ESTATE OF ANNETTE JACOBS v. PRINCETON MEDICAL CENTER

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                                                        SUPERIOR COURT OF NEW JERSEY
                                                        APPELLATE DIVISION
                                                        DOCKET NO. A-5092-18

ESTATE OF ANNETTE JACOBS
by Executrix TAMARA E.
JACOBS and TAMARA E.
JACOBS, Individually,

         Plaintiff-Appellant,

v.

PRINCETON MEDICAL CENTER,

         Defendant-Respondent,

and

LENOX HILL HOSPITAL,
THE ELMS OF CRANBURY,
THE PAVILIONS AT
FORRESTAL, MERWICK
CARE & REHABILITATION
CENTER and MARY MANNING
WALSH HOME,

     Defendants.
_____________________________

                   Argued October 7, 2020 – Decided October 18, 2021

                   Before Judges Ostrer, Accurso and Enright.
            On appeal from the Superior Court of New Jersey, Law
            Division, Mercer County, Docket No. L-0914-16.

            Sherri L. Warfel argued the cause for appellant (Stark
            & Stark, PC, attorneys; Sherri L. Warfel, of counsel;
            Alex J. Fajardo, on the brief).

            Beth A. Hardy argued the cause for respondent (Farkas
            & Donohue, LLC, attorneys; Beth A. Hardy, of counsel
            and on the brief).

      The opinion of the court was delivered by

ACCURSO, J.A.D.

      Plaintiff Tamara E. Jacobs, executrix of the estate of her mother, Annette

Jacobs, appeals from a summary judgment dismissing her nursing malpractice

action against defendant Princeton Medical Center. We affirm.

      Plaintiff filed this action in 2016 against defendants the Medical Center,

Lenox Hill Hospital, The Elms of Cranbury, The Pavilions at Forrestal, Merwick

Care and Rehabilitation Center and the Mary Manning Walsh Nursing Horne,

alleging her mother developed pressure sores on her sacrum and heels at the

Medical Center in 2014 that worsened there and at the other defendant facilities,

causing her pain and suffering over the course of the last year of her life and

contributing to her death in April 2015 at age ninety.

      Plaintiff's mother was initially admitted to the Medical Center in May

2014 for unspecified abdominal pain. She was found to be suffering from

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diverticulitis, post-herpetic neuralgia following a bout of shingles in 2005,

coronary artery disease following placement of a stent in 2009, hyperlipidemia

and arthritis. She was released to Pavilions at Forrestal ten days later, but was

readmitted to the Medical Center the following day, again suffering from severe

abdominal pain and a fever. She remained at the Medical Center for another ten

days, during which it is undisputed that she developed a sacral ulcer, measured

to be one centimeter by one-half centimeter. Plaintiff's mother was released to

Elms for ten days and then was readmitted to the Medical Center suffering from

shortness of breath and weakness. She was admitted to the ICU and diagnosed

with diverticulitis, failure to thrive and fungemia, a fungal infection of the blood,

and observed to be suffering from anasarca, severe and widespread edema with

weeping.     She was also hypotensive and required vasopressor support.

Laboratory studies at that time revealed severe protein malnutrition and anemia.

She remained at the Medical Center for almost three weeks, finally being

released in late June 2014.

      Plaintiff's mother would not be readmitted to the Medical Center for

another seven months, but it was not because her condition improved . She was

transported from the Medical Center on June 25, 2014, to Lenox Hill Hospital

in New York where she remained for two-and-a-half months. There she was


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definitively diagnosed with Crohn's disease, and surgeons performed a diverting

colostomy.    Her condition steadily deteriorated and she became more

debilitated. In September 2014, she was released to Mary Manning Walsh,

where she remained until late October, when she was re-admitted to Lenox Hill

for a ten-day stay. Plaintiff's mother returned home at that point, where she

remained for nearly three months.

