NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0335-24
VALERIE KARL HESTER,
Plaintiff-Appellant,
v.
VLADISLAV BARGMAN, M.D., RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY, RUTGERS BIOMEDICAL AND HEALTH SCIENCES, RUTGERS NEW JERSEY MEDICAL SCHOOL, and UNIVERSITY HOSPITAL, a/k/a UNIVERSITY HOSPITAL NEWARK,
Defendants-Respondents. _____________________________
Submitted January 28, 2026 – Decided March 16, 2026
Before Judges Gummer and Paganelli.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2842-20.
Valerie Karl Hester, self-represented appellant. Ruprecht Hart Ricciardulli & Sherman, LLP, attorneys for respondents (Renee J. Sherman, on the brief).
PER CURIAM
On September 17, 2024, plaintiff Valerie Karl Hester failed to appear for
trial. The trial court entered an order dismissing her complaint. She appeals
from that order. Because we conclude the judge did not abuse her discretion by
dismissing the complaint, we affirm.
We glean the procedural history from the record. Plaintiff, represented by
an attorney, filed a medical malpractice complaint against defendants.
Defendants filed an answer and asserted various defenses. The parties engaged
in discovery. The court granted plaintiff's counsel's motion to withdraw as
plaintiff's attorney, noting the motion was unopposed and that plaintiff had
moved "to proceed pro se."
Trial in the matter was scheduled to begin on September 16, 2024.
Defendants' request for an adjournment was opposed by plaintiff and denied by
the Civil Part presiding judge.
Plaintiff and counsel for defendants appeared on September 16. Plaintiff
requested that the matter proceed as a bench trial. Defendants initially refused
to waive their right to a jury trial but ultimately agreed to proceed with a bench
trial.
A-0335-24 2 Plaintiff stated she was "going to drop" her lawsuit against her former
attorney and "hire him back." The trial judge stated she "would allow it" if the
attorney was "going to step back in." However, after the judge gave plaintiff
time to contact the attorney, plaintiff advised the attorney "c[ould]n't come today
because this is a last-minute thing."
Plaintiff sought to submit her expert's report in lieu of the expert's live
testimony at trial. The judge explained that pursuant to the rules of court, the
report was "not admissible" unless the expert was present and defendants were
"allowed to cross-examine the" expert. The judge suggested plaintiff could start
the trial by giving her testimony and the "expert would have to be [t]here
tomorrow." The judge explained that, like a juror, she was an "average
layperson when it comes to medical malpractice." Therefore, she stated plaintiff
"need[ed] an expert to come in . . . to testify."
Because plaintiff was not feeling well, the judge recessed the matter to the
next day. The judge explained that the trial would begin in the morning with
plaintiff's expert scheduled to testify in the afternoon. Plaintiff stated she would
"try [her] best" and the judge reiterated that she would see the parties at
9:00 a.m. and if plaintiff's expert was not there in the afternoon, she would "have
to dismiss [the] case."
A-0335-24 3 On the evening of September 16, plaintiff emailed a judge who had
presided over earlier proceedings in this case. Plaintiff stated:
Please inform [the trial judge] that I will not be attending trial tomorrow for reason that it's quite impossible for anyone to obtain a [m]edical [e]xpert to testify at this trial in [one] day.
On September 17, 2024, the judge reconvened the trial. Defendants'
counsel was present, but plaintiff failed to appear. The judge noted she was
provided with plaintiff's email from the other judge's chambers. The judge
referenced the email, noting plaintiff "knew the trial" was scheduled to proceed,
"did not have an expert" and was "not prepared to move forward." The judge
stated she had "no choice" but to dismiss plaintiff's complaint as the judge
previously advised.
On appeal, plaintiff requests that we "remand this matter back to the trial
court for an entry of a [d]efault [j]udg[]ment." She contends: (1) the judge
should have been disqualified because she was "friends" with defense counsel
and her former attorney; (2) the judge was biased and presented an unfavorable
demeanor; (3) the judge did not follow the "rules of evidence, [r]ules of . . .
[c]ourt," or judicial canons; (4) the judge's handling of landlord tenant matters
disqualified her from handling medical malpractice matters; (5) she was not
properly served or informed of the trial date; (6) the dismissal was "illegal"; (7)
A-0335-24 4 her United States and New Jersey constitutional rights were violated; and (8) an
$80 million default judgment should have been entered against defendants
because they did not personally appear at trial.
