JOSEPH GAZZUOLO v. MORRIS BELLIFEMINE, M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4768-07T34768-07T3

JOSEPH GAZZUOLO,

Plaintiff-Appellant,

vs.

MORRIS BELLIFEMINE, M.D.,

Defendant,

and

MARRA DRUG, DARIN G. MARRA, P.PH.,

and JOSEPH MARRA, R.P.,

Defendants-Respondents.

__________________________________

 

Argued: March 18, 2009 - Decided:

Before Judges Cuff, Baxter and King.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1864-06.

Jeffrey Zajac argued the cause for appellant.

Scott M. Russ argued the cause for respondents (Law Office of Patrick J. Hermesmann, attorneys; Mr. Russ, on the brief).

PER CURIAM

Plaintiff became dependent on narcotic pain medications. Defendant pharmacy admits, for purposes of the motion and this appeal, it dispensed extra-prescriptive amounts of habit-forming medication to plaintiff. Plaintiff asserted that defendant's actions deepened his addiction and prolonged his efforts to achieve sobriety. Defendant disputed that its conduct caused plaintiff's addiction or inhibited his detoxification and moved for summary judgment. The motion judge held that plaintiff was required to present expert testimony to support his claim that defendant's failure to abide by accepted standards of care caused or contributed to his addiction or prolonged his rehabilitation. Finding that plaintiff did not submit such expert testimony, the judge granted defendant's motion for summary judgment. We affirm.

Plaintiff Joseph Gazzuolo is a middle-aged man with a long history of chronic neck and back problems. From December 2000 to April 2004, plaintiff treated this condition by exercise and physical therapy. He also received prescriptions for various medications to treat his pain, including opioids, anti-inflammatory drugs, and muscle relaxants.

During this time, Dr. Morris Bellifemine began to treat plaintiff and the number of pills consumed by plaintiff increased as he continued to complain of pain. For example, in April 2001, plaintiff's prescribed combination of hydrocodone/acetaminophen increased from fifteen tablets for seven days to ninety tablets for fourteen days. Plaintiff received other medications with increased dosages to be taken as needed.

Initially, plaintiff followed the prescribed dosages, but over time began to exceed the guidelines. He stated that the painkillers gave him a euphoric feeling. After a motor vehicle accident in August 2001, a further round of medications at increased dosages was prescribed.

From 2002 to 2004, opioids were readily available to plaintiff from defendant Marra Drug. Plaintiff perceived that he had access to an unlimited and consistent supply of painkillers, even when he lacked a prescription. At times, he went to the pharmacy on successive days. When he consumed a prescription in half the allotted time, plaintiff returned to defendant for more medication. Marra Drug never refused to refill a prescription.

Soon, plaintiff was unable to control his use of painkillers. He knew or suspected that seeking extra-prescribed painkillers was against the law. He neglected his familial and employment obligations. His preexisting problems with anxiety and depression became worse. He suffered memory loss and was often unable to concentrate.

Finally, in Spring 2004, he sought help. When a pain management center prescribed ongoing opioid treatment, he sought advice from his former psychotherapist. Based on that advice, he went to Meadowlands Hospital, was diagnosed with Opioid Dependence and underwent detoxification. He remained in the hospital for three days. Even after detoxification, plaintiff consumed fifteen oxycodone pills a day. Gradually, he ceased use of oxycodone; his after-care therapy concentrates on remaining abstinent due to his cravings for opioids.

In January 2006, plaintiff filed a complaint against Marra Drug in which he alleged that it supplied him with opioids in excess of prescribed amounts and without a prescription. He alleged that its persistent dispensation of large quantities and combinations of dangerously addictive medications without proper prescription reporting violated accepted standards of care. Plaintiff alleged that Marra Drug also deviated from accepted standards of care by failing to report his actions to authorities or to contact his physician. Plaintiff alleged these deviations caused an increased risk of the occurrence of opioid dependence and a more difficult detoxification process.

Marra Drug filed a motion in 2007 seeking summary judgment on the issue of liability. The motion was denied. Soon thereafter, Marra Drug filed another motion for summary judgment. In this motion, it conceded liability but argued that plaintiff had not presented the requisite evidence that any deviation from accepted standards of care caused harm to him.

In response to this motion, plaintiff relied on the forensic psychiatric report of Dr. Avram Mack, the doctor's deposition and plaintiff's deposition. Plaintiff testified that during detoxification, he did not sleep and begged for drugs for over seventy hours. He "begged God to take my life." He also testified that just talking about the drugs "makes me crave them a little bit. I remember the euphoric feeling I wanted." In addition, although he has "it under control[,] . . . I can't control what I dream, and if I dream[,] th[en] I wake up craving the medicine." Nevertheless, he remains abstinent.

Dr. Mack reviewed plaintiff's psychiatric and medical history. He noted several conditions, including problems with mood, anxiety and intellectual functioning, that have influenced plaintiff's life. After reviewing plaintiff's report of prescription drug use and the prescription drugs obtained from Marra Drug, Dr. Mack opined that "[i]f, during 2003-2004, [plaintiff] was able to, and did, obtain from Marra's Pharmacy substantial amounts of opioid medication on a basis that was extra-prescriptive, unlimited, and consistently reliable over time, then that availability would have caused an increased risk for [plaintiff's] Opioid Dependence to occur." Dr. Mack explained that easy access and unlimited supply contributes to further tolerance. Nevertheless, Dr. Mack opined that plaintiff developed an opioid addiction regardless of Marra Drug's conduct, although its conduct did cause an increased risk for the development of the addiction.

