NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3009-23
WILLIAM J. SANTO, as Administrator and Administrator ad Prosequendum of the Estate of MARGARET E. SANTO,
Plaintiff-Respondent,
v.
MEADOWVIEW NURSING AND REHABILITATION CENTER, an unincorporated business entity, and ATLANTIC COUNTY, a governmental entity,
Defendants-Appellants,
and
MICHELLE SAVAGE, an individual,1
Defendant. __________________________
Argued April 28, 2026 – Decided July 28, 2026
1 Improperly pled as Michele Savage. Before Judges Gooden Brown and DeAlmeida.
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-0019-20.
Timothy B. Crammer argued the cause for appellants (Dughi Hewit & Domalewski PC, attorneys; Timothy B. Crammer, of counsel and on the brief).
Steven L. Procaccini (Procaccini Law Group LLC) argued the cause for respondent.
PER CURIAM
Defendant Meadowview Nursing and Rehabilitation Center
(Meadowview), a nursing home owned and operated by defendant Atlantic
County, appeals from a March 26, 2024 judgment in the amount of $450,000
and a May 10, 2024 order denying judgment notwithstanding the verdict (JNOV)
or, alternatively, a new trial. See R. 4:40-2; R. 4:49-1. The judgment was
entered following a jury trial arising from an incident in which a resident
suffered hypothermia while in Meadowview's care. The resident, Margaret
Santo, was hospitalized after the incident and ultimately died two weeks later.
Her son and executor of her estate, plaintiff William Santo, brought suit alleging
violations of the New Jersey Nursing Home Residents' Rights Act (NHA or Act),
N.J.S.A. 30:13-1 to -19.
A-3009-23 2 The proofs adduced at trial showed that a Meadowview nurse called
emergency medical services because Margaret's2 temperature was low, she was
cool to the touch, and she was excessively lethargic. When the emergency
medical technicians (EMTs or EMS) arrived, one EMT remarked the room was
cold. Margaret was subsequently transported to the hospital where the same
EMT informed hospital personnel that the room was an "icebox." At trial, the
parties strenuously disputed whether the room was cold with both fact and expert
witness testimony. Although other violations of the Act were advanced,
including a failure to notify a physician after withholding one of Margaret's
medications for three days, the nurses' reliance on uncalibrated personal
thermometers, and a failure to promptly intervene upon discovering Margaret's
condition, the primary claim stems from the cold room.
On appeal, defendants argue there was insufficient evidence the room was
cold, insufficient evidence defendants allowed the room to become cold, and
insufficient evidence the standard of care was breached. Defendants also argue
the judge erroneously admitted the EMT's testimony under N.J.R.E. 701 and
both the verdict and the $450,000 damage award were against the weight of the
2 We refer to some parties by their first names to minimize confusion. We intend no disrespect. A-3009-23 3 evidence. Having considered the record and applicable law, we reject
defendants' arguments and affirm.
I.
On February 19, 2018, Margaret was found in her bed at Meadowview,
unresponsive, and with a body temperature indicative of hypothermia. Margaret
was rushed to the hospital, where she was stabilized, transferred to a second
long-term care facility, and then placed on hospice care for end-stage dementia.
Margaret ultimately died on March 12, 2018. William brought suit on January
2, 2020, against defendants Meadowview and Atlantic County, alleging
violations of the Act,3 specifically N.J.S.A. 30:13-5(j) and (m).4
We glean the following facts from the six-day jury trial conducted
between March 19 and March 26, 2024. Five witnesses testified for plaintiff,
including William, the responding EMT, the attending emergency room
3 Additionally, William's complaint sought recovery under the Wrongful Death Act, N.J.S.A. 2A:31-1 to -6, and alleged medical negligence. Meadowview's administrator, Michelle Savage, was also a named defendant. Prior to trial, plaintiff withdrew the Wrongful Death Act claims, the medical negligence claims, and all claims against Savage. 4 N.J.S.A. 30:13-5(m) affords residents the right to "[n]ot be deprived of any constitutional, civil or legal right solely by reason of admission to a nursing home." N.J.S.A. 30:13-5(j) expressly enumerates the right to "a safe and decent living environment."
A-3009-23 4 physician, an expert in geriatric medicine, and an expert in nursing and nursing
home administration. Eight witnesses testified for defendant, including five
nursing professionals who treated Margaret, the division director of Atlantic
County's Facilities Management, an expert in internal and nursing home
medicine, and Meadowview's nursing home administrator in charge during the
incident.
Meadowview is a "180-bed facility" that provides "hospice care," "respite
care," "short-term stay, physical therapy, occupational therapy, speech therapy,
. . . IV therapy, [and] memory care" for elderly individuals. Margaret became
a resident at Meadowview sometime in 2013, the same year she was diagnosed
with Alzheimer's dementia. Margaret also suffered from "[s]chizophrenia,
anxiety, depression, hypothyroidism, and . . . hypertension." Margaret's records
from Meadowview indicated she "[didn't] like horror movies, . . . like[d]
comedies[,] and . . . enjoy[ed] the musical stylings of Lawrence Welk."
At some point during her stay, Margaret was transferred from a third-floor
room to a ground level "garden floor" room with a roommate. William asserted
the transfer was the result of his mother's tendency to "loud[ly] . . . sing[]."
Margaret had a thermostat in her garden floor room, but it was only used to set
the temperature and "ha[d] nothing to display the temperature in the room ."