We review the judge's decision to dismiss the complaint for an abuse of
discretion. See Kornbleuth v. Westover, 241 N.J. 289, 300 (2020) ("The
decision to dismiss a case . . . for failure to appear for trial falls within the
discretion of the trial judge."). See also R. 1:2-4(a)(c) ("[I]f without just excuse
. . . no appearance is made on behalf of a party . . . on the day of trial . . . the
court may order . . . the dismissal of the complaint."). 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.'" Flagg
v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez
v. Immigr. & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). "In
other words, a functional approach to abuse of discretion examines whether
there are good reasons for an appellate court to defer to the particular decision
at issue." Ibid.
"To prove medical malpractice, ordinarily, 'a plaintiff must present expert
testimony establishing (1) the applicable standard of care; (2) a deviation from
that standard of care; and (3) that the deviation proximately caused the injury. '"
A-0335-24 5 Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (quoting Gardner v. Pawliw, 150
N.J. 359, 375 (1997)). "Absent competent expert proof of these three elements,
the case is not sufficient for determination by the jury." Rosenberg v. Tavorath,
352 N.J. Super. 385, 399 (App. Div. 2002) (citing Sanzari v. Rosenfeld, 34 N.J.
128, 134-35 (1961)); see also Medina v. Pitta, 442 N.J. Super. 1, 24 (App. Div.
2015) ("there is no question that expert testimony [i]s required for plaintiff's
claims to succeed" and "'the standard of practice to which [the defendant-
practitioner] failed to adhere must be established by expert testimony'") (quoting
Rosenberg v. Cahill, 99 N.J. 318, 325 (1985)) (alteration in original).
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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-0335-24
VALERIE KARL HESTER,
Plaintiff-Appellant,
v.
VLADISLAV BARGMAN, M.D., RUTGERS, THE STATE UNIVERSITY OF NEW JERSEY, RUTGERS BIOMEDICAL AND HEALTH SCIENCES, RUTGERS NEW JERSEY MEDICAL SCHOOL, and UNIVERSITY HOSPITAL, a/k/a UNIVERSITY HOSPITAL NEWARK,
Defendants-Respondents. _____________________________
Submitted January 28, 2026 – Decided March 16, 2026
Before Judges Gummer and Paganelli.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-2842-20.
Valerie Karl Hester, self-represented appellant. Ruprecht Hart Ricciardulli & Sherman, LLP, attorneys for respondents (Renee J. Sherman, on the brief).
PER CURIAM
On September 17, 2024, plaintiff Valerie Karl Hester failed to appear for
trial. The trial court entered an order dismissing her complaint. She appeals
from that order. Because we conclude the judge did not abuse her discretion by
dismissing the complaint, we affirm.
We glean the procedural history from the record. Plaintiff, represented by
an attorney, filed a medical malpractice complaint against defendants.
Defendants filed an answer and asserted various defenses. The parties engaged
in discovery. The court granted plaintiff's counsel's motion to withdraw as
plaintiff's attorney, noting the motion was unopposed and that plaintiff had
moved "to proceed pro se."
Trial in the matter was scheduled to begin on September 16, 2024.
Defendants' request for an adjournment was opposed by plaintiff and denied by
the Civil Part presiding judge.
Plaintiff and counsel for defendants appeared on September 16. Plaintiff
requested that the matter proceed as a bench trial. Defendants initially refused
to waive their right to a jury trial but ultimately agreed to proceed with a bench
trial.
A-0335-24 2 Plaintiff stated she was "going to drop" her lawsuit against her former
attorney and "hire him back." The trial judge stated she "would allow it" if the
attorney was "going to step back in." However, after the judge gave plaintiff
time to contact the attorney, plaintiff advised the attorney "c[ould]n't come today
because this is a last-minute thing."
Plaintiff sought to submit her expert's report in lieu of the expert's live
testimony at trial. The judge explained that pursuant to the rules of court, the
report was "not admissible" unless the expert was present and defendants were
"allowed to cross-examine the" expert. The judge suggested plaintiff could start
the trial by giving her testimony and the "expert would have to be [t]here
tomorrow." The judge explained that, like a juror, she was an "average
layperson when it comes to medical malpractice." Therefore, she stated plaintiff
"need[ed] an expert to come in . . . to testify."
Because plaintiff was not feeling well, the judge recessed the matter to the
next day. The judge explained that the trial would begin in the morning with
plaintiff's expert scheduled to testify in the afternoon. Plaintiff stated she would
"try [her] best" and the judge reiterated that she would see the parties at
9:00 a.m. and if plaintiff's expert was not there in the afternoon, she would "have
to dismiss [the] case."
