                                NOT FOR PUBLICATION WITHOUT THE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-5631-16T3


JAMES J. POLIDORO,

          Plaintiff-Appellant,

v.

MARIA R. ALVAREZ-PRIETO,
M.D., NEUROLOGY & PAIN
MANAGEMENT TREATMENT
CENTER, PC, NEUROLOGY
& PAIN TREATMENT CENTER,
INC., NEUROLOGY & PAIN
MANAGEMENT CENTER, INC.,
and NEUROLOGY CENTER, PC,

     Defendants-Respondents.
______________________________

                    Submitted January 8, 2019 – Decided February 1, 2019

                    Before Judges Yannotti, Gilson and Natali.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Essex County, Docket No. L-2020-14.

                    Robert E. Taylor, Jr., attorney for appellants; Jared B.
                    Weiss, on the briefs.
               Brach Eichler, LLC, attorneys for defendants (Keith J.
               Roberts, of counsel and on the brief; Shannon M.
               Carroll, on the brief).

PER CURIAM

        Plaintiff appeals from an order dated June 8, 2017, which granted

defendants' motion for summary judgment. Plaintiff also appeals from an order

dated August 4, 2017, which denied his motion for reconsideration. We affirm.

                                            I.

        This appeal arises from the following facts. On July 4, 2003, plaintiff's

vehicle collided with a vehicle driven by S.D.1 Plaintiff claimed that as a result

of the accident he suffered a closed-head injury and cerebral concussion, with

post-concussion syndrome, permanent post-traumatic headache syndrome, and

cognitive dysfunction and injury.

        Plaintiff also claimed that in the accident, he sustained certain orthopedic

injuries, including "a mid[-]line disc herniation at the L5-S1 level" of the spine,

"bulging annuli at C5-C6 and C6-C7[,] . . . and an anterior disc herniation at T1-

T2." In addition, plaintiff claimed temporomandibular joint (TMJ) dysfunction,

a nasal fracture, nerve hearing loss, and an injury to his eye.




1
    We refer to certain individuals by their initials in order to protect their privacy.
                                                                                A-5631-16T3
                                            2
      Initially, plaintiff received treatment for the aforementioned injuries by

various doctors at several medical facilities. In July 2003, he began treatment

with Dr. Enrique Hernandez. At that time, Hernandez and defendant Dr. Maria

R. Alvarez-Prieto were married. They were the co-owners of a medical facility

where plaintiff was treated.

      Plaintiff filed a lawsuit against S.D., seeking damages for the injuries he

sustained in the accident, and Hernandez agreed to serve as plaintiff's expert

witness. Hernandez wrote several reports, including a report dated March 21,

2005, in which he set forth his diagnoses. Among other things, Hernandez stated

that plaintiff's brain and spine injuries were permanent and causally related to

the accident.

      At some point in 2007, Prieto and Hernandez divorced. As a result, they

ceased operating the medical practice together. Prieto formed a new medical

practice, and was its sole owner. In April 2008, M.G., who was at the time

plaintiff's attorney, learned that Hernandez was either unable or unwilling to

testify as plaintiff's expert. Apparently, Hernandez had become disabled and

was no longer practicing medicine.

      Plaintiff alleges that in early June 2008, he went to Prieto's office in

Newark and signed in. Plaintiff claims that during that visit, Prieto performed


                                                                         A-5631-16T3
                                       3
a neurological evaluation. Plaintiff asserts that during the evaluation, he asked

Prieto if she would replace Hernandez and serve as an expert neurologist in his

lawsuit. According to plaintiff, Prieto agreed.

      Plaintiff asserts that he paid Prieto $500 in cash for the evaluation and

preparation of an expert report. He claims Prieto accepted the cash payment

personally. Prieto allegedly told plaintiff her fee to testify at trial would be

$3000, which would be payable on the day of trial. Plaintiff asserts he agreed

to those terms.

      Prieto wrote a narrative report, dated June 5, 2008. In the report, Prieto

set forth plaintiff's diagnoses, specifically, closed-head injury/cerebral

concussion with prominent post-concussion syndrome and permanent post-

traumatic headache syndrome, contusion/sprain of the cervical spine, disc

herniation at the L5-S1 level of the spine, and bilateral TMJ syndrome.

      On June 12, 2008, M.G. forwarded Prieto's report to S.D.'s attorney. In

an accompanying letter, M.G. stated that Hernandez was unavailable, but Prieto

had performed a "re-exam" and issued a narrative report.         S.D.'s attorney

acknowledged receipt of Prieto's report.

