaintiffs subsequently served an affidavit of merit and curriculum vitae

(CV) prepared by Dr. Williams, who specified he submitted the affidavit as to

Drs. Park, Readie, and Jetley. In his CV, he stated he had become board certified

by the American Board of Emergency Medicine on November 16, 2016, after

the alleged malpractice had taken place in this case. Plaintiffs served an

affidavit of merit and CV prepared by Nurse Frumenti, who specified she

submitted the affidavit as to Nurse Vogt, the hospital, and "any other nurse

A-4020-19 9 whose identity may become known in discovery." Plaintiffs submitted an

affidavit of merit and CV prepared by Nancy Radoslovich, who described

herself as a "practicing [r]egistered [n]urse . . . currently work[ing] in an

operating room." She stated she submitted the affidavit as to Nurse Vogt, the

hospital, and "any other nurse . . . ." Plaintiffs served an affidavit and CV

prepared by Dr. Richard Parker, who stated he was "board certified in internal

medicine" and had been a hospital or medical-organization administrator since

2001. He submitted his affidavit as to the hospital and "any hospital

administrator whose identity may become known in discovery." Plaintiff served

an affidavit of merit and CV prepared by Dr. David Mark Nidorf, who stated he

was "a practicing physician with over [twenty] years of experience in the field

of emergency medicine." In his CV, he stated he had a board certification in

emergency medicine from the American Academy of Physician Specialists since

2000. Dr. Nidorf submitted the affidavit as to Drs. Readie, Jetley, and Park.

During the August 14, 2018 Ferreira conference, defense counsel objected

to Dr. Nidorf's affidavit, questioning whether he was board certified in

emergency medicine given that the American Board of Medical Specialties

(ABMS) listed him on its website as being board certified in family medicine,

not emergency medicine. Counsel did not object to the sufficiency of Dr.

A-4020-19 10 Williams's affidavit for purpose of the Affidavit of Merit statute but reserved

the right to object to his testimony. The judge issued an order stating the hospital

had consented to the sufficiency of Dr. Parker's affidavit as to direct claims

against the hospital; counsel for the board-certified defendants, except Dr.

Subramony, had stipulated to the sufficiency of Dr. Williams's affidavit; and all

physician defendants had reserved their right to object to Dr. Nidorf's affidavit

if Dr. Nidorf was not board certified in emergency medicine. The judge ordered

plaintiffs' counsel to provide a certification from Dr. Nidorf as to whether he

was board certified in emergency medicine and to file a motion regarding the

sufficiency of the nurses' affidavits.

On August 21, 2018, plaintiffs filed a certification of Dr. Nidorf, in which

he stated he was board certified in emergency medicine "through the American

Academy of Physician Specialists since 2000." In an August 22, 2018 letter,

counsel for Dr. Subramony advised the court and counsel that Dr. Subramony

objected to the sufficiency of Dr. Williams's affidavit because Dr. Williams was

not board certified in emergency medicine at the time of the alleged malpractice.

In September and October 2018, plaintiffs submitted certifications of

merit prepared by Drs. Lee Wachtel, a psychiatrist; Stephen Falk, an

otolaryngologist; and Robert Stark, a cardiologist. They each recognized they

A-4020-19 11 did not specialize in emergency medicine and asserted the care involved in

Jackie's case was not limited to or did not involve emergency medicine "as the

care involved the taking of urine sample from a hospital patient."

On January 17, 2019, plaintiffs served reports prepared by Drs. Nidorf and

Williams. In his report, Dr. Nidorf identified Dr. Park as the doctor who had

primarily treated Jackie and Dr. Readie as Dr. Park's attending physician and

noted they had been called to Jackie's bedside. Dr. Nidorf said nothing else

about Dr. Readie and said nothing at all about Dr. Jetley. In the opinion section

of his report, he faulted Dr. Park for inadequate charting and faulted Dr. Park

and "other staff members" for not listening to Myong about how to collect a

urine sample from Jackie and for not attempting first to obtain a sample by

giving Jackie the opportunity to urinate in a cup.

In his report, Dr. Williams stated Dr. Park had evaluated Jackie but did

not otherwise mention Dr. Park or make any specific reference of the other

individual defendants. Dr. Williams opined generally that Jackie's death was

caused by "the acts and omissions of all doctors and nurses, individually and

collectively, involved in these early events," presumably meaning the "traumatic

urethral catheterization attempt."

A-4020-19 12 On January 17, 2019, plaintiffs served expert reports prepared by Drs.

Stark, Parker, and Wachtel, and Nurse Frumenti. In his report, Dr. Stark, the

internist and cardiologist, did not make any reference to Drs. Readie or Jetley.

He asserted Dr. Park between 6:00 p.m. and 6:15 p.m. had repeatedly attempted

unsuccessfully to insert a urinary catheter into Jackie. He opined about the

standard of care only in emergency medicine even though he was not board

certified in emergency medicine. He concluded the "terror of being . . .

physically restrained by strangers . . . precipitated . . . [Jackie's] lethal cardiac

arrhythmia." In his report, Dr. Parker, the internist, does not reference Drs.

Readie, Jetley, or Park but discussed the hospital and its personnel generally.

Similarly, in her report, Dr. Wachtel, the psychiatrist, did not reference Drs.

Readie, Jetley, or Park but generally faulted "members of Jackie's Englewood

Emergency Department care team." In her report, Nurse Frumenti did not

identify any specific actions or omissions of Nurse Vogt and referenced only the

"nursing staff" generally.

