                                NOT FOR PUBLICATION WITHOUT THE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-3790-17T4

ROBERT DECOTIIS and
STEPHANIE DECOTIIS,

          Plaintiffs-Respondents,

v.

DR. HARMON STEIN, and
CAMPUS EYE GROUP &
LASER CENTER,

          Defendants,

and

DR. BRIAN COHEN,

     Defendant-Appellant.
______________________________

                    Argued September 9, 2019 – Decided September 30, 2019

                    Before Judges Sumners, Geiger and Natali.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Monmouth County, Docket No. L-1139-14.

                    Robert Thomas Gunning argued the cause for appellant
                    (Morrison Mahoney LLP, attorneys; Robert Thomas
            Gunning, of counsel and on the briefs; Lina P.
            Corriston, on the brief).

            Robert G. Hicks argued the cause for respondents
            (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins,
            attorneys; Robert G. Hicks, on the brief).

PER CURIAM

      In this medical malpractice action, plaintiff Robert DeCotiis asserted

negligence claims against defendants Brian Cohen, O.D., and Harmon Stein,

M.D., arising out of complications caused by lasik eye surgery.1 Immediately

before trial, plaintiff dismissed his claims against Dr. Stein.           The jury

subsequently awarded plaintiff $483,500 as compensatory damages against Dr.

Cohen, as the sole remaining defendant.2 On appeal, Dr. Cohen argues that the

trial court erred in denying his motions: 1) to dismiss plaintiff's lack of informed

consent claim; 2) to bar the "personal opinions" of plaintiff's ophthalmology




1
  "Lasik is an acronym for laser assisted keratomileusis in situ." New Jersey
Eye Center, P.A., v. Princeton Ins. Co., 394 N.J. Super. 557, 561 n.1 (App. Div.
2007).
2
   Plaintiff dismissed his claims against Campus Eye Group & Laser Center
(Campus) by stipulation. Plaintiff's wife, Stephanie DeCotiis, voluntarily
dismissed her per quod claim.



                                                                            A-3790-17T4
                                         2
expert, Michael E. Sulewski, M.D.; and 3) for an involuntary dismissal, under

Rule 4:37-2(b). We affirm.

                                       I.

      Plaintiff scheduled a consultation at Campus to be evaluated for lasik eye

surgery. At that initial visit, plaintiff completed "standard medical forms," and

a medical assistant "took some measurements of [his] eyes" before advising him

that he was "a good patient based on the information that she had." Plaintiff

then scheduled a "pre-operative follow up" exam on April 5, 2012, and surgery

with Dr. Stein for April 16, 2012, to be performed at Campus.

      The April 5, 2012 pre-operative appointment was the first time that

plaintiff met Dr. Cohen, a licensed optometrist. In describing his relationship

with Campus, Dr. Cohen alternatively referred to himself as an "independent

optometrist," "staff optometrist," and "independent contract[or]." He explained

that one of his duties at Campus was to "collect the data for" Dr. Stein. During

the April 5 exam, Dr. Cohen measured plaintiff's pupil size at 6.5 millimeters in

diameter in "mesopic conditions," which was described by Dr. Cohen to mean

"dim light illumination."

      According to plaintiff, he explained to Dr. Cohen that "about [ten] years

prior" to his visit he had a "corneal ulcer, basically . . . a tiny hole in [his]


                                                                         A-3790-17T4
                                       3
cornea," which "fully healed" and did not affect his vision, but he disclosed it to

Dr. Cohen in case any residual scarring would make him a poor candidate for

lasik surgery. Plaintiff "specifically remember[ed] asking Dr. Cohen if that was

okay and remember[ed] him indicating to [plaintiff] that it was not going to be

an issue and that [plaintiff] was a good candidate for the surgery."

      After Dr. Cohen took his measurements, plaintiff received pupil-dilating

eye drops, and one of Dr. Cohen's assistants measured the topography of

plaintiff's corneas with a Zeiss Topographer, which measured the diameter of

plaintiff's pupils at approximately eight millimeters in each eye in "scotopic "

illumination, described by Dr. Sulewski during trial to mean "very, very dim" or

"dark" illumination. Before the day of his lasik surgery, plaintiff received a

consent form.

