In its decision filed on February 5, 2021, the Superior Court of New Jersey Appellate Division (“New Jersey Appellate Court”) held in an assisted living negligence case that “inspecting a patient’s room at least once per hour may well be a reasonable standard, depending on how large or intensive the facility is, staffing levels, patient care demands, and other variables. But the expert did not say where the one-hour standard comes from, other than her own personal subjective experience. She did not identify others in the field that utilize such a standard, or places where she has worked as an administrator that have done so. The number seems to have come out of thin air. The net opinion doctrine is not overcome by such conclusory and unmoored commentary, even from a person such as this nurse who we appreciate has many years of experience in the field.”
The Underlying Facts
The plaintiff, Lloyd Bundy, Sr., an eighty-one-year-old man with Alzheimer’s, was a resident of the defendants’ assisted living facility known as Bentley Senior Living in Pennsauken. At about 11:30 a.m. on March 10, 2015, the plaintiff had an unwitnessed fall in his room when he tripped over his roommate’s walker. The plaintiff, who was injured in the fall, was taken to a hospital and diagnosed with a hip fracture, resulting in hip replacement surgery.
The plaintiff alleged that the defendants were negligent in allowing his roommate’s walker to be left on his side of the room, contrary to his care plan to guard against such tripping hazards or “clutter.” The plaintiff contended that a technician moved the walker when she came into the room at an unspecified time that morning to do cardiac testing on the roommate, and then failed to put the walker back in a safe place.
At her deposition, the technician did not outright deny she moved the walker, but rather stated if she had done so it was her practice to move it back after she was finished testing. The plaintiff himself did not see the technician or anyone else move the walker.
The plaintiff’s nursing expert’s opinion was that the defendants breached the standards of care by failing to inspect the plaintiff’s room and allowing a tripping hazard to be present. The expert contended that failure violates state regulations, including N.J.A.C. 8:36-7.3, by failing to assure a patient’s room is clutter free.
The plaintiff’s expert’s report did not specify a standard of care with respect to how frequently an assisted living facility must inspect a resident’s room for tripping hazards. At the expert’s deposition, defense counsel tried to pin her down on a time frame, but she repeatedly equivocated on the subject. Ultimately, the expert stated that a visual inspection of the room is “supposed to be” performed “every hour.” However, she did not mention any source for that purported time standard.
The defendants moved in limine to bar the nurse’s expert testimony as inadmissible net opinion and also moved for summary judgment. The trial court granted both motions, and the plaintiff appealed.
New Jersey Appellate Court Decision
Net Opinion Doctrine
The New Jersey Appellate Court stated, “The doctrine barring the admission at trial of net opinions 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.”” The net opinion doctrine requires experts to “give the why and wherefore” supporting their opinions, “rather than . . . mere conclusion[s].” 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.” An expert’s conclusion should be excluded “if it is based merely on unfounded speculation and unquantified possibilities.”
The New Jersey Court stated, “Here, plaintiff’s expert provided no specifics for why the standard of inspection frequency was hourly, as opposed to, say, daily or once per shift. The omission of the hourly standard from her written report is telling. Her reluctance at deposition to commit to a time period further bespeaks the absence of an objective foundation for the opinion.”
“We appreciate, as did the trial court, that inspecting a patient’s room at least once per hour may well be a reasonable standard, depending on how large or intensive the facility is, staffing levels, patient care demands, and other variables. But the expert did not say where the one-hour standard comes from, other than her own personal subjective experience. She did not identify others in the field that utilize such a standard, or places where she has worked as an administrator that have done so. The number seems to have come out of thin air. The net opinion doctrine is not overcome by such conclusory and unmoored commentary, even from a person such as this nurse who we appreciate has many years of experience in the field.”
“For these reasons, we conclude, albeit for reasons slightly different than those stated by the trial court, that the nurse’s personal expression of a one-hour standard of care is inadmissible net opinion. The court did not misapply its discretion in excluding such an expert.”
Source Bundy v. Bentley Senior Living in Pennsauken, Docket No. A-1639-19T1.
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