      In early February 2015, after seven months at three other facilities and her

home, plaintiff's mother returned to the Medical Center for evaluation and

treatment of a pressure sore on her right heel. The pressure sore on her sacrum

acquired at the Medical Center the year before was then measured to be seven

centimeters by four centimeters with undermining of three-and-one-half

centimeters. Plaintiff's mother remained at the Medical Center for ten days,

when she was released to Merwick. She stayed at Merwick only two days before

being re-admitted to the Medical Center due to an acute change in her mental

status.

      By late February, plaintiff's mother's mental condition was improved and

she was discharged to her home. She was re-admitted to the Medical Center in

mid-March, however, for hypervolemic shock and diagnosed with renal failure

with lactic acidosis and a small bowel obstruction. She was transferred to Lenox


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Hill five days later for treatment of the bowel obstruction and remained there

until her death on April 11, 2015.

      Although the case began against six defendants, that number was quickly

whittled down. Pavilions at Forrestal and Merwick were dismissed in January

2017 for plaintiff's failure to file affidavits of merit.     Plaintiff voluntarily

dismissed her claims against Lenox Hill and Mary Manning Walsh for lack of

jurisdiction and proceeded against those defendants in New York. Thus, by the

time plaintiff served her expert reports in 2018, the only defendants in the case

were the Medical Center and Elms.

      Plaintiff's nursing expert, Barbara Darlington, R.N., opined that nurses at

the Medical Center and at Elms deviated from accepted standards of nursing

care by failing to plan and implement standard interventions for the prevention

and treatment of pressure sores, including failure to plan and implement: routine

turning and positioning of plaintiff's mother every two hours while she was in

bed; strategies for prevention of shear and friction injuries; strategies to monitor

her nutritional intake, such as calorie counts and daily weights; and strategies to

prevent moisture related dermatitis such as checking and changing her every two

hours when she became incontinent.           Nurse Darlington's opinion allowed

plaintiff to establish two of the three elements of her prima facie case of


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negligence, the applicable standard of care and deviation from that standard.

See Nicholas v. Mynster,  213 N.J. 463, 478 (2013) (instructing that a prima facie

case of medical negligence requires expert testimony establishing the standard

of care, deviation from that standard, and that the deviation proximately caused

the injury).

      Because Nurse Darlington is not a doctor, however, she could not offer an

opinion on proximate cause. See State v. One Marlin Rifle,  319 N.J. Super. 359,

369-70 (App. Div. 1999) (finding trial court erred in accepting nurse's opinion

testimony regarding identity and cause of condition, constituting medical

diagnosis prohibited by  N.J.S.A. 45:11-23(b), statute regulating practice of

nursing); see also Ryan v. Renny,  203 N.J. 37, 50 (2010) (noting determination

of whether expert is qualified to provide opinion under N.J.R.E. 702 can be

guided by statute). Plaintiff accordingly presented the testimony of Adam H.

Karp, M.D., a board certified internist and geriatrician for that purpose.

Although Dr. Karp reviewed all of plaintiff's mother's medical records over the

last year of her life, he was asked to opine only on the injuries caused or

exacerbated by the Medical Center and Elms, the only defendants remaining in

the case.




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      In the two reports he offered here, Dr. Karp opined that plaintiff's mother

developed the pressure ulcers on her sacrum and heels at the Medical Center and

that her sacral wound worsened at Elms. He opined the "ulcers were non-healing

and remained with her until her death[,] which was in part caused by the

development and infection of these ulcers." He also opined that at both the

Medical Center and at Elms, plaintiff's mother's "skin breakdown was poorly

monitored, allowed to worsen and progress until causing significant infection

with undermining, and required extensive treatment for a lengthy period of

time," which "caused her pain, suffering and contributed to her death."

      At his deposition, however, Dr. Karp testified he was never provided a

copy of Nurse Darlington's reports in this case nor her deposition testimony and

was not aware of what she claimed were the deviations from the standard of

care. He could not, therefore, causally link any specific deviation from the

standard of care to any injury the decedent suffered. He testified that pressure

ulcers always result from poor care, and that the same is true for an ulcer that

worsens, although he admitted that some will fail to heal even with appropriate

nursing care.

