                   NOT FOR PUBLICATION WITHOUT THE
                  APPROVAL OF THE APPELLATE DIVISION

                                     SUPERIOR COURT OF NEW JERSEY
                                     APPELLATE DIVISION
                                     DOCKET NO. A-2781-15T3

NORMA S. EHRLICH,
                                         APPROVED FOR PUBLICATION
     Plaintiff-Appellant,
                                              July 25, 2017
v.                                         APPELLATE DIVISION

JEFFREY J. SOROKIN, M.D.,

     Defendant-Respondent.
————————————————————————————————

         Submitted May 25, 2017 – Decided July 25, 2017

         Before Judges Hoffman, O'Connor and Mawla.

         On appeal from Superior Court of New Jersey,
         Law Division, Camden County, Docket No. L-
         2859-13.

         M.   Mark      Mendel, LTD., attorneys         for
         appellant     (John J. Del Casale, on          the
         brief).

         Stahl & DeLaurentis, P.C., attorneys           for
         respondent (Sharon  K.  Galpern, on            the
         brief).

     The opinion of the court was delivered by

HOFFMAN, J.A.D.

     Plaintiff Norma S. Ehrlich appeals from a January 28, 2016

Law Division order dismissing her complaint against defendant

Jeffrey J. Sorokin, M.D., based on a no-cause jury verdict in

her medical negligence action.     This suit arose after plaintiff
suffered     complications         from    a     colonoscopy        and     polypectomy

procedure defendant performed in 2011.                       On appeal, plaintiff

raises three claims of trial error, asserting the judge (1)

admitted    irrelevant      evidence       regarding       informed       consent,      (2)

delivered inadequate jury instructions on the standard of care,

and (3) admitted net opinion testimony.                    Following our review of

the   record      and   applicable        law,   we    agree       the    admission      of

informed consent evidence constituted harmful error.                        R. 2:10-2.

We therefore vacate the order of dismissal and remand for a new

trial consistent with this opinion.

                                           I.

      We begin by summarizing the most pertinent evidence from

the record.        In May 2003, plaintiff first came under the care of

defendant,     a    gastroenterologist,          after      her    family       physician

referred    her     based   upon    complaints        of    back    pain    and    rectal

bleeding.            Defendant      recommended            plaintiff       undergo         a

colonoscopy, which he performed on May 27, 2003.

      Plaintiff's colonoscopy revealed the presence of a polyp at

the tip of her cecum opposite the ileocecal valve.                         According to

defendant, because the polyp's size and histologic type made it

a   significant      risk   for    malignancy,        he    recommended         plaintiff

undergo surgery to remove a portion of her colon.                               Plaintiff

declined     surgery,       so     defendant      referred         her     to     another




                                            2                                     A-2781-15T3
gastroenterologist, Dr. Jerome Waye, one of the few doctors who

— at that time — removed polyps with a colonoscope.

    On November 14, 2003, Dr. Waye performed this procedure;

however, plaintiff subsequently suffered a hemorrhage.             In May

2004, plaintiff returned to the care of defendant, who informed

her she needed a surveillance colonoscopy.            Because plaintiff

suffered    from    recurrent   polyps,   defendant    performed     five

colonoscopy and polypectomy procedures between 2004 and 2011.

Defendant    used    several    techniques   to   remove    plaintiff's

recurrent polyps.      One of these procedures, the "saline lift"

technique, involves injecting fluid into the colon to lift the

polyp from the colon wall.        Once lifted, the polyp is usually

removed with a hot or cold snare.

    An alternative procedure, Argon Plasma Coagulation (APC),

utilizes a thin catheter passed through a channel.           Conductive

argon gas then passes through the channel to the location of the

polyp, followed by an electrical charge that vaporizes the cells

of the polyp.      Unlike the snare technique, the APC catheter does

not make direct contact with the polyp.

    Defendant applied the following techniques to remove polyps

from plaintiff's colon on the following dates:

            November 16, 2004 - saline lift to remove a
            polyp with a hot snare.




                                    3                          A-2781-15T3
            December 28, 2005 - saline lift to remove a
            polyp with hot and cold snares.

            March 20, 2007 - hot snare to remove a
            polyp; at trial, defendant explained he did
            not   use  saline  because   his   "clinical
            judgment was that it did not need the
            saline."

            September 21, 2009 – hot snare to remove a
            polyp, followed by the APC to "ablate
            whatever remaining polyp tissue was there."

