LISA HUNT VS. VIRTUA HEALTH, INC.(L-4509-11, CAMDEN COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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 only binding 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-4196-14T1

LISA HUNT, as guardian ad

litem of HAILEY ROSINA HUNT,

a minor, and LISA and RUSSELL

HUNT, as parents and natural

guardians of HAILEY ROSINA HUNT,

and LISA and RUSSELL HUNT,

individually,

Plaintiffs-Appellants,

v.

VIRTUA HEALTH, INC., VIRTUA

WEST JERSEY HOSPITAL VOORHEES,

LINDA FARAGASSO, R.N.C., CHRISTINE

PEASE, R.N., and BARBARA JONES, R.N.,

Defendants-Respondents,

and

WOMEN'S GROUP FOR OB/GYN,

PAMELA KOPELOVE, M.D., JEAN

TORRANCE, R.N.C., NOREEN

PALMAY, R.N., and DR. LYNCH,

Defendants.1

1

Virtua Health, Inc. was improperly pleaded as "Virtua"; Virtua

West Jersey Hospital Voorhees was improperly pleaded as "Virtue

Hospital" and "Virtua Health Systems Voorhees"; Linda Faragasso,

R.N., was improperly pleaded as "L. Faragasso, R.N.C.,"; and Jean

Torrance, R.N. was improperly pleaded as "Jean Torrance, R.N.C."

________________________________________________________________

Argued September 20, 2016 – Decided July 14, 2017

Before Judges Messano, Espinosa and Guadagno.

On appeal from Superior Court of New Jersey,

Law Division, Camden County, Docket No. L-

4509-11.

Michael J. Confusione argued the cause for

appellants (Hegge & Confusione, LLC, and

Creedon & Feliciani, P.C., attorneys; Mr.

Confusione and Heather A. Thomas, of counsel

and on the briefs).

Mary Kay Wysocki argued the cause for

respondents Virtua Health, Inc., Virtua West

Jersey Hospital Voorhees, Linda Faragasso,

R.N., Barbara Jones, R.N., and Christine

Pease, R.N. (Parker McCay, P.A., attorneys;

Ms. Wysocki, Thomas M. Walsh and Andrew S.

Winegar, on the brief).

PER CURIAM

Plaintiffs Lisa Hunt and Russell Hunt brought this medical

malpractice action on behalf of themselves and their minor child

Hailey Rosina Hunt (collectively, plaintiffs), alleging that

defendants were negligent during Lisa's labor and the delivery of

Hailey, causing extensive, permanent neurological injuries to

Hailey. Plaintiffs appeal from the dismissal of their complaint

against Virtua West Jersey Hospital Voorhees (Virtua Hospital) and

Virtua Health, Inc. (collectively, Virtua); and Linda Faragasso,

R.N., Barbara Jones, R.N., and Christine Pease, R.N.

2 A-4196-14T1

(collectively, Nurses).2 For the reasons set forth in this

opinion, we affirm.

I.

We summarize the facts pertinent to this appeal in the light

most favorable to plaintiffs. Brill v. Guardian Life Ins. Co.,

142 N.J. 520, 540 (1995); R. 4:46-2(c).

Lisa was admitted to Virtua Hospital at approximately 8:30

a.m. on September 7, 2009. Dr. Kopelove and Faragasso were

assigned as the attending physician and nurse, respectively, for

the labor and delivery.

The Nurses assessed Lisa and Hailey in approximately thirty-

minute intervals throughout the entire day, checking – among other

things – Lisa's blood pressure and Hailey's fetal heart rate (FHR),

including any variability, accelerations or decelerations. Pease

and Jones performed the assessments when Faragasso was

unavailable. Dr. Kopelove personally assessed Lisa and Hailey

approximately every two hours or as needed.

2

Plaintiffs' claims against Pamela Kopelove, M.D. and Women's

Group for OB/GYN were settled. Plaintiffs have not appealed from

the order granting summary judgment to defendant nurses Jean

Torrance, R.N., and Noreen Palmay, R.N. It is unclear from the

record what the disposition of plaintiffs' claims against Dr.

