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