                        NOT FOR PUBLICATION WITHOUT THE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-1642-15T2

THE ESTATE OF ANNA MARIE
CYCKOWSKI BY ITS EXECUTOR
STEVEN CYCKOWSKI,

        Plaintiff-Respondent/
        Cross-Appellant,

v.

JAY STYLMAN, M.D.,

        Defendant-Appellant/
        Cross-Respondent,

and

SANIEA F. MAJID, M.D., JOSEPH
FELDMAN, D.P.M., and ST. MICHAELS
MEDICAL CENTER,

        Defendants.

________________________________


              Argued May 9, 2017 - Decided          June 23, 2017

              Before Judges Reisner, Rothstadt and Mayer.

              On appeal from the Superior Court of New
              Jersey, Law Division, Essex County, Docket No.
              L-7062-13.

              David Parker Weeks argued the cause for
              appellant/cross-respondent (Ruprecht Hart
            Weeks & Ricciardulli, attorneys; Mr. Weeks,
            of counsel and on the brief; Andrea G. Miller-
            Jones, on the brief).

            James    Lynch    argued   the    cause    for
            respondent/cross-appellant    (Lynch,   Lynch,
            Held & Rosenberg, attorneys; Mr. Lynch, on the
            brief).

PER CURIAM

     Anna    Marie    Cyckowski   (Ms.      Cyckowski    or    the   patient),      a

seventy-four year old woman, experienced complications after her

esophagus was punctured during surgery to repair a hiatal hernia.

She died a few weeks later.           Plaintiff, her estate, claimed that

the operating surgeon, defendant Dr. Jay Stylman, did not render

proper medical treatment after the surgery. Plaintiff also claimed

lack of informed consent.         The jury returned a no-cause verdict

on the informed consent claim.               However, the jury found that

defendant deviated from accepted medical standards in treating Ms.

Cyckowski.      The    jury    also   found    that     the    deviation      was   a

substantial factor in causing her injuries, and defendant did not

prove that some portion of her injuries would have occurred even

if he had not deviated.

     Defendant       appeals   from    the    resulting       December   7,    2015

judgment, consisting of $200,000 in pain and suffering damages,

plus about $240,000 in medical expenses.                      Plaintiff filed a

protective    cross-appeal,       asserting     that     if    we    reverse    the


                                        2                                  A-1642-15T2
malpractice judgment and remand the case for a re-trial, we should

also order a re-trial of the informed consent claim.

     In challenging the verdict, defendant presents the following

points of argument:

          I.    DEFENDANT'S MOTION FOR A DIRECTED VERDICT
                THAT DEFENDANT HAD PROVEN SOME PORTION
                OF PLAINTIFF'S INJURIES WOULD HAVE
                OCCURRED EVEN IF DEFENDANT HAD NOT BEEN
                NEGLIGENT SHOULD HAVE BEEN GRANTED

          II.   THE JURY'S FINDING THAT NO PORTION OF
                PLAINTIFF'S INJURIES WAS DUE TO THE PRE-
                EXISTING CONDITION WAS AGAINST THE WEIGHT
                OF THE EVIDENCE

          III. THE TESTIMONY OF GASTROENTEROLOGIST DR.
               ELFANT SHOULD HAVE BEEN LIMITED, NOT
               BARRED IN ITS ENTIRETY

          IV.   THE FACT THAT DR. STYLMAN HAD NOT
                PREVIOUSLY   PERFORMED  THIS  SPECIFIC
                PROCEDURE LAPAROSCOPICALLY AS PRIMARY
                SURGEON SHOULD NOT HAVE BEEN PRESENTED
                TO THE JURY

          V.    DR. BELSLEY'S PERSONAL INFORMED CONSENT
                PRACTICES SHOULD NOT HAVE BEEN ALLOWED
                TO BE ELICITED BY PLAINTIFF'S COUNSEL

          VI.   THE WHOLLY INADEQUATE RECORD PROVIDED BY
                THE COURT PREJUDICED DR. STYLMAN'S
                ABILITY TO CONTEST ALL APPEALABLE ISSUES
                RAISED AT TRIAL DUE TO A COMPLETE LACK
                OF RECORDING OF KEY SIDE-BAR DISCUSSIONS

     Defendant did not perfect the appeal as to his point VI, by

filing a motion to reconstruct the trial record.   See R. 2:5-5(a).

