EMANUEL SKOUNAKIS v. MELISSA SOTILLO, M.D.
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2403-15T2
EMANUEL SKOUNAKIS, Individually
and as Administrator ad
Prosequendum of the Estate
of MICHELLE SKOUNAKIS,
Plaintiffs-Appellants.
v.
MELISSA SOTILLO, M.D., WOMEN'S
HEALTH CARE ASSOCIATES, PA,
DR. G'S FRANCHISING COMPANIES,
LLC,1
Defendants-Respondents.
___________________________________
Argued December 12, 2017 – Decided March 19, 2018
Before Judges Fisher, Sumners and Moynihan.
On appeal from Superior Court of New Jersey,
Law Division, Sussex County, Docket No.
L-0326-12.
Thomas S. Howard argued the cause for
appellants (Gartenberg Howard, LLP,
attorneys; Thomas S. Howard and Steven R.
Vanderlinden, on the brief).
Evelyn C. Farkas argued the cause for
respondent Dr. Melissa Sotillo, M.D. (Farkas
1
Improperly pled as Dr. G's Franchising Company d/b/a Dr. G's
Weight Loss And Wellness.
& Donohue, LLC, attorneys; Christine M. Jones,
on the brief).
Glenn A. Farrell argued the cause for
respondent Women's Health Care Associates, PA
(Calcagno & Associates, LLC, attorneys, join
in the brief of respondent Dr. Melissa
Sotillo, M.D.).
Craig S. Combs argued the cause for respondent
Dr. G's Franchising Companies, LLC (Giblin,
Combs & Schwartz, LLC, attorneys; Erica C.
Avondoglio, on the brief).
PER CURIAM
Following a computer software program titled Weight Loss &
Wellness Program (the program) designed by Dr. G's Franchising
Companies, LLC, (Dr. G's), Dr. Melissa Sotillo, M.D., prescribed
Cytomel to Michelle Skounakis for weight loss management after her
almost six months of weight loss treatment had plateaued.
Michelle2 had previously been prescribed phendimetrazine and other
medications. Within fifteen days of being prescribed Cytomel,
Michelle died from cardiac occlusion. The autopsy attributed her
cause of death to closure of her left main coronary at its ostia
because of a total occlusion with organizing thrombus and
atherosclerotic plaque.
2
We refer to the Skounakises by their first names to avoid any
confusion due to their shared last name. We mean no disrespect
in doing so.
2 A-2403-15T2
Michelle's widower, Emanuel Skounakis, individually and as
administrator ad prosequendum of the estate of Michelle Skounakis,
(collectively plaintiff) filed a medical malpractice and
negligence action under the Wrongful Death Act,
N.J.S.A. 2A:31-1
to -6, against Dr. Sotillo and her practice, Women's Health Care
Associates, PA, (collectively Dr. Sotillo) and Dr. G's as well as
ABC Corporations 1-10, John Does 1-10, and Jane Does 1-10. In
support of his claims, Emanuel retained two liability experts,
Christine Stork, Pharm.D. and Bruce M. Decter, M.D. Dr. Stork
authored a report providing that phendimetrazine decreases the
arterial vessel diameter and increases sheering forces in the
arterial vessel, and directly increases heart rate; and that
Cytomel, in excess amounts can elevate heart rate, and should not
be used for weight control as indicated on its black box warning.
Dr. Decter, an internist and board certified cardiologist,3
authored expert reports maintaining that Dr. Sotillo, as a general
practitioner, not in her board certified specialty of
obstetrics/gynecology (OB/GYN), deviated from the standard of care
by: (1) failing to perform a full history and physical of Michelle;
(2) prescribing the medications in the Dr. G's weight loss plan
despite Michelle not fitting the criteria in the informed consent
3
He is also a Clinical Assistant Professor of Medicine at Hofstra
North Shore-LIJ School of Medicine at Hofstra University.
