GAIL KROSS VS. GARY BRESLOW, M.D. (L-9734-10, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court."
Although it is posted on the internet, this opinion is binding only on the
parties in the case and its use in other cases is limited. R.1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-5623-14T3
GAIL KROSS,
Plaintiff-Appellant,
v.
GARY BRESLOW, M.D.,
Defendant-Respondent.
__________________________________________
Argued October 26, 2016 – Decided October 4, 2017
Before Judges Simonelli and Gooden Brown.
On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket No.
L-9734-10.
Alan Berliner argued the cause for appellant
(Rothenberg, Rubenstein, Berliner & Shinrod,
LLC, attorneys; Mr. Berliner, on the brief).
Evelyn C. Farkas argued the cause for
respondent (Farkas & Donohue, LLC, attorneys;
Ms. Farkas, of counsel; Meredith E. Traina,
on the brief).
The opinion of the court was delivered by
GOODEN BROWN, J.A.D.
In this medical malpractice case, plaintiff Gail Kross
appeals from an August 11, 2015 Law Division order granting
defendant Dr. Gary Breslow's motion for a directed verdict and
dismissing her complaint with prejudice. Plaintiff contends that
the trial judge erred in barring the testimony of her sole
liability expert, Richard Marfuggi, M.D., a board certified
plastic surgeon, on the ground that Dr. Marfuggi's opinion amounted
to an inadmissible net opinion. Based on our review of the record
under the applicable legal principles, we affirm.
I.
We recount the facts and procedural history presented in the
record. On August 2, 2006, plaintiff, who was then fifty-seven
years old, underwent an abdominoplasty (tummy tuck),1 as well as
1
According to the American Society of Plastic Surgeons, a complete
tummy tuck or abdominoplasty is a surgical procedure performed
under general anesthesia
to flatten the abdomen by removing excess skin
and fat from the lower abdominal region and
tightening the muscles of the abdominal wall.
. . . [T]he surgeon generally makes a long
incision from hip to hip, just above the pubic
region. A second incision releases the navel
from surrounding tissue. The surgeon
separates the skin from the abdominal wall up
to the ribs, lifts the skin flap, and tightens
the abdominal muscles by pulling them closer
together and stitching them into position.
Excess skin is removed from the flap and a new
2 A-5623-14T3
liposuction of the sides of her abdomen, performed by Dr. Berman,
a non-party to this action. Plaintiff was unhappy with the results
and had difficulty healing. Plaintiff complained to Dr. Berman
that her "incisions[] became red and painful[,]" "her abdomen was
tight[,] [s]he couldn't stand straight[,]" and "[s]he was in
constant pain[.]" Dr. Berman treated plaintiff with steroid
injections, a common treatment for thickened or painful scarring,
but the injection therapy was unsuccessful.
About a year later, in June and July of 2007, Dr. Berman
performed two scar revisions, which are superficial excisions of
the scar performed under local anesthesia, and treated plaintiff
with a second round of steroid injections. However, the procedures
failed to improve the appearance of plaintiff's scars, which had
developed keloids.2 Subsequently, plaintiff wrote to Dr. Berman,
hole cut for the navel, which is then stitched
into place before the incisions are closed.
[Tummy Tuck (Abdominoplasty), Am. Soc'y of
Plastic Surgeons,
https://www.plasticsurgery.org/for-medical
professionals/resources-and-
education/publications/physicians-guide-to-
cosmetic-surgery/body-contouring-surgical-
procedures-physician%E2%80%99s-
guide?sub=Tummy+Tuck+(Abdominoplasty) (last
visited Sept. 25, 2017).]
2
According to Dr. Marfuggi, "keloid scarring is a thickening of
a scar . . . beyond the margins of the initial wound."
3 A-5623-14T3
indicating that she remained dissatisfied with the appearance of
her scars and that her complications persisted. Dr. Berman
refunded plaintiff $14,000 in exchange for a signed release barring
any future claims attributable to his care.
