ILANA PERETZ VS. RUDRANI K. BELNEKAR, M.D. (L-0144-15, MIDDLESEX 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NOT FOR PUBLICATION WITHOUT THE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 binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4953-17T1

ILANA PERETZ, as Administrator

of the Estate of AVIV PERETZ,

ILANA PERETZ and MEIR PERETZ,

as Administrators Ad Prosequendum

for the Estate of AVIV PERETZ,

and MEIR PERETZ, individually,

Plaintiffs-Appellants/

Cross-Respondents,

v.

RUDRANI K. BELNEKAR, M.D.

and CENTRAL JERSEY EMERGENCY

MEDICINE ASSOCIATES, PC,

Defendants-Respondents/

Cross-Appellants,

and

ALYSSA LICATA, R.N.,

CENTRASTATE HEALTHCARE

SYSTEM, d/b/a CENTRASTATE

MEDICAL CENTER, and

DONNA DOLCEMASCOLO, R.N.,

Defendants-Respondents.

Argued January 28, 2020 – Decided May 15, 2020

Before Judges Yannotti, Currier, and Firko.

On appeal from the Superior Court of New Jersey, Law

Division, Middlesex County, Docket No. L-0144-15.

David A. Mazie argued the cause for appellants/cross-

respondents (Mazie Slater Katz & Freeman, LLC,

attorneys; David A. Mazie, David M. Freeman, and

David M. Estes, on the briefs).

Robert A. Giannone argued the cause for

respondents/cross-appellants Rudrani K. Belnekar,

M.D. and Central Jersey Emergency Medicine

Associates, PC (Ronan, Tuzzio & Giannone, attorneys;

Robert A. Giannone, of counsel and on the briefs).

Richard J. Mirra argued the cause for respondents

Alyssa Licata, R.N., Centrastate Healthcare System,

d/b/a Centrastate Medical Center and Donna

Dolcemascolo, R.N. (Hoagland, Longo, Moran, Dunst

& Doukas, LLP, attorneys; Thomas B. Leyhane, of

counsel; Richard J. Mirra, on the brief).

PER CURIAM

In this tragic case, arising out of the death of their son Aviv1 following an

allergic reaction, plaintiffs Ilana and Meir Peretz appeal from the denial of their

1

As plaintiffs share the same last name, we refer to them individually by their

first names for clarity and collectively as "plaintiffs."

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motion for new trial. 2 In their cross-appeal, defendants contend the trial court

erred by barring the admission of certain evidence. After a careful review of the

record in light of the arguments advanced on appeal and the applicable principles

of law, we affirm on the appeal and dismiss the cross-appeal.

I.

We derive the facts from the testimony presented at trial. At the age of

three months, Aviv was diagnosed with a dairy allergy, resulting in "allergic

episodes" two to three times a year. He also had a history of asthma.

Although Aviv was prescribed an EpiPen 3 and possessed one, neither he

nor any family member had ever used an EpiPen to treat his allergic reactions.

Instead, Aviv always went to a hospital for treatment. The family lived four

miles from CentraState Medical Center (CentraState) and Ilana estimated that

Aviv was treated there at least ten times for allergic reactions.

On June 3, 2014, Aviv was seventeen years old and resided with Ilana and

Meir in Manalapan. After having dinner at home with his parents and brother,

2

Ilana and Meir are Aviv's guardians ad litem and the administrators of his

estate. Meir also asserts an individual claim for his emotional distress.

3

An EpiPen is a disposable, pre-filled automatic injection device that delivers

the drug epinephrine for the emergency treatment of a severe allergic reaction.

An EpiPen contains a single 0.3 mg dose of epinephrine.

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Aviv ate several bites of a cookie. When he started to feel his throat tingle, he

read the box and discovered there were dairy products in the cookie.

Within several minutes, Meir and Aviv headed to the hospital. Before

they left, Ilana gave Aviv his EpiPen and Aviv took Benadryl. On the way to

CentraState, Meir had to pull his vehicle to the side of the road for Aviv to vomit.

Meir did not observe any other symptoms and he stated Aviv told him he only

had the tingling in his throat. Meir estimated it took them ten minutes to get to

the hospital that night.

Meir dropped Aviv at the emergency department entrance and then parked

his car. When Meir entered the hospital, he caught up with Aviv who was

walking with a nurse to a room in the acute care portion of the emergency

department.

At his deposition, Meir stated he and Aviv were sitting in the room and

nobody came in to administer any treatment. Meir stated Aviv was "slowly . . .

[having] difficulty breathing" and Meir thought his condition was getting worse.

Meir testified that after Aviv told him he could not breathe, Meir started

screaming for someone to help. He said they were still alone in the room when

he saw Aviv lay back down on the bed and turn blue. Meir did not recall

anything after that other than being escorted out of the room by a nurse. He

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called Ilana and told her to come to the hospital. Later, a doctor told the family

that Aviv was "very, very sick" and they were transferring him to St. Peter's

Hospital University Hospital.

According to the CentraState medical records, Aviv entered the

emergency room at 9:39 p.m. He told the triage nurse he had consumed a cookie

containing dairy thirty minutes before his arrival at the hospital. He informed

the nurse he had a dairy allergy and asthma and he had not used his EpiPen.

Aviv was taken to "the resuscitate room" by 9:42 p.m.

Defendants Donna Dolcemascolo, R.N. and Alyssa Licata, R.N. were the

registered nurses assigned to Aviv's room. The nurses placed an IV and drew

blood before defendant Rudrani Belnekar, M.D.4 came into the room at 9:43

p.m. The doctor and nurses knew about Aviv's dairy allergy and history of

asthma from his intake records. Aviv told Belnekar "he had a sensation of his

throat closing" and "he felt short of breath." Aviv's speech was "clear," but he

"appeared to be anxious."

According to Belnekar, she ordered albuterol, solu-medrol, and

epinephrine at 9:45 p.m. Albuterol is used to treat asthma by alleviating

4

Belnekar was an employee of defendant Central Jersey Emergency Medicine

Associates, PC.

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wheezing and bronchial constriction. Solu-medrol is a steroid used to reduce

inflammation. Epinephrine is administered to reverse the symptoms of

anaphylaxis – a severe allergic reaction. The epinephrine was injected

subcutaneously into Aviv's skin in the area of the deltoid (the shoulder muscle)

at 9:45 p.m.

The parties disagree about how much epinephrine was administered to

Aviv. The standard of care requires a dosage of 0.3 mg of epinephrine. The

medical records reflect that Belnekar ordered 0.03 mg of epinephrine but Aviv

was given 0.3 mg of epinephrine. Belnekar said the entry of 0.03 mg was a

clerical error. Dolcemascolo testified that Belnekar gave a verbal order of 0.3

mg of epinephrine and that is what she administered to Aviv. Licata confirmed

she witnessed Dolcemascolo give 0.3 mg.

At approximately 10:03 p.m.,5 Aviv suffered a seizure. During the

seizure, Aviv stopped breathing, his "color changed to blue," he was

5

The parties dispute the timing of the seizure. Plaintiffs' pediatric emergency

medicine expert, Karen Santucci, testified: "It is a little bit difficult to s ay from

the documentation. But I believe it was about 22:02, 22:03." Belnekar,

Dolcemascolo, and Licata recalled the seizure occurring two minutes after the

epinephrine was administered.

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unresponsive, and his oxygen saturation began to drop. Respiratory and

anesthesiology specialties were paged.

Belnekar testified she needed to establish an airway to give Aviv assisted

breathing and oxygen. However, because Aviv's jaw was clenched, Belnekar

had difficulty opening it and it took her some time. Once Belnekar got Aviv's

jaw open, she placed an oropharyngeal airway – a curved tube – down Aviv's

throat, and began to bag 6 him, allowing air to enter his lungs. Belnekar stated

the oxygen saturation level rose, indicating Aviv was moving air in and out of

his lungs. The chart reflects Aviv was given Ativan – an anti-seizure medication

– at 10:04 p.m.

An anesthesiologist arrived to intubate Aviv because he was still

unresponsive and could not maintain his airway on his own. During the

intubation process, Aviv went into cardiac arrest. At 10:12 p.m., a code7 was

called for the cardiac arrest. Aviv was in cardiac arrest for thirteen minutes until

6

"Bagging" was described as the procedure where healthcare personnel use an

ambu-bag, which is a mask attached to a reservoir of air. A doctor or nurse

squeezes the bag to force air into the lungs of a patient who is not able to inhale

on their own. The bag is connected to oxygen to increase the oxygenation of

the blood supply.

7

A "code" is a term used for a patient in respiratory or cardiovascular collapse.