3 A-2403-15T2
form; and (3) prescribing Cytomel for the use of weight loss in
combination with phendimetrazine. Notably, he opined that the
combination of "phendimetrazine and Cytomel[] [was] the proximate
cause of the rupture of the atherosclerotic plaque leading to the
thrombus formation and the occlusion of the left main coronary
artery which was the direct cause of [Melissa's] death." As to
Dr. G's, Dr. Decter contended its program deviated from the
standard of care by including the combination of phendimetrazine
and Cytomel despite their "well known" combined negative effects.
Following a three-year discovery period, the motion court
granted defendants' motions to bar Dr. Decter's opinions on the
basis that he was not qualified to render opinions as to the
treatment rendered by Dr. Sotillo as a general practitioner; and
to Dr. G's because he was not a computer software expert.
Furthermore, the court barred Dr. Decter's opinions as net
opinions. The court also denied plaintiff's request for an
extension of time to retain another expert in lieu of Dr. Decter's
excluded opinions. Defendants then filed summary judgment motions
to dismiss plaintiff's complaint, which a different court granted
due to the lack of an expert report to support the malpractice and
negligence claims. Because we agree with plaintiff's contention
that Dr. Decter was qualified to render his opinions, that his
reports should not have been barred as net opinions, and that
4 A-2403-15T2
summary judgment should not have been granted, we reverse and
remand for trial.
Starting with the issue of Dr. Decter's qualifications, we
conclude the motion court mistakenly applied its discretion to
find that the doctor was not qualified to offer an expert opinion
regarding the treatment rendered by Dr. Sotillo and the medication
recommendations of Dr. G's program. See Henningsen v. Bloomfield
Motors, Inc.,
32 N.J. 358, 411 (1960) (a trial court's decision
on an expert's qualifications is not overturned on appellate review
absent an abuse of discretion). To inform us in determining
whether Dr. Decter was qualified to render opinions in this matter,
we look to the Affidavit of Merit (AOM) statute,
N.J.S.A. 2A:53A-
27, and the New Jersey Medical Care Access and Responsibility and
Patients First Act (PFA),
N.J.S.A. 2A:53A-37 to -42.
The AOM statute requires a plaintiff in a medical malpractice
or medical negligence action to serve on a defendant, "an affidavit
of an appropriate licensed person that there exists a reasonable
probability that the care, skill or knowledge exercised or
exhibited in the treatment, practice or work that is the subject
of the complaint, fell outside acceptable professional or
occupational standards or treatment practices."
N.J.S.A. 2A:53A-
27. The PFA principally ensures that a "challenging expert" who
provides an expert opinion or executes an AOM is "equivalently-
5 A-2403-15T2
qualified to the defendant physician." Buck v. Henry,
207 N.J.
377, 389 (2011) (quoting Ryan v. Renny,
203 N.J. 37, 52 (2010)).
N.J.S.A. 2A:53A-41, in pertinent part, provides:
In an action alleging medical malpractice, a
person shall not give expert testimony or
execute an affidavit pursuant to the
provisions of [
N.J.S.A. 2A:53A-26 to -29] on
the appropriate standard of practice or care
unless the person is licensed as a physician
or other health care professional in the
United States and meets the following
criteria:
a. If the party against whom or on whose behalf
the testimony is offered is a specialist or
subspecialist recognized by the American Board
of Medical Specialties or the American
Osteopathic Association and the care or
treatment at issue involves that specialty or
subspecialty recognized by the American Board
of Medical Specialties or the American
Osteopathic Association, the person providing
the testimony shall have specialized at the
time of the occurrence that is the basis for
the action in the same specialty or
subspecialty, recognized by the American Board
of Medical Specialties or the American
Osteopathic Association, as the party against
whom or on whose behalf the testimony is
offered, and if the person against whom or on
whose behalf the testimony is being offered
is board certified and the care or treatment
at issue involves that board specialty or
subspecialty recognized by the American Board
of Medical Specialties or the American
Osteopathic Association, the expert witness
shall be:
. . . .
