Robert F. Burckhardt, Jr. v. Advanced Subacute Rehabilitation Center at Sewell, LLC

• Court: New Jersey Superior Court Appellate Division
• Decided: February 24, 2026
• Docket: A-1917-23
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-1917-23

ROBERT F. BURCKHARDT, JR. and SHERRY BURCKHARDT- DEMARCO, Administrators of the Estate of ROBERT F. BURCKHARDT, SR.,

Plaintiffs-Appellants,

v.

ADVANCED SUBACUTE REHABILITATION CENTER AT SEWELL, LLC and ADVANCED SUBACUTE REHABILITATION CTR AT SEWELL, LLC,

Defendants-Respondents. _____________________________

Argued November 18, 2025 – Decided February 24, 2026

Before Judges Rose, DeAlmeida and Torregrossa- O'Connor.

On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-0381-20. Richard J. Talbot argued the cause for appellants (Law Office of Andrew A. Ballerini, attorneys; Richard J. Talbot, of counsel and on the briefs).

Walter F. Kawalec, III, argued the cause for respondents (Marshall Dennehey, PC, attorneys; Lynne N. Nahmani and Walter F. Kawalec, III, on the brief).

PER CURIAM

Plaintiffs Robert F. Burckhardt, Jr. and Sherry Burckhardt-Demarco,

administrators of the estate of their deceased father, Robert F. Burckhardt Sr.,1

appeal from a series of Law Division orders, including the October 11, 2023

order granting a directed verdict in favor of defendant Advanced Subacute

Rehabilitation Center at Sewell, LLC, (the facility) and dismissal of plaintiffs'

complaint for negligence, violations of the New Jersey Nursing Home

Responsibilities and Rights of Residents Act (NHA), N.J.S.A. 30:13-1 to -19,

and punitive damages, and the February 21, 2024 order denying

reconsideration. 2 Plaintiffs' suit arose from their father's death two days after

choking and suffering cardiac arrest while a resident at the facility.

1 Because plaintiffs and decedent share the same surname, we use first names referring to decedent's son as Robert Jr. and decedent as Robert Sr. to avoid confusion. No disrespect is intended. 2 We address only plaintiffs' claims against the facility—the singular named party to this appeal. A-1917-23 2 We have reviewed the record in light of applicable law and conclude the

court properly dismissed plaintiffs' claims against the facility for lack of

sufficient proof of proximate causation—an essential element of all plaintiffs'

substantive claims, including those alleging NHA violations. 3 We affirm.

I.

The following summary is derived from the record, including the

testimony and evidence admitted over five days of trial before a jury in October

2022.

A. Overview, Plaintiffs' Claims, and Pretrial Motions

Certain facts are undisputed. Decedent, a seventy-two-year-old

3 Plaintiffs also appeal from a September 26, 2023 pre-trial order granting the facility's motion to bar one of plaintiffs' experts from offering an opinion regarding decedent's pain and suffering. Because plaintiffs' merits brief does not address or make any arguments concerning the barred pain-and-suffering expert testimony, and advanced none at oral argument, we have no basis upon which to assess the court's order or plaintiffs' challenge, and deem this issue waived. See Midland Funding, LLC v. Thiel, 446 N.J. Super. 537, 542 n.1 (App. Div. 2016) (when appellant's notice of appeal lists issues later "not briefed on appeal," the Appellate Division "consider[s] [the] appeal from those [issues] abandoned" and "waived").

Moreover, because we affirm on causation grounds, we need not reach plaintiffs' remaining challenges to the court's evidentiary rulings which are unrelated to our independently dispositive causation determination. A-1917-23 3 lymphedema and dysphagia4 patient, was readmitted to the facility on January

25, 2019, after an eleven-day hospitalization due to concerns with his low

oxygen level and infected wounds. The following morning, decedent's breakfast

was served shortly before 8:00 a.m., and his son, Robert Jr., arrived at 8:05 a.m.

to find decedent in his room, unattended, and choking. Despite immediate

intervention by facility staff and emergency responders, decedent suffered

cardiac arrest, was transported to a nearby hospital, and died two days later.

At the time, the facility's care plan called for "monitoring" decedent while

eating to minimize the risk of choking. Specifically, the facility first developed

a December 28, 2018 "Resident Interdisciplinary Care Plan" for

"dysphagia/swallowing impairments," listing "decreased mastication" and

"recent [history] of aspiration" under "problem[s]." The plan implemented

"interventions" to rectify those issues, including: "skilled dysphagia therapy

[three to five times per week] for forty-two days for dysphagia management";

"encourag[ing] ninety degrees positioning during meal and maintain[ing] for

4 As defined by plaintiffs' nursing expert, "dysphagia is a condition in which the . . . muscles used for swallowing have become impaired, [or] . . . weakened, and" impacted individuals "aren't able to protect their airway." Plaintiffs' forensic pathology expert defined "lymphedema" as "swelling of [the] legs" due to excess fluid. A-1917-23 4 thirty min[utes] after each meal"; "implement[ing] dysphagia/aspiration

precautions"; and "therapeutic feeding."

The facility also developed for the decedent an "Interdisciplinary Plan of

Care" related to "Nutrition/Weight Loss" with two dates listed—December 24,

2018 and January 25, 2019—indicating "dysphagia" as a "problem/need." It

identified the following protocol: "provide diet as ordered"; "monitor tolerance

to prescribed diet"; "provide food based on patient's preferences"; "provide

unhurried meal times"; "encourage 100% consumption of all meals/fluids

provided"; "provide assistance with eating PRN"; "refer to dietician for

nutritional evaluation"; "speech [t]herapist evaluation/screen as deemed

necessary"; "encourage resident to take small sips/bites"; "encourage resident to

alternate liquids and solids"; "monitor for signs and symptoms of aspiration";

and "if coughing occurs, hold food/liquid until coughing resolves."

On March 17, 2020, plaintiffs filed their complaint against the facility,

alleging "claims of nursing home negligence in general, violations of nursing

home residents' rights under N.J.S.A. 30:13-5, as a separate cause of action

recognized . . . under N.J.S.A. 30:13-8(a), and various claims of general

negligence, including . . . nursing negligence, all as direct and vicarious liability

A-1917-23 5 claims."5 (Emphasis omitted).

