                NOT FOR PUBLICATION WITHOUT THE
               APPROVAL OF THE APPELLATE DIVISION

                                   SUPERIOR COURT OF NEW JERSEY
                                   APPELLATE DIVISION
                                   DOCKET NO. A-1255-18T3


TRACEY L. VIZZONI, as
Executrix For The Estate Of            APPROVED FOR PUBLICATION
Judith A. Schrope,
                                               June 24, 2019

      Plaintiff-Appellant,                APPELLATE DIVISION


v.

B.M.D., J.D., and ATLOCK FARM,

      Defendants,

and

STEFAN LERNER,

     Defendant-Respondent.
_________________________________

            Argued March 28, 2019 – Decided June 24, 2019

            Before Judges Simonelli, Whipple and Firko.

            On appeal from the Superior Court of New Jersey,
            Law Division, Somerset County, Docket No. L-0575-
            15.

            Justin Lee Klein argued the cause for appellant
            (Hobbie, Corrigan & DeCarlo, PC, attorneys;
            Jacqueline DeCarlo, of counsel; Justin Lee Klein, on
            the briefs).
             Sam Rosenberg argued the cause for respondent
             (Rosenberg Jacobs Heller & Fleming, PC, attorneys;
             Sam Rosenberg, of counsel; Matthew E. Blackman, on
             the brief).

             Shook, Hardy & Bacon LLP, attorneys for amici
             curiae American Medical Association and Medical
             Society of New Jersey (Philip S. Goldberg, on the
             brief).

       The opinion of the court was delivered by

WHIPPLE, J.A.D.

       Plaintiff Tracey L. Vizzoni, as executrix for the estate of Judith A.

Schrope, appeals from a May 11, 2018 Law Division order granting summary

judgment and dismissing her negligence claims against defendant Stefan

Lerner, M.D.1 Tragically, Lerner's patient, B.M.D., 2 struck and killed Judith

Schrope while driving.      Plaintiff argues Lerner's negligent prescription of

medication to B.M.D. was the proximate cause of the fatal crash. For the

reasons that follow, we affirm the order of the trial court.




1
    Stefan Lerner, M.D. was improperly pled as Stefan Lerner.
2
  Due to the confidential medical information in the record, we use initials for
B.M.D. and J.D. to protect their privacy.


                                                                        A-1255-18T3
                                         2
                                        I.

      We discern the following facts from the record and view them in the

light most favorable to plaintiff. See Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 540 (1995). On June 17, 2014, at around 9:45 in the morning,

B.M.D., driving her SUV, struck decedent Schrope as Schrope was riding her

bicycle on the right-hand side of a residential road.         B.M.D. approached

Schrope from behind and saw her in the distance. Visibility was clear and

there were no cars approaching from the other direction. At the scene of the

accident, B.M.D. gave a recorded statement to police. The officer conducting

the interview asked B.M.D. if she was being treated for any medical

conditions, and she responded "mild depression." She reported to the officer

she had taken Paxil that day and had a glass of wine the prior evening. There

is no evidence in the record that the police conducted a field sobriety check.

The police did not request a blood draw or an Alcotest.           A police report

concluded, "[B.M.D.] made no attempt to move over to the left and safely pass

Mrs. Schrope.     [Even though] [t]he width of the roadway was measured

[twenty] feet [nine] inches[,] which would have allowed ample space for

[B.M.D.] to move over and safely pass Mrs. Schrope." Despite the fact that

Schrope suffered fatal injuries, B.M.D. was only charged with and convicted

of careless driving, N.J.S.A. 39:4-97, after a trial in municipal court.



                                                                           A-1255-18T3
                                         3
      On May 4, 2015, plaintiff filed a wrongful death and survivorship claim

against B.M.D.3 Through discovery, plaintiff learned B.M.D. was under the

care of psychiatrist Stefan Lerner, M.D, and plaintiff named him as a

defendant in a first amended complaint. During B.M.D.'s deposition, she was

asked about what medications she took. At the time of the crash, B.M.D. was

prescribed at least six psychiatric medications, including: (1) duloxetine

(Cymbalta); (2) lamotrigine (Lamictal); (3) lithium carbonate (Lithobid); (4)

trazadone;   (5)   dexmethylphenidate       hydrochloride   (Focalin);     and     (6)

methylphenidate    (Concerta).    B.M.D. admitted she took               duloxetine,

lamotrigine and lithium carbonate on the morning of the crash. When asked if

she took trazodone the night before the crash, she testified she did not know,

and, when asked if it was possible, she answered "it's possible." She also

consumed some wine the night before.          B.M.D. also testified she did not

experience side effects from her medications except for Focalin.

      Focalin is a central nervous system stimulant used to treat Attention

Deficit Disorder (ADD) and Attention Deficit Hyperactivity Disorder

(ADHD). B.M.D. admitted Focalin made her "feel a little speedy" as if she

was "on speed." She initially denied taking Focalin on the day of the crash

3
  Plaintiff also named B.M.D.'s husband J.D., who owned the car, and Atlock
Farm, B.M.D.'s employer. Both were dismissed in an order for summary
judgment that is not before us.


                                                                            A-1255-18T3
                                        4
because "[i]t had such bad ramifications, I didn't want to bring it up," but later

admitted it was possible she "took half of the dose I should have."

      On June 8, 2014, Lerner mailed B.M.D. a prescription for Concerta

without meeting with her in person. Concerta is also a central nervous system

stimulant. B.M.D. testified she did not complain to Lerner of any adverse

reaction to Focalin, and Lerner did not document why he wrote her a new

prescription.   In her deposition, B.M.D. could not recall whether she took

either one, neither or both Focalin and Concerta on the morning of the crash.

      Lerner began working with B.M.D. in 2001. Over the course of thirteen

years, up and until the crash, he wrote her 160 initial prescriptions and over

250 refill prescriptions.   Lerner diagnosed B.M.D. with Major Depressive

Disorder, ADD and panic disorder but not bi-polar disorder, although he

opined she exhibited bi-polar-like symptoms. During her testimony, B.M.D.

exhibited limited knowledge about the purpose and effect of each drug she was

prescribed and admitted she often altered dosages without consulting Lerner.

She denied Lerner ever warned her against driving after ingesting her

medication. However, Lerner testified he would have warned her, especially if

she felt drowsy or light-headed.