Nor has he articulated which of the un-recorded sidebar rulings


                                 3                          A-1642-15T2
allegedly constituted, or might have constituted, prejudicial

error.    Consequently, we decline to further address this point.

After reviewing the record including the trial transcripts, we

find no merit in any of defendant's remaining appellate arguments,

and we affirm on the appeal.             We therefore need not address the

cross-appeal.

                                     I

     To put the legal issues in context, we set forth the most

pertinent trial evidence.          In brief summary, plaintiff did not

contend that defendant was negligent in puncturing the patient's

esophagus, which was a known but uncommon risk of the surgery.

Rather, plaintiff contended that when the patient showed signs of

complications after the surgery, defendant did not promptly take

steps    to   rule   out   the   possibility     that   she   had   a   punctured

esophagus and treat the condition if it existed.                    According to

plaintiff's evidence, the appropriate steps would have included

performing follow-up surgery within a day or two to locate a

possible puncture, and promptly bringing in a gastroenterologist

to further examine the patient after the second surgery did not

reveal the location of the hole.             Plaintiff asserted that, because

the punctured esophagus was not timely discovered and properly

treated, the patient developed a horrendous infection, and other



                                         4                                A-1642-15T2
painful and debilitating symptoms which eventually led to her

death.

     Dr. Angelo Scotti, plaintiff's expert in internal medicine

and infectious diseases, described the patient's condition and the

development of the infection.             Dr. Scotti explained that Ms.

Cyckowski had a hiatus hernia, which he described as "an opening

where the esophagus goes and some of the intestinal contents can

get up into the chest wall."         During the surgery to repair this

problem,   she   suffered   a    perforation      of   her   esophagus.     The

perforation   allowed   bacteria     to   enter    the   mediastinum,     which

eventually developed into a mediastinal infection.

     Dr. Scotti testified that the infection eventually entered

her blood stream, which caused her to go into septic shock, i.e.,

"her blood pressure dropped and her entire body was responding to

this infection."    According to Dr. Scotti, Ms. Cyckowski continued

to get sicker and eventually died from complications of the

surgery.

     Dr. Scotti explained that an esophageal perforation is a

medical emergency, because "you have acid from the stomach that

goes through the hole and starts destroying tissues because acid

is for digesting things.        And then the bacteria there get in there

and set up infection and that's what happened here."              He provided

the following analogy for an esophageal perforation:

                                      5                               A-1642-15T2
          If you're in a boat and you have a hole in
          your boat and you really want to stay afloat
          and you keep bailing, bailing, bailing, well,
          if you have an esophageal perforation, you
          aren't plugging the hole. So that water keeps
          coming in, you bail it out, it keeps coming
          in. So if you plug the hole in the boat, then
          the water stops and you can bail it out and
          you'll have a floating boat.

               So, again, when you have a perforation
          of the esophagus and that infection is being
          set up and you have a collection of infection,
          like, abscess, if you close the perforation,
          then between the antibiotics and your immune
          system you have a good chance of healing that.
          But if [it] keeps open, you still have
          bacteria and acid coming into the area, so
          you're fighting a losing battle.        You're
          [basically] bailing a boat that still has a
          hole in it.

     Dr. Scotti further testified that bacteria continues to enter

through the perforation even if the "patient has antibiotics, a

feeding tube, and drains" and the infection cannot be eradicated.

He then detailed Ms. Cyckowski's decline starting on April 10

through her release from the hospital at the end of May.    During

that testimony, he detailed how the lack of appropriate treatment

allowed the patient to develop septic shock:

          Q:   She had now gone from the 10th to the
               27th with continued contamination from
               this open perforation. Is that fair to
               say?

          A:   Of her esophagus into her mediastinum,
               yes.



                                6                          A-1642-15T2
         Q:    Do you have an opinion as to the affect
               this had on the patient?

         A:    Well, it drastically decreases her
               prognosis. In other words, she's at more
               risk of dying. Just to start back when
               she had septic shock on 4/16, April 16th,
               when you have septic shock, if you don't
               get treatment for septic shock, you --
               you start dying.    Septic shock is 100
               percent fatal if it's not treated. And
               the mortality increases by 7 percent for
               each hour of treatment that's missed. So
               if it's delayed an hour you increase your
               [mortality] to 7 percent, by two hours
               it's 14 percent.

