FRANCIS ROSS CLARK VS. DAVID NENNA, M.D. (L-0197-17, HUNTERDON COUNTY AND STATEWIDE)

F
                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                      SUPERIOR COURT OF NEW JERSEY
                                      APPELLATE DIVISION
                                      DOCKET NO. A-5098-18T1

FRANCIS ROSS CLARK,
                                          APPROVED FOR PUBLICATION
      Plaintiff-Appellant,
                                                December 29, 2020

v.                                           APPELLATE DIVISION


DAVID NENNA, M.D.,

      Defendant-Respondent,

and

HUNTERDON MEDICAL
CENTER, HUNTERDON
CENTER FOR SURGERY, 1

     Defendants.
________________________

            Submitted October 21, 2020  Decided December 29, 2020

            Before Judges Alvarez, Geiger and Mitterhoff.

            On appeal from the Superior Court of New Jersey,
            Law Division, Hunterdon County, Docket No. L-
            0197-17.

            Peter C. Gordon, attorney for appellant.



1
  Hunterdon Center for Surgery was improperly designated as Hunterdon Medical
Center at the trial level.
            Vasios, Kelly & Strollo, PA, attorneys for respondent
            (Maura Waters Brady, of counsel; Douglas M.
            Singleterry, on the brief).

      The opinion of the court was delivered by

MITTERHOFF, J.A.D.

      Plaintiff Francis Ross Clark appeals from a May 10, 2019 order granting

defendant Dr. David Nenna's motion for summary judgment dismissing his

complaint, as well as a July 12, 2019 order denying his motion for

reconsideration.   This case arises out of a surgical procedure defendant

performed on plaintiff in 2011.      The court granted defendant's summary

judgment motion, finding plaintiff failed to timely provide an affidavit of merit

pursuant to N.J.S.A. 2A:53A-27. As a second basis for summary judgment,

the court found plaintiff failed to make a legally sufficient showing of

damages. Plaintiff contends the court erred because there are genuine issues of

material fact that preclude summary judgment. We affirm the dismissal in

light of plaintiff's failure to establish compensable damages.

      We discern the following facts from the motion record, viewed in the

light most favorable to plaintiff, the non-moving party. Plaintiff, a paraplegic,

broke his femur during a physical therapy session on October 28, 2010. The

injury required surgery to stabilize the bone with four screws and washers.

Id. A-5098-18T1 2 Plaintiff

subsequently developed discomfort while wearing a leg brace due to

protrusion of the screw heads.

Id. On March 11,

2011, defendant, an orthopedic surgeon, performed

surgery on plaintiff to remove the screws. Defendant made a small incision in

the skin and successfully extricated the screws. The washers, however, were

embedded in scar tissue that had developed around the hardware.

Id. Defendant claims to

have made a conscious decision to leave the washers

behind, because removal would have required a larger incision resulting in

greater risk of post-operative infection. 2

Id. Defendant did not

document

anything about the retained washers, or his decision to leave them behind, in

the post-operative reports. Defendant did not discuss the potential of leaving

the washers behind during pre-operative consultations, nor did he inform

plaintiff of the retained washers during any of his post-operative consultations.

In fact, the first time plaintiff learned of the retained washers in his leg was

more than four years later on August 25, 2015, when he had x-rays performed

related to other medical concerns.

      Plaintiff filed his complaint on May 17, 2017, and an amended

complaint naming Hunterdon Center for Surgery as a defendant on January 29,

2018. Defendant demanded an affidavit of merit in both of his answers.

2
  Clark suffered from a history of post-operative complications which his primary care
physician advised placed him at a high risk of infection following surgery.
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      Plaintiff took the position that this was a common knowledge case,

therefore, no affidavit of merit was required. Prior to filing the complaint, he

had obtained a copy of defendant's post-operative report, and because it made

no mention of the retained washers, or defendant's decision to leave them in,

plaintiff believed defendant simply forgot to take them out. Under plaintiff's

theory of the case, he expected all of the surgical hardware to be removed.

Defendant's failure to do so was a deviation from that expectation. Therefore,

plaintiff argued, no expert was needed to determine whether a deviation

occurred.3

Id. It was only

after receiving defendant's answers to interrogatories, that

plaintiff learned for the first time that defendant was asserting he made a

conscious decision not to remove the washers in an effort to minimize post -

operative complications.       Defendant was deposed on October 29, 2018.

Following the deposition, plaintiff submitted an expert report prepared by Dr.