      Dr. Karp was also forced to admit at deposition that plaintiff's mother

acquired her heel ulcers at Lenox Hill and Mary Manning Walsh and not at the


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Medical Center. He also testified that not all pressure ulcers cause pain. And

although Dr. Karp testified at deposition that "turning the patient" and "cleaning

the wound and taking care of it is very uncomfortable for patients ," they "don't

like it," and that he has "seen that in many patients," he found no complaints of

pain relating to the sacral ulcer in the decedent's chart and no indication that

plaintiff's mother ever required medication for pain related to her sacral ulcer.

Asked specifically whether he could cite to anything suggesting plaintiff's

mother "in particular was uncomfortable or didn't like it or felt any pain," Dr.

Karp answered, "No."

      Dr. Karp also testified at deposition that when plaintiff's mother was

admitted to the Medical Center in February 2015 for treatment of possible

infection of the ulcer on her right heel, a vascular surgeon debrided the wound,

treated her for a soft tissue infection with IV antibiotics, and that a bone biopsy

was negative for osteomyelitis. He confirmed the Medical Center bore no

responsibility for the development or worsening of the decedent's heel ulcers,

and that her chart noted there was no sign, at that time, that the sacral ulcer was

infected. Dr. Karp also testified there was no sign of infection of the sacral ulcer

during plaintiff's mother's last admission to the Medical Center the following

month when she was in the ICU for renal failure.


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      Dr. Karp testified that on plaintiff's mother's final admission to Lenox Hill

where she died, a vascular surgery consult revealed that both her heel and sacral

ulcers had "100 percent granulation tissue" and appeared to be healing. He

confirmed there was "no evidence the ulcers were infected," that plaintiff's

mother had multiple abdominal infections, including peritonitis, attributable to

her underlying gastrointestinal condition, and that she died from complications

of her Crohn's disease. Although admitting there was no evidence in the record

that plaintiff's mother's sacral ulcer contributed to her death, Dr. Karp

maintained "she would have been in a better medical state throughout this whole

period had she not had a [pressure] ulcer."

      After those depositions, plaintiff settled her case against Elms, and the

Medical Center moved for summary judgment. The Medical Center asserted Dr.

Karp had offered only a net opinion without factual support that nursing care at

the Medical Center caused plaintiff's mother pain and suffering and contributed

to her death, and thus that plaintiff could not establish proximate cause, scuttling

her prima facie case against the Medical Center.

      When counsel for the Medical Center pressed those points at argument on

the motion, plaintiff's counsel asked that before granting summary judgment




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                                         9
dismissing the complaint that the court hold a Kemp1 hearing pursuant to

N.J.R.E. 104 to permit Dr. Karp to clarify his opinions. Counsel for the Medical

Center objected, arguing a Kemp hearing was not appropriate as the issue was

not Dr. Karp's qualifications or methodology under N.J.R.E. 702 but the lack of

factual support for his opinion under N.J.R.E. 703. After permitting the parties

to brief the issue, Judge Walcott-Henderson determined "out of an abundance of

caution" to permit plaintiff to present her expert in a Rule 104 hearing.

      At that hearing, Dr. Karp reiterated the testimony he gave at his deposition

that in his opinion, all pressure ulcers are due to "poor care." But because he

could not offer an opinion on the standard of nursing care and had not read Nurse

Darlington's reports or her deposition transcript, he could not "causally relate

any specific deviation from the standard of care to any damage in this case."

The doctor testified, however, that there was no evidence in the chart that

plaintiff's mother was turned or changed every two hours, "which would be the

standard of care." Dr. Karp explained that

            [a]s to nursing care, I'm not a nurse. I'm not the one
            who supervises nurses and I've never been to nursing
            school. I don't know how a nurse is supposed to treat

1
  Kemp ex rel. Wright v. State,  174 N.J. 412, 427 (2002) (holding a Rule 104
hearing "allows the court to assess whether the expert's opinion is based on
scientifically sound reasoning or unsubstantiated personal beliefs couched in
scientific terminology").
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                                       10
            this type of patient but I know that the patient
            developed an ulcer, I see that the patient was not turned
            every two hours so to me that makes, that's causality.

