MARTA LUKACS v. HIGHTSTOWN MEDICAL ASSOCIATES

Annotate this Case

NOT FOR PUBLICATION WITHOUT THE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-4196-18T1

MARTA LUKACS and
FRANK P. LUKACS,

Plaintiffs-Appellants,

HIGHTSTOWN MEDICAL
ASSOCIATES, HANK R. LUBIN,
M.D. and VALERIE A. LAYNE, D.N.P.,

Defendants-Respondents.
__________________________________

Submitted November 2, 2020 – Decided January 13, 2021

Before Judges Fasciale and Rothstadt.

On appeal from the Superior Court of New Jersey, Law
Division, Middlesex County, Docket No. L-8095-13.

Frank P. Lukacs, appellant pro se.

Buckley Theroux Kline & Cooley, LLC, attorneys for
respondents Hightstown Medical Associates and Hank
R. Lubin, M.D. (William G. Theroux, of counsel;
Sheila Murugan, on the brief).

PER CURIAM
Plaintiff Frank Lukacs and his late wife, Marta Lukacs1 filed a complaint

for damages arising from what they alleged was the professional negligence of

defendants Hightstown Medical Associates (Hightstown), Dr. Hank R. Lubin,

and D.N.P. Valerie Layne, based upon their failure to properly diagnose and

treat Marta2 with having Bordetella Pertussis (BP), commonly known as

whooping cough. Plaintiff appeals from the trial judge's order granting

defendants' Rule 4:40-1 motion made at the close of plaintiff's case, dismissing

his complaint. The trial judge granted defendants' motion after finding that

plaintiff failed to make a prima facie showing that defendants had deviated from

a professional standard of care that caused Marta to suffer damages arising from

injuries she allegedly sustained due to defendants' negligence.

On appeal, plaintiff challenges the trial judge's rulings regarding his

attempt to admit into evidence forty-two publications he deemed to be "learned

treatises," and about his request to read to the jury from his late wife's deposition

and answers to interrogatories. He also raises a constitutional challenge to the

Patient First Act, N.J.S.A. 2A:53A-37 to -42.

1 She died on July 13, 2018, about nine months before the trial in this matter.
2
We refer to the late Mrs. Lukacs by her first name to avoid any confusion
arising from her and her husband's common last name.
A-4196-18T1
2
We affirm, as plaintiff failed to argue why the trial judge's order

dismissing the complaint was erroneous and because we find no merit to

plaintiff's contentions about the judge's evidentiary rulings, including those

limiting the number of learned treatises that could be admitted, or his challenge

to the Patients First Act.

Our review of a trial judge's decision on a motion for judgment is de novo,

adhering to the same standard as that applied by the trial judge. Lechler v. 303

Sunset Ave. Condo. Ass'n, 452 N.J. Super. 574, 582 (App. Div. 2017) (citing

Frugis v. Bracigliano, 177 N.J. 250, 269 (2003)). In our review, we "accept[]

as true all the evidence which supports the position of the party defending

against the motion and accord[ that party] the benefit of all inferences which can

reasonably and legitimately be deduced therefrom, [and if] reasonable minds

could differ [as to the outcome], the motion must be denied." Verdicchio v.

Ricca, 179 N.J. 1, 30 (2004). In reaching our conclusion we do not "consider

'the worth, nature or extent (beyond a scintilla) of the evidence,' but only review

'its existence, viewed most favorably to the party opposing the motion.'"

A-4196-18T1
3
Lechler, 452 N.J. Super. at 582 (quoting Dolson v. Anastasia, 55 N.J. 2, 5-6

(1969)).

Applying that standard, we summarize the facts developed from the record

as follows. On December 28, 2011, Marta presented to Hightstown with

symptoms that included a nasal drip, scratchy throat, and dry cough. She was

evaluated by Layne, who diagnosed her with having an upper respiratory

infection. Layne directed that she continue taking over-the-counter medications,

as Marta indicated she had been, and provided Marta with a prescription for a

cough suppressant. Marta went home but returned on January 3, 2012, still not

feeling any better.