      The consent form disclosed that individuals who have "large pupils

(greater than [seven] millimeters) in dim light conditions may experience nigh t

vision difficulties such as halos around lights, glare, and ghosting." Plaintiff

read the form and was "aware . . . there were certain risks including a potential

for night vision problems, such as halos, starburst, and the like," but did not have

any questions because he "figured that if there was anything that put [him] out

of the ordinary other than [his] corneal ulcer that it would have been brought up


                                                                            A-3790-17T4
                                         4
to [him] prior to the surgery." Thus, according to plaintiff, he did not "have any

reason to think [he was] at an increased risk over any other patient" of incurring

the disclosed symptoms.

      Plaintiff signed the consent form on April 16, 2012, the day of his surgery.

Dr. Stein testified that he has worked with Dr. Cohen for at least twenty years,

and that he "rel[ies] upon" the "pre-operative testing [that] is provided to [him]."

Dr. Stein did not "conduct any testing" himself, and further stated that in 2012,

pupil size was "[i]rrelevant" to him because the lasers are sufficiently advanced,

but acknowledged that the pupil size "has to be programmed in so the computer

knows . . . how to treat the eye." Dr. Stein also compared pupil size to a patient's

date of birth. In other words, the data is entered for the sake of completion.

      Two months after the surgery, plaintiff became "concerned" because he

was experiencing night vision issues. As plaintiff explained:

            primarily the most debilitating of the night vision issues
            was the starburst thing. Essentially, when I'm in a dark
            location any point of light that I see is spread out in all
            directions with like lines coming out of it. In addition
            to that I have double vision/ghosting in my . . . eyes. So
            when I look at something, instead of just seeing one
            copy of that, I see slightly down and to the right,
            another copy and slightly up and to the left, another
            copy. They're not as opaque as the actual object that
            I'm looking at but it's – it's very, it's – it's bad.



                                                                            A-3790-17T4
                                         5
      Plaintiff visited Dr. Cohen on June 28, 2012 for a follow-up examination,

and Dr. Cohen noticed there were some "wrinkles in the flap," or top layer of

tissue on his eye, that was cut open and placed back down on his eye with a "sort

of squeegee" at the end of the surgery. Dr. Stein thereafter "performed a flap

lift procedure" that day "where he lifted the lasik flaps [and] laid . . . and

squeegeed them back down." Plaintiff explained that the flap lift procedure did

not help much, but Dr. Cohen provided him with a trial bottle of Alphagan, a

side effect of which is to "constrict[] the pupil," which "greatly reduced

[plaintiff's] night vision issues."

      The next time plaintiff met with Dr. Cohen was in December 2012.

Plaintiff was still experiencing night vision problems, and, according to

plaintiff, at that visit Dr. Cohen "agreed with [plaintiff] that [his] pupil size may

[have been] causing the night vision issues." Dr. Cohen denied ever telling

plaintiff at any visit that he had large pupils.

      Plaintiff's "debilitating" night vision issues continued, despite attempts by

a second physician to remedy the problem. He filed suit alleging that Dr. Cohen

and Dr. Stein "negligently and carelessly examine[d] and/or treat[ed] [p]laintiff

so as to leave [him] with impaired vision." According to plaintiff's testimony at

trial, he would not have signed the consent form, and proceeded with the lasik


                                                                             A-3790-17T4
                                          6
surgery, if Dr. Cohen informed him that his large pupil size increased his risk of

experiencing night vision complications.

      Dr. Cohen filed a motion for summary judgment under Rule 4:46-2,

claiming that he did not have a duty to obtain plaintiff's informed consent since

he was not the operating surgeon, but instead was akin to a referring physician

to whom a duty does not apply. See Herrara v. Atlantic Surgical Group, P.A.,

277 N.J. Super. 260, 268-70 (Law Div. 1994). Dr. Cohen also argued that he

correctly measured plaintiff's pupils in accordance with the manual for the laser

machine that Dr. Stein used to perform the lasik surgery, which, according to

Dr. Cohen, established the applicable standard of care.

      Distinguishing Herrara, the motion judge in a comprehensive written

opinion determined that Dr. Cohen "was not a referring physician or

recommending physician as were the practitioners in the Herr[a]ra case . . . ."

Instead, the court noted "Dr. Cohen took a variety of pre-operative

measurements which determined whether candidates were suitable for the

surgery." The court also concluded disputed issues of fact existed as to whether

Dr. Cohen negligently measured plaintiff's pupils, and denied summary

judgment.