Specifically, count one alleged decedent's death "[wa]s a direct and

proximate result" of the facility's negligence and gross negligence. Plaintiffs

claimed the facility "held [itself] out as [a] specialist[] in the field of adult

nursing care and rehabilitation with the expertise necessary to maintain the

health and safety of persons unable to care adequately for themselves," and "had

significant control over the day[-]to[-]day operations of the . . . nursing home,"

but "due to the negligence of . . . [the facility] and violations of residents'

rights . . . by inappropriate monitoring and failure(s) to provide appropriate

care," decedent suffered serious injury and death. Count one alleged various

acts of negligence including, "failure to properly train employees to deal with

geriatric/disabled residents who are incapacitated and likely to be subject to

choking when unattended"; "failure to prevent choking and asphyxiation";

"failure to properly monitor and assess, in general and, specifically, for choking

and asphyxiation"; "failure to adequately train staff to monitor for, as well as

address, choking and asphyxiation emergencies"; "failure to provide adequate

5 Additional claims were separately pled against the "Medical Director" (count seven); "Administrator" (count eight); "Director of Nursing" (count nine); "Nurses" (count ten); "Certified Nurses' Aide(s)" (count eleven); and "Fictitiously Named Defendants" (count twelve). However, no specific individuals were named and none are parties to this appeal. A-1917-23 6 equipment for choking, dysphagia, suctioning and other equipment"; "failure to

adequately train staff how to utilize choking, dysphagia, suctioning and other

equipment"; and "failure to take proper actions to cease choking and

asphyxiation." (Emphasis omitted).

Count two alleged negligence and gross negligence under the NHA,

asserting the facility violated various federal regulations. Count three alleged

"negligence and gross negligence—supervision and monitoring," claiming the

facility "knew or should have known that [its] residents were elderly and/or

disabled and in need of particular care and supervision," and "failed to exercise

adequate care in the supervision and monitoring of [its] elderly and/or disabled

residents, such as . . . [decedent], to whom [it] owed such a duty." Count four

alleged "negligence and gross negligence—negligent hiring of staff and

negligent monitoring/management/supervision by supervisors."

Plaintiffs sought punitive damages, alleging in count five the facility's

"outrageous, willful and wanton" conduct "shocked the conscience of the

community" and that it acted or failed to act with "complete disregard to

[decedent]'s rights, and in reckless indifference to [his] rights." Finally, count

six alleged a violation of the rights of skilled nursing home residents, under

"N.J.S.A. 30:13-5 . . . and N.J.S.A. 30:13-8(a), which recognizes a private cause

A-1917-23 7 of action for violations of nursing home residents' rights."6

Plaintiffs provided an affidavit of merit from Bonnie Tadrick, RN-BCN,

incorporating her opinion "that there exists a reasonable probability that the

care, skill, or knowledge exercised or exhibited in the treatment, practice, or

work performed by [the facility] . . . in [its] care and treatment of [decedent] fell

outside acceptable standards of practice." They also secured an expert forensic

pathologist, Ian Hood, M.B., who opined the cause of death was "choking on

eggs."

After discovery closed, the court denied motions for summary judgment,

but ordered a bifurcated trial of the punitive damages claim. The trial court also

entered a pretrial order barring plaintiffs' introduction at trial of the video

deposition of former nurse and the facility's organizational designee, Lynn

Homicillada, despite her availability to testify. The court found live testimony

"more favored," and reasoned, although Rule 4:16-1(b) permits an adverse party

to use the deposition against the deponent, plaintiffs sought to use the video

against the facility as independent substantive testimony.

B. The Trial Testimony

6 N.J.S.A. 30:13-5 is sometimes referred to as "The Resident's Rights Act," as it identifies a nursing home resident's rights. A-1917-23 8 Robert Jr. testified at trial and described his father's failing health leading

to his death. He explained finding his father unable to move in November 2018

due to his swollen legs from lymphedema, necessitating admission to the

hospital. Decedent suffered from wounds on his lower body and later developed

pneumonia. Robert Jr. explained his father was first admitted to the facility

when released from the hospital in December 2018, and shared a room with his

wife, admitted for care due to her own illness.

Robert Jr. recounted his father was again hospitalized in January 2019,

because of his low oxygen level and infected wounds, but upon discharge

returned to the facility on January 25. Robert Jr. did not recall any discussion

with anyone from the facility that day regarding a monitoring protocol for his

father before he left the facility that night. Decedent's daughter Sherry testified

and confirmed decedent was "working on his lymphedema" and "walking with

a walker" around November of 2018, before developing an infection and

winding up in the hospital where wounds on his lower body were discovered.

She indicated her father was improving when he entered the facility and joined

her mother. Sherry also testified she "never had any conversations at all

about . . . supervising" decedent while he ate, and "usually if the meal was there,

there was an aide feeding [her] mother and [decedent] had his meal [and] he

A-1917-23 9 could eat on his own."

Robert Jr. described returning to the facility at 8:05 a.m. the morning after

decedent's readmission to the facility to bring his father coffee and found him

alone with the door "open about four to six inches." Once in the room, he saw

his father partially "hanging off the bed." He recalled decedent's voice was "real

raspy," as he told his son he was choking. Robert Jr. asked his father if he was

"okay," and his father answered, "yes." Robert Jr. noticed a tray of scrambled

eggs in the room. After "smacking" his father on the back, Robert Jr. left the

room to retrieve decedent's nurse for help, who returned with suctioning

equipment. He testified his father was eventually taken to the hospital and "had

gotten a pulse," but the hospital "turned off his life support" two days later.

The responding nurse, Kelly Cinalli, LPN, testified and explained Robert

Jr. alerted her of decedent's choking the morning it occurred. She recalled she

saw decedent around "ten to fifteen minutes" earlier, getting ready to eat

breakfast and confirmed he "was by himself in the room to eat breakfast." She

explained another nurse set up decedent and placed the eggs in front of him just

before she "c[a]me in [to] see" him around 7:45 a.m.

When summoned by Robert Jr., Nurse Cinalli testified she returned to find

decedent "laying on his left side, leaning," "his coloring was off," and "he didn't

A-1917-23 10 look like he was breathing." Her notes from the incident were introduced into

the record, indicating decedent was "unconscious" when she entered the room

with "no pulse noted," 9-1-1 was called, decedent was intubated, and the hospital

"was able to remove eggs."

Nurse Cinalli indicated decedent "was capable of self-feeding," and

placing decedent's eggs in front of him "was part of [decedent's] mechanical soft

diet." She added she "would not have left [decedent's] room if he made a

complaint to [her] about the breakfast," if she saw him choking, coughing,

looking gray, if "his vital signs weren't good," or if he sought supervision from

the nursing staff or otherwise indicated discomfort. The nurse recalled

administering CPR to decedent, noting "emesis," which meant decedent

regurgitated partially, and staying with him until basic and advanced life support

ambulances arrived.

