HOWARD PEPPERMAN v. ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-1177-20

HOWARD PEPPERMAN,
administrator of the
estate of MARILYN
PEPPERMAN, and HOWARD
PEPPERMAN, individually,

          Plaintiffs-Appellants,

v.

ROBERT WOOD JOHNSON
UNIVERSITY HOSPITAL NEW
BRUNSWICK, MARIA
BALO, R.N., CRYSTAL
MOWEN, R.N., LOREDEL
ACOB, R.N., JACK STROH,
M.D., SUBHASHINI GOWDA,
M.D., CHIU-SHAN LEUNG, R.N.,
JOSEPHINE LAZO, R.N.,
DANIEL SHEEHAN, R.N.,
TODD SMITH, R.N., and
BARBARA TINDALL, R.N.,

          Defendants-Respondents,

and

NEW BRUNSWICK
CARDIOLOGY GROUP, P.A.,
     Defendants.
_____________________________

            Argued November 3, 2021 – Decided November 17, 2021

            Before Judges Fisher and Smith.

            On appeal from the Superior Court of New Jersey, Law
            Division, Middlesex County, Docket No. L-6623-18.

            Christina Vassiliou Harvey argued the cause for
            appellants (Lomurro, Munson, Comer, Brown &
            Schottland, LLC, attorneys; Jonathan H. Lomurro, of
            counsel and on the briefs; Alan J. Weinberg, on the
            briefs).

            Raymond J. Fleming argued the cause for respondents
            (Rosenberg Jacobs Heller & Fleming, PC, attorneys;
            Raymond J. Fleming, of counsel and on the brief;
            Christopher Klabonski, on the brief).

PER CURIAM

      Plaintiff asserted in this action that eighty-one-year-old Marilyn

Pepperman fell from an operating table during a medical procedure at Robert

Wood Johnson University Hospital. She died a few months later for unrelated

reasons. After eighteen months of discovery, plaintiff moved for summary

judgment, seeking a shifting of the burden of proof to defendants – the hospital,

as well as the physicians and nurses, involved in the dual-chamber pacemaker

procedure – under the principles outlined in Anderson v. Somberg,  67 N.J. 291


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(1975). Defendants opposed that motion and cross-moved for summary

judgment, arguing, among other things, that plaintiff's lack of a medical expert,

who could opine that the complained-of injuries resulted from the alleged fall

instead of other circumstances, precluded the action's further maintenance. The

judge granted defendants' motion, and plaintiff appeals, arguing:

            I. THE TRIAL COURT ERRED IN GRANTING
            DEFENDANTS' CROSS-MOTION FOR SUMMARY
            JUDGMENT AS THE CROSS-MOTION WAS
            IMPROPER AND WAS NOT RELATED TO THE
            SUBJECT OF PLAINTIFF'S MOTION TO SHIFT
            THE BURDEN OF PROOF PURSUANT TO
            ANDERSON V. SOMBERG.

            II. THE TRIAL COURT ERRED IN RULING THAT
            EXPERT TESTIMONY WAS NEEDED TO LINK
            PLAINTIFF'S INJURIES TO THE FALL AND
            FAILED TO GIVE PLAINTIFF ALL REASONABLE
            INFERENCES FROM THE EVIDENCE ON
            DEFENDANTS' CROSS-MOTION FOR SUMMARY
            JUDGMENT.

            III. THE TRIAL COURT ERRED IN REQUIRING
            PLAINTIFF TO APPORTION DAMAGES CAUSED
            BY PRE-EXISTING INJURIES AND DAMAGES
            CAUSED BY DEFENDANTS' NEGLIGENCE.




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We find insufficient merit in plaintiff's first point to warrant further discussion

in a written opinion. R. 2:11-3(e)(1)(E).1 We reject plaintiff's other arguments

for the reasons that follow.

      The record presented by the parties' competing summary judgment

motions reveals certain things that are either undisputed or were provided by

plaintiff, namely that, on November 26, 2017:

                • Marilyn was found unconscious in her home.

                • Howard "slapped her on the face" in an attempt
                  to revive her;

                • he performed CPR, which brought Marilyn back
                  to consciousness;

                • Marilyn was transported to Robert Wood
                  Johnson Hospital in New Brunswick;

                • while at the hospital, Marilyn again lost
                  consciousness;

                • hospital staff revived Marilyn after performing
                  CRP for about eight minutes; and


 1 Rule 1:6-3(b) requires that a cross-motion must "relat[e] to the subject matter
of the original motion" so that the original movant is not short-changed in the
time to respond to a motion. Plaintiff did not object when filing a response to
the cross-motion – he only objected on the return date – and, more importantly,
he has not shown that his ability to fully respond to the cross-motion was
impaired by the lack of sufficient notice. Even assuming defendants' summary
judgment motion did not relate to the subject matter of plaintiff's Anderson v.
Somberg motion, the argument still exalts form over substance.
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                 • the next day, Marilyn underwent a dual chamber
                   pacemaker procedure that took approximately
                   four hours.

        The remaining relevant facts are disputed. Before the procedure was

concluded, a technician was called in to take chest x-rays while Marilyn was

still unconscious. While sliding an x-ray plate underneath Marilyn, the

technician felt a "shift[] towards the left side of the table," and immediately

asked for assistance from nurses. According to the technician, they conducted a

"controlled descent" of Marilyn's body from the table to the floor at Dr. Gowda's

suggestion.

