S.M. v. TOWNSHIP OF IRVINGTON BOARD OF EDUCATION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2892-16T2
S.M., a minor,
by his Guardian ad Litem,
S.M.,
Plaintiff-Appellant,
v.
TOWNSHIP OF IRVINGTON
BOARD OF EDUCATION,
Defendant-Respondent.
____________________________
Submitted February 6, 2018 – Decided May 4, 2018
Before Judges Hoffman and Gilson.
On appeal from Superior Court of New Jersey,
Law Division, Essex County, Docket No. L-7014-
12.
Martin F. Kronberg, PC, attorneys for
appellant (Martin F. Kronberg, on the brief).
Hunt, Hamlin & Ridley, attorneys for
respondent (Ronald C. Hunt, on the brief).
PER CURIAM
Plaintiff, S.M. (Sean),1 a minor, by his father and guardian
ad litem, appeals from a February 3, 2017 order granting a directed
verdict in favor of defendant Township of Irvington Board of
Education (Board) and dismissing plaintiff's claims. The trial
court struck the testimony of one of plaintiff's experts as a net
opinion. Without that testimony, plaintiff could not establish
causation between the alleged negligence of a school nurse, who
was a Board employee, and the child's injuries. We agree that the
expert provided nothing more than a net opinion and that, as a
result, plaintiff failed to prove that the nurse's alleged
negligence caused or contributed to the child's injuries.
Accordingly, we affirm.
I.
This tragic case arises out of injuries suffered by Sean,
which left him partially paralyzed. On April 15, 2011, Sean, who
at the time was seven years old and in first grade, hit his head
on a gate at his school playground during school hours. He was
examined by the school nurse, who observed no physical signs of
injury and determined that he was able to return to class. The
nurse then checked Sean several times throughout the day and found
no bumps, bruises, or other signs of physical injury. The nurse
1
To protect the privacy interests of the child, we use a fictitious
name.
2 A-2892-16T2
gave Sean a note to take home to his father. The note informed
that Sean had hit his head and recommended that the father should
monitor Sean for certain signs, and if those signs manifested
themselves, Sean should be examined by a physician or taken to an
emergency room. Sean never gave the note to his father. Instead,
the father found the note in Sean's backpack several months later.
Sean attended school for over a week following his head bump.
He did not complain of any pain. Nine days after Sean hit his
head, on Sunday, April 24, 2011, Sean was using an exercise machine
at his home. Thereafter, Sean told his father that his back hurt,
and he began to fall down and had trouble getting up. The next
morning, on April 25, 2011, Sean was unable to stand, and his
father took him to the emergency room at a hospital.
At the hospital, the father reported that Sean had hurt
himself while using an exercise machine.2 Sean was examined by
emergency room personnel on April 25, 2011, who consulted by
telephone with Sean's treating pediatrician, Dr. Francois.
Dr. Francois physically examined Sean the next day on April
26, 2011. By April 27, 2011, Sean's condition had not improved.
Dr. Francois consulted with a neurologist, and the doctors agreed
2
In their briefs, the parties describe the exercise machine as a
rowing machine. The hospital records, however, sometimes refer
to an "exercise bike" and other times refer to it as a "rowing
machine."
3 A-2892-16T2
that Sean should have a magnetic resonance imaging (MRI)
examination of his spine. The MRI exam was conducted the next
morning on April 28, 2011. It revealed an epidural hematoma in a
section of Sean's spinal cord. An operation was immediately
performed. As a result of the damage caused by the epidural
hematoma, Sean is partially paralyzed and needs to use a
wheelchair.
In September 2012, plaintiff filed a complaint alleging that
the Board was negligent and that the negligence contributed to
Sean's injuries. Over the ensuing years, plaintiff amended the
complaint several times to add various healthcare providers and
physicians as defendants. The claims against the healthcare
providers and physicians were all settled or dismissed. Thus,
when the case was tried in December 2016, the Board was the only
remaining defendant.
Plaintiff stipulated that the incident on the school
playground, which occurred on April 15, 2011, was not the cause
of the physical condition that sent Sean to the emergency room on
April 25, 2011. Indeed, the trial judge repeatedly instructed the
jury that the parties stipulated that the event on the schoolyard
had nothing to do with, and did not cause, the epidural hematoma.
Instead, plaintiff contended that (1) the school had a duty to
directly contact Sean's father concerning Sean's head injury; (2)
4 A-2892-16T2
if the school had directly notified Sean's father, the father
would have shared that information with the emergency room
personnel and Sean's pediatrician on April 25, 2011; (3) those
medical personnel then would have immediately either ordered an
MRI or consulted with a neurologist, who would have ordered an
MRI; and (4) Sean would have been operated on April 25, 2011, and
he would have suffered less damage to his spinal cord.
