                        NOT FOR PUBLICATION WITHOUT THE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-5165-15T2

SANDRA NICHOLAS and CORY LEO,
individually and as Administrators
Ad Prosequendum of the ESTATE OF
SANTINO MICHAEL LEO,

        Plaintiffs-Appellants,

v.

HACKENSACK UNIVERSITY MEDICAL CENTER,

        Defendant-Respondent,

and

BRUCE FRIEDMAN, M.D., MARK SIEGEL, M.D.,
STEPHEN PERCY, M.D., and ABRAHAM
ZERYKIER, M.D.,

     Defendants.
__________________________________________

              Argued January 16, 2018 – Decided August 9, 2018

              Before Judges Messano, Accurso and Vernoia.

              On appeal from Superior Court of New Jersey,
              Law Division, Middlesex County, Docket No. L-
              4839-12.

              William L. Gold argued the cause for
              appellants (Bendit Weinstock, PA, attorneys;
              William L. Gold, on the briefs).
           Richard J. Mirra argued the cause for
           respondent (Hoagland, Longo, Moran, Dunst &
           Doukas, LLP, attorneys; Richard J. Mirra, of
           counsel and on the brief; Andrew J. Obergfell,
           on the brief).

PER CURIAM

    Plaintiffs Sandra Nicholas and Cory Leo, individually and as

administrators ad prosequendum of the estate of their four-year-

old son Santino Michael Leo, appeal from orders resulting in the

dismissal of their medical malpractice action against defendant

Hackensack University Medical Center (HUMC).           We reverse.

                                    I.

    After suffering seizures, Santino Michael Leo was admitted

to HUMC on April 30, 2011.       While in HUMC's pediatric intensive

care unit (PICU), it was determined he had an airborne infection,

methicillin-resistant staphylococcus aureus, and pneumonia.                   He

developed acute respiratory distress, multiple organ failure and

sepsis, and passed away on May 13, 2011.

    In    July    2012,    plaintiffs    filed    a   wrongful    death     and

survivorship     medical   malpractice    complaint    against    HUMC,     the

child's   treating   physicians,   Dr.    Bruce   Friedman,      Dr.   Stephen

Percy, and Dr. Mark Siegel,1 and fictitiously-named physicians,


1
   Dr. Abraham Zerykier was also named as a defendant but was
subsequently dismissed from the action by stipulation of the
parties.


                                    2                                  A-5165-15T2
nurses and other HUMC staff.      At the time of the malpractice

alleged in the complaint, each of the named physicians was board

certified in pediatrics and in pediatric critical care.

     In support of their complaint, plaintiffs filed affidavits

of merit (AOM) from Dr. Howard Eigen, and Alisha Wursten, R.N.,

B.S.N.   In his AOM, Dr. Eigen states he is a licensed physician

in the state of Indiana, "board certified and credentialed by a

hospital for at least five years in the          [sub]specialties of

pediatric pulmonology and critical care" and, "[d]uring the year

immediately preceding the date of the occurrence that is the basis

of the claim or action, . . . devoted a majority of [his]

professional time to the active clinical practice of pediatric

pulmonology and critical care."       Dr. Eigen subsequently provided

three reports opining as to the alleged deviations from the

standard of care by Drs. Friedman, Percy and Siegel, and other

HUMC personnel,2 and the manner in which the deviations proximately



2
   In Dr. Eigen's report dated June 18, 2014, he asserted the
absence of a "systematic method for enforcing infection control
measures" in HUMC's PICU fell "below the standard of care, and
increased the risk of nosocomial infections . . . at the time that
Santino [Michael] Leo was being treated." Dr. Eigen also noted
that the "[l]ack of sterile procedure has a high likelihood of
introducing bacteria into the blood stream at the time of the
central line placement" in the child, and other lapses in procedure
"greatly increased [the child's] risk of sepsis and death."



                                  3                           A-5165-15T2
caused   the   child's   death.       The   parties   waived   the      Ferreira3

conference.