      B.M.D. sometimes missed her appointments with Lerner.                Lerner

explained this was problematic because he did not want to alter B.M.D.'s



                                                                         A-1255-18T3
                                        5
medication regimen and recognized the importance of meeting with her in

person to determine how she was responding to the medication.             Lerner

acknowledged he sometimes mailed prescriptions to B.M.D. without meeting

with her in person and admitted to mailing her a prescription for Concerta on

June 8, 2014. Prior to the crash, B.M.D.'s last meeting with Lerner was April

3, 2014.

      Several years before the accident, B.M.D. told Lerner she had panic

attacks that either occurred while she was driving or left her feeling like she

could not drive. She reported experiencing one panic attack while driving so

severe that she had to pull over. Lerner was aware B.M.D. experienced panic

attacks while driving but was under the impression "she has [not] had much

trouble in that area" because she continued to drive without incident.

      Although plaintiff's complaint names B.M.D.'s pharmacist as "John/Jane

Doe Doctors/Pharmacists," the record lacks any mention of who filled

B.M.D.'s prescriptions. Of particular significance is the absence of any record

or testimony about whether B.M.D.'s pharmacist provided written or oral

warnings of the potential side effects of the medications.        No pharmacy

records are included in the appellate record.

      Lerner moved for summary judgment on March 27, 2018. Lerner argued

he owed no duty of care to Schrope because she was not a readily identifiable



                                                                         A-1255-18T3
                                        6
victim. Lerner argued a therapist has no duty to warn unless he or she knows

or should know their patient intends to harm a readily identifiable victim.

      Plaintiff opposed Lerner's motion and submitted the report of two

experts. Robert J. Pandina, Ph.D., opined B.M.D.'s ability to operate a motor

vehicle was impaired when she struck Schrope. 4          Pandina explained the

purpose and possible side effects of each of the medications B.M.D. was

prescribed as follows:

            a. Duloxetine (Cymbalta) is an anti-depression
            medication prescribed for major depression; it has a
            half-life of [twelve] to [seventeen] hours, which is
            relatively long for such medications. To be effective
            the medication should be taken daily and requires a
            buildup period for efficacy. Given the long half-life
            the potential exists for a buildup of the drug that
            increases the risk of side effects hence careful
            monitoring of the medication is advisable as is close
            observation of the patient response to the medication.
            Side effects include: fatigue; drowsiness and sedation;
            double vision; crossed eyes; blurred vision; dizziness
            and lack of coordination; [i]nsomnia; impulsivity;
            anxiety; vivid dreams or nightmares; dry mouth,
            mouth ulcers; memory problems; mood changes;
            itchiness; runny nose; cough; and nausea. Use may
            also trigger panic attacks.       Some patients have
            reported experiencing a loss of concentration, even


4
  In reviewing Pandina's opinion, we note the documents that formed the basis
of his opinion included municipal court transcripts. Our record only included
the portion of the transcript containing the municipal court judge's decision
after a two day hearing. We asked for the complete transcripts, and they were
provided.


                                                                         A-1255-18T3
                                        7
with very small doses. Women are more likely than
men to have side-effects.

b. Lamotrigine (Lamictal) is prescribed for seizure
disorders. On-set of effect ranges from 1.4 to 4.8
hours. It has a half-life of [twenty-nine] hours, which
is relatively long for such medications. As is the case
with [duloxetine (Cymbalta)] [due to] the long half-
life the potential exists for a buildup of the drug that
increases the risk of side effects hence careful
monitoring of the medication is advisable as is close
observation of the patient response to the medication.
Lamotrigine is also an indicated medication option for
the treatment of bipolar disorders. However, many
clinicians also use it in patients with a (unipolar)
depressive disorder who have not responded
adequately to conventional antidepressants. Such
usage would be considered "off label." Side effects
are similar to those of [d]uloxetine (Cymbalta) and
include: tremors, dizziness; tired feeling; blurred
vision, double vision; loss of coordination; sleep
problems. Given the risk of side effects patients
should be carefully monitored specifically when the
medication is given along with other anti-depressants.

c. Lithium carbonate (Lithobid) is prescribed
principally for bi-polar depression. It may be used in
cases where other forms of medications are not
effective.    In some case[s] of apparent major
depression with fewer manic than depressive
symptoms the drug may be used as an adjunctive
therapy. Side effects include loss of balance or
coordination, drowsiness or muscle weakness; hand
tremors; confusion; memory problems; lack of
awareness; blurred vision.        Prescription of this
medication requires frequent monitoring of blood to
assure levels are within frequent therapeutic limits.

d. Trazadone is a medication used in the treatment of
major depression. It may also be prescribed as a sleep

                                                           A-1255-18T3
                           8
          aid. The medication has a bi-phasic half-life. The
          first phase ranges between [three] to [six] hours;
          subsequent phase range[s] between [five] and [nine]
          hours. Initial effectiveness occurs approximately one
          hour post ingestion. Side effects include: drowsiness
          and sedation; dizziness or loss of balance; confusion;
          blurred vision; impairment of vigilance. Alcohol use
          will increase risk of sedation and other side effects.

          e. [Dexmethylphenidate hydrochloride (Focalin)] is a
          central nervous system (CNS) stimulant employed in
          treatment of ADD and [ADHD]. Side effects include:
          blurred vision; dizziness; drowsiness; agitation; heart
          palpitations. Special care should be taken in using
          stimulants to treat ADD and ADHD in patients with
          comorbid bipolar disorder. The concern stems from
          the potential for possible induction of a mixed/manic
          episode in such patients. Before initiating treatment
          with a stimulant, patients with comorbid depressive
          symptoms should be adequately screened to determine
          if they are at risk for bipolar disorder. Prescription of
          these medications is contra-indicated for such
          individuals.

          f. [Methylphenidate (Concerta)5] is a [CNS] stimulant
          employed in treatment of ADD and [ADHD]. Side
          effects include: blurred vision; dizziness; drowsiness;
          agitation; heart palpitations. Special care should be
          taken in using stimulants to treat ADD and ADHD in
          patients with comorbid bipolar disorder. The concern
          stems from the potential for possible induction of a
          mixed/manic episode in such patients.           Before
          initiating treatment with a stimulant, patients with
          comorbid depressive symptoms should be adequately
          screened to determine if they are at risk for bipolar


5
   Both Focalin and Concerta are designated as Schedule II controlled
dangerous substances by the federal government. 21 C.F.R. § 1308.12(d).