Lynch was but those claims are not part of this appeal. Plaintiffs

also made additional claims against all defendants that are not

relevant to this appeal.

3 A-4196-14T1

Over the next six hours, Lisa was given morphine and an

epidural, and her membranes were artificially ruptured. Variable

decelerations in Hailey's FHR were consistently noted beginning

at 11:30 p.m.

At 2:40 p.m., Dr. Kopelove gave orders to begin inducing

labor by administering Pitocin, with a beginning flow rate of one

milliunit per minute (mu/min). Before Pitocin was administered,

preeclampsia labs were drawn. The urinalysis revealed protein in

Lisa's urine, "a sign of pregnancy induced hypertension and/or

preeclampsia." As a result, Dr. Kopelove ordered that magnesium

sulfate be administered.

At 3:00 p.m., Pease began administering Pitocin at the rate

ordered by Dr. Kopelove. The Pitocin was increased to two mu/min

at 5:30 p.m., and then, per Dr. Kopelove's order, to four mu/min.

at 6:00 p.m. At 6:10 p.m., the FHR decelerated to seventy-five,

which constituted fetal bradycardia. Pitocin was turned off four

minutes later at 6:14 p.m. due to the persistent late

decelerations.

At 6:30 p.m., "a severe bradycardia episode occurred"; Dr.

Kopelove determined that an emergency cesarean section (C-section)

was necessary and Lisa "was rushed to the operating room." Hailey

was delivered at 6:43 p.m. She was described at birth as

"lifeless," "limp, apneic, [and] pale with no heart rate." The

4 A-4196-14T1

diagnosis was severe asphyxia. Apgar scores were 0, 0 and 3 at

one, five and ten minutes after birth, respectively.

Hailey suffers from permanent neurological damage including

neurodevelopmental delay and cerebral palsy.

Plaintiffs filed their complaint in March 2012. The claims

relevant to this appeal are: Virtua was negligent in credentialing

and retaining Dr. Kopelove and the Nurses were negligent in

treating Lisa and Hailey. We review each of these claims in turn.

II.

Plaintiffs did not produce any expert report to articulate

the standard of care applicable to their direct claims against

Virtua. Nonetheless, they argue the trial judge erred in granting

summary judgment to Virtua because expert testimony was not

required. Plaintiffs also argue the trial judge abused his

discretion in issuing protective orders that limited their ability

to pursue their claims against Virtua. We are unpersuaded by

these arguments.

Plaintiffs submit that expert testimony would only have been

required if they had alleged "that Virtua 'should have known'

about Dr. Kopelove's patient care problems yet failed to uncover

her incompetence." They contend that because "Virtua actually

knew about" Dr. Kopelove's "patient care issues and problems,"

5 A-4196-14T1

expert testimony was not necessary to establish their claims. No

legal authority is cited to support this proposition.

"The admission or exclusion of expert testimony is committed

to the sound discretion of the trial court." Townsend v. Pierre,

221 N.J. 36, 52 (2015). Expert testimony is generally

indispensable to a plaintiff's burden of showing a breach of duty

when "the matter to be dealt with is so esoteric that jurors of

common judgment and experience cannot form a valid judgment as to

whether the conduct of a party was reasonable." Butler v. Acme

Markets, Inc., 89 N.J. 270, 283 (1982). In Davis v. Brickman

Landscaping, Ltd., 219 N.J. 395 (2014), the Court noted that, in

addition to the ordinary dental or medical malpractice action, the

following types of cases have been acknowledged to concern matters

sufficiently esoteric to require expert testimony:

"the responsibilities and functions of real-

estate brokers with respect to open-house

tours," precautions necessary to ensure "the

safe conduct of a funeral procession," the

appropriate "conduct of those teaching

karate," the proper application of "pertinent

skydiving guidelines," and the proper "repair

and inspection" of an automobile.

[Id. at 407-08 (citations omitted).]

