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Klinger v. Dardick

Superior Court of New Jersey, Law Division, Essex

February 2, 2018

KLINGER, Plaintiffs,
DARDICK, M.D., Defendants.




         This matter comes before the court on Plaintiffs motion to bar testimony. For the reasons stated herein, Plaintiffs motion to bar testimony is GRANTED in part.


         This motion arises from two consolidated civil actions. (Pl.'s Br. at 8.) On October 3, 2013, Plaintiff Ilene Klinger filed a Complaint in the Superior Court of New Jersey, initiating a Track III medical malpractice action against Michael Dardik, M.D. and Saint Barnabas Medical Center. (Ibid.) An amended complaint was filed on March 31, 2014 to join Livingston Pathology Associates as a defendant. (Ibid.) Ms. Klinger filed a separate Complaint against Jonathan F. Lara, M.D., Marietta Kintiroglou, M.D., Livingston Pathology Associates, and St. Barnabas Medical Center. (Ibid.) An order for consolidation was entered on February 6, 2015. (Id. at 8-9.) During the pendency of this case, Dr. Lara died, and an amended complaint was filed in the second action, naming the Estate of Jonathan F. Lara as a defendant. (Id. at 9.) The events leading up to the filing of these actions are summarized below.

         Ms. Klinger has undergone twice yearly screening for breast cancer since at least December 1998. (Id. at 3.) In May 2009, Ms. Klinger's doctor, Nancy Elliot, M.D., recommended that she undergo genetic testing for mutations to the BRCA genes. (Ibid.) A test, dated May 12, 2009, revealed that Ms. Klinger had a "6174delT mutation" of the BRCA2 gene. (Ibid.) Ms. Klinger's expert, Steven Narod, M.D., a preeminent epidemiologist widely published on breast cancer risk, observed that a 6174delT mutation of the BRCA2 gene indicates "the risk of developing breast cancer for Ms. Klinger is increased beyond that of women in the general population." (Ibid.) However, the specific mutation that Ms. Klinger has "is associated with a cancer risk that is much lower than that of other BRCA2 mutations." (Ibid.) In the absence of prophylactic therapy, the risk that Ms. Klinger would develop breast cancer is 34% through age 70 and 39% through age 80, including consideration of Ms. Klinger's family history of breast cancer. (Ibid.) This results in an annual risk of developing breast cancer of 1.3% per year at the current time, meaning it is not probable that Ms. Klinger would have developed breast cancer in her life. (Id. at 4.)

         After discovery of the BRCA2 gene mutation, Ms. Klinger was counselled regarding her options for risk reduction, which included: prophylactic bilateral mastectomies; chemoprevention with tamoxifen; or enhanced surveillance with mammography, physician visits, and annual MRIs. (Ibid.) Ms. Klinger felt having mastectomies would be drastic, since she did not actually have cancer, so she chose to undergo enhanced surveillance. (Ibid.)

         On October 1, 2012, Ms. Klinger had a bilateral breast MRI, which revealed a ''[l]ow level new enhancing nodule within the left breast.'' (Ibid.) As a result, she had a vacuum-assisted ultrasound-guided left breast biopsy on October 4, 2012 and an MRI-guided needle biopsy of her left breast on December 6, 2012. (Ibid.) The surgical specimen, taken on December 6, was sent to the Department of Pathology at Saint Barnabas Medical Center, where it was interpreted by Defendant Dr. Michael Dardik, who concluded it was cancer. (Id. at 4-5.) At the time of his review, Dr. Dardik was unaware that Ms. Klinger had a BRCA2 gene mutation. (Id. at 5.) Dr. Dardik then showed the specimen to Defendants Dr. Jonathan F. Lara, now deceased, and Dr. Marietta Kintiroglou, who both agreed with Dr. Dardik's diagnosis of invasive ductal carcinoma. (Id. at 5.) On December 10, 2012, Dr. Dardik issued a Surgical Pathology Consultation Report announcing that the biopsy revealed invasive ductal carcinoma. (Ibid.)

         Additional tests were performed on the biopsy sample, reflected in addendums to the pathology report entered by Teresita Redondo, M.D., a Saint Barnabas pathologist, on December 14, 2012. (Ibid.) Dr. Redondo conducted estrogen receptor ("ER") and progesterone receptor ("PR") tests, in order to guide oncologists on how to treat the presumed cancer. (Ibid.) The specimen produced negative ER and PR results, which Dr. Redondo thought unusual because a grade one invasive ductal carcinoma would normally produce positive ER and PR results. (Id. at 5-6.) Due to the unusual results, Dr. Redondo repeated the test, and it produced the same results. (Id. at 6.) Dr. Redondo testified that it was her custom to inform the diagnosing pathologist if she found anything unusual when she did her tests, so the pathologist could take another look. (Ibid.)

         On December 13, 2012, Ms. Klinger met with Dr. Elliott to discuss the cancer diagnosis and her treatment options, and she was advised to undergo bilateral mastectomies. (Ibid.) The surgery was done on January 10, 2013. (Ibid.) After the surgery, Dr. Lara reviewed the mastectomy specimen and again concluded there was cancer. (Ibid.) On January 22, 2013, Ms. Klinger saw Dr. Richard A. Michaelson, a Saint Barnabas oncologist, to determine whether she should have chemotherapy. (Id. at 6-7.) Dr. Michaelson noted the unusual ER and PR negative test results previously observed by Dr. Redondo and asked for the test to be repeated. (Ibid.) The test that Dr. Michaelson ordered confirmed the negative ER and PR test results. (Ibid.) Dr. Michaelson testified that he found the results "unusual" because "the tumor seemed to be not a very aggressive looking tumor under the microscope.'' (Ibid.) Dr. Michaelson recommended "some type of chemo, " but Ms. Klinger wanted a second opinion, which Dr. Michaelson "encouraged . . . [and] [o]ffered to help her arrange." (Ibid.)

         On February 6, 2013, Ms. Klinger went to Memorial Sloan-Kettering ("MSK") for a second opinion. (Ibid.) The MSK pathology department reviewed the biopsy slides from Saint Barnabas and found no evidence of invasive or in situ carcinoma. (Ibid.) Dr. Teresa Ann Gilewski, a MSK oncologist, and Dr. Melissa P. Murray, a MSK pathologist, concluded that Ms. Klinger had microglandular adenosis, which "may be a precursor to the development of cancer" but was not cancer itself. (Id. at 7-8.) MSK did not recommend further treatment. (Id. at 8.)


         A. Preexisting Condition

         1. ...

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