      When plaintiff's counsel referred the doctor to his report noting evidence

that plaintiff's mother was turned and repositioned and changed every two hours,

Dr. Karp testified there were entries in the chart that she was turned every two

hours, "but it didn't say that all the time." The doctor also admitted on cross-

examination that plaintiff's mother was not completely bed-bound during her

first admissions to the Medical Center in May 2014, that she was out of bed with

assistance and receiving physical therapy, and that her chart noted "she could

turn herself with encouragement."

      Dr. Karp also admitted he had been mistaken to conclude in his report that

plaintiff's mother developed heel ulcers at the Medical Center, and thus admitted

that any pain attributable to her heel ulcers was not attributable to the Medical

Center. Although Dr. Karp testified at deposition that he saw nothing in the

decedent's chart to indicate she had ever complained about pain in connection

with her sacral ulcer, at the Rule 104 hearing he testified "she definitely had

pain" and noted an entry from her May 2014 chart at the Medical Center that she

complained of buttock pain, notwithstanding she had no skin breakdown at that

time. On cross-examination, however, he was forced to admit that every time


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                                      11
plaintiff's mother complained about pain in her buttocks in the chart, she was

complaining about hemorrhoidal pain and requesting suppositories to relieve

that pain. Dr. Karp admitted he could recall "no documented complaint of any

pain related to a sacral ulcer."

      As to any contribution of the sacral ulcer to plaintiff's mother's death in

May 2015, Dr. Karp testified "she basically died of overwhelming sepsis and

the notes say they weren't sure what type of infection it was," whether a

gastrointestinal infection, a stomach infection "or cluster of difficile infection

which is one of the superbug type infections that unfortunately occurs when you

give patients antibiotics for long periods of time," or whether there was "a bone

infection either in the sacral ulcer we're talking about" or a healed ulcer that

doctors tried unsuccessfully to isolate bacteria from, leaving "a possibility of an

osteomyelitis." He testified "[i]f you have an overwhelming infection, that can

cause death and that can certainly come from a [pressure] ulcer."

      On cross-examination, however, Dr. Karp acknowledged there was no

sign of any infection in the sacral ulcer in plaintiff's mother's admissions to the

Medical Center in February and March 2015, that the sacral ulcer "had

essentially stayed the same" at that time, and that a vascular surgery consult at

Lenox Hill before her death in mid-April 2015 revealed "100 percent granulation


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tissue" in both the heel and sacral ulcers with the surgeon opining that both were

healing. Dr. Karp conceded there was no diagnosis of infection in the sacral or

heel ulcers at Lenox Hill, no evidence any of the ulcers was infected , and that

plaintiff's mother died on April 11, 2015 from complications of her Crohn's

disease, "completely unrelated to the sacral ulcer . . . [a]ccording to the treating

doctors." Dr. Karp testified he could "absolutely" not say "to a reasonable

degree of medical probability that the sacral ulcer caused [plaintiff's mother's]

death."

      After hearing that testimony, Judge Walcott-Henderson granted summary

judgment to the Medical Center. The judge began her oral opinion by reviewing

the standard for deciding a motion for summary judgment and the requirements

of a plaintiff's prima facie case of negligence in a nursing malpractice action.

Acknowledging the Medical Center conceded for purposes of the motion that

plaintiff presented expert testimony through Nurse Darlington establishing both

the standard of nursing care and a deviation from that standard, the judge

focused on whether Dr. Karp's testimony was sufficient to establish the

deviation proximately caused plaintiff's mother's pain and suffering or death.

      The judge concluded Dr. Karp's opinion amounted to an inadmissible net

opinion lacking factual support in the record and could not "form the basis for


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an essential element of plaintiff's case." The judge found Dr. Karp's opinion

"could not have been based upon Nurse Darlington's . . . analysis as he did not

have the benefit of her reports prior to rendering his own opinions," and his

testimony at the Rule 104 hearing did not sufficiently establish any causal link

between any "deviation from any applicable standard of care to [plaintiff's

mother's] pain or even her passing."