               Now, she didn't die at that point because
               they were at least partially treating
               her.   They were giving antibiotics and
               they were giving fluids.    So they were
               partially    keeping    up   with    this
               contamination, but not enough to cure her
               because of the perforation.

    He opined that, throughout this time period, the infection

was getting worse, Ms. Cyckowski was getting sicker and her

prognosis was worsening.    Dr. Scotti concluded that had the

perforation been blocked "within three or four, five days of

surgery," Ms. Cyckowski probably would have healed completely.

Dr. Scotti explained that, had the perforation been diagnosed and

treated earlier:

         [S]he would have avoided the -- all the other
         procedures. She would have avoided having --
         she would have avoided dying for one thing.
         But she would have avoided the various
         procedures that were done.        The plural
         infusion, they had to put a chest tube and

                                7                          A-1642-15T2
          take her infusion.   She probably would have
          avoided intubation, so she wouldn't have had
          the tube in and would not have gotten
          pneumonia. She would have avoided the shock,
          so she wouldn't have had a central venous
          line. Basically, all of the procedures that
          she had to keep her alive would have been
          avoided. She would avoided being transferred
          to another hospital because she most likely
          would have recovered and left the hospital
          after her surgery.

     Dr. Scotti testified that, on May 22, Ms. Cyckowski was

transferred to the Kendrick subacute rehabilitation center, where

she was "pretty much bedridden."    While at this facility, "she

developed decubitus ulcers . . . [that] are the pressure sores you

get when you're laying on bony prominences for a period of time."

     Finally, Dr. Scotti explained the association between her

death and the esophageal perforation:

          I mean, when she went into the hospital she
          was cleared medically and reasonably so. In
          other words, she was judged a reasonable
          medical risk.   She had, you know, none of
          these. She had a history of asthma and she
          had no serious heart disease. And then she
          goes on to die a cardiovascular death, you
          know, weeks -- months after her surgery. But
          she never gets better.

               So the surgery, the perforation sets up
          a crescendo.      The mediastinal infection,
          systemic    infection,    shock,  respiratory
          failure, urinary tract infection, decubitus
          ulcers, all of those things result in really
          taxing   your   body   and   put you  on   an
          inflammatory response -- that's inflammatory
          response we talked about. That inflammatory
          response makes your heart work harder, it

                                8                          A-1642-15T2
            makes you more likely to clot.        So some
            combination of those things caused her to die.
            There was no autopsy, so I can't pinpoint of
            what all the things I mentioned which one of
            those or which combination caused her to die.

     Dr.    Robert   Aldoroty,    a    board       certified    general      surgeon,

testified    about   defendant's       deviation       from     accepted     medical

standards in treating the patient after the surgery.                  Dr. Aldoroty

testified that esophageal perforation is a known risk to Ms.

Cyckowski's    operation.    It       is       important   to   be   aware    of   the

potential of an esophageal perforation, because of "the potential

enormity of the complications" of a perforation.

     Dr.    Aldoroty    detailed       the        events   starting       with     Ms.

Cyckowski's surgery.     He opined that defendant was not necessarily

negligent in the surgery, because "[perforation] can happen under

the best of circumstances."        However, Dr. Aldoroty explained that

defendant deviated from the standard of care with respect to his

post-operative treatment:

            So the issue really, the first issue is the
            delay in getting Ms. Cyckowski to the remedial
            surgery. Okay? It's four or five days delay.
            It's entirely unacceptable.    We spoke about
            this, but any surgeon who operates on the
            esophagus is doing paraesophageal hernias.
            When a patient isn't doing well, an esophagus
            perforation is in the short list. And it's
            in the short list because delays in diagnosis
            and treatment of an esophageal perforation
            have significant health consequences for the
            patient.


                                           9                                  A-1642-15T2
              .   .  .   I'm   not   upset  with   the
         postoperative day one unless an esophageal
         perforation wasn't in Dr. Stylman's mind, and
         I don't know what was in Dr. Stylman's mind.
         But what’s in the chart is reasonable.

              But postoperative day two, where she goes
         into florid respiratory distress and needs to
         be intubated and sent to an ICU, there is a
         short list of postoperative complications that
         can do that: pulmonary embolus, esophageal
         perforation,    cardiac   event,    myocardial
         infarction, a heart attack, pneumothorax. And
         that’s the short list. . . .

              My problem at that point is that she's
         sitting in an ICU and no one is ordering any
         tests to find anything out. And Dr. Stylman
         should have that short list and should be
         clunking through it very expeditiously in the
         first few hours.

