JAMES PARKER v. STEPHEN A. NURKIEWICZ

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0816-05T10816-05T1

JAMES PARKER,

Plaintiff-Appellant,

v.

STEPHEN A. NURKIEWICZ, M.D.,

Defendant-Respondent.

_____________________________________

 

Submitted: June 5, 2006 - Decided June 16, 2006

Before Judges A. A. Rodr guez and Fall.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, L-628-03.

William A. Riback, attorney for appellant.

Crammer, Bishop, Marczyk & O'Brien, attorneys for respondent (Timothy M. Crammer, on the brief).

PER CURIAM

James Parker appeals from the summary judgment dismissing his complaint against Stephen A. Nurkiewicz, M.D. He contends that "summary judgment was inappropriate because on this record it could not be determined that [Parker's expert's] report was a 'net opinion.'" We affirm.

Parker was an employee of Patriot Vinyl Windows. On December 18, 2001, Parker had a minor accident while driving a forklift. On the same date, his employer conducted a drug screen, which was submitted to Nurkiewicz for an opinion. Nurkiewicz submitted a report, which indicated the following:

I have reviewed the specimen tested on 12/18/2001 from James Parker. His ID#(SS) is XXX-XX-XXXX.

An on track 5 test cup result reviewed on 12/18/2001 indicates a positive test for cocaine. There was a valid test control on the cup, seals were intact and your chain of custody indicated that it was Mr. Parker's specimen.

Further information regarding prescription medication that James Parker utilized was reviewed. These prescriptions would not account for a positive cocaine screen on 12/18/2001.

This screening test is considered positive and if further collection and/or monitoring is required by your policy please do not hesitate to contact me and I will be glad to assist.

Nurkiewicz opined that Parker's specimen had tested positive for cocaine.

Parker obtained an opinion from his own expert, Steven Klein, D.O., a Fellow of the American Academy of Disability Evaluation Physicians, who reviewed the report (not the screen). Klein opined that the screen as relied upon by Nurkiewicz is unreliable. His report states:

Dr. Nurkiewcz presented information regarding the petitioner that was neither accurately documented nor confirmed by reasonable testing. Positive results from a screen are never released to any agency or individual unless they can be confirmed by GC/MS testing at a SAMSAH approved laboratory. This is the only accepted procedure that D.O.T. approves. Preliminary results are never released until properly confirmed.

In this particular case, no confirmation laboratory testing was performed. Nevertheless, the results of the screening test were released prematurely. There is no case law in the State of New Jersey covering these procedures except that of the D.O.T.

Since the preliminary urine screening cup test is not 100% accurate, the GC/MS confirmatory test is always performed when the screen is positive. Unfortunately, there are many causes for a test to be positive. Also, the screening tests are all fraught with problems that even when no drug is detected the tests occasionally report a positive result. Therefore, these results are never released until the GC/MS test has either confirmed or negated the screening result.

If screening tests were as accurate as the GC/MS confirmation test, then a confirmation test would not be required.

With a reasonable degree of medical certainty, the review of the records and the reporting out of the results to the employer did not meet the reasonable standard of care required in such cases.

Parker sued Nurkiewicz alleging a deviation from the standard of care owed to Parker, and tortious interference with business relations. Following a period of discovery, Nurkiewicz moved for summary judgment, arguing that he did not owe a duty of care to Parker. Defense counsel did not request that summary judgment be entered excluding Klein's expert report as a "net opinion." Judge Steven P. Perskie concluded that Nurkiewicz owed a duty to Parker "to act reasonably and consistent with applicable standards of care." However, the judge sua sponte found that Klein's report was a "net opinion" and granted Nurkiewicz's motion for summary judgment. The judge articulated the following reasons for this conclusion:

I do not believe that the record before me and in particular the reports by the purported expert constitute a basis to establish to the jury's satisfaction the applicable standard of care, whatever that is, reference being made only to the inconsistency of what the defendant did with Department of Transportation regulations. And I am unable from those reports to extract any rationale under which those regulations would establish a standard of care applicable to [Nurkiewicz] under these circumstances. For those reasons the application for summary judgment will be granted.

We affirm substantially for the reasons expressed by Judge Perskie in his September 9, 2005 oral opinion. We simply add that, judged against the standard set by Stanley Co. of America v. Hercules Powder Co., 16 N.J. 295, 305 (1954), Klein's opinion is lacking a factual and scientific foundation. Thus, it is inadmissible. Creanga v. Jardal, 185 N.J. 345, 360 (2005); Buckelew v. Grossbard, 87 N.J. 512, 524 (1981).

Affirmed.

 

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A-0816-05T1

June 16, 2006