Moody v. Voorhees Care & Rehab. Ctr.

Decision Date17 February 2021
Docket NumberDOCKET NO. A-5561-18
PartiesDOROTHY L. MOODY, by and through her power of attorney, DOROTHY GATEWOOD-GABRIEL, Plaintiff-Respondent, v. THE VOORHEES CARE AND REHABILITATION CENTER and THE LAKEWOOD OF VOORHEES OPERATOR, LLC, Defendants-Appellants, and GINA KIRCHOFF, administrator, Defendant.
CourtNew Jersey Superior Court — Appellate Division

DOROTHY L. MOODY, by and through her power of attorney,
GINA KIRCHOFF, administrator, Defendant.

DOCKET NO. A-5561-18


Argued November 9, 2020
February 17, 2021


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.

Before Judges Fasciale and Rothstadt.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-3643-16.

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Susan J. Wall argued the cause for appellants (Gibley and McWilliams, PC, attorneys; Susan J. Wall, on the briefs).

Richard J. Talbot argued the cause for respondent (Law Office of Andrew A. Ballerini and Foley & Foley, attorneys; Richard J. Talbot, of counsel; Sherry L. Foley and Timothy J. Foley, on the brief).

Anthony Cocca argued the cause for amicus curiae New Jersey Defense Association (Cocca & Cutinello, LLP, attorneys; Anthony Cocca and Katelyn E. Cutinello, of counsel and on the brief).


Defendants the Voorhees Care and Rehabilitation Center and the Lakewood of Voorhees Operator, LLC1 appeal from the Law Division's August 14, 2019 final judgment that awarded $349,687.45 to plaintiff Dorothy L. Moody, through her power of attorney, Dorothy Gatewood-Gabriel. The trial judge entered the judgment based upon a jury's determination that defendants were negligent in their care of plaintiff and that they violated the Nursing Home Responsibilities and Residents' Rights Act (NHA), N.J.S.A. 30:13-1 to -17. On appeal, defendants and amicus curiae, the New Jersey Defense Association (NJDA), argue that the trial judge improperly barred defendant's report and his

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testimony, that plaintiff's expert impermissibly testified about the NHA, was not qualified to testify as to a standard of care for nurses, and that it was improper for the trial judge to have denied defendants' motion for judgment notwithstanding the verdict (JNOV).2

Having considered defendant's and NJDA's arguments in light of the record and the applicable principles of law, we affirm as we conclude that defendants' expert's testimony was properly barred due to the untimely service of his report without explanation, and plaintiff's expert's testimony was properly admitted as the expert was qualified to present his opinions and he did not usurp the trial judge's responsibility to instruct the jury on the law. Finally, because defendants did not appeal from the denial of its JNOV motion, we have no reason to consider it on appeal.

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The facts giving rise to plaintiff's claims are derived from the trial record and are summarized as follows. Plaintiff, who is eighty-nine years old, became a resident of defendants' nursing facility on February 13, 2014. Plaintiff entered the nursing facility due to her dementia and several medical issues, including diabetes.

On June 8, 2016, at approximately 8:00 p.m., Gloria Myers, a nurse at defendants' facility, administered a finger stick blood sugar test on plaintiff without a physician's order because plaintiff was "lethargic," "irritable," and had only eaten one quarter of her dinner. The test indicated a blood sugar count of 514.

The nurse then contacted a staff physician who ordered fast-acting insulin be administered immediately and a complete blood count to be conducted the following morning. According to the staff's records, after the insulin was given, plaintiff had "[n]o acute distress" and was "more alert," and she would continue to be monitored.

The next morning, another nurse, Teresa Higgins, observed that plaintiff was lethargic and "non-arousable by verbal and tactile stimuli." She did not

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respond to a "sternal rub, was unable to take any of her medications, and did not eat breakfast." She noted that plaintiff had refused to cooperate with the blood draw scheduled for that morning. Higgins was concerned about plaintiff's blood sugar, but she did not perform a finger stick blood sugar test because "she did not have a physician's order . . . and . . . an order would be needed to obtain . . . [plaintiff's] blood glucose." Instead, Higgins contacted the physician who again ordered lab work on a stat basis to obtain plaintiff's blood sugar levels among other things. Higgins thereafter contacted the lab and relayed the physician's order. Eventually, the lab was able to obtain only one vial of blood.

