LLOYD BUNDYv. BENTLEY SENIOR LIVING AT PENNSAUKEN

NOT FOR PUBLICATION WITHOUT THE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-1639-19T1

LLOYD BUNDY by and
through his Power of
Attorney,
LLOYD BUNDY, JR.,

         Plaintiff-Appellant,

v.

BENTLEY SENIOR LIVING
AT PENNSAUKEN, BENTLEY
ALP, and KDG OPERATING
COMPANY, LLC,

     Defendants-Respondents.
___________________________

                   Argued January 11, 2021 – Decided February 5, 2021

                   Before Judges Sabatino and DeAlmeida.

                   On appeal from the Superior Court of New Jersey,
                   Law Division, Camden County, Docket No. L-0450-
                   16.

                   Brian P. Murphy argued the cause for appellant.
             William J. Mundy argued the cause for respondents
             (Burns White, LLC, attorneys; Frantz J. Duncan,
             William J. Mundy, and Ahsan A. Jafry, on the brief).

PER CURIAM

      This appeal arises out of a malpractice case against an assisted living

facility. The trial court dismissed the lawsuit after ruling that plaintiff's liability

expert's opinion concerning the critical standard of care was inadmissible. For

the reasons that follow, we affirm.

      These are the pertinent facts and circumstances. Plaintiff Lloyd Bundy,

Sr., an eighty-one-year-old man with Alzheimer's, was a resident of defendants’

assisted living facility known as Bentley Senior Living in Pennsauken. At about

11:30 a.m. on March 10, 2015, plaintiff had an unwitnessed fall in his room

when he tripped over his roommate’s walker. Plaintiff, who was injured in the

fall, was taken to a hospital and diagnosed with a hip fracture, resulting in hip

replacement surgery.

      Plaintiff alleges defendants were negligent in allowing his roommate’s

walker to be left on his side of the room, contrary to his care plan to guard

against such tripping hazards or "clutter." He surmises that a technician moved

the walker when she came into the room at an unspecified time that morning to

do cardiac testing on the roommate, and then failed to put the walker back in a


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safe place. At her deposition, the technician did not outright deny she moved

the walker, but rather stated if she had done so it was her practice to move it

back after she was finished testing. Plaintiff himself did not see the technician

or anyone else move the walker.

      To support his liability theory of negligence, plaintiff relied on the expert

opinions of a registered nurse he retained for the litigation. The expert has fifty

years of experience as a nurse and thirty years as a nursing administrator,

although not in an assisted living facility. She issued two expert reports, only

one of which is in our record.       In that supplied report, the expert opines

defendants breached standards of care by failing to inspect plaintiff's room and

allowing a tripping hazard to be present. She contends that failure violates state

regulations, including N.J.A.C. 8:36-7.3, by failing to assure a patient’s room is

clutter free.

      The expert’s report does not specify a standard of care with respect to how

frequently an assisted living facility must inspect a resident's room for tripping

hazards. At the expert's deposition, defense counsel tried to pin her down on a

time frame, but she repeatedly equivocated on the subject. Ultimately, the

expert stated that a visual inspection of the room is "supposed to be" performed




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"every hour."1 However, she did not mention any source for that purported time

standard.

      Defendants moved in limine to bar the nurse's expert testimony as

inadmissible net opinion. They concurrently moved for summary judgment.

      After hearing oral argument, the trial court granted both motions. Plaintiff

then moved for reconsideration, asserting the judge had critically erred in

overlooking plaintiff's expert's deposition testimony attesting to the "once per

hour visual inspection" standard—a point plaintiff's counsel had not brought up

at the oral argument on the motion. The judge denied reconsideration,2 and this

appeal ensued.


1
   At other points in her deposition, the expert alluded to a fifteen-minute
standard, but she appears to have ultimately settled on a one-hour period, and
that is the period advocated by counsel.
2
   Plaintiff argues as a procedural matter that the motion judge should have
reconsidered his original ruling because he "overlooked" portions of the expert's
deposition testimony that had not been pointed out during oral argument. See
Cummings v. Bahr,  295 N.J. Super. 374, 384 (App. Div. 1996) (concerning the
grounds for reconsideration under Rule 4:49-2). We do not hinge our analyses
of the substantive issues on that alleged procedural oversight. It is well
established that appellate courts must review the correctness of trial court
decisions, not simply the reasons cited in opinions by trial judges. See, e.g.,
Hayes v. Delamotte,  231 N.J. 373, 387 (2018) (citing Isko v. Planning Bd. of
Livingston Twp.,  51 N.J. 162, 175 (1968), abrogated on other grounds by Com.
Realty & Res. Corp. v. First Atl. Props. Co.,  122 N.J. 546 (1991)). Having
carefully reviewed the merits of the appeal, we discern no necessity to remand


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      We first address the net opinion issue. The Supreme Court has published

a series of recent cases with guidance on the subject.

      The doctrine barring the admission at trial of net opinions 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." Townsend

v. Pierre,  221 N.J. 36, 53-54 (2015) (alteration in original) (quoting Polzo v.

Cnty. of Essex,  196 N.J. 569, 583 (2008)). The net opinion doctrine requires

experts to "give the why and wherefore" supporting their opinions, "rather than

. . . mere conclusion[s]." Id. at 54 (quoting Borough of Saddle River v. 66 E.

Allendale, LLC,  216 N.J. 115, 144 (2013)).