To support those contentions, plaintiff called two expert
witnesses. Dr. Gary Belt, a neurologist, testified about Sean's
spinal injury and his partial paralysis. Dr. Belt then opined
that an earlier consultation with a neurologist would have led the
neurologist to order an MRI prior to April 28, 2011. Finally, Dr.
Belt testified that an earlier surgery on Sean's hematoma would
have allowed Sean to have a better recovery. In that regard, Dr.
Belt opined that Sean would have been able to walk with the
assistance of a device, rather than have to use a wheelchair.
Dr. Wendy Chabot, a pediatrician, testified that if the
emergency room personnel and Sean's treating pediatrician were
informed on April 25, 2011, of Sean's head injury at school, the
standard of care would have required them immediately to order an
MRI of Sean's spine or to consult with a neurologist.
In addition to the testimony from the two expert witnesses,
plaintiff's counsel read excerpts from the depositions of the
5 A-2892-16T2
school nurse, Sean's first grade teacher, and the principal of
Sean's school. Sean and his father also testified.
At the close of plaintiff's case, the Board moved to strike
Dr. Chabot's testimony and for a directed verdict, contending that
no evidence established proximate cause. The trial judge found
that Dr. Chabot's testimony was a net opinion because there was
no factual foundation for her opinion that the healthcare
professionals would have done something different on April 25,
2011, if they were told that Sean hit his head on the school
playground ten days earlier. The trial court then ruled that
without Dr. Chabot's testimony concerning causation, plaintiff had
no proof that the alleged negligence of the school nurse was a
substantial factor in causing or contributing to Sean's injuries.
In that regard, the trial court reasoned: "The argument that the
school's failure to call [the father] is the proximate cause of
the child's paralysis in the [c]ourt's view strains proximate
cause beyond its rational limits." Accordingly, the trial court
granted a directed verdict in favor of the Board and, on February
3, 2017, entered an order memorializing that decision.
II.
Our review of the trial court's decision on a motion for a
directed verdict is guided by the same standard that governs the
trial court. Frugis v. Bracigliano,
177 N.J. 250, 269 (2003). In
6 A-2892-16T2
ruling on a directed verdict, a court is to accept as true all
evidence presented by the non-moving party, along with the
legitimate inferences drawn from those facts, and determine
whether the proofs are sufficient to sustain a judgment in favor
of the moving party. Smith v. Millville Rescue Squad,
225 N.J.
373, 397 (2016).
The determination of whether an expert's testimony is
admissible is, generally, left to the sound discretion of the
trial court. Townsend v. Pierre,
221 N.J. 36, 52 (2015) (citing
State v. Berry,
140 N.J. 280, 293 (1995)). Accordingly, appellate
courts "apply [a] deferential approach to a trial court's decision
to admit expert testimony, reviewing it against an abuse of
discretion standard." Id. at 53 (quoting Pomerantz Paper Corp.
v. New Cmty. Corp.,
207 N.J. 344, 371-72 (2011)).
N.J.R.E. 702 and 703 frame the analysis for determining the
admissibility of expert testimony. N.J.R.E. 702 allows opinion
testimony from experts qualified in their fields. N.J.R.E. 703
addresses the foundation for expert testimony. Expert opinions
must "be grounded in 'facts or data derived from (1) the expert's
personal observations, or (2) evidence 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
7 A-2892-16T2
relied upon by experts.'" Townsend,
221 N.J. at 53 (quoting Polzo
v. Cty. of Essex,
196 N.J. 569, 583 (2008)).
"The net opinion rule is a 'corollary of [N.J.R.E. 703] . . .
which forbids the admission into evidence of an expert's
conclusions that are not supported by factual evidence or other
data.'" Id. at 53-54 (alteration in original) (quoting Polzo,
196 N.J. at 583). Therefore, courts require an expert to "'give the
why and wherefore' that supports the opinion[.]" Id. at 54 (quoting
Borough of Saddle River v. 66 E. Allendale, LLC,
216 N.J. 115, 144
(2013)). Accordingly, for their opinions to be admissible, expert
witnesses must "be able to identify the factual bases for their
conclusions, explain their methodology, and demonstrate that both
the factual bases and the methodology are reliable." Ibid.
(quoting Landrigan v. Celotex Corp.,
127 N.J. 404, 417 (1992)).
In short, the net opinion rule prohibits "speculative testimony."