Plaintiffs describe the duty breached by Virtua as a duty "to

select only competent physicians to appoint to its medical staff

and to sufficiently oversee the physician's care within the walls

of its facility." To determine the scope of such a duty without

6 A-4196-14T1

resorting to rank speculation, the jury would have to have an

appreciation of what constituted a "competent" physician and what

oversight was sufficient. Certainly, these are matters no less

esoteric than any of the cases noted by the Supreme Court in Davis.

We therefore discern no abuse of discretion in the trial judge's

determination that expert testimony was necessary to support

plaintiffs' claims. Because plaintiffs could not sustain their

burden of establishing both a duty and the breach of that duty,

Virtua was entitled to judgment as a matter of law. See Rowe v.

Mazel Thirty, LLC, 209 N.J. 35, 41 (2012) (noting that "the moving

party is entitled to summary judgment as a matter of law" unless

"there is a genuine issue as to any material fact").

III.

Plaintiffs also challenge the trial court's entry of

protective orders entered in May and June 2014 that prohibited

discovery on: (1) materials pertaining to Dr. Kopelove's guilty

plea to a driving while intoxicated (DWI) offense in 20083; (2)

Virtua's peer review of issues regarding Dr. Kopelove; and (3)

Virtua's investigation of prior incidents involving Dr. Kopelove.

3

The trial judge found the DWI conviction was not relevant in

the absence of any evidence that she was under the influence at

the time she treated plaintiffs or that the charge had any impact

on her ability to adhere to the appropriate standard of care, and

also found the only purpose for such discovery was to intimidate,

harass, offend and embarrass Dr. Kopelove.

7 A-4196-14T1

Plaintiffs settled their claims against Dr. Kopelove in November

2014 and argue that these orders impeded their ability to pursue

their claims against Virtua. They do not, however, argue that the

entry of the protective orders precluded them from obtaining an

expert to establish breach of duty by Virtua, a failure that

justified summary judgment in Virtua's favor. Because summary

judgment was properly granted on that basis, plaintiffs'

challenges to the protective orders are moot and therefore warrant

only limited discussion.

We review this issue pursuant to an abuse of discretion

standard. C.A. ex rel. Applegrad v. Bentolila, 219 N.J. 449, 459

(2014). We are satisfied that plaintiffs' argument regarding the

discovery of Dr. Kopelove's DWI conviction lacks sufficient merit

to warrant discussion, R. 2:11-3(e)(1)(E), and discern no abuse

of discretion as to the other challenged rulings.

The May 2014 order prohibited discovery of

any factual information regarding the reviews

and/or meetings conducted by the Virtua

Medical Staff, Obstetrics Department and other

members of the Executive and Administrative

Staff of [Virtua] regarding complaints,

incidents, and other issues raised about the

behavior of [Dr. Kopelove] at Virtua Hospital.

Defendants sought a second protective order to protect

documents relating to Dr. Kopelove’s patient care issues,

specifically Virtua’s investigation of an incident in May 2009.

8 A-4196-14T1

In June 2014, following an in camera review of the withheld

documents, the trial court observed that they concerned Virtua's

investigation of a patient care event in May 2009 and that,

pursuant to N.J.S.A. 45:1-36, such materials remain confidential

"if the result of the inquiry is a finding of no basis for

disciplinary action." The June 2014 order prohibited plaintiffs

"from demanding or eliciting in discovery any information

regarding issues investigated and addressed at Virtua regarding

the actions of Dr. Kopelove, including but not limited to the

incident of May 2009."4

Plaintiffs argue the trial court made the following errors

in these rulings: (1) failing to make specific determinations

regarding each document that was withheld as required by Payton

v. New Jersey Turnpike Authority, 148 N.J. 524 (1997); (2)

misconstruing N.J.S.A. 45:1-36 by interpreting it to extend

confidentiality after there has been a final disposition in an

investigation; and (3) declaring the materials not relevant to

plaintiffs' claims against Virtua. These arguments lack merit.

4

Plaintiffs argue that they were entitled to discovery of the

documents protected in the June 2014 order pursuant to the common

law privilege recognized in Christy v. Salem, 366 N.J. Super. 535,

543 (App. Div. 2004). Although the trial court apparently failed

to consider the competing interests of the plaintiff's right to

discover the information for litigation purposes and the public

interest involved to determine if the peer review privilege

applied, id. at 541; see Applegrad, supra, 219 N.J. at 465; any

error is of no consequence because this issue is moot.