              . . . .

              So I think in my opinion any reasonable
         doctor or surgeon would have gotten a CT of
         the chest, abdomen and pelvis

              . . . .

              And would have gotten a CT that was
         appropriate, appropriately done to look for
         pulmonary embolus. The ICU would have taken
         care of the EKG, the proponent ruling out the
         cardiac event.

    Dr. Aldoroty concluded that the surgeon should notify the

members of the ICU of the potential surgical complications and to

recommend the appropriate testing.    In order to rule out an

esophageal perforation, Dr. Aldoroty said that defendant should

have ordered a CT scan.     Dr. Aldoroty opined that defendant

                              10                          A-1642-15T2
deviated from the standard of care by not ordering a CT scan on

post-operative days two and three.                Then when he ordered a scan,

and realized Ms. Cyckowski had an esophageal perforation, it was

a deviation not to perform the surgery immediately.

      Further, Dr. Aldoroty testified that defendant deviated from

the standard of care by failing to call a gastroenterologist from

April 15 through April 24.          He testified that had the perforation

been diagnosed earlier, on April 12 or 13, "the more likely it is

that the patient will recover quicker . . . and will be less likely

to   succumb     from   the    perforation."           He   concluded    that      Ms.

Cyckowski's death was ultimately due to the delay in diagnosing

the esophageal perforation.

      Plaintiff also presented Dr. Peter Salvo, who gave detailed

testimony      concerning     the   pain        and   suffering    Ms.   Cyckowski

experienced and the timing of her suffering.                      Dr. Salvo first

described the pain that Ms. Cyckowski suffered starting a few days

after the surgery.       He testified that later, during her hospital

stay,   Ms.    Cyckowski      developed        decubitus    ulcers,   which     cause

significant     pain.       Dr.   Salvo    provided     the   following   opinion

regarding her pain while she was at Kindred:

              I think there are two things you need to know.
              I think that no pain medicine is 100 percent
              effective. You would like to take down the
              pain as much as you can. But those of us who
              deal in pain every day realize that pain is

                                          11                                  A-1642-15T2
          one of the most fundamental deep-seeded
          neurologic reflexes we have. . . .

               So we try to get at the pain as best we
          can.   Narcotics work.  They make your life
          better, truly they do. But they don't make
          it 100 percent better.

               And she was described as feeling short
          of breath. That's -- that's not pain, that's
          distress.   She said on the 10th of June "I
          can't breathe."     She was anxious.     She
          complained of pain in her sacral area where
          that decubitus was on May 6th. On May 27th
          she had lower extremity pain. On the 31st of
          May she complained of buttock pain. She had
          facial grimacing on the 24th of June.

               I think it's fair to say that not every
          note at Kindred says that she was in terrible
          pain and that's probably true. Pain comes and
          goes. But her baseline, her general life was
          painful.     And sometimes it was worse,
          sometimes it was better, sometimes the meds
          worked better, sometimes they didn't.    This
          is biology, it's not physics. The best you
          can do is often, unfortunately, good enough,
          that's it.

     Defendant's case was directed at establishing that he did not

deviate from the standard of care.    In his testimony, defendant

detailed the procedure he performed on Ms. Cyckowski and concluded,

"it went very well."   The first day after the surgery, defendant

believed Ms. Cyckowski was doing well.      The second day after

surgery, April 12, defendant noted in his chart:        "[p]atient

sedated, relatively stable, on vent support.    Increased fluid --

increased fluids rather.   Abdomen soft, non-tender.   Continue CRR


                                12                          A-1642-15T2
management." Defendant explained that something happened that

affected "her ability to breathe properly where the carbon dioxide

was building up in her lungs.          And that's an emergency that

requires a ventilator to support her, which they did in the ICU."

      At this point, defendant did not believe Ms. Cyckowski had

an infection, because she did not show any signs of one.      On April

14, defendant testified that a culture came back positive for

bacteria in Ms. Cyckowski's lungs, and he ordered a CT scan.

Defendant was notified early in the morning on April 15 that Ms.

Cyckowski had a leak in her esophagus in the surgical area.         But

defendant did not report to the hospital to perform surgery

immediately, for two reasons.       First, he wanted to review the

films with a radiologist, and second, performing surgery in the

middle of the night does not generally lead to the best results

for the patient.