       Almost three years later, Dr. Eigen testified during his

March 2015 deposition that he was board certified in pediatrics

and in the subspecialty of pediatric critical care, and in 2011

was credentialed at the Riley Hospital for Children to practice

pediatric and pediatric critical care medicine.             He also testified

that from 2006 through 2011, he served as the medical director of

the hospital's PICU, and was on call approximately ten weeks per

year providing care to the PICU patients.                 When he was not on

call, Dr. Eigen administered the PICU and served as the vice-

chairman of pediatrics for clinical affairs.              Dr. Eigen testified

that between 2006 and 2011 he devoted twenty-five percent of his

time   to   direct   patient   care    in   the   PICU,    fifty   percent      to

administrative       duties    and    twenty-five     percent      to     seeing

outpatients and teaching residents in the outpatient clinics.




3
  In Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003),
the Court determined that "a 'case management conference [shall]
be held within ninety days of the service of an answer in all
malpractice actions' . . . [where] a 'defendant [is] required to
advise the court whether he has any objections to the adequacy of
the affidavit' that has been served on him." Buck v. Henry, 207
N.J. 377, 394 (2011) (third alteration in original) (internal
citation omitted) (quoting Ferreira, 178 N.J. at 154-55); see also
Meehan v. Antonellis, 226 N.J. 216, 221 (2016) (reinforcing the
importance of such a conference).

                                       4                                 A-5165-15T2
      Drs. Friedman, Percy and Siegel moved for summary judgment,

arguing plaintiffs lacked proof they deviated from the requisite

standard of care because Dr. Eigen was not qualified to testify

as   an   expert    under     the   New   Jersey   Medical   Care    Access     and

Responsibility and Patients First Act, N.J.S.A. 2A:53A-37 to -42.

The physicians claimed Dr. Eigen was not qualified to testify

because he did not devote the majority of his professional time

to   clinical      practice    during     the   year   preceding    the   alleged

malpractice in 2011, and therefore did not satisfy the requirements

of N.J.S.A. 2A:53A-41(a)(2).

      In its written opinion, the court noted the physicians'

summary judgment motions presented the following issue:                   "whether

[p]lainiffs' proffered expert[, Dr. Eigen,] is qualified as an

expert under N.J.S.A. 2A:53A-41(a)(1) or N.J.S.A. 2A:53A-41(a)(2)

as required under Nicholas v. Mynster, 213 N.J. 463 (2013)."                    The

court determined that although Dr. Eigen is board certified in

pediatrics and pediatric critical care, he did not satisfy the

requirements of either N.J.S.A. 2A:53A-41(a)(2)(a) or N.J.S.A.

2A:53A-41(a)(2)(b), "which require either devotion to practice or

the teaching requirement mandated for a board certified expert."

The court concluded Dr. Eigen did not satisfy the statutory

requirements because he "only devoted a small percentage of his



                                          5                                A-5165-15T2
practice time to pediatric critical care in the year prior to the

date of the alleged malpractice[.]"

      In separate orders dated September 22, 2015, the court barred

Dr. Eigen's testimony against Drs. Siegel and Friedman, and granted

summary judgment in their favor, and barred Dr. Eigen's testimony

against Dr. Percy.      Two weeks later, the court entered an order

granting Dr. Percy summary judgment.

      In October 2015, plaintiffs moved for an order permitting Dr.

Eigen to testify as to the standard of care and causation against

HUMC.   Plaintiffs argued the court's order barring Dr. Eigen's

testimony as to the defendant physicians under the Patients First

Act did not preclude him from testifying as an expert against

HUMC.

      After hearing argument, the court denied the motion in a

December 11, 2015 order.     In its written opinion, the court noted

plaintiffs' liability claims against HUMC were premised on the

hospital's alleged vicarious liability for the negligence of the

defendant physicians, who the court found were "employees of"

HUMC.   The court reasoned that its prior disqualification of Dr.

