RECORD IMPOUNDED
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-2621-16T4
J.M.,
Plaintiff-Respondent,
v.
T.F.,
Defendant-Appellant. _________________________
Argued November 8, 2018 – Decided January 17, 2019
Before Judges Fuentes, Vernoia and Moynihan.
On appeal from Superior Court of New Jersey, Chancery Division, Family Part, Middlesex County, Docket No. FV-12-2253-16.
Philip Nettl argued the cause for appellant (Benedict and Altman, attorneys; Philip Nettl, on the briefs).
Joseph DiRienzo argued the cause for respondent (DiRienzo & DiRienzo PA, attorneys; Joseph DiRienzo, on the briefs).
PER CURIAM Defendant T.F. appeals from a February 3, 2017 final restraining order
(FRO) entered in favor of plaintiff J.M. pursuant to the Prevention of Domestic
Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35. We reverse.1
I.
Plaintiff and defendant are the parents of a daughter who was eight years
old at the time of the incident which gave rise to the FRO. Defendant was the
child's parent of primary residence, and plaintiff enjoyed regular parenting time
with the child.
On May 24, 2016, defendant sent plaintiff a text message asking whether
he "prefer[red] sugar in [his] coffee or plain black" and stating their daughter
wanted to show plaintiff a "tee and net" in defendant's backyard when plaintiff
arrived the following day to pick her up for his scheduled parenting time.
Plaintiff was surprised by the message and offer of coffee because for many
years defendant had not provided refreshments when he picked up the child for
1 The FRO required that defendant pay plaintiff's attorney's fees "incurred for this matter" but did not specify the amount. On March 7, 2017, the court entered an order of judgment against defendant in the amount of $49,542 for plaintiff 's attorney's fees. Defendant's notice of appeal does not list the March 7, 2017 order and, therefore, defendant does not appeal from that order. However, because we reverse the entry of the FRO which directed the payment of attorney's fees in the first instance, we also reverse the March 7, 2017 order of judgment. A-2621-16T4 2 his parenting time, and plaintiff's and defendant's interactions concerning
parenting time had been contentious on occasion. Plaintiff's surprise at the offer
is reflected in the text message he sent in response: "Try again. I think you got
the wrong person."
The following day, May 25, 2016, was eventful. Plaintiff usually picked
up his daughter at defendant's parents' home, but received a text message from
defendant advising the child was at her home. When plaintiff arrived at 5:00
p.m., defendant and the child were on the porch. Defendant had a cup of coffee
waiting for plaintiff. The parties' daughter poured sugar from a box into
plaintiff's cup. Plaintiff, defendant, and the child then went to the backyard
where plaintiff and the child played catch and defendant attempted to construct
a pitch-back net. Shortly after plaintiff finished drinking the coffee, his speech
became slurred. He then became incapacitated and nonresponsive.
Defendant unsuccessfully attempted to call her father, a physician, and
then called 9-1-1. Emergency medical personnel arrived and transported
plaintiff to the emergency room at J.F.K. Medical Center, where he arrived
comatose and in critical condition.
His treating physician's initial diagnoses included a "[p]ossible seizure at
the time of presentation," "[r]espiratory failure," "[b]enzodiazepine, positive
A-2621-16T4 3 urine drug screen," and that plaintiff's "[a]ltered mental status [was] of unknown
etiology," meaning the cause of his condition was unknown. 2 When plaintiff
was discharged from the hospital six days later, his treating physician 's
discharge diagnoses were "[a]ltered mental status" and "[r]espiratory failure of
unknown etiology."