                                                                          A-3790-17T4
                                        7
      Immediately before trial, Dr. Cohen again moved "in limine" to dismiss

plaintiff's informed consent claim. The trial judge denied the motion concluding

the motion judge's decision on the issue was the law of the case and also

concluded factual questions existed regarding Dr. Cohen's role as a referring

physician and, specifically, if he acted in concert with Dr. Stein.

      Dr. Cohen also moved in limine to bar Dr. Sulewski from testifying on the

standard of care for measuring a patient's pupils prior to lasik eye surgery. After

hearing oral arguments, the trial judge concluded that under our holding in

Seoung Ouk Cho v. Trinitas Regional Medical Center, 443 N.J. Super. 461, 471-

72 (App. Div. 2015), the motion should have been made in accordance with the

rules governing motions for summary judgment, and thus was procedurally

improper. Despite this procedural deficiency, the court nevertheless scheduled

a Rule 104 hearing, see N.J.R.E. 104(a), because the judge "believe[d] that [Dr.

Sulewski's] opinion is somewhat shaky, shall I say, in terms of what standard he

relies on."

      At the Rule 104 hearing, Dr. Sulewski testified that his "training with

respect to measuring pupil size" began "during [his] residency and [his]

[f]ellowship at [Johns] Hopkins," and that "through the entire evolution of

refractive surgery in the early days up until now[,] . . . pupil size is something


                                                                           A-3790-17T4
                                        8
that everyone measures before refractive surgery and really what we're trying to

determine is [whether] patient[s] [are] going to have problems at night."

      Dr. Sulewski further testified "that the standard of care is, prior to

refractive surgery, pupil size is measured in . . . relatively dark conditions." He

explained that "you gotta be able to see the patient to measure the pupil," so

there must be "enough illumination around the eye that you can actually measure

the pupil size and that's how it's done." Dr. Sulewski stated that in his opinion,

the standard of care is to dim the lights down to "pretty much lights out, ve ry

dark," which is "the opinion of what we teach at the University of Pennsylvania,"

and that he "believe[d] that's what most people do," that his opinion is "shared

by others around the country," and "that's the way it is."

      When defense counsel questioned Dr. Sulewski about an excerpt from "the

WaveLight [m]anual," a manual issued by the manufacturer of the laser that Dr.

Stein used to perform the lasik surgery, Dr. Sulewski acknowledged that the

manual's precautions section states that pupil size "should be evaluated under

mesopic illumination conditions." Dr. Sulewski also testified that "[m]esopic is

dim illumination," and that "the term scotopic is dark . . . light conditions," but

also that "[s]cotopic is very, very dim, enough that there is light in the room that

you can measure the pupils." Thus, he acknowledged that mesopic and scotopic


                                                                            A-3790-17T4
                                         9
are "different terms," but stated that "it's a spectrum between the term mesopic

and scotopic and depending on how your lanes are set up is how well you can

dim the lights and measure the pupils." According to Dr. Sulewski,

            I think that the semantics of dark versus dim is so
            relative and as I said earlier, you have to have a light
            on in the room to measure the pupil size or you can't
            measure it. I mean nobody has dark adaptive eyes that
            they can see in the dark and if someone has a very dark
            iris, it's even harder to see the pupils, so you might need
            a little bit more light. So I think what we as
            practitioners do, we do the best that we can to dim the
            lights down to a point that we can still measure the pupil
            and I'd say that's the standard of care in practice not to
            just throw on one light and say all right, here's my --
            here's my dim light measurement. We are not trying to
            make the pupil as small as we can so we can do the
            procedure, it's quite the opposite.

      Dr. Sulewski further testified that the WaveLight manual is a "guideline"

and does not establish the standard of care, and reiterated that "everybody tries

to measure the pupils in dark conditions." The trial judge ruled Dr. Sulewski's

testimony was admissible because he "based his opinion on what he was taught,

how he practiced, how his colleagues teach[,] and how he teaches," and found

that although he was "somewhat equivocal" about the basis for his o pinion, that

issue went to "the weight . . . and credibility of his testimony." Accordingly,

the court denied Dr. Cohen's motion on the merits, and concluded that Dr.

Sulewski's proffered expert testimony was admissible.

                                                                          A-3790-17T4
                                       10
      Dr. Sulewski's trial testimony largely echoed his testimony during the

Rule 104 hearing.      Specifically, Dr. Sulewski testified that pupil size is

important when evaluating a patient's candidacy for lasik surgery, and plaintiff's

night vision complications were related to plaintiff's pupil size. On this point,

Dr. Sulewski highlighted that according to plaintiff's medical records from

Campus, plaintiff's right and left pupils were measured at 7.83 and 8.07

millimeters, respectively in scotopic light. Dr. Sulewski described photopic

light conditions as "with lights on," and scotopic as "very, very dim." Mesopic

lighting was described as "dim illumination."

