                        NOT FOR PUBLICATION WITHOUT THE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-5328-15T4

DIANA DASENT,

        Plaintiff-Appellant,

v.

TODD KOPPEL, M.D., GARDEN
STATE PAIN MANAGEMENT, and
CLIFTON SURGERY CENTER,

        Defendants-Respondents.

______________________________

              Submitted September 26, 2017 – Decided October 4, 2017

              Before Judges Fasciale and Moynihan.

              On appeal from Superior Court of New Jersey,
              Law Division, Essex County, Docket No. L-3743-
              14.

              Rothenberg, Rubenstein, Berliner & Shinrod,
              LLC, attorneys for appellant (Alan Berliner,
              on the brief).

              Rosenberg, Jacobs & Heller, P.C., attorneys
              for respondents Todd Koppel, M.D. and Garden
              State Pain Management (Scott T. Heller, of
              counsel and on the brief; Ronald J. Morgan,
              on the brief).

              Farkas   &  Donohue,  LLC,  attorneys  for
              respondent Clifton Surgery Center (Beth A.
             Hardy, of counsel; Meredith T. Zaita, on the
             brief).

PER CURIAM

      In this medical malpractice case, plaintiff appeals from a

July 18, 2016 order granting Todd Koppel, M.D., Garden State Pain

Management     (GSPM),     and        Clifton        Surgery       Center's     (CSC)

(collectively     defendants)     motions        for    involuntary       dismissal

pursuant to Rule 4:37-2(b).       Judge Stephanie A. Mitterhoff entered

the order and rendered an oral opinion dated July 11, 2016.                          We

affirm.

      Plaintiff sustained injuries from an automobile accident, and

sought medical treatment from defendants.                    Dr. Koppel, a pain

management     specialist,       performed           epidural       injections       in

plaintiff's cervical spine at the C4-5, C5-6 and C6-7 vertebrae.

The   doctor   performed    injections        without       complications.         The

discharge instructions informed plaintiff to use ice every few

hours for twenty-minute intervals if she experienced discomfort

in the area of the injections.

      Plaintiff went home and experienced discomfort in her right

upper shoulder, which was not the location of the injections.                      She

applied ice to her shoulder, fell asleep, and awakened the next

day   with   blistering    of   the    skin     in    the   area    she   had   iced.

Approximately one week later, plaintiff went to the emergency room


                                         2                                    A-5328-15T4
and stated that she applied ice, fell asleep, and woke up the next

morning with the blistering.

     Plaintiff filed this complaint alleging that the injections

burned her skin.    Plaintiff's expert opined that the use of an

electrical grounding pad during the injection procedure caused the

burning.   It is undisputed that defendants did not use such a pad.

Defendants filed a motion to bar the expert from testifying at

trial and contended that the expert rendered a net opinion.                A

different judge agreed with defendants and granted defendants'

motion.1

     Judge   Mitterhoff   entered   the   order   under   review   at   the

beginning of the trial.    She acknowledged that plaintiff would be

unable to proceed without an expert.      The judge concluded that the

doctrine of res ipsa loquitor was inapplicable, and that the

conditional res ipsa loquitor charge did not apply.        Consequently,

she dismissed the case.

     On appeal, plaintiff argues that she does not need an expert

in this medical malpractice case.         Plaintiff asserts that the

doctrine of res ipsa loquitor obviates the need to submit expert

testimony.   Plaintiff also contends that even if res ipsa loquitor




1
    Plaintiff did not appeal from the order barring the expert
from testifying.

                                    3                              A-5328-15T4
is inapplicable, then she was entitled to a conditional res ipsa

loquitor charge.

      We begin by addressing our standard of review of the order

dismissing    plaintiff's      complaint.        Defendants     moved    for

involuntary dismissal pursuant to Rule 4:37-2(b), providing in

part that

            [a]fter having completed the presentation of
            the evidence on all matters other than the
            matter of damages . . . , the plaintiff shall
            so announce to the court, and thereupon the
            defendant, without waiving the right to offer
            evidence in the event the motion is not
            granted, may move for a dismissal of the
            action . . . on the ground that upon the facts
            and upon the law the plaintiff has shown no
            right to relief. . . . [S]uch motion shall
            be denied if the evidence, together with the
            legitimate    inferences   therefrom,    could
            sustain a judgment in plaintiff's favor.

"If the court, 'accepting as true all the evidence which supports

the   position   of   the   party   defending   against   the   motion   and

according him the benefit of all inferences which can reasonably

and legitimately be deduced therefrom,' finds that 'reasonable

minds could differ,' then 'the motion must be denied.'"                  ADS

Assocs. Grp., Inc. v. Oritani Sav. Bank, 219 N.J. 496, 510-11

(2014) (quoting Verdicchio v. Ricca, 179 N.J. 1, 30 (2004)).             "An

appellate court applies the same standard when it reviews a trial

court's grant or denial of a Rule 4:37-2(b) motion for involuntary



                                      4                             A-5328-15T4
dismissal."       Id. at 511.     Applying these standards, we conclude

that Judge Mitterhoff properly granted the motion.