A-3009-23 5 William visited Margaret at Meadowview every few weeks. When he
visited, Margaret would "touch [his] face," call him "Billy," ask him questions
about family, "show . . . emotion," and "grab[ him]" when he "g[ave] her a kiss
on the forehead and hug[ged] her." William did not recall Margaret ever
complaining about the temperature in her room. On cross-examination, William
acknowledged Margaret was transferred to a "mush diet," but attributed it to
Meadowview not wanting "to deal with her teeth." He disputed that the change
was because Margaret "deteriorated to a point where she was unable to feed
herself."
William discovered Margaret was hospitalized when his sister called to
tell him his mother "had become sick." When he later visited Margaret at the
hospital, she was "not responding to [any]thing." William was "surprised to see
[Margaret] that way," characterizing her as a "catatonic vegetable" and noting
she did not respond to him speaking to her or holding her hand.
Dennis Ryan Damore, an EMT for TriCare Medical Transportation
(TriCare), responded to the emergency call for Margaret. Part of Damore's job
duties was to document and "pay attention to everything." However, he was not
permitted to take a patient's temperature. Damore recalled that on February 19,
2018, he was "called for a sick person that was reported hypothermic and
A-3009-23 6 disoriented for days." Damore's notes described that upon arrival, Margaret
"had pinpoint pupils and was very cold to the touch." He was informed by staff
that Margaret had been "nonverbal" "for [the] past few days," which, "per staff,"
"[wa]sn't [the] norm."
Upon entering Margaret's room, Damore noticed "a difference in
temperature from the hallway." Damore "always wore a hoodie and a jacket
[while he was working] at TriCare," and explained that being able to detect cold
inside a room "should say a lot." Damore recalled wondering what the cause of
the coldness was, and testified he "probably . . . looked at . . . where the window
and the air condition[ing] unit" were located to see if anything was amiss. When
asked to specify what he believed the temperature in the room was , Damore
stated the room felt below seventy degrees Fahrenheit, but could not state with
certainty it felt below sixty degrees Fahrenheit.
Damore recalled notifying the nurse at Shore Medical Center (Shore
Medical), the hospital where Margaret was transported, that the room was an
"icebox." Damore did not report the room being cold to TriCare and his
supervisors, nor did he refer to the temperature of the room in his notes, because
"[he] doubt[ed] anything [was] going to change." However, he notified Shore
Medical about the room temperature because he believed "if [he] report[ed] that
A-3009-23 7 [finding] to the . . . hospital, they may be able to get something done" and it
would help inform the hospital how to treat Margaret.
Damore did not recall if there was another resident in Margaret's room and
did not record the temperature of the room. He also did not recall if he changed
the thermostat or closed a window, but he testified he would have "intervene[d]"
if a window was open or an air conditioner unit was blowing cold air.
Roberta May was the attending emergency physician at Shore Medical
who treated Margaret. May's note recording Margaret's arrival, which was
entered into Shore Medical's system around 2:19 p.m. and read into the record
at trial, documented:
The patient presents with hypothermia. The onset was unknown. The course/duration of symptoms is unknown. The location where the incident occurred was at a nursing home. Nature of circumstance of exposure was EMS stated patient's room was an "icebox." Associated symptoms, unknown. Degree of symptoms is moderate. Risk factors consist of non- verbal/immobile. Prior episodes are unknown. Therapy today is emergency medical services.
May clarified her note did not indicate a diagnosis of hypothermia but
instead documented what the nursing home conveyed to Shore Medical about
Margaret's condition. Further, the note indicated the term "icebox" was not
May's word but instead conveyed what an EMT had told her. A later note
A-3009-23 8 entered at 2:41 p.m. indicated Margaret's skin was "[w]arm and dry," her blood
pressure was "low," and her rectal temperature was 89.9 degrees Fahrenheit,
which, according to May, provided "a more accurate core temperature" than a
tympanic reading. The note also indicated Margaret was "in no acute distress"
and "[o]pen[ed] [her] eyes to her name."
At the hospital, Margaret was wrapped in blankets and a "bear-hugger,"
which is "an inflatable blanket with several tubes . . . that infuses warm air" on
a patient to treat hypothermia. After some time, Margaret's temperature began
to rise and stabilized. May explained hypothermia can be caused by "cold
exposure," "sepsis," "poor regulatory processes," "medication[]," and "thyroid
disorder[]." May testified it was not her role "to determine the cause of th[e]
hypothermia," but noted Margaret had no indication of sepsis, besides the
hypothermia.
Dr. Perry Starer testified 5 as plaintiff's expert in geriatric medicine. Starer
opined that Meadowview breached its duty of care toward Margaret by "fail[ing]
to provide her with one of the most basic services that one would expect from
such a facility," resulting in "a drop in [Margaret's] body temperature, which set
off a sequence of adverse effects." Specifically, Starer asserted Meadowview
5 His de bene esse testimony was presented to the jury by video. A-3009-23 9 was required to protect Margaret from having
swings in her temperature which might make the body either too hot or too cold. And the way that one does that is to know whether she's at risk of having a fluctuation in temperature and provide her with an environment where she can exist comfortably and not have a swing in temperature. . . . [T]his is a case where it was cold. It's February, it's New Jersey, it's the northeast, and it was a cold day. . . . [B]ased on what I read, [Meadowview] failed to do such a thing.
Starer explained that Meadowview "exposed [Margaret] to unsafe
conditions[, namely] . . . a room which was perceived by others as being cold."
