SANDRA NICHOLAS VS. HACKENSACK UNIVERSITY MEDICAL CENTER (L-4839-12, MIDDLESEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5165-15T2

SANDRA NICHOLAS and CORY LEO,

individually and as Administrators

Ad Prosequendum of the ESTATE OF

SANTINO MICHAEL LEO,

APPROVED FOR PUBLICATION

Plaintiffs-Appellants,

September 24, 2018

v. APPELLATE DIVISION

HACKENSACK UNIVERSITY MEDICAL CENTER,

Defendant-Respondent,

and

BRUCE FRIEDMAN, M.D., MARK SIEGEL, M.D.,

STEPHEN PERCY, M.D., and ABRAHAM

ZERYKIER, M.D.,

Defendants.

__________________________________________

Argued January 16, 2018 – Decided August 9, 2018

Before Judges Messano, Accurso and Vernoia.

On appeal from Superior Court of New Jersey, Law

Division, Middlesex County, Docket No. L-4839-12.

William L. Gold argued the cause for appellants

(Bendit Weinstock, PA, attorneys; William L. Gold,

on the briefs).

Richard J. Mirra argued the cause for respondent

(Hoagland, Longo, Moran, Dunst & Doukas, LLP,

attorneys; Richard J. Mirra, of counsel and on the

brief; Andrew J. Obergfell, on the brief).

The opinion of the court was delivered by

VERNOIA, J.A.D.

Plaintiffs Sandra Nicholas and Cory Leo, individually and as

administrators ad prosequendum of the estate of their four-year-old son

Santino Michael Leo, appeal from orders resulting in the dismissal of their

medical malpractice action against defendant Hackensack University Medical

Center (HUMC). We reverse.

I.

After suffering seizures, Santino Michael Leo was admitted to HUMC

on April 30, 2011. While in HUMC's pediatric intensive care unit (PICU), it

was determined he had an airborne infection, methicillin-resistant

staphylococcus aureus, and pneumonia. He developed acute respiratory

distress, multiple organ failure and sepsis, and passed away on May 13, 2011.

In July 2012, plaintiffs filed a wrongful death and survivorship medical

malpractice complaint against HUMC, the child's treating physicians, Dr.

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Bruce Friedman, Dr. Stephen Percy, and Dr. Mark Siegel,1 and fictitiously-

named physicians, nurses and other HUMC staff. At the time of the

malpractice alleged in the complaint, each of the named physicians was board

certified in pediatrics and in pediatric critical care.

In support of their complaint, plaintiffs filed affidavits of merit (AOM)

from Dr. Howard Eigen, and Alisha Wursten, R.N., B.S.N. In his AOM, Dr.

Eigen states he is a licensed physician in the state of Indiana, "board certified

and credentialed by a hospital for at least five years in the [sub]specialties of

pediatric pulmonology and critical care" and, "[d]uring the year immediately

preceding the date of the occurrence that is the basis of the claim or action, . . .

devoted a majority of [his] professional time to the active clinical practice of

pediatric pulmonology and critical care." Dr. Eigen subsequently provided

three reports opining as to the alleged deviations from the standard of care by

Drs. Friedman, Percy and Siegel, and other HUMC personnel,2 and the manner

1

Dr. Abraham Zerykier was also named as a defendant but was subsequently

dismissed from the action by stipulation of the parties.

2

In Dr. Eigen's report dated June 18, 2014, he asserted the absence of a

"systematic method for enforcing infection control measures" in HUMC's

PICU fell "below the standard of care, and increased the risk of nosocomial

infections . . . at the time that Santino [Michael] Leo was being treated." Dr.

Eigen also noted that the "[l]ack of sterile procedure has a high likelihood of

introducing bacteria into the blood stream at the time of the central l ine

(continued)

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in which the deviations proximately caused the child's death. The parties

waived the Ferreira3 conference.

Almost three years later, Dr. Eigen testified during his March 2015

deposition that he was board certified in pediatrics and in the subspecialty of

pediatric critical care, and in 2011 was credentialed at the Riley Hospital for

Children to practice pediatric and pediatric critical care medicine. He also

testified that from 2006 through 2011, he served as the medical director of the

hospital's PICU, and was on call approximately ten weeks per year providing

care to the PICU patients. When he was not on call, Dr. Eigen administered

the PICU and served as the vice-chairman of pediatrics for clinical affairs. Dr.

