Plaintiffs sued two hospitals, several doctors, and other medical personnel after the death of their three-week old son, alleging that defendants failed to properly evaluate, test, and treat their infant son during two emergency department visits, resulting in his death from dehydration and an undiagnosed infection. On appeal, plaintiffs contended the trial court committed error by finding plaintiff’s expert not qualified to testify; barring plaintiff’s expert testimony as a net opinion; and, concluding that the modified causation analysis established by the Supreme Court in Gardner v. Pawliw, 150 N.J. 359 (1997) did not apply.
The Superior Court of New Jersey Appellate Division stated in its August 7, 2025 Per Curiam: “Dr. Tunik’s substantial
academic credentials, professional certifications, teaching roles, and decades of clinical and research experience in pediatric emergency medicine establish a sufficient foundation for his expert testimony regarding medical causation on this record … Defendants are entitled to argue what they will surely describe as deficits in Dr. Tunik’s qualifications regarding the field of pathology. However, such vulnerability may be properly explored on cross-examination, and it goes to the weight rather than the admissibility of his opinions.”
“While Dr. Tunik may not be specialized in pathology or autopsy procedures, he does not have to be. His extensive qualifications demonstrate that he does specialize in what to do when an infant child, less than one-month old, presents in an emergency room with potentially life-threatening symptoms. We take a liberal approach when assessing a person’s qualification to testify as an expert, id. at 454, and we note that plaintiffs do not offer Dr. Tunik to opine on a standard of care for pathologists, but on the diagnostic failures of emergency room medical personnel, and the consequences which flowed from them. Based on Dr. Tunik’s extensive education and experience, we depart from the trial court’s analysis and conclude Dr. Tunik is qualified to offer an opinion to a degree of reasonable medical probability regarding the proximate cause of S.E.C.’s death.”
Under N.J.R.E. 703, an expert’s opinion must 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 is the type of data normally relied upon by experts.
The New Jersey appellate court stated: “An expert’s opinion that fails to address facts in the record that directly contradict the expert’s conclusions should be barred as a net opinion … Dr. Tunik’s opinion does not constitute a net opinion and satisfies the N.J.R.E. 703 requirements. Dr. Tunik’s conclusions are grounded in the record, which included his review of all medical records, the autopsy report, witness testimony, and a video presented by plaintiffs. Dr. Tunik identified detailed factual support for his opinions, including: S.E.C.’s presenting symptoms of vomiting, fever, and distress; the documented clinical findings; and his analysis of what additional diagnostic testing may have revealed had it been performed. Dr. Tunik’s opinion addresses the central issue of causation by explaining how defendants’ failure to perform additional diagnostic testing and provide appropriate treatment more likely than not resulted in the infant’s death … We express no opinion as to what weight a jury may assign Dr. Tunik’s opinion on causation. We simply conclude that his opinion is sufficiently grounded in facts and clearly articulated methodology. It does not constitute an inadmissible net opinion under N.J.R.E. 703.”
“When the prevailing standard of care indicates that a diagnostic test should be performed and that it is a deviation not to perform it, but it is unknown whether performing the test would have helped to diagnose or treat a preexistent condition, the first prong of Scafidi does not require that the plaintiff demonstrate a reasonable medical probability that the test would have resulted in avoiding the harm. Rather, the plaintiff must demonstrate to a reasonable degree of medical probability that the failure to give the test increased the risk of harm from the preexistent condition.”
The New Jersey appellate court stated: “Here, the trial court found that it could not identify a preexisting condition
from the existing record. However, we view the preexisting condition question presented by this record differently, and conclude that it is a question for the jury to resolve, not the court … With all inferences given to the non-moving party at summary judgment, we conclude that there is a genuine issue of material fact concerning whether S.E.C. had a preexisting condition at the time he presented to each emergency room, Clara Maass and Mountainside. Dr. Tunik identified multiple abnormal medical symptoms which three-week old S.E.C. presented to defendants, including: progressive vomiting, decreased oral milk intake, behavioral changes, an elevated heart rate, unusually colored diaper discharge, and likely seizures. After reviewing the record, Dr. Tunik’s opinion was that S.E.C. suffered from undiagnosed dehydration and an undiagnosed infection. He further opined that, had proper diagnostic testing been performed, those or other conditions may have been identified earlier and appropriate measures taken to avoid worsening of S.E.C.’s condition.”
“If the jury finds that S.E.C. had a preexisting condition, then the jury should proceed to undertake the Gardner/Scafidi modified proximate cause analysis, consistent with Model Civil Charge 5.50E, to determine whether defendants’ alleged negligence increased the risk of harm or loss of chance to survive, and whether that increased risk or loss of chance was a substantial factor in S.E.C.’s death. If the jury finds that S.E.C. had no preexisting condition, then their inquiry ends, and the trial judge would enter judgment for defendants. Subject to the sound discretion of the trial judge, we envision that the jury’s role as factfinder is best aided by the use of a modified jury interrogatory, appropriately tailored to the record developed at trial, to supplement the sample jury verdict interrogatories provided in Model Civil Charge 5.50E.”
The New Jersey appellate court concluded: “plaintiff’s expert was qualified to testify under N.J.R.E.702; plaintiff’s expert did not issue a net opinion; and that, subject to a jury finding that S.E.C. had a preexisting condition, the modified causation standard under Gardner/Scafidi applies.”
Source Benjamin-Carter v. Fontanetta, M.D., Docket No. A-2154-23.
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