      Specifically, the judge found

            Dr. Karp admitted that the heel ulcer did not develop at
            Princeton. He admitted that not all ulcers are painful.
            He admitted that [plaintiff's mother] did not complain
            of pain related to the sacral ulcer, that there was no
            documentation of pain medication administered in the
            charts related to the sacral ulcer, that there was no
            complaint of pain in the buttocks area from the sacral
            ulcer. When [plaintiff's mother] was last admitted to
            Princeton, there was no sign of infection in any of the
            ulcers, that there was no diagnosis of any infection in
            any of the ulcers, that no treating doctor recommended
            any treatment for any infection in any of the ulcers, that
            he had no idea what [Nurse Darlington] alleged to be a
            deviation from the standard of care, that he had no
            opinion on what alleged poor care consisted of or was
            given, and he could not say to a reasonable degree of
            medical certainty that the sacral ulcer contributed to
            [plaintiff's mother's] death.

Based on the doctor's testimony, Judge Walcott-Henderson found he offered

nothing more than a net opinion insufficient to establish that any of the



                                                                         A-5092-18
                                       14
deviations from the standard of care identified by Nurse Darlington proximately

caused plaintiff's mother any pain or suffering or contributed to her death.

      Plaintiff moved for reconsideration, arguing the judge inappropriately

weighed the evidence and assumed the role of the jury in evaluating Dr. Karp's

credibility at the N.J.R.E. 104 hearing instead of simply considering whether his

testimony on direct examination, viewed in the light most favorable to plaintiff,

was sufficient to establish the causation element of her prima facie case.

Plaintiff also argued, based on an unpublished opinion of this court, that her

nursing expert could render an opinion that the nurses' deviation from the

standard of care caused the decedent's pressure sores.

      The judge denied the reconsideration motion. She explained, again, that

there was no issue as to Dr. Karp's qualifications to offer an opinion on

proximate cause, and that she barred his testimony only because he failed to

"link any alleged deviation from the standard of care to the decedent's death or

pain and suffering." Summary judgment was thus appropriate because plaintiff

could not without that testimony establish the proximate cause element of her

prima facie case.

      The judge rejected the argument that she assumed the role of the jury in

weighing the evidence, noting the court on summary judgment is required to


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                                      15
decide "whether the evidence presents a sufficient disagreement to require

submission to a jury or whether it is so one-sided that one party must prevail as

a matter of law." Liberty Surplus Ins. Corp., Inc. v. Nowell Amoroso, P.A.,  189 N.J. 436, 445-46 (2007) (quoting Brill v. Guardian Life Ins. Co. of Am.,  142 N.J. 520, 536 (1995)). The judge again explained that the problem with Dr.

Karp's opinion that the decedent's sacral ulcer caused her pain and suffering and

contributed to her death is that it was based on his general perception that

pressure ulcers and their treatment are painful and could contribute to a patient's

death and not on specific facts in this record that the decedent's sacral ulcer

caused her pain or contributed to her demise. As the judge explained, Dr. Karp

conceded key facts and thus "failed to connect the dots, effectively rendering a

net opinion on the critical issue of causation."

      The judge rejected plaintiff's belated attempt to offer her nursing expert

on the issue of proximate cause, noting plaintiff conceded on the motion for

summary judgment that she was not relying on her nurse expert to establish the

element of proximate cause and was thus barred from attempting to do so on

reconsideration. The judge also rejected plaintiff's reliance on an unpublished

case of this court holding  N.J.S.A. 45:11-23(b) does not preclude a nurse from




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offering an opinion on causation in light of our opinion in One Marlin Rifle

holding to the contrary.2

      Plaintiff appeals, reprising the arguments she made to the trial court both

on summary judgment and on reconsideration. Having reviewed the entire

record, including the testimony of plaintiff's medical expert at deposition and at

the Rule 104 hearing, we conclude none of her arguments is of sufficient merit

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

      As our Supreme Court explained over a decade ago, a trial court

confronted with an evidentiary issue on a summary judgment motion must "[a]s

a practical matter, . . . address the evidence decision first." Estate of Hanges v.