                                                                      A-1255-18T3
                                     9
            disorder. Prescription of these medications is contra-
            indicated for such individuals.

      Plaintiff's second expert, Alberto M. Goldwaser, M.D., opined Lerner's

treatment of B.M.D. "fell outside the acceptable professional standards of care

as they apply to the practice of neuropsychiatry/psychiatry, and such deviation

was a significant contributing factor in causing the motor vehicle collision . . .

[that] resulted in the death of Ms. Judith Schrope."        Goldwaser criticized

Lerner for prescribing medication without an accompanying diagnosis and then

prescribing additional medication to counteract negative side effects. Instead,

Goldwaser opined Lerner should have treated B.M.D.'s underlying mental

health issues rather than only treat her symptoms.

      On May 11, 2018, after oral argument, the trial judge agreed with Lerner

that because there was no connection between Lerner and Schrope, Lerner did

not owe her a duty of care. The trial judge noted that many substances could

render a driver sleepy and "all of them are clearly marked with those kin ds of

warning[s]."   The judge also stated the record did not establish "that []

[B.M.D.] was drunk or intoxicated." Thus, the trial judge granted Lerner's

motion for summary judgment.

      Plaintiff moved for leave to appeal, which we denied. The Supreme

Court granted plaintiff's motion for leave to appeal and summarily remanded

the case to us to review the May 11, 2018 order on the merits. On January 16,

                                                                         A-1255-18T3
                                       10
2019, the American Medical Association and the Medical Society of New

Jersey moved for leave to appear as amici curiae. Pursuant to Rule 1:13-9(a),

we granted amici leave to file a brief.

      On appeal, plaintiff argues New Jersey law is ripe for an extension of a

prescribing practitioner's duty of care and urges us to adopt the reasoning from

other jurisdictions that a prescribing practitioner owes a duty to warn their

patient of adverse side effects of medications for the benefit of third parties.

For the reasons that follow, we decline to do so.

                                          II.

      "[W]e review the trial court's grant of summary judgment de novo under

the same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l

Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). A motion for

summary judgment should be granted "if the pleadings, depositions, answers to

interrogatories and admissions on file, together with the affidavits, if any,

show that there is no genuine issue as to any material fact challenged and that

the moving party is entitled to a judgment or order as a matter of law." R.

4:46-2(c). The evidence must be viewed "in the light most favorable to the

non-moving party." Mem'l Props., LLC v. Zurich Am. Ins. Co., 210 N.J. 512,

524 (2012).




                                                                        A-1255-18T3
                                          11
      However, "Rule 4:46-2(c)'s 'genuine issue [of] material fact' standard

mandates that the opposing party do more than 'point[] to any fact in dispute'

in order to defeat summary judgment." Globe Motor Co. v. Igdalev, 225 N.J.

469, 479 (2016) (alterations in original) (quoting Brill, 142 N.J. at 529).

"[W]hether there exists a 'genuine issue' of material fact that precludes

summary judgment requires the motion judge to consider whether the

competent evidential materials presented . . . are sufficient to permit a rational

factfinder to resolve the alleged disputed issue in favor of the non-moving

party." Brill, 142 N.J. at 540. "To defeat a motion for summary judgment, the

opponent must 'come forward with evidence that creates a genuine issue of

material fact.'" Cortez v. Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014)

(quoting Horizon Blue Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32

(App. Div. 2012)). "[C]onclusory and self-serving assertions by one of the

parties are insufficient to overcome the motion . . . ." Puder v. Buechel, 183

N.J. 428, 440-41 (2005).

      "The motion court must analyze the record in light of the substantive

standard and burden of proof that a factfinder would apply in the event that the

case were tried." Globe Motor Co, 225 N.J. at 480. "Thus, 'neither the motion

court nor an appellate court can ignore the elements of the cause of action or

the evidential standard governing the cause of action.'" Id. at 480-81 (quoting



                                                                         A-1255-18T3
                                       12
Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)). We consider, as the trial judge did,

"whether the evidence presents a sufficient disagreement to require submission

to a jury or whether it is so one-sided that one party must prevail as a matter of

law." Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-

46 (2007) (quoting Brill, 142 N.J. at 536).

      "If there is no genuine issue of material fact, we must then 'decide

whether the trial court correctly interpreted the law.'"        DepoLink Court

Reporting & Litig. Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App.

Div. 2013) (quoting Massachi v. AHL Servs., Inc., 396 N.J. Super. 486, 494

(App. Div. 2007)). We review issues of law de novo and accord no deference

to the trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478

(2013).

      To sustain a cause of action for negligence, a plaintiff must establish

four elements: "(1) [a] duty of care, (2) [a] breach of [that] duty, (3) proximate

cause, and (4) actual damages[.]" Polzo v. Cty. of Essex, 196 N.J. 569, 584

(2008) (alterations in original) (quoting Weinberg v. Dinger, 106 N.J. 469, 484

(1987)). A "plaintiff bears the burden of establishing those elements 'by some

competent proof[.]'" Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406

(2014) (citation omitted) (quoting Overby v. Union Laundry Co., 28 N.J.

Super. 100, 104 (App. Div. 1953)). Proximate cause consists of "any cause



                                                                         A-1255-18T3
                                       13
which in the natural and continuous sequence, unbroken by an efficient

intervening cause, produces the result complained of and without which the

result would not have occurred." Conklin v. Hannoch Weisman, 145 N.J. 395,

418 (1996) (quoting Fernandez v. Baruch, 96 N.J. Super. 125, 140 (App. Div.

1967), rev'd on other grounds, 52 N.J. 127 (1968)); Dawson v. Bunker Hill

Plaza Assocs., 289 N.J. Super. 309, 322 (App. Div. 1996).

      Determining the scope of tort liability presents a question of law. Kelly

v. Gwinnell, 96 N.J. 538, 552 (1984). "The question of whether a duty to

exercise reasonable care to avoid the risk of harm to another exists is one of

fairness and policy that implicates many factors." Carvalho v. Toll Bros. &

Developers, 143 N.J. 565, 572 (1996). The inquiry "turns on whether the

imposition of such a duty satisfies an abiding sense of basic fairness under all

of the circumstances in light of considerations of public policy." Hopkins v.