Plaintiff also argued that the actions of Marra Drug led to his need for detoxification. The need for the process and the physical and psychological toll of the process is a harm to plaintiff for which he may receive damages.

In his deposition, Dr. Mack reiterated that plaintiff developed an opioid dependence regardless of Marra Drug's conduct. He also testified that he could render an opinion on the probability that the extra-prescription opioid medications dispensed by Marra Drug led to the need for detoxification. Dr. Mack also testified that anyone who develops a physiologic dependence on opioids who wishes to cease that dependence and to do so safely must undergo a supervised detoxification process. Therefore, "one way or another if there ever was going to come a day when [plaintiff] was going to stop taking opioid medications, . . . it would have been beneficial for him to have done so in a medically supervised setting." Plaintiff had no other expert on causation or damages.

Judge Curran granted Marra Drug's motion for summary judgment. In her oral opinion, the judge found that there was no expert evidence that the extra-prescriptive drugs obtained from Marra Drug caused any sort of damages to plaintiff. Therefore, she held as a matter of law that Marra Drug was entitled to summary judgment.

On appeal, plaintiff argues that he can establish damages in the form of pain and suffering based on his testimony and that of the physicians who treated him during and following detoxification. Plaintiff also argues that any difficulty apportioning damages caused by Marra Drug renders it responsible for all of the damages sustained by him.

In a negligence case, including a professional negligence case, the plaintiff must establish that the defendant deviated from an accepted standard of care and the deviation was a proximate cause of the harm suffered by the plaintiff. Germann v. Matriss, 55 N.J. 193, 205 (1970). In certain cases, a plaintiff may recover if he establishes that the negligence increased the risk of harm posed by a preexisting condition and the increased risk was a substantial favor in producing the harm. Scafidi v. Seiler, 119 N.J. 93, 108 (1990). The Court explained the rule as follows:

We adhere to our holding in Evers. Evidence demonstrating within a reasonable degree of medical probability that negligent treatment increased the risk of harm posed by a preexistent condition raises a jury question whether the increased risk was a substantial factor in producing the ultimate result. The rationale underlying the use of a two-pronged jury instruction bears elaboration. Because this modified standard of proximate causation is limited to that class of cases in which a defendant's negligence combines with a preexistent condition to cause harm--as distinguished from cases in which the deviation alone is the cause of harm--the jury is first asked to verify, as a matter of reasonable medical probability, that the deviation is within the class, i.e., that it increased the risk of harm from the preexistent condition. Assuming that the jury determines that the deviation increased the risk of harm from the preexistent condition, we use the "substantial factor" test of causation because of the inapplicability of "but for" causation to cases where the harm is produced by concurrent causes. The "substantial factor" standard requires the jury to determine whether the deviation, in the context of the preexistent condition, was sufficiently significant in relation to the eventual harm to satisfy the requirement of proximate cause.

[Id. at 108-109 (internal citations omitted).]

In exchange for this modified causation requirement, the professional defendant is responsible only for the damages attributable to the role the defendant's negligence played in the ultimate outcome. Id. at 112-13. The Court explained:

To the extent that a plaintiff's ultimate harm may have occurred solely by virtue of a preexistent condition, without regard to a tortfeasor's intervening negligence, the defendant's liability for damages should be adjusted to reflect the likelihood of that outcome. That principle is basic in our decisional law.

[Ibid.]

Here, plaintiff became addicted to opioids used as painkillers. He does not contend that Marra Drug caused his addiction, but it increased his risk of addiction, which, in turn, required him to endure a difficult detoxification and rehabilitation process. In support of this position, plaintiff produced the report of Dr. Mack.

On its face, the report appears to minimally satisfy the evidential basis to proceed in accordance with the Scafidi rule. Once subject to an oral examination, the foundation of Dr. Mack's opinion evaporated. While Dr. Mack initially opined that the free availability of addictive prescription drugs increased the risk of addiction, when deposed, he opined that plaintiff was an addict and Marra Drug's negligence did not cause that condition. Dr. Mack also opined that any addict who desired to attain sobriety must undergo detoxification and a rehabilitation process. He could not render an opinion that any negligence by Marra Drug required detoxification or enhanced the need for or the rigors of that process. In short, plaintiff failed to submit the requisite expert evidence to allow resort to the modified causation standard announced in Scafidi and continuously followed. See, e.g., Reynolds v. Gonzalez, 172 N.J. 266, 284-86 (2002) (reaffirming the soundness of the two-part substantial factor test). Judge Curran properly granted summary judgment in favor of Marra Drug. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Plaintiff also argues in this court that he could satisfy not only the modified causation standard but could also allocate his damages through his treating physicians, Drs. Teodoro and Waldron. Plaintiff did not present this argument in opposition to the summary judgment motion, and we will not consider this alternative argument on appeal.

 
Affirmed.

A voluntary dismissal with prejudice was entered on November 2, 2006.

Also named are Darin G. Marra and Joseph Marra, the individual pharmacists. We refer to these defendants collectively as Marra Drug.

Evers v. Dollinger, 95 N.J. 399 (1984).

While the physicians would have been able to testify as fact witnesses about plaintiff's course through detoxification and rehabilitation, these same physicians would likely have been considered expert witnesses on the issue of impact, if any, of the negligence of Marra Drug on the level of plaintiff's addiction, his need for detoxification, and any exceptional difficulty encountered by plaintiff during the detoxification and rehabilitation processes.

(continued)

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A-4768-07T3

June 26, 2009