At her January 3 visit, Marta was evaluated by Lubin, who also diagnosed

her with an upper respiratory infection along with a cough and unspecified fever.

Lubin believed plaintiff's illness could be viral. The doctor ordered bloodwork

and a chest x-ray, the results of which were within normal parameters. The

doctor concluded the infection was viral and did not prescribe any medication.

Marta returned home that day.

On January 9, 2012, Marta was taken by ambulance to the emergency

room at a hospital. There, she tested positive for BP and began treatment. Over

A-4196-18T1
4
the course of the following months, Marta recovered from her whooping cough

but continued to suffer from a number of ailments she claimed had developed

while she was dealing with the illness. Her recovery continued until May 30,

2012, when a doctor noted that Marta was "well-nourished," "well-developed

and in no apparent distress."

Plaintiff and his late wife filed their complaint for negligence on

December 20, 2013, seeking $60,000 in damages for medical expenses and lost

wages stemming from defendants' failure to correctly diagnose and treat Marta.

Defendants filed timely responses and the parties thereafter engaged in

discovery.

During discovery, plaintiff retained three medical experts, Dr. Mark

Levin, Dr. Raven Wentworth, and Dr. Harry Jackson, who all produced medical

expert reports and who were each deposed. In their depositions, the doctors

were presented with various publications and related materials that they verified

were reliable materials regarding the diagnosis and treatment of patients.

The trial was scheduled for April 8, 2019. Before trial, plaintiff filed

several unsuccessful motions to have forty-two documents qualified as learned

treatises so that they could be read to the jury without the need to call an expert

A-4196-18T1
5
witness.3 Thereafter, on February 19, 2019, he filed another motion seeking a

determination that the documents were admissible as learned treatises under

N.J.R.E. 803(c)(18) based on his experts' verification of their reliability at their

depositions.

In denying the February 19 motion, the motion judge noted that it was

clear that plaintiff did not intend to call expert witnesses at trial because of the

high cost of doing so, and instead sought to use his experts' deposition testimony

to establish that the forty-two articles were learned treatises. However, although

the judge had requested the deposition transcripts of each of plaintiff's experts,

plaintiff provided only an excerpt from Levin's deposition, in which the doctor

agreed that each treatise was reliable.

The motion judge concluded that plaintiff's efforts to qualify the articles

as learned treaties were insufficient. He ruled that in order to qualify the

documents, plaintiff would need to have Levin appear at trial so the trial judge

could make a determination at a Rule 104 hearing as to whether the materials

constituted reliable authority and whether plaintiff would be able to read them

to the jury without an expert testifying. Finally, the judge concluded that he

3
As it turned out, plaintiff did not originally intend to call any expert witnesses
at trial. Instead he planned on using their deposition testimony and reading to
the jury from the alleged learned treatises to establish defendants' liability.
A-4196-18T1
6
could not qualify the documents as reliable authority by way of judicial notice

under N.J.R.E 201(b)(3), as also requested by plaintiff, because plaintiff had not

provided the judge with enough information to make that determination,

especially since plaintiff did not provide the forty-two articles.

As contemplated by the motion judge, on April 4, 2019, prior to trial, the

trial judge held a Rule 104 hearing to determine which, if any, of the forty-two

articles, textbooks, webpages, and documents that plaintiff claimed Levin relied

upon in reaching the conclusions to which he was going to testify could be

qualified as "learned treatises." At the hearing, Levin testified that he relied on

all of the forty-two articles in equal but different ways, and that he premised his

stipulation to the articles' being learned treatises upon his application of the

definition of a learned treatise provided to him by plaintiff. 4

4
The exact language of the definition of a "learned treatise" given to Levin is
unclear from the record. Levin testified that he premised his stipulation on the
definition of a learned treatise "in the New Jersey State law," as well as in an
"article by Brown." The Brown "article" presumably refers to an excerpt from
Abbot S. Brown, New Jersey Medical Malpractice Law (2015) titled "Treatises."
The record contains a copy of the "article" with highlighted phrases including:
"stipulate that the treatises were 'authoritative,'" "standard texts ," "a standard
text book," "an expert to recognize text as a standard authority," "the type of
material reasonably relied on by experts in the field," and "regarded by
professionals in the field as trustworthy." Based on the fact that plaintiff's
experts stipulated to the articles being "'authoritative,' 'standard texts' or
'standard textbooks,' 'standard authority,' 'the type of material reasonably relied