      The reason pupil measurement should be taken under dim illumination is

to simulate the "worst case scenario . . . when patients are out at night" and to

"screen out patients that have really large pupils because that is a risk factor for

developing unwanted side effects . . . ." As to the distinction between scotopic

and mesopic measurements, Dr. Sulewski testified:

            [A]lways since the beginning of time, we measure
            pupils with the lights very, very dim in the room and
            some people may call . . . that scotopic and some may
            call it mesopic[;] I don't want the jury to get tangled up
            in that terminology because . . . they're used sort of
            interchangeably in practice.

      Dr. Bernard Spier, also an expert in ophthalmology, testified on behalf of

Dr. Cohen. He stated that the "particular topographer" used in this case, the

                                                                            A-3790-17T4
                                        11
Zeiss Topographer, "can . . . measure the size of the pupil . . . ." However, he

testified that the measurements obtained from the Zeiss Topographer were

"invalid" because the pupil had been dilated with eye drops prior to the

measurements.

      Dr. Spier stated "the standard of care in measuring . . . a patient's pupil

size for lasik surgery . . . is to measure the pupil size in what is called mesopic

light, which is the normal . . . or lay term" for "dim light" and is "in between . .

. dark, which is called scotopic," and "bright light, which is photopic like on a

sunny day . . . ." He further stated that "the best simulation of vision in the

evening around dusk is simulated by a mesopic light condition," but agreed that

"tr[ying] to get the light as low as possible but still be[ing] able to . . . make the

measurement" is "an appropriate way to measure the pupil."

      Dr. Cohen similarly testified that "you want it as dark as you can [while]

still be[ing] able to measure the pupil," but stated, in contradiction to Dr.

Sulewski's testimony, that "[t]he standard of care is to measure under dim

illumination, or mesopic conditions[,] and there [are] no interchangeable terms.

Mesopic is dim, scotopic is dark, photopic is bright lights." Dr. Cohen described

the ideal examination room as "essentially as dark as possible, as dim as




                                                                              A-3790-17T4
                                         12
possible, with some transient illumination around you." When asked if he told

plaintiff "he was a good candidate for lasik surgery," Dr. Cohen stated:

            From my measurements, I know -- keep in mind, I don't
            determine candidacy, surgeons determine candidacy. I
            take the measurements for the surgeons, I'm familiar
            with the procedure, I am a doctor, I know about this
            procedure so I will give him information. I will tell him
            if I found anything abnormal that would make him not
            a good candidate.        From all my measurements,
            everything looked good for him to proceed to see . . .
            Dr. Stein.

      At the close of plaintiff's case, Dr. Cohen moved for an involuntary

dismissal under Rule 4:37-2(b), which the court denied. The jury subsequently

returned a special verdict in plaintiff's favor in which it unanimously determined

that: 1) Dr. Cohen negligently measured plaintiff's pupil size; 2) Drs. Stein and

Cohen acted in concert in determining that plaintiff was a good candidate for

Lasik; 3) plaintiff did not receive informed consent to undergo the procedure

and the undisclosed risk caused him harm; 4) a reasonably prudent person would

not have consented to the surgery had they been informed of the risk; and 5)

plaintiff's large pupil size proximately caused his injury.

      The jury's verdict also awarded plaintiff $3,500 in medical expenses and

$480,000 in non-economic losses, for a total award of $483,500. The court




                                                                           A-3790-17T4
                                       13
entered judgment in accordance with the jury's verdict, and included

prejudgment interest, attorney's fees, and costs. This appeal followed.

      On appeal, Dr. Cohen raises three primary arguments. First, he claims

that the trial court committed error in denying his motion to dismiss. Second,

Dr. Cohen argues the trial court incorrectly denied his motion in limine to bar

Dr. Sulewski's expert testimony, misapplied our holding in Cho, and erred in

granting a Rule 104 hearing.     Finally, Dr. Cohen maintains the trial court

committed reversible error in denying his motion for an involuntary dismissal.

We disagree with all of Dr. Cohen's arguments.

                                       II.