Eigen as an expert against the physicians precluded his testimony

against the hospital, and found it could not "allow [p]laintiff[s]

to   bootstrap   into   evidence   the   excluded   testimony   of     [the]

dismissed defendant doctors['] deviation [from] the standard of

                                    6                                A-5165-15T2
care    under   the     circumstances."       The   court      determined       that

plaintiffs could not use Dr. Eigen's testimony to support their

claim HUMC is liable due to the defendant physicians' deviation

from the standard of care because Dr. Eigen was not qualified to

testify concerning the physicians' alleged negligence under the

Patients     First    Act.     The   court   concluded   Dr.    Eigen     was   not

permitted to testify as to HUMC's alleged deviation from the

standard of care "because it would violate the rule of N.J.S.A.

2A:53A-41(a) et. seq."

       Plaintiffs filed a motion to correct the court's December 11,

2015 order to permit Dr. Eigen to offer proximate causation

testimony as to HUMC.4          In a February 11, 2016 order, the court

denied the motion.           In its written opinion, the court found Dr.

Eigen's proximate causation testimony would be "unduly prejudicial

under the circumstances of this case" because he "disavowed"

offering standard of care opinions as to HUMC in his reports and

deposition.      In addition, the court found that permitting Dr.

Eigen   to    testify    about    proximate    causation    would    be    unduly

prejudicial to HUMC because the court's order barring his testimony

as to the defendant physicians would necessarily preclude HUMC




4
   Plaintiffs intended to rely on Wursten as their expert witness
on HUMC's alleged deviation from the standard of care.

                                        7                                 A-5165-15T2
from   cross-examining    Dr.    Eigen   about   the   physicians'   alleged

deviations from the standard of care.

       On February 17, 2016, HUMC moved for summary judgment claiming

plaintiffs    lacked     expert    testimony     establishing    proximate

causation.    Plaintiffs cross-moved to allow late service of an

expert report from Dr. Emily Dawson and substitution of Dr. Dawson

for Dr. Eigen as their expert.             Plaintiffs argued that late

submission of the report should be permitted because they could

not have anticipated what they characterized as the court's "novel"

rulings barring Dr. Eigen's testimony, and because Dr. Eigen

retired and was no longer available.

       On June 3, 2016, the court denied plaintiffs' cross-motion,

finding their need for a new expert was the result of their failure

to comply with N.J.S.A. 2A:53A-41, and their request was made too

late - a year and a half after the discovery end date and following

seven scheduled trial dates.         The court granted HUMC's summary

judgment motion, finding plaintiffs lacked an expert on proximate

cause that was essential to their malpractice claim.            On July 8,

2016, the court denied plaintiffs' motion for reconsideration of

its June 3, 2016 orders.        This appeal followed.

       Plaintiffs do not appeal the orders barring Dr. Eigen's

testimony as to the physicians or granting the physicians' summary

judgment motions.      Instead, plaintiffs challenge the December 11,

                                     8                               A-5165-15T2
2015 order barring Dr. Eigen from testifying as to the standard

of care and proximate cause as to HUMC, the February 11, 2016

order barring Dr. Eigen from testifying as to proximate cause as

to HUMC, the June 3, 2016 orders granting HUMC summary judgment

and denying plaintiffs' cross-motion permitting the late filing

of a new expert report, and the July 8, 2016 order denying their

motion for reconsideration.     In its brief on appeal, plaintiffs

make clear they do "not seek reversal of any of the [o]rders as

to any of the individual doctors and only seek[] to reinstate the

claim against HUMC."

     Plaintiffs     present   the   following   arguments   for   our

consideration:

          POINT I

          THE MOTION COURT IMPROPERLY BARRED THE
          TESTIMONY OF PLAINTIFFS' EXPERT UNDER THE
          RELEVANT STATUTES WHICH ARE APPLICABLE ONLY
          TO PHYSICIANS, NOT TO HOSPITALS.

          POINT II

          BECAUSE DR. EIGEN WAS QUALIFIED UNDER N.J.S.A.
          2A:53A-41(a)(1), BARRING HIS TESTIMONY IS
          REVERSIBLE ERROR.