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he was resuscitated by advanced cardiac life support. During that time, Aviv

was deprived of oxygen. He received several additional dosages of

epinephrine.8

Once Aviv was stabilized, the decision was made to transfer him to St

Peter's for more specialized care. Licata needed to speak to both the nurse who

would be accompanying Aviv, and the staff at St. Peter's to provide all of the

information regarding Aviv's condition and care.

Because the doctor and two nurses had been with Aviv continuously since

his arrival in the emergency department, Licata realized there was "nothing" in

Aviv's chart. She stated she had to "recap" everything that had occurred as the

chart would accompany Aviv to St. Peter's. Licata finished updating Aviv's

chart and gave it to the transfer nurse at 10:54 p.m. Belnekar prepared a

summary of the events as well. Both Belnekar and Licata stated the times

entered in the chart were not exact, and they gave the times "to their best of their

recollection."

Due to the lack of oxygen during the cardiac arrest, Aviv suffered a

permanent brain injury, leaving him in a vegetative state. He was treated at St.

8

Epinephrine is administered during a code to jumpstart the heart.

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Peter's from June 3, 2014 until he was transferred to Voorhees Pediatric Facility

on November 3, 2014.

While Aviv was at St. Peter's, Ilana came every day and helped the staff

change and bathe him. Meir visited Aviv every day from June to August 2014

and then every other day starting in September 2014.

After Aviv was transferred to Voorhees, Ilana and Meir took turns visiting

their son each day. Ilana assisted Aviv's nurses in caring for him and

accompanied him to doctors' appointments. Aviv passed away on June 5, 2017.

II.

In January 2015, plaintiffs instituted suit against Belnekar and Licata,

alleging claims of negligence in their provision of medical care to Aviv.

CentraState was also named as a defendant under the theories of respondent

superior and agency. A second amended complaint added an emotional distress

claim for Meir individually. Defendants Central Jersey Emergency Medicine

Associates and Dolcemascolo were named in a third amended complaint. After

Aviv's death, plaintiffs amended the complaint a fourth time, adding Ilana and

Meir as the administrators of the estate and asserting claims of wrongful death

and survivorship.

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III.

A. Trial

The case was tried before a jury, between January 29, 2018 and February

15, 2018. Prior to the opening statements, plaintiffs' counsel moved to bar

defendants from "blaming" Aviv and his parents for not using the EpiPen before

he went to the hospital on June 3, 2014. Defendants contended the nonuse of

the EpiPen was relevant to and necessary for the jury's consideration of the issue

of proximate cause. They asserted Aviv's dairy allergy was a pre-existing

condition and the jury would hear expert testimony from all parties on the

importance of the early administration of an EpiPen to an anaphylactic patient.

The trial judge noted the motion had only been filed the previous day, and

he had not heard any evidence yet, therefore he lacked any context in which he

could make an appropriate ruling. He advised that if an objection was made as

the trial progressed, he would make his ruling. In the meantime, the judge

instructed defendants they could not argue that Aviv or his parents bore any fault

for the events.

On the same date, plaintiffs objected to the introduction of certain

documents. After arguments on the issue over several days, the judge sustained

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the objection. The barring of the admission of these documents is the subject of

defendants' cross-appeal.

B. Plaintiffs' Case – Witness Testimony

We briefly summarize other testimony that is relevant to the issues

presented on appeal.

Karen Santucci, M.D. testified as plaintiffs' expert in pediatric emergency

medicine. She reviewed with the jury the medical records of Aviv's treatment

at CentraState on June 3, 2014, noting the medical personnel recognized Aviv

was having a severe allergic reaction – he was anaphylactic.

Santucci testified that the standard of care required Belnekar to administer

0.3 mg of epinephrine intramuscularly into Aviv's lateral thigh. She explained

that the quickest absorption of the epinephrine occurs with its injection into a

"large muscle belly" – the lateral thigh.

Therefore, she opined that Belnekar deviated from the standard of care

when she ordered the injection of epinephrine "subcutaneously, into the skin in

the area of the deltoid." Santucci stated an injection of epinephrine into the skin

took much longer for the medication to build up in the body's vascular system

and was therefore less effective than if injected into a muscle.

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Santucci opined that if Aviv was given the proper dosage of epinephrine

to the lateral thigh it would have "reversed [his] signs and symptoms of

anaphylaxis . . . ." She stated that generally the effects of the medication can be

seen within a minute or two.

Santucci further opined that the standard of care required Belnekar to give

Aviv a second dose of epinephrine between five to fifteen minutes after the first

injection. If the symptoms did not abate, a third dose was required to be given

five minutes after the second. She stated that Aviv was not given a second dose

of epinephrine until 10:15 p.m., a half hour after the first dose and after he had

the seizure.

Despite Aviv's nonuse of the EpiPen, Santucci testified there was "ample

opportunity to give the medication appropriately and for the medication to

reverse the signs and symptoms of anaphylaxis and save his life." During cross-

examination, Santucci agreed with the importance of the speed in administering

the drug. We note the following colloquy:

Q: The most important step to take in the treatment of

an allergic reaction is the administration of

epinephrine?

A: That's correct.

Q: Agreed? And the prompt and rapid treatment with

an EpiPen is paramount --

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A: Correct

Q: -- very important?

A: That's correct.

....

Q: And the failure to inject epinephrine promptly has

been identified as the most important factor

contributing to death in patients with this disorder,

correct?

A: That's correct.

....

Q: And it's also true that patients with -- or the fact that

Aviv also had asthma, that put him into an even higher

risk for severe anaphylaxis and a potential fatality, did

it not?

A: That's correct.

Q: You agree that because of all of those reasons and

your responses to those questions, what you want is the

use of an EpiPen within the first [thirty] minutes of the

reaction to whatever the allergen is, correct?

A: What I want is the use of epinephrine appropriately

as soon as possible. Correct.

Q: And that is why EpiPens are dispensed, so they can

use it as soon as possible after contact with the allergen,

correct?

A: Correct.

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....

Q: And you would agree, would you not, that if

epinephrine was administered while Aviv was still at

home, it's most likely that the outcome would have been

much better? You'd agree to that?

A: I think if the epinephrine had been administered,

there is a good chance he would -- well, you always still

come to the hospital after the administration of

epinephrine. But I think -- I think the outcome would

have been better. Yes.

Joyce Foresman-Capuzzi, R.N. testified "as an expert in nursing care in

the emergency department." She opined that Aviv "was in the thro[es] of

anaphylaxis when he walked into the [CentraState] emergency department" and

that "time [was] of the essence," because the nurses were aware he had not used

his EpiPen.

Capuzzi agreed with Santucci that the standard of care for a patient in

anaphylaxis was the administration of 0.3 mg of epinephrine intramuscularly to

the side of the thigh. Capuzzi concluded that an incorrect dose of epinephrine

was given to Aviv and it was delivered in an improper manner. The expert

further opined that Dolcemascolo breached the standard of care by not

questioning Belnekar's order to inject the drug subcutaneously into the deltoid.

She stated the nurses also should have advised Belnekar to give a second dose

of epinephrine when five minutes had passed without any change in Aviv's

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condition. Capuzzi said Licata breached the standard of care when she

documented the epinephrine dose as 0.03 mg if Aviv was given the proper 0.3

mg dosage.

Capuzzi conceded during cross-examination that Licata changed the chart

when she was preparing it for transfer to reflect that Aviv was given 0.3 mg of

epinephrine. She also agreed that Dolcemascolo testified she administered 0.3

mg. Capuzzi also confirmed it was not unusual in a crisis situation to find time

discrepancies in a medical chart. Because the nurses' first priority is caring for

the patient, they often go back and make estimations in the chart of when events

occurred.

As discussed above, Ilana testified about what occurred before Aviv and

Meir left for CentraState on June 3, 2014 and described her time with and

observations of Aviv following his transfer to the two other facilities. During

Ilana's testimony, plaintiffs' counsel sought to introduce two photographs and a

video of Aviv taken during his stays at St. Peter's and Voorhees. Counsel

proffered the photos to establish damages for Meir's emotional distress and

Aviv's pain and suffering. Defendants' objection was sustained because the trial

court did not find the photographs and video were relevant during Ilana's

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testimony. The judge found it appropriate to reintroduce the video and

photographs during Meir's testimony.

Plaintiffs' counsel also inquired of Ilana whether she noticed Aviv

responding to her voice or whether there was any interaction with him when he

was in St. Peter's or at the Voorhees facility. Defendants objected, arguing that

it was improper lay opinion testimony. They contended expert testimony was

required to inform the jury whether Aviv was "medically capable of

experiencing pain or showing a reaction to activities that were taking place in

his [hospital] room." The trial judge sustained the objection, finding it was

improper as it lacked the support of expert testimony. He described the

proffered testimony as "emotional speculation." In addition, the testimony was

barred under N.J.R.E. 403 as it was more prejudicial than probative.