      Thereafter, M.G. filed a motion to be relieved as plaintiff's counsel. The

court considered the motion in October 2008. M.G. informed the court that


                                                                          A-5631-16T3
                                       4
Prieto had agreed to serve as plaintiff's expert witness. Thereafter, plaintiff

retained M.M. to represent him in the lawsuit. The court scheduled the matter

for trial on Monday, March 9, 2009.

      M.M. wrote to Prieto and advised her of the scheduled trial date. M.M.

testified at his deposition that he was not sure he sent the letter to Prieto, but he

followed up with Prieto's office to confirm she would be testifying. M.M.

further testified that he spoke with someone at Prieto's office on March 6, 2009,

the Friday before the scheduled trial date.

      According to M.M., someone in Prieto's office advised him that Prieto was

not willing to testify because she did not treat plaintiff. M.M. wrote that day to

Prieto and stated that her refusal to testify had "seriously jeopardized [plaintiff's]

case." M.M. threatened to pursue an action against Prieto "and recover whatever

damages may be appropriate."

      On March 9, 2009, plaintiff and M.M. appeared in court for the trial.

Initially, M.M. did not inform S.D.'s attorney that Prieto would not be testifying.

He did not want to do so until after he attempted to settle the case. M.M. did

not request an adjournment on the basis of Prieto's unavailability, nor did he

attempt to obtain another expert. The parties discussed settlement. Plaintiff

agreed to accept $25,500, and the case was settled.


                                                                              A-5631-16T3
                                          5
      In May 2011, plaintiff filed a pro se complaint against Prieto, Hernandez,

and Prieto's medical practice in the United States District Court for the District

of New Jersey, claiming the court had subject matter jurisdiction under 28

U.S.C. § 1332 due to the diversity of citizenship of the parties. The court found

that plaintiff had not met his burden of establishing that the court had

jurisdiction. The court dismissed the complaint, but allowed plaintiff to present

additional facts to establish jurisdiction. Apparently, he did not do so.

      Instead, plaintiff filed this action against Prieto, asserting claims of

negligence and breach of contract, along with other causes of action. Later,

plaintiff amended the complaint to include claims against the other defendants,

which include Prieto's medical practice and other medical practices with which

she has been associated. During discovery, Prieto was deposed. She testified

that she did not personally examine plaintiff. She stated that she could not

testify at his trial as to Hernandez's findings, and she did not make her own

diagnoses. Prieto also said that she did not provide an opinion on causation or

the permanency of his injuries.

      In her answers to plaintiff's request for admissions, Prieto denied that she

charged plaintiff $500 after he asked her to perform an evaluation and prepare a

report. She denied that plaintiff agreed to pay her $3000 if she appeared and


                                                                            A-5631-16T3
                                        6
testified at the trial of his lawsuit against S.D. She also denied that she took a

history from plaintiff or examined him.

      After the completion of discovery, defendants filed a motion for summary

judgment, which plaintiff opposed. The motion judge heard oral argument and

on June 8, 2017, placed an oral decision on the record, in which he concluded

defendants were entitled to summary judgment. The judge noted that although

Prieto had written a narrative report, she had merely summarized Hernandez's

earlier findings and diagnoses.

      The judge stated that Prieto did not make any findings of her own. The

judge noted that in the report, Prieto provided final diagnoses for plaintiff, but

they were based on a review of the medical records. The judge also noted that

Prieto did not offer an opinion, within a reasonable degree of medical certainty,

as to the cause or permanency of plaintiff's injuries. The judge stated that

without such an opinion, Prieto's expert testimony would have been

inadmissible.

      In addition, the judge noted that if Prieto had appeared at the trial, she

would have testified that she never examined plaintiff, and she could not testify

as to Hernandez's findings. The judge also determined that, even if Prieto had




                                                                          A-5631-16T3
                                        7
agreed to serve as plaintiff's expert witness, her later refusal to testify did not

cause plaintiff to sustain any damages.

      The judge entered an order dated June 8, 2017, which granted defendants'

motion for summary judgment and dismissed the complaint with prejudice.

Thereafter, plaintiff filed a motion for reconsideration of the June 8, 2017 order.

On August 4, 2017, the judge denied the motion. This appeal followed.

                                        II.

      On appeal, plaintiff argues that the order granting summary judgment

should be reversed because: (1) he "established a prima facie case [of]

negligence and breach of contract" by Prieto, which should be heard by a jury;

(2) "the trial court based its decision [on] an incorrect burden of proof as to

[Prieto]'s conduct" and her qualifications to testify as a witness in the "case

within a case," and (3) the court erred by barring Prieto's testimony before

weighing her "conduct" as an expert witness.