      Defendant testified that the second procedure, on April 15,

was   "a   much   more serious,   dangerous,   complicated   procedure

. . . ."   During the procedure, defendant placed multiple drains

in Ms. Cyckowski to remove any fluid build-up in her abdomen, but

he did not locate the perforation in the esophagus.     At this time,

defendant believed that the hole would heal since he inserted the

drains.



                                  13                           A-1642-15T2
      After the procedure on April 15, defendant did not immediately

attempt to put a stent in because he thought it was too risky

given Ms. Cyckowski's condition.             Defendant explained his thought

process each day from April 16 through April 25, telling the jury

why   he   though     his    actions        were   reasonable        based     on   the

circumstances.         He    explained        that    he   did   not         call    the

gastroenterologist      until    April       25,     because   "the     signs       were

pointing   to   the   fact    that     it    seemed    like    the    drainage      was

decreasing. . . .      And it seemed like everything was going along

in the right direction as far as the . . . leak was going while

there were many other problems that were happening at the same

time."

      Next, defendant called his only expert, Dr. Scott Belsley, a

board certified general surgeon.              Dr. Belsley testified that the

surgery was "straightforward" and initially everything was fine

after the surgery.     He testified that it was appropriate to obtain

a CT scan on April 14 and it was important that defendant inserted

drains, "because the vast majority of all these perforations heal

by just letting the body do its own thing."

      Dr. Belsley testified that defendant performed the initial

operation on April 10 in accordance with the standard of care.

Further, he testified that the first sign of an infection was from



                                        14                                     A-1642-15T2
the "positive respiratory culture" on April 14.           He went on to

explain:

            Even having said that then we can argue okay,
            is that normal bacteria, is that abnormal
            bacteria?   So, when you're trying to decide
            what's happening while it's happening, in
            these situations you put the patient on
            antibiotics, you get some x-rays, you run some
            cultures and you're trying to figure out while
            it's happening, and it's not -- during the
            whole process. But I would say on the 14th,
            that's when we would have a -- a really
            positive   indication   that   there  was   an
            infection.

     He opined that defendant did not deviate from the standard

of care by not diagnosing the infection and perforation before

April 15.    He also opined that Ms. Cyckowski suffered a delayed

perforation,   because   if   the   perforation   had   occurred    during

surgery, she would have had an elevated heart rate and a fever

sooner.

     Regarding the second operation on April 15, Dr. Belsley

explained that defendant was not negligent in waiting until the

morning instead of performing the operation in the middle of the

night.     He also testified that defendant was not negligent in

refraining from calling in a gastroenterologist prior to April 27.

Dr. Belsley primarily based that opinion on his view that the

typical treatment provided by gastroenterologists - the placement

of stents to block the puncture - was ineffective.         He admitted,


                                    15                             A-1642-15T2
however, that his was a minority view in the medical profession.

In Dr. Belsley's experience, esophageal perforations will heal

"greater than 90 percent of the time with drainage alone . . . ."

     Dr. Belsley summarized his opinion regarding defendant's

overall treatment of Ms. Cyckowski:

               There was absolute no deviation in any
          aspect in this case.

               . . . .

               I mean the basis of -- is a very serious
          medical problem, surgical problem, which is
          likely going to kill a sick patient within two
          years, it's a very risky operation. This is
          a known complication of the operation, this
          is accepted. This is what every surgeon will
          say yes, of course it can happen. It's not
          common, but yes, this is a possibility. And
          when they did notice this, when they have
          absolute evidence with the CAT scan, they got
          all the right people involved, they did got
          rushing in in [sic] the middle of the night,
          he performed a very smart, very technically
          correct operation to deal with the problem.
          [He] had specialists that were taking care of
          her throughout the hospitalization, but
          unfortunately she succumbed. She was a very
          sick lady.

     Dr. Belsley testified that Ms. Cyckowski's death "was related

to her preexisting conditions."       Further he explained that "you

can't basically reduce it to one event, and discount all of the

preexisting things."     He was not asked to quantify or apportion

which of the patient's injuries were attributable to her pre-

existing conditions and which were attributable to any deviations,

                                 16                          A-1642-15T2
assuming,    hypothetically,   that    defendant   had   deviated      from

accepted medical standards.