While Starer acknowledged he was not personally familiar with the room
temperature, he was able to conclude that "[t]he room was cold" based on his
review of the records. According to Starer, "the coldness of the room [was] a
breach of [Meadowview's] duty of care," and Margaret "was injured by those
conditions" by becoming "encephalopathic" and "suffer[ing] changes in her
clinical condition which stayed with her until the end of her life." Starer
confirmed his opinion would not change if Margaret had a roommate who did
not become hypothermic.
Starer ruled out Margaret's medication as a cause of her hypothermia.
Although the medication Margaret was taking prior to the incident "would have
impaired her ability to maintain her body temperature if she was . . . in an
A-3009-23 10 environment that was cold," Starer believed "[i]n isolation, the medicine should
not have lowered [Margaret's] body temperature." Starer concluded Margaret
"would have needed exposure to [a] cold external temperature" to develop
Starer also noted nothing in the record indicated Shore Medical had any
concerns with Margaret's medication's capacity to "interfer[e] with her ability to
regulate her body temperature," nor were there any records indicating Margaret
had felt "cold to the touch" prior to the incident. Further, Starer did not find
records indicating Margaret's hypothermic episode was "going to be a recurring
problem due to some innate failure of her body to be able to maintain a normal
body temperature."
Starer testified Margaret "changed" after the hospital visit. Starer
recounted prior to the incident, Margaret "could talk [6] to the activities director
about whatever movie she wanted to watch" and "could recognize staff
members." However, after the incident, Margaret became completely non-
verbal.
Starer acknowledged Margaret's dementia was degenerative and "[would
6 Margaret's "talking" appeared to be closer to "making sounds" rather than conventional speech. A-3009-23 11 have] progressively worsen[ed] over time." Starer admitted as of December
2017, Margaret was "not oriented to the location of [her] room or even where
she was," had "trouble with short term memory, [had] trouble with long term
memory, and . . . lacked the ability to participate in her own decision-making"
because of her dementia. Margaret had also "experienced a decrease in [her]
activities of daily living with respect to bed mobility, transfer, eating, and
toileting" over the two-year period prior to the incident. Notably, at some point
in 2016, Margaret had been admitted to Shore Medical due to a choking incident,
and Shore Medical had recommended she be switched to a "honey-thick liquid
diet."
However, Starer rejected the notion that Margaret was suffering from end-
stage dementia. According to Starer, end-stage dementia described a patient
whose "disease process ha[d] deteriorated as far as it can," and who had "lost all
function." Starer testified there was "[no] indication in 2017 that [Margaret]
was suffering from end[-]stage dementia," and, if she was, an appropriate care
plan would have been in place at Meadowview.
Elenore Tache, plaintiff's nursing and nursing home administration expert,
also opined on Meadowview's duty. Tache believed Meadowview failed to
"follow the proper procedures and protocols" by "fail[ing] to notify the
A-3009-23 12 physician in a timely manner of what [Margaret's] status was on the morning in
question" and by "expos[ing Margaret] to cold temperatures within her room at
the facility."7
First, Tache noted Margaret's medical records indicated every other dose
of Margaret's Klonopin had been withheld for four consecutive days up to the
day of the incident. The records showed the nurses withheld the medication
because Margaret was "lethargic." Although nurses are permitted to withhold a
dose of medication based on clinical judgment, "after several instances of
[medication] being [with]held in a row," a physician should be contacted.8
According to Tache, the nurse's failure to notify a physician after three
consecutive days of withholding Margaret's medication violated the standard of
care.
7 Tache also testified that "fail[ing] to transfer [Margaret] to the emergency room in a timely manner" was a breach of Meadowview's duty. However, this latter opinion was based on her confusion regarding when Margaret's temperature was taken. Tache acknowledged that "[i]f the vital[] signs and so forth were taken at 1:15 and [Margaret] was sent out at 1:30, that [would be] acceptable." Evidence presented at trial indicated that this approximates what occurred. 8 It would be the nurse's responsibility to contact the physician because the notes documenting withheld medication are typically reviewed only by the nurses. A-3009-23 13 Second, Tache opined that Meadowview failed to "provide a safe and
comfortable environment" for Margaret and failed to "set the room within a
specific [temperature] range,"9 which are "separate dut[ies]." Tache's opinion
was based on the fact that Margaret was hypothermic, Damore had described the
room as an "icebox," and Margaret was cold to the touch. Tache's opinion
"factor[ed] in that there's no way of knowing what the temperature of the room
that day actually was." Tache also noted that a facility should provide
thermometers, and it would be "unusual" for a nurse to use his or her own
thermometer, as it would need to have an "inspection check."
9 A nursing home typically is required to keep the temperature of all areas within a specified range. Notably, there is a distinction between the temperature a nursing home participating in the Medicare and Medicaid programs is required to maintain, and New Jersey state standards. Compare N.J.S.A. 26:2H-14.4(a) ("All areas used by patients or residents shall be maintained within a temperature range from [sixty-five] to [eighty-one] degrees Fahrenheit, except in rooms . . . where residents can individually control the temperature in their own living units, independent from other areas.") with 42 CFR 483.10(i)(6) ("Facilities initially certified after October 1, 1990[,] must maintain a temperature range of [seventy-one] to [eighty-one] [degrees Fahrenheit]"). While there was some confusion regarding which standards were appropriate for Tache's opinion, Tache testified that even if a room's temperature was within regulations, it could still "create a risk of harm to the resident" "depending on the patient's medical conditions."
A-3009-23 14 After plaintiff rested, 10 defendants called Takako Potts, a Meadowview
nurse who treated Margaret for two years. Potts testified she first checked on
Margaret on February 19, 2018, at around 9:00 a.m. Potts said the door to the
room was open, the windows were closed, and the room was not cold.