On January 28, 2019, plaintiffs served the expert reports of Nurse

Radoslovich and Dr. Falk, the otolaryngologist. In her report, Nurse

Radoslovich set forth what she believed was the applicable nursing standard of

care and stated she believed Nurse Vogt had deviated from that standard of care

A-4020-19 13 by failing to: "address [Jackie's] unique communication needs by not allowing

her mother to remain with her during treatment"; "document that her special

needs were addressed"; "communicate effectively with [Jackie's] parents and

[Jackie] as to why a urinary catheter was necessary to obtain a urine sample as

opposed to a 'clean Catch' sample"; "follow [The Joint Commission] restraint

policy that states 'only used when less restrictive interventions are ineffective'";

"to document the need for restraint"; and "to document appropriately the

sequence of events that occurred in the emergency room." She also opined about

the cause of death.

Dr. Falk also did not specifically identify any actions or omissions of Drs.

Readie, Jetley, or Park that caused Jackie harm. He stated he was "familiar with

the standards of care applicable to the otolaryngologic treatment of patients like

Jackie" and opined "multiple seizures in [the ER] . . . lead to [Jackie's] premature

death."

On February 5, 2019, the hospital and Dr. Jetley moved to bar expert

testimony regarding hospital staff for which plaintiffs had not submitted an

affidavit of merit and to limit the testimony of plaintiffs' designated expert

witnesses Drs. Nidorf, Williams, Wachtel, Stark, and Parker and Nurse Frumenti

to the extent the expert witnesses in their reports (1) made vague, generic

A-4020-19 14 references to hospital staff members not identified in any affidavit of merit; (2)

referenced people not named as defendants; and (3) offered opinions on the

standard of care applicable to emergency-medicine physicians and nurses when

they did not share the same specialty or were not otherwise qualified to offer

those opinions. A week later, the hospital and Dr. Jetley filed a similar motion

regarding plaintiffs' expert witnesses Dr. Falk and Nurse Radoslovich. Dr.

Readie and Englewood cross-moved for similar relief.

At oral argument, plaintiffs' counsel acknowledged an expert witness who

was not board certified in emergency medicine could not offer an opinion on the

standard of care applicable to emergency-room physicians or nurses and stated

plaintiffs' expert witnesses would testify about a particular identified person and

not "bootstrap others in that expert's opinion." He also conceded Nurse

Radoslovich was not qualified to offer a medical opinion regarding Jackie's

cause of death.

After hearing oral argument, the motion judge issued an order on March

19, 2019, granting defendants' motions. The order barred plaintiffs' expert

witnesses from offering opinions concerning alleged acts or omissions of

"persons other than named defendants for whom an [a]ffidavit of [m]erit has

been provided" and from "using generic refences to 'staff,' '[emergency

A-4020-19 15 department] staff' and other non-specific identifiers." The order barred Drs.

Wachtel, Stark, Falk, and Parker and Nurses Frumenti and Radoslovich from

offering opinions concerning the standard of care applicable to Drs. Park, Jetley,

and Readie and Nurse Radoslovich from opining about any medical diagnosis

or causation because those opinions "would be outside the[ir] respective areas

of expertise." In the six months following the issuance of those orders, plaintiffs

did not serve any new or supplemental expert reports.

After conducting a conference, Judge Thurber on September 13, 2019,

issued an order extending the discovery period to April 10, 2020, and requiring

the parties to complete party and fact-witness depositions by November 11,

2019, plaintiffs to serve supplemental expert reports no later than December 11,

2019, defendants to serve all expert reports no later than February 10, 2020, and

the parties to complete expert depositions by April 10, 2020. The order directed

the parties to contact the court to "resolve disputes or difficulties in complying

with this [o]rder."

Plaintiffs did not serve any supplemental expert reports by the court-

ordered deadline of December 11, 2019, nor did they inform the court they were

having any difficulty complying with the deadlines set forth in the court's order

or otherwise seek an extension of time to serve supplemental expert reports. The

A-4020-19 16 hospital and defendant doctors served expert reports before the February 10,

2020 deadline.

On February 6, 2020, Dr. Park moved to bar plaintiffs' expert witnesses

Drs. Nidorf and Williams from testifying against her. Dr. Park argued Drs.

Nidorf and Williams had issued net opinions under the wrong standard of care

and were not qualified to opine about Dr. Park, who was a second-year internal-

medicine resident subject to the standard of care of a general practitioner when

she treated Jackie. The hospital and Drs. Jetley and Readie subsequently moved

or cross-moved to bar Drs. Nidorf and Williams from testifying against them.

The hospital and Dr. Jetley argued (1) Dr. Nidorf had not been certified by

ABMS but by the American Academy of Physician Specialists, which was not

recognized as a certifying board in N.J.S.A. 2A:53A-41, which is part of the

New Jersey Medical Care Access and Responsibility and Patients First Act

(Patients First Act), N.J.S.A. 2A:53A-37 to -42; (2) Dr. Williams was not board

certified until after defendants' May 12, 2016 treatment of Jackie; (3) Dr.

Williams was not a nurse and not qualified to testify about nursing care; and (4)

neither doctor had opined about the standard of care applicable to Dr. Jetley or

how Dr. Jetley had deviated from a standard of care. Dr. Readie made similar

arguments. Nurse Vogt joined in the hospital's and Drs. Park's and Jetley's

A-4020-19 17 motions. Plaintiffs opposed defendants' motions and moved to amend the

complaint to identify Kathleen Cookson as defendant "Kathy Doe."

During oral argument on February 28, 2020, plaintiffs' counsel conceded

Dr. Nidorf had held Dr. Park to the standard of care of an emergency-room

doctor and was not "qualified to express an opinion as to [Dr. Jetley]."