        Plaintiff asserts that Marilyn fell from the operating table – and wasn't

lowered by a controlled descent – and that the occurrence was a result of

negligence of those present. His claim that Marilyn fell from the table was based

on a hospital chaplain's report, which stated that "the patient had fallen off the

table," and on Dr. Subhashini Gowda's statement to him that "she caught [his]

wife coming down off the table" when describing what occurred during the

procedure. Like the trial judge, in applying the Brill standard,2 we assume the

truth of plaintiff's version that Marilyn fell from the table.




2
    Brill v. Guardian Life Ins. Co. of Am.,  142 N.J. 520, 540 (1995).
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      The record also reveals that x-rays were taken of Marilyn's chest both

before and after the procedure; a CT scan was also taken after the procedure.

The x-rays arguably show that Marilyn did not have any fractured ribs before

the procedure but had "multiple bilateral non-displaced rib fractures" a few days

after the procedure. Plaintiff claims – without any support of a medical expert –

that these fractures resulted from the alleged fall.

      The defense retained a radiology expert – Dr. Adam Hecht – to review the

x-rays. He stated that the rib fractures were not visible on the pre-procedure x-

rays because "it is extremely difficult, if not impossible, to appreciate a non-

displaced rib fracture on a portable ICU chest x-ray" and concluded that these

x-rays were not conclusive about when or how the fractures occurred. Dr. Hecht

also stated that the CT scan after the procedure showed a "common fracture

pattern following CPR in an elderly patient" and that the fractures were likely

the result of the eight minutes of CPR performed the day before the procedure.

He explained that the "force, and the degree of chest compression, is

considerable" when performing CPR, and it is understood in the field that "rib

fractures are a common unintended consequence" of the procedure, especially

in older patients "whose bones are brittle." He added that injuries of this nature

would be inconsistent with the controlled descent described during the


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pacemaker procedure. Dr. Hecht concluded, within a reasonable degree of

medical certainty, that Marilyn's rib fractures "were not caused by the controlled

'fall' in the interventional suite."

      When discovery was complete, plaintiff moved for summary judgment,

seeking to shift the burden of proof to defendants pursuant to Anderson.

Defendants cross-moved, seeking summary judgment on the ground that the

evidence one-sidedly revealed that Marilyn did not fall to the floor as asserted

and that plaintiff did not provide any medical expert opinion that would link her

injuries to the alleged "fall." The judge ruled in defendants' favor and later

denied plaintiff's reconsideration motion.

      As noted above, we assume, as plaintiff argues, that Marilyn fell from the

operating table. That at best means she was entitled to the benefit of a shifting

of the burden to those in the operating room to demonstrate they were not

negligent. Anderson,  67 N.J. at 302. That does not mean plaintiff was entitled

to an assumption that all her later physical complaints about rib fractures, chest

pains, or a facial bruise were caused by the fall. That is, Anderson does not shift

the burden to defendants to show what injuries were or were not either caused

or aggravated by the fall; it only relieves an unconscious patient from proving

the negligence of those around her when some presumptively negligent act


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occurred. Id. at 298. Even if Anderson applied here – a question we need not

decide – plaintiff remained obligated to prove that whatever injuries Marilyn

complained of were caused by the fall and not by some other force.

      This is particularly true when considering the surrounding circumstances.

There is no dispute that within a very short time before the fall, both plaintiff

and hospital staff performed CPR on Marilyn. Dr. Hecht has asserted that for

someone of Marilyn's age the type of rib fractures revealed in the x-rays and CT

scan are common. To the extent there is evidence that Marilyn complained of

chest pains after the fall, plaintiff has provided nothing to link those complaints

to the fall instead of the CPR or the surgery itself. No jury should be permitted

to speculate – without the assistance of expert testimony – that any fractures or

chest pains resulting from one force instead of another. See, e.g., Kelly v. Berlin,

 300 N.J. Super. 256, 268 (App. Div. 1997).

      Plaintiff lastly argues the alleged bruise to Marilyn's face demonstrates an

injury resulting from the fall that is not reasonably connected to any other force.

This is not so. Plaintiff testified at this deposition that when he was called to the




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room where Marilyn laid unconscious, he "slapped her on the face." 3 Because of

that evidence, the jury could not have been allowed to speculate that the bruise

came from the fall instead of the slap. Plaintiff also argues that because the facial

bruise logically arose only from the fall, its existence permits a factual finding

that her other injuries also resulted from the fall. Because we reject its premise,

we find no merit in this argument. Moreover, even if we assumed the premise

that the facial bruise could only have been caused by the fall is correct, it does

not logically follow that this provides a nexus – that need not be supported by

medical testimony – for all Marilyn's other injuries. 4

      In light of the particular factual circumstances presented in this case, we

conclude that the trial judge correctly granted summary judgment dismissing the

complaint.

      Affirmed.



3
 Defendants also refer to evidence that suggested an oxygen mask was placed
on Marilyn by police responding to the home after plaintiff conducted CPR on
Marilyn as another potential cause of the bruise.
4
  If we could interpret the competing evidence as suggesting a facial bruise that
was logically caused by no other force than the fall from the operating table, it
would leave plaintiff with a claim for damages regarding only the facial bruise.
Because, however, there is evidence to suggest at least one other cause for the
bruise, plaintiff cannot pursue even that limited claim without medical testimony
linking it to the fall.
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