Testimony from first responders confirmed life support services arrived

"at the patient at 8:25 [a.m.]" who was "unconscious, . . . unresponsive, [and]

non-breathing" while facility staff had begun CPR and their attempt to clear

decedent's airway. One first responder testified, reading from her report,

"during [the] resuscitation he got pulses back" after which she performed a

"video laryngoscopy intubation," to view decedent's larynx which revealed

A-1917-23 11 "scrambled egg and fixed secretion noted at the level of the vocal cords." Her

report further noted patient's response as "improved" and she "arrived at the

hospital" with decedent at 8:58 a.m.

Portions of the deposition testimony of the facility's director of nursing at

the time of decedent's death, were entered into evidence. The nursing director

noted the facility was subject to federal regulations as "part of the standard of

care for the nursing home to follow," as well as state regulations and the NHA.

She explained decedent was rated a "one for supervision," meaning "set-up help

only" was provided. She identified a note from decedent's speech therapist

indicating "decreased mastication" and "a recent history of . . . aspiration." The

director further acknowledged the plan indicated "skilled dysphagia therapy,

three to five times a week for forty-two days for dysphagia management," and

explained decedent's dysphagia and "mechanical soft diet," were identified on

the care plan at the time of the January 26 choking incident. She explained, as

in decedent's case upon his readmission on January 25, 2019, the facility

typically has fourteen days to develop a care plan upon a resident's arrival, even

if the resident previously resided at the home and had a prior plan.

Homicillada testified as "the [facility's] organization designee with regard

to nursing policies and procedures" explaining "policy and procedure is only a

A-1917-23 12 guide for the nursing staff to provide and develop good quality of care to give

to residents." She characterized facility procedures as "part of the standard of

care" and acknowledged the facility's staff receive these procedures, which in

part require "the resident's individual needs and preferences shall be

accommodated to the extent possible." The internal procedures supplement "the

federal regulations and the requirements to maintain safety of the residents," and

the NHA.

Plaintiffs presented expert testimony from Nurse Tadrick and Dr. Hood.

Nurse Tadrick testified as an expert in "the standards that apply to nurses who

work in nursing homes." She explained she did not "blam[e] an individual

person" for decedent's choking, and "there was nothing that came out that

pointed to a specific person who obviously deviated from [the] standard of care

that [she] could pick up from records." Instead, she identified a "systemic"

problem with decedent's care and opined "collectively the nursing staff, as a

whole, failed to meet certain standards."

Nurse Tadrick testified she reviews cases as an expert for "merit," and,

without identifying any specific failures by facility nurses in this matter,

explained "there are applicable standards of care for an individual like

[decedent], with dysphagia and . . . all his particular issues and problems,

A-1917-23 13 and . . . nursing is required to plan and implement specific interventions to keep

him safe." She explained her affidavit of merit was based on her review of

decedent's hospital records and discovery, and included her opinion to "a

reasonable degree of nursing probability . . . there were deviations from [the]

standard of care," therefore "caus[ing] harm to [decedent]."

Nurse Tadrick noted decedent's prior hospitalization came after he was

"found at home unfortunately very ill with a urinary tract infection and he had

unfortunately been seated on the toilet for a long time, so he developed quite

extensive wounds." Additionally, she described decedent as having preexisting

"metabolic encephalopathy," "a history of lymphedema," "a history of prostate

cancer, [and] hypertension." She explained, at that earlier time, decedent "went

into a hypoxic respiratory failure," rendering him "unable to protect his airway,"

so he was intubated at the hospital. After his intubation, decedent was diagnosed

with oropharyngeal dysphagia, placing him at heightened risk of aspiration or

choking. Nurse Tadrick described decedent as "severely impaired and he

required extensive wound care, . . . so he was sent to [the facility] for subacute

rehab[ilitative] therapies and further nursing care medical management."

Explaining "the interplay . . . between the federal regulations governing

nursing homes and the standard of care in nursing homes," Nurse Tadrick

A-1917-23 14 described the federal regulations as setting nursing home "guidelines" and the

"minimum standard of care" for "everything from . . . quality of

life, . . . treatments and medical nursing care" to "upholding a person's rights

to . . . the highest practicable care, safety, things like that." Nurse Tadrick

testified nursing homes utilize those guidelines "in developing . . . their policies

and it does set a minimum standard of care."

Nurse Tadrick identified certain applicable federal regulations, and "in

particular, the [NHA]," "require[] the nursing homes to ensure that residents

have a safe and decent living condition and that they have the supervision and

care that is required to meet their needs." She highlighted and read the text of

42 C.F.R. §§ 483.24, 483.25(d), 483.35, 483.5, and N.J.S.A. 30:13-5(j), as

applicable to decedent's case.7

Nurse Tadrick explained "the care delivered to residents is on an

interdisciplinary approach, [and] there are different specialties that all

collaborate with each other to provide care." She testified that "a care plan is

7 The federal regulations require long term care facilities to provide "quality of life," 42 C.F.R. § 483.24; "quality of care" in accident prevention, 42 C.F.R. § 483.25(d); and "sufficient nursing staff with appropriate competencies and skills . . . to provide nursing and related services," 42 C.F.R. § 483.35. N.J.S.A. 30:13-5(j) codifies a nursing home resident's right to "a safe and decent living environment and considerate and respectful care that recognizes the dignity and individuality of the resident." A-1917-23 15 required to be individualized" and "meet the specific needs of that person," and

described it as "fluid," meaning "updated periodically, whether there's progress

or there's issues."

Regarding the facility's care plan for decedent, Nurse Tadrick highlighted

the requirements that staff "encourage resident to take small sips and bites" and

"alternate liquids and solids" because decedent "had poor self-monitoring and

he was impulsive, meaning that he had poor self-monitoring skills to not take

large amounts of his food in his mouth at one time." The nurse interpreted these

interventions as requiring staff's physical presence to continuously cue decedent

in accordance with the interventions identified in his care plan and "monitor for

signs and symptoms of aspiration." She noted the plan directed staff to "hold

food/liquid" if decedent began coughing, as "coughing means that something

had gone down the wrong pipe, . . . so you need to take the food and liquid away

from him and address the coughing issue."

According to Nurse Tadrick, decedent's speech therapist reported a prior

coughing incident, which Nurse Tadrick considered significant in showing

defendant remained "at a very heightened risk for possible aspiration or

choking." She opined someone's presence after decedent began choking instead

of while he ate would "not [be] complying with th[e] care plan." Monitoring

A-1917-23 16 decedent in compliance with his care plan would have been a "benefit" as

"cu[e]ing him and reminding him about taking small bites and sips and

alternat[ing with] liquids and fluids" "immensely decreases his risk of aspiration

or choking." She noted a staff member in the room could also intercept and

address the choking or coughing situation "much quicker" and "right at the

start," using the "suction machine" if necessary, "not a half a minute or a minute

later."

