NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5537-18T2
MICHELLE HAMOR as executor of the ESTATE OF SADIE METZIGIAN, deceased, and MICHELLE HAMOR, individually,
Plaintiff-Appellant,
v.
SPRINGPOINT AT MONTGOMERY, d/b/a STONEBRIDGE AT MONTGOMERY, INC.,
Defendants-Respondents. ____________________________
Submitted November 30, 2020 – Decided December 15, 2020
Before Judges Fasciale and Mayer.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0162-15.
Michelle Hamor, appellant pro se.
Burns White, LLC, attorneys for respondents (Frantz J. Duncan and Ahsan A. Jafry, on the brief). PER CURIAM
In this medical-malpractice case, plaintiffs appeal from two orders dated
June 7, 2019 and June 21, 2019: the former granted Stark & Stark's motion to
be relieved as plaintiffs' counsel, and the latter granted summary judgment to
Springpoint at Montgomery Inc., d/b/a Stonebridge at Montgomery, Inc.
(defendants). We conclude the judge did not abuse his discretion by allowing
counsel to withdraw, and that he correctly entered summary judgment because
plaintiffs' expert gave a net opinion. We therefore affirm.
On January 21, 2015, Sherri L. Warfel of Pellettieri Rabstein & Altman
filed a complaint alleging defendants were negligent in rendering medical care
to Sadie Metzigian in defendants' nursing home. 1 Specifically, plaintiffs allege
that defendants provided substandard care, causing Metzigian to injure her back
due to a fall. Defendants filed their answer on March 26, 2015. On September
15, 2017, Warfel filed a substitution of attorney reflecting her new affiliation
with the law firm Stark & Stark.
On July 18, 2018, defendants filed a motion to strike plaintiffs' expert
report, authored by Dr. Adam H. Karp, M.D., arguing that the opinion amounted
1 After Metzigian's passing, the judge entered a consent order allowing plaintiff Hamor to prosecute the case on behalf of Metzigian's estate. A-5537-18T2 2 to a net opinion. Plaintiffs filed opposition, and due to settlement negotiations,
defendants withdrew the motion. The parties were unable to reach a settlement.
On April 18, 2019, defendants filed a motion for summary judgment,
repeating their contention that plaintiffs' expert opinion constituted a net
opinion. The return date for this motion was May 24, 2019. Discovery closed
on April 29, 2019, and on April 30, 2019, the judge set a trial date for July 22,
2019.
About two weeks later, on May 16, 2019, plaintiffs' counsel filed a motion
to be relieved as counsel, which had a return date of June 7, 2019. Plaintiffs
opposed the motion to withdraw as counsel. Plaintiffs' counsel and defendants'
counsel agreed to adjourn the return date of defendants' motion for summary
judgment to June 21, 2019, thus allowing plaintiffs counsel's motion to be heard
first.
On June 7, 2019, the judge granted plaintiffs' counsel's motion. That same
day, the judge scheduled a case management conference for July 10, 2019.
However, the judge sent this notice to plaintiffs' now-relieved counsel and
defendants' counsel, rather than the pro se plaintiffs. There was no mention of
the status of the pending unopposed motion for summary judgment or the
upcoming trial date.
A-5537-18T2 3 The judge attempted unsuccessfully to contact plaintiffs before
adjudicating defendants' summary judgment motion. On June 21, 2019, the
judge granted defendants' motion for summary judgment, concluding that
plaintiffs' expert rendered a net opinion. Four days later, the judge placed his
oral decision on the record, stating he likely would have adjourned defendants'
motion if plaintiffs had answered his chamber's attempts to contact them. Since
there was no response, however, he moved forward. The judge amplified his
opinion on August 13, 2019, which reiterated that plaintiffs failed to respond to
his chamber's attempts at contacting them prior to his decision on defendants'
motion.
On appeal, plaintiffs raise the following points for this court's
consideration:
POINT I
THE [JUDGE] ERRED WHEN [HE] PERMITTED PLAINTIFFS' COUNSEL TO WITHDRAW AS COUNSEL.
A. The [Judge] Should Not Have Permitted [Plaintiffs' Counsel] To Withdraw Under The Circumstances At Issue And With Grave Detriment To Plaintiffs Being Highly Probable, If Not Nearly Certain[.]
B. A Dispute Over Settlement Is Not A Proper Basis For An Attorney To Withdraw Representation From A Client In Any Event[.]