Eigen testified that between 2006 and 2011 he devoted twenty-five percent of

his time to direct patient care in the PICU, fifty percent to administrative

(continued)

placement" in the child, and other lapses in procedure "greatly increased [the

child's] risk of sepsis and death."

3

In Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003), the Court

determined that "a 'case management conference [shall] be held within ninety

days of the service of an answer in all malpractice actions' . . . [where] a

'defendant [is] required to advise the court whether he has any objections to

the adequacy of the affidavit' that has been served on him." Buck v. Henry,

207 N.J. 377, 394 (2011) (third alteration in original) (internal citation

omitted) (quoting Ferreira, 178 N.J. at 154-55); see also Meehan v. Antonellis,

226 N.J. 216, 221 (2016) (reinforcing the importance of such a conference).

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duties and twenty-five percent to seeing outpatients and teaching residents in

the outpatient clinics.

Drs. Friedman, Percy and Siegel moved for summary judgment, arguing

plaintiffs lacked proof they deviated from the requisite standard of care

because Dr. Eigen was not qualified to testify as an expert under the New

Jersey Medical Care Access and Responsibility and Patients First Act, N.J.S.A.

2A:53A-37 to -42. The physicians claimed Dr. Eigen was not qualified to

testify because he did not devote the majority of his professional time to

clinical practice during the year preceding the alleged malpractice in 2011, and

therefore did not satisfy the requirements of N.J.S.A. 2A:53A-41(a)(2).

In its written opinion, the court noted the physicians' summary judgment

motions presented the following issue: "whether [p]lainiffs' proffered expert[,

Dr. Eigen,] is qualified as an expert under N.J.S.A. 2A:53A-41(a)(1) or

N.J.S.A. 2A:53A-41(a)(2) as required under Nicholas v. Mynster, 213 N.J. 463

(2013)." The court determined that although Dr. Eigen is board certified in

pediatrics and pediatric critical care, he did not satisfy the requirements of

either N.J.S.A. 2A:53A-41(a)(2)(a) or N.J.S.A. 2A:53A-41(a)(2)(b), "which

require either devotion to practice or the teaching requirement mandated for a

board certified expert." The court concluded Dr. Eigen did not satisfy the

statutory requirements because he "only devoted a small percentage of his

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practice time to pediatric critical care in the year prior to the date of the

alleged malpractice[.]"

In separate orders dated September 22, 2015, the court barred Dr.

Eigen's testimony against Drs. Siegel and Friedman, and granted summary

judgment in their favor, and barred Dr. Eigen's testimony against Dr. Percy.

Two weeks later, the court entered an order granting Dr. Percy summary

judgment.

In October 2015, plaintiffs moved for an order permitting Dr. Eigen to

testify as to the standard of care and causation against HUMC. Plaintiffs

argued the court's order barring Dr. Eigen's testimony as to the defendant

physicians under the Patients First Act did not preclude him from testifyi ng as

an expert against HUMC.

After hearing argument, the court denied the motion in a December 11,

2015 order. In its written opinion, the court noted plaintiffs' liability claims

against HUMC were premised on the hospital's alleged vicarious liability for

the negligence of the defendant physicians, who the court found were

"employees of" HUMC. The court reasoned that its prior disqualification of

Dr. Eigen as an expert against the physicians precluded his testimony against

the hospital, and found it could not "allow [p]laintiff[s] to bootstrap into

evidence the excluded testimony of [the] dismissed defendant doctors[']

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deviation [from] the standard of care under the circumstances." The court

determined that plaintiffs could not use Dr. Eigen's testimony to support their

claim HUMC is liable due to the defendant physicians' deviation from the

standard of care because Dr. Eigen was not qualified to testify concerning the

physicians' alleged negligence under the Patients First Act. The court

concluded Dr. Eigen was not permitted to testify as to HUMC's alleged

deviation from the standard of care "because it would violate the rule of

N.J.S.A. 2A:53A-41(a) et. seq."

Plaintiffs filed a motion to correct the court's December 11, 2015 order

to permit Dr. Eigen to offer proximate causation testimony as to HUMC. 4 In a

February 11, 2016 order, the court denied the motion. In its written opinion,

the court found Dr. Eigen's proximate causation testimony would be "unduly

prejudicial under the circumstances of this case" because he "disavowed"

offering standard of care opinions as to HUMC in his reports and deposition.