Nurse Tadrick opined decedent's "right to a safe and decent living

environment was violated" because he "required supervision [and] monitoring

while he was consuming his meals, and that would create a safe environment for

him, for someone to be there in the event something would happen and also to

prevent him from choking or having aspiration." She added this incident

"violated his right to individuality and dignity" as "the nursing staff was required

to meet his needs and to uphold his rights and by failing to do so, . . . they did

not uphold his rights." She indicated the nursing staff "failed to follow the

individualized care plan on [January 26] in regard[] to providing the level of

supervision and monitoring that [decedent] required to safely consume his meal"

breaching the standard of care.

Nurse Tadrick repeatedly clarified she offered no opinion as to causation.

A-1917-23 17 She conceded decedent could have choked if someone had been with him.

Specifically, she replied "yes," when asked, "And can we agree, ma'am, that

regardless of his level of supervision, . . . that whether someone was at the

bathroom looking at him or standing at the door looking at him, or sitting down

next to him, he was at risk for coughing on his food?" She offered no criticism

of the staff's rapid response or interventions employed.

Dr. Hood then testified regarding the mechanics of the incident and its

aftermath. The doctor confirmed viewing the video laryngoscopy that showed

decedent's "vocal cords were obstructed by thick mucus and fragments of egg ."

He considered decedent's "inability to get his breath and . . . coughing," "very

characteristic of somebody who has got something stuck in a ball valve type of

effect on top of their vocal cords." The "ball valve effect," according to the

doctor, describes when the item blocking the airway "pop[s] . . . out" allowing

"a little bit of air back in, but not much," "prolong[ing] the choking as opposed

to somebody who has completely occluded their upper airway." He explained,

"They can breathe out, but they can't breathe back in and that's one of the

reason[s] why, even though they're choking, if they've still got enough air left

in their lungs and they haven't completely emptied them yet, they'll be able to

even literally choke out a word or two."

A-1917-23 18 Describing the interplay between choking and cardiac arrest, Dr. Hood

testified "the choking on eggs is what caused him to have the cardiac arrest after

a couple of minutes, and they actually got his heart going again, which, if it had

been a cardiac event, would be highly unlikely to happen." Dr. Hood testified

this "sustained him in a brain-dead state for almost two days afterwards," but

still "it seem[ed] highly unlikely that it was a cardiac event that initiated this

process," as opposed to the choking. Thus, the doctor opined "the cause of death

[wa]s the choking on the eggs."

Dr. Hood also acknowledged decedent's preexisting health conditions

including dysphagia, obesity, hypertension, prior "prostate cancer from which

he developed lymphedema," a urinary tract infection at the time of his December

2018 hospital admission, bed sores, rhabdomyolysis, and pneumonia that

developed at the hospital.

C. Directed Verdict

At the close of plaintiffs' case, the facility moved for a directed verdict

and dismissal of all claims, based principally on the lack of proximate cause

evidence.8 Specifically, the facility claimed, as it had on its earlier motion for

8 Although brought by three separate motions addressing proximate cause, the NHA claims, and the punitive damages claim, the court addressed the motions

A-1917-23 19 summary judgment, neither of plaintiffs' medical witnesses opined as to

proximate causation, and plaintiffs were required to offer expert testimony that

staff presence in decedent's room "would have altered the outcome by either

but[-]for or substantial fact[or]" causation.

Plaintiffs asserted Dr. Hood's testimony identifying decedent's choking on

food as the cause of death "cover[ed] proximate cause." Plaintiffs also cited

Nurse Tadrick's testimony indicating "someone need[ed] to be there cu[e]ing

[decedent] to take small bites, . . . to alternate liquids with solids, . . . to monitor

him for signs and symptoms of aspiration, . . . to intercept the choking process,"

and "if there's coughing, to remove the food and/or liquid." Plaintiffs' counsel

argued the facility's failure to adequately monitor created "an interruption in that

chain of events that then cause[d] the choking event." Counsel conceded there

was no evidence in the record to show decedent had taken more than small bites

and sips, but argued decedent's failure to do so could be inferred from his

choking.

Regarding the punitive damages claim, the facility argued that too should

be dismissed as plaintiffs failed to "demonstrate an intentional or willful

somewhat collectively, resolving them all by virtue of its proximate cause determination. A-1917-23 20 indifference, or . . . abuse." According to the facility, plaintiffs failed to identify

any individual staff member arguably possessing the requisite intent to hold the

facility liable for punitive damages. Plaintiffs countered that the trial evidence

suggested "wanton omissions [by the facility], with a reckless indifference to

[decedent] with the high foreseeability that he would suffer significant harm,"

and the NHA, specifically N.J.S.A. 30:13-8(a), includes a provision for punitive

damages, arising from "willful or wanton" omissions.

Finally, the facility argued plaintiffs' claims under the NHA also failed for

lack of proof of causation. The facility also noted no comprehensive care plan

was required until fourteen days from the date of decedent's readmission.

Plaintiffs argued they presented sufficient proof for a jury to conclude decedent

did not reside in a "safe and decent living environment" and the facility did not

provide decedent with the living experience sufficient to satisfy the NHA 's

requirements under N.J.S.A. 30:13-5(j) and the federal regulations, namely 42

C.F.R. §§ 483.24 and 483.35(a), citing the choking incident. Plaintiffs argued

proof of violations of applicable regulations sufficed to sustain their NHA and

residents' rights claims.

The court granted the facility's motion for a directed verdict and dismissed

plaintiffs' complaint in its entirety. In its oral decision, the trial court cited the

A-1917-23 21 applicable legal standards and found the absence of necessary causation

testimony fatal to all claims. The trial court then thoroughly analyzed the

record, emphasizing Nurse Tadrick offered no causation opinion, and Dr. Hood

only described "the mechanics of choking" and opined the cause of death was

decedent's choking on eggs, but did not opine any lapse by the facility or staff

caused or exacerbated the severity of the choking.

The court noted the absence of testimony identifying or linking lapses in

care protocol to decedent's injury. Specifically, the court stated:

There's no criticism with the area of speech, dietary, physician, or hospital care. There's no criticism about documentation by the nursing staff. There's no opinion[] regarding a required one-on-one supervision on January 26[].

There's no opinion that he was improperly admitted. There's no opinion about them failing to develop a care plan.

There's no opinion given or criticism . . . given about the staff's response to prior choking incidents or about this particular choking incident.

. . . I'm looking at some prior testimony where Nurse Tadrick was asked if she offered any opinion that [the facility's] staff . . . failed to timely respond to [decedent]'s cough or choking. She said she's not making any opinion on that.

She's not making any opinion that they failed to use equipment properly. . . .