A-5537-18T2 4 C. Once Discovery Is Closed And A Trial Date Has Been Set, If The Client Does Not Consent An Attorney Should Only Be Permitted To Withdraw Where The Client's Actions Render The Attorney's Ability To Try The Case Unreasonably Difficult As Shown By Clear And Convincing Evidence, So The Client Is Not Left In The Lurch.
D. The [Judge] Erred In Resolving The Situation Between Plaintiffs And [Plaintiffs' Counsel] On The Basis Of Conflicting Certifications Without Holding A Plenary Hearing[.]
E. The [Judge] Failed To Provide Any Reasons To Justify [His] Ruling[.]
POINT II
PROCEDURALLY, THE [JUDGE] ERRED IN GRANTING DEFENDANTS['] MOTION FOR SUMMARY JUDGMENT TWO WEEKS AFTER [HE] HAD RENDERED PLAINTIFFS PRO SE[.]
POINT III
SUBSTANTIVELY, THE [JUDGE] ERRED IN GRANTING DEFENDANTS['] MOTION FOR SUMMARY JUDGMENT BECAUSE PLAINTIFFS' EXPERT WAS HIGHLY QUALIFIED TO GIVE THE OPINIONS AT ISSUE AND BECAUSE THOSE OPINIONS WERE NOT NET OPINIONS[.]
A. A Motion Judge Is Still Required To Carefully Review A Motion For Summary Judgment Even If It Is Unopposed.
A-5537-18T2 5 B. The Arguments That Plaintiffs' Expert's Opinion Was A Net Opinion Are Utterly Specious And Devoid of Real Merit.
1. Plaintiffs' Expert Is Qualified To Be An Expert In A Geriatric Fall Occurring In A Health-Care Facility.
2. Plaintiffs' Expert Reviewed All Of The Relevant Medical Records And Was Therefore Able To Render A Reasonably Reliable Opinion About . . . Metzigian Without Examining Her.
3. Plaintiffs' Expert Did Not Render A Net Opinion And Gave The Whys And Wherefores For His Position In Detail[.]
4. Plaintiffs' Expert Witness Was Not Required To Cite To Authoritative Materials In Support Of His Expert Position.
5. Plaintiffs' Expert Witness Is Entitled To Opine About The Cause Of . . . Metzigian's Fracture Even If He Is Not A Radiologist Or Orthopedist.
6. Plaintiffs' Expert Witness Did Not Provide A Net Opinion On . . . Metzigian's Need To Be In A Higher-Level Care Facility Due To Her Fall And Back Fracture.
POINT IV
IF THE APPELLATE DIVISION REVERSES AND REINSTATES, A NEW JUDGE SHOULD BE ASSIGNED[.]
A-5537-18T2 6 I.
We begin by addressing plaintiffs' argument that the judge erred by
granting plaintiffs' counsel's motion to withdraw. They contend that the judge
failed to hold a plenary hearing, that their counsel did not sufficiently explain
the reason for withdrawal, and that the judge did not provide reasons for granting
the motion.
We review a trial judge's determination on whether to allow the
withdrawal of counsel for an abuse of discretion. See Jacobs v. Pendel, 98 N.J.
Super. 252, 255 (App. Div. 1967). "An abuse of discretion 'arises when a
decision is "made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis."'" Castello v. Wohler,
446 N.J. Super. 1, 24 (App. Div. 2016) (quoting Flagg v. Essex Cty. Prosecutor,
171 N.J. 561, 571 (2002)). A trial judge has the discretion to grant a motion to
be relieved as counsel, and he or she should consider the "proximity of the trial
date and possibility for the client to obtain other representation." In re Simon,
206 N.J. 306, 320 n.8 (2011) (quoting Pendel, 98 N.J. Super. at 255).
Unless the client consents, counsel must give notice to the client and
obtain leave of court to withdraw from a representation. R. 1:11-2(a)(2); see
also RPC 1.16(c). That is the situation here. RPC 1.16(b) allows counsel to
A-5537-18T2 7 withdraw when "the client insists upon taking action that the lawyer considers
repugnant or with which the lawyer has a fundamental disagreement" or "other
good cause for withdrawal exists." Where the relationship between counsel and
client has deteriorated to the point where the lawyer and client are at total odds,
withdrawal is often in the client's best interest. See Tax Auth., Inc. v. Jackson
Hewitt, Inc., 377 N.J. Super. 493, 501 n.4 (App. Div. 2005), rev'd on other
grounds, 187 N.J. 4 (2006).