Harte v. Hand,
433 N.J. Super. 457, 465 (App. Div. 2013) (quoting
Grzanka v. Pfeifer,
301 N.J. Super. 563, 580 (App. Div. 1997)).
On appeal plaintiff argues that (1) Dr. Chabot's testimony
was not a net opinion and should not have been stricken; (2) the
trial court's finding that Dr. Chabot's opinion had no factual
basis because the schoolyard head injury did not cause the epidural
hematoma was an error; and (3) if the school had not failed to
notify Sean's father of his head injury, Sean would have had a
8 A-2892-16T2
significantly better recovery because the surgery would have been
conducted earlier. Although framed as three arguments, plaintiff
essentially makes but one: Dr. Chabot had a basis to offer her
opinion on the standard of medical care and, thus, the issue of
causation should have gone to the jury. We disagree.
To establish a cause of action for negligence, plaintiff must
prove four elements: "(1) a duty of care, (2) a breach of that
duty, (3) proximate cause, and (4) actual damages." Townsend,
221 N.J. at 51 (quoting Polzo,
196 N.J. at 584). Here, causation is
the key issue.
Plaintiff did not claim that any Board personnel committed
medical malpractice. Indeed, plaintiff stipulated that Sean's
head injury on April 15, 2011, was not a cause of the epidural
hematoma. Instead, plaintiff claimed that the school's negligence
was the first step in a four-step causal chain of events.
Specifically, plaintiff contends that (1) the school negligently
failed to communicate directly with Sean's father about Sean
hitting his head on April 15, 2011; (2) that failure caused Sean's
father not to provide that information to the treating medical
personnel on April 25, 2011; (3) that omission caused the medical
personnel not to immediately order an MRI exam or consult with a
neurologist; and (4) those failures led to a delay in the operation
and greater damage to Sean's spinal cord.
9 A-2892-16T2
Dr. Chabot's testimony went to the third step in that causal
chain. Dr. Chabot testified that if the treating medical personnel
had been told of Sean's head injury, the standard of care would
have required them to either immediately order an MRI or consult
with a neurologist on April 25, 2011.
The problem with that testimony is that it lacked any factual
support in the record. Plaintiff did not present testimony from
any of the medical professionals who treated Sean on April 25,
2011, including any testimony from Sean's pediatrician, Dr.
Francois. Moreover, Dr. Chabot did not testify that she had spoken
with any of the treating physicians, nor was there anything in the
medical records reflecting what those medical professionals might
have done if they had been told of Sean's prior head injury. Thus,
Dr. Chabot had no factual basis to testify about what the treating
medical personnel would have done on April 25, 2011.
To try to address that gap, Dr. Chabot testified about what
she believed was the governing medical standard of care. Normally,
a doctor's testimony concerning the applicable medical standard
of care is sufficient to present a question for a jury in a medical
malpractice action. See Davis v. Brickman Landscaping, Ltd.,
219 N.J. 395, 407 (2014) (explaining that in a medical malpractice
case, plaintiff must establish for the jury, through expert
testimony, the applicable standard of care). Here, however,
10 A-2892-16T2
plaintiff was not asserting a medical malpractice claim against
the Board. Instead, plaintiff claimed that the school nurse was
negligent in failing to call Sean's father. Thus, plaintiff needed
to show that there was a causal link between the nurse's inaction
and Sean's injury. Critically, it was stipulated that the head
injury was not a cause of the epidural hematoma in Sean's spinal
cord. Consequently, there were no facts linking the Board's
alleged negligence to Sean's injuries.
Plaintiff wanted to ask the jury to draw an inference about
what the treating medical personnel might have done if they had
been told that Sean hit his head at school ten days earlier.
Inferences are often legitimate and can present a jury question
in the right context. See Reynolds v. Gonzalez,
172 N.J. 266, 284
(2002) (finding a jury question where plaintiff presents "evidence
or reasonable inferences therefrom showing a proximate causal
relation between defendant's negligence" and plaintiff's harm
(citation omitted)). "There are, however, limits to the
permissible inferences that may be extracted from experts'
testimony." Johnson v. Salem Corp.,
97 N.J. 78, 91 (1984).
Indeed, we have explained that an expert must have a factual
foundation to draw a causal link between a defendant's actions or
inactions and a plaintiff's injury. Otherwise, such expert
testimony "is no more than speculation –– speculation surrounded
11 A-2892-16T2
by expertise but, nonetheless, speculation." Pelose v. Green,
222 N.J. Super. 545, 550 (App. Div. 1988); see also State v. Corby,
28 N.J. 106, 113-14 (1958) (explaining that "[a]n inference is a
deduction which may or may not be made from certain proven facts").