      To prevail in a medical malpractice action, "ordinarily, a

plaintiff   must    present     expert   testimony     establishing        (1)   the

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

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

Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (internal quotation

marks and citation omitted). Such "[e]xpert testimony is permitted

to 'assist the trier of fact to understand the evidence or to

determine a fact in issue.'"                 Ibid. (quoting N.J.R.E. 702).

Further, an expert must be qualified to testify, meaning he or she

must have the requisite "knowledge, skill, experience, training,

or education . . . ."           N.J.R.E. 702.         Plaintiff's failure to

present an expert is fatal to her case.

      The   res    ipsa   loquitor    doctrine    permits     an   inference      of

negligence establishing a prima facie case of negligence.                  Jerista

v. Murray, 185 N.J. 175, 191-92 (2005).               To invoke the doctrine,

a   plaintiff     must    establish   that     "(a)   the    occurrence     itself

ordinarily bespeaks negligence; (b) the instrumentality [causing

the injury] was within the defendant's exclusive control; and (c)

there is no indication in the circumstances that the injury was

the result of the plaintiff's own voluntary act or neglect."

Szalontai    v.    Yazbo's   Sports    Cafe,    183   N.J.    386,   398    (2005)

                                         5                                 A-5328-15T4
(alteration   in    original)    (quoting       Brown      v.   Racquet    Club    of

Bricktown, 95 N.J. 280, 288 (1984)). Plaintiff failed to establish

each prong.

      The first prong, that the occurrence ordinarily bespeaks

negligence, is dependent on "whether based on common knowledge the

balance of probabilities favors negligence, thus rendering fair

the drawing of a res ipsa inference."               Jerista, supra, 185 N.J.

at 199.    Where, like here, "the res ipsa inference falls outside

of   the   common    knowledge   of     the    factfinder       and     depends    on

scientific, technical, or other specialized knowledge . . . expert

testimony [is] required."        Ibid.; see also Buckelew v. Grossbard,

87 N.J. 512, 527 (1981) (holding that "expert testimony to the

effect that the medical community recognizes that an event does

not ordinarily occur in the absence of negligence may afford a

sufficient basis for the application of the doctrine of res ipsa

loquitur").   We cannot say on the facts before us that plaintiff's

burn to her shoulder, which appeared in a different location than

the site of the injections, as a matter of common understanding,

raises an inference of negligence.

      Plaintiff     cannot   credibly       argue   that    such   an    expert    is

unnecessary, especially because she unsuccessfully retained one

who rendered a net opinion.       Here, the res ipsa loquitor inference

falls outside of the common knowledge of the factfinder.                      It is

                                        6                                   A-5328-15T4
undisputed that plaintiff's alleged burn occurred to her right

upper shoulder.    The doctor did not apply the injections to

plaintiff's right upper shoulder. Whether the burn to the shoulder

ordinarily   bespeaks    negligence,    when   the   doctor   injected

plaintiff's neck at the C4-5, C5-6 and C6-7 levels, is not a matter

of common knowledge.

     As to the second prong, that the instrumentality causing the

injury was within the defendants' exclusive control, plaintiff is

unable to describe without expert testimony what conduct and

instrumentality caused the burn.       Without expert testimony about

the instrumentality, the jury would be speculating as to what

caused the burn.   Indeed, plaintiff did not have a theory as to

what instrumentality caused the alleged injury.

     As to the third prong, that there is no indication that the

injury was the result of the plaintiff's own voluntary act or

neglect, plaintiff iced the area of the burn overnight.       Applying

ice overnight, rather than every twenty minutes for a few hours,

is inconsistent with the discharge instructions.       Thus, there is

a suggestion that the injury was the result of plaintiff's own

voluntary act or neglect.

     Under the facts of this case, a conditional res ipsa loquitor

charge is unwarranted.      Where a plaintiff's entitlement to the

charge is dependent on the jury's resolution of a specific factual

                                  7                            A-5328-15T4
dispute, a court should consider what has been referred to as a

"'conditional res ipsa' instruction."           Khan v. Singh, 200 N.J.

82, 98 (2009) (citing Roper v. Blumenfeld, 309 N.J. Super. 219,

234 (App. Div. 1998)).           The "conditional res ipsa" theory is

premised on the principle "that there is a question of fact that,

if   the   jury   decides   it   in   plaintiff's   favor,   would   entitle

plaintiff to the res ipsa charge."         Id. at 103.

            [I]f the evidence presents a factual issue as
            to how an accident occurred, and the res ipsa
            loquitur doctrine would be applicable under
            only one version of the accident, the court
            should give a "conditional" res ipsa loquitur
            instruction, under which the jury is directed
            first to decide how the accident happened and
            to consider res ipsa loquitur only if it finds
            that the accident occurred in a manner which
            fits the doctrine.

            [Id. at 98 (citation and internal quotation
            marks omitted).]

The charge should only be given if plaintiff's expert provides

"the required basis needed for a conclusion that the injury[,] [if

the jury agrees with plaintiff's version,] ordinarily bespeaks

negligence or that the medical community recognizes the injury to

be one that meets that defining criteria."            Id. at 99 (citation

and internal quotation marks omitted).        Here, plaintiff is without

an expert and is unable to make the requisite showing to warrant

a conditional res ipsa loquitor charge.



                                       8                             A-5328-15T4
Affirmed.




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