According to Potts, Margaret was not arousable, but her skin did not feel cool
to the touch. Potts added Margaret's roommate was in the room with her.
Because Margaret had difficulty arousing, Potts withheld Margaret's morning
Klonopin dose and took her temperature using Potts's personal thermometer.
Potts stated she did not record the initial temperature in Margaret's records
because it was "normal." "Normal" temperature was "above . . . [ninety-six
degrees Fahrenheit]," "depending on the patient," and "depending on how you
take [the temperature]." Potts returned to Margaret's room at around 1:15 p.m.,
and took her tympanic temperature, which read 95.6 degrees Fahrenheit.
Margaret was still not arousable and her skin felt "[a] little cool to [the] touch,"
but the room still did not feel cold to Potts. After Potts took Margaret's
temperature the second time, she contacted her supervisor who told her to "send
10 Prior to presenting their case, defendants moved for a directed verdict. See R. 4:40-1. After reciting the applicable law, the judge denied the motion, finding a jury could decide in plaintiff's favor based on the evidence presented.
A-3009-23 15 [Margaret] to the hospital." Potts called 9-1-1 and was present with Margaret
when the EMTs arrived.
Potts told the EMT Margaret was having "poor intake, difficulty arousing,
and [a] low temperature." The poor intake and difficulty arousing had "been
going on . . . [for a]pproximately . . . two days," while the low body temperature
started "[t]hat day." In response to her comment about Margaret's temperature,
Potts recalled an EMT stating, "Oh, the room is cold." Potts then checked the
thermostat in the room and discovered "it was at the right setting," "[seventy]
degrees" Fahrenheit.
Potts testified Margaret's roommate never became hypothermic or
complained of the cold, despite being in the room with Margaret that day.
Maintenance was also never called as the room "wasn't cold." On cross-
examination, Potts admitted that although Margaret was "not fully awake" at
9:00 a.m. and was having difficulty eating, Potts did not make a note of
Margaret's condition nor did she "report" it to "anybody." According to the
records, Margaret did not have cool skin or a low temperature prior to February
19, 2018.
Meadowview nursing assistant Charlotte Blake testified, but only
"[v]aguely" recalled Margaret and did not have independent recollection of
A-3009-23 16 caring for her. However, Blake did not recall a cold room or maintenance fixing
the heat in the room. Similarly, Meadowview nursing assistant Susan Cowan
testified, but did not have any independent recollection about caring for
Margaret on the day of the incident.
Meadowview nurse Joan Foltz, the manager of Margaret's floor, testified
next. Foltz was responsible for "making sure the unit was safe, happy, [and]
secure for the residents" and reporting any environmental issues to maintenance .
As part of her duties, Foltz would "make rounds," checking each room for safety
hazards or issues, including room temperature. Foltz had never called
maintenance "because of a room temperature issue in [a] patient's room" during
her tenure as unit manager on Margaret's floor.
Foltz recalled Margaret as a "total care" patient with dementia who, in
Foltz's opinion, was unable to communicate. On the day of the incident, Foltz
recalled Potts calling her to Margaret's room and telling Foltz "[Margaret] really
wasn't eating that day." Foltz instructed Potts to "get a set of vitals on [Margaret]
and call the doctor."11 At that time, Foltz had made an "assessment" to ensure
the room was "safe" but did not check the thermostat as the "room was
11 Foltz testified Potts had not told her she had taken Margaret's temperature earlier in the day. A-3009-23 17 comfortable."
Foltz documented the incident the next day in a "late note."12 The note
read:
Observed resident in bed, eyes open to verbal stimuli, non-verbal which is not unusual for resident, skin tone pink color, cool to touch, respirations even, non- labored, instruct nurse staff to obtain vital signs to make MD aware of findings, notified by nurse MD verbal order to send to hospital.
On cross-examination, Foltz admitted a temperature of ninety-six degrees
Fahrenheit would never be considered a "normal body temperature." Foltz also
testified Potts would not have been allowed to use her own thermometer from
home because it would not have been calibrated for accuracy by Meadowview.
According to Foltz, Meadowview provided ear thermometers to staff. Foltz also
admitted nobody told her Margaret's medication was being withheld because of
lethargy and she would expect such information to be documented.
Christopher Palermo, division director of Atlantic County's Facilities
Management, was responsible for maintaining the centralized work order system
Meadowview used for maintenance issues. The work order system reflected any
12 Foltz described her note as "late" because it was not written the same day as the incident. A-3009-23 18 "HVAC or [] heating or air conditioning problem[s]" reported by Meadowview.
An emergency situation, however, was typically called in by "phone," rather
than presented through a work order, and Palermo admitted an emergency call
would not necessarily be documented the same way.
According to Palermo, a work order dated February 7, 2018, documented
a Meadowview room "having a heating and ventilation problem," and indicated
"the room [was] cold and the heat [was] turned all the way up." The order was
marked as "completed" on February 23, 2018, but Palermo admitted that did not
indicate "when the work was done." Palermo did not know the cause of the issue
or how it was fixed, but the issue affected room 158, while Margaret's room was
65A.
Stacy Bates, the director of nursing at Meadowview, had been one of
Margaret's caretakers during the time of the incident. Although she did not
recall the incident beyond "sen[ding Margaret] to the hospital," Bates testified
if there was an "environmental issue," such as a lack of "appropriate
temperature," she expected the staff to either report it to her or to maintenance.