9 A-4196-14T1

In the first instance, plaintiffs' reliance on Payton is

misplaced. In Payton, supra, 148 N.J. at 554, the Court determined

that remand was necessary for the trial court to conduct an in

camera review of the documents at issue. The trial court did so

here prior to making its determination the documents should remain

confidential pursuant to N.J.S.A. 45:1-36. Absent any authority

that would require a trial court to provide "specific

determinations" regarding precluded discovery in every case,

plaintiffs' argument fails.

Plaintiffs' second argument – that the trial court

"misapplied" N.J.S.A. 45:1-36 because the withheld information

should have been released after the final disposition of the

investigation – also lacks merit. N.J.S.A. 45:1-36 explicitly

states:

If the result of the inquiry or investigation

is a finding of no basis for disciplinary

action, the information shall remain

confidential, except that the board or

division, as applicable, may release the

information to a government agency to

facilitate the discharge of its public

responsibilities.

[(Emphasis added).]

In light of the fact that the materials continued to be

protected as confidential, plaintiffs' last argument, that the

materials were relevant, has no merit.

10 A-4196-14T1

Accordingly, we discern no abuse of discretion in the issuance

of the protective orders.

IV.

We next turn to the arguments presented by plaintiffs relating

to their claims against the Nurses. These arguments arise from

the trial court's grant of summary judgment to the Nurses based

upon its determination that the plaintiffs failed to establish

proximate causation. Plaintiffs initially presented an expert

report by a nurse practitioner to support their argument that the

Nurses breached a duty that proximately caused Hailey's injuries.

They argue the trial court erred in finding the nurse practitioner

was not qualified to render an opinion on proximate cause. 5

Plaintiffs also argue the trial court erred in barring a

supplemental expert report provided by a physician on the issue

of proximate causation.

To provide context for these issues, we note that the

complaint was filed in March 2012. In May 2014, a trial notice

5

Plaintiffs argued in the alternative that a jury could have

found proximate cause proven by application of the "substantial

factor" analysis in the absence of expert opinion. This argument

lacks sufficient merit to warrant discussion, R. 2:11-3(e)(1)(E),

beyond the following brief comment. "New Jersey courts apply the

substantial factor test in medical malpractice cases involving

preexisting conditions." Reynolds v. Gonzalez, 172 N.J. 266, 280

(2002). Because plaintiffs did not allege there was a preexisting

condition, their claim would not be properly subject to analysis

under the substantial factor test.

11 A-4196-14T1

set the fourth listing for trial, November 10, 2014. Plaintiffs'

expert reports were due June 30, 2014. A court order was entered

on August 15, 2014, requiring defendants to submit expert reports

by September 12, 2014, and plaintiffs to submit rebuttal expert

reports by October 20, 2014. In addition, the order explicitly

provided that the October 10, 2014 discovery end date would not

be extended.

A.

Plaintiffs timely served expert reports from Dr. Bruce L.

Halbridge, an obstetrics expert, and Jennifer Johnson, R.N., a

registered nurse and board-certified nurse practitioner in women's

health. The contents of these reports plainly reveal that Dr.

Halbridge's opinion was intended to support plaintiffs' claim

against Dr. Kopelove and Johnson's opinion was intended to provide

the necessary expert opinion to support plaintiffs' claims against

the Nurses.

Dr. Halbridge's report identified the following

"[d]epartures":

1. The failure of Dr. Kopelove to recognize

the presence of:

a) Recurrent late and variable

decelerations

b) Significant and persistent loss of

fetal heart variability

2. The failure of Dr. Kopelove to deliver

the fetus by [1:30 p.m.] due to the presence

12 A-4196-14T1

of recurrent late and variable fetal heart

rate decelerations and significantly

decreased fetal heart rate variability

indicating fetal hypoxia.