During this time, plaintiff was unable to urinate and after two hours, nurses gave her water, ginger ale, "five scoops of mashed potatoes and . . . ice cream." By 3:00 p.m., plaintiff became even more lethargic.

At approximately 4:30 p.m., lab results were received that indicated that plaintiff's blood sugar was 672, her blood urea nitrogen was 58, and her sodium was 154. The lab rechecked to verify the high number, which was again confirmed.

During Higgins's shift she administered two blood sugar tests, which indicated plaintiff's blood sugar was 76, however, she could not recall when the tests were administered. She testified that she did not need a physician's order

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to check plaintiff's blood glucose at that point because the "circumstances [we]re different" from those of that morning when the physician had been "managing all of [plaintiff's] care." Higgins notified the doctor of plaintiff's lab results and he ordered that plaintiff be transferred to the hospital immediately.

Once at the hospital, plaintiff's blood sugar was tested and it indicated her blood sugar level was 840. Her blood urea nitrogen was still 58, her ketones measurement was 29.7, and her bicarbonate was low at 19. Plaintiff developed severe hyperglycemia, which was the cause of her blood sugar rising to over 800. In addition, plaintiff suffered from dehydration, ketoacidosis, hyperosmolar nonketosis, and hypokalemia.

Once her blood sugars stabilized, plaintiff was discharged on June 19, 2016. Although plaintiff still required treatment at a long-term care facility, she never returned to defendants' facility.


Plaintiff filed her complaint on October 7, 2016, alleging negligence and violations of the NHA and several federal regulations dealing with nursing homes under the Omnibus Budget Reconciliation Act of 1987, Pub. L. No. 100-203, § 4211, 101 Stat. 1330, 182, 182-221 (OBRA), codified under 42 C.F.R.

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§§ 483.1-483.480. Defendants filed their answer on February 13, 2017. Thereafter, the parties engaged in discovery.

The original discovery end date was April 14, 2018, which was then extended twice upon plaintiff's motions to extend the discovery end date such that the last discovery end date was October 31, 2018. Trial was scheduled for January 14, 2019, but in response to defendant's November 26, 2018 request, the trial judge relisted the trial first to February 11, 2019, and then to April 8, 2019.

More than four months after the discovery end date and after the first two trial dates passed, defendants served plaintiff with their expert's report on March 5, 2019, without amending their answers to interrogatories or explaining the reason for the late service as required by Rule 4:17-7. Plaintiff filed a motion to bar defendant's expert's report and his testimony. Defendants then filed a motion to bar plaintiff's medical expert from discussing alleged violations of the NHA. After considering the parties' oral arguments on April 9, 2019, the trial judge granted plaintiff's motion and reserved his decision on defendants', stating that he would make a final determination on the extent of plaintiff's medical expert's testimony when the expert testified and advising defendants to renew their objection during his testimony if they felt he was "going into some area that" they thought was "forbidden."

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Trial began the next day with defendants filing an in limine motion to again exclude plaintiff's expert's testimony. The following morning, the trial judge denied the motion and allowed plaintiff's expert to testify about the alleged violations of plaintiff's rights under the NHA.

The jury returned its verdict on April 16, 2019, awarding $125,000 on plaintiff's negligence claim and $100,000 on her NHA claim. The following week, defendants filed their JNOV motion, which the judge denied on May 10, 2019, after considering the parties' submissions and oral arguments.

Plaintiff thereafter filed an application for attorney's fees under the NHA. The trial judge granted the application and entered the final judgment in the amount of $349,687.45, which included attorney's fees and costs in the amount of $124,687.45. This appeal followed.


Defendants' and the NJDA's arguments focus on the trial judge's determinations about whether and to what extent the parties' experts could testify at trial, if at all. We review a trial judge's decision whether to bar a party's expert's testimony for an abuse of discretion. Townsend v. Pierre, 221 N.J. 36, 52 (2015). An "abuse of discretion only arises on demonstration of 'manifest

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error or injustice,'" Hisenaj v. Kuehner, 194 N.J. 6, 20 (2008) (quoting State v. Torres, 183 N.J. 554, 572 (2005)), and occurs when the trial judge's "decision is made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." Milne v. Goldenberg, 428 N.J. Super. 184, 197 (App. Div. 2012) (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 (2002)).

Applying that standard, we begin our review by addressing defendants' assertion that the trial judge improperly barred their expert from testifying. The expert report defendants served plaintiff on March 5, 2019 was from Dr. Richard G. Stefanacci and dated December 18, 2018. On March 8,...

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