In December 2007, plaintiff consulted with a second plastic
surgeon, Dr. Giampapa. To improve the appearance of the scars and
alleviate her other complaints, Dr. Giampapa proposed a "two-part"
procedure, involving the "insertion of tissue expanders as a first-
stage operation" to "allow the skin to stretch," and then a second
procedure called a "V-Y flap revision" to address her complaints
stemming from the tummy tuck. Dr. Giampapa indicated that
plaintiff's skin was under too much tension, meaning "there was
not enough skin present or . . . too tight a skin envelope" to
perform the procedure without the use of tissue expanders.
However, plaintiff did not proceed with Dr. Giampapa's proposed
procedures.
Instead, on May 9, 2008, plaintiff sought treatment from Dr.
Breslow. After examining plaintiff, Dr. Breslow "noted the
presence of hypertrophic scarring, which [were] scars that had
widened," but "made no mention of the tightness of the skin" or
the need for a more invasive two-stage procedure. Instead, Dr.
Breslow recommended a less invasive "in-office scar revision[,]"
which plaintiff underwent on June 4, 2008. The procedure involved
4 A-5623-14T3
"cutting out the existing scar under local anesthesia and sewing
that together using . . . nylon sutures, around the umbilicus, and
. . . a dissolving barbed suture in the lower abdomen" in order
to revise "both the umbilical scar . . . around [plaintiff's]
bellybutton, and the transverse scar . . . that ran across the
lower portion of [her] abdomen." The scar revision was performed
without complications. However, post-operatively, plaintiff
received "a series of low[-]dose radiation treatments[,]" as well
as a steroid injection "to prevent the recurrence of [the]
keloid[.]"
Throughout the summer and fall of 2008, plaintiff returned
to Dr. Breslow for several follow-up appointments. In June,
plaintiff complained of "abdominal discomfort, abdominal
distention, vaginal irritation, and tightness of the lower
abdomen." Dr. Breslow thought plaintiff's complaints were
"secondary" to the radiation therapy and referred her to Dr.
Ahlborn, who diagnosed her with an umbilical hernia. In December
2008, during plaintiff's last visit with Dr. Breslow, he advised
her it would take "up to three years for total healing to take
place, and that this was partially the cause of her complaints."
Nonetheless, Dr. Breslow suggested that further revision
procedures were possible, "both for the umbilicus and for the
abdominoplasty."
5 A-5623-14T3
Thereafter, plaintiff sought the opinion of several other
surgeons. On September 8, 2009, Dr. Boss examined plaintiff and
noted "a loss of continuity of the umbilicus, meaning that the
umbilicus was no longer attached as it had originally been[,]"
separation of the abdominal muscles, and "a hernia around the
umbilicus." Dr. Boss also found that plaintiff's "vagina had been
displaced anteriorly and superiorly[,]" meaning "the tissue on the
sides of [her] vagina, had been pulled upward."
In April 2010, a second doctor, Dr. Zubowski, made similar
findings. Dr. Zubowski noted "the presence of a poorly defined
umbilicus[,]" meaning that plaintiff's "umbilicus . . . had been
replaced with a new scar." Dr. Zubowski also noted the "laxity
or looseness of the upper abdominal musculature" and that
plaintiff's "lower abdominal scar, had spread, [and] that it was
firm and tender" to the touch.
In May 2010, plaintiff sought the opinion of a third
physician, Dr. Margiotta, who indicated that plaintiff had a "tight
intraumbilical envelope, elevated mons,3 and wide scarred
umbilicus." In other words, plaintiff's "skin from the bellybutton
down to the vagina was noted to be tight," "the tissue on the side
of the vagina, had been elevated or pulled superiorly," and "the
3
Dr. Marfuggi testified that the mons "is the area in the pubic
hairline[.]"
6 A-5623-14T3
umbilicus itself had spread[.]" Like Dr. Giampapa, Dr. Margiotta
recommended a revision of plaintiff's abdominoplasty to "repair
the stretching of the abdominal muscles" and the use of "tissue
expanders to stretch the skin" before performing a scar revision.