A-1917-23 22 So, she doesn't provide any opinions on causation, so the jury can't look to her for the causation piece of this.

Regarding Dr. Hood's testimony, the court emphasized the doctor never

opined "what [the facility] should have done or that had [the facility's staff] been

in the room supervising, the choking would not have occurred," which would

leave the jury to "speculate" as to the answers. The court further explained:

I didn't hear anything from Dr. Hood about the size of the egg that was in the throat. I don't think he provided any testimony about that.

There's no testimony in the record saying that [decedent] was taking too big of a bite at the time, or that he wasn't taking sips, or that he was doing anything different than he would have been doing had someone been in there cu[e]ing him to do that.

There's just no opinion in the record saying any of that, and a jury would have to be left to their own speculation on that point, which is a crucial point in the prima facie case for a plaintiff.

Thus, the court granted the facility's motion for a directed verdict "on the

basis of the lack of proximate cause." Although clarifying Nurse Tadrick opined

decedent was deprived of his right as a resident, pursuant to N.J.S.A. 30:13-5(j),

to a "safe and decent living environment," the court confirmed it reached its

decision because the nurse's testimony could not establish any alleged violation

caused decedent's injury, nor could Dr. Hood's.

A-1917-23 23 D. Motion for Reconsideration

After oral argument, the court denied plaintiffs' motion for reconsideration

by February 21, 2023 order and accompanying written decision. Noting

plaintiffs had renewed their prior arguments, specifically acknowledging

plaintiffs' assertion there was "a distinction between a 'but-for' causation and a

'substantial factor' causation case," the court reiterated its reasons for granting

the directed verdict and dismissing the complaint. The court specifically

rejected plaintiffs' claim that Nurse Tadrick posited a sufficient opinion or

theory of causation by merely testifying closer monitoring would have allowed

for "cueing" decedent and possible earlier intervention after the onset of

choking. The court reasoned "when a jury and this court must give all favorable

inferences to her testimony, plaintiff cannot avoid [Nurse Tadrick's] repeated

statements that she was not giving any opinion on causation," meaning the court

"could not look to her as a ground[] to find causation in this case." (Emphasis

omitted). The court also observed Dr. Hood "never provided any opinion on

interception or how defendant's alleged deviation from the standard of care

created [decedent's] choking." According to the trial court, "if allowed to

continue, the jury would be left solely to speculate as to the link between the

two, which is not permitted."

A-1917-23 24 II.

On appeal, plaintiffs argue the court erred by: (1) finding plaintiffs failed

to show proximate cause; (2) interpreting the NHA as requiring proof of

proximate causation; (3) dismissing plaintiffs' punitive damages claim because

it is "subsumed in its [NHA] violation of rights claim"; and (4) denying

plaintiffs' request to use Homicillada's deposition testimony in lieu of live

testimony.9

We review de novo a motion for a directed verdict by applying the same

standard as the trial court. See Smith v. Millville Rescue Squad, 225 N.J. 373,

397 (2016). "Although we defer to the trial court's feel for the evidence, we owe

no special deference to the trial court's interpretation of the law." Lechler v. 303

Sunset Ave. Condo. Ass'n, 452 N.J. Super. 574, 582 (App. Div. 2017) (citing

Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378

(1995)).

Pursuant to Rule 4:37-2(b), the applicable standard for assessing a motion

for a directed verdict "is whether the evidence, together with legitimate

inferences that can be drawn from it, could sustain a judgment in favor of the

9 Again, we do not reach the fourth claim in light of our dispositive causation determination. A-1917-23 25 party opposing the motion." Furey v. Cnty. of Ocean, 273 N.J. Super. 300, 309

(App. Div. 1994); see also R. 4:37-2(b). "This includes accepting as true all

evidence supporting the party opposing the motion and according that party the

benefit of all favorable inferences, and if reasonable minds could differ, the

motion must be denied." Ibid. (citing Dolson v. Anastasia, 55 N.J. 2, 5 (1969)).

If "no rational juror could conclude that the plaintiff marshaled sufficient

evidence to satisfy each prima facie element of a cause of action," the trial court

should grant defendant's motion. Smith, 225 N.J. at 397 (quoting Godfrey v.

Princeton Theological Seminary, 196 N.J. 178, 197 (2008)). However, "a judge

is not to consider 'the worth, nature or extent (beyond a scintilla) of the

evidence,' but only review 'its existence, viewed most favorably to the party

opposing the motion.'" Lechler, 452 N.J. Super. at 582 (quoting Dolson, 55 N.J.

at 5-6).

A.

We first consider plaintiffs' argument the court erroneously granted a

directed verdict for the facility and improperly dismissed its general and gross

negligence claims for lack of sufficient proof of causation. Plaintiffs argue they

"produced evidence that it was more likely than not that had a member of the

nursing staff been in the room with [decedent], monitoring and supervising him,

A-1917-23 26 this tragedy would not have occurred." They further contend the facility staff's

failure to supervise or monitor decedent rendered it impossible for plaintiffs to

gather proof showing "as a certainty that if someone was in the room, [decedent]

would not have choked." Plaintiffs also claim the court improperly applied a

"but[-]for" causation standard because they "tried the case on an 'increased risk

of harm/substantial factor' causation basis."

According to plaintiffs, the facility's breach of applicable standards of care

"gives rise to a reasonable inference that the breach of duty was a proximate

cause of the harm," and the court erred in removing the case from the jury. They

further contend no proof of medical causation or expert testimony was needed,

and causation here "is a matter of logic and common sense," and does not

involve complex medical issues. They argue they needed only show the

facility's acts or omissions heightened the risk and were a substantial factor in

bringing about decedent's injury, which they claim they presented in the form of

Nurse Tadrick's testimony that a staff person's presence in the room might have

been able to "cue" decedent or "intercept" the choking sooner. They claim Dr.

Hood sufficiently opined the cause of death was choking on eggs establishing

causation for the jury's consideration.

A-1917-23 27 Fundamentally, a plaintiff must demonstrate negligence by establishing:

"(1) a duty of care, (2) a breach of that duty, (3) actual and proximate causation,

and (4) damages." Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406

(2014) (quoting Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J.

576, 594 (2013)). "A 'plaintiff bears the burden of establishing those elements

by some competent proof.'" Townsend v. Pierre, 221 N.J. 36, 51 (2015) (quoting

Davis, 219 N.J. at 406) (excess internal quotation marks omitted).