Fox & Lazo Realtors, 132 N.J. 426, 439 (1993). "The analysis is both very

fact-specific and principled; it must lead to solutions that properly and fairly

resolve the specific case and generate intelligible and sensible rules to govern

future conduct." Ibid.

      "Foreseeability of the risk of harm is the foundational element in the

determination of whether a duty exists." J.S. v. R.T.H., 155 N.J. 330, 337

(1998). "Foreseeability is significant in the assessment of a duty of care to



                                                                        A-1255-18T3
                                      14
another; moreover, it has a dual role in the analysis of tort responsibility."

Olivo v. Owens-Ill., Inc., 186 N.J. 394, 402 (2006).        In the duty of care

analysis, foreseeability "is based on the defendant's knowledge of the risk of

injury and is susceptible to objective analysis." J.S., 155 N.J. at 338. That

knowledge may arise from actual awareness, Carvalho, 143 N.J. at 576, or

knowledge may be constructive when the defendant "was in a position to

foresee and discover the risk of harm[.]" Id. at 578. "In some cases where the

nature of the risk or the extent of harm is difficult to ascertain, foreseeability

may require that the defendant" know a certain class of reasonably foreseeable

persons would likely suffer injury. J.S., 155 N.J. at 338; see also C.W. v.

Cooper Health Sys., 388 N.J. Super. 42, 62 (App. Div. 2006); Safer v. Estate

of Pack, 291 N.J. Super. 619, 626-27 (App. Div. 1996). "Also included in the

analysis is 'an assessment of the defendant's "responsibility for conditions

creating the risk of harm" and an analysis of whether the defendant had

sufficient control, opportunity, and ability to have avoided the risk of harm.'"

Podias v. Mairs, 394 N.J. Super. 338, 350 (App. Div. 2007) (quoting J.S., 155

N.J. at 339).

      "Once the foreseeability of an injured party is established, . . .

considerations of fairness and policy govern whether the imposition of a duty

is warranted."   Carvalho, 143 N.J. at 573 (alteration in original) (quoting



                                                                         A-1255-18T3
                                       15
Carter Lincoln-Mercury, Inc. v. EMAR Grp., Inc., Leasing Div., 135 N.J. 182,

194-95 (1994)). The assessment of fairness and policy "involves identifying,

weighing, and balancing several factors—the relationship of the parties, the

nature of the attendant risk, the opportunity and ability to exercise care, and

the public interest in the proposed solution." Hopkins, 132 N.J. at 439.

            Although in many cases a duty of care can arise
            simply from the determination of the foreseeability of
            harm, usually "more is needed" to find such a duty,
            that "'more' being the value judgment, based on an
            analysis of public policy, that the actor owed the
            injured party a duty of reasonable care."

            [Carvalho, 143 N.J. at 573 (quoting Kelly, 96 N.J. at
            544).]

      "Public policy must be determined in the context of contemporary

circumstances and considerations." J.S., 155 N.J. at 339. "Thus, '"[d]uty" is

not a rigid formalism' that remains static through time, but rather is a

malleable concept that 'must of necessity adjust to the changing social

relations and exigencies and man's relations to his fellows.'" Ibid. (alteration

in original) (quoting Wytupeck v. Camden, 25 N.J. 450, 462 (1957)).

      New Jersey courts have recognized a mental-health professional owes a

duty to take reasonable steps to protect a readily identifiable victim put at risk

by their patient. In McIntosh v. Milano, 168 N.J. Super. 466, 489 (Law. Div.

1979), the Superior Court held a therapist had a duty to protect a readily



                                                                           A-1255-18T3
                                       16
identifiable victim who was murdered by his patient, because the therapist had

reason to know his patient presented a danger to the victim. McIntosh was

decided in light of Tarasoff v. Regents of University of California, 551 P.2d

334, 353 (Cal. 1976), where the Supreme Court of California held a

psychiatrist had a duty to protect a readily identifiable victim of his patient

when the patient informed the psychiatrist of his intent to murder the victim.

      Tarasoff recognized that while one has no duty to control the actions of

another, a mental-health professional is often in the best position to determine

"whether a patient presents a serious danger of violence." Id. at 345. It was

not necessary for the psychiatrist in Tarasoff to have prevented the harm, but

rather, the psychiatrist should have exercised "that reasonable degree o f skill,

knowledge, and care ordinarily possessed and exercised by members of [that

professional specialty] under similar circumstances."       Ibid. (alteration in

original) (quoting Bardessono v. Michels, 478 P.2d 480, 484 (Cal. 1970)). In

McIntosh, the Law Division observed that the therapist's duty arises from the

special relationship between therapist and patient, and the duty is solidified

when the therapist knows or should know the patient intends harm or as an

extension of the healthcare professional's broad-based duty to protect the

welfare of the community. 168 N.J. Super. at 489-90; see also Restatement

(Second) of Torts § 315 (Am. Law Inst. 1965) ("There is no duty so to control



                                                                        A-1255-18T3
                                       17
the conduct of a third person as to prevent him from causing physical h arm to

another unless (a) a special relation exists between the actor and the third

person which imposes a duty upon the actor to control the third person's

conduct, or (b) a special relation exists between the actor and the other which

gives to the other a right to protection."). Prior to and since McIntosh, both

New Jersey courts and our Legislature expanded the special relationship rule

to include the duty to warn potential victims of contagious or genetic diseases. 6

      McIntosh led to the enactment of N.J.S.A. 2A:62A-16, which immunized

licensed medical professionals "from any civil liability for a patient's violent

act against another person or against himself unless the practitioner has

incurred a duty to warn and protect the potential victim[.]" N.J.S.A. 2A:62A-

16(b) explains a duty to warn and protect arises if "[t]he patient has


6
    For example, in Safer, the defendant-doctor knew his patient had a
genetically transmissible form of cancer but failed to warn the patient's family
members. 291 N.J. Super. at 623. The doctor's failure to warn was a breach of
his duty to the family members because they were a readily identifiable class
of persons put at risk by the doctor's failure to act. Id. at 625 ("We see no
impediment, legal or otherwise, to recognizing a physician's duty to warn those
known to be at risk of avoidable harm from a genetically transmissible
condition. In terms of foreseeability especially, there is no essential difference
between the type of genetic threat at issue here and the menace of infection,
contagion or a threat of physical harm."). In C.W., the court applied a similar
principle and held a physician who failed to warn his patient of a positive HIV
test owed a duty to third parties threatened by his patient's health status. 388
N.J. Super. at 62.