On September 15, 2010, prior to filing the lawsuit, plaintiff
was examined by Dr. Marfuggi. Plaintiff complained "her vaginal
area was easily irritated," particularly when wearing constricting
clothing, and "sexual activity was not possible due to pain[.]"
She had difficulty "sitting for prolonged periods of time," as
well as trouble sleeping and urinating. She also complained of
"gastrointestinal problems, . . . spasms after eating, cramping,
bloating," and "stress incontinence[.]" She "believed she had an
umbilical hernia" and stated "she no longer had a bellybutton."
Based on his examination, Dr. Marfuggi found "an absence of
umbilical tissue and a prominence of scar" tissue. He noted
plaintiff's umbilicus had been converted to a vertical oval,
suggesting abdominal tension in the lower region "pulling it
inferiorly or down." Dr. Marfuggi also reported that the center
of plaintiff's abdominal incision was "very dark and wide[,]" a
condition known as "scar hypertrophy" or hyperpigmentation. Dr.
Marfuggi added that the scar along plaintiff's "pubic hairline
ha[d] been flattened and rotated superiorly or up."
7 A-5623-14T3
During the examination, Dr. Marfuggi photographed plaintiff's
abdomen, "including the area of her scars from the abdominoplasty
and the scar revision." Plaintiff also provided a photograph of
her incision taken in 2006 after Dr. Berman's abdominoplasty.
Comparing both photographs, Dr. Marfuggi indicated that in the
2006 photo, plaintiff's scar was "transverse, very red[,]" and
consistent with her complaints. Dr. Marfuggi also noted that the
2006 photograph showed "significant . . . distance between the
scar and the pubic hairline," and that plaintiff's umbilicus was
"distorted" and "converted to an oval that is pulled in a
north/south direction[.]" In addition, "[t]he scar in 2006 [was]
asymmetric[,]" with the left side of plaintiff's scar appearing
lower than the right.
On November 9, 2010, plaintiff filed a complaint against Dr.
Breslow and unnamed fictitious defendants in connection with the
June 2008 scar revision. Plaintiff alleged Dr. Breslow "failed
to possess the degree of knowledge ordinarily possessed and
exercised by others in the . . . profession of plastic surgery[,]
. . . did negligently and careless[ly] treat" her, and caused her
to "sustain severe and permanent injuries to her abdomen and other
parts of her body." On January 24, 2011, Dr. Breslow filed a
contesting answer, including a demand for an affidavit of merit,
pursuant to N.J.S.A. 2A:53A-27, and answers to interrogatories.
8 A-5623-14T3
On June 11, 2012, plaintiff amended her answers to interrogatories
to identify Dr. Marfuggi as her sole liability expert in the field
of plastic surgery.
During the discovery period, Dr. Marfuggi authored a written
report and submitted to depositions, including two videotaped de
bene esse depositions on June 5, 2014 and March 17, 2015, in lieu
of a court appearance. See R. 4:14-9. Dr. Marfuggi opined that
Dr. Breslow deviated from the standard of care in his treatment
of plaintiff. Dr. Marfuggi testified that, before performing the
scar revision, Dr. Breslow did not adequately consider "the
deficiency of skin or tightness of the skin in [plaintiff's] lower
abdominal area" documented by Drs. Giampapa and Margiotta and
depicted in plaintiff's 2006 photograph. Dr. Marfuggi explained
that
when a scar revision is done, the ideal
situation is to remove the cutout, the
existing scar, and sew the two unscarred sides
together without tension. And if there is
tension to begin with, that is if there
already is a tightness in the area, simply
cutting out the scar and sewing the sides
together would pull the incision together
under even more tension, and this causes a
distortion of the skin that is pulling things
either down or up, and also increases the
chances of having an undesirable scar result.
Dr. Marfuggi concluded that Dr. Breslow's alleged deviation from
the standard of care directly caused "distortion of [plaintiff's]
9 A-5623-14T3
anatomy," specifically, deformity of the umbilicus "into a
vertical oval," and "superior rotation" of the skin in plaintiff's
pubic area caused by the tightness of "the lower abdominal skin[.]"