Hervey Sicherman, an orthopedic surgeon. Dr. Sicherman acknowledged that,

depending on the circumstances, a determination to leave hardware in a patient

could be a reasonable exercise of judgment. He did not comment on whether

defendant doing so was proper, given the apparently conflicting evidence in

3
  Notwithstanding plaintiff's failure to serve an affidavit of merit within one hundred
and twenty days of the date the answer that made the demand was filed, defendant did
not promptly move to dismiss the complaint, raising the question of whether the
exercise of judgment defense had been fully developed at the time.
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the record as to whether defendant exercised his judgment in fact.              Dr.

Sicherman opined that defendant did deviate from accepted medical standards

in failing to properly record the surgery, or inform the patient that the

hardware had not been removed.

Id. Meanwhile, on August

31, 2018, Hunterdon Center for Surgery moved

to dismiss the complaint based on plaintiff's failure to serve an affidavit of

merit. The parties voluntarily stipulated to the dismissal of the surgical center

on March 22, 2019.      On March 13, 2019, defendant moved for summary

judgment citing plaintiff's failure to serve an affidavit of merit. Defendant also

argued plaintiff had failed to make a prima facie showing of damages. On

April 26, 2019, plaintiff submitted an affidavit of merit prepared by Dr.

Sicherman.

      In opposition to the motion, plaintiff argued defendant was equitably

estopped and barred by laches from asserting an affidavit of merit defense. In

support of his claim for damages, plaintiff cited the mental anguish caused by

the knowledge that a foreign object is in his body that should not be there,

coupled with the knowledge that he could not undergo another surgery to




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remove the retained washers. 4 Plaintiff acknowledged that he was seeking

damages related only to emotional distress.

      The court found: (1) the common knowledge doctrine was inapplicable,

(2) plaintiff's late service of the affidavit was ineffective under N.J.S.A.

2A:53A-27; Id.; (3) defendant was not estopped or barred by laches from

moving for summary judgment; and (4) plaintiff had failed to establish

compensable damages. The judge granted summary judgment to defendant

and later denied plaintiff's motion for reconsideration. This appeal followed.

      We review an order granting summary judgment by applying the same

standard as the trial court. Globe Motor Co. v. Igdalev, 

225 N.J. 469

, 479

(2016).    Summary judgment is appropriate "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

and that the moving party is entitled to a judgment or order as a matter of law."

Ibid. (quoting R. 4:46-2(c)).

The trial court's legal conclusions are, as always,

reviewed de novo. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 

202 N.J. 369

, 385 (2010).

      The transcript of the summary judgment motion hearing suggested

defendant did not actually recall any details about the surgery.                Because

4
  Plaintiff produced a letter from his primary care physician stating the risks of surgery
outweighed the benefits, and was not medically warranted.
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defendant did not document his decision regarding the washers, plaintiff would

have been able to attack his credibility at trial. On this appeal, however, we

have not been provided with an adequate record, including the doctor's full

deposition, which would enable us to evaluate whether the jury should decide

whether defendant consciously exercised his judgment as he alleged, or

whether, as plaintiff alleged, the common knowledge doctrine applied because

defendant forgot to remove the washers. Regardless, given our conclusion that

dismissal was warranted on other grounds, the issue is moot and will not be

addressed.

      We agree with the trial court that plaintiff failed to demonstrate

compensable damages.      Plaintiff concededly seeks damages only for the

emotional distress he suffered as a result of the retained washers. "A claim of

direct, negligent infliction of emotional distress," may be viable where the

plaintiff claims damages proximately caused by a breach of a duty owed by the

defendant. Lascurain v. City of Newark, 

349 N.J. Super. 251

, 277 (App. Div.

2002). To be compensable, a plaintiff must demonstrate he or she suffered

from "severe," McDougall v. Lamm, 

211 N.J. 203

, 215 (2012), or "genuine

and substantial" emotional distress. 

Lascurain, 149 N.J. Super. at 277

.

      "Severe emotional distress means any type of severe and disabling

emotional or mental condition which may be generally recognized and

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diagnosed by professionals trained to do so . . . ."         Innes v. Marzano-

Lesnevich, 

435 N.J. Super. 198

, 236 (App. Div. 2014) (alteration in original)

(quoting Taylor v. Metzger, 

152 N.J. 490

, 515 (1998)). Medical evidence or

expert testimony is required because of the potential for fabricated claims.

Ibid. (citing Picogna v.

