On appeal from Superior Court of New Jersey, Law Division, Bergen County, No. L-2273-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Wefing, Grall and Messano.
Plaintiffs appeal from trial court orders granting summary judgment to defendants Bergen Ob/Gyn Associates ("Bergen"), Quest Diagnostics, Inc. ("Quest"), and Mayo Medical Laboratories ("Mayo"). After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.
Plaintiffs asserted claims of malpractice against these defendants after they learned that their daughter, born in May 2004, was afflicted with Tay-Sachs disease, a fatal neurological condition. Plaintiff Julie Rabinowitz first became pregnant in 2000 and received obstetrical care through Bergen. The first physician she saw at Bergen was Lisa Miller, M.D. Ms. Rabinowitz's 2000 pregnancy ended in a miscarriage. Dr. Miller had advised Ms. Rabinowitz that she was at risk for delivering a child with Tay-Sachs disease in light of her Ashkenazi Jewish ancestry. Dr. Miller recommended that she have a blood test performed to determine if she was, in fact, a carrier. A blood sample was drawn in February 2001, and Bergen forwarded it to Quest who forwarded it in turn to Mayo to conduct a serum hexosaminidase or "HexA" test.*fn1 The results were sent to Quest, which, in turn, returned its report to Bergen in March. The report stated in pertinent part:
The above results can be interpreted as NORMAL.
This means your patient is not a carrier (heterozygote) for Tay-Sachs (hexosaminidase A deficiency) disease by our method. We feel there is little risk of your patient having a baby affected by this disease....
The following statements are provided for your information. The above test results must be correlated with clinical findings to validate the usefulness of additional testing. Rare variants of hexosaminidase deficiency may not give results expected for Tay-Sachs disease. If a Tay-Sachs questionaire [sic] accompanies all samples submitted for carrier or homozygote detection, the possibility of missing these rare forms will be minimized. If the results are not clarified by the following [sic] comments, please contact Mayo Medical Laboratories directly.*fn2
In 2001 Ms. Rabinowitz became pregnant again and decided to seek obstetrical care from another physician. Based upon the report she received after her first pregnancy, she did not have a second HexA test. She was treated by Melissa Weinstein, M.D. and in January 2002 gave birth to a healthy boy. Ms. Rabinowitz became pregnant again and gave birth to a daughter in May 2004. When her daughter was eight months old, she was diagnosed with Tay-Sachs disease. Following that diagnosis, Ms. Rabinowitz came under the care of Robert Wallerstein, M.D., who arranged for another blood test, which, contrary to the first, showed that Ms. Rabinowitz was a carrier for Tay-Sachs disease. A test performed on her husband yielded similar results.
This litigation resulted. Plaintiffs originally named Dr. Miller, the original treating obstetrician, as an additional defendant. Dr. Miller was granted summary judgment in September 2008, and plaintiffs do not contest that on this appeal.
In the course of the litigation, plaintiffs served an expert report from Dr. Wallerstein in which he opined that there were three possible explanations for the difference in the test results: that the specimens used for the first testing had been mislabeled, that a technical error occurred during the testing or interpretive process, or the presence of a biochemical anomaly in Ms. Rabinowitz's blood which interfered with the testing process. Dr. Wallerstein said that if it were the result of mislabeling, it was not possible to identify at which juncture the mistake occurred.
In his report, Dr. Wallerstein explained the testing process used. The sample is first tested to determine the total hexosaminidase activity present in the sample and then the percentage of hexosaminidase A; this is repeated three times. The results reported for Mrs. Rabinowitz were 55%, 61% and 73%. According to the scale used by Mayo, 55% was considered indeterminate, 56%-80% considered normal and less than 50% abnormal. Dr. Wallerstein concluded that the determination that Ms. Rabinowitz was not a carrier for Tay-Sachs was appropriate based upon the test results reported.
He characterized as "unlikely" the possibility of a biological difference in Ms. Rabinowitz's blood sample that resulted in normal enzyme readings while she was, in fact, a carrier. He described the HexA test as "highly accurate with the majority of carriers being readily identified."