          POINT III

          BARRING DR. EIGEN FROM TESTIFYING ON PROXIMATE
          CAUSE IS REVERSIBLE ERROR.




                                    9                        A-5165-15T2
           POINT IV

           DISMISSAL OF PLAINTIFFS' CASE WAS TOO HARSH A
           REMEDY.
                                II.

      The orders barring Dr. Eigen's testimony against HUMC and

granting HUMC summary judgment are founded on the court's initial

determination that Dr. Eigen was not qualified to testify against

the physicians because he did not satisfy the requirements of

N.J.S.A. 2A:53A-41(a)(2)(a) or N.J.S.A. 2A:53A-41(a)(2)(b).                          We

therefore first consider whether the court correctly determined

Dr. Eigen was not qualified to testify as an expert under the

Patients First Act.

      "[W]e apply . . . [a] deferential approach to a trial court's

decision to admit expert testimony, reviewing it against an abuse

of   discretion    standard."       Borough      of    Saddle   River    v.    66    E.

Allendale,   LLC,    216   N.J.    115,       154-55   (2013)   (alterations         in

original) (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207

N.J. 344, 371-72 (2011)).          "Absent a clear abuse of discretion,

an appellate court will not interfere with the exercise of that

discretion."      Carey v. Lovett, 132 N.J. 44, 64 (1993).

      Enacted in 2004, "[t]he [Patients First Act] establishes

certain   qualifications          that    expert       witnesses    in        medical

malpractice actions must possess."              Castello v. Wohler, 446 N.J.

Super. 1, 14 (App. Div.) (citation omitted), certif. denied, 228

                                         10                                   A-5165-15T2
N.J. 154 (2016).   The Patients First Act "generally requir[es] the

challenging     expert   to   be    equivalently-qualified   to    the

defendant[.]"    Ryan v. Renny, 203 N.J. 37, 52 (2010).

     In pertinent part, the Patients First Act provides:

          In an action alleging medical malpractice, a
          person shall not give expert testimony or
          execute an affidavit pursuant [N.J.S.A.
          2A:53A-26 to -28]5 on the appropriate standard
          of practice or care unless the person is
          licensed as a physician or other health care
          professional in the United States and meets
          the following criteria:

          a. If the party against whom or on whose
          behalf the testimony is offered          is a
          specialist or subspecialist recognized by the
          American Board of Medical Specialties [ABMS]
          or the American Osteopathic Association and
          the care or treatment at issue involves that
          specialty or subspecialty . . . , the person
          providing the testimony shall have specialized
          at the time of the occurrence that is the basis
          for the action in the same specialty or
          subspecialty, . . . , as the party against
          whom or on behalf the testimony is offered,
          and if the person against whom or on whose
          behalf the testimony is being offered is board
          certified and the care or treatment at issue
          involves that board specialty or subspecialty
          . . . the expert witness shall be:



5
   In relevant part, N.J.S.A. 2A:53A-26 to -28 generally provides
that in any action for damages for personal injury, wrongful death
or property damage resulting from the negligence of certain
licensed persons, including physicians in the practice of medicine
or surgery, the plaintiff must file an affidavit of an
appropriately licensed person that there exists a reasonable
probability the defendant's conduct fell outside of acceptable
professional or occupational standards.

                                   11                         A-5165-15T2
          (1) a physician credentialed by a hospital to
          treat patients for the medical condition, or
          to perform the procedure, that is the basis
          for the claim or action; or

          (2) a specialist or subspecialist recognized
          by the American Board of Medical Specialties
          or the American Osteopathic Association who
          is board certified in the same specialty or
          subspecialty,   .   .   .  during   the  year
          immediately   preceding   the  date   of  the
          occurrence that is the basis for the claim or
          action, shall have devoted a majority of his
          professional time to either:

          (a) the active clinical practice of the same
          health care profession in which the defendant
          is licensed, and, if the defendant is a
          specialist or subspecialist . . . , the active
          clinical practice of that specialty or
          subspecialty . . . ; or

          (b) the   instruction   of   students   in  an
          accredited medical school, other accredited
          health professional school or accredited
          residency or clinical research program in the
          same health care profession in which the
          defendant is licensed, and, if that party is
          a   specialist   or   subspecialist   .   .  .
          accredited residency or clinical research
          program in the same specialty or subspecialty
          . . . ; or

          (c) both.