3. The failure of Dr. Kopelove to recognize

that it is contraindicated to administer

Pitocin to increase contraction frequency,

intensity, and duration in the presence of

recurrent late and variable fetal heart rate

decelerations and associated significantly

decreased fetal heart rate variability.

In defining the damages suffered, Dr. Halbridge found Dr.

Kopelove's "failure to deliver the fetus by [1:30 p.m.] . . . was

the direct and proximate cause of the avoidable and permanent

neurologic damage suffered by the baby." Dr. Halbridge's report

offered no opinions regarding the quality of the nursing care that

was provided or that the care provided by the Nurses contributed

to the injury.

Johnson's report critiqued the nursing care provided to Lisa

and Hailey and opined that it "did not meet the standard required

and expected for such care resulting in the injury to the child."

(Emphasis added). She identified specific deviations from the

standard of care by the nurses that included "[f]ailure to properly

assess ongoing fetal well being and uterine activity throughout

labor." She also found the monitoring revealed contraindications

that rendered "[t]he initiation and continuation of Pitocin . . .

a breach of the standard of care by the labor and delivery nurses

13 A-4196-14T1

which put [Hailey] at increased risk for hypoxia as exhibited by

the recurring decelerations." (Emphasis added).

Pursuant to Rule 4:46-1, summary judgment motions had to be

filed in time to have a return date thirty days prior to the

November 10, 2014 trial date. The Nurses moved for summary

judgment in August 2014, arguing plaintiffs had failed to present

an admissible expert opinion on causation because Dr. Halbridge

had not rendered such an opinion and Johnson, a nurse practitioner,

could not "establish medical causation." The trial court agreed

and entered an order granting summary judgment to the Nurses on

September 19, 2014, dismissing the complaint and all cross-claims

with prejudice.

Plaintiffs attempted to revive their claims against the

Nurses by submitting new expert reports by Dr. Halbridge and

Johnson and filing a motion for reconsideration.

As we have noted, in his first report, Dr. Halbridge offered

no opinions regarding the nurses and laid the blame for Hailey's

injuries squarely and unequivocally upon Dr. Kopelove, stating her

failure to deliver the fetus approximately five hours earlier "was

the direct and proximate cause of" Hailey's injuries.

Dr. Halbridge prefaced his second report with: "In this report

I will list additional departures from the standard of care. . . ."

The "additional departures," however, did not address Dr.

14 A-4196-14T1

Kopelove's departures from the standard of care. Instead, for the

first time, he added "[t]he Labor [and] Delivery nurses" as persons

who deviated from the standard of care and caused Hailey's

injuries. Their alleged deviations were that, like Dr. Kopelove,

they failed to recognize the presence of repetitive variable and

late decelerations in the presence of significantly reduced

variability that clearly indicated that the fetus was experiencing

significant hypoxia and needed to be delivered promptly.

Dr. Halbridge did not opine that the Nurses had any duty to

take action to override, rather than follow, the orders given by

Dr. Kopelove throughout Lisa's labor.

In her supplemental report,6 Johnson opined for the first time

that the Nurses breached a duty in failing to challenge Dr.

Kopelove's orders:

If the nurse is concerned about the

progression or issues of variability and

compromise of the infant or the Mother the

nurse is required to follow the chain of

command per policy in order to assure a

positive outcome in both the Mother and

infant. In failing to do so, the labor and

delivery nurses in this situation breached the

standard of care and [sic] resulting in the

injury to [Hailey].

6

Johnson's supplemental report was provided after the due date

for plaintiffs' rebuttal reports.

15 A-4196-14T1

These reports were submitted as rebuttal reports and as

grounds for the trial court to reconsider its order granting

summary judgment.

Reconsideration is not appropriate merely because a litigant

is dissatisfied with a decision of the court or wishes to reargue

a motion. Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div.