                                                                         A-1255-18T3
                                       18
communicated to that practitioner a threat of imminent, serious physical

violence against a readily identifiable individual" or if "[t]he circumstances are

such that a reasonable professional . . . would believe the patient intended to

carry out an act of imminent, serious physical violence against a readily

identifiable individual[.]" In one instance, N.J.S.A. 2A:62A-16 was applied to

immunize a psychiatrist who reasonably did not know his patient intended to

commit suicide. Marshall v. Klebanov, 188 N.J. 23, 40 (2006). 7

      Here, the trial court relied on McIntosh and the principle that unless the

victim of a therapist's patient is readily identifiable, there is no duty to act for

the victim's benefit. The trial court concluded that because Lerner did not

know Schrope and had no indication B.M.D. was going to harm her, Lerner did

not owe Schrope a duty of care. Although we affirm the trial court's dismissal

of plaintiff's claims as a matter of law, we think reliance on McIntosh, and the

principles therein, was misplaced.


7
  Health care professionals are subject to other statutory duties, such as: a duty
to warn a patient about the addictive risks of opioids before prescribing them
for pain management, N.J.S.A. 24:21-15.2(d); the duty to report a patient's
diagnosis of certain communicable diseases to the Department of Health,
N.J.S.A. 26:4-15; the duty to report a patient's history of convulsive seizures
or periods of unconsciousness to the Division of Motor Vehicles, N.J.S.A.
39:3-10.4; and, in the case of a pharmacy permit holder, the duty to report
information about each prescription for a controlled dangerous substance
dispensed by the pharmacy, N.J.S.A. 45:1-45.



                                                                           A-1255-18T3
                                        19
      In cases analyzing the duty of care owed within the context of a special

relationship, the principal question is whether the defendant had a duty to act

for the benefit of another but failed to do so. See Podias, 394 N.J. Super. at

346 ("Traditional tort theory emphasizes individual liability, which is to say

that each particular defendant who is to be charged with responsibility must be

proceeding negligently. Ordinarily, then, mere presence at the commission of

the wrong, or failure to object to it, is not enough to charge one with

responsibility inasmuch as there is no duty to take affirmative steps to

interfere."); McIntosh, 168 N.J. Super. at 483 (explaining that generally a

person has no duty to control the actions of another except within the context

of a special relationship). But here, Lerner acted affirmatively by prescribing

medication to B.M.D.     Thus, we must examine the legal consequences of

Lerner's action.

      The Restatement (Third) of Torts: Liability for Physical and Emotional

Harm makes this same distinction. Restatement (Third) of Torts: Liability for

Physical and Emotional Harm § 41 cmt. h (Am. Law Inst. 2005) (Restatement

(Third) of Torts). Section 41 of the Restatement (Third) of Torts revised and

replaced Restatement (Second) of Torts § 315, which provided the basis for the

special relationship exception. See McIntosh, 168 N.J. Super. at 483 (citing

Restatement (Second) of Torts § 315 for the proposition that generally a



                                                                       A-1255-18T3
                                      20
person has no duty to control another's conduct unless a special relationship

exists between the two); Restatement (Third) of Torts § 41 cmt. a ("This

Section replaces §[] 315(a) . . . and includes an additional relationship creating

an affirmative duty, that of mental health professional and patient."). Section

41 adopts a categorical approach and provides:

            (a) An actor in a special relationship with another
            owes a duty of reasonable care to third parties with
            regard to risks posed by the other that arise within the
            scope of the relationship. (b) Special relationships
            giving rise to the duty . . . include: . . . (4) a mental-
            health professional with patients.

            [Restatement (Third) of Torts § 41.]

However, the comments to section 41 distinguish between scenarios where the

practitioner is under an affirmative duty to act versus when the practitioner's

conduct creates a foreseeable risk of harm. Id. cmt. h. When a practitioner

prescribes either appropriate or inappropriate medication that impairs the

patient, who in turn puts others at risk, the practitioner was under a duty to

exercise reasonable care in making that decision. Ibid. ("In some cases, care

provided to a patient may create risks to others. This may occur because of

negligent treatment, such a prescribing an inappropriate medication that

impairs the patient.   It can also occur because of appropriate care of the

patient, such as properly prescribing medication that impairs the patient.").

Thus, the question is not whether the practitioner had a duty to act, but rather

                                                                         A-1255-18T3
                                       21
were the consequences of the act of prescribing medication foreseeable to the

practitioner. See ibid. ("In these instances, the physician's duty to third parties

is governed by [Restatement (Third) of Torts] § 7, not by this Chapter."); see

also Restatement (Third) of Torts § 7(a) ("An actor ordinarily has a duty to

exercise reasonable care when the actor's conduct creates a risk of physical

harm.").

      Here, the parties do not dispute Lerner had a duty to exercise reasonable

care in his treatment of B.M.D. See, e.g., Komlodi v. Picciano, 217 N.J. 387,

410 (2014) ("A physician must exercise a duty of care to a patient that,

generally, any similarly credentialed member of the profession would exercise

in a like scenario."). Accordingly, the parties agree that B.M.D. may have a

cause of action against Lerner premised on the patient-practitioner

relationship. See, e.g., Verdicchio v. Ricca, 179 N.J. 1, 23 (2004) ("A medical

malpractice case is a kind of tort action in which the traditional negligence

elements are refined to reflect the professional setting of a physician-patient

relationship."). It would defy logic to suggest that the duty of care Lerner

owes B.M.D., within the patient-practitioner relationship, is somehow

diminished because B.M.D. is not seeking to hold Lerner directly liable. Here,

Lerner did have a duty to warn and educate B.M.D. about the side effects of

the medications he prescribed. See In re Accutane Litig., 235 N.J. 229, 265-66



                                                                          A-1255-18T3
                                        22
(2018) (describing the learned intermediary doctrine, which acknowledges the

prescribing practitioner must deliver pharmaceutical warnings to patients as

the intermediary between pharmaceutical manufacturers and consumers). As a

result, Lerner can only be held liable for the foreseeable consequences of his

actions.

