TRACEY L. VIZZONI, as Executrix For The Estate Of Judith A. Schrope, Plaintiff-Appellant,
B.M.D., J.D., and ATLOCK FARM, Defendants, and STEFAN LERNER, Defendant-Respondent.
March 28, 2019
appeal from the Superior Court of New Jersey, Law Division,
Somerset County, Docket No. L-0575-15.
Lee Klein argued the cause for appellant (Hobbie, Corrigan
& DeCarlo, PC, attorneys; Jacqueline DeCarlo, of counsel;
Justin Lee Klein, on the briefs).
Rosenberg argued the cause for respondent (Rosenberg Jacobs
Heller & Fleming, PC, attorneys; Sam Rosenberg, of
counsel; Matthew E. Blackman, on the brief).
Hardy & Bacon LLP, attorneys for amici curiae American
Medical Association and Medical Society of New Jersey (Philip
S. Goldberg, on the brief).
Judges Simonelli, Whipple and Firko.
Tracey L. Vizzoni, as executrix for the estate of Judith A.
Schrope, appeals from a May 11, 2018 Law Division order
granting summary judgment and dismissing her negligence
claims against defendant Stefan Lerner, M.D. Tragically,
Lerner's patient, B.M.D.,  struck and killed Judith Schrope
while driving. Plaintiff argues Lerner's negligent
prescription of medication to B.M.D. was the proximate cause
of the fatal crash. For the reasons that follow, we affirm
the order of the trial court.
discern the following facts from the record and view them in
the light most favorable to plaintiff. See Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
On June 17, 2014, at around 9:45 in the morning, B.M.D.,
driving her SUV, struck decedent Schrope as Schrope was
riding her bicycle on the right-hand side of a residential
road. B.M.D. approached Schrope from behind and saw her in
the distance. Visibility was clear and there were no cars
approaching from the other direction. At the scene of the
accident, B.M.D. gave a recorded statement to police. The
officer conducting the interview asked B.M.D. if she was
being treated for any medical conditions, and she responded
"mild depression." She reported to the officer she
had taken Paxil that day and had a glass of wine the prior
evening. There is no evidence in the record that the police
conducted a field sobriety check. The police did not request
a blood draw or an Alcotest. A police report concluded,
"[B.M.D.] made no attempt to move over to the left and
safely pass Mrs. Schrope. [Even though] [t]he width of the
roadway was measured [twenty] feet [nine] inches[, ] which
would have allowed ample space for [B.M.D.] to move over and
safely pass Mrs. Schrope." Despite the fact that Schrope
suffered fatal injuries, B.M.D. was only charged with and
convicted of careless driving, N.J.S.A. 39:4-97, after a
trial in municipal court.
4, 2015, plaintiff filed a wrongful death and survivorship
claim against B.M.D. Through discovery, plaintiff learned
B.M.D. was under the care of psychiatrist Stefan Lerner, M.D,
and plaintiff named him as a defendant in a first amended
complaint. During B.M.D.'s deposition, she was asked
about what medications she took. At the time of the crash,
B.M.D. was prescribed at least six psychiatric medications,
including: (1) duloxetine (Cymbalta); (2) lamotrigine
(Lamictal); (3) lithium carbonate (Lithobid); (4) trazadone;
(5) dexmethylphenidate hydrochloride (Focalin); and (6)
methylphenidate (Concerta). B.M.D. admitted she took
duloxetine, lamotrigine and lithium carbonate on the morning
of the crash. When asked if she took trazodone the night
before the crash, she testified she did not know, and, when
asked if it was possible, she answered "it's
possible." She also consumed some wine the night before.
B.M.D. also testified she did not experience side effects
from her medications except for Focalin.
is a central nervous system stimulant used to treat Attention
Deficit Disorder (ADD) and Attention Deficit Hyperactivity
Disorder (ADHD). B.M.D. admitted Focalin made her "feel
a little speedy" as if she was "on speed." She
initially denied taking Focalin on the day of the crash
because "[i]t had such bad ramifications, I didn't
want to bring it up," but later admitted it was possible
she "took half of the dose I should have."
8, 2014, Lerner mailed B.M.D. a prescription for Concerta
without meeting with her in person. Concerta is also a
central nervous system stimulant. B.M.D. testified she did
not complain to Lerner of any adverse reaction to Focalin,
and Lerner did not document why he wrote her a new
prescription. In her deposition, B.M.D. could not recall
whether she took either one, neither or both Focalin and
Concerta on the morning of the crash.
began working with B.M.D. in 2001. Over the course of
thirteen years, up and until the crash, he wrote her 160
initial prescriptions and over 250 refill prescriptions.
Lerner diagnosed B.M.D. with Major Depressive Disorder, ADD
and panic disorder but not bi-polar disorder, although he
opined she exhibited bi-polar-like symptoms. During her
testimony, B.M.D. exhibited limited knowledge about the
purpose and effect of each drug she was prescribed and
admitted she often altered dosages without consulting Lerner.
She denied Lerner ever warned her against driving after
ingesting her medication. However, Lerner testified he would
have warned her, especially if she felt drowsy or
sometimes missed her appointments with Lerner. Lerner
explained this was problematic because he did not want to
alter B.M.D.'s medication regimen and recognized the
importance of meeting with her in person to determine how she
was responding to the medication. Lerner acknowledged he
sometimes mailed prescriptions to B.M.D. without meeting with
her in person and admitted to mailing her a prescription for
Concerta on June 8, 2014. Prior to the crash, B.M.D.'s
last meeting with Lerner was April 3, 2014.
years before the accident, B.M.D. told Lerner she had panic
attacks that either occurred while she was driving or left
her feeling like she could not drive. She reported
experiencing one panic attack while driving so severe that
she had to pull over. Lerner was aware B.M.D. experienced
panic attacks while driving but was under the impression
"she has [not] had much trouble in that area"
because she continued to drive without incident.
plaintiff's complaint names B.M.D.'s pharmacist as
"John/Jane Doe Doctors/Pharmacists," the record
lacks any mention of who filled B.M.D.'s prescriptions.