In addition, the court found that permitting Dr. Eigen to testify about

proximate causation would be unduly prejudicial to HUMC because the court 's

order barring his testimony as to the defendant physicians would necessarily

4

Plaintiffs intended to rely on Wursten as their expert witness on HUMC's

alleged deviation from the standard of care.

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preclude HUMC from cross-examining Dr. Eigen about the physicians' alleged

deviations from the standard of care.

On February 17, 2016, HUMC moved for summary judgment claiming

plaintiffs lacked expert testimony establishing proximate causation. Plaintiffs

cross-moved to allow late service of an expert report from Dr. Emily Dawson

and substitution of Dr. Dawson for Dr. Eigen as their expert. Plaintiffs argued

that late submission of the report should be permitted because they could not

have anticipated what they characterized as the court's "novel" rulings barring

Dr. Eigen's testimony, and because Dr. Eigen retired and was no longer

available.

On June 3, 2016, the court denied plaintiffs' cross-motion, finding their

need for a new expert was the result of their failure to comply with N.J.S.A.

2A:53A-41, and their request was made too late - a year and a half after the

discovery end date and following seven scheduled trial dates. The court

granted HUMC's summary judgment motion, finding plaintiffs lacked an

expert on proximate cause that was essential to their malpractice claim. On

July 8, 2016, the court denied plaintiffs' motion for reconsideration of its June

3, 2016 orders. This appeal followed.

Plaintiffs do not appeal the orders barring Dr. Eigen's testimony as to the

physicians or granting the physicians' summary judgment motions. Instead,

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plaintiffs challenge the December 11, 2015 order barring Dr. Eigen from

testifying as to the standard of care and proximate cause as to HUMC , the

February 11, 2016 order barring Dr. Eigen from testifying as to proximate

cause as to HUMC, the June 3, 2016 orders granting HUMC summary

judgment and denying plaintiffs' cross-motion permitting the late filing of a

new expert report, and the July 8, 2016 order denying their motion for

reconsideration. In its brief on appeal, plaintiffs make clear they do "not seek

reversal of any of the [o]rders as to any of the individual doctors and only

seek[] to reinstate the claim against HUMC."

Plaintiffs present the following arguments for our consideration:

POINT I

THE MOTION COURT IMPROPERLY BARRED

THE TESTIMONY OF PLAINTIFFS' EXPERT

UNDER THE RELEVANT STATUTES WHICH ARE

APPLICABLE ONLY TO PHYSICIANS, NOT TO

HOSPITALS.

POINT II

BECAUSE DR. EIGEN WAS QUALIFIED UNDER

N.J.S.A. 2A:53A-41(a)(1), BARRING HIS

TESTIMONY IS REVERSIBLE ERROR.

POINT III

BARRING DR. EIGEN FROM TESTIFYING ON

PROXIMATE CAUSE IS REVERSIBLE ERROR.

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POINT IV

DISMISSAL OF PLAINTIFFS' CASE WAS TOO

HARSH A REMEDY.

II.

The orders barring Dr. Eigen's testimony against HUMC and granting

HUMC summary judgment are founded on the court's initial determination that

Dr. Eigen was not qualified to testify against the physicians because he did not

satisfy the requirements of N.J.S.A. 2A:53A-41(a)(2)(a) or N.J.S.A. 2A:53A-

41(a)(2)(b). We therefore first consider whether the court correctly

determined Dr. Eigen was not qualified to testify as an expert under the

Patients First Act.

"[W]e apply . . . [a] deferential approach to a trial court's decision to

admit expert testimony, reviewing it against an abuse of discretion standard."

Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 154-55 (2013)

(alterations in original) (quoting Pomerantz Paper Corp. v. New Cmty. Corp.,

207 N.J. 344, 371-72 (2011)). "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).

Enacted in 2004, "[t]he [Patients First Act] establishes certain

qualifications that expert witnesses in medical malpractice actions must

possess." Castello v. Wohler, 446 N.J. Super. 1, 14 (App. Div.) (citation

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omitted), certif. denied, 228 N.J. 154 (2016). The Patients First Act "generally

requir[es] the challenging expert to be equivalently-qualified to the

defendant[.]" Ryan v. Renny, 203 N.J. 37, 52 (2010).