(2) a specialist or subspecialist
recognized by the American Board of
6 A-2403-15T2
Medical Specialties or the American
Osteopathic Association who is board
certified in the same specialty or
subspecialty, recognized by the American
Board of Medical Specialties or the
American Osteopathic Association, and
during the year immediately preceding the
date of the occurrence that is the basis
for the claim or action, shall have
devoted a majority of his professional
time to either:
(a) the active clinical practice of the
same health care profession in which the
defendant is licensed, and, if the
defendant is a specialist or
subspecialist recognized by the American
Board of Medical Specialties or the
American Osteopathic Association, the
active clinical practice of that
specialty or subspecialty recognized by
the American Board of Medical Specialties
or the American Osteopathic Association;
or . . .
. . . .
b. If the party against whom or on whose behalf
the testimony is offered is a general
practitioner, the expert witness, during the
year immediately preceding the date of the
occurrence that is the basis for the claim or
action, shall have devoted a majority of his
professional time to:
(1) active clinical practice as a general
practitioner; or active clinical
practice that encompasses the medical
condition, or that includes performance
of the procedure, that is the basis of
the claim or action; or . . .
[Emphasis added.]
7 A-2403-15T2
Thus, where the defendant physician's treatment is outside his or
her specialty, the standard of care to be applied is that of a
general practitioner. See Buck,
207 N.J. at 391 ("[the defendant]
physician may practice in more than one specialty, and the
treatment involved may fall within that physician's multiple
specialty areas. In that case, an affidavit of merit from a
physician specializing in either area will suffice.").
The parties here agree that the standard of care applied to
Dr. Sotillo's weight loss treatment to Melissa is that of a general
practitioner, not in her Board certified specialty of OB/GYN or
weight loss management, which is not a recognized medical
specialty. Although at their second Ferreira4 conference, a
different court put on the backburner the ultimate issue of Dr.
Decter's qualifications, it was recognized that Dr. Decter "was
offering his viewpoint in the [AOM] as . . . a general practitioner
beyond the scope of his specialty as an internist/cardiologist."
We presently see no basis for the motion court's oral opinion that
Dr. Decter "does not have the ability to make that opinion because
. . . he admits throughout his deposition, he's not qualified[.]"
Our review of the motion record reveals that Dr. Decter was
4
A conference held in the early stages of a malpractice action,
between the trial court and the parties, in accordance with
Ferreira v. Rancocas Orthopedic Assocs.,
178 N.J. 144 (2003), to
address any concerns about the AOM.
8 A-2403-15T2
qualified under
N.J.S.A. 2A:53A-41(b) to render an opinion as to
the standard of the general practice of medicine governing Dr.
Sotillo's treatment, because "the majority of his time in the one
year preceding Michelle['s] . . . treatment with Dr. Sotillo was
devoted to the active clinical practice of medicine" including the
prescription of "medications to patients, which [involved]
assessing the risks and the benefits associated." We understand
that Dr. Decter did not spend the majority of his twenty-one year
professional career in active clinical practice as a general
practitioner, as it was primarily devoted to cardiology. We are
also aware that Dr. Decter has limited experience with prescribing
Cytomel – only for thyroid disease – and that he has never
prescribed the other medications prescribed to Melissa. Yet,
these factors go to the strength or believability of his testimony,
not its admissibility. The same thought applies to defendants'
assertions that Dr. Decter is unqualified because he has no
knowledge of pharmacology, and never treated a patient for weight
loss. Even though the doctor is up front about his reliance upon
Dr. Stork's pharmacological opinions, his opinions are from the
perspective of a general practitioner who does not treat patients
seeking professional guidance to lose weight.
As to Dr. Decter's qualifications regarding Dr. G's program,
the motion court remarked,
9 A-2403-15T2
And certainly as to the software
itself, . . . there is no expert opinion as
to any – from anyone about the software being
grossly defective – or defective whatsoever.
There's no testimony about it, there's nothing
in the record about it, and Dr. Decter cannot
possibly opine about the efficacy of the
software.