      In his first point of error, Dr. Cohen argues that he did not have a legal

duty to obtain plaintiff's informed consent to undergo lasik surgery, and that it

was reversible error for the trial court to apply the law of the case doctrine.

Although we agree with defendant that the trial judge incorrectly relied on the

motion judge's decision as the law of the case, the trial judge nevertheless

reached the correct substantive result when she recognized that to the extent Dr.

Cohen acted in concert with Dr. Stein, Dr. Cohen had a duty to obtain plaintiff's

informed consent.




                                                                          A-3790-17T4
                                      14
      The law of the case doctrine does not apply to orders denying summary

judgment. See Gonzalez v. Ideal Tile Importing Co., 371 N.J. Super. 349, 356

(App. Div. 2004) ("[A]n order denying summary judgment is not subject to the

law of the case doctrine because it decides nothing and merely reserves issues

for future disposition."); Schuhalter v. Salerno, 279 N.J. Super. 504, 508 n.1

(App. Div. 1995) ("The judge need not and should not have treated the prior

denial of partial summary judgment as establishing the law of the case."). Here,

the motion judge's interlocutory order merely denied defendant's motion for

summary judgment, and was not dispositive to subsequent applications prior to

final judgment.

      Any reliance on the law of the case doctrine by the trial court in denying

Dr. Cohen's renewed motion to dismiss plaintiff's informed consent claim was

harmless, however. The motion judge also correctly concluded that subject to

the resolution of disputed factual issues, Dr. Cohen had a duty to plaintiff. "It

is now settled that a physician has a legal duty to disclose to the patient all

medical information that a reasonably prudent patient would find material before

deciding whether to undergo a medical procedure." Acuna v. Turkish, 192 N.J.

399, 415 (2007) (citing Largey v. Rothman, 110 N.J. 204, 211-12 (1988)).

While the existence of such a duty is a question of law, a "legal determination


                                                                         A-3790-17T4
                                      15
of the existence of a duty may differ" based on specific factual issues in the case.

Cheng Lin Wang v. Allstate Ins. Co., 125 N.J. 2, 15 (1991).

      That duty, however, generally is not imposed on a physician who merely

refers a patient to another doctor. Herrara, 277 N.J. Super. at 268-70. Rather,

the duty of a referring physician, who does not act "in concert" or in "an agency

relationship" with the operating physician, is to not act negligently in making

the referral. Id. at 267-69; accord Sprinkle v. Lemley, 414 P.2d 797, 800 (Or.

1966) ("A general practitioner or family physician who calls in a specialist to

treat or perform surgery on a patient is not liable for the negligence of the

specialist if there is no concert of action.").

      But when physicians have an agency relationship or act in concert with

respect to a patient, both physicians have a duty to obtain the patient's informed

consent to proceed with treatment. See Herrara, 277 N.J. Super. at 267 (citing

Stovall v. Harms, 522 P.2d 353 (Kan. 1974)); accord O'Grady v. Wickman, 213

So.2d 321, 325-26 (Fla. Dist. Ct. App. 1968) (explaining that "many courts . . .

have held that one physician is a joint tortfeasor with the other and is liable for

his actions when there is a concert of action and a common purpose existing

between the two doctors").




                                                                            A-3790-17T4
                                         16
      "Parties are acting in concert when they act in accordance with an

agreement to cooperate in a particular line of conduct or to accomplish a

particular result." Restatement (Second) of Torts § 876, cmt. a (1979). Here,

the record firmly supports the jury's finding that Drs. Cohen and Stein acted in

concert toward a common goal of determining whether plaintiff was a good

candidate for lasik surgery. Dr. Stein testified that he has "worked with Dr.

Cohen" in lasik procedures for at least twenty years. And, Dr. Cohen testified

that he "collect[s] the data for" Dr. Stein through pre-operative measurements

and provides that data to Dr. Stein prior to surgery. Further, Dr. Cohen admitted

that he would have told plaintiff "if [he] found anything abnormal that would

make [plaintiff] not a good candidate" for the lasik surgery that was ultimately

performed by Dr. Stein.

      Although Dr. Stein denied that pupil size was relevant, the jury was free

to evaluate his credibility, the scope of his two-decade professional relationship

with Dr. Cohen, and plaintiff's testimony that he would not have proceeded with

the surgery had he been informed that his pupil sizes were larger than seven

millimeters. Thus, unlike in Herrara, the record failed to establish that Dr.