While her case was pending, plaintiff consulted Dr. Pyo to
address the complications she attributed to Dr. Breslow's June
2008 procedure. On October 8, 2014, Dr. Pyo performed abdominal
wall reconstruction surgery to lower plaintiff's previous
incision, release the tension on the skin, restore the pubic
anatomy, and repair the umbilical hernia. Dr. Pyo's operative
report indicated that by performing a dissection, he "was able to
pull . . . the skin down . . . a little bit under one inch." Once
"the fascial defect was closed[,]" plaintiff had "significant
laxity of the abdominal wall." However, after her "pubic tissues
and the tissues of the mons . . . were released," Dr. Pyo had
"some concern about the tension of the abdominal skin flap and
[its] ability to maintain the lower position" and avoid plaintiff's
original problem. As a result, Dr. Pyo used Mitek anchor sutures
to stabilize the new incision line and avoid "upward
displacement[.]" Notably, he did not use tissue expanders or new
skin during the procedure, as he found significant laxity of the
abdominal wall.
Following Dr. Pyo's reconstruction surgery, Dr. Marfuggi
examined plaintiff for a second time on January 7, 2015, to assess
10 A-5623-14T3
any improvement in her condition from the surgery. Following his
examination, Dr. Marfuggi authored an addendum report, the
contents of which he testified to during the March 17, 2015
deposition. Plaintiff told Dr. Marfuggi that the reconstruction
surgery alleviated almost all of her symptoms. Dr. Marfuggi
confirmed that plaintiff's "whole lower abdomen was less tight and
. . . appeared in a more natural position" as a result of the
surgery. According to Dr. Marfuggi, this new information confirmed
his prior opinion.
On July 27, 2015, the parties appeared for trial. At the
outset, defendant moved in limine to bar Dr. Marfuggi's testimony
asserting that he rendered a net opinion, the exclusion of which
would warrant a directed verdict in defendant's favor. After
reviewing Dr. Marfuggi's deposition testimony and entertaining
oral argument, the trial court granted defendant's motion. The
court reasoned that Dr. Marfuggi's testimony constituted a net
opinion because it did not establish a causal connection between
plaintiff’s physical injuries and Dr. Breslow's alleged deviation.
Finding that plaintiff could not "sustain her burden of proof
without . . . the expert opinion[,]" the court granted defendant's
motion for a directed verdict and dismissed the complaint with
prejudice. The court entered a memorializing order on August 11,
2015, and this appeal followed.
11 A-5623-14T3
II.
Plaintiff argues that the court erred in barring Dr.
Marfuggi's testimony as a net opinion. We note, at the outset,
that "[t]he admission or exclusion of expert testimony is committed
to the sound discretion of the trial court." Townsend v. Pierre,
221 N.J. 36, 52 (2015). We apply a "deferential approach to a
trial court's decision to admit [or exclude] expert testimony,
reviewing it against an abuse of discretion standard." Pomerantz
Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011). An
abuse of discretion "arises when a decision is made without a
rational explanation, inexplicably departed from established
policies, or rested on an impermissible basis." Flagg v. Essex
Cty. Prosecutor, 171 N.J. 561, 571 (2002).
N.J.R.E. 702 and N.J.R.E. 703 frame our analysis regarding
the admissibility of expert testimony. The former requires that
the expert be qualified in his or her respective field to offer
testimony that "will assist the trier of fact to understand the
evidence or to determine a fact in issue[.]" N.J.R.E. 702. The
latter addresses the foundation for expert testimony. N.J.R.E.
703. The rule mandates that expert opinions "be grounded in 'facts
or data derived from (1) the expert's personal observations, or
(2) evidence admitted at the trial, or (3) data relied upon by the
expert which is not necessarily admissible in evidence but which
12 A-5623-14T3
is the type of data normally relied upon by experts.'" Townsend,
supra, 221 N.J. at 53 (quoting Polzo v. Cty. Of Essex, 196 N.J.
569, 583 (2008)).