A-0335-24 3 On the evening of September 16, plaintiff emailed a judge who had
presided over earlier proceedings in this case. Plaintiff stated:
Please inform [the trial judge] that I will not be attending trial tomorrow for reason that it's quite impossible for anyone to obtain a [m]edical [e]xpert to testify at this trial in [one] day.
On September 17, 2024, the judge reconvened the trial. Defendants'
counsel was present, but plaintiff failed to appear. The judge noted she was
provided with plaintiff's email from the other judge's chambers. The judge
referenced the email, noting plaintiff "knew the trial" was scheduled to proceed,
"did not have an expert" and was "not prepared to move forward." The judge
stated she had "no choice" but to dismiss plaintiff's complaint as the judge
previously advised.
On appeal, plaintiff requests that we "remand this matter back to the trial
court for an entry of a [d]efault [j]udg[]ment." She contends: (1) the judge
should have been disqualified because she was "friends" with defense counsel
and her former attorney; (2) the judge was biased and presented an unfavorable
demeanor; (3) the judge did not follow the "rules of evidence, [r]ules of . . .
[c]ourt," or judicial canons; (4) the judge's handling of landlord tenant matters
disqualified her from handling medical malpractice matters; (5) she was not
properly served or informed of the trial date; (6) the dismissal was "illegal"; (7)
A-0335-24 4 her United States and New Jersey constitutional rights were violated; and (8) an
$80 million default judgment should have been entered against defendants
because they did not personally appear at trial.
We review the judge's decision to dismiss the complaint for an abuse of
discretion. See Kornbleuth v. Westover, 241 N.J. 289, 300 (2020) ("The
decision to dismiss a case . . . for failure to appear for trial falls within the
discretion of the trial judge."). See also R. 1:2-4(a)(c) ("[I]f without just excuse
. . . no appearance is made on behalf of a party . . . on the day of trial . . . the
court may order . . . the dismissal of the complaint."). 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.'" Flagg
v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez
v. Immigr. & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)). "In
other words, a functional approach to abuse of discretion examines whether
there are good reasons for an appellate court to defer to the particular decision
at issue." Ibid.
"To prove medical malpractice, ordinarily, 'a plaintiff must present expert
testimony establishing (1) the applicable standard of care; (2) a deviation from
that standard of care; and (3) that the deviation proximately caused the injury. '"
A-0335-24 5 Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (quoting Gardner v. Pawliw, 150
N.J. 359, 375 (1997)). "Absent competent expert proof of these three elements,
the case is not sufficient for determination by the jury." Rosenberg v. Tavorath,
352 N.J. Super. 385, 399 (App. Div. 2002) (citing Sanzari v. Rosenfeld, 34 N.J.
128, 134-35 (1961)); see also Medina v. Pitta, 442 N.J. Super. 1, 24 (App. Div.
2015) ("there is no question that expert testimony [i]s required for plaintiff's
claims to succeed" and "'the standard of practice to which [the defendant-
practitioner] failed to adhere must be established by expert testimony'") (quoting
Rosenberg v. Cahill, 99 N.J. 318, 325 (1985)) (alteration in original).
We conclude the judge did not abuse her discretion by dismissing
plaintiff's complaint for failure to appear at trial. The judge explained that
expert testimony was required for plaintiff's case to proceed. According to
plaintiff's email, she was not ready to proceed because she did not have an
expert. Under these circumstances, dismissal was appropriate. Moreover, the
email was silent regarding when the expert could or would be available, and
plaintiff's failure to appear left the judge without any information regarding the
expert's availability to testify.
Defendants' decision to appear at trial through counsel was permissible
and would not be grounds for the court to enter a default judgment. See N.J.
A-0335-24 6 Div. of Youth & Fam. Servs. v. P.W.R., 410 N.J. Super. 501, 506 (App. Div.
2009) ("Because a party represented by counsel may defend at trial without
being physically present, default may not be entered when a party is not present
at a trial absent evidence that the party has not otherwise defended as required
by rule or court order"), rev'd on other grounds, 205 N.J. 17 (2011). See also R.
4:43-1 ("If a party against whom a judgment for affirmative relief is sought has
failed to plead or otherwise defend as provided by these rules or court order, or
if the answer has been stricken with prejudice, the clerk shall enter a default on
the docket as to such party. . . .").
To the extent not addressed, plaintiff's remaining contentions lack
sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
A-0335-24 7