On cross-examination, defendants questioned Ilana about Aviv's dairy

allergy, his visits to various hospitals to treat the allergic reactions, and his

EpiPen. Ilana was questioned specifically about an allergic reaction Aviv had

at a relative's home in Brooklyn, New York; a reaction in 2004 when the family

took Aviv to CentraState; an episode in 2009 when Aviv was taken to

CentraState after the family had taken him to the doctor's office; and allergic

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reactions in March and September 2010, October 2011, October 2012, and May

2013 – for which Aviv was treated at CentraState.

Ilana could not remember specific details of most of the allergic episodes.

She did not know if Aviv had his EpiPen with him on the prior occasions. She

did not know if Aviv or any family member ever used the EpiPen following any

of the allergic reactions. Ilana did not recall ever being instructed by hospital

staff to either call 9-1-1 or to use an EpiPen upon experiencing any symptom of

the dairy allergy.

Plaintiffs' counsel objected to defendants' line of questioning, arguing the

circumstances of Aviv's other allergic reactions were irrelevant. The trial court

overruled the objections, finding the questioning was relevant to the issue of

proximate cause. Plaintiffs' counsel asserted this was not a Scafidi9 case because

defendants had not provided any expert testimony as to an allocation of fault

between a pre-existing condition and any negligence of defendants.

Plaintiffs also presented Paul Greenberger, M.D. as an expert in allergy-

immunology to testify as to the effects of treatment of severe allergic reactions

and anaphylaxis. He opined epinephrine should be injected intramuscularly into

9

Scafidi v. Seiler, 119 N.J. 93 (1990).

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the front side of the thigh because it is absorbed into the body's bloodstream

more effectively than if the injection is given under the skin.

The expert noted the differing notations in the chart regarding the dosage

of epinephrine given to Aviv – 0.03 or 0.3 mg. If Aviv was only given 0.03 mg

of epinephrine, Greenberger stated that dosage would not have any effect

because it was one-tenth the recommended dose of 0.3 mg. He testified that if

Aviv was administered 0.3 mg of epinephrine intramuscularly into his thigh at

9:45 p.m., it would have helped his breathing and improved his condition

overall. He also opined that if Aviv had received a second dose of epinephrine

five minutes after the first, it would have reversed his symptoms, stopped the

reaction, prevented the seizure and Aviv would be alive.

Although Greenberger testified it would have been beneficial for Aviv to

use his EpiPen, he opined it would not have changed the outcome because Aviv

was not administered the required dosage of 0.3 mg of epinephrine

intramuscularly at 9:45 p.m. and at 9:50 p.m. The expert described Aviv as

"treatable" and "savable" when he presented to the emergency department.

During cross-examination, Greenberger agreed the use of the EpiPen

would not only have been helpful but would have stopped the allergic reaction.

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He further stated the recommendation is for a person to use an EpiPen

immediately upon the start of symptoms.

The expert further conceded that Aviv's nonuse of the EpiPen resulted in

a worsening of his condition over the thirty minutes between the ingestion of

the cookie and his arrival at the hospital. The doctor agreed the nonuse of the

EpiPen increased Aviv's risk of harm. He also confirmed that the failure to give

epinephrine as soon as symptoms appear is identified as the most important

factor contributing to death from anaphylaxis.

Defense counsel also discussed the medical chart with Greenberger. The

expert agreed Aviv was seen by Belnekar and the two nurses within a few

minutes of his arrival at the emergency department. Greenberger stated the chart

did not reflect that Aviv was in the acute care room for a half hour before any

medical staff attended to him.

On February 6, 2018, the ninth day of trial, just prior to plaintiffs' final

witness, plaintiffs' counsel made a request for the court to give the jury a limiting

instruction concerning the narrow purpose for which the jury could consider the

nonuse of the EpiPen. He also requested the court prohibit defendants from any

further discussion or questioning of Aviv's history of allergic reactions as it was

prejudicial and cumulative.

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Defense counsel responded that plaintiffs' counsel had asked Ilana and

other witnesses about the prior episodes of allergic reactions and anaphyl axis.

They agreed they could not assert any negligence on the part of Aviv or Meir

with respect to Aviv's ultimate injuries and death. However, because Meir had

an individual claim for his emotional distress, the nonuse of the EpiPen could

be relevant if Meir had been instructed to take certain actions and failed to do

so. They argued that Meir's "conduct in contributing to his own damages is

relevant." The judge declined to issue the proposed limiting instruction at that

time, finding it was too broad and not warranted at the particular point in the

trial.

Meir was the final witness to testify in plaintiffs' case-in-chief. As stated

above, Meir recounted the events at his home prior to leaving for CentraState,

the drive to the hospital, and his observations of Aviv's care and treatment at the

hospital. Meir stated he could not stop thinking about Aviv turning blue and

appearing as if he was "taking [his] last breath or two or three." Meir also stated:

"I have no excitement. I am numb, numb inside. There is nothing inside of me

that can let me feel any better or look in the future and say this is what I want.

There is nothing."

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Meir testified he sought counselling with a therapist in January 2016 to

discuss what he witnessed on June 3, 2014. However, despite the counselling,

Meir said he could not "forget that night" and that the images would "haunt

[him] until the day [he] die[d]."

During cross-examination, Meir stated he was seeking to recover damages

for emotional distress because the CentraState staff did not treat Aviv with

urgency. He conceded he had previously stated in his deposition that no one

had treated Aviv for thirty minutes. After listening to the testimony during trial,

Meir stated he now realized Aviv was treated within several minutes of arriving

at the hospital. Meir did not recall seeing Aviv get any injections and, therefore,

he did not know the dosage of the medications or how the medication was given.

Plaintiffs' case also included readings of portions of the depositions of

Belnekar, Licata, Dolcemascolo, and nurse anesthetist Tom Westerman who

intubated Aviv after his seizure at CentraState.

Following the completion of the presentation of evidence in plaintiffs'

case, defendants moved to dismiss Meir's emotional distress claim. Defendants

argued the claim was not established under Frame v. Kothari 10 because Meir did

not witness the alleged malpractice of Aviv not receiving the appropriate dose

10

Frame v. Kothari, 115 N.J. 638 (1989).

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of epinephrine in the correct location. Instead, Meir's emotional distress claim

was premised on his recollection that no one attended to Aviv for thirty minutes

after their arrival in the emergency department and there was a lack of urgency.

Plaintiffs opposed the motion, contending Meir witnessed the malpractice

because he was with Aviv the entire time in the emergency department and he

saw that Aviv was not getting the medication he needed to save his life. In

addition, Meir connected the malpractice to Aviv's ultimate injury because he

witnessed him unable to breathe. The judge requested briefing on the issue and

stated he would rule on the motion after a review of the briefs and applicable

case law.

After his review, the judge granted defendants' motion. In his reasoning,

the trial judge referred to Frame and Gendek v. Poblete, 139 N.J. 291 (1995),

noting the four factors needed to establish an emotional distress claim in a

medical malpractice setting.

The judge cited Meir's testimony in which he stated his emotional distress

was based on the lack of urgency in the emergency department and that he felt

Aviv was not treated properly. The judge noted Meir had not seen Aviv receive

the injection of epinephrine and therefore did not know if it was the correct

dosage or given in the proper part of the body. The judge found Meir's grief

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was a generalized grief to be expected after the loss of a loved one, not the

emotional distress "associated with the lost chance of survival caused by any of

the [d]efendants' negligence." Because Meir had not established an emotional

distress arising out of medical negligence that he observed, the judge dismissed

the claim.

C. Defendants' Case – Witness Testimony

Belnekar recalled getting a phone call from a nurse informing her there

was a seventeen-year-old patient with an allergic reaction in the emergency

department. She stated she was in Aviv's room within a minute of receiving the

call. After her initial assessment of Aviv, Belnekar went to the medication room

directly outside Aviv's room and gave the order to the nurse for epinephrine,

solumedrol, albuterol, and pepcid. She stated the nurse was already collecting

the medications and immediately left with the epinephrine. Belnekar stated she

did not tell the nurse how to administer the epinephrine because the standard at

CentraState was to inject it subcutaneously. Belnekar sat at the computer to put

in her orders. The order for epinephrine was timed in the computer at 9:49 p.m.

Belnekar could see into Aviv's room from her position at the computer.

Belnekar's verbal order to the nurse was 0.3 mg – the standard dose of

epinephrine for anaphylaxis and allergic reactions. In discussing the notation of

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0.03 mg dosage of epinephrine in the chart, Belnekar stated it was a mistake;

she clicked on the wrong entry in the drop-down menu as she was entering her

orders into the chart. She advised the epinephrine had already been administered

before she completed the chart. In addition, she stated that under the portion of

the chart entitled "Medication given," it noted "Epinephrine, 0.3 milligram[s],

subcutaneous, right deltoid."