2010). To be entitled to reconsideration, "a litigant must

initially demonstrate that the Court acted in an arbitrary,

capricious, or unreasonable manner, before the Court should engage

in the actual reconsideration process." D'Atria v. D'Atria, 242

N.J. Super. 392, 401 (Ch. Div. 1990). Reconsideration is properly

utilized only in cases "in which either 1) the Court has expressed

its decision based upon a palpably incorrect or irrational basis,

or 2) it is obvious that the Court either did not consider, or

failed to appreciate the significance of probative, competent

evidence." Palombi, supra, 414 N.J. Super. at 288 (quoting

D'Atria, supra, 242 N.J. Super. at 401). Plainly, the submission

of new expert reports that differed from the reports available

when the summary judgment motion was decided did not bring the

trial court's decision within either of these two narrow categories

of cases in which reconsideration is appropriate. Notwithstanding

the dubious grounds for granting reconsideration, the trial court

found that Dr. Halbridge's new report established causation as to

16 A-4196-14T1

Faragasso. By order dated October 27, 2014, the trial court

granted reconsideration in part, reinstating plaintiffs' claims

against Faragasso, but affirmed the dismissal of claims against

Jones and Pease.

Thereafter, defendants moved to bar Dr. Halbridge's and

Johnson's supplemental expert reports, arguing they did not

constitute proper rebuttal. The trial court barred Dr. Halbridge's

report, later clarifying that only the new opinions expressed on

the standard of care and causation regarding the Nurses were

barred. The trial court denied defendant’s motion to bar Johnson's

report, finding that her opinion as to the chain-of-command was a

logical extension of her initial report.

Faragasso filed a motion for summary judgment, arguing that

since Dr. Halbridge's opinion regarding the Nurses was barred,

there was no admissible opinion that any alleged deviation

attributed to her caused Hailey's injuries. Plaintiffs argued

Johnson's opinion that the Nurse's actions increased the risk of

harm to Hailey "satisfie[d] the causation requirements." The

trial court agreed with Faragasso that this was a medical diagnosis

Johnson was not qualified to make; and thus, without Dr.

Halbridge's rebuttal report, plaintiffs could not establish

causation as to Faragasso. The trial court granted summary

17 A-4196-14T1

judgment to Faragasso, and dismissed the complaint and any cross-

claims with prejudice.

B.

We turn first to the argument that the trial court erred in

concluding Johnson was not qualified to render the requisite

opinion regarding causation.

"Ordinarily, the competency of a witness to testify as an

expert is remitted to the sound discretion of the trial court.

Absent a clear abuse of discretion, an appellate court will not

interfere with the exercise of that discretion." Carey v. Lovett,

132 N.J. 44, 64 (1993); see also Townsend, supra, 221 N.J. at 52-

53.

A plaintiff in a medical malpractice action "must present

expert testimony establishing (1) the applicable standard of care;

(2) a deviation from that standard of care; and (3) that the

deviation proximately caused the injury." Nicholas v. Mynster,

213 N.J. 463, 478 (2013) (citation omitted). To establish

proximate cause, the "plaintiff must prove that [the] defendant's

conduct constituted a cause in fact of his injuries and loss. An

act or omission is not regarded as a cause of an event if the

event would have occurred without it." Skripek v. Bergamo,

200 N.J. Super. 620, 634 (App. Div.), certif. denied, 102 N.J. 303

(1985).

18 A-4196-14T1

Usually, a witness presented as an expert "must be a licensed

member of the profession whose standards he professes to know."

Sanzari v. Rosenfeld, 34 N.J. 128, 136 (1961). However, licensed

or even unlicensed individuals involved in another profession can

testify as an expert "depend[ing] on the claim involved, the

specific allegations made, and the opinions that the expert

proposes to offer at trial." Garden Howe Urban Renewal Assocs.

v. HACBM Architects Eng'rs Planners, L.L.C., 439 N.J. Super. 446,

456 (App. Div. 2015).