Bates also expected the nurses to tell her "if they withheld medication from a
resident over a several day period," but could not recall if she was notified of
Margaret's lethargy or the withholding of her Klonopin.
A-3009-23 19 Bates did not recall any issues with heat on Margaret's floor in February
of 2018, nor could she recall the heating issue with room 158 . She testified she
permitted the nurses to use "their own personal thermometers to measure their
patient[s'] internal body temperature[s]," and confirmed the "normal body
temperature of a resident at Meadowview" was "[n]inety-six to ninety-nine"
degrees Fahrenheit.
Dr. Alexander Makris, defendant's expert in internal and nursing home
medicine, presented a contrary theory of how Margaret became hypothermic.
Makris opined that Margaret's hypothermia resulted from "thermal
deregulation" caused by "entering into the end stages of her life." Makris
explained as individuals grow older, they lose the ability to shiver, intake less
fluids, and become susceptible to cognitive issues, all which can impact the
body's ability to regulate temperature.
Makris testified that in general, "hypothermia in nursing home
individuals[] is multi-factorial," and depends on "the patient," "the treatment,"
and "the clinical condition." Makris found it significant that Margaret's "overall
condition was declining," which "supported" his opinion that "[Margaret's]
thermodysregulation was multi-factorial."
Makris did not find it "terribly unusual" that Margaret "never became
A-3009-23 20 hypothermic again" after the hospital visit, as incidents of hypothermia "can be
sporadic." He also noted "[t]here [were] numerous temperatures within the
record that show that [Margaret's] temperature was less than ninety-seven or
ninety-eight degrees [Fahrenheit]." Makris did not identify any "severe
environmental factors . . . that could cause [Margaret] to develop hypothermia."
Makris rejected the contention that Margaret suffered an injury after the
hypothermic episode, opining that Margaret's hypothermia did not "result[] in
any permanent neurological sequelae," and once she recovered, "she was back
to her baseline." However, he admitted "because [of] her dementia . . . it would
be difficult to ascertain if she was back to her baseline." Makris also disagreed
that the Meadowview nurses did not meet the standard of care, as Potts contacted
the physician the fourth day Margaret did not receive her Klonopin.
On cross-examination, Makris admitted hypothermia is "not a very
common thing to happen even to someone who's [eighty-seven] years old with
co-morbidities." Although he opined Margaret had "end-stage dementia prior
to becoming hypothermic," he acknowledged neither Meadowview nor Shore
Medical had any "written records" diagnosing Margaret with "end-stage
dementia," nor did he see in the records anything "advising the Santo family to
start making end-of-life decisions."
A-3009-23 21 Michelle Knudsen, nursing home administrator at Meadowview during the
time of the incident, testified she was responsible for "everything that
happen[ed]" at Meadowview and was "familiar" with the HVAC system at
Meadowview. She explained the "chiller," or the part of the HVAC system that
creates cold air, was shut off entirely during the winter months. She also
testified she had access to software that allowed her to monitor "what the
temperature [was] . . . [i]n the common areas of the building," and notified her
of any "alarms" indicating issues with the HVAC system.
Knudsen was not working the two days prior to the incident nor the day
of the incident and found out what had happened with Margaret the morning
after the incident. After being briefed, Knudsen investigated surveillance
footage that pointed to the windows outside Margaret's room and the HVAC
monitoring program. Her investigation revealed no open windows in Margaret's
room nor any alarms or "abnormal[ities]" with the HVAC system.
On cross-examination, Knudsen acknowledged the HVAC monitoring
system did not monitor the temperature in individual rooms, as "there [were] no
. . . thermometers in each room." Knudsen did not know what was done to fix
the heating issue in room 158, nor did she have independent knowledge of the
temperature in Margaret's room on the date of the incident.
A-3009-23 22 Knudsen testified that employees were not required to document "every
aspect," of patient care, but were required to document "[c]are plans,
interdisciplinary notes, advanced directives, assessments that are done by each
discipline, MDSes, [13] [and] . . . medical [administration] record[s]." She
explained Margaret's care plan was not updated even though her "cognition was
declining" because Meadowview "w[as] still able to meet her needs." She also
acknowledged as of December 2017, "there was a prognosis that [Margaret] was
not terminal" in Margaret's Medicaid documentation.
After Knudsen testified, defendants rested their case. The jury returned a
unanimous verdict the next day, finding defendants violated Margaret's rights as
a nursing home resident pursuant to N.J.S.A. 30:13-5(j) and awarded $450,000
in damages. The judge entered a conforming judgment on March 26, 2024.
After the trial, defendants moved for JNOV pursuant to Rule 4:40-2, or,
in the alternative, a new trial pursuant to Rule 4:49-1. Defendants argued they
were entitled to JNOV because the evidence presented at trial only supported an
inference that Margaret's room was between sixty and seventy degrees
Fahrenheit, which was not cold enough to cause hypothermia. In the alternative,
13 An "MDS," or "minimum data set," is a required document that reports a nursing home resident's status.
A-3009-23 23 defendants argued a new trial was warranted because Damore's lay opinion
testimony was improperly admitted and the verdict was against the weight of the
evidence. Defendants also challenged the award of damages as against the
weight of the evidence because there was no guidance on how to quantify
violations of the Act and the award shocked the conscience.
The judge denied the motion in an order entered May 10, 2024. In an
accompanying memorandum of decision, the judge recounted the facts and
procedural history of the case, applied the governing legal principles, and
concluded there was sufficient evidence to support the verdict and the damage
award. This appeal followed.
On appeal, defendants reprise the arguments rejected by the judge.