In pertinent part, the Patients First Act provides:

In an action alleging medical malpractice, a person

shall not give expert testimony or execute an affidavit

pursuant [N.J.S.A. 2A:53A-26 to -28]5 on the

appropriate standard of practice or care unless the

person is licensed as a physician or other health care

professional in the United States and meets the

following criteria:

a. If the party against whom or on whose behalf the

testimony is offered is a specialist or subspecialist

recognized by the American Board of Medical

Specialties [ABMS] or the American Osteopathic

Association and the care or treatment at issue involves

that specialty or subspecialty . . . , the person

providing the testimony shall have specialized at the

time of the occurrence that is the basis for the action

in the same specialty or subspecialty, . . . , as the party

against whom or on behalf the testimony is offered,

and if the person against whom or on whose behalf the

testimony is being offered is board certified and the

care or treatment at issue involves that board specialty

or subspecialty . . . the expert witness shall be:

5

In relevant part, N.J.S.A. 2A:53A-26 to -28 generally provides that in any

action for damages for personal injury, wrongful death or property damage

resulting from the negligence of certain licensed persons, including physicians

in the practice of medicine or surgery, the plaintiff must file an affidavit of an

appropriately licensed person that there exists a reasonable probability the

defendant's conduct fell outside of acceptable professional or occupational

standards.

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(1) a physician credentialed by a hospital to treat

patients for the medical condition, or to perform the

procedure, that is the basis for the claim or action; or

(2) a specialist or subspecialist recognized by the

American Board of Medical Specialties or the

American Osteopathic Association who is board

certified in the same specialty or subspecialty, . . .

during the year immediately preceding the date of the

occurrence that is the basis for the claim or action,

shall have devoted a majority of his professional time

to either:

(a) the active clinical practice of the same health care

profession in which the defendant is licensed, and, if

the defendant is a specialist or subspecialist . . . , the

active clinical practice of that specialty or

subspecialty . . . ; or

(b) the instruction of students in an accredited medical

school, other accredited health professional school or

accredited residency or clinical research program in

the same health care profession in which the defendant

is licensed, and, if that party is a specialist or

subspecialist . . . accredited residency or clinical

research program in the same specialty or subspecialty

. . . ; or

(c) both.

[N.J.S.A. 2A:53A-41(a) (emphasis added).]

In Nicholas, our Supreme Court explained N.J.S.A. 2A:53A-41(a)'s

requirements where, as here, a plaintiff proffers an expert who is board

certified in a specialty and a subspecialty to testify about the care or treatment

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rendered by another physician in the same specialty and subspecialty. 6 213

N.J. at 479-88. The Court first noted that where "a physician is a specialist

and the basis of the malpractice action 'involves' the physician's specialty, the

challenging expert must practice in the same specialty." Id. at 481-82; accord

Castello, 446 N.J. Super. at 16. A plaintiff's expert "must be a specialist in the

same field in which the defendant physician specializes . . . ." Nicholas, 213

N.J. at 482; see N.J.S.A. 2A:53A-41(a); see also Meehan, 226 N.J. at 233

(explaining N.J.S.A. 2A:53A-41(a) requires that a "proposed expert . . . must

have specialized in the same specialty or subspecialty" as the defendant

physician).

N.J.S.A. 2A:53A-41(a) imposes additional expert qualifications where a

defendant physician practices in an ABMS specialty and is also board certified

in the specialty. Nicholas, 213 N.J. at 482. The Court explained that "if the

defendant-physician specializes in a practice area 'and . . . is board certified

and the care or treatment at issue involves that board specialty . . . , the expert

witness' then must" satisfy the requirements of "either" N.J.S.A. 2A:53A-

6

Where the treatment at issue is not provided by a specialist, or is provided by

a specialist but does not involve the physician's specialty, the requirements for

the qualification of an expert to testify against a general practitioner apply.

Buck, 207 N.J. at 391; see also N.J.S.A. 2A:53A-41(b). The standard has no

application here because the defendant physicians were specialists in pediatrics

and subspecialists in pediatric critical care and their alleged malpractice

involved that specialty and subspecialty.

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41(a)(1) "or" N.J.S.A. 2A:53A-41(a)(2). Ibid. (citation omitted); see also

Castello, 446 N.J. Super. at 15 (noting that where the defendant physician is

board certified in the specialty involved in the alleged malpractice , the

challenging expert must satisfy the requirements of N.J.S.A. 2A:53A-41(a),

and "the additional qualifications set forth in subsections (a)(1) or (a)(2)");

Lomando v. United States, 667 F.3d 363, 383 (3d Cir. 2011) (finding N.J.S.A.