          [N.J.S.A. 2A:53A-41(a) (emphasis added).]

     In Nicholas, our Supreme Court explained N.J.S.A. 2A:53A-

41(a)'s requirements where, as here, a plaintiff proffers an expert

who is board certified in a specialty and a subspecialty to testify

about the care or treatment rendered by another physician in the


                               12                           A-5165-15T2
same specialty and subspecialty.6       213 N.J. at 479-88.    The Court

first noted that where "a physician is a specialist and the basis

of the malpractice action 'involves' the physician's specialty,

the challenging expert must practice in the same specialty."          Id.

at 481-82; accord Castello, 446 N.J. Super. at 16.       A plaintiff's

expert "must be a specialist in the same field in which the

defendant physician specializes . . . ."         Nicholas, 213 N.J. at

482; see N.J.S.A. 2A:53A-41(a); see also Meehan, 226 N.J. at 233

(explaining N.J.S.A. 2A:53A-41(a) requires that a "proposed expert

. . . must have specialized in the same specialty or subspecialty"

as the defendant physician).

     N.J.S.A.      2A:53A-41(a)        imposes    additional      expert

qualifications where a defendant physician practices in an ABMS

specialty and is also board certified in the specialty.        Nicholas,

213 N.J. at 482.     The Court explained that "if the defendant-

physician specializes in a practice area 'and . . . is board

certified and the care or treatment at issue involves that board



6
   Where the treatment at issue is not provided by a specialist,
or is provided by a specialist but does not involve the physician's
specialty, the requirements for the qualification of an expert to
testify against a general practitioner apply. Buck, 207 N.J. at
391; see also N.J.S.A. 2A:53A-41(b).         The standard has no
application here because the defendant physicians were specialists
in pediatrics and subspecialists in pediatric critical care and
their   alleged    malpractice   involved    that   specialty   and
subspecialty.

                                  13                             A-5165-15T2
specialty . . . , the expert witness' then must" satisfy the

requirements of "either" N.J.S.A. 2A:53A-41(a)(1) "or" N.J.S.A.

2A:53A-41(a)(2).        Ibid. (citation omitted); see also Castello, 446

N.J. Super. at 15 (noting that where the defendant physician is

board     certified     in    the   specialty    involved       in   the       alleged

malpractice, the challenging expert must satisfy the requirements

of N.J.S.A. 2A:53A-41(a), and "the additional qualifications set

forth in subsections (a)(1) or (a)(2)"); Lomando v. United States,

667 F.3d 363, 383 (3d Cir. 2011) (finding N.J.S.A. 2A:53A-41(a)

requires    that   an    expert     offering    testimony    against       a    board-

certified       specialist      share   that     specialty       and   meet           the

requirements of either N.J.S.A. 2A:53A-41(a)(1) or (a)(2)).

     To    satisfy      N.J.S.A.    2A:53A-41(a)(1)'s       requirements,             the

expert must be "credentialed by a hospital to treat the condition

at issue . . . ."            Nicholas, 213 N.J. at 482.          To satisfy the

requirements      of   N.J.S.A.     2A:53A-41(a)(2),      the   expert         must   be

"board certified in the same specialty in the year preceding 'the

occurrence that is the basis for the claim or action,'" ibid.

(quoting     N.J.S.A.        2A:53A-41(a)(2)),      and     during     the         year

immediately preceding the occurrence he or she must have devoted

a majority of his or her time to "either" clinical practice as

defined    in   N.J.S.A.      2A:53A-41(a)(2)(a)     or   the    instruction          of

students as defined in N.J.S.A. 2A:53A-41(a)(2)(b), ibid.