Defendants argue the judge erred in denying their motion for JNOV as there was
"insufficient evidence to support a verdict that . . . defendants violated N.J.S.A.
30:13-5(j)." Defendants assert no rational juror could conclude the room was
cold enough to cause hypothermia because Damore could not say the room was
colder than sixty degrees Fahrenheit and no other testimony established the
room was cold enough for Margaret to have suffered hypothermia. In addition,
defendants contend there was insufficient evidence to support a violation of
N.J.S.A. 30:13-5(j) on any other theory of liability, such as defendants' alleged
A-3009-23 24 (1) failure to timely notify Margaret's physician when they withheld her
Klonopin, (2) failure to timely intervene upon discovering Margaret's
condition,14 and (3) use of a personal rather than facility provided thermometer
to measure Margaret's temperature.
Defendants further assert the judge erred in denying their motion for a
new trial as Damore's improper lay opinion testimony prejudiced the outcome,
there was "no evidence from which a jury could reasonably conclude that the
room was cold enough for [Margaret] to become hypothermic," and the damage
award "was against the weight of the evidence" and should have been guided by
"common law tort principles." As to the latter point, defendants state damages
in tort law are designed to provide "compensation for the injury caused to [the]
plaintiff by defendant's breach of duty," and because under the New Jersey
Survivor's Act, N.J.S.A. 2A:15-3, "pain and suffering damages" can only be
granted "if the decedent experienced conscious pain and suffering between the
time of the injury and his or her death," the damages in the instant case must
only compensate Margaret's family for her "conscious pain and suffering and
loss of enjoyment of life." As there was no testimony regarding whether
14 Although the judge refers to this theory of liability as the failure to promptly warm Margaret, it appears the underlying theory of liability refers to Meadowview's alleged delay in contacting emergency medical services. A-3009-23 25 Margaret suffered pain in the two weeks she was placed in hospice care after the
hypothermic episode, defendants posit the jury verdict of $450,000 "was plainly
wrong and shocks the conscience."
II.
Our review is governed by well-established principles. In reviewing a
motion for JNOV pursuant to Rule 4:40-2(b), we have the same task as a trial
court. Sons of Thunder, Inc. v. Borden, Inc., 148 N.J. 396, 415 (1997).
[T]he test is . . . whether the evidence, together with the legitimate inferences therefrom, could sustain a judgment in . . . favor of the party opposing the motion, i.e., if, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom, reasonable minds could differ, the motion must be denied.
[Ibid. (alteration and omissions in original) (quoting Dolson v. Anastasia, 55 N.J. 2, 5 (1969)) (internal quotation marks omitted).]
To ensure we do not overstep our bounds "by usurping the jury's task of
assessing the credibility of the witnesses," a "jury's factual determination will
be disturbed only if we find that the jury could not have reasonably used the
evidence to reach its verdict." Ibid.
Like the trial court, we "are not concerned with 'the worth, nature or extent
A-3009-23 26 (beyond a scintilla) of the evidence, but only with its existence, viewed most
favorably to the party opposing the motion.'" Koseoglu v. Wry, 431 N.J. Super.
140, 155 (App. Div. 2013) (quoting Sons of Thunder, Inc., 148 N.J. at 415).
Thus, "[w]e will not disturb the trial judge's determination if 'the evidence,
together with the legitimate inferences therefrom, could sustain a judgment in
the [non-movant]'s favor.'" Ibid. (second alteration in original) (quoting Sons
of Thunder, Inc., 148 N.J. at 415).
"The standard of review on appeal from decisions on motions for a new
trial is the same as that governing the trial judge—whether there was a
miscarriage of justice under the law." Risko v. Thompson Muller Auto. Grp.,
Inc., 206 N.J. 506, 522 (2011); accord R. 2:10-1 ("The trial court's ruling on
such a motion shall not be reversed unless it clearly appears that there was a
miscarriage of justice under the law."). "[A] 'miscarriage of justice' can arise
when there is a 'manifest lack of inherently credible evidence to support the
finding,' when there has been an 'obvious overlooking or under-valuation of
crucial evidence,' or when the case culminates in 'a clearly unjust result.'" Hayes
v. Delamotte, 231 N.J. 373, 386 (2018) (quoting Risko, 206 N.J. at 521-22).
"On a motion for a new trial, all evidence supporting the verdict must be
accepted as true, and all reasonable inferences must be drawn in favor of
A-3009-23 27 upholding the verdict." Boryszewski v. Burke, 380 N.J. Super. 361, 391 (App.
Div. 2005). As such, "[a] jury verdict is entitled to considerable deference,"
Risko, 206 N.J. at 521, and "should be set aside in favor of new trials only with
great reluctance, and only in cases of clear injustice." Boryszewski, 380 N.J.
Super. at 391. To that end, "a trial court's obligation on a motion for a new trial"
is "to correct clear error or mistake by the jury." Kita v. Borough of Lindenwold,
305 N.J. Super. 43, 49 (App. Div. 1997) (quoting Dolson, 55 N.J. at 6). "The
court is to take into account, not only tangible factors relative to the proofs as
shown by the record, but also appropriate matters of credibility, generally
peculiarly within the jury's domain, and the intangible 'feel of the case' which it
has gained by presiding over the trial." Ibid. (quoting Dolson, 55 N.J. at 6).
When a motion for a new trial is based on weight of the evidence grounds,
"[t]he standard for reversal . . . is high." Klawitter v. City of Trenton, 395 N.J.