A-4196-18T1
7
However, Levin also testified that the first of his two reports did not cite

or refer to any learned treatise. Rather, the only authority expressly cited to,

was a webpage published by the Center for Disease Control (CDC) listing

guidelines for the control of BP outbreaks. As to his second report, Levin

confirmed that it did not include a reference to any of the forty-two proposed

learned treatises. Nevertheless, on direct examination, Levin indicated that he

used at least thirty-nine of the would-be treatises in confirming his opinions he

based on his "general medical knowledge," even though his reports did not make

any reference to them, other than the CDC guidelines.

After considering Levin's testimony, the judge permitted plaintiff to

utilize six of the forty-two documents at trial as learned treatises "based on

[Levin]'s testimony in terms of . . . overlap . . . of different areas . . . that he

identified." The trial judge made clear that experts could not simply identify

documents as learned treatises, but they also had to explain why and how they

relied upon them in formulating their opinions. Notwithstanding the fact that

Levin failed to demonstrate how he relied on the documents in forming his

on by experts in the field,' 'regarded by professionals in the field as trustworthy,'
'reliable authority,' and . . . 'representative of the type of research material relied
upon by experts in the field,'" in their reports and depositions, it is reasonable to
conclude that this was the definition provided by plaintiff.
A-4196-18T1
8
opinion, the trial judge agreed to admit the six treatises based on Levin's

testimony regarding how each treatise related to his opinion with respect to

"deviation from [the] standard of care, review of clinical information, causation

and damages."

The judge did not select all six articles that plaintiff would be permitted

to use. Instead, the judge stated that plaintiff was permitted to use four specific

articles and to select one more from a group of four others, and a last one from

a group of six other documents.

At trial, Levin was the only expert to testify on plaintiff's behalf. 5 Prior

to his testimony, during plaintiff's qualification of Levin as an expert, the trial

judge rejected a request by plaintiff to allow Levin to read to the jury from the

expert reports issued by the two non-testifying experts, Wentworth and Jackson.

5
Before the beginning of the trial, it was established that Wentworth and
Jackson would not be appearing on plaintiff's behalf. Wentworth was not being
called and Jackson was ill. At the end of plaintiff's case, plaintiff rested. The
next day, plaintiff asked the trial judge to allow Jackson to testify. Defendants
objected claiming surprise and noting that plaintiff had rested, and they were
prepared to move for dismissal and, if unsuccessful, to call their expert to testify.
The judge denied plaintiff's request.

A-4196-18T1
9
The judge stated Levin could not "sign I agree with someone else's report" and

"get to use their report," and explained that "[h]e has to testify as to his opinion."

Levin testified that the symptoms Marta presented with upon her

December 28, 2011 visit to Hightstown should have been indicative of whooping

cough—which a blood test or a swab could have been ordered to identify—and

antibiotics should have been prescribed on that date. For that reason, Layne

deviated from the accepted standard of care during Marta's visit to Hightstown

on December 28, 2011. Levin also testified that Marta's clinical presentation

during her January 3, 2012 visit to Hightstown was typical of BP and that

antibiotic therapy should have been initiated on that date. For that reason, Lubin

deviated from the accepted standard of care on January 3, 2012. He also testified

that defendants' alleged negligence in failing to accurately diagnose Marta

resulted in her illness lasting three to four days longer than if antibiotics had

been timely administered upon her visits to Hightstown.