Here, plaintiffs argue "a dispute over settlement is not a proper basis for
an attorney to withdraw." But plaintiffs' counsel filed the motion because the
attorney-client relationship deteriorated. In support of the motion to withdraw,
plaintiffs' counsel provided two certifications. The first, authored by Warfel,
described the deteriorated attorney-client relationship. For example, after the
settlement conference in March 2018, Hamor and her husband
would address the same questions to me and would inevitably receive the same answers which seemed to irritate [Hamor] . . . . [T]he extent to which the inquiries were repeated and had to be repeatedly answered became unusual and nearly obsessive in nature . . . .
Emails, phone calls, requests, and inquiries increased. Those emails became acrimonious, taunting, and derogatory.
A-5537-18T2 8 Warfel certified that she told plaintiffs it would be best if they find another
attorney. Inevitably, because plaintiffs did not want to do so, Warfel's colleague
in the firm, Denise Mariani, took over plaintiffs' case. Warfel also certified that
plaintiffs continued this same behavior with Mariani. The second certification,
authored by Mariani, also described the attorney-client relationship and
emphasized that plaintiffs sent numerous emails which were "argumentative and
some [were] personally insulting."
Hamor provided a certification in opposition to the motion to withdraw.
She certified she was a diligent client and admitted that there were several issues
between her and counsel over the years—mostly communication and strategy
issues. Hamor did not suggest she had a positive relationship with counsel, and
importantly, she did not mention or dispute that she and her husband had sent
"taunting" and "insulting" emails to plaintiffs' counsel. Contrary to plaintiffs'
assertion, Hamor's certification does not "conflict" with plaintiffs' counsel's
certifications.
The judge did not initially provide his reasons for granting the motion.
However, in his amplification, the judge reiterated that he reviewed all moving
papers on the motion, which were filed under seal, before entering the order. On
this record, it is clear to us that the relationship had deteriorated and there was
A-5537-18T2 9 an ample basis to grant the motion. After reviewing the certifications and the
record, we conclude the judge did not abuse his discretion.
II.
We now turn to whether the judge gave plaintiffs an opportunity to
respond to defendants' motion for summary judgment. They argue that the judge
failed to communicate with them, and that they were under the impression that
defendants' motion would be dealt with at the case management conference
scheduled for July 10, 2019.
"The United States Supreme Court has recognized the due process
guarantee expressed in the Fourteenth Amendment to the United States
Constitution includes 'the requirement of "fundamental fairness"' in a legal
proceeding." In re Adoption of Child ex rel. M.E.B., 444 N.J. Super. 83, 88
(App. Div. 2016) (quoting Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 24
(1981)); see also Doe v. Poritz, 142 N.J. 1, 99 (1995). The New Jersey Supreme
Court has adopted these protections through Article I, Paragraph 1 of the State
Constitution, "concluding it also '"protect[s] against injustice and, to that extent,
protect[s] values like those encompassed by the principle[s] of due process[,] "'
even though the provision 'does not expressly refer to the right to due process of
law[.]'" M.E.B., 444 N.J. Super. at 88 (alterations in original) (quoting Crespo
A-5537-18T2 10 v. Crespo, 408 N.J. Super. 25, 34 (App. Div. 2009), aff'd o.b., 201 N.J. 207
(2010)).
"A litigant in civil proceedings is entitled to a fair hearing, imbued with
the protections of due process." Ibid. "In the context of litigation, fundamental
due process demands a party be given adequate notice and a reasonable
opportunity to be heard." Ibid.; see also Div. of Youth and Family Servs. v.
M.Y.J.P., 360 N.J. Super. 426, 464 (App. Div. 2003). "Due process is not a
fixed concept, however, but a flexible one that depends on the particular
circumstances." Poritz, 142 N.J. at 106. Our Supreme Court has observed that
"[f]undamentally, due process requires an opportunity to be heard at a
meaningful time and in a meaningful manner." Ibid.
Plaintiffs were given an opportunity to be heard. Here, counsel agreed
to adjourn the return date of the summary judgment motion until the judge
adjudicated plaintiffs' counsel's motion to withdraw. After the judge allowed
counsel to withdraw, he notified pro se plaintiffs about the pending summary
judgment motion. In his statement of reasons granting summary judgment, the
judge said his chambers "reached out to . . . . plaintiff[s] on multiple occasions
to see if they were going to oppose the motion or if they wanted an adjournment
or wanted to come in for case management but [this court] has not heard any
A-5537-18T2 11 response." Further, in his amplification of his decision, the judge repeated that
"chambers reached out to plaintiff[s] on multiple occasions to see if plaintiff[s]
wanted to file opposition [to the motion for summary judgment], wanted an
adjournment or a case management conference. Since [this court] did not hear
back from plaintiff[s], the unopposed motion was decided on June 21, 2019."