      Experts 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." Id. at 55 (quoting Landrigan v. Celotex Corp.,  127 N.J. 404, 417 (1992)). An expert's conclusion should be excluded "if it is based

merely on unfounded speculation and unquantified possibilities." Ibid. (quoting

Grzanka v. Pfeifer,  301 N.J. Super. 563, 580 (App. Div. 1997)).




this matter back to the trial court for additional reconsideration, as the
deficiencies of plaintiff's expert's opinion are manifestly apparent.
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      Bearing in mind "the weight that a jury may accord to expert testimony, a

trial court must ensure that an expert is not permitted to express speculative

opinions or personal views that are unfounded in the record." Ibid.; see also

Davis v. Brickman Landscaping, Ltd.,  219 N.J. 395, 401 (2014) ("[T]he standard

of care [the expert] set forth represented only his personal view and was not

founded upon any objective support. His opinion as to the applicable standard

of care thus constituted an inadmissible net opinion."); Pomerantz Paper Corp.

v. New Cmty. Corp.,  207 N.J. 344, 373 (2011) ("[I]f an expert cannot offer

objective support for his or her opinions, but testifies only to a view about a

standard that is 'personal,' it fails because it is a mere net opinion.").

      That said, experts may base their opinions upon unwritten industry

standards without violating the net opinion doctrine. See, e.g., Satec, Inc. v.

Hanover Ins. Grp., Inc.,  450 N.J. Super. 319, 333, 334 n.4 (App. Div.) (noting

that an expert's opinion may be based on unwritten "generally accepted

standards, practices, or customs of the . . . industry") (citing N.J.R.E. 702) ,

certif. denied,  230 N.J. 595 (2017); Davis,  219 N.J. at 413 (quoting Kaplan v.

Skoloff & Wolfe, P.C.,  339 N.J. Super. 97, 103 (App. Div. 2001)) (recognizing

that the expert's conclusions might not have been inadmissible net opinion if he

had referenced an "unwritten custom" of the industry). The critical ingredient


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is that the expert's opinion must be based upon written or unwritten objective

standards recognized in the field. The opinion cannot be merely an expression

of the expert's personal subjective view.

      In the present case, the expert nurse's once-per-hour standard for

inspecting a resident's room is a net opinion that lacks adequate objective

support. That time interval is not specified in any federal or state statutes or

regulations. Nor is it specified in guidelines set forth by the American Nursing

Association. The regulations and state guidelines are more general, expressing

overall policies of providing adequate services to meet the needs of residents.

See, e.g., N.J.A.C. 8:36-5.1.

      Here, plaintiff's expert provided no specifics for why the standard of

inspection frequency was hourly, as opposed to, say, daily or once per shift. The

omission of the hourly standard from her written report is telling.3           Her


3
   We acknowledge that a court may permit an expert to supplement through
deposition testimony the contents of her written expert reports, so long as the
reports contain "the logical predicates and conclusions" for such testimony.
Conrad v. Robbi,  341 N.J. Super. 424, 441 (App. Div. 2001) (quoting Velazquez
ex rel. Velazquez v. Portadin,  321 N.J. Super. 558, 576 (App. Div. 1999), rev'd
on other grounds,  163 N.J. 677 (2000)); see also McCalla v. Harnischfeger
Corp.,  215 N.J. Super. 160, 171 (App. Div. 1987). Here, there is no hint within
the contents of the expert's report about how frequently a facility should inspect
a resident's room for clutter, but instead generalities that are not time specific.



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reluctance at deposition to commit to a time period further bespeaks the absence

of an objective foundation for the opinion.

      We appreciate, as did the trial court, that inspecting a patient's room at

least once per hour may well be a reasonable standard, depending on how large

or intensive the facility is, staffing levels,4 patient care demands, and other

variables. But the expert did not say where the one-hour standard comes from,

other than her own personal subjective experience. She did not identify others

in the field that utilize such a standard, or places where she has worked as an

administrator that have done so. The number seems to have come out of thin

air. The net opinion doctrine is not overcome by such conclusory and unmoored

commentary, even from a person such as this nurse who we appreciate has many

years of experience in the field.


The "logical predicates" for the one-hour standard were not previewed in a
meaningful way.
4
   We recognize the expert's report opines that defendants must have lacked
adequate staffing levels because plaintiff had managed to elope from the facility
on two occasions. However, that likewise is an inadmissible net opinion, as the
expert performed no numerical analysis of the facility's resident population and
staffing levels. In addition, the fact that plaintiff eloped in the past must be
understood in the context that a facility has an obligation to allow residents a
certain degree of autonomy and freedom of movement. See N.J.A.C. 8:36-6.1
(requiring respect for "resident rights"). In any event, the focus of the appeal is
on alleged inadequate inspections, not whether defendants employed sufficient
staff to perform such inspections.
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      For these reasons, we conclude, albeit for reasons slightly different than

those stated by the trial court, that the nurse's personal expression of a one-hour

standard of care is inadmissible net opinion. The court did not misapply its

discretion in excluding such an expert. Hisenaj v. Kuehner,  194 N.J. 6, 12

(2008) (applying an abuse-of-discretion scope of review to a trial court's ruling

on the admissibility of expert opinion in a civil case).

      Having upheld the exclusion of plaintiff's liability expert, we readily agree

that the court had a sound basis to grant summary judgment to defendants on the

issue of malpractice liability. Plaintiff concedes that defendants are a licensed

professional provider subject to statutory limitations on tort actions. They

cannot be found liable for malpractice without appropriate expert opinion to

support an alleged deviation from the appropriate standard of care. See  N.J.S.A.

2A:53A-26 (encompassing within this statutory protection, among other

occupational categories, a "health care facility as defined in [ N.J.S.A. 26:2H-

2]," which includes extended care facilities, skilled nursing homes, nursing

homes, intermediate care facilities, residential health care facilities, and

dementia care homes). There is no argument here that this is a "common

knowledge" case that can go to a jury without proper expert support. Hence,




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defendants are entitled to judgment as a matter of law. Brill v. Guardian Life

Ins. Co. of Am.,  142 N.J. 520 (1995).

      Affirmed.




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