Cohen was merely a referring physician to whom the duty to obtain informed

consent does not apply. See Herrara, 277 N.J. Super. at 269-70.


                                                                          A-3790-17T4
                                       17
      Further, "[w]hether a duty exists is ultimately a question of fairness. The

inquiry involves a weighing of the relationship of the parties, the nature of the

risk, and the public interest in the proposed solution." Goldberg v. Hous. Auth.

of City of Newark, 38 N.J. 578, 583 (1962) (emphasis omitted); see also Podias

v. Mairs, 394 N.J. Super. 338, 355 (App. Div. 2007) ("[T]he question of duty

remains one of judicial balancing of the mix of factors peculiar to each case .");

Kelly v. Gwinnell, 96 N.J. 538, 544 (1984) ("[R]ealistically," the issue "whether

a duty exists" amounts to "whether this Court should impose such a duty.").

      Here, the parties' relationship establishes that Dr. Cohen examined and

measured plaintiff's eyes before plaintiff consented to Dr. Stein performing

surgery. Dr. Cohen testified that if he "found anything abnormal that would

make [plaintiff] not a good candidate," he would have so informed plaintif f. In

addition, Dr. Cohen provided the data he collected to Dr. Stein, as part of the

protocol for lasik eye surgery during the doctors' twenty-plus year working

relationship. Those facts weigh in favor of imposing a duty on Dr. Cohen to

obtain plaintiff's informed consent and make this case factually dissimilar from

Herrara. See Herrara, 277 N.J. Super. at 269-70.

      In addition, the nature of the risk involved in an optometrist's failure to

inform a patient of his or her large pupils is that a patient, like plaintiff here,


                                                                           A-3790-17T4
                                       18
will unwittingly expose him or herself to a greater chance of suffering long-term

vision problems. In this regard, Dr. Cohen conceded that the disclosed risks in

the consent form "would be meaningless" to a person who was unaware that he

or she had large pupils, and because Dr. Cohen had "the opportunity and ability

to exercise care" to mitigate the increased risk, imposing the duty would be fair

and equitable. Robinson v. Vivirito, 217 N.J. 199, 213 (2014).

      Finally, the public interest in the proposed solution also supports the

imposition of a duty because requiring pre-operative optometrists who act in

concert with a surgeon, as the jury concluded Dr. Cohen did here, to obtain their

patient's informed consent would have no readily discernible adverse effects on

the public who would be better protected against unknowingly exposing

themselves to increased risks of long-term vision problems.

                                       III.

      As noted, on the eve of trial, Dr. Cohen filed what he characterized as a

"motion in limine to bar certain testimony of plaintiff's liability expert."

According to defendant, a favorable ruling on that motion "would not have

resulted in the dismissal of plaintiff's case," but "would only have barred

testimony by Dr. Sulewski regarding his personal opinions as to measurement

of pupil size," and thus did not fall within the purview of Cho. We agree with


                                                                         A-3790-17T4
                                      19
the trial judge that plaintiff's motion violated the due process concerns we

expressed in Cho.

      In Cho, we explained that "whether a motion is correctly termed a motion

in limine is not dictated by the fact it is brought literally on the threshold of

trial." Cho, 443 N.J. Super. at 470. Rather, "[w]hen granting a motion will

result in the dismissal of a plaintiff's case or the suppression of a defendant's

defenses, the motion is subject to Rule 4:46, the rule that governs summary

judgment motions." Id. at 471.

      Here, the trial court correctly concluded that granting defendant's motion

would amount to a dismissal of plaintiff's case. Indeed, Dr. Sulewski's expert

testimony on the standard of care served as plaintiff's affirmative proof of: 1)

the standard of care for measuring pupil size prior to lasik eye surgery; 2) Dr.

Cohen's deviation from that standard of care; and 3) the causal relationship

between Dr. Cohen's failure to inform plaintiff that he, in fact, had large pupils

and plaintiff's damages.

      Without Dr. Sulewski's testimony, plaintiff could not have established that

Dr. Cohen negligently measured plaintiff's pupil size. If Dr. Cohen measured

plaintiff's pupil size at 6.5 millimeters pursuant to the applicable standard of

care proposed by Dr. Spier, then defendant was not, in fact, at a heightened risk


                                                                          A-3790-17T4
                                       20
for developing the disclosed night vision complications of lasik eye surgery.