Belnekar disagreed that the standard of care in 2014 required the

administration of epinephrine intramuscularly, explaining there was "no

consensus" about how epinephrine should be administered. Because Aviv's

blood pressure and perfusion were good, Belnekar stated the medication would

be absorbed and start working.

However, Belnekar described that "within two minutes of Epinephrine

administration, . . . Aviv . . . started having seizures." She described the

measures she took to establish an airway. After she intubated and bagged him,

Aviv's color returned, and his oxygen saturation levels rose.

Because the seizure occurred within two minutes of the first dose of

epinephrine, Belnekar told the jury there was no indication to give Aviv a second

dose. The purpose of epinephrine is to increase the blood pressure and open the

airway. Belnekar explained both purposes were accomplished because Aviv's

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blood pressure was already high (170/107) and bagging him increased his

oxygen levels. She stated a second dose of epinephrine at that time would be

"overdosing him" and "dangerous."

Belnekar further explained that when epinephrine is given

intramuscularly, it peaks at a certain level and then goes down. So it has to be

given more frequently. In contrast, according to Belnekar, if epinephrine is

given subcutaneously, there is a constant supply of the medication to have a

sustained effect. Because it remains longer in the vascular system, the dosage

does not have to be repeated as frequently as if administered intramuscularly.

Thomas Rebbecchi, M.D. testified as an expert in emergency room care.

The doctor referred to the triage note that Aviv presented in the emergency

department with wheezing, he was sweating and appeared anxious. Aviv also

told the staff he was short of breath. Although Aviv did not mention it, the staff

later learned he had vomited en route to the hospital. Given this description of

symptoms, Rebbecchi stated Aviv was "in the middle of a severe allergic

reaction" or anaphylaxis. He concurred that "epinephrine is the drug of choice,"

and "[t]he earlier a patient [receives] it, the better . . . ." However, he did not

know if an earlier dose of epinephrine would have been effective. He continued,

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25

explaining there are "lots of things going on in the body" during an allergic

reaction and epinephrine is not always 100% effective.

Rebbecchi opined that the standard of care in 2014 was "[e]xactly what

[was done] at CentraState" – the administration of epinephrine and the other

medications. The standard of care did not dictate by which route the epinephrine

had to be given – both intramuscular and subcutaneous administrations were

acceptable.

In Rebbecchi's opinion, Belnekar complied with the accepted standards of

care in her treatment of Aviv. He said the medical staff immediately treated

Aviv and reacted correctly when his condition worsened. He did not "see any

lapse of time." Further, Rebbecchi opined that additional doses of epinephrine

would not have made a difference because the first dose of epinephrine and the

other "rescue medications" were not effective. A subsequent dose would not

have changed Aviv's deteriorating condition requiring an active airway

management. The doctor opined that the eventual outcome would not have

changed even if epinephrine was given intramuscularly or if Aviv had received

multiple doses.

When asked if the outcome would have changed if Aviv had received

epinephrine in the first thirty minutes after eating the cookie, Rebbecchi

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26

responded: "I don't know. What we know about epinephrine is, that it interrupts

that cascade of events that's happening; and we know that the earlier, the better.

If he had gotten it, I don't know. If it would have changed the outcome, it could

have; it's impossible to know." He explained it was impossible to know because

the reaction of a person to an allergen is difficult to predict. He stated that when

the onset of symptoms from a food allergy is rapid, the consequences are more

severe. In addition, the first dose of epinephrine given in the emergency

department did not improve Aviv's symptoms and condition.

Jody Tversky, M.D. testified as an expert in "anaphylaxis, the progression

of anaphylaxis, and causation with respect to Aviv Peretz's particular

anaphylaxis." Tversky told the jury that Aviv had a "severe, robust and very

difficult-to-treat" allergy to milk. Therefore, he had a higher risk of having a

more severe reaction to any product with dairy. The doctor stated the most

important factor for a good outcome is the speed at which epinephrine is

delivered.

Tversky also agreed that because of Aviv's history, the nonuse of an

EpiPen, and the progression of his symptoms from the time he ate the cookie to

his arrival at the hospital, he was at a greater risk than the average patient for

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27

having a poor outcome. Having asthma combined with a severe food allergy put

Aviv at the greatest risk of having a very poor outcome.

The expert described anaphylaxis as "a runaway train," "a horse that gets

released out of the barn," and "[o]nce that horse is out of the barn, it's really hard

to get him back." The "only chance you have is to not let [the horse] out of the

barn in the first place. And the only thing that can do that is a quick, swift

delivery of epinephrine."

Because Aviv did not get epinephrine for at least thirty minutes after he

ate the cookie, Tversky opined that nothing else could have been done for Aviv

to change the outcome that evening. He advised that the "impact of a second or

third dose greatly depends on the timing of the first dose in relation to the onset

of symptoms." Therefore, he opined that "[a]fter [Aviv's] arrival to the

emergency department, I do not believe with any degree of medical certainty

that anything else would have changed the outcome of th[e] progression" of

Aviv's anaphylaxis.

Nurse Kimberly Mikula was presented and qualified as an expert on the

standard of care for an emergency room nurse. At the start of the trial, plaintiffs

had presented a motion in limine to bar Mikula's testimony; the motion was

denied without prejudice.

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Mikula stated that the standard dose of epinephrine is 0.3 mg administered

subcutaneously, and the doctor would instruct the nurse as to the specific

medication, the dosage and the route by which to give it. She opined that

Dolcemascolo and Licata did not deviate from accepted standards of care in: 1)

"the speed with which they handled Aviv Peretz on June 3, 2014 when he

arrived" in the emergency department; and 2) their communications with

Belnekar about the dosage of epinephrine, or whether additional epinephrine

should be given.

At the conclusion of Mikula's testimony, plaintiffs moved to strike it,

asserting she did not give a consensus opinion but only a personal opinion based

on her experience working in the emergency departments of four hospitals.

Defendants opposed the application, stating Mikula relied on her personal and

professional experience. However, after defense counsel finished his comments,

he moved on to other motions made by plaintiffs' counsel, specifically their

request for a ruling that the facts here did not support a Scafidi charge.

Thereafter, counsel and the court discussed the Scafidi issue and the scheduling

for the next day. There was no ruling on the Mikula motion.

The final witnesses were nurses Dolcemascolo and Licata who testified

regarding the events of June 3, 2014. As we have referred to portions of their

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testimony in our recitation of the facts, we need not repeat it here except for a

few pertinent additions.

Dolcemascolo's testimony was consistent with that given by Belnekar.

She stated the standard dosage and route of epinephrine was 0.3 mg

subcutaneously into the deltoid muscle. That was the only concentration in a

vial that was available in CentraState's emergency department. 11 Dolcemascolo

stated she had never given a 0.03 mg dose of epinephrine in her sixteen years

working at CentraState.

After Belnekar gave her the verbal order of "0.3 [mg] sub-q,"

Dolcemascolo repeated the order out loud, grabbed the various medications and

administered the epinephrine. She recalled that Belnekar was out of the room

no longer than thirty seconds, entering the orders at the computer station just

adjacent to Aviv's room. She stated further that at least one of the three medical

professionals was in the room at all times.

Licata explained that Aviv's chart was not done in real time because she

and Dolcemascolo were taking care of him. She said her first entry was at 10:31

p.m., after the seizure, anesthesia, and the code. At that point, she had to recap

11

Both defendant nurses testified that a 0.03 mg dosage of epinephrine was kept

in the code cart and was used only on a patient in a cardiac or respiratory distress

situation – when a patient is pulseless. It is used to restart the heart.

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30

what had happened. She also testified she saw Dolcemascolo administer the 0.3

mg dosage of epinephrine.

All of the witnesses were questioned about certain articles in medical

literature. In addition, the timeline of treatment and the timed entries in the

medical chart were explored with the experts and medical professionals.

D. The Scafidi Motion

As stated, plaintiffs' counsel objected to the inclusion of a Scafidi charge.

Counsel asserted defendants had the burden under Scafidi to apportion a

percentage of damages attributable to the pre-existing condition and the medical

professionals' negligence. Because there was no defense medical expert

testimony that apportioned the damages in specific percentages, plaintiffs

contended defendants had not met their burden.

Defendants responded that model jury charge 5.50E12 – pre-existing

condition – was exactly on point with the circumstances presented here. They

asserted that if the jury found plaintiffs would have suffered the same injuries

even if defendants did not deviate from accepted standards of medical care, then

defendants were not liable.

12

Model Jury Charges (Civil), 5.50E, "Pre-Existing Condition – Increased

Risk/Loss of Chance – Proximate Cause" (approved Dec. 2002; revised Feb.

2004).