Bd. of Educ. of Cherry Hill, 

143 N.J. 391

, 396-97

(1996)). Because the severity of emotional distress raises questions of both

law and fact, a court first decides whether, as a matter of law, such emotional

distress can be found. Lascurain, 349 N.J. Super at 279. If a court finds that it

can, the jury then decides whether it has in fact been proven.

Ibid. “Complaints such as

lack of sleep, aggravation, headaches and

depression have been frequently deemed insufficient as a matter of law."

Innes, 435 N.J. Super. at 237

(citing DeAngelis v. Hill, 

180 N.J. 1

, 20-21

(2004)). Generally, for the conduct to be actionable, "the emotional distress

must be 'so severe that no reasonable [person] could be expected to endure it.'"

Buckley v. Trenton Sav. Fund Soc'y, 

111 N.J. 355

, 366-67 (1988) (quoting

Restatement (Second) of Torts  46 cmt. j (Am. Law Inst. 1965)). Emotional

distress damages cannot be based on speculation. 

Innes, 435 N.J. Super. at 241

.

       Ordinarily, medical or expert proof is required to establish emotional

distress damages. Our courts have recognized two exceptions to this general

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rule. The first exception applies in cases involving intentional torts such as

racial or sexual discrimination. Tarr v. Ciasulli, 

181 N.J. 70

, 77-78 (2003).

See, e.g., Zahorian v. Russell Fitt Real Estate Agency, 

62 N.J. 399

, 416

(1973) (awarding compensatory damages for pain and suffering inflicted upon

plaintiff in denial of apartment rental because of her sex and marital status);

Morris v. MacNab, 

25 N.J. 271

, 280 (1957) (permitting recovery for wife's

"shame, humiliation, and mental anguish" caused by the defendant's fraudulent

inducement into bigamous marriage); Gray v. Serruto Builders, Inc., 110 N.J.

Super. 297, 315-18 (Ch. Div. 1970) (ruling that Director of Civil Rights

Division has authority to award damages for emotional distress caused by

racial discrimination in residential leasing).

      Under this exception, "compensatory damages for emotional distress,

including humiliation and indignity resulting from willful discriminatory

conduct, are remedies that require a far less stringent standard of proof than

that required for tort-based emotional distress cause of action." 

Tarr, 181 N.J. at 82

. Where a tortfeasor's conduct is willful, the Court has explained "the

victim may recover all natural consequences of that wrongful conduct,

including emotional distress and mental anguish damages . . . ."

Ibid. The second exception

to the general rule is applied to cases in which

"[t]he nature of [the] particular harm mitigates against the reason for an

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enhanced standard of proof in the first instance  the elimination of spurious

claims." 

Innes, 435 N.J. Super. at 239

. In such "special circumstances," "an

especial likelihood of genuine and serious mental distress . . . serves as a

guarantee that the claim is not spurious."

Ibid. (alteration in original)

(quoting

Strachan v. John F. Kennedy Mem. Hosp., 

109 N.J. 523

, 537 (1988)). These

"special circumstances" have been found in cases where the plaintiff has

suffered emotional distress from malicious use of process, Baglini v. Lauletta,

338 N.J. Super. 282

, 307 (App. Div. 2001), wrongful birth arising from

inadequate genetic counselling, Geler v. Akawie, 

358 N.J. Super. 437

, 457

(App. Div. 2003), and where a funeral home failed to ensure that orthodox

ritual requirements were met, Menorah Chapels at Millburn v. Needle, 

386 N.J. Super. 100

, 116 (App. Div. 2006). In each of those cases, the courts

found the nature of the harm would have caused any reasonable person

"severe" or "genuine and substantial" emotional distress. Conversely, where

the circumstances do not create such a clear objective expectation of "s evere"

or "genuine and substantial" emotional distress, plaintiffs are required to

support their claims for damages with medical or expert proof. Innes, 435 N.J.

Super. at 236 (quoting 

Taylor, 152 N.J. at 515

).

      Here, plaintiff alleges emotional distress caused by the professional

negligence of a surgeon who failed to remove surgical washers from his leg.

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Plaintiff does not allege that defendant's conduct was intentional or willful.

Nor does the nature of plaintiff's harm present "an especial likelihood of

genuine and serious mental distress."      As such, plaintiff was required to

support his claim for emotional distress damages, as a matter of law, with

medical or expert proof. He did not do so. Accordingly, we affirm.

      To the extent we have not addressed any of plaintiff's remaining

arguments, we conclude that they are either moot or without sufficient merit to

warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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