            August 29, 2011 – APC to remove a polyp.

     Following     the       August       29   procedure,         defendant    discharged

plaintiff to her home; however, at approximately 3:00 a.m. on

August 30, plaintiff awoke in pain and told her husband, "[C]all

9-1-1[,]    I'm   in     trouble."             Emergency         personnel    transported

plaintiff    to   Virtua       Hospital,           where    she    underwent    emergency

surgery.     Virtua doctors determined plaintiff suffered from a

perforation of her colon and peritonitis.                         The doctors performed

a   right    hemicolectomy,           ileostomy,           and     mucous     fistula     on

plaintiff.        She        later    underwent            surgery    to     reverse    the

ileostomy.

     Plaintiff filed her complaint against defendant on July 12,

2013,   alleging        he     negligently           performed       the     August     2011

procedure    by   "[f]ailing         to    inject      the    polyp    and    surrounding

colon with Saline to create a cushion underneath the polyp."

She did not assert a claim for lack of informed consent.




                                               4                                  A-2781-15T3
      The case proceeded to a jury trial in January 2016.                          Prior

to   testimony,     plaintiff    moved    in       limine    to   exclude    evidence

regarding her consent to the colonoscopy procedures from 2003 to

2011.   The trial judge denied the motion, finding "the forms and

any information provided to the patient was part of the standard

of care, and therefore relevant."                  Plaintiff again raised the

issue after opening statements, but the judge reaffirmed his

decision.

      Plaintiff      then     testified,       describing         her    history       of

treatment   with     defendant.       Because         the    trial      court    denied

plaintiff's    in     limine     motion       to    exclude       informed      consent

evidence,     plaintiff's        counsel        also        questioned       plaintiff

regarding   the     various     consent       forms    she    signed     before     each

procedure completed by defendant.1

      On cross-examination, defense counsel asked plaintiff about

the language from one of her consent forms, which stated the

procedure could result in injury and hospitalization.                        Plaintiff

said the form indicated "passage of the instrument may result in

an injury, but it never said that there would be a possibility


1
     During the charge conference following the conclusion of
testimony, plaintiff's counsel explained that he addressed
informed consent matters during his case in chief only after the
trial court rejected his request to exclude informed consent
evidence as irrelevant.




                                          5                                     A-2781-15T3
that my colon might be burnt."                     Defendant also asked plaintiff

about the 2011 consent form, which she signed in defendant's

office       in   June     2011,    two        months      before        the    August        2011

procedure.        Plaintiff reiterated defendant never discussed the

potential for burning.

       Plaintiff            presented               expert          testimony                 from

gastroenterologist Stuart Finkel, M.D., who asserted defendant

deviated from the standard of care in both the 2009 and 2011

procedures.       Regarding the 2011 procedure, Dr. Finkel stated the

APC    burned     plaintiff's       colon,         resulting       in    the    perforation,

because       defendant     "failed       to    perform       saline       injection          lift

technique prior to that application of the APC, which increased

her risk for this particular complication."                             He noted "that the

finding of a flat, broad, [two] centimeter sessile polyp in . .

.     the    thinnest     area     of   the        colon     and    most       at    risk        for

perforations"          required    defendant         to    "create        [a]       cushion       of

saline"       before     using    the   APC;       defendant's          failure      to     do   so

deviated from the standard of care.

       Defendant presented expert testimony from Timothy Hoops,

M.D.        Prior to Dr. Hoops' testimony, the judge held an N.J.R.E.

104 hearing to determine the admissibility of his opinion on

proximate cause.           According to Dr. Hoops, plaintiff's multiple

polypectomies likely would have scarred her tissue or resulted




                                               6                                          A-2781-15T3
in     fibrosis,   which    would       make    the   saline     lift      procedure

ineffective by holding down the surface of the tissue.                      He gave

his opinion to a reasonable degree of medical probability, based

on "years of both my experience, as well as experience of people

that I've seen . . . and on the medical literature."                        However,

Dr. Hoops conceded none of defendant's records for plaintiff

mentioned      scarring    or   fibrosis.         Plaintiff      thus      moved    to

preclude this testimony as net opinion, which the trial judge

denied.     Dr. Hoops then testified to this information before the

jury.