                                        14                                     A-5165-15T2
     Measured against the statutory standards as explained by the

Court in Nicholas, we are convinced the court erred by determining

Dr. Eigen was not qualified to testify against the defendant

physicians.   In the first instance, Dr. Eigen met the requirements

of N.J.S.A. 2A:53A-41(a).       He was a licensed physician and, at the

time of the alleged malpractice, "specialized . . . in the same

specialty,    [pediatrics,     and]    subspecialty   [pediatric      critical

care,]" involved in the treatment and care at issue.            See N.J.S.A.

2A:53A-41(a).       Although   Dr.    Eigen's    administrative    duties     as

director of the PICU and as a hospital administrator consumed a

substantial amount of his professional time in 2011, his clinical

practice was devoted exclusively to the practice of pediatrics and

pediatric critical care.       See Buck, 207 N.J. at 391 (finding "[a]

physician may practice in more than one specialty").

     N.J.S.A. 2A:53A-41(a) does not require that a proposed expert

devote a majority of his or her professional time to the practice

of the pertinent specialty.           It requires only a showing that a

proposed expert "practice in the same specialty" as a defendant

physician.    Nicholas, 213 N.J. at 486.           In Nicholas, the Court

determined    the   plaintiff's       proposed   expert   did   not    satisfy

N.J.S.A. 2A:53A-41(a)'s requirements because although credentialed

at a hospital and board certified in the pertinent specialties,

the expert "did not specialize" in those specialties when the

                                      15                               A-5165-15T2
alleged malpractice occurred. Id. at 487. Similarly, in Castello,

446 N.J. Super. at 16-17, we determined that a proposed expert did

not satisfy "the preliminary qualification of specialization"

under N.J.S.A. 2A:53A-41(a) because he retired from the practice

of   medicine   prior     to   the   time   of   the   alleged   malpractice

occurrence.

      In contrast, here the evidence shows Dr. Eigen practiced

pediatrics and pediatric critical care in 2011 when the defendant

physicians provided the care at issue.             Although he had duties

independent of his clinical practice, he devoted all of his

clinical practice to pediatrics and pediatric critical care in

2011.       Thus,   Dr.    Eigen     satisfied    N.J.S.A.    2A:53A-41(a)'s

requirement that he practice and specialize in the specialty and

subspecialty of the defendant physicians.

      The defendant physicians were board certified in pediatrics

and pediatric critical care, and therefore Dr. Eigen was required

to satisfy the additional requirements of either N.J.S.A. 2A:53A-

41(a)(1) or (a)(2) to qualify as an expert witness under the

Patients First Act.       Nicholas, 213 N.J. at 482; Castello, 446 N.J.

Super. at 15-16.        The court found Dr. Eigen was not qualified

because he did not devote the majority of his professional time

to   the   active   clinical   practice     of   pediatrics   and   pediatric

critical care during the year immediately preceding the alleged

                                      16                              A-5165-15T2
malpractice.    In other words, the court found Dr. Eigen was not a

qualified expert because he failed to satisfy the requirements of

N.J.S.A. 2A:53A-41(a)(2)(a).

     To be sure, Dr. Eigen's qualifications did not satisfy the

requirements of N.J.S.A. 2A:53A-41(a)(2)(a).                 The court erred,

however, because it did not consider that Dr. Eigen satisfied the

requirements    of    N.J.S.A.    2A:53A-41(a)(1).           When    the   alleged

malpractice occurred in 2011, Dr. Eigen was credentialed at the

Riley Hospital for Children to provide pediatric and pediatric

critical   care,     and   thus   "to   treat    patients     for    the   medical

condition, or to perform the procedure, that is the basis for"

plaintiffs'    medical     malpractice       claim.    See   N.J.S.A.      2A:53A-

41(a)(1). Dr. Eigen satisfied the requirements of N.J.S.A. 2A:53A-

41(a)(1), and his lack of qualifications under N.J.S.A. 2A:53A-

41(a)(2) did not permit or require his disqualification as an

expert witness against the defendant physicians.                    Nicholas, 213

N.J. at 412; Castello, 446 N.J. Super. at 15-16.               The court erred

in holding otherwise and in barring Dr. Eigen's testimony as to

the defendant physicians.