Twenty days after he left the hospital, plaintiff filed a June 20, 2016
complaint seeking a temporary restraining order against defendant under the
PDVA. The complaint alleged defendant committed the predicate act of assault,
N.J.S.A. 2C:25-19(a)(2), and asserted defendant gave plaintiff a cup of coffee
on May 25, 2016, plaintiff woke up at a hospital several days later, and doctors
told plaintiff they found a substance in his "blood stream." Plaintiff later alleged
more specifically that defendant assaulted him by putting benzodiazepine in the
coffee and that the benzodiazepine caused his coma and life-threatening medical
conditions. The court entered a June 20, 2016 domestic violence temporary
restraining order against defendant. Defendant was also charged criminally with
2 Plaintiff's treating physician did not testify at trial. He prepared a discharge summary that was admitted in evidence and details plaintiff's "admitting diagnoses" and "discharge diagnoses." "Etiology" means "cause [or] origin[,] specifically: the cause of a disease or abnormal condition." Etiology, Merriam- Webster Dictionary, https://www.merriam-webster.com/dictionary/etiology (last visited Jan. 2, 2019). A-2621-16T4 4 offenses, including attempted murder, based on the allegation that she put
benzodiazepine in plaintiff's coffee and caused his medical condition.
The trial on plaintiff's request for an FRO took place over eleven days,
and primarily turned on the issue of causation: that is, did benzodiazepine cause
plaintiff's critical medical condition. Plaintiff claimed his condition was caused
by benzodiazepine and that, based on the totality of the circumstances, it could
be reasonably inferred defendant assaulted him by placing benzodiazepine in the
coffee she gave him.
Plaintiff first called defendant as a witness. Defendant asserted her Fifth
Amendment right to remain silent and refused to testify. 3 Her counsel argued
3 Defendant filed a motion to supplement the record on appeal with an order dismissing the criminal charges against defendant arising out of the alleged incident with plaintiff and the transcript of the May 18, 2018 Criminal Division proceeding during which the charges were dismissed. The transcript shows the State requested dismissal of the criminal charges because its expert could not "opine beyond a reasonable doubt that [plaintiff's medical condition] was the result of benzodiazepine poisoning . . . as opposed to . . . an underlying medical condition." We granted the motion to supplement the record on appeal with the caveat that "[t]he Merits Panel shall decide whether the supplemental documents shall be considered." We have reviewed the transcript and order and conclude they are irrelevant to our determination of whether the Family Part correctly found plaintiff presented sufficient evidence supporting the issuance of the FRO under the PDVA. We consider the transcript and order only to the extent they provide confirmation that, at the time of the Family Part trial, defendant was charged with attempted murder and five other offenses in connection with the incident involving plaintiff. We otherwise decide the merits of the case based solely on the Family Part record. A-2621-16T4 5 the court should not draw any negative inference based on her assertion of her
Fifth Amendment rights. The judge observed that plaintiff had not argued a
negative inference should be drawn and said defendant's counsel should not
"make [the argument] for" plaintiff. Plaintiff's counsel did not request that the
court draw a negative inference based on defendant's refusal to testify. Instead,
he asserted that defendant's reliance on the Fifth Amendment right to remain
silent did not support her refusal to testify because testimony in the FRO hearing
could not be used "in a criminal proceeding or in any other proceeding." The
court rejected the argument, finding out of "an abundance of caution" that
defendant could properly refuse to testify.
Plaintiff testified and generally explained his interactions with defendant
concerning parenting time issues prior to May 25, 2016. He described his
exchange of text messages with defendant on May 24, 2016, and what occurred
when he went to defendant's home on May 25, 2016. He recalled defendant
holding the cup of coffee when he arrived, the child pouring what he understood
was sugar into the coffee, going into the back yard, drinking the coffee and
feeling incapacitated. He next remembered waking up in the hospital three days
later. He testified he did not eat or drink anything unusual on May 25, 2016,
A-2621-16T4 6 and had not taken medications or drugs of any kind on that day or the days
preceding it.
Plaintiff also called Dr. Kamalakar Vanam as a witness. He is the
emergency room doctor who cared for plaintiff from shortly after 6:00 p.m. on
May 25, 2016, when plaintiff arrived at the hospital, until Dr. Vanam's shift
ended eight hours later at approximately 2:00 a.m. on May 26. Dr. Vanam
testified as a fact witness and was neither qualified nor offered as an expert.
Dr. Vanam explained that during his treatment of plaintiff, he determined
based on a series of tests that defendant had not suffered a stroke. He then
concluded plaintiff's condition was "probably . . . related to a metabolic
encephalopathy, which is an altered mental status not related to a stroke." Dr.