      Thus, the issue in this case is properly framed as one of proximate cause,

not the duty of care.    "[A] plaintiff must show that a defendant's conduct

constituted a cause-in-fact of his injuries." Dawson, 289 N.J. Super. at 322.

"In the routine tort case, 'the law requires proof that the result complained of

probably would not have occurred "but for" the negligent conduct of the

defendant.'" Conklin, 145 N.J. at 417 (quoting Vuocolo v. Diamond Shamrock

Chems. Co., 240 N.J. Super. 289, 295 (App. Div. 1990)).              "[A]n act or

omission is not regarded as a cause-in-fact of an event if the event would have

occurred without such act or omission." Thorn v. Travel Care, Inc., 296 N.J.

Super. 341, 346 (App. Div. 1997). "[T]here may be multiple causes of an

injury, [though] these causes 'need not, of themselves, be capable of producing

the injury; it is enough if they are "a substantial factor" in bringing it about.'"

Id. at 347 (quoting Conklin, 145 N.J. at 419).

      "Proximate cause has been described as a standard for limiting liability

for the consequences of an act based 'upon mixed considerations of logic,



                                                                          A-1255-18T3
                                        23
common sense, justice, policy and precedent.'" Fleuhr v. City of Cape May,

159 N.J. 532, 543 (1999) (quoting Caputzal v. Lindsay Co., 48 N.J. 69, 77-78

(1966)). "Proximate cause is a limitation the common law has placed on an

actor's responsibility for the consequences of the actor's conduct." Camp v.

Jiffy Lube No. 114, 309 N.J. Super. 305, 309 (App. Div. 1998).             "As a

practical matter, legal responsibility must be limited to those causes which are

so closely connected with the result and of such significance that the law is

justified in imposing liability." Brown v. U.S. Stove Co., 98 N.J. 155, 173

(1984) (quoting Caputzal, 48 N.J. at 78).

      "Ordinarily, the issue of proximate cause should be determined by the

factfinder." Fleuhr, 159 N.J. at 543. "Proximate cause as an issue, however,

may be removed from the factfinder in the highly extraordinary case in wh ich

reasonable minds could not differ on whether that issue has been established."

Ibid. "[O]ur courts have, as a matter of law, rejected the imposition of liability

for highly extraordinary consequences." J.S., 155 N.J. at 352. Our Supreme

Court has explained

            to prove the element of causation, plaintiffs bear the
            burden to "introduce evidence which affords a
            reasonable basis for the conclusion that it is more
            likely than not that the conduct of the defendant was a
            cause in fact of the result. A mere possibility of such
            causation is not enough; and when the matter remains
            one of pure speculation or conjecture, or the
            probabilities are at best evenly balanced, it becomes

                                                                         A-1255-18T3
                                       24
            the duty of the court to direct a verdict for the
            defendant."

            [Townsend v. Pierre, 221 N.J. 36, 60-61 (2015)
            (quoting Davidson v. Slater, 189 N.J. 166, 185
            (2007)).]

See also Thorn, 296 N.J. Super. at 347 ("[A]lthough plaintiffs bear the burden

of proving causation, 'they are not obliged to establish it by direct, indisputable

evidence.' Instead, '[t]he matter may rest upon legitimate inference, so long as

the proof will justify a reasonable and logical inference as distinguished from

mere speculation.'" (quoting Kulas v. Pub. Serv. Elec. & Gas Co., 41 N.J. 311,

319 (1964))).

      In Townsend, the Supreme Court held summary judgment was properly

granted when the non-moving party failed to put forward any competent

evidence to prove proximate cause. 221 N.J. at 61. Similarly, in Fleuhr, the

Supreme Court reinstated a grant of summary judgment because dangerous

ocean conditions and a surfer's negligence, not a lifeguard's conduct, caused

the injury. 159 N.J. at 543-45. Proximate cause may also be removed from

the jury's determination if causation depends on the validity of an expert's

report. See Townsend, 221 N.J. at 57-58 (rejecting an expert's opinion on

causation because it diverged from the evidence); Dawson, 289 N.J. Super. at

324 (holding that summary judgment was proper when an expert offered a net

opinion of causation and the non-moving party could not make "a prima facie

                                                                          A-1255-18T3
                                        25
showing of a causal relationship between [the injury] and [the] alleged

negligent conduct"). "Thus, in the unusual setting in which no reasonable

factfinder could find that the plaintiff has proven causation by a preponderance

of the evidence, summary judgment may be granted dismissing the plaintiff's

claim." Townsend, 221 N.J. at 60.

                                      III.

      We liken this case to instances of social host liability and dram shop

cases. In such scenarios there are really two actions that cause the injury: "A"

provides alcoholic beverages to visibility intoxicated "B," and B injures "C,"

an innocent third party. Although A and B have no special relationship, A's

negligent provision of alcohol to B was a proximate cause of C's injury. The

thread connecting A to C is that A was, in part, responsible for B's

intoxication, and B's intoxication caused C's injury. However, in our case, the

common thread connecting Lerner to Schrope is missing: the record contains

no evidence B.M.D. was impaired at the time she caused Schrope's fatal

injuries.

      Social host or tavern owner liability is tempered by the "visibly

intoxicated" requirement. For example, in Kelly, social hosts provided a guest

with "two or three drinks of scotch on the rocks" "an hour or two" before the

guest was involved in a head-on collision.       96 N.J. at 541.     An expert



                                                                        A-1255-18T3
                                      26
concluded that, at the time of the car crash, the guest had consumed "the

equivalent of thirteen drinks" and "must have been showing unmistakable

signs of intoxication" at the social hosts' home. Ibid. As a result, the social

hosts had knowledge of the risk of harm the guest presented to other drivers

and it was fair to hold the social hosts liable for providing the alcohol that

caused the collision. Id. at 543-44 ("[O]ne could reasonably conclude that the

[social hosts] must have known that their provision of liquor was causing [the

guest] to become drunk, yet they continued to serve him even after he was

visibly intoxicated. By the time [the guest] left, [he] was in fact severely

intoxicated. A reasonable person in [the social hosts'] position could foresee

quite clearly that this continued provision of alcohol to [the guest] was making

it more and more likely that [the guest] would not be able to operate his car

carefully.").

      Under the New Jersey Licensed Alcoholic Beverage Server Fair Liability

Act, N.J.S.A. 2A:22A-1 to -7, and a comparable social host statute, N.J.S.A.