Actual causation, often referred to as "but-for" causation, directs "an act

or omission . . . not [be] regarded as a cause-in-fact of an event if the event

would have occurred without such act or omission." Thorn v. Travel Care, Inc.,

296 N.J. Super. 341, 346 (App. Div. 1997) (citing Kulas v. Pub. Serv. Elec. &

Gas Co., 41 N.J. 311, 317 (1964)). Plainly, "the law requires proof that the

result complained of probably would not have occurred 'but for' the negligent

conduct of the defendant." Evers v. Dollinger, 95 N.J. 399, 415 (1984).

"Proximate cause consists of 'any cause which in the natural and

continuous sequence, unbroken by an efficient intervening cause, produces the

result complained of and without which the result would not have occurred. '"

Townsend, 221 N.J. at 51 (quoting Conklin v. Hannoch Weisman, 145 N.J. 395,

418 (1996)). In other words, "proximate cause 'is that combination of logic,

A-1917-23 28 common sense, justice, policy and precedent that fixes a point in a chain of

events, some foreseeable and some unforeseeable, beyond which the law will

bar recovery.'" Gilbert v. Stewart, 247 N.J. 421, 443 (2021) (quoting

Williamson v. Waldman, 150 N.J. 232, 246 (1997)) (excess internal quotation

marks omitted); see also Scafidi v. Seiler, 119 N.J. 93, 101 (1990) (quoting

Caputzal v. The Lindsay Co., 48 N.J. 69, 77-78 (1966)).

Ordinarily, "proximate cause is a factual issue . . . resolved by the jury."

Scafidi, 119 N.J. at 101. However, for a jury to find in favor of a plaintiff on

the issue of negligence, "'there must be evidence or reasonable inferences

therefrom showing a proximate causal relation between the facility's negligence,

if found by the jury,' and the resulting injury." Reynolds v. Gonzalez, 172 N.J.

266, 284 (2002) (quoting Germann v. Matriss, 55 N.J. 193, 205 (1970)).

In medical malpractice actions, "the plaintiff has the burden of proving

the relevant standard of care governing the defendant-doctor, a deviation from

that standard, an injury proximately caused by the deviation, and damages

suffered from the defendant-doctor's negligence." Komlodi v. Picciano, 217

N.J. 387, 409 (2014) (citing Verdicchio v. Ricca, 179 N.J. 1, 23 (2004); Evers,

95 N.J. at 406). To establish a prima facie case of nursing home negligence, a

plaintiff must similarly prove not only that the defendant deviated from

A-1917-23 29 recognized standards of medical-nursing care, but also that this deviation was a

proximate cause of the complained-of injuries. Ptaszynski v. Atl. Health Sys.,

440 N.J. Super. 24, 38 (App. Div. 2015).

The precise standard for proximate cause is dependent on the nature of the

case. Ibid. When there is "a single alleged cause of harm, the jury is instructed

on proximate cause in accordance with the standard 'but[-]for' instruction." Ibid.

(citing Anderson v. Picciotti, 144 N.J. 195, 202 (1996)). However, in "cases in

which a defendant's negligence combines with a preexistent condition to cause

harm," the question becomes whether the "deviation from standard medical

practice increased a patient's risk of harm or diminished a patient's chance of

survival and whether such increased risk was a substantial factor in producing

the ultimate harm." Verdicchio, 179 N.J. at 24 (first quoting Battenfeld v.

Gregory, 247 N.J. Super. 538, 549 (App. Div. 1991); then quoting Gardner v.

Pawliw, 150 N.J. 359, 376 (1997)); see also Scafidi, 119 N.J. at 102. "A

preexistent condition or disease is one that has become sufficiently associated

with a plaintiff prior to the defendant's negligent conduct so that it becomes a

factor that affects the value of the plaintiff's interest destroyed by the defendant."

Anderson, 144 N.J. at 211 (citing Joseph H. King, Jr., Causation, Valuation, and

Chance in Personal Injury Torts Involving Preexisting Conditions and Future

A-1917-23 30 Consequences, 90 Yale L.J. 1353, 1357 (1981)). "A defendant whose acts

aggravate a plaintiff's preexisting condition is liable only for the amount of harm

actually caused by the [defendant's] negligence." Scafidi, 119 N.J. at 110

(quoting Ostrowski v. Azzara, 111 N.J. 429, 439 (1988)). Although the standard

for substantial factor "is less stringent than the 'all or nothing but[-]for' standard,

it does not alter a plaintiff's burden of proving the case by a fair preponderance

of the evidence." Anderson, 144 N.J. at 210 (quoting Battenfeld, 247 N.J. Super.

at 548).

Regarding the type of proof necessary to establish causation, our Supreme

Court has directed "to establish a prima facie case of negligence in a

medical[ ]malpractice action, a plaintiff must present expert testimony

establishing [in part,] . . . that the deviation proximately caused the injury."

Gardner, 150 N.J. at 375 (citing Germann, 55 N.J. at 205). "Absent competent

expert proof, . . . the case is not sufficient for determination by the jury."

Rosenberg v. Tavorath, 352 N.J. Super. 385, 399 (App. Div. 2002); see also

Cowley v. Virtua Health Sys., 242 N.J. 1, 20 (2020) ("In the hierarchal setting

of a multi-disciplinary medical team providing care to a hospitalized

patient, . . . to assess a deviation in the standard of care in such a setting, one

must know the procedures, protocols, and scope of duties of the licensed

A-1917-23 31 professional nurses in such circumstances. An expert is required for that

explanation. Such information is outside of the realm of common knowledge."

(Omission in original)). However, expert testimony is not required in rarer,

"common knowledge" cases in which "the carelessness of the defendant is

readily apparent to anyone of average intelligence and ordinary experience."

Rosenberg v. Cahill, 99 N.J. 318, 325 (1985).

Even in non-medical malpractice cases, courts evaluate whether an expert

is required by determining "whether the matter to be dealt with is so esoteric

that jurors of common judgment and experience cannot form a valid judgment

as to whether the conduct of the party was reasonable." Scully v. Fitzgerald,

179 N.J. 114, 127 (2004) (quoting Butler v. Acme Mkt., Inc., 89 N.J. 270, 283

(1982)). When proper evaluation requires "a complex assessment of a myriad

of factors," the analysis likely falls "beyond the ken of the average juror."

Giantonnio v. Taccard, 291 N.J. Super. 31, 44 (App. Div. 1996); see also Davis,

219 N.J. at 407.

Applying these standards, we are persuaded, as was the trial court,

plaintiffs' negligence claims required but lacked sufficient evidence establishing

causation. Here, plaintiffs failed to provide expert testimony regarding the

A-1917-23 32 causal link between decedent's injury and any arguable lapse in care, which we

are convinced was needed.