Vanam considered whether plaintiff's condition was the result of "drugs,
infections and other possible causes," including "renal failure [and] liver
failure." He ordered a series of tests, including a urine drug screen, to determine
the cause of plaintiff's condition but "other than [a] positive" result for
"benzodiazepines" from the urine drug screen, he "didn't find anything else."4
4 The evidence showed there are many different benzodiazepines. The drug screen employed by the hospital did not identify a particular benzodiazepine or quantify the level of benzodiazepine in plaintiff's urine. A-2621-16T4 7 Dr. Vanam testified that plaintiff reacted positively when given
flumazenil, an antidote for benzodiazepine poisoning. He explained that the
presence of benzodiazepine was a consideration in assessing the cause for
plaintiff's condition, but testified that he did not know the cause.
Dr. Vanam responded to questioning from the court soliciting his opinion
as to whether benzodiazepine caused plaintiff's condition.
[Dr. Vanam]: At that point, it wasn't ruled in as that was the only reason. We were just looking for -- and that was only positive evidence, at that point. Having benzos positive. So, we still kept looking to see if there were any other contributing factors.
[Court]: And were any found?
[Dr. Vanam]: None, at that point. None were found.
[Court]: And, in your opinion, the causation for his medical condition was caused by what?
[Dr. Vanam]: Well, I would say broadly, as a metabolic encephalopathy. Metabolic encephalopathy is a non- neurological condition. Metabolic encephalopathy, as I just said, can be from drugs, infections, other metabolic reasons like low or high blood sugars, low or high thyroid tests. All these -- any of those things can cause it. Infections, pneumonia, urinary tract infections. Infections in the belly.
So, we looked at the blood test[,] renal panel, liver panel, chest X-rays. Normal urine analysis. And, so, we ran all those tests. And the only test, eventually,
A-2621-16T4 8 was positive, was benzos. But, other than that, nothing else that we could find to be positive.
[Court]: Well, would that lead you to the conclusion that his medical condition was caused by ingesting benzoids?
[Dr. Vanam]: If I don't have any other source, and to my knowledge, we have not found anything. Then, that was one of the considerations.
Later, in response to questioning by defense counsel, Dr. Vanam testified
that he did not know the cause of plaintiff's medical condition.
[Defense Counsel]: Okay, and you, as you sit here today, do not know what caused --
[Dr. Vanam]: Correct.
[Defense Counsel]: -- [plaintiff's] condition?
[Dr. Vanam]: That's correct.
Further, when defense counsel asked Dr. Vanam if he could testify with a
reasonable degree of medical certainty that benzodiazepine caused plaintiff's
medical condition, plaintiff's counsel objected and argued Dr. Vanam could not
offer such an opinion because he was not an expert witness. Although the court
previously directly asked Dr. Vanam for his "opinion" on the cause of plaintiff's
condition, it sustained plaintiff's counsel's objection, finding Dr. Vanam could
A-2621-16T4 9 not offer an opinion on causation because he had not been qualified, and was
not testifying, as an expert witness. 5
During defendant's case, she presented Dr. Philip Kramer, a neurologist
employed at J.F.K. Medical Center who consulted on plaintiff's treatment at the
hospital on May 28 and 29, 2016. Dr. Kramer was neither qualified nor offered
as an expert witness. In pertinent part, he testified that a toxicology screening
of plaintiff's blood on May 27, two days after defendant's admission to the
hospital, showed no benzodiazepine in plaintiff's system.
5 At oral argument before this court, plaintiff's counsel represented that during the hearing, he asked Dr. Vanam if it was the doctor's opinion within a reasonable degree of medical certainty that plaintiff's critical medical condition was caused by benzodiazepine and that Dr. Vanam responded in the affirmative. The record shows plaintiff's counsel never asked Dr. Vanam that question and Dr. Vanam never offered that opinion. The record shows the opposite. As noted, when defendant's counsel asked Dr. Vanam if he held any opinion within a reasonable degree of medical certainty concerning the cause of plaintiff's condition, plaintiff's counsel objected and argued Dr. Vanam should not answer because he was not an expert, and the court sustained the objection. Plaintiff's counsel's representations to this court during the course of oral argument are also contradicted by a more accurate acknowledgment in his brief: "[A]s [Dr. Vanam] did not know what [plaintiff] consumed or when, [he] would not offer an opinion as to what caused [plaintiff's] condition." We have decided to attribute plaintiff's counsel's clearly inaccurate representations during oral argument to inattention or inadequate preparation, and not as a violation of the duty of candor he owes his adversary and this court. See R.P.C. 3.3(a)(1); McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 371 (2001) (noting "[l]awyers have an obligation of candor to each other and to the judicial system").