2A:15-5.6, a person injured by a patron or social guest may only recover from

the server or social host if the patron or social guest was "visibly intoxicated."

"'Visibly intoxicated' means a state of intoxication accompanied by a

perceptible act or series of acts which present clear signs of intoxication."

N.J.S.A. 2A:22A-3. Once a patron becomes visibly intoxicated, the social host



                                                                         A-1255-18T3
                                       27
or server is imputed with the knowledge that the patron presents a risk of harm

to others, and, as a result, it is fair to impose on the server or social host the

consequences that reasonably flow from the decision to over-serve the patron.

See Steele v. Kerrigan, 148 N.J. 1, 25-26 (1997) (explaining that social hosts

know their visibly intoxicated guests cannot safely operate a motor vehicle and

tavern owners are charged with "the more complete knowledge" of the harm an

intoxicated patron could cause, such as fighting or motor vehicle accidents).

      Of course, the injured party must affirmatively prove the patron or social

guest was intoxicated when the injury was caused. In Halvorsen v. Villamil,

429 N.J. Super. 568, 573 (App. Div. 2013), no eyewitness was available to

testify a tavern served alcohol to a visibly intoxicated patron. However, that

was not fatal to the injured party's claim; rather, intoxication "may be proved

by both direct evidence and circumstantial evidence." Id. at 575. The plaintiff

presented evidence the patron had just left a restaurant, was driving erratically,

struck a slowing vehicle hard enough to cause it to flip, a police office r

smelled alcohol on his breath and he had a substantial blood-alcohol content.

Id. at 576-77. The plaintiff's expert used this information to opine that it was

likely the patron was visibly intoxicated while at the tavern. Id. at 577. We

explained that the expert report alone was insufficient to create a genuine issue

of material fact on the visible intoxication issue. Id. at 579. Instead, it was all



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                                        28
the evidence of the patron's behavior before and after the crash that allowed a

reasonable jury to infer the tavern served the patron while he was visibly

intoxicated. Ibid.

      Similarly, here, plaintiff must make a prima facie showing that the crash

was caused by B.M.D.'s impairment. Based on our review of the record, we

agree with the trial court's finding that B.M.D. was not impaired or intoxicated

at the time of the crash. Plaintiff's expert reports to the contrary are based on

conclusory statements untethered to the observations of the police officers who

interviewed B.M.D. at the scene. In our view, plaintiff's proofs of prox imate

cause amount to "pure speculation or conjecture" and would force the jury to

hypothesize on whether B.M.D. was impaired.

      Goldwaser and Pandina opined that the medication B.M.D. took on the

day of the crash compromised her ability to drive. Both experts based their

opinion on: court records, B.M.D.'s and Lerner's deposition testimony, Lerner's

treatment records, pharmacy and laboratory records, a police report, B.M.D.'s

statement to police and a crash reconstruction report.         Pandina concluded

B.M.D. ingested "four (and possibly five) medications on the date of the

collision   including:   [d]uloxetine    (Cymbalta),    [lamotrigine]   (Lamictal),

[l]ithium   carbonate    (Lithobid)     and    [dexmethylphenidate   hydrochloride

(Focalin)]." Each of these medications carry side effects that, if experienced,



                                                                           A-1255-18T3
                                          29
may impair a person's ability to drive, including dizziness, sleepiness, blurred

vision and loss of coordination.           However, the record lacks any evidence

B.M.D. was experiencing one or several of these side effects before, during or

after the fatal crash.

      B.M.D. provided a statement to police and acknowledged she took some,

but not all, of her medications. In her deposition testimony, she admitted to

ingesting Focalin on the morning of the crash and that it had, in the past, made

her feel "speedy." Yet, police at the scene declined to question her further on

whether she was impaired by her medications. The police report does not

describe her as exhibiting behaviors that might be consistent with the side

effects of her medication, such as slurred words, squinting, lack of

coordination or other observable symptoms.                Moreover, B.M.D. was only

charged with careless driving, not driving while intoxicated. Neither expert

applied    their   expertise      in     neuropsychology,     psychiatry    or     clinical

psychopharmacology to prove how they knew B.M.D. was impaired even

though no officer at the scene observed she was exhibiting symptoms

consistent with the side effects of the medication.

      Pandina      opined   his        conclusion   was    supported   by    the     crash

reconstruction.     Prior to the crash, visibility was clear, no cars were

approaching from the other direction and B.M.D. had room to safely pass



                                                                                 A-1255-18T3
                                             30
Schrope.   However, Pandina does not explain how B.M.D.'s actions were

caused by the side effects of her medication.        In part, Pandina based his

conclusion on an assertion that B.M.D.'s description of the crash given at the

scene was inconsistent with the reconstruction report. Yet, Pandina failed to

offer any explanation as to why he believed B.M.D.'s inconsistent recollection

was indicative of her impairment.

      Instead, both expert reports conclude that if B.M.D. ingested all the

medication she was prescribed on the date of the crash, she could have

experienced all of the debilitating side effects. However, this conclusi on was

not based on B.M.D.'s observable behavior at the time of the crash. As a

result, the expert reports offer little more than conclusory assertions.

Considering the record's lack of direct or circumstantial evidence indicating

B.M.D. was impaired, the expert reports alone are insufficient to generate a

genuine issue of material fact on the issue of B.M.D.'s impaired driving. See

Townsend, 221 N.J. at 55 ("A party's burden of proof on an element of a claim

may not be satisfied by an expert opinion that is unsupported by the factual

record or by an expert's speculation that contradicts that record."); Dawson,

289 N.J. Super. at 324-25 (if an expert's report is without factual support, the

plaintiff must sustain a prima facie showing of proximate cause through other

reliable evidence). Therefore, we affirm the trial court's dismissal of plaintiff's



                                                                          A-1255-18T3
                                        31
claim as a matter of law, because no reasonable jury could find, based on the

proofs submitted, the medication Lerner prescribed caused B.M.D. to strike

Schrope with her car.

                                       IV.

      Cases from other jurisdictions confirm our conclusion that a prescribing

practitioner cannot be held liable for an injury caused by their patient unless

the injury was caused by the medication prescribed or narcotic administered.