The judge also stated "the record reflects that chambers reached out to
plaintiff[s] on multiple occasions." On this record, we see no error.
III.
Plaintiffs argue for the first time that defendants were not entitled to
summary judgment because their expert did not render a net opinion. Thus, they
now make the contention that they would have otherwise made had they opposed
defendants' motion. Although plaintiffs did not oppose the motion, we consider
their substantive assertions. Critical to such a consideration is whether the
expert gave a net opinion.
We review a ruling on a summary judgment motion under the same
standard that governed the trial judge. Templo Fuente De Vida Corp. v. Nat'l
Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). Summary judgment
is appropriate "if the pleadings, depositions, answers to interrogatories and
admissions on file, together with the affidavits, if any, show that there is no
A-5537-18T2 12 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." R. 4:46-2(c); Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995). We "must accept
as true all the evidence which supports the position of the party defending
against the motion and must accord him [or her] the benefit of all legitimate
inferences which can be deduced therefrom[.]" Brill, 142 N.J. at 535 (first
alteration in original) (quoting Lanzet v. Greenberg, 126 N.J. 168, 174 (1991)).
"When . . . a trial [judge] is 'confronted with an evidence determination
precedent to ruling on a summary judgment motion,' it 'squarely must address
the evidence decision first.'" Townsend v. Pierre, 221 N.J. 36, 53 (2015)
(quoting Estate of Hanges v. Metro. Prop. & Cas. Ins., 202 N.J. 369, 384-85
(2010)). "[Our] review of the trial [judge]'s decisions proceeds in the same
sequence, with the evidentiary issue resolved first, followed by the summary
judgment determination of the trial [judge]." Ibid.
Generally, traditional negligence principles apply to a medical-
malpractice case. Verdicchio v. Ricca, 179 N.J. 1, 23 (2004). "In a medical-
malpractice action, the plaintiff has the burden of proving the relevant standard
of care governing the defendant[], a deviation from that standard, an injury
proximately caused by the deviation, and damages suffered from the
A-5537-18T2 13 defendant['s] negligence." Smith v. Datla, 451 N.J. Super. 82, 102 (2017)
(quoting Komlodi v. Picciano, 217 N.J. 387, 409 (2014)).
The admission or exclusion of expert testimony is within the trial judge's
sound discretion. Pierre, 221 N.J. at 52 (citing State v. Berry, 140 N.J. 280, 293
(1995)). "Absent a clear abuse of discretion, [we] will not interfere with the
exercise of that discretion." Innes v. Marzano-Lesnevich, 435 N.J. Super. 198,
247 (App. Div. 2014) (quoting Carey v. Lovett, 132 N.J. 44, 64 (1993)), aff'd as
modified, 224 N.J. 584 (2016). Again, an abuse of discretion occurs when a
decision is "made without a rational explanation, inexplicably departed from
established policies, or rested on an impermissible basis." Flagg, 171 N.J. at
571 (citation omitted).
N.J.R.E. 702 governs the admissibility of expert testimony and states that:
"[i]f scientific, technical, or other specialized knowledge will assist the trier of
fact to understand the evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or education may testify
thereto in the form of an opinion or otherwise." The rule imposes three
requirements:
(1) the intended testimony must concern a subject matter that is beyond the ken of the average juror; (2) the field testified to must be at a state of the art such that an expert's testimony could be sufficiently reliable;
A-5537-18T2 14 and (3) the witness must have sufficient expertise to offer the intended testimony.
[Creanga v. Jardal, 185 N.J. 345, 355 (2005) (quoting Kemp ex rel. Wright v. State, 174 N.J. 412, 424 (2002)).]
Additionally, N.J.R.E. 703 mandates that expert opinions be grounded in "facts
or data derived from (1) the expert's personal observations, or (2) evidence
admitted at the trial, or (3) data relied upon by the expert which is not necessarily
admissible in evidence but which is the type of data normally relied upon by
experts." Pierre, 221 N.J. at 53 (quoting Polzo v. County of Essex, 196 N.J. 569,
583 (2008)).
"It is well-established that the trial [judge] 'must ensure that [a] proffered
expert does not offer a mere net opinion.'" Satec, Inc. v. Hanover Ins. Grp., Inc.,
450 N.J. Super. 319, 330 (App. Div. 2017) (second alteration in original)
(quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011)).