Three cases, where we have affirmed the exclusion of expert
testimony, illustrate that an expert must provide a factual
foundation to allow a jury to draw a permissible inference. See
Pelose,
222 N.J. Super. 545; Anderson v. Somberg,
158 N.J. Super.
384 (App. Div. 1978); Parker v. Goldstein,
78 N.J. Super. 472
(App. Div. 1963). In Parker, the plaintiff alleged that his wife
died as a result of the defendant doctor's delay in performing a
Caesarean section. The plaintiff's expert testified that the
defendant deviated from the standard of care by failing to perform
the Caesarean section at the time the wife was admitted to the
hospital or soon thereafter, and that the deviation led to the
wife's death from a pulmonary embolism. We affirmed the dismissal
of the case because the expert had no explanation of how the delay
contributed to the formation of the embolism. Accordingly, we
pointed out that the lack of a factual foundation by the
plaintiff's expert "left an irreparable void in plaintiff's proof.
Acceptable medical opinion of causation supported by expert
explanation was an integral and indispensable part of plaintiff's
case." Parker,
78 N.J. Super. at 484.
12 A-2892-16T2
In Anderson, we affirmed the dismissal of a wrongful death
claim where the plaintiff's expert attributed the decedent's
premature death to the stress of a second operation to remove a
broken surgical instrument. We pointed out, however, that the
proposed expert opinion was "without any proof" and, thus, was
"sheer conjecture." Anderson,
158 N.J. Super. at 399-400.
Finally, in Pelose, we affirmed the dismissal of a malpractice
claim because the plaintiff's expert had no factual basis to link
the alleged inexperience of the defendant doctor to the plaintiff's
injury. The plaintiff's theory was that he was injured by
surgically-induced trauma and that the defendant surgeon was not
qualified to do the surgery. The plaintiff's expert, however,
lacked any factual foundation linking the defendant's inexperience
to the trauma. We affirmed the dismissal of the malpractice claim,
explaining that to allow such testimony effectively would ask the
jury to engage in speculation. Pelose,
222 N.J. Super. at 550-51.
Here, the inference plaintiff sought to draw would have
engendered speculation. As pointed out, there were no facts
concerning what the treating medical personnel would have done if
they were informed of Sean's prior head injury. Those medical
personnel were independent actors and had no relationship to the
Board. In such a situation, it was insufficient to suggest that
those medical personnel may have acted a certain way. Plaintiff
13 A-2892-16T2
needed to prove that they would have acted. In other words, had
the issue been submitted to the jury, the jury would have been
asked to speculate as to what the treating medical personnel might
have done.
Indeed, two facts in this case illustrate this point. One
of the doctors who examined Sean on April 25, 2011, recommended
that an MRI be conducted. That recommendation was not followed
because no MRI was conducted on that day. Thus, the jury would
have been left to speculate that if the doctors were told that
Sean hit his head ten days before, they would have done something
that they had already decided not to do; that is, ordered an MRI
exam.
Second, before settling with the treating physicians,
plaintiff asserted that those physicians committed malpractice by
not ordering an MRI or not consulting with a neurologist sooner.
Thus, plaintiff contended that those independent actors did not
follow the governing medical standard of care when presented with
information that should have caused them to order an MRI.
Consequently, it would have been asking the jury to speculate that
given a different piece of information –– that is, that Sean hit
his head ten days earlier –– the same medical personnel would have
followed the alleged governing medical standard of care.
14 A-2892-16T2
In short, because the head injury on April 15, 2011, had no
direct medical causation to the spinal injuries that Sean suffered,
the jury would have been asked to speculate what the medical
personnel would have done with that information, if they were told
about it on April 25, 2011.
Independently and alternatively, the trial record did not
establish the governing standard of medical care. Dr. Chabot did
not testify in any detail about the governing medical standard of
care. Indeed, she first tried to testify as to what the treating
medical personnel would have done. The trial judge correctly held
that such testimony was inadmissible speculation. Dr. Chabot then
testified that she believed the governing standard of care would
have required the doctors to order an MRI or to consult with a
neurologist. Nowhere in her testimony, however, did Dr. Chabot
establish the basis for such a medical standard of care. In that
regard, there was no reference to any training or experience that
she had in ordering MRIs in such situations or in consulting with
neurologists. Dr. Chabot also did not point to any learned
treatises or peer-reviewed medical literature. Given that
plaintiff's theory was that a competent physician would have
ordered an MRI or consulted with a neurologist, Dr. Chabot needed
to establish a basis for that testimony. Townsend,
221 N.J. at
53-54. Here, no such basis was offered.
15 A-2892-16T2
Affirmed.
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