Accordingly, barring Dr. Sulewski's testimony as to the standard of care would

have defeated plaintiff's claim that Dr. Cohen negligently measured his pupils,

as well as plaintiff's related claim that Dr. Cohen breached a duty by failing to

inform plaintiff that he had large pupils. Therefore, a ruling in defendant's favor

on the motion would have effectively resulted in a dismissal of plaintiff's

complaint.    Thus, the trial court correctly concluded the motion was

procedurally improper under Cho.

      However, even if we were to assume that Dr. Cohen's motion was not

procedurally defective, any error by the trial judge by relying on Cho was

inconsequential as the court addressed the merits of the motion and subsequently

held a Rule 104 hearing. And, contrary to Dr. Cohen's claim, the court did not

abuse its discretion in deciding to conduct that hearing.

      "An abuse of discretion 'arises when a 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. Prosec., 171 N.J. 561, 571 (2002));

see also Kemp ex rel. Wright v. State, 174 N.J. 412, 428 (2002) (stating that

whether to hold a Rule 104 hearing "when the ruling on admissibility" of expert


                                                                           A-3790-17T4
                                       21
testimony "turns on factual issues" is a question that "rests in the sound

discretion of the [trial] court") (quoting Padillas v. Stork-Gamco, Inc., 186 F.3d

412, 418 (3d Cir. 1999)).

      In deciding to hold a Rule 104 hearing, the court concluded:

            There are several passages [of Dr. Sulewski's
            deposition testimony] that are referred to in terms of
            whether or not Dr. Sulewski was testifying about a
            standard of care that's accepted by the general medical
            community as far as the pupil measurement issue.
            Some of his testimony says this is my personal opinion,
            this is my personal opinion and yes, it's a little shaky
            about what he bases it on, his group and his history but
            at the end of the day, I can't outright dismiss it at this
            point in time without a 104 [h]earing regarding the net
            opinion issue.

      The parties only included an excerpt of Dr. Sulewski's deposition

testimony in the record on appeal.       Our review of that limited testimony,

however, convinces us that the court properly exercised its discretion in

conducting a Rule 104 hearing.

      Indeed, while Dr. Sulewski certainly offered opinions in his deposition

that, in isolation, indicate he was offering only his personal opinion and not that

of the broader medical community, he also testified at that deposition that his

opinion was consistent with a generally accepted standard of care. Indeed, Dr.

Sulewski testified that his "standard of care" was based on the "standard of care


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. . . at the Scheie Institute" at the University of Pennsylvania, "[a]nd everywhere

else [he has] been." Accordingly, and contrary to defendant's claim that plaintiff

failed to make a requisite "threshold showing that an arguable issue exists as to

the evidence . . . [justifying] . . . a full preliminary hearing under" Rule 104, the

record supports the trial judge's decision to hold a Rule 104 hearing to elicit

more clearly the factual basis for Dr. Sulewski's proposed testimony.

                                        IV.

      Dr. Cohen next argues that Dr. Sulewski's testimony at the Rule 104

hearing and at trial were inadmissible net opinions. Specifically, he contends

that "Dr. Sulewski's opinions were patently insufficient in that they were void

of any standard, recognized practice, or treatise, other than the expert's personal

view." According to defendant, "Dr. Sulewski failed to provide the 'why and

wherefore' of his opinion and only gives his conclusions as to the applicable

standard of care and causation which are completely unsupported." Again, we

disagree.

      "[A]n expert's bare opinion that has no support in factual evidence or

similar data is a mere net opinion which is not admissible and may not be

considered." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372

(2011). This "admissibility rule has been aptly described as requiring that the


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expert 'give the why and wherefore' that supports the opinion, 'rather than a mere

conclusion.'" Ibid. (quoting Polzo v. Cnty of Essex, 196 N.J. 569, 583 (2008)).

"Similarly, if an expert cannot offer objective support for his or her opinions,

but testifies only to a view about a standard that is 'personal,' it fails because it

is a mere net opinion." Id. at 373. The trial judge's decision to admit Dr.

Sulewski's expert testimony is governed by the abuse of discretion standard on

appeal. Pomerantz, 207 N.J. at 371; see also Estate of Hanges v. Metro. Prop.

& Cas. Ins. Co., 202 N.J. 369, 383-84 (2010).

      In a malpractice action, an expert may properly testify as to the standard

of care where the expert possesses "sufficient knowledge of professional

standards to justify the expression of an opinion." Carey v. Lovett, 132 N.J. 44,

64 (1993) (citing Sanzari v. Rosenfeld, 34 N.J. 128, 136 (1961)). Where the

expert opinion is grounded in "knowledge, skill, experience, training, or

education," a court "should allow admission of the testimony." Koseoglu v.