       Dr. Hoops also testified that defendant's use of the APC

"was within the accepted standards of care."                  He noted, "At the

time    [the    2011]     procedure      was    performed,"      there     were     no

guidelines     regarding     the    use    of   saline   with        the   APC,     and

"[t]here was nothing for it or against it;" in addition, he had

never seen a doctor use them together.                He further noted, "[A]t

the time of the procedure . . . there was no evidence that doing

the saline lift would have reduced the risk for perforation."

On cross-examination, Dr. Hoops acknowledged that saline lifts

are "very safe" overall, but added, "[T]here might be some risks

for infection."

       Defendant    testified      he     did   not   use      the    saline       lift

technique during the August 2011 procedure because "there was no




                                          7                                 A-2781-15T3
literature to support the use of the saline lift technique with

an [APC]."       He said there is a risk for perforation any time he

performs     a   colposcopy,      and     burning        a    colon     is   a    "known

complication of the use of [the APC] for the performance of

colonoscopy."

      At the end of the testimony, the trial judge allowed the

jury to review plaintiff's informed consent documents as part of

its   deliberation.       Responding          to   plaintiff's        objection,       the

judge stated:

           If you can go and talk about all that Dr.
           Sorokin had done in 2003, 2004, 2005 and so
           on, and exclude this small piece of it, that
           cannot be consistent with notions of justice
           or the search of truth. And maybe if I mis-
           characterized it as going to the standard of
           care that was my fault and a mistake.    But
           in a fundamental sense, there could be no
           way to have a fair trial that would allow
           the plaintiff to explore this treatment for
           all these years, include the detail of it,
           including almost every single statement
           written by Dr. Sorokin, and exclude the
           informed consent.   That can't be consistent
           with a notion of a fair trial.

      Plaintiff then submitted a proposed jury instruction on the

standard   of    care.    The     trial       judge   denied      this   request       and

proceeded to charge the jury under the model jury charge.                              The

next day, the jury asked the court to reiterate "the definition

of standard of care[.]"          Plaintiff again requested a custom jury

charge,    but     the   judge     re-read         the       previous    instruction.




                                          8                                      A-2781-15T3
Following       additional       deliberation,     the    jury     reached     a     6-1

verdict that defendant did not breach the standard of care.

    Plaintiff filed a motion for a new trial, which the judge

denied.    This appeal followed.

                                            II.

    We     first    address      plaintiff's      contention     the   trial       judge

erred by allowing defendant to present irrelevant and misleading

evidence of her informed consent to the colonoscopy procedures.

Plaintiff argues, because she did not assert a claim for lack of

informed    consent,       the     sole   issue   was    whether    defendant       was

negligent for failing to perform a saline lift with the APC.

She asserts a new trial is necessary because defendant misled

the jury to believe consent was connected to the standard of

care.     We are constrained to agree.

    Our     review    of     the    trial    court's    evidential     rulings      "is

limited    to    examining       the   decision   for    abuse   of    discretion."

Parker v. Poole, 440 N.J. Super. 7, 16 (App. Div.) (quoting

Hisenaj v. Kuehner, 194 N.J. 6, 12 (2008)), certif. denied, 223

N.J. 163 (2015).       We will only reverse if the error "is of such

a nature as to have been clearly capable of producing an unjust

result."    Ibid. (quoting R. 2:10-2).

    Pursuant to our rules, evidence is relevant if it has "a

tendency in reason to prove or disprove any fact of consequence




                                             9                               A-2781-15T3
to the determination of the action."                    N.J.R.E. 401.          Relevant

evidence     is    generally      admissible,       N.J.R.E.      402,   but   "may    be

excluded if its probative value is substantially outweighed by

the risk of . . . undue prejudice, confusion of issues, or

misleading the jury."          N.J.R.E. 403.

      To prevail in a medical malpractice action based upon a

deviation     from     the    standard         of   care,   the     plaintiff     "must

generally      present       expert      testimony      establishing       '(1)       the

applicable standard of care; (2) a deviation from that standard

of   care;    and    (3)   that    the    deviation     proximately       caused      the

injury.'"         Newmark-Shortino v. Buna, 427 N.J. Super. 285, 304

(App. Div. 2012) (quoting Telihaber v. Greene, 320 N.J. Super.

453, 465 (App. Div. 1999)), certif. denied, 213 N.J. 45 (2013).