However, when questioned about the prevalence of viral upper respiratory

infections—which was both Layne's and Lubin's ultimate diagnosis of Marta's

symptoms—Levin agreed that millions of patients develop such illnesses in the

United States each year. He also agreed that viral upper respiratory infections

were "one of the most common problems for which patients see primary care

A-4196-18T1
10
physicians" and that "the majority of upper respiratory infections in the fall and

winter are viral in nature." Moreover, based on the literature, it was Levin's

opinion that although there were over a million cases of BP in the United States

in 2011, only twenty thousand were diagnosed.

Reading from the New England Journal of Medicine, Levin testified that

the risk factors of BP "included adolescent age, an absence of fever, and a

prolonged duration of cough." On cross-examination, Levin agreed that, based

on the New England Journal of Medicine, BP accounted for only 0.7% to 5.7%

of episodes involving illnesses with symptoms such as the ones Marta had. He

also agreed that between seventy-five and ninety percent of patients with a

prolonged cough do not have BP.

Levin further testified that upper respiratory infections can cause nasal

congestion, nasal discharge, postnasal drip, scratchy throat, hoarseness, ear

pressure, sinus pain and pressure, fever, and a productive cough. He also agreed

that, while signs of BP can be non-specific to that illness, the symptoms that

commonly accompany viral upper respiratory infections were the same

symptoms Marta complained of upon her visits to Hightstown.

As to his testimony about Lubin being required to administer antibiotics

during Marta's January 3, 2012 visit to Hightstown, Levin conceded that a

A-4196-18T1
11
patient who receives antibiotics unnecessarily can be exposed to preventable and

sometimes serious health risks and that one potential risk is that prescribing

antibiotics could result in a patient developing C-difficile—a potentially life-

threatening condition. Levin acknowledged that Marta had a history of

developing C-difficile following antibiotic use.

Further, Levin acknowledged that the CDC takes the position that

antibiotics should only be prescribed when necessary in order to minimize the

risk of antibiotic resistance and that physicians need to utilize their judgment in

making a diagnosis. He further testified that individuals with BP usually recover

without antibiotics. Levin also stated that antibiotics do not typically alter a

patient's clinical course when given after the catarrhal phase which lasts several

days to one week.6

Levin also acknowledged that when Marta presented to Lubin at

Hightstown, she stated that she had been suffering with her symptoms for two

weeks. While Levin also stated that testing for BP when a patient presented

6
The catarrhal stage refers to the first five to ten days of BP's clinical course,
during which the patient will have mild symptoms "indistinguishable from those
of minor respiratory tract infections." Pertussis (Whooping Cough), Clinical
Features, CDC, https://www.cdc.gov/pertussis/clinical/features.html (last
visited Dec. 15, 2020).

A-4196-18T1
12
with symptoms as Marta did was required under the applicable standard of care,

he conceded that "he [had] seen thousands of patients with a cough that lasted

over five days," and that he personally has tested for BP only six times and

diagnosed three cases of whooping cough in adults.

According to Levin, had Marta been treated for BP upon her visit to

Hightstown, she would not have developed a subsequent infection resulting in

mycoplasma pneumonia. 7 But, on cross-examination, Levin admitted that Marta

had a history of mycoplasma pneumonia, and that not every patient who has BP

will develop this infection. Further, he testified that he had not seen any record

indicating that Marta had been diagnosed with any form of pneumonia among

the medical records pertaining to the time period relevant to plaintiff's claims.

Levin also conceded that Marta's medical records revealed that Lubin

ordered a chest x-ray, which demonstrated that her lungs were clear. He further

agreed that Lubin appropriately ordered a complete blood count, which

ultimately showed that Marta's white blood cell count was within normal limits

7
This type of pneumonia is commonly referred to as "walking pneumonia" or
"atypical pneumonia," and is caused by a specific type of bacteria that causes
inflammation to the lungs but tends to be "milder than pneumonia caused by
other germs." Mycoplasma Pneumonia Infections, CDC,
https://www.cdc.gov/pneumonia/atypical/mycoplasma/index.html#:~:text=My
coplasma%20pneumoniae%20is%20a%20type,pneumonia%20caused%20by%
20other%20germs (last visited Dec. 15, 2020).
A-4196-18T1
13
and, based on this information, agreed that there was no medical evidence of

infection at the time of Lubin's evaluation on January 3, 2012.