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31

In ruling that the Scafidi charge was applicable, the judge conducted a

thorough review of the applicable case law. He noted Greenberger's testimony

– plaintiffs' expert – that not using the EpiPen worsened Aviv's anaphylaxis

during the thirty minutes between the ingestion of the cookie and his arrival at

CentraState. Greenberger also stated the non-use of the EpiPen increased the

risk of harm.

The judge determined Aviv had three pre-existing conditions: the milk

allergy, asthma, and anaphylaxis. Although he agreed that experts present

testimony in other types of cases – particularly cancer cases – in terms of

percentages, the judge noted there is statistical evidence in that field of medicine

that enables experts to give that testimony. The judge concluded that neither

Scafidi nor any subsequent case law required an expert to express the lost chance

of recovery in specific percentages. Although the experts here had argued

respectively that Aviv was either savable or he was not, nevertheless there was

evidence of pre-existing conditions, requiring and supporting a Scafidi charge.

E. The Jury Charge

We discuss the portions of the jury charge pertinent to the issue on appeal.

In explaining the parties' respective burdens of proof, the judge stated:

Here, the plaintiff, the Estate of Aviv Peretz, has

the burden of establishing by a preponderance [of the]

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32

evidence, all of the facts necessary to prove that the

doctor and the nurses were negligent. That they

deviated from the applicable standard of care that

applied to . . . the doctor and [to] the nurses. And that

any deviation increased the risk of harm posed by

Aviv's pre-existing condition.

Here, they have to prove that . . . was a substantial

factor in producing the ultimate harm or injury . . . .

[H]ere the defendants, Dr. Belnekar, Nurse

Licata and Nurse Dolcemascolo, have a burden. In that

if you find that the plaintiff has proven that any of the

defendants deviated from accepted standards of

practice. And that th[e] deviation increased the risk of

harm and was a substantial factor.

Then such defendant or defendants have the

burden of proof to separate those injuries that . . . Aviv

would have suffered anyway, even with proper

treatment from those injuries that may have resulted

from any negligence by any of the defendants.

The judge also provided the jury with the following limiting instruction

as requested by plaintiffs. He stated:

Here, I want to give you what we call a limiting

instruction. You have heard testimony regarding Aviv

Peretz having an EpiPen in his possession on the date

in question. And that he did not use it. Nor did his

parents use it on Aviv.

I instruct you that the fact that the EpiPen was not

used is not evidence to be considered to determine fault

against any of the plaintiffs.

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33

The defendants [do] not assert that Aviv Peretz

or his parents were negligent in any way. And you will

not be asked to decide any such claim.

The evidence that you have heard regarding the

nonuse of the EpiPen, is to be considered if you find

that one or more of the defendants [was] negligent.

And then on the issue of whether the nonuse of the

EpiPen was a factor or cause of the damage to Aviv

Peretz.

In turning to proximate cause, the judge charged model jury charge 5.50E,

modifying it to the facts as follows:

In this case, the concept of . . . proximate cause

is . . . tailored to the fact that here, in this case, Aviv

had a preexisting condition which by itself had a risk of

causing him harm. The harm that he ultimately

experienced in this case.

However, the plaintiff . . . the Estate of Aviv

Peretz, contends that Aviv lost the chance of a better

outcome because [of] the defendants' deviation from

accepted standards of medical and nursing practice.

Here, Aviv had [a] severe allergic reaction,

[a]sthma and anaphylaxis. However, . . . plaintiffs

assert that Aviv was nevertheless treatable. And that the

defendants . . . negligently treated him causing his

injuries and death.

If you determine that any defendant deviated

from accepted standards of medical practice or nursing

practice, then you must consider whether the plaintiff

has proven that the deviation increased the risk of harm

posed by the plaintiff's preexisting condition.

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34

You must then consider whether the plaintiff has

proven that the increased risk of harm was a substantial

factor in producing the ultimate harm or injury.

If the deviation was only remotely or

insignificantly related to the ultimate harm or injury,

then the deviation does not constitute a substantial

factor.

However, such defendant or defendants'

deviation need not . . . be the only cause or even a

primary cause of an injury for the deviation to be a

substantial factor in causing -- in producing the ultimate

harm or injury.

If under all the circumstances here, in the

emergency room -- emergency medical treatment of

Aviv Peretz, you find that Aviv may have suffered

[less] injuries if the defendants -- if a defendant or

defendants did not deviate from the accepted standards

of medical or nursing practice, then such defendant or

defendants are liable for the plaintiff's increased

injuries.

On the other hand, if you find that Aviv would

have suffered the same injuries even if a defendant or

defendants . . . did not deviate from accepted standards

of medical practice, then such defendants are not liable

to the plaintiff.

If you find that the plaintiff has proven that a

defendant or defendants deviated from accepted

standards of medical or nursing practice, and that the

deviation increased the risk of harm posed by Aviv's

preexisting condition, and was a substantial factor in

producing the ultimate harm or injury, the plaintiff is

not required to quantify or put a percentage on the

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35

extent to which the defendant[s'] deviation added to

Aviv's final injuries.

In cases where a defendant or defendants'

deviation accelerated or worsened the plaintiff's

preexisting condition, such defendant or defendants are

responsible for all of the plaintiff's injuries unless . . .

such defendant or defendants are able [to] reasonabl[y]

apportion the . . . damages.

If the injuries can be so apportioned, then such

defendant or defendants are only responsible for the

amount of the ultimate harm caused by the deviation

attributable to them.

For example, if the defendant or defendants claim

that Aviv had a risk of injury and/or death when he

arrived at CentraState Medical Center because he was

suffering from a severe allergic reaction, asthma and

anaphylaxis. And that he had not used an EpiPen.

And if such defendant or defendants can prove

that an apportionment can be reasonably made,

separating those injuries that Aviv would have suffered

anyway, even with timely treatment from the injuries

that the plaintiff suffered due to the delay in treatment,

then . . . such defendant or defendants are only liable

for that portion or percentage of the injuries that a

defendant proves is related to the delay in the treatment

of Aviv's original condition.

On the other hand, if you find that the defendant

has not met the defendant's burden of proving that the

plaintiff's injury can be reasonably apportioned, then

such defendant or defendants are responsible for all of

the plaintiff's harm or injury.

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36

When you are determining the amount of

damages to be awarded . . . to the plaintiff, you should

award damages for all of the plaintiff's injuries. Your

award should not be reduced by the percentages. The

adjustment in damages which may be required, will be

performed by the [c]ourt.

F. Jury Verdict

On February 15, 2018, the jury returned a verdict in favor of plaintiffs and

against Belnekar, finding she deviated from accepted standards of medical

practice and the deviation had increased the risk of harm posed by Aviv's pre -

existing conditions. The jury attributed eighty percent of Aviv's ultimate injury

to his pre-existing condition and twenty percent to Belnekar's negligence. It

concluded Belnekar was acting as an agent or employee of CentraState on June

3, 2014.13 The jury found Licata and Dolcemascolo were not negligent.

In addressing damages, the jury awarded $200,000 for Aviv's "disability,

impairment and loss of enjoyment of life," $50,000 for Aviv's pain and suffering,

and $500,000 for Meir and Ilana's "loss of care, companionship, comfort,

support, advice and guidance." After molding the verdict, the court entered

13

As Belnekar was an employee of Central Jersey Emergency Medicine,

defendants stipulated that any verdict against Belnekar would be molded to

include a judgment against Central Jersey.

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37

judgment in favor of plaintiffs of $466,547.04, plus taxed costs and post-

judgment interest. 14

IV. Plaintiffs' Motion for a New Trial

In March 2018, plaintiffs moved for a new trial. They argued the trial

court erred: 1) in "allowing defendants to repeatedly stress that Aviv and his

parents . . . had not used the EpiPen prior to arriving at the hospital . . . without

giving sufficient limiting instructions as required by Ostrowski v. Azzara"15; 2)

in allowing "the issues of proximate cause and damages [to be] improperly

influenced by the testimony of . . . Tversky, who should not have been allowed

to testify because his opinions lacked any scientific basis and [were] net

opinions"; 3) in "allowing [the] jury to apportion between Aviv's pre-existing

condition and his ultimate injury pursuant to Scafidi v. Seiler"; 4) in dismissing

Meir's emotional distress claim; and 5) in acting in a manner that "improperly

influenced the jury to favor the defense." Plaintiffs asked for a new trial on the

issues related to Dolcemascolo and Licata, and for an additur or new trial on

damages.

14

The molded verdict included the medical bills of $1,563,028.95 and pre -

judgment interest.

15

Ostrowski v. Azzara, 111 N.J. 429 (1988).