"A physician must act with that degree of care, knowledge, and

skill ordinarily possessed and exercised in similar situations

by   the   average     member      of    the    profession     practicing       in    the

field."      Aiello v. Muhlenberg Reg'l Med. Ctr., 159 N.J. 618, 626

(1999).

      Informed consent is generally unrelated to the standard of

care for performing medical treatment.                      Eagel v. Newman, 325

N.J. Super. 467, 474-75 (App. Div. 1999).

             [T]he informed-consent basis of malpractice,
             as opposed to deviation from the applicable
             standard of care, rests not upon the
             physician having erred in diagnosis or



                                           10                                  A-2781-15T3
               administration of treatment but rather in
               the failure to have provided the patient
               with adequate information regarding the
               risks of a given treatment or with adequate
               information regarding the availability of
               alternative treatments and the comparative
               risks and benefits of each.

               [Ibid.]

       "Although       each      cause   of          action    is    based      on    different

theoretical underpinnings, 'it is now clear that deviation from

the standard of care and failure to obtain informed consent are

simply   sub-groups         of    a   broad          claim    of    medical     negligence.'"

Newmark-Shortino, supra, 427 N.J. Super. at 303 (quoting Howard

v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537, 545 (2002)).

However,       these       theories      are          distinguishable         because        they

represent two independent duties: "(1) the duty to diagnose and

treat a patient in accordance with the standard of care; and (2)

the    duty     to     disclose        all       medically          reasonable        treatment

alternatives      .    .    .    so   that       a    patient      may   make    an    informed

decision."       Ibid. (citing Matthies v. Mastromonaco, 160 N.J. 26,

39-40 (1999)).

       Plaintiffs        must     meet       a       different,       four-part       test     to

establish the prima facie case for lack of informed consent.

See Telihaber, supra, 320 N.J. Super. at 465.                             "[T]o sustain a

claim based on lack of informed consent, the patient must prove

that     the     doctor         withheld         pertinent          medical       information




                                                 11                                    A-2781-15T3
concerning    the        risks       of   the      procedure            or    treatment,        the

alternatives,       or    the       potential      results         if    the    procedure        or

treatment were not undertaken."                 Howard, supra, 172 N.J. at 548.

      As   plaintiff          recognizes,       there    are       no    New    Jersey       cases

specifically addressing the admissibility of informed consent

evidence    where     the       plaintiff       has     only       asserted      a    claim      of

negligent treatment.             She therefore relies on cases from other

state    courts     addressing         this     issue,    in        particular        a    recent

Pennsylvania Supreme Court decision, Brady v. Urbas, 111 A.3d

1155 (Pa. 2015).

      In   Brady,    the       plaintiff      asserted         a    claim      for    negligent

treatment and moved in limine to exclude any consent-related

evidence; the trial court denied her motion.                                  After reviewing

the evidence during deliberations, the jury returned a verdict

in favor of the plaintiff's doctor.                      Id. at 1158.                On appeal,

the doctor argued the evidence was relevant to establish the

applicable standard of care.                    Id. at 1159.                 The Pennsylvania

Supreme Court disagreed, finding "the fact that a patient may

have agreed to a procedure in light of the known risks does not

make it more or less probable that the physician was negligent

in either considering the patient an appropriate candidate for

the     operation        or    in     performing         it        in    the     post-consent

timeframe."       Id. at 1162.            The Court also concluded that such




                                              12                                          A-2781-15T3
evidence could confuse the jury by distracting it from whether

the doctor breached the standard of care.                   Id. at 1163-64.

    The     other    state   courts      plaintiff          cites    reached      similar

conclusions.        See Baird v. Owczarek, 93 A.3d 1222, 1232 (Del.

2014)   (agreeing     that   "evidence        of    informed        consent,      such   as

consent    forms,    is   both    irrelevant        and     unduly    prejudicial        in

medical malpractice cases without claims of lack of informed

consent"    (quoting      Hayes    v.   Camel,      927     A.2d    880,    889    (Conn.

2007))); Waller v. Aggarwal, 688 N.E.2d 274, 275 (Ohio Ct. App.

1996) ("[T]he issue of informed consent was not relevant to

appellant's claim of negligence."); Wright v. Kaye, 593 S.E.2d

307, 317 (Va. 2004) (holding where the plaintiff did not plead

lack of informed consent, "evidence of information conveyed to

[plaintiff] concerning the risks of surgery in obtaining her

consent is neither relevant nor material to the issue of the

standard    of   care");     cf.    Hayes,         supra,    927     A.2d    at     889-91

(holding the trial court abused its discretion by admitting such

evidence, but finding the error harmless).