Regarding Marta's later hospitalization, Levin testified that her blood

cultures and sputum returned negative results, that the chest x-ray performed

upon admission demonstrated no evidence of pneumonia, and that the CT scan

demonstrated no acute abnormalities. He also agreed that, while she reported

she felt as though she could not catch her breath, she was talking and conversing

normally.

Levin further agreed that there was no documentation in the nurse's

assessment, nor was it reported to her, that Marta had complained of a whooping

sound. However, when she was examined later that morning, a doctor noted

hearing a whooping sound coming from Marta when she inspired prior to

coughing. That observation was the only record of a medical provider

discerning that symptom.

As to damages, Levin testified that Marta suffered injuries as a result of

defendants' alleged negligence because had Layne started antibiotics as of

December 28, 2011, or had Lubin started antibiotics as of January 3, 2012,

Marta's course would have been three to four days shorter. Furthermore, when

he was asked to identify from plaintiff's answers to interrogatories which of

A-4196-18T1
14
Marta's listed injuries were a result of defendants' failure to diagnose and treat

her for BP, Levin stated her injuries included pericardial effusion, hiatal hernia,

gastroesophageal reflux disease, urinary incontinence, and sleep irregularity.

However, Levin could not "draw a straight line to each symptom's symptom,"

but stated that each of the alleged injuries were a consequence of defendants'

failure to provide treatment.

However, on cross-examination, Levin testified that he could not, within

a reasonable degree of medical probability, say that any of the alleged injuries

occurred within the last three to four days Marta was symptomatic despite his

earlier claims that had Layne started antibiotics on December 28, 2011, or Lubin

started antibiotics as of January 3, 2012, Marta's course would have been three

to four days shorter.

Levin was also unable to testify that, within a reasonable degree of

medical probability, any of the alleged injuries could be causally related to

defendants' alleged failure to treat Marta's BP. Similarly, with respect to

testimony as to economic damages, Levin was unable to testify to a reasonable

degree of medical probability that defendants' alleged failure to diagnose and

treat Marta's BP led to plaintiff's claimed damages.

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15
At the end of plaintiff's case, defendants moved for dismissal under Rule

4:40-1.8 After considering the parties' arguments, the trial judge granted the

motion, finding that, based on Levin's testimony, plaintiff failed to establish that

defendants had deviated from the applicable standard of care or that plaintiff's

alleged damages could be connected to defendants' alleged negligence within a

reasonable degree of medical probability. Without that evidence, plaintiff failed

to make a prima facie case for medical malpractice.

The judge found that, although Levin had adequately testified as to the

standard of care applicable to Lubin and Layne, he had not connected the

symptoms he observed in Marta's medical records sufficiently to establish a

deviation from the applicable standard of care. The judge stated Levin was

unable "to point to the presence or absence of certain clinical symptoms that he

felt either Nurse Layne or Dr. Lubin failed to take appropriate action on." The

judge concluded that although Levin suggested that defendants should have

tested Marta for BP upon her two visits to Hightstown, he did not establish that

defendants' diagnosis of upper respiratory infection deviated in any manner from

professional norms.

8
At the point the trial judge considered defendants' motion to dismiss, the
record consisted of only Levin's testimony and Marta's medical records which
plaintiff had submitted into evidence at the close of his case.
A-4196-18T1
16
Also, according to the trial judge, Levin's testimony constituted a net

opinion with respect to the issue of a causal link between plaintiff's claimed

damages and defendants' alleged negligence. She found that even though Levin

had testified that defendants' alleged negligence had extended Marta's symptoms

anywhere from "three to five days," his testimony did not connect her symptoms

or medical issues to a relevant three to five day period "[s]uch that a jury would

be in a position to be able to make a determination relative to damages [from]

anything based in the record." Accordingly, the trial judge granted defendants'

motion for dismissal with prejudice. This appeal followed.