2A:53A-41(a) requires that an expert offering testimony against a board -

certified specialist share that specialty and meet the requirements of either

N.J.S.A. 2A:53A-41(a)(1) or (a)(2)).

To satisfy N.J.S.A. 2A:53A-41(a)(1)'s requirements, the expert must be

"credentialed by a hospital to treat the condition at issue . . . ." Nicholas, 213

N.J. at 482. To satisfy the requirements of N.J.S.A. 2A:53A-41(a)(2), the

expert must be "board certified in the same specialty in the year preceding 'the

occurrence that is the basis for the claim or action,'" ibid. (quoting N.J.S.A.

2A:53A-41(a)(2)), and during the year immediately preceding the occurrence

he or she must have devoted a majority of his or her time to "either" clinical

practice as defined in N.J.S.A. 2A:53A-41(a)(2)(a) or the instruction of

students as defined in N.J.S.A. 2A:53A-41(a)(2)(b), ibid.

Measured against the statutory standards as explained by the Court in

Nicholas, we are convinced the court erred by determining Dr. Eigen was not

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qualified to testify against the defendant physicians. In the first instance , Dr.

Eigen met the requirements of N.J.S.A. 2A:53A-41(a). He was a licensed

physician and, at the time of the alleged malpractice, "specialized . . . in the

same specialty, [pediatrics, and] subspecialty [pediatric critical care,]"

involved in the treatment and care at issue. See N.J.S.A. 2A:53A-41(a).

Although Dr. Eigen's administrative duties as director of the PICU and as a

hospital administrator consumed a substantial amount of his professional time

in 2011, his clinical practice was devoted exclusively to the practice of

pediatrics and pediatric critical care. See Buck, 207 N.J. at 391 (finding "[a]

physician may practice in more than one specialty").

N.J.S.A. 2A:53A-41(a) does not require that a proposed expert devote a

majority of his or her professional time to the practice of the pertinent

specialty. It requires only a showing that a proposed expert "practice in the

same specialty" as a defendant physician. Nicholas, 213 N.J. at 486. In

Nicholas, the Court determined the plaintiff's proposed expert did not satisfy

N.J.S.A. 2A:53A-41(a)'s requirements because although credentialed at a

hospital and board certified in the pertinent specialties, the expert "did not

specialize" in those specialties when the alleged malpractice occurred. Id. at

487. Similarly, in Castello, 446 N.J. Super. at 16-17, we determined that a

proposed expert did not satisfy "the preliminary qualification of specialization"

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under N.J.S.A. 2A:53A-41(a) because he retired from the practice of medicine

prior to the time of the alleged malpractice occurrence.

In contrast, here the evidence shows Dr. Eigen practiced pediatrics and

pediatric critical care in 2011 when the defendant physicians provided the care

at issue. Although he had duties independent of his clinical practice, he

devoted all of his clinical practice to pediatrics and pediatric critical care in

2011. Thus, Dr. Eigen satisfied N.J.S.A. 2A:53A-41(a)'s requirement that he

practice and specialize in the specialty and subspecialty of the defendant

physicians.

The defendant physicians were board certified in pediatrics and pediatric

critical care, and therefore Dr. Eigen was required to satisfy the additional

requirements of either N.J.S.A. 2A:53A-41(a)(1) or (a)(2) to qualify as an

expert witness under the Patients First Act. Nicholas, 213 N.J. at 482;

Castello, 446 N.J. Super. at 15-16. The court found Dr. Eigen was not

qualified because he did not devote the majority of his professional time to the

active clinical practice of pediatrics and pediatric critical care during the year

immediately preceding the alleged malpractice. In other words, the court

found Dr. Eigen was not a qualified expert because he failed to satisfy the

requirements of N.J.S.A. 2A:53A-41(a)(2)(a).