Of particular significance is the absence of any record or
testimony about whether B.M.D.'s pharmacist provided
written or oral warnings of the potential side effects of the
medications. No pharmacy records are included in the
moved for summary judgment on March 27, 2018. Lerner argued
he owed no duty of care to Schrope because she was not a
readily identifiable victim. Lerner argued a therapist has no
duty to warn unless he or she knows or should know their
patient intends to harm a readily identifiable victim.
opposed Lerner's motion and submitted the report of two
experts. Robert J. Pandina, Ph.D., opined B.M.D.'s
ability to operate a motor vehicle was impaired when she
struck Schrope. Pandina explained the purpose and possible
side effects of each of the medications B.M.D. was prescribed
a. Duloxetine (Cymbalta) is an anti-depression medication
prescribed for major depression; it has a half-life of
[twelve] to [seventeen] hours, which is relatively long for
such medications. To be effective the medication should be
taken daily and requires a buildup period for efficacy. Given
the long half-life the potential exists for a buildup of the
drug that increases the risk of side effects hence careful
monitoring of the medication is advisable as is close
observation of the patient response to the medication. Side
effects include: fatigue; drowsiness and sedation; double
vision; crossed eyes; blurred vision; dizziness and lack of
coordination; [i]nsomnia; impulsivity; anxiety; vivid dreams
or nightmares; dry mouth, mouth ulcers; memory problems; mood
changes; itchiness; runny nose; cough; and nausea. Use may
also trigger panic attacks. Some patients have reported
experiencing a loss of concentration, even with very small
doses. Women are more likely than men to have side-effects.
b. Lamotrigine (Lamictal) is prescribed for seizure
disorders. On-set of effect ranges from 1.4 to 4.8 hours. It
has a half-life of [twenty-nine] hours, which is relatively
long for such medications. As is the case with [duloxetine
(Cymbalta)] [due to] the long half-life the potential exists
for a buildup of the drug that increases the risk of side
effects hence careful monitoring of the medication is
advisable as is close observation of the patient response to
the medication. Lamotrigine is also an indicated medication
option for the treatment of bipolar disorders. However, many
clinicians also use it in patients with a (unipolar)
depressive disorder who have not responded adequately to
conventional antidepressants. Such usage would be considered
"off label." Side effects are similar to those of
[d]uloxetine (Cymbalta) and include: tremors, dizziness;
tired feeling; blurred vision, double vision; loss of
coordination; sleep problems. Given the risk of side effects
patients should be carefully monitored specifically when the
medication is given along with other anti-depressants.
c. Lithium carbonate (Lithobid) is prescribed principally for
bi-polar depression. It may be used in cases where other
forms of medications are not effective. In some case[s] of
apparent major depression with fewer manic than depressive
symptoms the drug may be used as an adjunctive therapy. Side
effects include loss of balance or coordination, drowsiness
or muscle weakness; hand tremors; confusion; memory problems;
lack of awareness; blurred vision. Prescription of this
medication requires frequent monitoring of blood to assure
levels are within frequent therapeutic limits.
d. Trazadone is a medication used in the treatment of major
depression. It may also be prescribed as a sleep aid. The
medication has a bi-phasic half-life. The first phase ranges
between [three] to [six] hours; subsequent phase range[s]
between [five] and [nine] hours. Initial effectiveness occurs
approximately one hour post ingestion. Side effects include:
drowsiness and sedation; dizziness or loss of balance;
confusion; blurred vision; impairment of vigilance. Alcohol
use will increase risk of sedation and other side effects.
e. [Dexmethylphenidate hydrochloride (Focalin)] is a central
nervous system (CNS) stimulant employed in treatment of ADD
and [ADHD]. Side effects include: blurred vision; dizziness;
drowsiness; agitation; heart palpitations. Special care
should be taken in using stimulants to treat ADD and ADHD in
patients with comorbid bipolar disorder. The concern stems
from the potential for possible induction of a mixed/manic
episode in such patients. Before initiating treatment with a
stimulant, patients with comorbid depressive symptoms should
be adequately screened to determine if they are at risk for
bipolar disorder. Prescription of these medications is
contra-indicated for such individuals.
f. [Methylphenidate (Concerta) is a [CNS] stimulant employed in
treatment of ADD and [ADHD]. Side effects include: blurred
vision; dizziness; drowsiness; agitation; heart palpitations.
Special care should be taken in using stimulants to treat ADD
and ADHD in patients with comorbid bipolar disorder. The
concern stems from the potential for possible induction of a
mixed/manic episode in such patients. Before initiating
treatment with a stimulant, patients with comorbid depressive
symptoms should be adequately screened to determine if they
are at risk for bipolar disorder. Prescription of these
medications is contra-indicated for such individuals.
second expert, Alberto M. Goldwaser, M.D., opined
Lerner's treatment of B.M.D. "fell outside the
acceptable professional standards of care as they apply to
the practice of neuropsychiatry/psychiatry, and such
deviation was a significant contributing factor in causing
the motor vehicle collision . . . [that] resulted in the
death of Ms. Judith Schrope." Goldwaser criticized
Lerner for prescribing medication without an accompanying
diagnosis and then prescribing additional medication to
counteract negative side ...