The parties dispute the precise nature of the claim—malpractice or general

negligence—and the applicable proximate cause standard. Given the

complexity of the medical and causal considerations, including but not limited

to: decedent's pre-existing medical condition, the interrelationship between

decedent's dysphasia and the choking incident and subsequent cardiac arrest, the

mechanics of decedent's choking that morning, the interpretation of images of

decedent's airway and the significance, if any, of the location and amount of egg

"fragments" shown, the nature and extent of medical intervention provided, and

the impact, if any, of other possible interventions on the outcome, we likewise

reject plaintiffs' contention that expert medical testimony was not required to

explain and potentially establish a causal connection between the facility's

conduct and decedent's injury. Without expert assistance, under any causation

standard, a jury would have been powerless to interpret the evidence or properly

assess the vital causal link without resorting to impermissible lay speculation.

Whether framed as a medical malpractice action, professional negligence

action, or an ordinary negligence claim, the questions of whether or what

conduct or omission by the facility or its staff caused or heightened the risk to

A-1917-23 33 decedent and contributed as a substantial factor to his injury was beyond the ken

of the average juror. The jury would have been without "sufficient knowledge

or experience" in this area, Posta v. Chung-Loy, 306 N.J. Super. 182, 204 (App.

Div. 1997), and could not have assessed issues such as the degree of likelihood

of a successful rescue by the facility's staff, the objective probability of

decedent's survival with a nurse present at the onset of his choking, or even the

degree to which a nurse's presence might have prevented choking altogether in

these circumstances. As such, we conclude the trial court reasonably entered a

directed verdict in the facility's favor as expert testimony was required, and none

was provided.

Further, assuming without deciding the appropriate proximate causation

test was whether the staff's monitoring or lack thereof increased the risk of harm

and was a substantial factor in decedent's death, plaintiffs' proof was

insufficient. To proceed to a jury, the evidence at its minimum must have been

sufficient for a jury to find the absence of a staff member in the room heightened

the risk of harm and some absence of earlier precaution or intervention was a

substantial factor altering the course of unfortunate events. Here, that critical

proof was missing.

A-1917-23 34 Although Nurse Tadrick offered her expert opinion regarding the standard

of care and a generalized breach of necessary monitoring, she admitted she did

not offer an opinion as to causation; nor could she. See State v. One Marlin

Rifle, 319 N.J. Super. 359, 368 (App. Div. 1999) (nurses' opinions may not

anchor medical causation determinations). She opined regarding the facility's

duties and any breach. Although she testified generally a nurse's presence in the

room at the time of the choking's onset would have afforded additional time to

intervene, her testimony stopped short of tying that broad observation to

decedent's incident and was devoid of the requisite specificity concerning how

or in what manner interventions would have been faster or more effective

minutes earlier.

We also conclude Dr. Hood's testimony was insufficient to fill the

causation void. As the trial court observed, Dr. Hood confined his testimony to

the mechanics of decedent's death, specifically his choking on eggs,

compromising his airway, likely bringing about his cardiac arrest. The doctor

never opined the failure of staff to be present in the room prior to or at the

moment decedent choked, the method by which decedent received or ingested

his food, the precautions taken or not taken by staff, or deficiencies in decedent's

A-1917-23 35 care plan or the response efforts caused the injury or was a substantial factor in

bringing it about.10

We reject plaintiffs' claim "defendant . . . had the burden to show that the

harm that occurred would have occurred regardless of the breach." Plaintiffs

rely on factually dissimilar cases in which negligence clearly caused injury, but

where only the precise defendant or action is unknown, to support its burden

shifting claim. See Lanzet v. Greenberg, 126 N.J. 168, 170-72, 189 (1991)

(holding "the superior knowledge of the physician require[d] that he or she

distinguish the preexisting condition from the eventual harm caused" because

"there was clear evidence of neglect by the operating-room physicians" after a

cataract surgery patient lapsed into a coma during surgery after the procedure

continued despite a dangerous decline in the patient's pulse). This is not such a

case.

Here, the burden was plaintiffs' to establish each element of their claims

including causation. See Gardner, 150 N.J. at 375. Plaintiffs never offered

evidence or expert opinion to support the claim the harm would not have

occurred, or the risk would have been substantially lessened, had staff been

10 We note the care plan did not explicitly require staff's continuous presence in decedents room while he was eating. A-1917-23 36 present. Any speculation staff might have possibly prevented the choking or

mitigated its impact would be insufficient, improper, and beyond the record

plaintiffs created.

Accordingly, we are satisfied plaintiffs did not sufficiently tether

decedent's death, however tragic, to any arguable breach by the facility or its

staff, and a directed verdict was appropriate as to the negligence claims.

B.

We next address plaintiffs' argument the trial court compounded its error

by erroneously grafting a proximate cause requirement into their NHA claims.

We are not persuaded.

The NHA "was enacted in 1976 to declare 'a bill of rights' for nursing

home residents and define the 'responsibilities' of nursing homes." Ptaszynski,

440 N.J. Super. at 32 (quoting L. 1976, c. 120 § 1). A nursing home resident's

rights under the NHA are defined in N.J.S.A. 30:13-5(a) through (n). Relevant

to this action, N.J.S.A. 30:13-5(j) vests in nursing home patients

the right to a safe and decent living environment and considerate and respectful care that recognizes the dignity and individuality of the resident, including the right to expect and receive appropriate assessment, management and treatment of pain as an integral component of that person's care consistent with sound nursing and medical practices.

A-1917-23 37 A nursing home's "responsibilities" are enumerated in a separate section

of the NHA, N.J.S.A. 30:13-3(a) to (j). These obligations include the

requirement that all nursing homes "ensur[e] compliance with all applicable

State and federal statutes and rules and regulations." N.J.S.A. 30:13-3(h).

The NHA provides "any person or resident whose rights as defined herein

are violated shall have a cause of action against any person committing such

violation." N.J.S.A. 30:13-8(a) (emphasis added). However, as this court

previously determined in Ptaszynski, the NHA does not similarly "authorize a

person to bring an action to enforce the nursing home's 'responsibilities' as

defined in the law." 440 N.J. Super. at 33-34 (finding the plaintiff could not

"assert a cause of action for the alleged failure by defendant to fulfill its

responsibility under N.J.S.A. 30:13-3(h) to comply with all applicable state and

federal statutes, rules and regulations").

Here, plaintiffs alleged actionable violations of resident's rights pursuant

to the NHA, specifically N.J.S.A. 30:13-5. However, citing no case law,

plaintiffs assert a residents' rights claim is established for a jury's consideration

on some proof of the violation alone, regardless of accompanying evidence that

injury or harm was caused by the alleged breach. They again assert, as they did

before the trial court, no proof of causation is necessary for an NHA claim to

A-1917-23 38 reach a jury.