We, however, find no reason to conclude Dr. Decter was unqualified
to render an opinion regarding Dr. G's program because he was not
a computer software expert. The thrust of his concern about Dr.
G's program was its endorsement that Melissa take the combination
of medications that he believed led to her death. His opinion
offers no – and need not offer any – insight about the details of
Dr. G's computer software; he only discourses on whether the
medications were appropriate for Melissa's quest to lose weight.
Considering his clinical practice experience, Dr. Decter is
qualified to opine regarding the propriety of the medications
recommended by Dr. G's program.
Turning to the opinions offered by Dr. Decter, we conclude
the motion court mistakenly applied its discretion to exclude his
expert testimony. See Townsend v. Pierre,
221 N.J. 36, 52 (2015)
(a motion court's decision to admit or exclude evidence turns on
whether it abused its discretion). We realize that under N.J.R.E.
703, an expert opinion must "be grounded in 'facts or data derived
from (1) the expert's personal observations, or (2) evidence
10 A-2403-15T2
admitted at the trial, or (3) data relied upon by the expert which
is not necessarily admissible in evidence but which is the type
of data normally relied upon by experts.'" Id. at 53 (quoting
Polzo v Cty. of Essex,
196 N.J. 569, 583 (2008)). From this
evidentiary standard, the net opinion rule has developed, to
"forbid[] the admission into evidence of an expert's conclusions
that are not supported by factual evidence or other data." Polzo,
196 N.J. at 583. That is, an expert must "explain a causal
connection between the act or incident complained of and the injury
or damages allegedly resulting therefrom." Buckelew v. Grossbard,
87 N.J. 512, 524 (1981). Expert testimony that is "based merely
on unfounded speculation and unquantified possibilities" should
be barred. Vuocolo v. Diamond Shamrock Chems. Co.,
240 N.J. Super.
289, 300 (App. Div. 1990). Simply put, experts must "give the
'why and wherefore'" of their opinions, not "mere conclusion[s]."
Koruba v. Am. Honda Motor Co.,
396 N.J. Super. 517, 526 (App. Div.
2007).
Under these parameters, the motion court should not have
barred Dr. Decter's opinions that defendants' deviation from the
appropriate standard of care in having Melissa take Cytomel and
phendimetrazine to lose weight was the cause of her death. Dr.
Decter opined that Dr. Sotillo deviated from the standard of care
by: not conducting a full history and physical of Melissa;
11 A-2403-15T2
prescribing medication to Melissa to lose weight when her body
mass index was not 30 or greater as indicated in the informed
consent; and not being aware Cytomel contained a black box warning
that if used for weight loss in large doses, it could be life
threatening. In relying upon Dr. Stork's opinion about the effects
of prescribing the combination of Cytomel and phendimetrazine on
artery vessels, Dr. Decter concluded that the medications
increased Melissa's heart rate, triggering "the tearing of the
small atheromatous plaque that she had in the left main coronary
artery" and "the formation of a thrombus leading to the complete
occlusion of the left main coronary artery which resulted in her
sudden death." This clearly sets forth Dr. Decter's opinion as
to the "whys" and "wherefore" of how Dr. Sotillo's care caused
Melissa's death. Since Dr. Sotillo's medication prescriptions
were in adherence to Dr. G's program, we likewise conclude it was
not net opinion for Dr. Decter to also assert that Dr. G's
negligence caused Melissa's death.
Because we have determined Dr. Decter should have been
permitted to provide his expert opinion that the negligence of Dr.
Sotillo and Dr. G's proximately caused Melissa's death, it is
unnecessary to address plaintiff's alternative argument that
discovery should be re-opened to allow him to obtain another expert
to render opinions. Lastly, since Dr. Decter should have been
12 A-2403-15T2
permitted to provide his expert opinion, summary judgment should
not have been granted to dismiss plaintiff's complaint.
Reversed and remanded for trial.
13 A-2403-15T2
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