A-2621-16T4 10 During his direct examination by defendant's counsel, Dr. Kramer was
asked what caused plaintiff's condition, but Dr. Kramer did not provide a
responsive answer. On cross-examination, plaintiff's counsel followed up,
asking "[w]hat caused [plaintiff's] condition?" In response, Dr. Kramer noted
that "in medicine one is often not 100 percent sure" but that he "believe[d] it
was due to an overdose of . . . a benzodiazepine" because he had "no other
explanation for [plaintiff's] loss of consciousness and recovery . . . in the
timeframe in which it occurred."
Defendant's counsel then asked Dr. Kramer a question concerning the
length of time a benzodiazepine would be present in a person's body after being
taken, but he did not answer the question, stating that he is "not a toxicologist."
He also could not answer defense counsel's inquiry concerning the amount of
benzodiazepine that is required to render "an adult male of significant height
and size . . . comatose." Dr. Kramer testified that "you need an expert to answer
that question."
Defendant also presented Dr. Steven Marcus, who was qualified as an
expert in the area of toxicology. Dr. Marcus testified that the urine screen test
results were not sufficiently reliable to establish the presence of benzodiazepine
in plaintiff's system, and that a confirmatory blood test should have been done.
A-2621-16T4 11 He opined that plaintiff exhibited symptoms, including a right-side facial droop
when he first became incapacitated, that are inconsistent with a benzodiazepine
overdose and instead showed plaintiff suffered a transient mini-stroke. He
testified to a reasonable degree of medical certainty that plaintiff's condition was
not caused by benzodiazepine.
Plaintiff also called Dr. Clinton Ewing, a pathologist and director of the
laboratory at J.F.K. Medical Center, who explained the hospital's laboratory
testing procedures. Dr. Joseph Landolfi, a J.F.K. Medical Center neurologist
and plaintiff's cousin, briefly testified he was advised about plaintiff's admission
to the hospital and saw him in the hospital.
Following the submission of written summations, the court rendered an
oral opinion finding defendant committed the predicate act of aggravated assault
by placing benzodiazepine in the coffee and causing plaintiff's life-threatening
medical condition. The court rejected defendant's contention that the positive
urine screen may have been the result of the administration of benzodiazepine
in the emergency room, and found "crucial" Dr. Vanam's testimony that he
"believed . . . benzodiazepines to be the probable cause of the plaintiff['s]
comatose condition." The court also found credible Dr. Kramer's testimony
A-2621-16T4 12 "that he believed . . . plaintiff['s] condition was caused by an overdose of
benzodiazepine."
The court rejected Dr. Marcus's expert testimony as not credible, finding
he exaggerated and was argumentative, combative and inconsistent. The court
also determined Dr. Marcus's expertise was limited to toxicology and he
therefore was not qualified to render an opinion about the cause of plaintiff 's
neurological condition. The court found Dr. Marcus's conclusion plaintiff
suffered from a transient mini-stroke was contradicted by hospital records
showing the triage nurses did not observe a right-side facial droop and Dr.
Vanam's testimony that testing showed plaintiff did not suffer a stroke.
The court concluded the evidence supports a rational inference defendant
caused plaintiff's life-threatening condition by providing plaintiff with
benzodiazepine. The court determined the inference is supported by the urine
screen results and plaintiff's positive response to the administration of
flumazenil. The court further relied on Dr. Vanam's and Dr. Kramer's opinions
and found "that the circumstantial evidence is sufficient to conclude that the
plaintiff's condition was caused by an overdose of benzodiazepine. Everything
else had been ruled out." The court also drew a negative inference that defendant
A-2621-16T4 13 committed the predicate act of assault under the PDVA based on her refusal to
testify at the hearing.