Plaintiffs' counsel also conceded Dr. Williams had not "name[d] Dr. Jetley by

name" in his report and plaintiffs did not have any evidence to contradict

hospital records establishing Dr. Jetley had left the hospital before the attempted

catheterization. Plaintiffs' counsel confirmed plaintiffs were not submitting Drs.

Nidorf or Williams as expert witnesses concerning Nurse Vogt.

The judge granted Dr. Park's motion, finding plaintiffs' experts in their

reports had "not identif[ied] the standard of care for Dr. Park identifying her . .

. in her proper capacity." The judge granted defendants' motion as to Dr. Jetley

because (1) plaintiffs' experts did not identify a standard of care applicable to

Dr. Jetley or explain how he had breached any applicable standard of care and

(2) neither Dr. Nidorf nor Dr. Williams was qualified to testify against Dr. Jetley

given that Dr. Nidorf was not board certified by ABMS and Dr. Williams was

not board certified at the time of the alleged malpractice. For the same reasons

and because it was undisputed Dr. Readie's first contact with Jackie was after

A-4020-19 18 the attempted catheterization and her first seizure, the judge granted Dr. Readie's

cross-motion. That same day, the judge issued four orders barring Drs. Nidorf

and Williams from testifying against Drs. Park, Jetley, and Readie and Nurse

Vogt and the hospital as to alleged acts of those individuals.

The judge denied plaintiffs' motion to amend the complaint to add

Cookson as a party defendant. The judge found the amendment would be futile

because the claim against Cookson would be barred by the statute of limitations

and plaintiffs had not acted with the required due diligence to amend the

complaint to name Cookson pursuant to the fictitious-defendant rule, R. 4:26-4.

Defendants subsequently moved or cross-moved for summary judgment.

Plaintiffs opposed those motions and moved for reconsideration of the February

28, 2020 orders barring Drs. Nidorf and Williams from testifying and for leave

to "supplement discovery" with "supplemental [expert] reports."

After hearing oral argument, the judge denied plaintiffs' motions, granted

summary judgment in favor of the defendant doctors, granted the hospital's

motion as to liability based on the defendant doctors, and reserved decision on

Nurse Vogt. The judge issued orders memorializing those decisions on April 9,

2020. The judge subsequently granted summary judgment in favor of Nurse

Vogt and the hospital for any alleged vicarious liability associated with Nurse

A-4020-19 19 Vogt's alleged acts or omissions and heard oral argument and granted the

hospital's summary-judgment motion on the remaining direct claims against the

hospital.

On appeal, plaintiffs argue the trial court erred in (1) granting defendants'

motions to bar certain expert testimony, which, according to plaintiffs, were

improper and premature motions in limines; (2) not rejecting any of defendants'

expert-based arguments given that any issues regarding the experts were

addressed during Ferreira conferences and were waived by defendants, the

treatment at issue did not involve defendants' specialties, and the Nidorf and

Williams reports were not impermissible net opinions; (3) granting defendants'

summary-judgment motions because plaintiffs' affidavits of merit and other

submissions identified the defendants about whom plaintiffs' experts would

testify, expert testimony was not needed under the common-knowledge

exception, and the motions were premature because discovery was on-going;

and (4) in denying plaintiffs' motions to amend the complaint, for

reconsideration, and to submit supplemental expert reports.

II.

We review a grant of summary judgment "de novo and apply the same

standard as the trial court." Rios v. Meda Pharm., Inc., 247 N.J. 1, 13 (2021).

A-4020-19 20 Summary judgment should be granted "if the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any, show

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." Templo

Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189,

199 (2016) (quoting R. 4:46-2(c)). "An issue of material fact is 'genuine only

if, considering the burden of persuasion at trial, the evidence submitted by the

parties on the motion, together with all legitimate inferences therefrom favoring

the non-moving party, would require submission of the issue to the trier of fact.'"

Grande v. St. Clare's Health Sys., 230 N.J. 1, 24 (2017) (quoting Bhagat v.

Bhagat, 217 N.J. 22, 38 (2014)).

An allegation is not enough to defeat summary judgment; the non-moving

party "must produce sufficient evidence to reasonably support a verdict in its

favor." Invs. Bank v. Torres, 457 N.J. Super. 53, 64 (App. Div. 2018), aff'd and

modified by 243 N.J. 25 (2020); see also Sullivan v. Port Auth. of N.Y. & N.J.,

449 N.J. Super. 276, 279-80 (App. Div. 2017) (explaining that "bare

conclusions" lacking "support in affidavits" are "insufficient to defeat [a]

summary judgment motion"). When determining if a genuine issue of material

fact exists, the judge must determine "whether the evidence presents a sufficient

A-4020-19 21 disagreement to require submission to a jury or whether it is so one-sided that

one party must prevail as a matter of law." Brill v. Guardian Life Ins. Co. of

Am., 142 N.J. 520, 533 (1995) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 251-52 (1986)); see also Petro-Lubricant Testing Lab'ys, Inc. v.

Adelman, 233 N.J. 236, 257 (2018). We do not defer to the trial court's legal

analysis. RSI Bank v. Providence Mut. Fire Ins. Co., 234 N.J. 459, 472 (2018).

We review a trial judge's reconsideration, discovery, and evidentiary

rulings, including decisions regarding expert witnesses, under the abuse-of-

discretion standard. State v. Garcia, 245 N.J. 412, 430 (2021) (evidentiary);

Branch v. Cream-O-Land Dairy, 244 N.J. 567, 582 (2021) (reconsideration);

State v. Brown, 236 N.J. 497, 521 (2019) (discovery); Townsend v. Pierre, 221

N.J. 36, 52 (2015) (expert). We do not substitute our judgment for the trial

judge's judgment unless the trial judge's "ruling is 'so wide of the mark' that it

constitutes 'a clear error in judgment,'" Garcia, 245 N.J. at 430 (quoting State v.