    Additional       state   courts     have       found     evidence       of   informed

consent irrelevant and potentially prejudicial where the issue

was negligent treatment.           See Schwartz v. Johnson, 49 A.3d 359

(Md. Ct. Spec. App. 2012); Wilson v. Patel, 517 S.W.3d 520 (Mo.

2017); Warren v. Imperia, 287 P.3d 1128 (Or. Ct. App. 2012); cf.




                                         13                                       A-2781-15T3
Liscio v. Pinson, 83 P.3d 1149, 1156 (Colo. App. 2003) (finding

informed consent evidence may be irrelevant but not reversible

error where the plaintiff "opened the door").

    Furthermore, although not directly on point, our decision

in Gonzalez v. Silver, 407 N.J. Super. 576 (App. Div. 2009), is

instructive on this issue.               Gonzalez was a medical malpractice

action   wherein    the     defendant          doctor       attempted      to    introduce

hearsay testimony regarding statements plaintiff made about the

cause of his injury.         Id. at 593.              We held that such testimony

was irrelevant to the issue of whether or not the defendant

doctor provided proper medical care, and though it was perhaps

relevant for impeachment, it carried "an enormous potential for

prejudice."     Id. at 594-95.            We concluded the balance "should

have weighed in favor of excluding such evidence."                         Id. at 595.

    Considering         Gonzalez    and       the     non-binding       but     persuasive

out-of-state    cases,      we     are    convinced          the     admission     of   the

informed     consent     evidence        in        this    matter,    where      plaintiff

asserted     only   a    claim     of     negligent          treatment,       constituted

reversible     error.       The     only           issue    at     trial   was    whether

defendant's use of the APC without a saline lift deviated from

the standard of care.            Plaintiff's acknowledgment of the risk

for perforation had no bearing on this determination.                              Indeed,

although negligent treatment and informed consent fall under the




                                              14                                  A-2781-15T3
umbrella of medical negligence, our law clearly distinguishes

the two claims, and they require different elements of proof.

See    Newmark-Shortino,        supra,      427    N.J.    Super.    at       304.        We

therefore conclude the informed consent evidence was irrelevant

to the issue presented at trial, N.J.R.E. 401, and should have

been excluded on plaintiff's motion in limine.

       We reject defendant's assertion the evidence was relevant

to    "counter    plaintiff's       testimony     on    direct    examination         that

[defendant] gave plaintiff absolutely no information about her

condition and treatment."              We also disagree with the judge's

end-of-trial       conclusion       that    plaintiff       opened      the    door       by

exploring her entire history with defendant.                     Rather, the record

shows    that    after    twice     attempting     to     exclude    this     evidence,

plaintiff       tried    to   minimize     its    damage    by   addressing          it   on

direct examination.           As the judge incorrectly ruled the informed

consent evidence admissible prior to any testimony, we flatly

reject defendant's attempt to assign relevance to this evidence

after the fact.           Moreover, we find defendant went beyond the

purported purpose of rebutting plaintiff's claims by raising the

consent issue during Dr. Hoops' testimony and during summation.

       We   further      conclude    this    evidence      had    the     capacity        to

mislead the jury, N.J.R.E. 403, thereby making it capable of

producing an unjust result.                R. 2:10-2.        As the Pennsylvania




                                           15                                   A-2781-15T3
Supreme Court noted, "the jury might reason that the patient's

consent    to    the    procedure   implies    consent     to    the   resultant

injury, see Wright, [supra,] 593 S.E.2d at 317, and thereby lose

sight     of    the    central   question     pertaining    to    whether     the

defendant's      actions    conformed    to   the    governing     standard    of

care."     Brady, supra, 111 A.3d at 1163.               This was especially

true here, where the jury received the consent forms as part of

their deliberations, immediately after hearing defense counsel's

summation referencing this issue.

    Accordingly, we conclude that the admission of the informed

consent    evidence     constituted     reversible   error.       We   therefore

vacate the dismissal order and remand for a new trial.

                                      III.