The court accepted as credible plaintiff's testimony that he did not ingest
any benzodiazepine prior to arriving at defendant's home on May 25, 2016,
noted the circumstances surrounding defendant's unusual offer of the coffee on
May 24, 2016, and delivery of the coffee the following day, and concluded
"defendant, purposely or knowingly, poisoned plaintiff by administering
benzodiazepine in his coffee."
The court found defendant committed the predicate act of assault under
the PDVA. The court further found an FRO was necessary to protect plaintiff
from future acts of domestic violence and entered the February 7, 2017 FRO.
The FRO provided that defendant shall pay plaintiff's attorney's fees "incurred
for this matter," but did not establish the fee award. In a March 7, 2017 order,
the court entered a $49,542 judgment against defendant for payment of
plaintiff's attorney's fees. This appeal followed.
II.
"The general rule is that findings by a trial court are binding on appeal
when supported by adequate, substantial, credible evidence." Gnall v. Gnall,
222 N.J. 414, 428 (2015). We defer to the factual findings of a trial court unless
A-2621-16T4 14 "they are so manifestly unsupported by or inconsistent with the competent,
relevant and reasonably credible evidence as to offend the interests of justice."
Ibid. (citation omitted). "'Only when the trial court's conclusions are so "clearly
mistaken" or "wide of the mark"' should we interfere to 'ensure that there is not
a denial of justice.'" Ibid. (quoting N.J. Div. of Youth & Family Servs. v. E.P.,
196 N.J. 88, 104 (2008)). Our review of a trial court's legal conclusions is
plenary. Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366,
378 (1995).
In its consideration of a request for entry of an FRO, the Family Part "must
determine whether the plaintiff has proven, by a preponderance of the credible
evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a)
has occurred." Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). The
court must then determine "whether a restraining order is necessary, upon an
evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to
protect the victim from an immediate danger or to prevent further abuse." Id. at
127.
On appeal, defendant argues the court's determination that she committed
the predicate act of assault is not supported by credible evidence. More
particularly, she argues there is no evidence establishing the reliability of the
A-2621-16T4 15 urine drug screen or that benzodiazepine caused plaintiff's condition. She
further claims the court violated her due process rights by drawing a negative
inference based on her refusal to testify and assertion of her Fifth Amendment
rights. She also contends the court's comments and questioning of witnesses
conveyed a lack of impartiality that deprived her of a fair trial. Defendant last
asserts the court erred by failing to consider and make findings concerning the
reasonableness of plaintiff's counsel's attorney's fees.
We first address defendant's argument there is insufficient credible
evidence supporting the court's finding that benzodiazepine caused plaintiff's
condition. Plaintiff alleged, and the court found, defendant committed the
predicate act of assault, N.J.S.A. 2C:12-1, under the PDVA, see N.J.S.A. 2C:25-
19(a)(2), by purposely or knowingly causing plaintiff's life-threatening medical
condition by administering benzodiazepine in the coffee. The court did not
expressly refer to a subsection of N.J.S.A. 2C:12-1 in defining the particular
offense it found defendant committed, but we surmise the court found defendant
committed an aggravated assault in violation of N.J.S.A. 2C:12-1(b)(7) because
it found defendant purposely or knowingly caused "significant bodily injury" to
defendant by administering benzodiazepine in his coffee. See N.J.S.A. 2C:12-
A-2621-16T4 16 1(b)(7) (providing that a person commits an aggravated assault by purposely or
knowingly causing significant bodily injury to another).
Plaintiff did not present any direct evidence showing defendant placed
benzodiazepine in the coffee. Instead, plaintiff argued the court should infer
defendant placed benzodiazepine in the coffee because his critical medical
condition was caused by benzodiazepine and the only possible source of his
consumption of benzodiazepine was the coffee defendant curiously gave him
when he arrived to pick up his daughter. Proving plaintiff's critical medical
condition was proximately caused by benzodiazepine was essential to his claim
and the court's finding defendant committed the predicate act of aggravated
assault. Stated differently, in the absence of proof establishing benzodiazepine
caused plaintiff's critical medical condition, plaintiff and the court lacked any
support for a finding defendant committed an assault.