Medina, 242 N.J. 397, 412 (2020)), or is based on a "misapplication of the law,"

Cap. Health Sys., Inc. v. Horizon Healthcare Servs., Inc., 230 N.J. 73, 79-80

(2017).

In addition to those standards of review, in deciding this appeal we are

guided by the following cornerstone principle of medical-negligence law: "To

A-4020-19 22 prove medical malpractice . . . '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.'"

Haviland v. Lourdes Med. Ctr. of Burlington Cnty., 250 N.J. 368, 384 (2022)

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

A.

Regarding the March 19, 2019 order limiting the scope of plaintiffs' expert

witness's opinions, plaintiffs label the motions that led to that order as "motions

in limine" and fault Judge Thurber for considering them prematurely instead of

leaving them to the trial judge to decide, citing Cho v. Trinitas Regional Medical

Center, 443 N.J. Super. 461, 470-71 (App. Div. 2015), and McLean v. Liberty

Health System, 430 N.J. Super. 156, 160 (App. Div. 2013). In making that

argument, plaintiffs forget the concessions their attorney made during oral

argument and misconstrue Cho and McLean.

In the March 19, 2019 order, the judge barred plaintiffs' expert witnesses

from opining about "persons other than named defendants for whom an

[a]ffidavit of [m]erit has been provided" and about standards of care outside

their areas of expertise and from using generic references. When asked if he

had any argument to make in response to defendants' contention that pursuant to

A-4020-19 23 Nicholas, 213 N.J. 463, plaintiffs' expert witnesses could not "offer opinions on

standard of care issues applicable to emergency room physicians," plaintiffs'

counsel responded, "No, Judge." When asked if plaintiffs were contesting the

merits of defendants' argument concerning the experts' use of generic references

to unnamed employees and opining about employees not named as defendants,

plaintiffs' counsel responded, "No, Judge. We . . . have seven named

defendants." When asked if it was "fair to say that the experts will be limited

from any sort of . . . generic or group references to other people . . . an actor

who was not identified as to which there wasn't an affidavit of merit," plaintiffs'

counsel answered, "Correct, Judge." In the order, the judge also barred Nurse

Radoslovich from opining about any medical diagnosis or causation as being

outside her area. During oral argument, plaintiffs' counsel advised the judge

that the motions as to Nurse Radoslovich was "unopposed." In the March 19,

2019 order, Judge Thurber memorialized the concessions plaintiffs' counsel had

made during oral argument.

Plaintiffs' reliance on Cho and McLean is misplaced. In McLean, 430 N.J.

Super. at 165, we held the trial court had erred in limiting the number of expert

witnesses based on an alleged duplication of evidence – an issue not raised

before or found by Judge Thurber. In Cho, we faulted a trial court for deciding

A-4020-19 24 the defendant's motion on the eve of trial, thereby violating the plaintiff's due-

process rights by depriving him of the time provided in the Rules of Court to

oppose the motion. 443 N.J. Super. at 472-75. Had Judge Thurber treated these

motions like motions in limine and waited until the eve of trial to decide them,

she would have made the same mistake the trial judge in Cho made and would

have deprived plaintiffs of their due-process rights. Instead, by deciding the

motions when she decided them, Judge Thurber gave plaintiffs the appropriate

time to respond to the motions, brought necessary clarity to the case, and gave

plaintiffs time to cure any deficiencies.

B.

Plaintiffs contend the judge erred in granting defendants' motions to bar

the testimony of Drs. Nidorf and Williams in the February 28, 2020 orders

because (1) defendants had waived any objections to plaintiffs' expert witnesses

in the Ferreira conferences; (2) the treatment at issue did not involve defendants'

specialties; and (3) the reports were not impermissible net opinions. Perceiving

no abuse of discretion in Judge Thurber's decision to grant defendants' motions,

we affirm.

A-4020-19 25 1.

In their waiver argument, plaintiffs conflate the Affidavit of Merit statute,

N.J.S.A 2A:53A-26 to -29, and the Patients First Act, N.J.S.A. 2A:53A-37 to -

42. The Affidavit of Merit statute addresses the affidavit a plaintiff in a

professional malpractice case must submit in the early stages of the case to

establish as a threshold matter that his or her claim has merit. See Buck v.

Henry, 207 N.J. 377, 382 (2011) ("In the early stages of a medical malpractice

action, a plaintiff must provide an affidavit from an equivalently credentialed

physician attesting 'that there exists a reasonable probability that the' defendant

physician's treatment 'fell outside acceptable professional' standards." (quoting

N.J.S.A. 2A:53A-27)). "The core purpose underlying the statute is 'to require

plaintiffs . . . to make a threshold showing that their claim is meritorious, in

order that meritless lawsuits readily could be identified [and dismissed] at an

early stage of litigation.'" Ryan v. Renny, 203 N.J. 37, 51 (2010) (quoting In re

Petition of Hall, 147 N.J. 379, 391 (1997)). See also Meehan v. Antonellis, 226

N.J. 216, 228 (2016) (purpose of Affidavit of Merit statute is "to weed out

frivolous claims against licensed professionals early in the litigation process") .