      We review an order granting summary judgment by applying the same

standard that the trial court applies. Templo Fuente De Vida Corp. v. Nat'l

Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016) (citing Mem'l Props.,

LLC v. Zurich Am. Ins. Co., 210 N.J. 512, 524 (2012)). Summary judgment

should be granted when the evidence before the court on the motion "show[s]


                                                                           A-5631-16T3
                                          8
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).

        Furthermore, "[a]n issue of fact is genuine only if, considering the burden

of persuasion at trial, the evidence submitted by the parties on the motion,

together with the legitimate inferences therefrom favoring the non-moving

party, would require submission of the issue to the trier of fact." Ibid. "If there

exists a single, unavoidable resolution of the alleged disputed issue of fact, tha t

issue should be considered insufficient to constitute a 'genuine' issue of material

fact for purposes of Rule 4:46-2." Brill v. Guardian Life Ins. Co. of Am., 142

N.J. 520, 540 (1995) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250

(1986)).

        The New Jersey "courts have recognized, on contract principles, the

enforceability of a treating physician's affirmative undertaking to testify."

Spaulding v. Hussain, 229 N.J. Super. 430, 440 (App. Div. 1988) (citing Battista

v. Bellino, 113 N.J. Super. 545 (App. Div. 1971); Stanton v. Rushmore, 11 N.J.

Misc. 544 (Sup. Ct. 1933), aff'd, 112 N.J.L. 115 (E. & A. 1933)). Our courts

also have recognized that in certain circumstances, a claimant can bring a




                                                                            A-5631-16T3
                                         9
negligence action against a treating physician who fails to appear for trial. Id.

at 437-41.

      We have held that "a treating physician has a duty to render reasonably

required litigation assistance to his patient." Id. at 440. Although the outer

limits of that duty are not clear, a treating physician is not "free, without

compelling professional justification, to renege on a promise, reasonably and

detrimentally relied upon by his patient, to render specific litigation assistance."

Id. at 441.

      As stated previously, in this case, plaintiff asserted claims against Prieto

for breach of contract and negligence, based on her failure to appear and testify

as plaintiff's expert witness in his lawsuit against S.D. There are genuine issues

of material fact as to whether Prieto ever treated plaintiff, and whether she

agreed to testify as his expert in the lawsuit.

      Assuming, however, that Prieto did, in fact, evaluate plaintiff and agree

to testify on his behalf in his lawsuit against S.D., and that she failed to do so

"without compelling professional justification," we are convinced that the

motion judge correctly determined that plaintiff's claims failed as a matter of

law. Here, plaintiff alleges that because Prieto failed to testify, he settled his




                                                                            A-5631-16T3
                                        10
claims against S.D. for an inadequate sum. However, plaintiff failed to present

sufficient evidence to establish proximate cause or damages.

      "The most common way to prove the harm inflicted by . . . malpractice is"

the "suit within a suit" approach, "in which a plaintiff presents the evidence that

would have been submitted at a trial had no malpractice occurred." Garcia v.

Kozlov, Seaton, Romanini & Brooks, PC, 179 N.J. 343, 358 (2004). In such a

proceeding, the "plaintiff has the burden of proving by a preponderance of the

evidence that (1) he would have recovered a judgment in the action against the

main defendant, (2) the amount of that judgment, and (3) the degree of

collectability of such judgment." Ibid. (quoting Hoppe v. Ranzini, 158 N.J.

Super. 158, 165 (App. Div. 1978)).

      In some situations, however, the "suit within a suit" approach may not be

appropriate, particularly where the underlying action was settled or "cannot [be]

accurately reconstruct[ed.]" See id. at 358-59. In those situations, the trial court

may, in its discretion, allow the plaintiff to prove proximate cause and damages

"through the use of expert testimony as to what as a matter of reasonable

probability would have transpired at the original trial." Id. at 361 (quoting

Lieberman v. Emp'rs Ins. of Wausau, 84 N.J. 325, 344 (1980)).




                                                                            A-5631-16T3
                                        11
      Furthermore, in a contract action, "[t]he purpose of compensatory

damages is to put the injured party in as good a position as he would have been

in if performance were rendered as promised." St. Louis, LLC v. Final Touch

Glass & Mirror, Inc., 386 N.J. Super. 177, 188 (App. Div. 2006) (citing 525

Main Street Corp. v. Eagle Roofing Co., 34 N.J. 251, 254 (1961)). Damages

cannot be awarded "based upon mere speculation." See Lewis v. Read, 80 N.J.

Super. 148, 174 (App. Div. 1963).           Damages need not be proved "with

exactitude" but they must be established "with such certainty as the nature of

the case may permit." Lane v. Oil Delivery, Inc., 216 N.J. Super. 413, 420 (App.

Div. 1987).