"The net opinion rule is a 'corollary of [N.J.R.E. 703]
. . . which forbids the admission into evidence of an expert's
conclusions that are not supported by factual evidence or other
data.'" Townsend, supra, 221 N.J. at 53-54 (quoting Polzo, supra,
196 N.J. at 583). "The rule requires that an expert 'give the why
and wherefore' that supports the opinion, 'rather than a mere
conclusion.'" Id. at 54 (quoting Borough of Saddle River v. 66
E. Allendale, LLC, 216 N.J. 115, 144 (2013)). To satisfy the net
opinion rule, experts must "be able to identify the factual bases
for their conclusions, explain their methodology, and demonstrate
that both the factual bases and the methodology are reliable."
Id. at 55 (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417
(1992)). In contrast, an expert's conclusion must be "excluded
if it is based merely on unfounded speculation and unquantified
possibilities." Ibid. (quoting Grzanka v. Pfeifer, 301 N.J. Super.
563, 580 (App. Div.), certif. denied, 154 N.J. 607 (1997)). Given
the weight accorded to expert testimony, "a trial court must ensure
that an expert is not permitted to express speculative opinions
or personal views that are unfounded in the record[,]" or an
13 A-5623-14T3
"opinion that is unsupported by the factual record or . . .
contradicts that record." Ibid.
Based on our review of the record, we discern no abuse of
discretion in the court's decision to bar Dr. Marfuggi's expert
testimony. Dr. Marfuggi relied on the records of Dr. Giampapa and
Dr. Margiotta, photographs of plaintiff's incision, as well as his
own examination of plaintiff to support his conclusion that there
was insufficient laxity for Dr. Breslow to perform the 2008 scar
revision. However, as the court correctly concluded, Dr.
Marfuggi's testimony failed to establish the "causal connection"
between plaintiff's complaints and the treatment rendered by Dr.
Breslow.
Dr. Marfuggi did not provide any objective criteria for
concluding that Dr. Breslow failed to consider the laxity of
plaintiff's skin, nor specific factual or methodological bases to
sustain his conclusion that Dr. Breslow's minor scar revision
directly caused plaintiff's substantial and prolonged
complications. We agree with the court that Dr. Marfuggi's
testimony was no more than "a bare conclusion without establishing
the [why and wherefore] to connect . . . [Dr. Breslow's] procedure
with the injuries suffered[,] and his conclusion that the deviation
occurred when [Dr. Breslow] failed to consider the tightness of
the skin."
14 A-5623-14T3
Acknowledging that this was not "your classic net opinion
case[,]" the court construed plaintiff's position as attributing
her complaints to the procedure performed by Dr. Breslow, rather
than Dr. Breslow's procedure failing to alleviate her complaints.
The court determined that Dr. Marfuggi's reliance on Dr. Giampapa's
and Dr. Margiotta's records involving more invasive procedures to
establish a deviation on the part of Dr. Breslow was misplaced.
The court explained:
There is no connection in anything that
Dr. Marfuggi says about observations of the
lack of tissue to . . . establish that there
was a problem with tissues in doing . . . a
revision of just the scar internally.
In other words, for Dr. Marfuggi to rely
upon the statements exacted from a record in
dealing with recommendations of major
procedures to suggest that that's the
foundation for his opinion as it relates to
this minor excision[,] I think is not
something that is supported by [the] factual
record.
. . . [N]othing that I read in his
transcript . . . develop[s] that in such a
way. There's no language that says well,
. . . if that's the case then the fact that
you do this minor surgery is enough to create
this sort of problem, these same sorts of
issues that she's suffering here.
. . . [H]e has not pointed to facts that
are contained in the record upon which he
could rely to formulate the opinion that he
did.
15 A-5623-14T3
We acknowledge, as did the court, that Dr. Marfuggi's
testimony was "confusing at times and appear[ed] to be internally
inconsistent[.]" As an example, the court pointed out that while
Dr. Marfuggi relied heavily on the photographs to support his
opinion, at other times, he retreated from that position. The
following colloquy between defense counsel and Dr. Marfuggi
highlights one such instance:
Q: Would you agree that skin laxity or
looseness is determined by a pinch test or
something similar to that and not one picture?