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To be sure, Dr. Eigen's qualifications did not satisfy the requirements of

N.J.S.A. 2A:53A-41(a)(2)(a). The court erred, however, because it did not

consider that Dr. Eigen satisfied the requirements of N.J.S.A. 2A:53A-

41(a)(1). When the alleged malpractice occurred in 2011, Dr. Eigen was

credentialed at the Riley Hospital for Children to provide pediatric and

pediatric critical care, and thus "to treat patients for the medical condition, or

to perform the procedure, that is the basis for" plaintiffs' medical malpractice

claim. See N.J.S.A. 2A:53A-41(a)(1). Dr. Eigen satisfied the requirements of

N.J.S.A. 2A:53A-41(a)(1), and his lack of qualifications under N.J.S.A.

2A:53A-41(a)(2) did not permit or require his disqualification as an expert

witness against the defendant physicians. Nicholas, 213 N.J. at 412; Castello,

446 N.J. Super. at 15-16. The court erred in holding otherwise and in barring

Dr. Eigen's testimony as to the defendant physicians.

The court's orders granting HUMC summary judgment and denying

plaintiffs' request to serve a late expert report were founded on its

determination Dr. Eigen was not a qualified expert under the Patients First Act

in the first instance. Because we conclude the determination was in error , we

are constrained to reverse the court's order granting summary judgment to

HUMC and denying plaintiffs' request to serve a late expert report.

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We are not persuaded by HUMC's contention that even if Dr. Eigen was

qualified to testify under the Patients First Act, the court properly barred his

testimony as to proximate causation and granted HUMC summary judgment

because Dr. Eigen disavowed providing a proximate causation opinion as to

HUMC in his deposition. The record does not support HUMC's contention.

During his deposition, Dr. Eigen was asked directly if his reports

included an opinion that HUMC "and its nurses or personnel departed from the

applicable standard of care of a hospital." He incorrectly stated his reports did

not include such an opinion,7 and agreed, subject to a caveat,8 that he did not

express an opinion concerning HUMC's deviation from the standard of care.

7

Dr. Eigen's June 18, 2014 report included an opinion HUMC deviated from

the standard of care that was not dependent on the actions of the defendant

physicians. See footnote 2, supra.

8

The caveat was that he did not offer an opinion as to HUMC's deviation from

the standard of care but only if the defendant physicians were not HUMC

employees. In other words, Dr. Eigen made clear that if the physicians were

HUMC employees, his opinion was that HUMC was liable for their deviation

from the standard of care detailed in his reports and otherwise in his testimony.

The record is unclear whether the defendant physicians were HUMC

employees. In its brief, HUMC states it is undisputed the physicians were not

HUMC employees, but fails to cite to any evidence in the record supporting

the assertion. See R. 2:6-2; see also State v. Mauti, 448 N.J. Super. 275, 314

n.17 (App. Div.) (noting it is the parties' responsibility to refer to specific parts

of the record to support their arguments on appeal), certif. denied, 230 N.J.

170 (2017). In the trial court's written opinion supporting its December 11,

2015 order denying plaintiffs' motion to permit Dr. Eigen to test ify against

HUMC, the court expressly found the defendant physicians were HUMC

(continued)

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Dr. Eigen was not similarly asked if he had an opinion on proximate

causation, and our review of the portion of the transcript from his deposition

provided by HUMC makes clear he never disavowed offering an opinion on

proximate cause. HUMC's contention Dr. Eigen was properly barred as an

expert witness because he disavowed offering an opinion on proximate

causation as to HUMC is unavailing.

It is unnecessary to address plaintiffs' arguments that the court's orders

should be reversed for reasons other than its erroneous conclusion Dr. Eigen

was not a qualified expert under the Patients First Act. Because the court 's

order granting HUMC summary judgment was founded on the incorrect

conclusions that Dr. Eigen was not a qualified expert witness and he

disavowed offering an opinion as to proximate cause, we reverse the summary

judgment order and remand for further proceedings. Our determination

renders it unnecessary to address plaintiffs' contention the court erred by

denying their motions to serve the late expert report of Dr. Dawson and for

reconsideration.

(continued)

employees. It is unnecessary to resolve this factual dispute, however, because

we have determined the court erred by finding Dr. Eigen was not a qualified

expert under the Patients First Act.

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Dr. Eigen has retired and is no longer available to provide expert

testimony. On remand, the court shall allow plaintiffs to serve Dr. Dawson's

report as plaintiffs' new expert report, and permit such other discovery as the

court deems necessary under the circumstances.

Reversed and remanded for further proceedings in accordance with this

opinion. We do not retain jurisdiction.

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