                                  II

     Defendant's    first   two   points    concern      his   right     to

apportionment of damages under Scafidi v. Seiler, 119 N.J. 93, 108

(1990), which applies when a defendant's malpractice aggravates

or increases the risk posed by a patient's pre-existing medical

condition.    Initially, defendant contends he was entitled to a

directed verdict on apportionment.      See R. 4:40-1.     We review the

issue de novo, and find no error in the trial court's decision.

See Smith v. Millville Rescue Squad, 225 N.J. 373, 397 (2016).

     In the trial court, plaintiff agreed that this was a case to

which Scafidi applied, because there was no dispute that Ms.

Cyckowski had one or more pre-existing conditions, which plaintiff

contended were aggravated by defendant's malpractice.           However,

as set forth in Scafidi, defendant had the burden of proof on the

apportionment issue:

            [W]here the malpractice or other tortious act
            aggravates a preexisting disease or condition,
            the innocent plaintiff should not be required
            to establish what expenses, pain, suffering,
            disability or impairment are attributable
            solely to the malpractice or tortious act, but
            that the burden of proof should be shifted to
            the culpable defendant who should be held
            responsible for all damages unless he can
            demonstrate that the damages for which he is


                                  17                             A-1642-15T2
            responsible are capable of some reasonable
            apportionment and what those damages are.

            [Scafidi, supra, 119 N.J. at 110 (quoting
            Fosgate v. Corona, 66 N.J. 268, 272-73
            (1974)).]

     At the close of the evidence, defense counsel moved for a

directed verdict on jury question #8, which asked whether defendant

had proven that some portion of the patient's injuries would have

occurred, even if defendant had not deviated from the standard of

care.     Defense   counsel    argued      that   plaintiff's   expert,     Dr.

Aldoroty, had testified that even if defendant had realized earlier

that more surgery was needed and had performed the surgery on

April 12 instead of April 15, "the attendant recovery from that

surgery    would    [still]   have   taken    place."   The   judge   reserved

decision on the motion, and denied it immediately after the jury

returned its verdict.1         See R. 4:40-2(a) (the trial court may

reserve decision on a motion for a directed verdict and decide it

within ten days after the jury returns its verdict).

     We find no error in the result.              On a motion for judgment

under Rule 4:40-1, "[t]he court must accept as true all evidence

supporting the position of the non-moving party, according that


1
  The judge indicated that she would provide reasons for her
decision, as is required, but would do so at a later time. See
Atlas v. Silvan, 128 N.J. Super. 247, 250 (App. Div. 1974). From
the record provided to us, it is not clear whether the judge did
so.

                                      18                               A-1642-15T2
party the benefit of all legitimate inferences that can be deduced

from such evidence.       If reasonable minds could differ, the court

must deny the motion."        Rena, Inc. v. Brien, 310 N.J. Super. 304,

311 (App. Div. 1998); see Dolson v. Anastasia, 55 N.J. 2, 5-6

(1969).     Viewing the evidence in the light most favorable to

plaintiff, the jury did not necessarily need to find that the

three-day delay from April 12 to April 15 constituted the deviation

that caused the patient's injuries.                   Plaintiff also presented

evidence that defendant negligently delayed for ten days after the

surgery   before    calling    in    a   gastroenterologist          on     April   25.

Defendant's Rule 4:40-1 motion did not even address that deviation

or the resulting injuries and suffering caused by that delay.

       Moreover,   defendant's       case,       as     presented      through      his

witnesses, was that there was no deviation.                   He did not present

testimony that, even if there had been a deviation, a certain

percentage of the patient's injury was attributable to the pre-

existing condition.       Neither defendant nor Dr. Belsley provided

any   testimony    that   would     have      enabled   the   jury     to    make   the

percentage apportionment Scafidi requires.

       It was defendant's burden to present that evidence.                       "If a

defendant seeks to reduce his liability by asserting that part of

the harm is not attributable to his tortious conduct, the burden

of    proving   both   that   the    plaintiff's         injury   is      capable     of

                                         19                                    A-1642-15T2
apportionment and what the apportionment should be should rest on

the defendant."    Anderson v. Picciotti, 144 N.J. 195, 211 (1996)

(citation omitted); see also Holdsworth v. Galler, 345 N.J. Super.

294, 305-06 (App. Div. 2001).    In addition, even if defendant had

presented testimony on apportionment, it would have been the jury's

province to decide if the testimony was credible.        As a result,

we conclude that defendant was not entitled to a directed verdict

on question #8.

