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Joyce Witman, As Administratrix of the Estate of Dawn Witman v. Kennedy Health System/University Medical Center

March 20, 2012

JOYCE WITMAN, AS ADMINISTRATRIX OF THE ESTATE OF DAWN WITMAN, PLAINTIFF-APPELLANT,
v.
KENNEDY HEALTH SYSTEM/UNIVERSITY MEDICAL CENTER, WASHINGTON TOWNSHIP DIVISION, AND STEPHEN SCHULTZ, R.N., DEFENDANTS, AND ROBERT GORDON, M.D., DEFENDANT-RESPONDENT.



On appeal from the Superior Court of New Jersey, Law Division, Gloucester County, Docket No. L-0594-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 28, 2012

Before Judges Carchman, Fisher and Nugent.

Plaintiff commenced this action on behalf of the estate of her daughter, Dawn Witman, claiming defendant Robert Gordon, M.D., among others, failed to accurately diagnose the medical condition that plaintiff claims caused Dawn's death at the age of twenty-eight years. A jury determined that Dr. Gordon deviated from the standard of care but his deviation was not a proximate cause of Dawn's death. Plaintiff appeals, arguing that the trial judge erred in permitting the assistant county medical examiner to express an opinion, which plaintiff claims was a net opinion, on the cause of death, and in admitting evidence of: the death certificate's declaration of the cause of death; Dawn's use of Bextra; and Dawn's alleged consumption of alcohol prior to her death. We find no abuse of the judge's exercise of discretion in ruling on these matters and affirm.

To put plaintiff's arguments in context, we briefly summarize the events preceding and surrounding Dawn's death and the nature of the theories concerning the cause of death that were espoused by the parties at trial.

Over the course of a seven-day trial, the jury heard evidence that, on April 22, 2004, at 10:45 p.m., plaintiff brought her daughter Dawn to the emergency department of Kennedy Memorial Hospital in Washington Township, because of Dawn's complaints, during the prior four days, of shortness of breath, abdominal pain, nausea, diarrhea, vomiting, cough, severe headache and joint pain. There, at Dr. Gordon's directions, Dawn received intravenous fluids and several medications. Dr. Gordon ordered blood studies, a urinalysis, a cardiogram and a chest x-ray. Dawn was sent home from the hospital in the early morning hours of April 23, with the instruction that she follow up with her family doctor within two days.

Dawn was examined by her family doctor, Barclay Wilson, M.D., on Monday, April 26, 2004. According to Dr. Wilson's records, there was some improvement in Dawn's condition since her emergency room visit. She was able to tolerate liquids and had less abdominal pain.

On Saturday, May 1, 2004, Dawn began to feel ill and collapsed at home, where she was pronounced dead at 4:41 p.m. The county medical examiner took custody of Dawn's body. The death certificate signed by Dr. Ian Hood, the Assistant Gloucester County Medical Examiner, declared the immediate cause of death as cardiovascular disease. The death certificate made note of "diabetes mellitus" and "morbid obesity" as "other significant conditions contributing to death but not resulting in [the] underlying cause" of cardiovascular disease. Dr. Hood did not perform an autopsy.

Plaintiff relied on the opinions of three experts, Dr. Kenneth Williams, who specializes in emergency medicine, Dr. John Stern, who specializes in infectious diseases, and Dr. Cyril Wecht, who specializes in pathology, in advancing the theory that, while at the hospital, Dawn had an abdominal infectious process with fulminating diabetic ketoacidosis leading to sepsis, which was not suspected or treated at the hospital and which resulted in a cardiac arrhythmia that caused her death. The defense relied on the opinions of Dr. Glenn Birnbaum, who specializes in emergency medicine, and Dr. Chester R. Smialowicz, who specializes in infectious diseases, in rebutting plaintiff's claim that the cause of death was brought about through sepsis. The defense also subpoenaed Dr. Hood to testify about his findings.

In this appeal, plaintiff argues that the trial judge erred in allowing the jury to hear: (1) what plaintiff claims was the net opinion of Dr. Hood that Dawn's death was caused by cardiovascular disease; (2) testimony that the death certificate declared the cause of death as cardiovascular disease; (3) testimony that Dawn was prescribed and ingested Bextra for approximately eleven months, ending approximately two months prior to her death; and (4) testimony that suggested Dawn consumed alcohol shortly before her death. We reject these arguments.

I DR. HOOD'S TESTIMONY

Plaintiff contends that the trial judge erred in permitting Dr. Hood to testify about the cause of death because, in plaintiff's view, Dr. Hood lacked an appropriate foundation for his opinion. A trial judge's determination to admit expert testimony is reviewed against an abuse of discretion standard. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011).

To be admissible, expert testimony must be offered by one who is "qualified as an expert by knowledge, skill, experience, training, or education" to offer a "scientific, technical, or . . . specialized" opinion that will assist the factfinder. N.J.R.E. 702. The opinion "must be based on facts or data of the type identified by and found acceptable under N.J.R.E. 703." Pomerantz Paper, supra, 207 N.J. at 372. In applying these standards, our courts have recognized that "net opinions" are impermissible. Ibid. (citing Polzo v. Cnty. of Essex, 196 N.J. 569, 583 (2008); Buckelew v. Grossbard, 87 N.J. 512, 524 (1981)). In explaining the net-opinion rule, we have said that "[e]xpert testimony should not be received if it appears the witness is not in possession of such facts as will enable [the expert] to express a reasonably accurate conclusion as distinguished from a mere guess or conjecture." Vuocolo v. Diamond Shamrock Chem. Co., 240 N.J. Super. 289, 299 (App. Div.), certif. denied, 122 N.J. 333 (1990); see also Dawson v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 323 (App. Div.), certif. denied, 146 N.J. 569 (1996). These principles require exclusion of expert testimony when "based merely on unfounded speculation and unqualified possibilities." Vuocolo, supra, 240 N.J. Super. at 300. In other words, to avoid exclusion of an opinion, the expert must "'give the why and wherefore' that supports the opinion, 'rather than a mere conclusion.'" Pomerantz Paper, supra, 207 N.J. at 372 (quoting Jimenez v. GNOC, Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996)). An expert's opinion is not a net opinion, however, simply because the expert has "fail[ed] to account for some particular condition or fact which the adversary considers relevant." Creanga v. Jardal, 185 N.J. 345, 360 (2005) (quoting State v. Freeman, 223 N.J. Super. 92, 116 (App. Div. 1988), certif. denied, 114 N.J. 525 (1989)).

In claiming Dr. Hood provided only a net opinion, plaintiff refers to the fact that an autopsy was not performed and that Dr. Hood relied on a ...


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