He concluded his report in the following manner:
In summary, Ms. Rabinowitz was mis-diagnosed as a non-carrier of Tay Sachs disease. The testing offered was appropriate. The interpretation of the result and actions taken were appropriate. The issue appears to be that the result did not reflect the true carrier status. In my opinion, this is most likely due to a misidentification/ handling error at some point in the process that cannot be identified with the records available. Alternatively, there remains a small possibility that there was a technical error in the laboratory at Mayo Medical Laboratories leading to the mis-diagnosis. Plaintiffs served an additional expert report, prepared by Richard L. Luciani, M.D. Dr. Luciani stated in his report that the initial negative test results reported at the time of Ms. Rabinowitz's first pregnancy, with subsequent positive testing, could not "occur without negligence on the part of either the physician's office where the initial blood was drawn or the laboratory processing of the sample." He listed three possibilities: mislabeling of the sample either at Bergen's office or Quest, Mayo testing the wrong sample and reporting those results as Ms. Rabinowitz's, and Mayo improperly conducting the testing. He noted, however, "It should also be appreciated that a biochemical anomaly of Ms. Rabinowitz' blood sample could also result in an improper test result. As subsequent screening revealed carrier status, this possibility is highly unlikely."
The three defendants all served responding expert reports. Mayo's expert was Hilary Vallance, M.D. Dr. Vallance explained that a false negative report could have occurred if Ms. Rabinowitz's blood carried HexB gene polymorphisms; these, she noted, can increase the percentage of HexA and thus mask carrier status. She considered it probable that Ms. Rabinowitz had this variant but had not seen the results of any testing for it.
Anthony C. Quartell, M.D., was the expert for Bergen. He found no evidence of malpractice on its part, stating, "Tay-Sachs testing, to the best of my knowledge, is highly accurate but not perfect." Quest's expert, Ronald A. Sacher, M.D., expressed the opinion that Quest handled Ms. Rabinowitz's sample according to the "standards of good laboratory practice."
Defendants moved for summary judgment, arguing that plaintiffs had failed to establish that it was more likely than not that fault on their respective parts was a proximate cause of Ms. Rabinowitz giving birth to a child afflicted with Tay-Sachs disease. Plaintiffs opposed these motions, arguing that in the factual complex presented, they were entitled to rely either on res ipsa loquitur or the burden-shifting paradigm employed in Anderson v. Somberg, 67 N.J. 291, cert. denied, 423 U.S. 929, 96 S.Ct. 279, 46 L.Ed. 2d 258 (1975). The trial court disagreed and granted defendants' motions. This appeal followed.
The scope of review of a trial court's grant of summary judgment is the same standard that the trial court uses in deciding the motion. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); Antheunisse v. Tiffany & Co., 229 N.J. Super. 399, 402 (App. Div. 1988), certif. denied, 115 N.J. 59 (1989). The appellate court first looks to whether there was a genuine issue of material fact; if there was not the appellate court then decides if the trial court's ruling on the law was correct. Ibid. Summary judgment should be granted "if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact challenged...." R. 4:46-2(c).
An issue of material fact is genuine if considering the burden of persuasion and deciding all inferences in favor of the non-moving party, the issue would require submission to the fact-finder. Ibid. Bare conclusions from affidavits without factual support do not constitute outstanding questions of material fact. Brae Asset Fund, L.P. v. Newman, 327 N.J. Super. 129, 134 (App. Div. 1999). A factual issue cannot be created by an expert's net opinion alone. Smith v. Estate of Kelly, 343 N.J. Super. 480, 496-97 (App. Div. 2001). The expert opinion must contain evidential support, not just the witness's opinion on the matter. Kaplan v. Skoloff & Wolfe, P.C., 339 N.J. Super. 97, 103 (App. Div. 2001).
Plaintiffs make three contentions on appeal, that under res ipsa loquitur, "as extended by Anderson v. Somberg," defendants had the burden to exculpate themselves, that under the burden shifting alternative liability doctrine, summary judgment was improperly granted, and that the trial court should have granted an extension of the discovery period.
We have recently had occasion to summarize the principles underlying res ipsa loquitur.
To prevail on a claim of negligence, a plaintiff must establish that the defendant breached a duty of reasonable care, which constituted a proximate cause of the plaintiff's injuries. Ordinarily, negligence is a fact which must be proved and which will never be presumed.
The principle of res ipsa loquitur, however, creates an allowable inference of the defendant's want of due care, with respect to an injury-producing occurrence, upon a showing that (a) the occurrence itself ordinarily bespeaks negligence; (b) the instrumentality [causing the injury] was within the defendant's exclusive control; and (c) there is no indication in the circumstances that the injury was the result of the plaintiff's own voluntary act or neglect. The effect of the doctrine is to establish a prima facie case by permitting the jury to infer negligence. ...