Vitrano v. Schiffman

702 A.2d 1347, 305 N.J. Super. 572, 1997 N.J. Super. LEXIS 463
CourtNew Jersey Superior Court Appellate Division
DecidedDecember 1, 1997
StatusPublished
Cited by3 cases

This text of 702 A.2d 1347 (Vitrano v. Schiffman) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Vitrano v. Schiffman, 702 A.2d 1347, 305 N.J. Super. 572, 1997 N.J. Super. LEXIS 463 (N.J. Ct. App. 1997).

Opinion

The opinion of the court was delivered by

BRAITHWAITE, J.A.D.

In this medical malpractice case, plaintiffs 1, Peter Vitrano, an infant by his guardian ad Litem, Frank Vitrano, and Frank Vitrano, individually, appeal from a summary judgment granted to defendants Donald Sehiffman, M.D., Matthew Feldman, M.D., Joseph Fruchter, M.D., and Alvin Edelstein, M.D. Plaintiffs do not appeal from summary judgment granted to Herbert Cole, M.D. Plaintiffs’ claim against defendant Bernard Etra, M.D. was voluntarily dismissed.

Plaintiff was born on September 18, 1975, in Hackensack. From his birth until approximately age seven and then from age ten to fourteen, plaintiff received pediatric health care from Drs. Sehiffman, Etra, Feldman and Fruchter. From March 1983 until [575]*575October 1985, plaintiff was under the care of defendant pediatricians Drs. Cole and Edelstein.

When plaintiff was sixteen years old he complained of two lumps in his groin accompanied by abdominal pain and discomfort. He was examined by Joseph Vitale, M.D., who found the “[patient] had both testicles in his canals, not in scrotum.” Dr. Vitale diagnosed plaintiff with cryptorchidism, “a developmental defect of the testicles” that is present at birth. Dr. Vitale referred plaintiff to John F. Kerns, M.D., a urologist.

Dr. Kerns examined plaintiff and diagnosed bilateral undescended testes. In January 1992, he successfully performed orchiopexy surgery on plaintiff. Dr. Kerns described the procedure as “[u]sing sharp and blunt dissection, the cord was freed up and the testicle was dissected free____a tunnel was made down into the scrotal sac and a small opening made in the scrotum.” This procedure was completed on both the right and left testes. In his report dated December 15, 1993, Dr. Kerns stated that he found that both testes were undescended and “were found to be in the inguinal canal, and appeared to be of moderate size.”

Plaintiffs commenced this litigation against defendants contending that they deviated from the accepted standard of medical care in failing to diagnose congenital undescended testes. Defendants essentially assert that it was impossible for all the board-certified pediatricians over so many years to have missed congenital undescended testes and, therefore, that the testes must have been descended but retractile, or plaintiff must have suffered from secondary ascent of the testes.

On a motion for summary judgment, the judge ruled that the opinion of plaintiffs’ liability expert, Joseph A. Silverman, M.D., was a net opinion. She therefore determined that he would not be permitted to testify at trial. Plaintiffs were then given the opportunity to provide additional reports, which they did. After reviewing the additional reports the motion judge concluded that there was no genuine issue with respect to a material fact pursuant to Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, [576]*576666 A.2d 146 (1995). Summary judgment was therefore granted to defendants and plaintiffs’ complaint was dismissed.

Our review of the record convinces us that the trial judge erred in concluding that plaintiffs’ expert’s opinion was a net opinion. We are further satisfied that a genuine issue of material fact exists as to the liability of Drs. Schiffman and Feldman and therefore reverse the summary judgment granted to them. We affirm the summary judgment granted to Drs. Edelstein and Fruchter.

I

We observe at the outset that Dr. Feldman’s records show that he examined plaintiff at birth and noted that both of plaintiff’s testes had descended. Further, upon plaintiff’s discharge from the hospital, he was examined by Dr. Schiffman, who reported that plaintiffs testes were down or descended. During his childhood, plaintiff had routine doctor visits and was examined at least sixty times. One-fourth of these visits were for well-child checkups which required a full examination, including the testes.

On September 7, 1979, Dr. Feldman noted in plaintiff’s records that his testes were “palpable but were carried high.” The following year, Dr. Schiffman, on examination, noted that plaintiff had retractile testes. Between March 1983 and March 1985, plaintiff received a complete physical examination on four occasions. In each instance Dr. Edelstein noted that the examination was normal.

II

Plaintiffs’ expert, Dr. Silverman, opined that defendants were negligent because they failed to diagnose the condition of undescended testes, a readily distinguishable condition. Essentially, he asserted that, despite defendants’ records, they either failed to examine plaintiff or examined plaintiff and failed to record plaintiffs condition. Dr. Silverman’s opinion was based on the operative report' of Dr. Kerns which revealed that plaintiff had a [577]*577bilateral orchiopexy, a surgical procedure that, according to Dr. Silverman, supports the conclusion that plaintiff suffered from congenital non-descended testes. Specifically, Dr. Silverman testified at his deposition that he concluded that plaintiff had undescended testes “because a surgeon had to operate on [plaintiff] to bring them down.”

We are satisfied that Dr. Silverman’s testimony and report do not constitute a net opinion. Our courts have addressed the issue of net opinions.

Qualified expert opinion is admissible to assist the jury, N.J.R.E. 702, but there must be a factual and scientific basis for an expert’s opinion. Rubanick v. Witco Chemical Corp., 242 N.J.Super. 36, 45, 576 A.2d 4 (App.Div.1990), modified on other grounds, 125 N.J. 421, 593 A.2d 733 (1991). An opinion lacking in foundation is worthless. Stanley Co. of America v. Hercules Powder Co., 16 N.J. 295, 305, 108 A.2d 616 (1954). When an expert’s opinion is merely a bare conclusion unsupported by factual evidence, i.e., a “net opinion,” it is inadmissible. Buckelew v. Grossbard, 87 N.J. 512, 524, 435 A.2d 1150 (1981); In re Yaccarino, 117 N.J. 175, 564 A.2d 1184 (1989). In essence, the net opinion rule requires an expert witness to give the why and wherefore of his expert opinion, not just a mere conclusion. As the Supreme Court stated, this rule “frequently focuses ... on the failure of the expert to explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting therefrom.” Buckelew, supra, 87 N.J. at 524, 435 A.2d 1150. Where ... an expert offers an opinion without providing specific underlying reasons for the alleged malfunction, he ceases to assist the trier of fact and becomes nothing more that an additional juror.
[Jimenez v. GNOC, Corp., 286 N.J.Super. 533, 540, 670 A.2d 24 (App.Div.) (parallel citations omitted), certif. denied, 145 N.J. 374, 678 A.2d 714 (1996).

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702 A.2d 1347, 305 N.J. Super. 572, 1997 N.J. Super. LEXIS 463, Counsel Stack Legal Research, https://law.counselstack.com/opinion/vitrano-v-schiffman-njsuperctappdiv-1997.