     The court's orders granting HUMC summary judgment and denying

plaintiffs' request to serve a late expert report were founded on

its determination Dr. Eigen was not a qualified expert under the

Patients First Act in the first instance.             Because we conclude the

                                        17                                 A-5165-15T2
determination was in error, we are constrained to reverse the

court's   order     granting   summary     judgment   to    HUMC    and   denying

plaintiffs' request to serve a late expert report.

     We are not persuaded by HUMC's contention that even if Dr.

Eigen was qualified to testify under the Patients First Act, the

court properly barred his testimony as to proximate causation and

granted     HUMC    summary    judgment    because    Dr.    Eigen    disavowed

providing    a     proximate   causation    opinion   as    to     HUMC   in   his

deposition.      The record does not support HUMC's contention.

     During his deposition, Dr. Eigen was asked directly if his

reports included an opinion that HUMC "and its nurses or personnel

departed from the applicable standard of care of a hospital."                    He

incorrectly stated his reports did not include such an opinion,7

and agreed, subject to a caveat,8 that he did not express an opinion

concerning HUMC's deviation from the standard of care.


7
    Dr. Eigen's June 18, 2014 report included an opinion HUMC
deviated from the standard of care that was not dependent on the
actions of the defendant physicians. See footnote 2, supra.
8
   The caveat was that he did not offer an opinion as to HUMC's
deviation from the standard of care but only if the defendant
physicians were not HUMC employees.    In other words, Dr. Eigen
made clear that if the physicians were HUMC employees, his opinion
was that HUMC was liable for their deviation from the standard of
care detailed in his reports and otherwise in his testimony. The
record is unclear whether the defendant physicians were HUMC
employees.    In its brief, HUMC states it is undisputed the
physicians were not HUMC employees, but fails to cite to any


                                     18                                   A-5165-15T2
     Dr. Eigen was not similarly asked if he had an opinion on

proximate   causation,   and   our    review   of   the    portion   of   the

transcript from his deposition provided by HUMC makes clear he

never disavowed offering an opinion on proximate cause. HUMC's

contention Dr. Eigen was properly barred as an expert witness

because he disavowed offering an opinion on proximate causation

as to HUMC is unavailing.

     It is unnecessary to address plaintiffs' arguments that the

court's orders should be reversed for reasons other than its

erroneous conclusion Dr. Eigen was not a qualified expert under

the Patients First Act.     Because the court's order granting HUMC

summary judgment was founded on the incorrect conclusions that Dr.

Eigen was not a qualified expert witness and he disavowed offering

an opinion as to proximate cause, we reverse the summary judgment

order and remand for further proceedings.                 Our determination

renders it unnecessary to address plaintiffs' contention the court


evidence in the record supporting the assertion. See R. 2:6-2;
see also State v. Mauti, 448 N.J. Super. 275, 314 n.17 (App. Div.)
(noting it is the parties' responsibility to refer to specific
parts of the record to support their arguments on appeal), certif.
denied, 230 N.J. 170 (2017). In the trial court's written opinion
supporting its December 11, 2015 order denying plaintiffs' motion
to permit Dr. Eigen to testify against HUMC, the court expressly
found the defendant physicians were HUMC employees.         It is
unnecessary to resolve this factual dispute, however, because we
have determined the court erred by finding Dr. Eigen was not a
qualified expert under the Patients First Act.


                                     19                              A-5165-15T2
erred by denying their motions to serve the late expert report of

Dr. Dawson and for reconsideration.

     Dr. Eigen has retired and is no longer available to provide

expert testimony.    On remand, the court shall allow plaintiffs to

serve Dr. Dawson's report as plaintiffs' new expert report, and

permit such other discovery as the court deems necessary under the

circumstances.

     Reversed and remanded for further proceedings in accordance

with this opinion.    We do not retain jurisdiction.




                                 20                         A-5165-15T2