     Defendant's second argument - that the jury's verdict as to

question #8 was against the weight of the evidence - was waived

for purposes of appeal when he failed to file a motion for a new

trial on that ground.    R. 2:10-1; Gebroe-Hammer Assocs. v. Sebbag,

385 N.J. Super 291, 295 (App. Div.), certif. denied, 188 N.J. 219

(2006).   Moreover, even if we consider the issue, the verdict was

not a miscarriage of justice.     R. 2:10-1.

                                 III

     Next, defendant argues that the trial judge should not have

barred    the   testimony   of   Dr.   Elfant,   a   board   certified

gastroenterologist.     We review a trial judge's decision to admit

or exclude expert testimony for abuse of discretion.     See Townsend

v. Pierre, 221 N.J. 36, 52-53 (2015).      We find none here, and we

affirm substantially for the reasons stated by the trial judge in



                                  20                           A-1642-15T2
ruling on plaintiff's in limine motion on October 28, 2015.                         We

add these comments.

      Defendant was a board certified general surgeon.                   He concedes

that under the New Jersey Medical Care Access and Responsibility

and Patients First Act (PFA), N.J.S.A. 2A:53A-41, he could not

present the testimony of a gastroenterologist to opine as to the

standard of care or as to whether defendant's conduct met that

standard.       See Nicholas v. Mynster, 213 N.J. 463, 468 (2013).

Defendant argues that Dr. Elfant was not going to testify about

the standard of care, but rather was going to testify about

proximate cause and damages.               However, having read Dr. Elfant's

expert      report,      we   conclude     that   it     was   clearly    aimed     at

establishing the standard of post-operative care for a patient who

has     undergone        hiatal   hernia    surgery      and   establishing       that

defendant did not deviate from that standard.                  In fact, the report

began    by    stating:       "Plaintiff's      expert     alleges   a   number     of

deviations in the care of Mrs. Cyckowski which I would like to

address[.]"

      Moreover, in arguing the in limine motion, defense counsel

did   not     make   a    proffer   that    Dr.   Elfant    would    testify   about

proximate cause and damages. He stated:

              The only thing I intend to elicit from Elfant
              is that he is a gastroenterologist[,] is
              familiar   with   and    often   will   treat

                                           21                                A-1642-15T2
          perforations conservatively before stenting.
          And that's after the 15th of April 2012. And
          it's not saying anything about standard of
          care. It's just saying this is a recognized
          treatment.

     The judge rejected that argument, noting that "since that

care was not performed by a gastroenterologist, a general surgeon

should address that issue on behalf of the defense."     We agree.

On the record presented to the trial judge at the time she decided

the in limine motion, it was clear that the defense proposed to

use Dr. Elfant's testimony as a back-door means of providing

standard-of-care testimony prohibited by the PFA.    It was not an

abuse of discretion to grant plaintiff's pre-trial motion to bar

the expert.2

                              IV

     Defendant's remaining two arguments relate to evidence of his

lack of prior experience with the type of surgery he performed on

Ms. Cyckowski, and to a testifying expert's practice with respect

to obtaining informed consent from patients.   We conclude that the




2
  Defendant's appellate arguments, concerning possible additional
issues about which Dr. Elfant might have testified without
violating the PFA, should have been presented to the trial court
at the appropriate time - during the argument of the in limine
motion. We will not consider those arguments on appeal, because
they were not presented to the trial court. See Nieder v. Royal
Indem. Ins. Co., 62 N.J. 229, 234 (1973).

                               22                           A-1642-15T2
arguments   are   without   sufficient   merit   to   warrant   discussion

beyond these brief comments.     R. 2:11-3(e)(1)(E).

     The evidence was primarily presented to support the informed

consent claim. Plaintiff asserted that defendant misrepresented

to the patient that he had prior experience in performing the

surgery when, according to plaintiff, he had no such experience.

See Howard v. Univ. of Med. & Dentistry of N.J., 172 N.J. 537,

555-57 (2002).     Because the jury returned a no-cause verdict on

the informed consent claim, any errors in admitting evidence on

that issue would have been harmless.       R. 2:10-2.

     Evidence that defendant had never performed this surgery

before was also relevant to whether he might, for that reason,

have been unfamiliar with the proper way to deal with an esophageal

puncture, which was a known but uncommon risk of the surgery.

Thus, it was pertinent to the malpractice claim.         It was up to the

jury to decide what weight, if any, to give that evidence.

     Affirmed.




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