The Patients First Act establishes the required qualifications of a medical-

malpractice plaintiff's testifying expert. Specifically, N.J.S.A. 2A:53A-41 of

A-4020-19 26 the Patients First Act "requires that plaintiffs' medical expert must 'have

specialized at the time of the occurrence that is the basis for the [malpractice]

action in the same specialty or subspecialty' as defendant physicians." Nicholas,

213 N.J. at 468 (quoting N.J.S.A. 2A:53A-41) (alteration in the original).

Pursuant to the Patients First Act, a plaintiff "cannot establish the standard of

care through an expert who does not practice in the same medical specialties as

defendant physicians," id. at 468, and who is not "equivalently credentialed in

the same specialty or subspecialty as the defendant physician," id. at 467.

Whether plaintiffs met the standard under the Affidavit of Merit statute

does not relieve them of their obligation to meet the requirements of the Patient

First Act. In Nicholas, one defendant physician had been board certified in

emergency medicine and another in family medicine. 213 N.J. at 469. The

plaintiff submitted affidavits of merit from two doctors who were board certified

in internal medicine. Id. at 471. The emergency-medical defendant moved for

summary judgment based on the plaintiff's failure to submit an affidavit of merit

from an emergency-medicine specialist but subsequently withdrew that motion.

Ibid. The record did not indicate whether the family-medicine defendant had

objected to an affidavit of merit. The plaintiff submitted an expert report from

one of the internists who had submitted an affidavit of merit. Defendants moved

A-4020-19 27 to bar the plaintiffs' use of that internist as an expert witness "on the ground that,

under N.J.S.A. 2A:53A-41, [he] did not have the requisite credentials to testify

to the standard of care applicable to board-certified physicians in emergency

medicine and family medicine" and moved for summary judgment because the

plaintiffs did not have the expert testimony necessary to establish the applicable

standard of care. Id. at 473-74.

Even though the defendants effectively had accepted the internist's

affidavit of merit, the Court reversed the denial of defendants' summary -

judgment motions, holding the plaintiff had failed to meet the requirement under

the Patients First Act that a plaintiff's testifying medical expert at the time of the

alleged malpractice be equivalently credentialed in the same specialty as the

defendant doctor. Id. at 468. Thus, a failure to object to an affidavit of merit

under the Affidavit of Merit statute does not constitute a waiver of the right

under the Patients First Act to have a plaintiff prove his case through the

testimony of a qualified expert.

Contrary to plaintiffs' blanket assertion about waiver, some defense

counsel had raised concerns about Dr. Nidorf and Dr. Williams in the course of

the Ferreira conferences. Some questioned whether Dr. Nidorf was board-

certified in emergency medicine according to ABMS, questioned whether Dr.

A-4020-19 28 Williams was board certified in emergency medicine at the time of the alleged

malpractice in this case, and expressly reserved the right to object to Dr.

Williams's testimony. Moreover, defendants' motions to bar the testimony of

Drs. Nidorf and Williams were not based on the Affidavit of Merit statute b ut

plaintiffs' failure to meet the statutory qualifications for expert testimony under

the Patients First Act. As in Nicholas, even if defendants did not object to

plaintiffs' affidavits of merit under the Affidavit of Merit statute, that does not

constitute a knowing waiver of their rights under the Patients First Act and does

not prevent them from moving to bar testimony pursuant to the Patients First

Act.

2.

Labelling this case as a routine urine-collection case, plaintiffs contend

the treatment at issue did not involve defendants' specialties and, consequently,

plaintiffs did not have to support their case with testimony from a qualified

specialist. To accept that argument, we would have to ignore the facts of this

case. And that we cannot do. "It is not the label placed on the action that is

pivotal but the nature of the legal inquiry." Couri v. Gardner, 173 N.J. 328, 340

(2002). Instead of focusing on a label, "courts should determine if the claim's

A-4020-19 29 underlying factual allegations require proof of a deviation from the professional

standard of care applicable to that specific profession." Ibid.

Myong brought Jackie, who was autistic and had a history of seizures, to

the emergency department of the hospital not simply for the collection of a

specimen for a urine test but because Jackie had not been eating for days and

her neurologist was concerned she might have a bladder or urinary-tract

infection or pneumonia. At the hospital, Jackie was running a fever, was

dehydrated, and had a severely-distended abdomen. Blood tests showed Jackie

had an elevated white blood count. Considering as we must those circumstances

in their entirety, we are convinced, contrary to plaintiffs' contention, that

defendants' treatment of Jackie involved the practice of emergency medicine.

See Nicholas, 213 N.J. at 469 n.1 (stating emergency-medicine doctors "focus

'on the immediate decision making and action necessary to prevent death or any

further disability'" and "provide 'immediate recognition, evaluation, care,

stabilization and disposition of a generally diversified population of adult and

pediatric patients in response to acute illness and injury.'" (quoting ABMS

Member Boards, Emergency Medicine, http://www.certificationmatters.org/

abms-member-boards/emergency-medicine.aspx (last visited Apr. 9, 2013))).

A-4020-19 30 Consequently, plaintiffs had to support their case with testimony from a

qualified emergency-medicine specialist.

We also find meritless plaintiffs' argument that they were relieved of that

obligation because Drs. Jetley and Readie did not state in their answers that the

treatment at issue involved their specialty. Judge Thurber found plaintiffs were

aware throughout the litigation that defendants had claimed their treatment of

Jackie involved emergency medicine and that to hold otherwise would be

"inconsistent with everything that has taken place . . . in the case up to this

point." We see no basis to disturb that finding, which is supported by the record.

3.