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38

The trial judge denied the motion for new trial on March 9, 2018. In his

oral statement of reasons presented on June 6, 2018, the judge reiterated his

decision to permit the testimony regarding the nonuse of the EpiPen. He stated,

"the failure to use the EpiPen . . . was entirely relevant on the issue of what

percentage of Aviv's ultimate harm was caused by his pre-existing condition

upon arrival in the emergency room [thirty] minutes after ingesting dairy and

not having administered [e]pinephrine." The judge noted the expert testimony

of Santucci, Greenberger, and Tversky, who all testified that the speed

epinephrine is given "is the most important factor in determining outcome."

Therefore, the non-use of the EpiPen was an issue of proximate cause to be

determined by a jury.

The judge rejected plaintiffs' argument regarding defense expert Tversky.

As he had concluded during the trial, the judge found Tversky's testimony was

not a net opinion because he testified "within a reasonable degree of medical

probability" and his opinions were properly supported.

Next, the trial judge addressed plaintiffs' argument that it was error to

allow the jury to apportion between Aviv's pre-existing condition and his

ultimate injury. The judge found, as he did during trial, that there was no case

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39

law to support plaintiffs' argument and it was the jury's province to make a

determination on the issue, using the evidence presented to them.

The trial judge declined to order a new trial regarding defendants Licata

and Dolcemascolo. He found no reason to reconsider his decision permitting

the testimony of defense expert Mikula, finding she was "properly qualified as

an expert in emergency room nursing . . . basing [her] expert opinion on many

years of specialized training."

The judge also rejected plaintiffs' application regarding the dismissal of

Meir's emotional distress claim. He stated the claim was not supported under

the applicable case law as discussed during trial. Meir could not equate his

observations of Aviv turning blue or seizing with any negligence on defendants'

part. Meir also had not supported his claim of the required severe emotional

distress.

Plaintiffs requested the court grant an additur, asserting the $50,000 award

for pain and suffering shocked the conscience. The judge disagreed, finding

there was testimony before the jury that Aviv was conscious for only one to two

minutes after the epinephrine was given. He stated the award was not "grossly

inadequate or shocking." In considering the $200,000 award for disability,

impairment, and loss of enjoyment of life, the judge found the award was not

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40

grossly inadequate, and did not shock the conscience because the events of June

3, 2014 happened "within a very short time period" before Aviv fell into a

vegetative state.

Finally, the judge discussed at length plaintiffs' contentions that he

"improperly influenced the jury." He concluded the arguments lacked merit.

V. The Appeal

Before this court, plaintiffs allege judicial error in: 1) allowing the jury to

apportion the damages between Aviv's pre-existing condition and his ultimate

injury; 2) dismissing Meir's emotional distress claim; 3) allowing defendants to

emphasize the non-use of the EpiPen; 4) improperly barring photographs, video,

and testimony; 5) not barring the testimony of Licata and Dolcemascolo's expert

witness as a net opinion; and 6) not granting an additur or a new trial.

In a cross-appeal, Belnekar and Central Jersey Emergency Medicine

Associates contend the trial court erred by improperly barring the admission of

certain evidence at trial. Defendants condition their cross-appeal on whether

this court finds merit in plaintiffs' arguments and grants an additur or a remand

for a new trial.

A trial judge "shall grant" a motion for a new trial "if, having given due

regard to the opportunity of the jury to pass upon the credibility of the witnesses,

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41

it clearly and convincingly appears that there was a miscarriage of justice under

the law." R. 4:49-1(a). "This standard applies whether the motion is based upon

a contention that the verdict was against the weight of the evidence, or is based

upon a contention that the judge's initial trial rulings resulted in prejudice to a

party." Hill v. N.J. Dep't of Corr., 342 N.J. Super. 273, 302 (App. Div. 2001)

(citing Crawn v. Campo, 136 N.J. 494, 510-12 (1994)). "On appeal, we consider

essentially the same standard." Ibid. (citing R. 2:10-1). If there was legal error

during the trial, we also accord deference to the trial judge's evaluation of the

prejudice that resulted, and whether that prejudice contributed to an unjust

result. Ibid. (citing Crawn, 136 N.J. at 512).

Plaintiffs contend several errors require a new trial. We consider each

issue in turn.

A. The Scafidi argument

Plaintiffs steadfastly maintained throughout the trial that a Scafidi

apportionment charge was not warranted; they asserted Scafidi was inapplicable

to the facts here. On appeal, plaintiffs refine their argument, contending that

because defendants' experts failed to provide the jury with a specific percentage

apportionment between Aviv's pre-existing condition and defendants'

negligence, defendants must be responsible for all of plaintiffs' damages.

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42

Conversely, defendants contend New Jersey case law does not require them to

provide the jury with an exact percentage and that they apportioned Aviv's

damages through expert testimony that opined Aviv's "[risk of] lost chance [was]

at 100%."

Generally, traditional negligence elements apply in a medical malpractice

case. Verdicchio v. Ricca, 179 N.J. 1, 23 (2004). A plaintiff must prove through

expert testimony: 1) the applicable standard of care, 2) a deviation from the

standard, and 3) that the deviation proximately caused the injury. Ibid. (citation

omitted).

In a malpractice case in which the plaintiff's injury can be traced to a

single cause, the traditional "but for" test, i.e., assessing whether the injury

would not have occurred but for the wrongful act, is applied to determine

causation. Ibid. (citation omitted). However, the "but for" test can be unsuitable

where two or more actions "operate to bring about a certain result and 'any one

of them operating alone would be sufficient.'" Id. at 24 (citation omitted). In

those circumstances, our Supreme Court has adopted an alternate "substantial

factor" test. Ibid. (citation omitted). Under this analysis, the fact-finder must

decide whether the "defendant's deviation . . . increased a patient's risk of harm

or diminished [the] patient's chance of survival and whether such increased risk

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43

was a substantial factor in producing the ultimate harm." Ibid. (citation

omitted).

In Scafidi, the Court applied this test to circumstances where a patient was

treated for a pre-existing condition,16 and a physician's negligence allegedly

worsened that condition. 119 N.J. at 108. The Court recognized that, in such a

situation, it may be difficult to identify and prove the precise injury caused

solely by the physician. Ibid. As the Court explained:

Because this modified standard of proximate causation

is limited to that class of cases in which a defendant's

negligence combines with a preexistent condition to

cause harm . . . the jury is first asked to verify, as a

matter of reasonable medical probability, that the

deviation . . . increased the risk of harm from the

preexistent condition. Assuming that the jury

determines that the deviation increased the risk of harm

from the preexistent condition, we [then] use the

"substantial factor" test of causation . . . .

[Id. at 108-09 (citations omitted).]

Thus, a typical Scafidi situation involves a plaintiff who sought treatment

for a pre-existing condition, and a defendant health professional negligently

16

"A preexistent condition or disease is one that has become sufficiently

associated with a plaintiff prior to the defendant's negligent conduct . . . ."

Anderson v. Picciotti, 144 N.J. 195, 211 (1996) (citation omitted).

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44

either failed to diagnose or improperly treated the condition, causing it to

worsen. See Komlodi v. Picciano, 217 N.J. 387, 415 (2014).

Once a jury determines that a defendant's negligence was a "substantial

contributing cause of plaintiff's injury, plaintiff is entitled to recover damages ."

Koseoglu v. Wry, 431 N.J. Super. 140, 158 (App. Div. 2013) (citing Verdicchio,

179 N.J. at 25). However, a defendant is only responsible for the portion of the

harm attributed to his or her negligent conduct. Ibid. (citation omitted). "The

defendant bears the burden of demonstrating apportionment of damages between

his conduct and any pre-existing condition. If a defendant fails to present proof

supporting apportionment, the jury is 'entitled . . . to hold him 100% liable for

the [plaintiff]'s losses.'" Ibid. (alterations in original) (citations omitted). We

stated further that "the nature and quantum of evidence . . . need not be ample

or precise." Ibid. (citation omitted).

A "defendant need not produce proofs 'amounting to scientific or

mathematical precision as to how much each [causal factor] contributed in

percentage points to [the] ultimate death.'" Ibid. (alterations in original)

(quoting Poliseno v. Gen. Motors Corp., 328 N.J. Super. 41, 60 (App. Div.

2000)). However, although a defendant has the "burden of segregating

recoverable damages from those solely incident to the preexisting disease ,"

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45

Anderson, 144 N.J. at 212 (quoting Fosgate v. Corona, 66 N.J. 268, 273 (1974)),

the Court has recognized the increase in risk resulting from a negligent act may

be "unquantifiable." Ibid. (quoting Evers v. Dollinger, 95 N.J. 399, 406 (1984)).

Here, all of the experts agreed Aviv presented to the emergency

department with the pre-existing conditions of an allergic reaction or

anaphylaxis and asthma. Moreover, the experts agreed Aviv's pre-existing

condition was a factor in assessing his lost chance for recovery. Therefore,

plaintiffs' argument during the trial that Scafidi was inapplicable lacked merit.