    In order to provide guidance to the court on remand, we

briefly address plaintiff's remaining arguments and find they

lack merit.        Plaintiff first argues the trial judge erred by

rejecting her proposed jury charge on the standard of care.                   The

proposed charge added the following language to the model jury

charge:

               The law recognizes that the practice of
               medicine   is     not    an    exact science.
               Therefore,    the     practice    of medicine
               according to accepted medical standards may
               not prevent a poor or unanticipated result.
               However, when a risk is obvious, and a
               precautionary measure available, an industry
               or professional standard that does not call



                                        16                              A-2781-15T3
            for such precaution is not conclusive if,
            regardless of the standard or custom, the
            exercise of reasonable care would call for a
            higher standard.     Therefore, whether Dr.
            Sorokin was negligent depends not on the
            outcome but on whether he adhered to or
            departed from the applicable standard of
            care.

            [(emphasis added).]

      Plaintiff based this language on our decision in Estate of

Elkerson v. North Jersey Blood Center, 342 N.J. Super. 219 (App.

Div.), certif. denied, 170 N.J. 390 (2001).                  In Elkerson, the

plaintiff produced expert testimony establishing that the entire

blood bank industry was following inadequate safety standards in

screening    donated      blood,   when      a   better   test   was   known   and

available.       Id. at 233-35.        In that context, we held the trial

court erred in limiting the jury to considering whether the

defendant blood bank followed the prevailing industry practice

at the time of the plaintiff's blood transfusion.                  "[T]he trial

court's negligence charge constitutes reversible error because

it   did   not   allow    the   jury    to   reject   the   industry    standard

applied uniformly by blood banks in 1983 in favor of its own

expert-informed judgment in determining whether that custom was

or was not reasonable."         Id. at 235.

      Elkerson     is    inapplicable     here    because   plaintiff    did   not

produce an expert report to opine the existing standard of care

for APC use was unreasonable.                Rather, this was a case where



                                        17                               A-2781-15T3
plaintiff presented expert testimony that the standard of care

required defendant to use the saline lift with the APC, and

defendant presented expert testimony that the standard of care

did not require this technique.            Unlike in Elkerson, here no

guidelines stated doctors should not use a saline lift with the

APC.     We therefore find the trial judge did not err by rejecting

plaintiff's requested charge.

       Plaintiff also argues the trial judge erred by permitting

Dr. Hoops to deliver net opinion testimony regarding proximate

cause.     "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   v.   Pierre,     221   N.J.    36,   53-54    (2015)

(alterations in original) (quoting Polzo v. County of Essex, 196

N.J. 569, 583 (2008)).         A net opinion is "a bare conclusion

unsupported by factual evidence."           Creanga v. Jardal, 185 N.J.

345, 360 (2005).       To avoid a net opinion, the expert must "'give

the why and wherefore' that supports the opinion."                 Townsend,

supra, 221 N.J. at 54 (quoting Borough of Saddle River v. 66 E.

Allendale, LLC, 216 N.J. 115, 144 (2013)).

       Experts are required to "be able to identify the factual

bases    for   their   conclusions,   explain    their    methodology,       and

demonstrate that both the factual bases and the methodology are




                                      18                               A-2781-15T3
reliable."       Id. at 55 (quoting Landrigan v. Celotex Corp., 127

N.J. 404, 417 (1992)).           The net opinion rule is a "prohibition

against speculative testimony."            Harte v. Hand, 433 N.J. Super.

457, 465 (App. Div. 2013) (quoting Grzanka v. Pfeifer, 301 N.J.

Super. 563, 580 (App. Div. 1997), certif. denied, 154 N.J. 607

(1998)).

    Dr. Hoops testified that plaintiff's multiple polypectomies

would    have    caused   scarring   in    her    colon,    likely   making   the

saline lift procedure ineffective.                Plaintiff asserts, because

defendant's notes contained no reference to scar tissue, Dr.

Hoops' testimony on this issue "constituted nothing more than

mere speculation."        Although the record did not show definitive

evidence of scarring, Dr. Hoops set forth the factual basis for

his opinion, noting in the "majority of cases," a polypectomy

procedure would result in scarring, and it was "[a]bsolutely

more likely than not that . . . [the] area would have been

scarred down and would not have lifted.               The . . . saline lift

would have been unsuccessful; you would have had a non-lift

sign."      He    based   this    opinion    on    his     medical   experience.

Therefore, giving deference to the trial judge's decision on

expert testimony, Townsend, supra, 221 N.J. at 52, we discern no

error in his admission of this evidence.

    Vacated and remanded.          We do not retain jurisdiction.




                                      19                                A-2781-15T3