Plaintiffs fault the judge for granting defendants' motions barring the

testimony of Drs. Nidorf and Williams as insufficient net opinions, contending

Drs. Nidorf and Williams had given in their reports the whys and wherefores of

their opinions and had articulated sufficiently and accurately the applicable

standard of care, defendants' deviations from the applicable standard of care,

and how defendants' deviations from the standard of care caused injury. We

disagree and affirm.

To testify against a defendant doctor, an expert witness must actually

discuss the defendant doctor in his or her report. Neither Dr. Nidorf nor Dr.

A-4020-19 31 Williams mention Dr. Jetley in their reports. Dr. Williams said nothing about

Dr. Readie in his report. Dr. Nidorf's generic references to "other staff

members" and Dr. Williams's reference to "all doctors" are insufficient and do

not constitute an articulation of what standard of care applied to Drs. Jetley or

Readie, how those two doctors deviated from the applicable standard of care, or

how their alleged deviation proximately caused injury. See Haviland, 250 N.J.

at 384 (finding a medical-malpractice 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"

(quoting Nicholas, 213 N.J. at 478)). That they may have mentioned Drs. Readie

or Jetley in prior affidavits does not excuse their failure to opine about them in

their reports.

Dr. Nidorf merely identified Dr. Readie as Dr. Park's attending physician

who had been called to Jackie's bedside after Jackie pulled out her IV and had a

seizure. He did not state how Dr. Readie had deviated from an applicable

standard of care. With nothing more in their reports about these two defendant

doctors, Judge Thurber properly barred Drs. Nidorf and Williams from testifying

against Drs. Jetley and Readie.

A-4020-19 32 Both Dr. Nidorf and Dr. Williams reference Dr. Park in their reports. For

residents, like Dr. Park, the applicable standard of care is the same as that for a

general practitioner. Clark v Univ. Hosp.-UMDMJ, 390 N.J. Super. 108, 115

(App. Div. 2006). In opposition to Dr. Park's motion to bar his testimony, Dr.

Nidorf submitted a certification in which he conceded he had held her to the

standard of care of an emergency-medicine physician. Because Dr. Nidorf had

based his opinions regarding Dr. Park on an inapplicable standard of care, Judge

Thurber correctly determined Dr. Nidorf could not testify against Dr. Park.

Dr. Williams did not articulate what standard of care applied to Dr. Park.

Instead, he asserted "there was a violation of the standard of care in attempting

to obtain a urine sample through the use [of] physical restraint and urinary

catheterization despite the obvious and extreme mental and physical distress of

the patient." He then identified four "[a]cceptable alternatives that a prudent

emergency team may have attempted." An "[a]cceptable alternative" is not the

same thing as a standard of care. Judge Thurber reasonably concluded Dr.

Williams, like Dr. Nidorf, had based his opinions regarding Dr. Park on a

standard of care for an emergency-medicine doctor. Given Dr. Williams's

reference to "a prudent emergency team," we see no reason to disturb that

conclusion. In addition, Dr. Williams did not articulate how Dr. Park had

A-4020-19 33 deviated from any applicable standard of care. He stated only that Dr. Park had

"evaluated" Jackie. If his reference to "attempting to obtain a urine specimen

through the use of physical restraint and urinary catheterization" was his attempt

to identify a deviation from a standard of care, Dr. Williams failed to articulate

what role, if any, Dr. Park had played in that purported deviation. 5

Given their reports' multiple deficiencies in critical areas, we perceive no

error in the judge's decision to grant defendants' motions and bar Drs. Nidorf

and Williams from testifying. Having affirmed the February 28, 2020 orders

granting defendants' motion, we also affirm the April 9, 2020 order denying

plaintiffs' motion for reconsideration of those orders.

C.

As a result of the March 19, 2019 and February 28, 2020 orders, which

we affirm, plaintiffs had no expert witness who could testify about the standard

of care that applied to the defendant doctors, deviations from the standard of

care by the defendant doctors, or how their deviations proximately caused harm

5 In their reply brief, plaintiffs assert plaintiffs could have relied on the reports of Drs. Wachtel, Stark, and Falk to prove their case against Dr. Park. Even if we were to consider that argument, see Pannucci v. Edgewood Park Senior Hous. – Phase 1, LLC, 465 N.J. Super. 403, 409-410 (App. Div. 2020) (noting it is improper to raise new issues in a reply brief), it is unconvincing. Those doctors expressly based their opinions on a standard of care related to their specialties, not on a standard of care applicable to a general practitioner. A-4020-19 34 to Jackie. Accordingly, because plaintiffs could not provide the essential expert

testimony required to prove medical malpractice, see Haviland, 250 N.J. at 384,

Judge Thurber correctly granted the summary-judgment motions as to Drs. Park,

Readie and Jetley. And because plaintiffs could not prove the negligence of the

defendant doctors, Judge Thurber correctly granted summary judgment as to the

hospital on all vicarious-liability claims related to the defendant doctors.

Walker v. Choudhary, 425 N.J. Super. 135, 152 (App. Div. 2012) ("[a] verdict

which exonerates the employee from liability requires also the exoneration of

the employer." (quoting Kelley v. Curtiss, 16 N.J. 265, 270 (1954))); see also

G.A.-H. v. K.G.G., 238 N.J. 401, 418 (2019) (after finding plaintiffs could not

prove an employee had committed a tort, Court held employer could not be

vicariously liable for employee's conduct).

Plaintiffs' expert submissions as to Nurse Vogt were similarly deficient.

Plaintiffs' expert Nurse Frumenti referenced Nurse Vogt but only as being at

Jackie's bedside at a certain time, dispensing Ativan, and authoring certain notes.

She did not identify any deviation by Nurse Vogt from any standard of care.