We turn then to a consideration of whether defendants met their burden in

apportioning the damages to support a Scafidi charge. Defendants' expert,

Tversky, opined that Aviv was at a higher risk of having a poor outcome because

of his severe dairy allergy and asthma. Aviv's medical history, combined with

the nonuse of his EpiPen upon eating the cookie, as well as the progression of

his symptoms between the ingestion of the dairy and his arrival at the hospital,

placed him at a greater risk than the average patient for a poor outcome.

Essentially, defendants argued Aviv's pre-existing conditions and the failure to

use the EpiPen were 100% of the cause of his ultimate injury.

Plaintiffs' experts conceded that the prompt injection of an EpiPen when

symptoms first begin is essential to treatment of an allergic reaction and, in this

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46

situation, its non-use increased Aviv's risk of harm. Greenberger agreed that the

failure to give epinephrine as soon as symptoms appear has been identified in

medical literature as the most important factor contributing to death from

anaphylaxis.

We disagree with plaintiffs' assertion that defendants failed to sustain their

burden of apportionment. Defendants presented expert testimony to the jury,

attributing 100% of the damages to Aviv's pre-existing conditions and nonuse

of the EpiPen. The jury was free to accept or reject that testimony. The jury's

determination that only 80% of Aviv's ultimate harm was caused by his pre-

existing condition did not signify defendants had not met their burden of

apportionment. To the contrary, the verdict reflected the jury's careful

consideration of the evidence and its understanding of the court's instructions.

As we stated in Koseoglu,

[T]he jury took "a more moderate position than

propounded by either of the parties," and chose to

"accept or reject so much of each side's evidence as it

found credible or not credible." The jury's partial

rejection of defendant's evidence does not mean

defendant failed to meet her burden of proof on the

issue of apportionment. Rather, it reflects the jury's

diligent response to the court's proper instructions to

discern whether the ultimate outcome would have

occurred had defendant not been negligent. The jury

exercised its responsibility to consider all evidence, fix

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credibility, accept or reject the testimony presented,

and decide all material issues of fact.

[431 N.J. Super. at 163 (citation omitted).]

We are satisfied the trial judge properly instructed the jury on proximate

cause. The judge tracked model jury charge 5.50E, modifying it to the facts of

this case as required. Defendants presented expert testimony allocating the risk

of harm entirely to Aviv's pre-existing condition and nonuse of the EpiPen,

therefore, sustaining their burden of apportionment. The jury followed the

instructions and made a well-reasoned decision, supported by the evidence, on

the proximate cause issue.

B. References to Prior Allergic Reactions

Plaintiffs argue defendants improperly questioned Ilana and Meir on

Aviv's prior allergic episodes because those episodes were irrelevant to the issue

of proximate cause. They contend the questions "tainted the jury's evaluation

of [plaintiffs'] damages." Defendants assert Aviv's nonuse of his EpiPen was

relevant to the issue of proximate cause because it diminished his chance of

survival. Furthermore, defendants contend they did not blame Aviv for not

using his EpiPen, and the jury was not asked to determine any comparative

negligence on the part of plaintiffs.

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As stated, prior to opening statements, plaintiffs' counsel moved to

prevent defendants from "blaming" Aviv and his parents for not using the

EpiPen before he went to the hospital on June 3, 2014. The judge instructed

defendants they could not argue that Aviv or his parents bore any fault for the

events.

When defense counsel questioned Ilana about Aviv's prior allergic

episodes, plaintiffs objected again, asserting any testimony regarding prior

reactions was irrelevant. The judge permitted the inquiry, finding it was relevant

to the issue of proximate cause.

On appeal, citing Ostrowski, plaintiffs contend the judge erred in

permitting the testimony. We disagree, finding Ostrowski distinguishable from

the facts here. The Ostrowski Court stated: "The pre-treatment health habits of

a patient are not to be considered as evidence of fault that would have otherwise

been pled in bar to a claim of injury due to the professional misconduct of a

health professional." 111 N.J. at 444.

The testimony regarding the nonuse of the EpiPen was not offered as

evidence of fault under comparative negligence principles. The judge gave the

jury a limiting instruction with guidance as to how they could consider the

testimony. In addition, defense counsel told the jury in closing arguments

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defendants were not claiming Aviv, or his parents, were at fault for the tragic

circumstances.

The early administration of epinephrine to an anaphylactic patient was the

central issue in this case. Plaintiffs contended defendants were negligent in

failing to administer the proper dosage in the proper location and in failing to

give Aviv additional doses when his symptoms did not abate. As we have

already noted, all of the experts agreed the early administration of epinephrine

was the most important factor in treating Aviv's allergic reaction.

It was undisputed that Aviv did not use his EpiPen on June 3, 2014. The

information that Aviv ingested a dairy product to which he was allergic and that

he had not used his EpiPen in the thirty minutes prior to his arrival at the

emergency department were crucial facts upon which defendants determined

their course of treatment. Belnekar ordered the epinephrine and the nurses

injected Aviv with it within minutes of seeing him in the critical care room.

In addition, evidence of the nonuse of the EpiPen was relevant to the issue

of proximate cause. Tversky found the nonuse, in combination with other pre-

existing conditions, affected Aviv's survivability. The information was required

for the experts and jury to assess how much harm defendants' malpractice caused

Aviv in comparison to his pre-existing conditions.

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We also discern no error in the questioning regarding Aviv's prior allergic

episodes. Again, the information demonstrating the severity of Aviv's allergy

and the family's routine in responding to the reactions was necessary to

defendants' course of treatment and the experts' assessment of the June 3, 2014

episode.

C. The Trial Judge’s Evidential Rulings

Plaintiffs also contend a new trial is required because the trial judge erred

in barring certain photographic, video, and testimonial "evidence of Aviv's

injuries during the three-year period from the time of [defendants'] negligence

until his death." Plaintiffs sought introduction of this evidence during Ilana's

direct testimony.

After defendants objected to the photographs and video of Aviv taken

after his transfer from CentraState, plaintiffs asserted "the photographs and

video were also relevant to Meir['s] . . . Portee17 claim." As a result, the trial

judge advised plaintiffs' counsel he could re-introduce the items during Meir's

testimony, and he would rule on the admissibility of the evidence at that time.

However, plaintiffs did not re-introduce the exhibits during Meir's testimony.

17

Portee v. Jaffee, 84 N.J. 88 (1980).

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Therefore, there is no merit to their argument that the evidence was improperly

barred.

Ilana described for the jury how she cared for Aviv while he was at St.

Peter's and later at the Voorhees long-term care facility. Plaintiffs' counsel also

sought to elicit testimony from Ilana regarding her observations of Aviv and her

belief that Aviv was experiencing pain and discomfort in his vegetative state.

Defendants objected, arguing that Ilana's testimony "call[ed] for medical

opinion on whether or not Aviv was . . . medically capable of experiencing pain

or showing a reaction to activities that were taking place in his [hospital] room."

Because plaintiffs did not have an expert to establish Aviv had any level of

consciousness to feel pain or suffering, the judge determined Ilana's lay

testimony was "emotional speculation" and inadmissible.

As a lay witness, Ilana was permitted to testify about her observations.

See Rule 701. However, plaintiffs sought to introduce Ilana's interpretations of

her observations. She believed Aviv was "upset," "restless," and showed

"resistance" during her interactions with him. But plaintiffs did not have an

expert to connect Ilana's testimony with any medical evidence that Aviv was

suffering or experiencing pain or that he was even medically capable of suffering

or feeling pain.

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As a layperson, Ilana did not have the "sufficient expertise" to conclude

Aviv could experience feelings such as being "upset" or "restless." Such

testimony required an expert with "specialized knowledge." Rule 702.

Therefore, Ilana's testimony was speculative and was properly barred by the trial

court as inadmissible under N.J.R.E. 701 and 403.

Furthermore, a jury may only consider damages for conscious pain and

suffering. See Lewis v. Read, 80 N.J. Super. 148, 174 (App. Div. 1963) (finding

"conscious suffering is the only proper basis for pain and suffering"); accord

Eyoma v. Falco, 247 N.J. Super. 435, 450-51 (App. Div. 1991). Here, Ilana

sought to express her belief that Aviv was experiencing pain after he was in a

vegetative state. As this testimony is speculative, it cannot be used to assess

damages for Aviv's pain and suffering. See Model Jury Charges (Civil),

1.12(O), "Damages" (approved Nov. 1998).

D. Meir's Emotional Distress Claim

Plaintiffs contend it was error to dismiss Meir's emotional distress claim.

We disagree.