Wry, 431 N.J. Super. 140, 159 (App. Div. 2013) (emphasis added) (quoting

N.J.R.E. 702). Thus, it is not necessary to show that the expert's opinion derives

from a particular medical text or treatise. See Khan v. Singh, 200 N.J. 82, 101

(2009) ("[A]n expert in a malpractice action need not have had personal

experience with the situation under investigation to testify to the applicable


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                                        24
standard of care" since the expert's "knowledge may derive from observations

of the methods used by members of the profession or from his [or her] study of

professional treatises and journals.") (emphasis added) (quoting Sanzari, 34 N.J.

at 137).

      Here, the trial judge found that Dr. Sulewski based his opinion about the

applicable standard of care "on what he was taught, how he practiced, how his

colleagues teach[,] and how he teaches," and explained that while he was

"somewhat equivocal" about the basis for his opinion, that issue went to "the

weight" and "credibility of his testimony." The record supports these findings.

      Dr. Sulewski testified that the "standard of care" he teaches in his "various

teaching positions" is to use "relatively dark conditions" with "enough

illumination around the eye that you can actually measure the pupil si ze," that

his "colleagues" teach the same standard of care, and that he was "trained" as a

practitioner to understand that is the standard of care. He stated that he

"consult[s] with other ophthalmologists in terms of what they teach," that

"everybody tries to measure the pupils in dark lighting conditions," and "[t]hat's

what most people that [he] know[s] do." These facts form a legally sufficient

basis to support the trial judge's decision to qualify Dr. Sulewski as an expert on




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the issue of the standard of care for measuring pupil size prior to lasik eye

surgery and for him to present those opinions to the factfinders.

                                       V.

      Finally, Dr. Cohen maintains "it was harmful error for the trial court to

deny [his] motion for directed verdict on the basis that a jury question existed

on th[e] issue of an agency relationship or that the doctors were acting in

concert." Dr. Cohen further contends that there was no factual dispute as to

what the applicable standard of care was, or that he abided by that standard. We

are not persuaded by either of these arguments.

      Appellate courts review rulings on "a motion for involuntary dismissal at

trial using the same standard as the trial court." Prager v. Joyce Honda, Inc.,

447 N.J. Super. 124, 134 (App. Div. 2016) (citing Smith v. Millville Rescue

Squad, 225 N.J. 373 (2016)). Under that standard, the motion must "be denied

if the evidence, together with the legitimate inferences therefrom, could sustain

a judgment in plaintiff's favor." R. 4:37-2(b). "[T]he judicial function here is

quite a mechanical one" as the court "is not concerned with the worth, nature or

extent (beyond a scintilla) of the evidence, but only with its existence, viewed

most favorably to the party opposing the motion." Dolson v. Anastasia, 55 N.J.

2, 5–6 (1969).


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      As noted, the jury's ultimate decision that Drs. Cohen and Stein acted in

concert in determining whether plaintiff was a good candidate for lasik eye

surgery was properly supported by the record. As such, there was no error in

submitting that question to the jury. Further, because Dr. Sulewski's testimony

was competent evidence, the jury properly could have found from his testimony

that Dr. Cohen did not measure plaintiff's pupils in accordance with the

applicable standard of care by failing to set the illumination in the room to a

sufficient dimness or darkness, regardless of the terminology used by Dr. Cohen

or the manual provided by the WaveLight laser manufacturer.

      Dr. Sulewski's testimony that plaintiff's pupils were measured at eight

millimeters in diameter in dimmer or darker illumination was competent

evidence that plaintiff was at a heightened risk of experiencing the symptoms

disclosed on the consent form, and further establishes negligence by Dr. Cohen

in measuring plaintiff's pupils. Coupled with the fact that Dr. Cohen never

informed plaintiff that he had large pupils, there was sufficient evidence to

establish a causal relationship between plaintiff's damages and Dr. Cohen's

measurements and failure to inform plaintiff of the increased risk of symptoms.

Defendant's contrary proofs at trial were questions that went to credibility or the




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weight of the evidence, which is beyond the "judicial function" when deciding

a motion for a directed verdict. Dolson, 55 N.J. at 5.

      To the extent we have not addressed any of defendant's remaining

arguments, it is because we find them without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

      Affirmed.




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