"Such an opinion is inadmissible and 'insufficient to satisfy a plaintiff's burd en
on a motion for summary judgment.'" Ibid. (quoting Arroyo v. Durling Realty,
LLC, 433 N.J. Super. 238, 244 (App. Div. 2013)). The net opinion rule "forbids
the admission into evidence of an expert's conclusions that are not supported by
factual evidence or other data." State v. Townsend, 186 N.J. 473, 494 (2006).
A conclusion "based merely on unfounded speculation and unquantified
A-5537-18T2 15 possibilities" is inadmissible. Pierre, 221 N.J. at 55 (quoting Grzanka v. Pfeifer,
301 N.J. Super. 563, 580 (App. Div. 1997)). The rule requires that an expert
provide "'the why and wherefore' that supports the opinion, 'rather than a mere
conclusion.'" Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115,
144 (2013) (quoting Pomerantz Paper, 207 N.J. at 372). Moreover, the expert
may not base his or her opinion solely on his or her own subjective standard.
Pomerantz Paper, 207 N.J. at 373 (stating "if an expert cannot offer objective
support for his . . . opinions, but testifies only to a view about a standard that is
'personal,' it fails because it is a mere net opinion"). In other words, experts
must "be able to identify the factual bases for their conclusions, explain their
methodology, and demonstrate that both the factual bases and the methodology
are reliable." Pierre, 221 N.J. at 55 (quoting Landrigan v. Celotex Corp., 127
N.J. 404, 417 (1992)). However, experts may base their opinions on their
personal experience and training. See Townsend, 186 N.J. at 493; see also
Rosenberg v. Tavorath, 352 N.J. Super. 385, 403 (App. Div. 2002) (emphasizing
that "[e]vidential support for an expert opinion is not limited to treatises or any
type of documentary support, but may include what the witness has learned from
personal experience").
A-5537-18T2 16 First, we conclude the judge did not abuse his discretion in ruling that
plaintiffs' expert, Dr. Karp, offered a net opinion as to the standard of care and
causation. The judge held that "Dr. Karp is not qualified to render an opinion
pertaining to a violation of the nursing standard of care or to the cause of the
fracture." He based his decision on the fact that
Dr. Karp is an internal medicine and geriatric physician offering a causation opinion regarding the genesis of fractures which is distinct from his area of expertise. Dr. Karp has admitted at his deposition that the diagnosis of fractures are typically done by either a radiologist or an orthopedic physician and that he would generally not diagnose or treat fractures in his practice. He also testified that he did not review any of the radiology films.
The record supports the judge's conclusions.
For instance, in Dr. Karp's reports, 2 he stated defendants breached their
standard of care towards Metzigian, and this breach caused Metzigian's injury.
However, as to both elements, Dr. Karp did not give the "why and wherefores"
of his opinion; he simply provided a conclusory statement. Dr. Karp stated he
based his conclusions
2 Dr. Karp's initial report is dated January 12, 2017. He then issued four supplemental reports dated February 13, 2018; March 29, 2018; September 9, 2018; and September 12, 2018. Rather then add anything substantive, these supplemental reports continue to add to the list of documents he reviewed to render his report. He did not change his opinions or conclusions. A-5537-18T2 17 in part from [his] experience as a Board Certified Internist and Geriatrician with more than [twenty] years experience. Additionally, as part of [his] position as the Medical Director of the Geriatric Fall Evaluation Unit for the Hospital for Joint Diseases in [New York], [he] often determine[s] what level of care is needed for patients at risk for falling.
Dr. Karp admitted during his deposition that he is not an expert in nursing care,
does not treat patients living in nursing homes or assisted living facilities, and
does not supervise nurses in nursing homes or assisted living facilities.
As to causation, the record also shows Dr. Karp did not provide the whys
and wherefores, nor did he have the experience or expertise to offer an opinion.
At his deposition, Dr. Karp admitted he based his causation opinion on
subjective evidence, specifically "the clinical aspects of the fracture, which
means that [Metzigian] had no pain prior to the . . . fall. Then, after the fall, she
had pain." He never physically examined Metzigian. Additionally, he admitted
that a causation diagnosis is normally performed by an orthopedist or a
radiologist, and that he did not actually look at Metzigian's films because he is
not experienced in reading such. Therefore, the judge did not abuse his
discretion in deeming Dr. Karp's causation opinion as a net opinion. Because
plaintiffs provided no other expert reports, summary judgment was appropriate.
A-5537-18T2 18 To the extent we have not addressed plaintiffs' remaining arguments, we
conclude they are without sufficient merit to warrant discussion in a written
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-5537-18T2 19