II.

At the outset, we observe that plaintiff has not briefed in his merits brief

any challenge to the trial judge's dismissal of his complaint under Rule 4:40-1,

although he responds in his reply brief to defendants' contention that dismissal

was properly granted. 9 For that reason, we deem the issue to have been waived.

9
We also observe that despite making numerous legal arguments in his sixty-
one-page merits brief, plaintiff mentions only one case in passing. Other than
the one case, there is no legal support in the form of statutes, case law, or court
rules identified or relied upon for any of plaintiff's arguments on appeal. See R.
2:6-2(a)(6); Hayling v. Hayling, 197 N.J. Super. 484, 488-89 (App. Div. 1984)
(noting that under Rule 2:6-2(a)(5)—now 2:6-2(a)(6)—a party should provide
"such parts of the record and such legal authorities as will be of help [to the
court] in arriving at a proper determination.")
A-4196-18T1
17 See R. 2:6-2(a)(6); Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014); N.J. Dep't

of Env't Prot. v. Alloway Twp., 438 N.J. Super. 501, 505 n.2 (App. Div. 2015);

Drinker Biddle & Reath, LLP v. N.J. Dep't of Law & Pub. Safety, 421 N.J. Super.
489, 496 n.5 (App. Div. 2011) (claims not addressed in merits brief deemed

abandoned, and could not properly be raised in a reply brief); see also Pressler

& Verniero, Current N.J. Court Rules, comment 5 on R. 2:6-2 (2020).

Even if he had, we discern no error in the complaint's dismissal

substantially for the reasons articulated by the trial judge, in her oral decision of

April 15, 2019, especially because no medical expert adequately testified to a

deviation from the appropriate standard of care or that such deviation caused

any of Marta's alleged injuries. See Worthy v. Kennedy Health Sys., 446 N.J.

Super. 71, 91 (App. Div. 2016) (stating the elements to be proven by a plaintiff

in a malpractice action that include a "deviation from th[e] standard of care,

and . . . that the deviation proximately caused the injury").

III.

Rather than briefing that dismissal was unwarranted, plaintiff instead

contends that for twelve separate, but at times overlapping, reasons the trial

judge's ruling regarding the admission of a limited number of plaintiff's

proposed learned treatises was improper. Plaintiff insists that had he been

A-4196-18T1
18
allowed to admit all forty-two documents into evidence, he would have been

able to satisfy his burden of proof. We disagree.

We will not overturn a trial judge's evidentiary rulings unless it is clear

that the judge palpably abused his or her discretion. State v. R.Y., 242 N.J. 48,

64-65 (2020) (citing Brenman v. Demello, 191 N.J. 18, 31 (2007)). "[A]n abuse

of discretion 'arises when a decision is made without a rational explanation,

inexplicably departed from established policies, or rested on an impermissible

basis.'" Id. at 65 (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571

(2002)). See Est. of Hanges v. Metro. Prop. & Cas. Ins., 202 N.J. 369, 385

(2010) (applying a de novo review to the greater issue of the trial court's decision

on a motion for judgment only after applying the more deferential abuse of

discretion standard to an evidentiary ruling).

A publication is deemed a learned treatise "if it represents the type of

material reasonably relied on by experts in the field." DaGraca v. Laing, 288 N.J. Super. 292, 300 (App. Div. 1996) (quoting Jacober by Jacober v. St. Peter's

Med. Ctr., 128 N.J. 475, 495 (1992)). The admissibility of learned treatises is

addressed by N.J.R.E. 803(c)(18) as an exception to the rule against the

admission of hearsay. Under the Rule, information from treatises may be

admitted if it is

A-4196-18T1
19
[a] statement contained in a published treatise,
periodical, or pamphlet, on a subject of history,
medicine, or other science or art, if:
(A) the statement is relied on by an expert witness
on direct examination or called to the attention of the
expert on cross-examination; and
(B) the publication is established as a reliable
authority by testimony or by judicial notice.
If admitted, the statement may not be received as
an exhibit but may be read into evidence or, if graphics,
shown to the jury.