"The test of need of expert testimony is whether the matter to be dealt with
is so esoteric that jurors of common judgment and experience cannot form a
valid judgment" as to a fact in issue. Butler v. Acme Mkts, Inc., 89 N.J. 270,
283 (1982). Expert testimony is required where the issue of proximate cause is
"beyond the 'common knowledge of lay persons.'" Froom v. Perel, 377 N.J.
Super. 298, 318 (App. Div. 2005) (citation omitted). For example, "[i]f [a]
A-2621-16T4 17 plaintiff seeks to prove causation of a current medical or psychological
condition, of course, competent expert testimony would be required." J.W. v.
L.R., 325 N.J. Super. 543, 548 (App. Div. 1999); see also Kennelly-Murray v.
Megill, 381 N.J. Super. 303, 311 (App. Div. 2005) (requiring expert testimony
to establish an accident contributed to the cause of the plaintiff's cancer because
a causal link could not be based on common knowledge).
Here, whether benzodiazepine caused plaintiff's medical condition
presented an issue that required expert testimony. See generally Canesi v.
Wilson, 158 N.J. 490, 505 (1999) (explaining that "medical causation" requires
proof of a "causal relation between" a drug and a plaintiff's injuries). Plaintiff
failed to present any expert testimony establishing that benzodiazepine was the
proximate cause of his critical medical condition. Thus, the court was without
sufficient evidence supporting its finding of a fact essential to its conclusion that
defendant committed an assault: that plaintiff's critical medical condition was
caused by benzodiazepine.
To be sure, there is significant and seemingly persuasive circumstantial
evidence suggesting benzodiazepine caused plaintiff's condition. As noted by
the court, the urine test confirmed the presence of benzodiazepine, and other
testing did not reveal a cause for plaintiff's condition. The evidence further
A-2621-16T4 18 showed plaintiff's condition was consistent with a benzodiazepine overdose, and
plaintiff reacted positively to an antidote for benzodiazepine. But the
complexity of the issue of medical causation precluded the judge, as the
factfinder, from surmising that benzodiazepine caused plaintiff's condition. See
State v. Doriguzzi, 334 N.J. Super. 530, 538 (App. Div. 2000) ("A factfinder
should not be allowed to speculate without the assistance of expert testimony in
an area where the average person could not be expected to have sufficient
knowledge or experience."). Indeed, plaintiff's treating physician, who handled
defendant's care during his six-day hospitalization, discharged plaintiff with a
diagnosis that the cause of his condition was unknown.
Lacking any expert testimony supporting its findings, the court relied on
the testimony of Dr. Vanam and Dr. Kramer to support its causation
determination, but we are convinced it was error to do so. Treating physicians
may properly opine as to the cause of a patient's injuries or condition based only
on their diagnoses and treatment of the patient. Delvecchio v. Twp. of
Bridgewater, 224 N.J. 559, 577 (2016). "Because the determination of the cause
of a patient's illness is an essential part of diagnosis and treatment, a treating
physician may testify about the cause of a patient's disease or injury," even
A-2621-16T4 19 though not otherwise qualified as an expert. Ibid. (quoting Stigliano v.
Connaught Labs., Inc., 140 N.J. 305, 314 (1995)).
Dr. Vanam, who was aware of the positive urine test for benzodiazepine
and plaintiff's positive response to the administration of the antidote for
benzodiazepine, did not testify he diagnosed benzodiazepine as the cause of
plaintiff's critical medical condition. To the contrary, he first testified he never
determined the cause of plaintiff's condition and later stated only that
benzodiazepine was "one of the considerations" as a potential cause. And when
he was asked if he could offer an opinion as to the cause of plaintiff 's condition
to a reasonable degree of medical certainty, the court sustained plaintiff's
objection because Dr. Vanam had not been qualified as an expert. Thus, the
court's finding that Dr. Vanam testified the "probable cause" of plaintiff's
condition was benzodiazepine is wholly undermined by the record.
