On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Mihaela Creanga testified that on September 29, 2000, while stopped at a traffic light in Cherry Hill, she was struck from behind by a van owned by Lucent Technologies and driven by one of its employees; following which, two days later, she went into labor and gave birth to one of her twins, who died almost immediately. She brought suit, claiming that the automobile accident induced her premature labor, causing the death of her child. Her physician, Dr. Faramarz Zarghami, stated that the accident caused the miscarriage. He based that opinion on a differential diagnosis of Mihaela's injury. Defendants successfully moved to preclude the physician's testimony on the basis that it was a "net opinion," an opinion based on bare conclusions untethered to facts. The trial court granted defendants' motion and dismissed the complaint. The Appellate Division affirmed. This Court granted Creangas' petition for certification.
New Jersey Rule of Evidence 702 governs the admission of expert testimony. The dispute in this appeal is whether Dr. Zarghami's expert testimony is sufficiently reliable to be admitted into evidence under the Rule.
HELD: A trial court may admit an expert's differential diagnosis into evidence if the proper diagnostic procedures were followed; Dr. Zarghami's testimony was admissible as a properly conducted differential diagnosis and was improperly excluded from trial.
1. To determine sufficient reliability, we must consider whether differential diagnosis is admissible as a general matter and, then, whether Dr. Zarghami's differential diagnosis is admissible. If so, we then must consider whether the courts below erred when they precluded Dr. Zarghami's opinion as a net opinion. (pp. 10-11)
2. A differential diagnosis is a medical construct for determining which one of two or more diseases or conditions a patient is suffering from, by systematically comparing and contrasting their symptoms. Whereas most physicians use the term to describe the process of determining which of several diseases is causing a patient's symptoms, courts have used the term to describe the process by which causes of the patient's condition are identified. (p. 11)
3. The first step in properly conducting a differential diagnosis is for the expert to rule in all plausible causes for the patient's condition. The issue is which of the competing causes are generally capable of causing the patient's symptoms or mortality. Second, after the expert rules in plausible causes, the expert then must rule out those causes that did not produce the patient's condition, the ruling out based on a continuing examination of the evidence so as to reach a conclusion as to the most likely cause of the findings in a particular case. (pp. 11-12)
4. Differential diagnosis testimony has been permitted in New Jersey in toxic tort cases. Those cases do not suggest that its use is limited to only toxic tort cases. At the federal level, the use of differential diagnosis has been broadly accepted. Several state courts also have accepted differential diagnosis as a reliable form of expert testimony. Because of the widespread acceptance of differential diagnosis in the medical community, the recognition of the technique in state and federal courts, and its compatibility with our rules of evidence and prior case law, we conclude that a trial court may admit an expert's differential diagnosis into evidence. To be admitted, the expert witness must demonstrate that the proper diagnostic procedures were followed. (pp. 13-14)
5. The Appellate Division held that Dr. Zarghami's testimony was a net opinion because his opinion was based solely on his subjective belief. Dr. Zarghami's conclusion was supported by his own records, other hospital records, his patient's past treatment history, and his interview with his patient the day after the miscarriage. His testimony was improperly excluded. (pp. 19-22)
The judgments of the trial court and Appellate Division are REVERSED and the matter is REMANDED to the trial court for reinstatement of the complaint.
CHIEF JUSTICE PORITZ and JUSTICES LONG, LaVECCHIA, ALBIN, WALLACE and RIVERA-SOTO join in JUSTICE ZAZZALI's opinion
The opinion of the court was delivered by: Justice Zazzali
Plaintiff Mihaela Creanga claims that an automobile accident was the proximate cause of her premature labor and the resultant death of one of her twins. In support of her claim, she offered the expert opinion of her treating physician who stated that the accident caused the miscarriage. He based that opinion on a differential diagnosis of plaintiff's injury, that is, he identified the accident as the proximate cause of plaintiff's injury after the elimination of other alternatives. In reaching his conclusion, the physician considered various factors including his treatment of plaintiff before, during, and after the premature labor and plaintiff's medical records.
Prior to trial, defendants filed a motion to preclude the physician's testimony, arguing that it was a "net opinion," which is an opinion based on bare conclusions untethered to facts. The trial court granted defendants' motion and dismissed the complaint. The Appellate Division affirmed. We, however, conclude that an expert opinion derived from a differential diagnosis is admissible under the New Jersey Rules of Evidence. As applied here, the physician's expert testimony was based on a properly conducted differential diagnosis. We also hold that the physician's opinion is not a net opinion, and, therefore, the lower courts improperly excluded his testimony. As a result, we reverse and remand the matter to the trial court for reinstatement of the complaint.
According to plaintiff's deposition testimony, on the morning of September 29, 2000, while operating a car that was stopped at a traffic light on Route 70 in Cherry Hill, she was struck from behind by a van owned by Lucent Technologies and driven by an employee of Lucent. Plaintiff was wearing a seat belt when the accident occurred. She stated that, on impact, "it was like my whole body went up, you know, forward." Plaintiff was thirty-six years old at the time and twenty-four weeks pregnant with twin boys. When her car was struck, she was en route to her job as a medical assistant in the office of Dr. Klessa. After the accident, plaintiff continued on to work. While at work she began feeling some discomfort and was examined by Dr. Klessa who adjusted her neck and checked her vital signs.
Two days after the accident, at about noon on October 1, 2000, plaintiff experienced contractions and vaginal bleeding. Plaintiff believed that she was in labor and, at around 2:00 p.m., she went to the emergency room at Kennedy Memorial Hospital in Stratford. On arrival, plaintiff was treated by a resident doctor who determined that she was in labor and attempted to stop the delivery. That doctor called in her regular physician, Dr. Faramarz Zarghami, to assist in plaintiff's care and treatment. Dr. Zarghami attempted to stop delivery of the twins, but, despite those efforts, plaintiff gave birth to one of the twins, who died almost immediately after delivery. Dr. Zarghami was able to halt delivery of the second baby who subsequently was born healthy. At a postpartum visit, Dr. Zarghami informed plaintiff that he believed that the premature delivery was "from the car accident."
Plaintiff commenced an action against Lucent and the Lucent driver-employee in which she alleged that the accident was the cause of death of the fetus. In preparation for trial, plaintiff conducted a videotape de bene esse deposition of Dr. Zarghami, her treating physician and expert witness. Because Dr. Zarghami's opinion is at the core of both issues in this appeal, we provide a detailed review of his testimony.
At his deposition, Dr. Zarghami testified on direct-examination that plaintiff is "a very healthy person" whom he had seen on multiple occasions in relation to her pregnancy. He examined her on September 27, 2000, two days before the accident, and determined that her condition was normal. More specifically, he stated that at the time of that examination her blood pressure was okay, a urine exam was normal, she had no swelling or edema, her uterus for a single pregnancy should have been 24 for her size, it was 27 sonometers, which is related to the twin pregnancy, I heard the fetal heart tone, and she offered no complaint in terms of contraction or bleeding or discharge.
Two days after the accident, on October 1, 2000, Dr. Zarghami was called to the hospital to assist and care for plaintiff because she was in premature labor. He participated in the delivery of one of the twins who, according to the doctor, was born alive and "probably gasped one or two times and then [stopped] breathing." The other twin remained inside the womb and, after receiving permission ...