It is undisputed that the causation issue in this case

requires sufficient knowledge, training and experience to

determine the cause of a complex neurological injury in the context

of labor and delivery. Plaintiffs rely on the Advanced Practice

Nurse Certification Act (APNCA), N.J.S.A. 45:11-45 to -52, to

support their argument that Johnson was qualified to opine on the

causation issue in this case. N.J.S.A. 45:11-49(a), articulates

the [p]ermitted duties of [an] advanced practice nurse"7 and

states:

In addition to all other tasks which a

registered professional nurse may, by law,

perform, an advanced practice nurse may manage

preventive care services and diagnose and

manage deviations from wellness and long-term

illnesses, consistent with the needs of the

7

Under the APNCA, the titles "advanced practice nurse," "nurse

practitioner" and "clinical nurse specialist" are used

interchangeably. N.J.S.A. 45:11-46(c).

19 A-4196-14T1

patient and within the scope of practice of

the advanced practice nurse, by:

(1) initiating laboratory and other

diagnostic tests;

(2) prescribing or ordering

medications and devices, as authorized

by subsections b. and c. of this

section; and

(3) prescribing or ordering

treatments, including referrals to

other licensed health care

professionals, and performing specific

procedures in accordance with the

provisions of this subsection.

[(Emphasis added).]

Plaintiffs argue legislative amendments clarify that the

scope of an advanced practice nurse's permitted practices exceeds

that of a registered nurse and encompasses the diagnosis and

management of a patient's condition. Notably, however, the statute

does not provide any clear authority that an advanced practice

nurse may diagnose the neurological injury at issue here or, more

important, how it was caused. We note further that the autonomy

of an advanced practice nurse is limited. N.J.A.C. 13:37-8.1

requires that a nurse practitioner be supervised by an appropriate

physician under joint protocols or collaborative agreements.

Given the complexity of the medical causation in this case

and the limits upon Johnson's scope of expertise, we cannot

conclude the trial court abused its discretion in concluding she

was not qualified to render the requisite opinion on causation.

20 A-4196-14T1

Relying upon Kemp v. State, 174 N.J. 412 (2002), plaintiffs

also contend the trial court erred in ruling Johnson was not

qualified to render an opinion without first conducting, sua

sponte, an N.J.R.E. 104 hearing. Because plaintiffs did not ask

the trial court to conduct an N.J.R.E. 104 hearing, we review this

argument for plain error. R. 2:10-2.

In Kemp, supra, 174 N.J. at 432, the Court held it was plain

error for the trial court to exclude the testimony of an expert

without conducting an evidentiary hearing to determine the

reliability of the expert's testimony. The issue in Kemp was

whether the expert's analysis was "scientifically reliable,"

meaning "the scientific medical community accepts the process by

which [the expert] arrived at his conclusion as one that is

consistent with sound scientific principles." Id. at 430-31.

Although the Court noted that an in limine hearing provides an

efficient means for determining the reliability of expert

testimony when a Daubert8 objection is raised, it did not require

an in limine hearing in every case in which such an objection is

made:

Whether to hold one rests in the sound

discretion of the [trial] court. But when the

ruling on admissibility turns on factual

issues, as it does here, at least in the

8

Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S. Ct.

2786, 125 L. Ed. 2d 469 (1993).

21 A-4196-14T1

summary judgment context, failure to hold such

a hearing may be an abuse of discretion.

[Id. at 428 (quoting Padillas v. Stork-Gamco,

Inc., 186 F. 3d 412, 418 (3d Cir. 1999)).]

There was no Daubert objection here. The issue regarding the

admissibility of Johnson's expert opinion was not its scientific

reliability but, rather, whether the witness was qualified in her

profession to render an expert opinion.

Plainly, the trial judge had the authority to conduct an in

limine hearing regarding Johnson's qualifications to render an

opinion on causation. N.J.R.E. 104(a) provides that a "judge may

hear and determine" matters relating to "the qualification of a

person to be a witness" at an in limine hearing. See also Rubanick

v. Witco Chem. Corp., 125 N.J. 421, 454 (1991); Biunno, Weissbard

and Zegas, Current N.J. Rules of Evidence, comment 1 on N.J.R.E.

104 (2017) ("If there is a dispute about the qualifications of a

proffered expert witness to testify in a particular field, a

preliminary hearing may be utilized to resolve the question." But

the decision to conduct a N.J.R.E. 104 hearing rests within the

sound discretion of the trial court. Kemp, supra, 174 N.J. at

432. Under the circumstances here, we discern no abuse of

discretion and, therefore, no plain error.