Super. 302, 325 (App. Div. 2007). A verdict may only be disturbed if, "upon
examination[,] the verdict is found to be so contrary to the weight of the
evidence as to give rise to the inescapable conclusion that it is the result of
mistake, passion, prejudice or partiality." Ibid. (quoting Aiello v. Myzie, 88
N.J. Super. 187, 194 (App. Div. 1965)). Thus, a jury verdict "should not be
overthrown except upon the basis of a carefully reasoned and factually
A-3009-23 28 supported (and articulated) determination, after canvassing the record and
weighing the evidence, that the continued viability of the judgment would
constitute a manifest denial of justice." Risko, 206 N.J. at 521 (quoting Baxter
v. Fairmont Food Co., 74 N.J. 588, 597-98 (1977)).
When a motion for a new trial is based on the quantum of damages, "[a]
trial court should not disturb the amount of a verdict unless it constitutes a
manifest injustice that shocks the judicial conscience." Carey v. Lovett, 132
N.J. 44, 66 (1993). "An award that shocks the judicial conscience is one that is
'wide of the mark,' 'pervaded by a sense of wrongness,' and 'manifestly unjust to
sustain.'" Cuevas v. Wentworth Grp., 226 N.J. 480, 503 (2016) (internal citation
omitted) (quoting Johnson v. Scaccetti, 192 N.J. 256, 281 (2007), overruled in
part by Cuevas, 226 N.J. 480). However, "[t]he appellate role [in reviewing the
amount of a verdict] is . . . restricted," as "an appellate court should show
appropriate deference to the trial court's 'feel of the case.'" Carey, 132 N.J. at
66 (quoting Baxter, 74 N.J. at 600).
Turning to the cause of action at issue, plaintiff alleged defendants
violated the NHA, specifically N.J.S.A. 30:13-5(j). The NHA was enacted "to
declare 'a bill of rights' for nursing home residents," rights set forth in N.J.S.A.
30:13-5(a) to (n), and "define[s] the 'responsibilities' of nursing homes," as
A-3009-23 29 delineated in N.J.S.A. 30:13-3(a) to (j). Ptaszynski v. Atl. Health Sys., 440 N.J.
Super. 24, 32-33 (App. Div. 2015). Subsection (j) of N.J.S.A. 30:13-5 states:
Every resident of a nursing home shall: . . . . [h]ave 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.
N.J.S.A. 30:13-8(a) provides that "[a]ny person or resident whose rights"
as defined in the NHA "are violated shall have a cause of action against any
person committing such violation." A "[r]esident" is defined as "any individual
receiving extended medical or nursing treatment or care at a nursing home."
N.J.S.A. 30:13-2(e). A plaintiff can "recover actual and punitive damages [15] for
the[] violation." N.J.S.A. 30:13-8(a). If the jury finds the defendant violated
any of the rights under the Act by a preponderance of the evidence, the jury
"must find for [p]laintiff on th[e] issue." 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).
15 Punitive damages were not sought due to a pretrial ruling by the judge which was not challenged. A-3009-23 30 Applying these principles, we are satisfied plaintiff presented sufficient
evidence to support the jury verdict on the primary theory of liability, namely,
that defendants improperly allowed Margaret's room to become cold enough that
she developed hypothermia and declined shortly thereafter. Plaintiff provided
evidence of a standard of care associated with the right enumerated in
N.J.S.A. 30:13-5(j), a breach, an injury, and a causal relationship between the
injury and the breach.
Critically, Starer's and Tache's testimony established Meadowview was
responsible for preventing the room from becoming cold enough to adversely
impact a resident's health. In responding to the emergency call, Damore
described Margaret's room as an "icebox" and considered the room's temperature
significant enough to Margaret's treatment to inform Shore Medical upon
transfer. Contrary to defendants' contention, Starer's and Tache's expert
opinions were not dependent on them knowing whether the temperature in
Margaret's room was below sixty degrees, as both acknowledged their opinions
were not based on knowing the exact room temperature. Additionally, Starer
testified Margaret must have been exposed to cold to develop hypothermia,
which resulted in her decline.
A-3009-23 31 We reject defendants' contention that Damore's testimony could only
support a finding that Margaret's room was between sixty and seventy degrees,
which was insufficient to cause hypothermia. Damore's inability to say with
certainty that the room was below sixty degrees did not mean the room was not
cold enough to cause Margaret's hypothermia. In fact, both plaintiff's and
defendants' experts suggested that individuals in Margaret's condition could be
more susceptible to cold.
As noted by the judge in denying the motion, no expert testified how cold
a room needed to be to cause hypothermia. The standard only concerns itself
with the "existence" of evidence supporting the verdict. Koseoglu, 431 N.J.
Super. at 155 (quoting Sons of Thunder, Inc., 148 N.J. at 415). Because there
was sufficient evidence to support a verdict based on the theory that defendants
improperly exposed Margaret to a cold room, we need not address the other
theories of liability. Est. of Roach v. TRW, Inc., 164 N.J. 598, 614 (2000) ("[I]f
there are numerous theories upon which the jury could have rested its
determination, the verdict of the jury must be upheld if there is
any one possible theory of liability . . . substantiated by the evidence taken as a
whole. . . ." (quoting Sons of Thunder, Inc. v. Borden, Inc., 285 N.J. Super. 27,
A-3009-23 32 77 (App. Div. 1995) (Humphreys, J.A.D., dissenting) (citation and internal
quotation marks omitted), rev'd, 148 N.J. 396 (1997))).
We also reject defendant's assertion the judge erred in allowing Damore
to describe Margaret's room as an "icebox."