Unlike Nurse Frumenti, plaintiffs' expert Nurse Radoslovich in her report set

forth standard-of-care deviations by Nurse Vogt. But that's not enough. A

plaintiff in a medical-negligence case must also present "expert testimony

A-4020-19 35 establishing . . . (3) that the deviation proximately caused the injury." Haviland,

250 N.J. at 384 (quoting Nicholas, 213 N.J. at 478). As plaintiffs' counsel

conceded during oral argument and as the judge memorialized and found in the

March 19, 2019 order, Nurse Radoslovich was not qualified to opine about

causation. Plaintiffs did not provide any other expert report with respect to

Nurse Vogt establishing that any deviation asserted by Nurse Radoslovich

proximately caused injury to Jackie. Without that critical proof of causation,

plaintiffs' claim against Nurse Vogt is not legally viable and summary judgment

was appropriately granted as to plaintiffs' claims against him and vicarious-

liability claims against the hospital based on Nurse Vogt.

In the "Hospital Liability" count of their complaint, plaintiffs allege the

hospital was directly liable for its failures to "have a policy in compliance with

The Joint Commission," "train the ER staff," "to enforce compliance with the

standards," and "to have an emergency room that is minimally capable of

servicing an autistic patient." Each of those direct claims against the hospital

required plaintiffs to prove the elements of a negligence claim, including that

the hospital had failed in a duty owed to plaintiffs and that that breach of a duty

actually and proximately had caused injury. Fernandes v. DAR Dev. Corp., 222

N.J. 390, 403-04 (2015) (identifying elements of a negligence claim); see also

A-4020-19 36 G.A.-H., 238 N.J. at 416 (2019) (to prove negligent supervision or training, a

plaintiff must prove the employer "knew or had reason to know that the failure

to supervise or train an employee in a certain way would create a risk of harm ,"

"that risk of harm materializes," and the failure to supervise or train "cause[d]

the plaintiff's damages"). Given the judge's prior orders, which we affirm,

plaintiffs cannot prove that any hospital staff member – whether through lack of

training or supervision or the hospital not having a particular policy in p lace –

proximately caused Jackie harm. Accordingly, plaintiffs could not prove their

direct-liability claims against the hospital, and Judge Thurber appropriately

granted summary judgment as to plaintiffs' direct claims against the hospital.

In their argument for reversal of the summary-judgment orders, plaintiffs

rely on Fink v. Thompson, 167 N.J. 551 (2001). That reliance is misplaced. In

Fink, the Court addressed whether the plaintiff had substantially complied with

the Affidavit of Merit statute. Id. at 565. Judge Thurber granted defendants'

summary-judgment motions not based on any failure to comply with the

Affidavit of Merit statute but because plaintiffs, lacking the expert testimony

required to establish medical malpractice, could not prove their case.

A-4020-19 37 Plaintiffs' argument that the summary-judgment motions were premature

is equally unconvincing. 6 Generally, summary judgment is premature when the

opposing party has not yet had an opportunity to conduct discovery and develop

facts on which he or she intends to base his or her claims. Friedman v. Martinez,

242 N.J. 449, 472 (2020) (cautioning against granting summary judgment when

discovery is incomplete and "critical facts are peculiarly within the moving

party's knowledge" (quoting James v. Bessemer Processing Co., 155 N.J. 279,

311 (1998))). A summary-judgment motion is not premature merely because

discovery has not been completed, unless the plaintiff is able to "demonstrate

with some degree of particularity the likelihood that further discovery will

supply the missing elements of the cause of action." Friedman, 242 N.J. at 472-

73 (quoting Badiali v. N.J. Mfrs. Ins. Grp., 220 N.J. 544, 555 (2015)). Plaintiffs

fail to meet that standard.

Plaintiffs assert they had until the close of discovery to "update, modify

or supplement" their expert reports. That assertion, made with no legal support,

6 Plaintiffs also seem to argue the hospital moved too late for summary judgment on the direct-liability claims against it, contending the hospital should have moved on those claims when it moved for summary-judgment on the vicarious- liability claims against it. But no court rule or order required the hospital to move on those issues at the same time or to file its motion on the direct-liability claims before it did. A-4020-19 38 is contrary to the September 13, 2019 order, in which the judge extended

discovery to April 10, 2020, required the parties to complete all party and fact

witness depositions by November 11, 2019, and plaintiffs to serve supplemental

expert reports no later than December 11, 2019, and directed the parties to

contact the court to "resolve disputes or difficulties in complying with" the

order. Plaintiffs failed to meet that deadline or advise the court before the

deadline passed that they needed more time to comply with it. Plaintiffs had a

full and extended opportunity to conduct discovery and have not demonstrated

that additional discovery would have supplied the missing elements of their case.

Plaintiffs rely on the common-knowledge doctrine.7 Under the common-

knowledge doctrine, "a malpractice case against a licensed professional may

present triable issues without resort to the testimony of an expert. In such a case

the jury itself is allowed 'to supply the applicable standard of care and thus to

obviate the necessity for expert testimony relative thereto.'" Rosenberg v.

7 Plaintiffs argue in their reply brief expert testimony was not necessary because Myong should have been allowed to offer a lay opinion to the jury about her ability to collect from Jackie a reliable clean catch urine sample. We decline to consider that argument, which was improperly raised for the first time in an appellate reply brief and not raised before the trial court. See Alloco v. Ocean Beach & Bay Club, 456 N.J. Super. 124, 145 (App. Div. 2018) (applying "well- settled" principle that an appellate court will not consider an issue that was not raised before the trial court); State v. Amboy Nat'l Bank, 447 N.J. Super. 142, 148 n.1 (App. Div. 2016) (deeming waived an issue raised first in a reply brief). A-4020-19 39 Cahill, 99 N.J. 318, 325 (1985) (quoting Sanzari v. Rosenfeld, 34 N.J. 128, 141

(1961)). See also Zuidema v. Pedicano, 373 N.J. Super. 135, 147 (App. Div.