In Coombes v. Florio, 877 N.E.2d 567, 572 (Mass. 2007) (Ireland, J.,

concurring), the Supreme Judicial Court of Massachusetts held, in a plurality

opinion, that "a physician owes a duty of reasonable care to everyone

foreseeably put at risk by his failure to warn of the side effects of his treatment

of a patient." The patient in Coombes was prescribed a variety of medications,

some of which caused drowsiness, but received no warning against driving.

Id. at 568-69. The patient lost consciousness while driving and struck the

plaintiff. Id. at 569.8


8
  The Coombes decision was, in part, based on Cottam v. CVS Pharmacy, 764
N.E.2d 814 (Mass. 2002). There, the Massachusetts court held, as a general
matter, a pharmacist owes no duty to warn a customer of the potential adverse
side effects of a prescription. Id. at 819-20. Rather, the court applied the
learned intermediary doctrine and determined the physician was in a better
position to provide warnings in the context of the physician-patient
relationship. Id. at 820. The Coombes court applied Cottam and explained
"that a doctor's duty of reasonable care, owed to a patient, includes the duty to
                                                                     (continued)

                                                                          A-1255-18T3
                                        32
      McKenzie v. Hawaiʻi Permanente Medical Group, Inc., 47 P.3d 1209,

1211 (Haw. 2002), presented a similar factual scenario to Coombes, where a

patient, who was not informed of a side effect of medication, fainted whil e

driving and struck the plaintiff. The defendant-doctor argued, absent a special

relationship between him and his patient, he owed no duty to warn his patient

for the benefit of the plaintiff. Id. at 1210-11. The Supreme Court of Hawaiʻi

disagreed and cited to Restatement (Second) of Torts § 302 for the proposition

that "[a] negligent act or omission may be one which involves an unreasonable

risk of harm to another through . . . (b) the foreseeable action of the other[]

[or] a third person[.]" Id. 1213 (quoting Restatement (Second) of Torts § 302).

To be sure, "Restatement (Second) [of Torts] § 302 by itself does not create or

establish a legal duty; it merely describes a type of negligent act." Ibid. The

court then considered the cost of imposing a duty to warn and observed

"imposing a duty would create little additional burden upon physicians because

physicians already owe their own patients the same duty[.]"       Id. at 1220.

Accordingly, the court held "[a] physician owes a duty to non -patient third


(continued)
provide appropriate warnings about side effects when prescribing drugs." 877
N.E.2d at 570. As a result, "[t]he occurrence of known side effects, and the
impact of such side effects on the patient's ability to drive, are foreseeable
results of that prescription." Id. at 573.



                                                                       A-1255-18T3
                                      33
parties injured in an automobile accident caused by an adverse reaction to . . .

medication" but qualified the holding by noting it applies "where the

circumstances are such that the reasonable patient could not have been

expected to be aware of the risk without the physician's warning." Id. at 1221-

22.

      Courts in New Mexico and New York have explicitly distinguished

between cases where a medication is prescribed versus where it was

administered intravenously. In Davis v. South Nassau Communities Hospital,

46 N.E.3d 614, 616 (N.Y. 2015), the patient was administered an intravenous

pain killer; however, no hospital employee told the patient she should not

drive. Nineteen minutes after she left the hospital, the patient caused a car

accident.   Ibid.   The Davis court imposed a duty to warn on the hospital

because it was in the best position to do so and, under New York law,

prescribing practitioners were already required to explain the side effects of

medications to their patients.    Id. at 618, 624.    However, the Davis court

limited its holding to situations where a drug is administered intravenously.

Id. at 622 n.4 ("[W]e have recognized a duty of care running from a physician

to third parties where the physician fails to warn his or her patient of potential

physical impairments caused by a drug the physician has administered, rather

than merely prescribed, to the patient.").



                                                                         A-1255-18T3
                                        34
      New Mexico courts have made a similar distinction. In a prescription

drug case, the Supreme Court of New Mexico focused on the amount of time

that had passed between when the prescription was written and when the injury

occurred. Lester v. Hall, 970 P.2d 590, 592 (N.M. 1998) ("[W]e determine

that the likelihood of injury to [the plaintiff] is not foreseeable to the degree

required in order to warrant a duty.        The likelihood that a patient using

prescription lithium will cause a car accident five days after contact with the

doctor is considerably more remote in comparison to a patient who, injected

with a narcotic, will cause an accident while driving away from the doctors'

office."). But when a drug is administered intravenously, the practitioner does

owe a duty to warn against driving because the risk of harm is more

immediate. Wilschinsky v. Medina, 775 P.2d 713, 717 (N.M. 1989).

      In Coombes, Davis, McKenzie and Wilschinsky, the patients either

became unconscious or received intravenous medication, leaving little doubt as

to the cause of the motor vehicle accident. Several of the cases Lerner relies

upon also involve a patient falling unconscious at the wheel. 9 The facts of


9
  For example, the Supreme Court of Kansas dealt with a case where a patient
with a sleeping disorder was never warned not to drive and caused a car
accident. Calwell v. Hassan, 925 P.2d 422, 424-25 (Kan. 1996). In Calwell,
the patient experienced chronic daytime sleepiness and her physician
prescribed a sleep aid to encourage nighttime sleep. Id. at 425. The patient
never experienced sleepiness while driving, and her physician never felt it was
                                                                  (continued)

                                                                         A-1255-18T3
                                       35
those cases eliminated the need to consider whether the patient's impairment

was the cause of the injury. But here, because B.M.D. was not demonstrably

impaired by her medication at the time she caused the fatal crash, Lerner

cannot be held liable for an injury unrelated to his conduct.

      Affirmed.




(continued)
necessary to dissuade her from driving. Ibid. The Supreme Court of Kansas
focused on the relationship between practitioner and patient and held there was
no duty to warn. Id. at 433.

       In Gilhuly v. Dockery, 615 S.E.2d 237, 238 (Ga. Ct. App. 2005), the
patient received intravenous medication that caused drowsiness, was never
warned against driving and subsequently caused a car accident. The Gilhuly
court concluded there was no duty to warn the patient because the doctor had
no special relationship with the "motoring public" and expanding a
practitioner's duty in this instance would expose the doctor to liability from the
public at large. Id. at 239. We do not consider Gilhuly persuasive because it
is more foreseeable that a patient who receives an intravenous narcotic would
experience immediate side effects than a patient who takes a prescription
outside the prescriber's care.


                                                                         A-1255-18T3
                                       36