We look to a statute's plain language to ascertain legislative intent and

construe the provision's verbiage "in accordance with its ordinary and common-

sense meaning." Smith, 225 N.J. at 389-90 (quoting Saccone v. Bd. of Trs. of

the Police & Firemen's Ret. Sys., 219 N.J. 369, 380 (2014)). Here, N.J.S.A.

30:13-8(a)'s plain language confers the right to bring a "cause of action against

any person committing" a violation of the NHA. (Emphasis added). Further, it

permits a plaintiff "to recover actual and punitive damages." N.J.S.A. 30:13 -

8(a). Thus, the statute on its face, confers authority to maintain a cause of action

against a nursing home to recover actual damages and punitive damages if the

violation was sufficiently willful.

Although the statute does not contain causation language, it strains logic

to conclude actual or punitive damages would be recoverable without some

nexus to harm or injury, as by their very definition, damages serve that precise

purpose. Indeed, damages are defined as "compensation for loss or injury."

Black's Law Dictionary 488 (12th ed. 2024). Actual damages, or compensatory

damages, aim to "compensate for a proven injury or loss." Id. at 488-89; see

also Nappe v. Anschelewitz, Bar, Ansell & Bonello, 97 N.J. 37, 41 n.1 (1984)

("The terms 'actual' and 'compensatory' damages . . . refer to a monetary amount

A-1917-23 39 awarded in court to compensate . . . plaintiff for an actual loss or injury suffered

as a result of defendant's actions."). By necessity, any damage award flows from

a determination that the "losses suffered or to be suffered a[re] the result of the

injur[y]," Glowacki v. Underwood Mem'l Hosp., 270 N.J. Super. 1, 15 (App.

Div. 1994) (emphasis added) (citing Amaru v. Stratton, 209 N.J. Super. 1, 21

(App. Div. 1985)), as "plaintiff, generally, must apportion or relate damages to

defendant's wrongful acts," O'Brien (Newark) Cogeneration, Inc. v. Automatic

Sprinkler Corp. of Am., 361 N.J. Super. 264, 274 (App. Div. 2003) (emphasis

added); see also Black's Law Dictionary, 273 (defining "cause" as "something

that produces an effect or result").

Plaintiffs' reliance on Model Jury Charges (Civil), 5.77, "Violations of

Nursing Home Statutes or Regulations – Negligence and Violations of Nursing

Home Residents' Rights Claims" (rev. Nov. 2023), is likewise unavailing.

Preliminarily we note "trial judges are strongly encouraged to follow the [model

jury] charges when they instruct a jury," but the instructions "are not binding

statements of law." State v. O'Donnell, 255 N.J. 60, 79 (2023). Notwithstanding

their lack of binding authority, a review of the model instruction and sample

verdict sheet does not, as plaintiffs suggest, persuade us causation is irrelevant

to recover under the NHA.

A-1917-23 40 The model instruction initially suggests the court orient the jury to the

nature of the claim, stating, "In this case, aside from asserting that the defendants

were negligent, the plaintiff claims that the defendants violated the rights of the

plaintiff, as a nursing home resident, under the rights enumerated in the [NHA]."

The model charge then directs the trial court to enumerate the resident's rights

allegedly violated, suggesting a further instruction:

If you find that the defendants violated any of these rights, you have found a violation of the [NHA], and a violation of the plaintiff's nursing home residents' rights. Thus, if you conclude that defendants violated plaintiff's nursing home residents' rights, you must find for plaintiff on this issue.

[Model Jury Charges (Civil), 7.77, at 7.]

However, the same instruction then alerts the jury "not to duplicate

damages" for negligence and violations of resident's rights. Ibid. To avoid

duplicative damages, the proposed charge instructs:

If you find that plaintiff has sustained separate and independent injuries, losses, and/or harms for the negligence and nursing home residents' rights, you may award separate damage awards. However, if you find that plaintiff did not sustain separate injuries or damages, then you may compensate plaintiff once and only once. [Id. at 7-8 (emphasis added).]

Thus, the damage charge requires the jury first find whether, in this case,

A-1917-23 41 plaintiffs on decedent's behalf "sustained . . . injuries, losses, and/or harms," as

a result of the negligence and rights violations. Ibid.

Similarly, the sample verdict sheet specifically requires the jury to assess

the damage award for any violation, inquiring, "What amount of money would

fairly compensate for plaintiff's damages resulting from the violation(s) of

plaintiff's nursing home residents' rights?" Id. at 9 (emphasis added). The

question probes compensatory damages caused by the violation.

This interpretation comports with our determination in Ptaszynski,

concluding the "plaintiff's evidence did not . . . distinguish between the injuries

and harm caused by defendant's alleged violations of the NHA and its alleged

negligence." 440 N.J. Super. at 39 (emphasis added). The prohibition on

duplicative recovery requires assessment of the respective harms "caused" by

any negligence or violation of rights.

As such, we discern no merit to plaintiffs' contention they did not have to

show some causal relationship between the alleged NHA violations and the

"actual damages" sought. Critically here, neither plaintiffs' complaint nor the

evidence at trial claimed separate injury or damages distinct from those alleged

in their negligence claims. Thus, plaintiffs' NHA claims were inextricably tied

to negligence claims and dependent on plaintiffs' establishing the facility caused

A-1917-23 42 decedent's injury. Without such proof, the NHA claims could not stand alone

before a jury on the record plaintiffs created.

C.

Finally, we address and reject plaintiffs' argument that the punitive

damages claim should have survived a directed verdict. Because the trial court

properly entered a directed verdict in favor of the facility on plaintiffs '

negligence and NHA claims, it correctly dismissed the punitive damages claim.

New Jersey's Punitive Damages Act (PDA), N.J.S.A. 2A:15-5.9 to -5.17,

governs claims for punitive damages in civil actions. "The PDA codified

common law principles underlying punitive damages, under which punitive

damages were limited 'to only exceptional cases . . . as a punishment of the

defendant and as a deterrent to others from following his example .'" Rivera v.

Valley Hosp., Inc., 252 N.J. 1, 18 (2022) (omission in original) (quoting Pavolva

v. Mint Mgmt. Corp., 375 N.J. Super. 397, 404 (App. Div. 2005)) (internal

quotation marks omitted).

When, as here, a trial court bifurcates a trial on a plaintiff's damages

claims, "punitive damages may be awarded only if compensatory damages have

been awarded in the first stage of the trial," and "an award of nominal damages

cannot support an award of punitive damages." N.J.S.A. 2A:15-5.13(c).

A-1917-23 43 Because a directed verdict resulted in dismissal of plaintiffs' claims to

compensatory damages, the claim for punitive damages could not survive.

Affirmed.

A-1917-23 44