In Frame, our Supreme Court established the standard for an indirect claim

for emotional distress in a medical malpractice action. 115 N.J. at 643-50. The

Frame standard modified the bystander liability principles first articulated in

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Portee. The Frame Court stated: "In an appropriate case, if a family member

witnesses the physician's malpractice, observes the effect of the malpractice on

the patient, and immediately connects the malpractice with the injury, that may

be sufficient to allow recovery for the family member's emotional distress." 115

N.J. at 649.

We also turn to the Court's guidance provided in Gendek. There, the

plaintiffs filed an action for negligent infliction of emotional distress as a result

of the fatal illness of their infant son, who developed respiratory problems and

stopped breathing the day after his birth. 139 N.J. at 292-93. Although medical

personnel resuscitated him, the child suffered severe brain damage as a result of

the loss of oxygen. Life support was removed forty-five days after birth and the

infant died. Id. at 295. The defendants' motion for summary judgment on the

emotional distress claim was granted. Ibid.

The Court affirmed the grant of summary judgment and reiterated that a

cause of action arises for the negligent infliction of emotional distress where a

person is a direct object of a tortfeasor's negligence and experiences severe

emotional trauma. Id. at 296. It further opined that recovery in medical

malpractice cases is permitted only where the family member witnesses the

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alleged malpractice, observes the effect, and immediately connects the

malpractice with the injury. Id. at 301.

In Gendek, at the crucial times, neither parent observed the alleged

malpractice. When the infant initially stopped breathing, one of the parents was

not even present at the hospital. Id. at 294. The Court found that neither parent

immediately connected the child's respiratory failure with an act of medical

malpractice, or medical malpractice with the need to perform emergency

procedures. Id. at 301-02.

Here, plaintiffs alleged that the act of malpractice was initially defendants'

failure to administer the correct dosage of epinephrine, and to administer it in

the proper location, then the failure to give additional doses of the drug. In his

testimony, Meir described defendants' malpractice as Belnekar's and the nurses'

lack of urgency in attending to Aviv. He stated that no one cared for Aviv for

more than thirty minutes after they arrived at CentraState. Furthermore, Meir

admitted he did not witness Aviv receiving the epinephrine injection. Therefore,

under Gendek and Frame, Meir did not witness the acts of malpractice plaintiffs

alleged against defendants. His emotional distress claim was properly

dismissed.

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E. The Judge Erred in Permitting the Expert Testimony of Nurse Mikula

Plaintiffs assert that Mikula's opinion on the standard of care applicable

to emergency room nurses treating anaphylactic patients was "based solely on

her own personal experience" with "no external objective standard" and,

therefore, the opinion should have been barred as net opinion. Again, we

disagree.

N.J.R.E. 702 and 703 frame the analysis for determining the admissibility

of expert testimony. Rule 702 requires three standards to be met for the

admission of expert testimony:

"(1) the intended testimony must concern a subject

matter that is beyond the ken of the average juror; (2)

the field testified to must be at a state of the art such

that an expert's testimony could be sufficiently reliable;

and (3) the witness must have sufficient expertise to

offer the intended testimony."

[Creanga v. Jardal, 185 N.J. 345, 355 (2005) (quoting

Kemp ex rel. Wright v. State, 174 N.J. 412, 424

(2002)).]

Rule 703 instructs that expert opinions must be "grounded in 'facts or data

derived from (1) the expert's personal observations, or (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. '"

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Townsend v. Pierre, 221 N.J. 36, 53 (2015) (quoting Polzo v. Cty. of Essex, 196

N.J. 569, 583 (2008)).

A net opinion is an expert's conclusion that is not supported by factual

evidence or other data. Experts must "give the why and wherefore" to support

their opinions, "rather than . . . mere conclusion[s]." Id. at 54 (quoting Borough

of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013)). An expert

must "explain a causal connection between the act or incident complained of and

the injury or damage[s] allegedly resulting therefrom." Buckelew v. Grossbard,

87 N.J. 512, 524 (1981). Expert testimony that is "based merely on unfounded

speculation and unqualified possibilities" should be barred. Vuocolo v.

Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 300 (App. Div. 1990).

However, an expert may ground an opinion in his or her personal

experience and training. See State v. Townsend, 186 N.J. 473, 495 (2006);

Rosenberg v. Tavorath, 352 N.J. Super. 385, 403 (App. Div. 2002) ("Evidential

support for an expert opinion is not limited to treatises or any type of

documentary support, but may include what the witness has learned from

personal experience."). Additionally, an opinion is not rendered a net opinion

simply because it may be subject to attack on cross-examination for not

including other meaningful considerations. Rosenberg, 352 N.J. Super. at 402

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(citing Rubanick v. Witco Chem. Corp., 242 N.J. Super. 36, 55 (App. Div.

1990)); see also Glowacki v. Underwood Mem'l Hosp., 270 N.J. Super. 1, 16-

17 (App. Div. 1994) (declining to strike an expert's testimony as a net opinion

as "[a]ny shortcoming in his method of analysis was explored and it was for the

jury to determine the weight his opinion should receive").

Mikula is a certified emergency room nurse. She described her

educational background and the specific training she has "deal[ing] with patients

with severe allergic reactions or anaphylaxis." Mikula testified about the

multiple emergency rooms she worked in during her more than twenty-five years

treating patients as an emergency room nurse. During that time, Mikula became

"familiar" with the "standards of care that are applicable to an emergency room

nurse[] caring for a patient with anaphylaxis . . . ." After establishing she had

sufficient credentials to testify as an expert in her field of practice, Mikula

offered her opinion as to the standard of care based on her experience as an

emergency room nurse in multiple hospitals.

During cross-examination, plaintiffs' counsel asked Mikula what she

relied on in forming her opinions. She responded that her opinions were based

on her professional experience as a nurse in several emergency departments.

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We are satisfied Mikula did not offer an impermissible net opinion. She

grounded her opinions on her professional experience as an emergency room

nurse in multiple hospitals, as well as her education and training. It is

permissible for an expert to base her opinion on her training and professional

experience. See Townsend, 186 N.J. at 495; Rosenberg, 352 N.J. Super. at 403

(finding an expert’s "fail[ure] to cite any treatises, articles, protocols or the like

in support of his opinion [did not] render it a net opinion"). Plaintiffs' counsel

properly probed Mikula's credentials and the basis for her opinion during cross-

examination. But her opinions were supported by her education, training, and

experience and, therefore, were properly admitted. See Glowacki, 270 N.J.

Super. at 16-17.

F. The Damage Award

Plaintiffs contend the damage award of $50,000 for Aviv's pain and

suffering and $200,000 for his disability, impairment, and loss of enjoyment

"shocks the conscience."

Our review of a damages award is the same as the trial court's. Cuevas v.

Wentworth Grp., 226 N.J. 480, 501 (2016). We do not disturb the jury's award

"unless it is 'so disproportionate to the injury and resulting disability as to shock

the conscience and [convince the court] that to sustain the award would be

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manifestly unjust.'" Ming Yu He v. Miller, 207 N.J. 230, 249 (2011) (alteration

in original) (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 604 (1977)). "A

jury's verdict, including an award of damages, is cloaked with a 'presumption of

correctness.'" Cuevas, 226 N.J. at 501 (quoting Baxter, 74 N.J. at 598). That

presumption is not overcome unless the party "clearly and convincingly"

establishes that the award represents a "miscarriage of justice." Ibid. (quoting

Baxter, 74 N.J. at 596); see also R. 4:49-1(a).

However, in reviewing the trial court's determination, we "must pay some

deference to [the] trial judge's 'feel of the case.'" Ibid. (quoting Johnson v.

Scaccetti, 192 N.J. 256, 282 (2007)).

In its survival action, plaintiffs were entitled to damages for the pain and

suffering Aviv experienced while conscious. N.J.S.A. 2A:15-3; Smith v.

Whitaker, 160 N.J. 221, 236 (1999); Carey v. Lovett, 132 N.J. 44, 67 (1993).

Here, defendants presented evidence that Aviv was only conscious for one to

two minutes after receiving the initial dose of epinephrine.

As to Aviv's loss of enjoyment of life, plaintiffs described Aviv having

missed his graduation from high school, senior prom, and beginning college.

We are not persuaded the $200,000 verdict was "shockingly low." In affording

the required deference to the trial judge's determination, we cannot conclude

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that plaintiffs have "clearly and convincingly" demonstrated a miscarriage of

justice. See Cuevas, 226 N.J. at 501. We see no reason to disturb the damage

award.

In defendants' cross-appeal, they asserted the trial court erred in barring

certain records from admission at trial. However, defendants "conditioned" their

appeal on the grant of an additur or a new trial. Having found no merit in

plaintiffs' appellate arguments, we need not consider the issues raised in the

cross-appeal.

Affirmed on the appeal; the cross-appeal is dismissed.

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