2004) (when the common knowledge exception applies, the standard of care

need not be established by expert testimony). "The basic postulate for the

application of the common knowledge doctrine in a malpractice action 'is that

the issue of negligence is not related to technical matter peculiarly within the

knowledge of the licensed practitioner.'" Rosenberg, 99 N.J. at 325 (quoting

Sanzari, 34 N.J. at 142).

"The most appropriate application of the common knowledge doctrine

involves situations where the carelessness of the defendant is readily apparent

to anyone of average intelligence and ordinary experience." Ibid. It is unusual

to invoke the common knowledge doctrine in a medical-malpractice case. Ibid.;

see also Komlodi v. Picciano, 217 N.J. 387, 409-410 (2014) ("In medical

malpractice cases, the standard of care generally is not a matter of common

knowledge and must be established by experts . . . ."). Examples of

circumstances falling under the common-knowledge exception include a dentist

extracting the wrong tooth, Hubbard v. Reed, 168 N.J. 387, 396-97 (2001), a

doctor reading specimen identification numbers as actual test results, Palanque

v. Lambert-Woolley, 168 N.J. 398, 407-08 (2001); and a surgeon leaving a

A-4020-19 40 sponge in a patient after an operation, Buckelew v. Grossbard, 87 N.J. 512, 526-

27 (1981).

Plaintiffs assert, without any support, it is common knowledge that

defendants should have given Myong a cup to obtain a urine sample from Jackie.

We disagree. This case involves a patient with autism and a history of seizures

who had not been eating for days and had a severely-distended abdomen, a fever,

and an elevated white blood count, and was brought to the hospital's emergency

department on the advice of her treating neurologist who was concerned she had

a bladder or urinary-tract infection or pneumonia. Determining what needed to

be done to determine the source of a possible infection, what tests to perform,

how to perform those tests, what samples to collect from that patient, whether it

was necessary to collect sterile samples, and how to collect those samples under

those circumstances is beyond the common knowledge of the average juror.

D.

We perceive no abuse of discretion in the judge's denial of plaintiffs'

motion for leave to amend and motion for leave to serve supplemental discovery.

Accordingly, we affirm those orders.

Plaintiffs filed their complaint on April 25, 2018. Plaintiffs named as a

fictitious defendant "Kathy Doe," who was "a technician . . . involved in the

A-4020-19 41 forcible restraining of Jackie . . . ." Plaintiffs named the fictitious defendant

"Kathy" based on medical records already in plaintiffs' possession identifying

the technician by her first name. Plaintiffs had the full name and address of

Kathleen Cookson by at least September 25, 2019. Plaintiffs did not serve a

subpoena on Cookson until January 2020, after the close of fact discovery . In

response to defendants' motions to bar the testimony of Drs. Nidorf and

Williams, plaintiffs on February 20, 2020, cross-moved to amend the complaint

to clarify Cookson was Kathy Doe.

Rule 4:26-4 permits a plaintiff to move to amend a complaint to state a

fictitious defendant's true name, even if the statute of limitations has run.

However, Rule 4:26-4 requires a plaintiff to demonstrate two phases of due

diligence: (1) before filing the original complaint naming the fictitious

defendant, a plaintiff must exercise due diligence in attempting to identify the

responsible defendants; and (2) a plaintiff must act with due diligence in

ascertaining the fictitious defendant's true name and substituting it upon learning

that defendant's identity. Baez v. Paulo, 453 N.J. Super. 422, 439 (App. Div.

2018). Judge Thurber found plaintiffs had failed to demonstrate the required

due diligence. The record contains no evidence of any effort by plaintiffs to

identify Cookson pre-suit. Plaintiffs knew her identity no later than September

A-4020-19 42 25, 2019, but waited almost five months to move to amend the complaint to

name her. That delay does not bespeak of diligence. Judge Thurber did not

commit any error or abuse her discretion in denying plaintiffs' motion to amend.

Between the issuance of the March 19, 2019 order, which put plaintiffs on

notice of deficiencies in their expert reports, and the September 13, 2019 case

management order, plaintiffs took no action to supplement their expert reports.

In the September 13, 2019 order, the judge set a December 11, 2019 deadline

for plaintiffs to serve supplemental expert reports. Plaintiffs did not comply

with that court-ordered deadline, did not contact the court as directed to resolve

any difficulties in complying with that deadline, did not cross-move to

supplement their expert reports in response to defendants' motions to bar the

testimony of Drs. Nidorf and Williams, and did not move to extend that deadline

until after defendants had served their responsive expert reports and filed

summary-judgment motions. Judge Thurber concluded plaintiffs had made a

"tactical decision to present limited expert reports and not to supplement those

within the allowed time." Plaintiffs failed to articulate a good-faith basis to

explain their failure to comply with the court-ordered deadline or to extend that

deadline. See R. 4:24-1(c) (setting a good-cause standard for the extension of a

discovery deadline before the court has scheduled arbitration or trial). Judge

A-4020-19 43 Thurber did not abuse her discretion in denying plaintiffs' motion to submit

supplemental expert reports.

We find insufficient merit in plaintiffs' remaining arguments to warrant

discussion in a written opinion, R. 2:11-3(e)(1)(E).

Affirmed.

A-4020-19 44