[N.J.R.E. 803(c)(18).]

"[T]he purpose of the learned-treatise exception is to allow statements

from the treatise to be admitted as substantive evidence, with the caveat that the

expert be on the stand to explain the studies he or she relies on and testify to the

methodology or assist in its application." State v. Terrell, 452 N.J. Super. 226,

257 (App. Div. 2016). Where there is doubt about a treatise's reliability, a trial

judge should conduct a Rule 104 hearing either before or during trial, to

determine whether the text qualifies as a learned treatise. Jacober, 128 N.J. at
496.

Contrary to the gist of all of plaintiff's contentions in this regard, learned

treatises may not be qualified for admission under the Rule unless relied upon

by an expert at trial during direct or cross-examination. Adamski v. Moss, 271 N.J. Super. 513, 519-20 (App. Div. 1994). They cannot be qualified by an expert

A-4196-18T1
20
who is called at trial to only establish the proposed treatise's qualification. The

expert must be on the stand to "explain the studies he or she relies on and testify

to the methodology or assist in its application." Terrell, 452 N.J. Super. at 257.

Here, then, neither the motion judge nor the trial judge abused their

discretion by not permitting plaintiff to rely upon deposition transcripts to

establish the admissibility of any of his proposed learned treatises. Similarly, it

was not an abuse of the trial judge's discretion to limit plaintiff to six documents

instead of allowing the admission of the forty-two documents he proposed.

Contrary to plaintiff's argument, the judge did not arbitrarily select the

documents. As described earlier, she selected four documents based on Levin's

testimony and allowed plaintiff to select the other two of the six from two

different groups of documents. The judge's limitation on the number of

documents was consistent with the "expect[ation that trial courts will] exercise

discretion to prevent juries from being inundated with learned treatises,"

Jacober, 128 N.J. at 496, and consistent with a court's obligation to limit expert

testimony where its admission is unnecessary or confusing. See Terrell, 452 N.J. Super. at 258-59.

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21
IV.

We next consider plaintiff's argument that the trial judge improperly

barred him or Levin from reading to the jury from his late wife's deposition

transcript or from her answers to interrogatories. Here again we find no merit

to his contentions.

It is beyond cavil that portions of a deposition transcript from a witness

who is unavailable at trial because of death may be read to the jury under Rule

4:16-1(c) "by any party for any purpose." So too under certain conditions can

the unavailable witness's interrogatory answers be allowed. R. 4:17-8; See

Ramos v. Cmty. Coach, 229 N.J. Super. 452, 455-58 (App. Div. 1989).

Here, however, there is nothing in the record to establish that the trial

judge barred plaintiff from using his late wife's deposition, and contrary to his

assertions, the judge allowed Levin to read from Marta's answers to

interrogatories during his testimony. Under these circumstances, plaintiff has

failed to demonstrate how the trial judge abused her discretion in this regard.

In his final point, plaintiff attempts to argue that New Jersey's Patients

First Act is unconstitutional. However, he does not describe the basis for his

argument. Rather, plaintiff attempts to incorporate by reference arguments he

A-4196-18T1
22
made to this court in an earlier motion for leave to appeal that we denied on

March 20, 2017. See Lukacs v. Hightstown Med. Ctr., No. AM-0367-16 (App.

Div. March 20, 2017). He also refers to a motion he allegedly made during trial

about the Act and his need for additional discovery, without any discussion of

any applicable law or legal basis for his contention. Under these circumstances,

we are constrained to conclude plaintiff waived his contention about the Act

because his arguments have not been properly briefed. R. 2:6-2(a)(6); N.J. Dep't

of Env't Prot., 438 N.J. Super. at 505 n.2.

VI.

Finally, to the extent we have not specifically addressed any of plaintiff's

remaining arguments, we conclude they are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

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