22 A-4196-14T1

C.

Plaintiffs next contend the trial court abused its discretion

by barring Dr. Halbridge's second expert report based on its

finding that the report expressed "entirely new opinion[s]" rather

than an appropriate rebuttal report. They argue the report was

sufficiently related to Dr. Halbridge's first report because his

initial opinions "applied to both Dr. Kopelove and [the Nurses]"

and the alleged breaches by the Nurses arose from the same set of

facts as for Dr. Kopelove. Plaintiffs also argue the additional

opinions expressed by Dr. Halbridge constituted "proper rebuttal

evidence . . . with respect to the causation element" because he

"respond[ed] to the opinions set forth in the defense reports."9

The limited purpose of rebuttal evidence is to rebut evidence

presented for the first time in the opposing party's case, and

should not be cumulative or repetitive. D.G. ex rel. J.G. v. N.

Plainfield Bd. of Educ., 400 N.J. Super. 1, 22-23 (App. Div.),

certif. denied, 196 N.J. 346, cert. denied, 555 U.S. 1085, 129 S.

Ct. 776, 172 L. Ed. 2d 756 (2008). Determining "[w]hat is proper

rebuttal evidence and whether it should be admitted" is a decision

9

Three of defendants' experts opined that the Nurses' actions

during the labor and delivery met the appropriate standard of

care. Three other defense experts opined that Hailey's injuries

were due to preexisting conditions that defendants had no control

over, with one expert stating: "Nothing the health care providers

caring for Hailey's mother did or did not do could have prevented

the child's injury."

23 A-4196-14T1

that rests "within the sound discretion of the trial judge, and

the exercise of that discretion will not be disturbed in the

absence of gross abuse." State v. Sanducci, 150 N.J. Super. 400,

402 (App. Div.), certif. denied, 75 N.J. 524 (1977).

We discern no abuse of discretion in the trial court's

decision to bar the opinion in Dr. Halbridge's supplemental report

that the Nurses deviated from a standard of care that proximately

caused the injury here. These opinions cannot remotely be

considered an amplification of the opinion he expressed in his

initial report, before summary judgment was granted to the Nurses,

when he unequivocally opined that Dr. Kopelove's deviation was the

proximate cause for the injury suffered. Rather than a genuine

rebuttal report, this report represented a transparent effort to

take a second bite at the apple after expert reports had been

exchanged and summary judgment had been granted to the Nurses

based on the very deficiency in expert opinion that Dr. Halbridge's

second report was designed to cure.

Plaintiffs urge that they should be spared the ultimate

sanction of dismissal with prejudice because lesser sanctions,

such as an extension of discovery or the assessment of counsel

fees and costs, could suffice to serve the interests of justice.

We disagree.

24 A-4196-14T1

The expert report plaintiffs seek to rely upon was not

produced until October 20, 2014, approximately three weeks before

the fourth listed trial date, after the October 10, 2014 discovery

end date and after summary judgment had been granted to the Nurse

defendants. No argument has been made that the opinion in question

could not have been obtained and presented during the normal course

of discovery. There are, then, no extraordinary circumstances to

justify the late alteration in expert theory that was adopted to

rescue plaintiffs' claims against the Nurses. See R. 4:24-1(c).

Moreover, even if Dr. Halbridge's report were accepted in

full, it fails to establish a critical point necessary for the

imposition of liability upon the Nurses. It is undisputed that

Dr. Kopelove was the attending physician and that the Nurses

followed her orders throughout labor. Dr. Halbridge opined that

it was Dr. Kopelove's five-hour delay in ordering a C-section that

was the proximate cause of Hailey's injuries. Nowhere in his

supplemental report does Dr. Halbridge state the Nurses had grounds

to attempt to override Dr. Kopelove's orders, a duty to do so and

deviated from that duty. Absent that, his supplemental report

fails to provide the requisite opinion regarding causation to

support plaintiffs' claims against the Nurses. Affirmed.

25 A-4196-14T1