Under N.J.R.E. 701,
If a witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences may be admitted if it:
(a) is rationally based on the witness' perception; and
(b) will assist in understanding the witness' testimony or determining a fact in issue.
The first prong of N.J.R.E. 701 requires a witness to "have actual
knowledge, acquired through his or her senses, of the matter to which he or she
testifies." Est. of Nicolas v. Ocean Plaza Condo. Ass'n, 388 N.J. Super. 571,
582 (2006) (quoting State v. LaBrutto, 114 N.J. 187, 197 (1989)); see Biunno,
Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 1 on N.J.R.E. 701
(2026) ("[I]t is merely required that the witness have actual knowledge, acquired
through the use of his [or her] senses, of the matter testified to.").
As to the second prong of N.J.R.E. 701, in State v. Sanchez, 247 N.J. 450
(2021), our Supreme Court explained:
A-3009-23 33 N.J.R.E. 701's second prong requires that lay opinion testimony will assist the jury "in understanding the witness' testimony or determining a fact in issue." N.J.R.E. 701(b). Such testimony must "assist the trier of fact either by helping to explain the witness's testimony or by shedding light on the determination of a disputed factual issue." State v. Singh, 245 N.J. 1, 15 (2021) (quoting State v. McLean, 205 N.J. 438, 458 (2011)). A witness may not offer lay opinion on a matter "as to which the jury is as competent as [the witness] to form a conclusion." McLean, 205 N.J. at 459 (quoting Brindley v. Firemen's Ins. Co., 35 N.J. Super. 1, 8 (App. Div. 1955)).
[Sanchez, 247 N.J. at 469-70 (second alteration in original) (citations reformatted).]
See Gonzales v. Hugelmeyer, 441 N.J. Super. 451, 460-61 (App. Div. 2015)
(extending N.J.R.E. 701 principles restricting certain lay opinion testimony in
criminal cases to civil cases).
"In reviewing a trial court's evidential ruling, an appellate court is limited
to examining the decision for abuse of discretion." Hisenaj v. Kuehner, 194 N.J.
6, 12 (2008). 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 v. Essex Cnty. Prosecutor, 171 N.J. 561, 571
(2002) (quoting Achacoso-Sanchez v. INS, 779 F.2d 1260, 1265 (7th Cir.
1985)).
A-3009-23 34 Here, the judge explained her reasoning for permitting Damore's
testimony as follows:
Damore's use of the word icebox to describe [Margaret's] room was first-hand, personally perceived by the witness and reflective of the way the temperature of the room was perceived by this witness. Further, the temperature of [Margaret's] room and whether it contributed to her hypothermia was a fact in issue in this case. [Damore's] first-hand, direct testimony of his immediately perceived feeling of the temperature of [Margaret's] room was admissible to help the jury with their fact findings.
We agree with the judge's ruling and reasoning and discern no abuse of
discretion.16 The judge properly applied N.J.R.E. 701's precepts and correctly
concluded Damore's lay opinion was based on his perception, acquired through
his personal senses, and his testimony would assist the jury in resolving a
disputed issue, namely, the temperature of Margaret's room. As noted by the
judge, "[d]efendants had ample opportunity to cross-examine [Damore] with
regard to his impressions, including his use of the word 'icebox.'" As such, there
was no error.
16 The judge also denied defendants' in limine motion to bar Damore's testimony, a decision with which we also concur.
A-3009-23 35 Nor can the quantum of damages warrant a new trial. The judge gave the
jury the following instruction on damages:
[P]laintiff has the burden of establishing by a preponderance of the credible evidence each item of damages that he claims. . . . [P]laintiff[] must also prove that the damages were the natural and probable consequences of the incident. Damages may not be based on conjecture or speculation. In this case, . . . plaintiff is seeking damages for violations of the [NHA]. In the event that you find in plaintiff's favor as to a violation of the [NHA], you may award damages that would fairly and reasonably compensate plaintiff . . . for plaintiff's damages resulting from the violation of [Margaret's] nursing home rights. [17]
Significantly, as the judge noted, defendants did not request a specific
damage charge despite repeated opportunities to do so. Further, defendants
consented to the charge given and made no objection to the omission of specific
damage criteria to guide the jury's decision. Therefore, defendants cannot now
argue error. See N.J. Div. of Youth and Fam. Servs. v. M.C. III, 201 N.J. 328,
341 (2010) ("Trial errors which were induced, encouraged or acquiesced in or
consented to by defense counsel ordinarily are not a basis for reversal on
appeal." (quoting State v. Corsaro, 107 N.J. 339, 345 (1987))).
17 During deliberations, the jury asked the judge for "guidance on defining damages" and inquired whether there was "a criteria used for a monetary award." With counsel's consent, the judge repeated the original instruction given on damages. A-3009-23 36 Nevertheless, the judge detailed the facts she believed justified the
damage award, including the change in Margaret's condition before and after the
hypothermic episode. The judge pointed to Margaret's inability to make sounds
and respond to William in the same way as prior to the incident, as well as the
fact that she required a feeding tube. The testimony clearly established the
hypothermic incident resulted in Margaret's rapid decline, causing her death.
Considering the deference afforded the trial court's "feel" of the case, there are
no facts suggesting the verdict "shocks the judicial conscience," and, as such,
the judge did not err in denying defendant's motion. Carey, 132 N.J. at 66.
To the extent we have not specifically addressed a particular argument,
we deem it without sufficient merit to warrant discussion in a written opinion.
R. 2:11-3(e)(1)(E).
Affirmed.
A-3009-23 37