Metro. Prop. & Cas. Ins. Co.,  202 N.J. 369, 384-85 (2010). We review that

decision, here the admissibility of Dr. Karp's opinion, only for abuse of

discretion. Ibid.

      As Judge Walcott-Henderson explained, the admissibility of Dr. Karp's

opinion is governed by N.J.R.E. 703, which "mandates that expert opinion be

grounded in 'facts or data derived from (1) the expert's personal observations, or


2
  We agree the trial court was correct to reject plaintiff's invitation to rely on an
unpublished case plainly at odds with controlling precedent. See R. 1:36-3;
Trinity Cemetery Ass'n v. Twp. of Wall,  170 N.J. 39, 48 (2001) (Verniero, J.,
concurring) (noting an unreported decision "serve[s] no precedential value, and
cannot reliably be considered part of our common law").
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                                        17
(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

relied upon by experts.'" Townsend v. Pierre,  221 N.J. 36, 53 (2015) (quoting

Polzo v. Cnty. of Essex,  196 N.J. 569, 583 (2008)). The corollary of N.J.R.E.

703 "is the net opinion rule, which forbids the admission into evidence of an

expert's conclusions that are not supported by factual evidence or other data. "

State v. Townsend,  186 N.J. 473, 494 (2006).

      Plaintiff conceded on the summary judgment motion and acknowledges in

her brief on appeal that only a nurse may opine on the standard of care in a

nursing malpractice action, Hill Intern., Inc. v. Atl. City Bd. of Educ.,  438 N.J.

Super. 562, 586 (App. Div. 2014), but the making of a medical diagnosis is

beyond the authority a nurse is accorded by the statute defining the practice of

registered nursing,  N.J.S.A. 45:11-23(b) ("Diagnosing in the context of nursing

practice means the identification of and discrimination between physical and

psychosocial signs and symptoms essential to effective execution and

management of the nursing regimen within the scope of practice of the registered

professional nurse.    Such diagnostic privilege is distinct from a medical

diagnosis."); One Marlin Rifle,  319 N.J. Super. at 369-70 (finding trial court

erred in accepting nurse's opinion testimony regarding specific identity and


                                                                           A-5092-18
                                       18
cause of condition "clearly . . . constitut[ing] a medical diagnosis," prohibited

by  N.J.S.A. 45:11-23(b)). See also Ryan,  203 N.J. at 50 (2010) (noting trial

court's discretion in determining whether an expert is qualified to testify as an

expert under N.J.R.E. 702 is appropriately guided by statute). As plaintiff's

counsel explained to the trial court, that was why she presented Nurse

Darlington on the issue of standard of care and deviation and offered Dr. Karp

on the issue of proximate cause.

      Because Dr. Karp was not provided with a copy of Nurse Darlington's

reports or her deposition transcript, however, he did not know what she defined

as the standard of care or how she claimed the nurses at the Medical Center

deviated from that standard and thus could not link any specific deviation to the

decedent's injury or death. Even were we to accept for sake of argument that

Dr. Karp's opinion that pressure ulcers were always caused by poor care

somehow established that link, there remains no factual support in the record for

his opinion that the decedent's sacral ulcer caused her pain or contributed to her

death from complications of Crohn's disease. Without evidence in the record

that the decedent's sacral ulcer caused her pain or contributed in some manner

to her death, Dr. Karp's opinion speculating otherwise was properly stricken as

an inadmissible net opinion. See Stanley Co. of Am. v. Hercules Powder Co.,


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 16 N.J. 295, 305 (1954) (instructing that "[e]xpert opinion is valueless unless it

is rested upon the facts which are admitted or are proved").

      Because "[a] party's burden of proof on an element of a claim may not be

satisfied by an expert opinion that is unsupported by the factual record or by an

expert's speculation that contradicts that record," summary judgment dismissing

the complaint was appropriately entered. Townsend,  221 N.J. at 55.

      Affirmed.




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