Similarly, Dr. Kramer did not testify that he diagnosed defendant's
medical condition as having been caused by benzodiazepine or that he treated
plaintiff for any conditions caused by benzodiazepine. In fact, the toxicology
blood screen taken on May 27, 2016, one day before Dr. Kramer first saw
plaintiff, showed no benzodiazepine in plaintiff's system. Moreover, the
voluminous medical records introduced at trial do not include any diagnosis
A-2621-16T4 20 related to benzodiazepine made by Dr. Kramer or any of the numerous other
physicians who were involved in plaintiff's care and treatment at the hospital.
"The testimony of a treating physician is subject to an important
limitation. Unless the treating physician is retained and designated as an expert
witness, his or her testimony is limited to issues relevant to the diagnosis and
treatment of the individual patient." Delvecchio, 224 N.J. at 579; see also
Rubanick v. Witco Chem. Corp., 125 N.J. 421, 452 (1991) (observing that an
expert on the causes of cancer is more qualified to testify concerning the cause
of a patient's cancer than a medical doctor who treats the cancer after it
develops). Dr. Kramer's testimony exceeded that limitation here. He did not
testify as to any diagnosis he made or treatment he rendered based on
benzodiazepine being the cause of plaintiff's medical condition. Instead, he
testified only that he "believe[d]" defendant's medical condition was caused by
benzodiazepine. Dr. Kramer was never qualified or offered as an expert witness
and expressly disavowed being an expert, stating he was not qualified to answer
questions concerning the manner in which benzodiazepine would have been
processed in plaintiff's body.6 Moreover, his testimony constituted an
6 When defense counsel asked if Dr. Kramer would expect benzodiazepine to be present in the blood of someone who overdosed on the drug two days earlier,
A-2621-16T4 21 inadmissible net opinion because there is no evidence as to the standard he
applied in forming his belief. 7 Pomerantz Paper Corp. v. New Cmty. Corp., 207
N.J. 344, 373 (2011) ("[A] trial court may not rely on expert testimony that lacks
an appropriate factual foundation and fails to establish the existence of any
standard about which the expert testified.").
We are convinced it was plain error, R. 2:10-2, for the court to allow Dr.
Kramer to testify as to his belief and for the court to rely on his testimony to
support its conclusion benzodiazepine caused plaintiff's critical medical
condition. We are therefore constrained to reverse the court's finding that
defendant committed the predicate act of assault. The court's conclusion is
plaintiff's counsel objected, asserting in part that Dr. Kramer was a "non-expert" witness. 7 Dr. Kramer's belief about the cause of plaintiff's medical condition was not admissible as a differential diagnosis. See Creanga v. Jardal, 185 N.J. 345, 356 (2005) (explaining that "courts have used the term [differential diagnosis] . . . to describe the process by which causes of the patient's condition are identified" (quoting Clausen v. M/V New Carissa, 339 F.3d 1049, 1057 n.4 (9th Cir. 2003))). A differential diagnosis is admissible only if "[i]n rejecting alternative hypotheses, the expert . . . use[s] 'scientific methods and procedures' and justif[ies] an elimination on more than 'subjective beliefs or unsupported speculation.'" Id. at 358 (quoting Claar v. Burlington N. R.R., 29 F.3d 499, 502 (9th Cir. 1994)). Dr. Kramer never testified he made a differential diagnosis concerning the cause of plaintiff's condition and his testimony about the cause is untethered to scientific methods or procedures and, as he said, constitutes only his belief. A-2621-16T4 22 founded on a finding of causation that is "so manifestly unsupported by . . .
competent, relevant and reasonably credible evidence as to offend the interests
of justice." Gnall, 222 N.J. at 428 (citation omitted). We therefore reverse the
domestic violence FRO and the court's order awarding plaintiff attorney's fees
pursuant to N.J.S.A. 2C:25-29(b)(4).
Because we reverse the court's entry of the FRO, it is unnecessary to
address defendant's remaining claims concerning the judge's alleged lack of
impartiality during the trial, the court's drawing of a negative inference based
on defendant's refusal to testify and the court's calculation and award of
attorney's fees.
Reversed.
A-2621-16T4 23