A: Yes.
Q: Okay. So fair to say that you could not
determine whether or not there was laxity or
not, based on the photograph taken in 2006.
Correct?
A: Yes. I believe I testified to that fact
already, yes.
. . . .
Q: Okay. But you would agree that th[e]
photograph, 2006, can't be a determinant as
to whether or not there was laxity prior to
Dr. Breslow's surgery. Correct?
A: The photo cannot, correct.
Nonetheless, upon being shown one of Dr. Breslow's
photographs of plaintiff's incision taken after Dr. Breslow's scar
revision on June 12, 2008, Dr. Marfuggi agreed that there was
apparent laxity:
16 A-5623-14T3
Q: And that shows the abdominal incision
completely intact. Correct?
A: Yes.
Q: And you would agree with me that th[e]
incision appears to be under no tension
correct?
A: That's correct.
Later, when challenged on whether Dr. Breslow's scar revision
procedure had caused plaintiff's "subjective symptoms[,]" relying
on a comparison between plaintiff's 2006 photograph and his 2015
photograph, Dr. Marfuggi responded "I cannot come up with any
other alternative to the cause of [plaintiff's] deformities and
complaints than that too much skin was taken out or skin was taken
out under too much tension[.]"
Further, in addition to relying on the photographs, Dr.
Marfuggi based his opinion on Dr. Giampapa's and Dr. Margiotta's
records referring to the use of tissue expanders to increase
laxity. However, Dr. Marfuggi acknowledged that the procedures
contemplated by Drs. Giampapa and Margiotta were more invasive
than a scar revision procedure. When cross-examined about the
invasiveness of Dr. Breslow's scar revision procedure, which Dr.
Marfuggi agreed was a "superficial excision[,]" the following
colloquy occurred:
Q: With a scar revision, you are removing the
scar from the layer of skin. Correct?
17 A-5623-14T3
A: That can be done. You have to understand
one can do a scar revision all the way through
all of the tissues. In other words, the muscle
could be scarred. The fascia could be
scarred.
Q: Understand, but that's not what we are
talking about here - -
A: Correct.
Q: - - as far as what Dr. Breslow did. Right?
A: That's correct.
Q: Okay. So as far as what Dr. Breslow did,
he didn't . . . go into the fascia layers.
Correct?
A: I don't know the answer to that, whether
he went into the fascia layers, but he
certainly at least went to the fascia layers.
Q: Where do you get any information that Dr.
Breslow may have gone into the fascia layers?
A: I didn't say that he did.
Q: Okay. So sitting here today, you are well
aware that Dr. Breslow's revision procedure
did not go into the fascia layers. Correct?
A: I can't say that it did or did not.
Later, Dr. Marfuggi again reversed his testimony:
Q: . . . And based on your review of the
materials in this case, the scar tissue was
removed from the skin layer and not anything
deeper. Correct?
A: Yes.
18 A-5623-14T3
Notably, Dr. Marfuggi also admitted that plaintiff "[c]ould . . .
have developed [her] symptoms in 2006" from Dr. Berman's surgery.
Finally, in reviewing a directed verdict, this court "employs
the same standard on review as the trial court did in deciding
defendant's motion for a directed verdict." Luczak v. Twp. Of
Evesham, 311 N.J. Super. 103, 108 (App. Div.), certif. denied, 156
N.J. 407 (1998). Indeed, a court should only deny a motion for
directed verdict "'if the evidence, together with the legitimate
inferences therefrom, could sustain a judgment in [the non-
movant]'s favor.'" Sackman v. N.J. Mfrs. Ins. Co., 445 N.J. Super.
278, 291 (App. Div. 2016) (quoting Edwards v. Walsh, 397 N.J.
Super. 567, 571 (App. Div. 2007)); see also R. 4:37-2(b). Here,
we find no basis in the record to reverse the court's grant of
defendant's motion for a directed verdict once plaintiff's expert
testimony was excluded.
Affirmed.
19 A-5623-14T3