      In Kelly v. Berlin, 300 N.J. Super. 256, 260-61 (App. Div. 1997), the

plaintiff alleged he settled a lawsuit arising from an automobile accident for an

inadequate amount because the defendant physicians did not diagnose a lower

back injury. We held expert testimony was necessary to establish the plaintiff's

damages. Id. at 269. We stated:

              Without expert testimony, a jury simply does not have
              the knowledge, training, or experience to decide the
              settlement value of plaintiff's claim. While juries may
              generally determine damages in the ordinary case, the
              trial court properly concluded that laypersons do not
              have the knowledge, from their common experience, to
              evaluate and determine damages in a case of this kind,
              that is, to determine the difference between the amount

                                                                         A-5631-16T3
                                       12
            plaintiff actually received in his settlement and the
            amount he would have received had his lower back
            condition been made known prior to the settlement.

                   The many factors that go into a settlement are not
            within the knowledge of the average juror. An expert
            in the settlement of claims, such as an experienced torts
            attorney or an experienced claims adjuster, is necessary
            to explain the various factors which are taken into
            consideration in the settlement of a case of this kind.
            Such an expert could explain which factors are relevant
            and how they affected this matter to enable the jury to
            determine whether the defendant doctors' negligence
            caused plaintiff to settle for a lower amount than he
            otherwise would have, and, if so, the amount of
            damages plaintiff sustained as a result. For example,
            such expert testimony could render a comparison of
            similar claims in the area, an analysis of how plaintiff's
            other injuries would have affected the settlement of his
            lower back injury, an opinion as to the value of
            plaintiff's lower back injury in light of its projected
            severity when the case was settled, and an analysis of
            how legal issues would have affected the settlement
            amount.

            [Id. at 269-70 (citing Duncan v. Lord, 409 F.Supp. 687,
            692-93 (E.D.Pa. 1976); Fishman v. Brooks, 487 N.E.2d
            1377, 1380-81 (Mass. 1986)).]

      Here, plaintiff claims that the amount he received in the settlement of his

lawsuit against S.D. was less than the amount he would have received by way

of settlement or judgment if Prieto had appeared for trial and testified. However,

plaintiff failed to present any expert testimony to support that claim. Without

such expert testimony, a jury could not determine whether the amount plaintiff

                                                                          A-5631-16T3
                                       13
received in settlement was inadequate and the amount he would probably have

received by settlement or judgment if Prieto appeared and testified.

      Moreover, plaintiff could not prevail using a "suit within a suit" approach.

Plaintiff did not present sufficient evidence to show that he would have secured

more by way of settlement or judgment if Prieto had appeared and testified in

the underlying action. The record shows that Prieto prepared a report, in which

she set forth certain diagnoses, but her report was essentially a summary of the

findings previously made by Hernandez. In addition, at her deposition, Prieto

stated that she could not testify because she did not examine plaintiff. In her

report, she did not provide an opinion as to the permanency of plaintiff's injuries

or the causal relationship of the injuries to the motor vehicle accident.

      On appeal, plaintiff argues that the motion judge erred by finding Prieto

would not have been permitted to testify in the underlying action because the

diagnoses set forth in her report are not her own. Plaintiff contends Prieto could

have testified regarding the treatment provided at the medical practice she

owned, and the diagnoses reached by practitioners in her office. Plaintiff also

argues that there was no indication that S.D.'s attorney was going to object to

Prieto's testimony.




                                                                            A-5631-16T3
                                       14
      We are convinced, however, that Prieto's testimony could have been

challenged if Prieto had appeared and attempted to testify in the underlying

action concerning the findings in her report because she said she never treated

or examined plaintiff, and did not render opinions on causation and permanency.

Furthermore, even if Prieto had appeared, she would have been a reluctant

witness. If called to testify, she would have stated that the diagnoses in her

report were not her diagnoses. Therefore, plaintiff failed to present sufficient

evidence to establish the damages he allegedly sustained due to Prieto's refusal

to appear and testify in the action against S.D.

                                       III.

      In support of his argument that the trial court erred by granting summary

judgment to defendants, plaintiff relies upon Kranz v. Tiger, 390 N.J. Super. 135

(App. Div. 2007). In that case, the plaintiff sued his former attorneys and expert

witness, alleging he settled his case for an inadequate sum after he learned that

the expert witness was unavailable to testify. Id. at 140. The plaintiff sought to

prove damages using the "suit within a suit" approach.         Ibid.   The judge

dismissed the complaint at trial because the settlement reached in the underlying

action was reasonable. Id. at 141.




                                                                          A-5631-16T3
                                       15
      We reversed the order dismissing the complaint and held that the

reasonableness of the settlement was not the measure of the plaintiff's damages.

Id. at 150. We stated that the measure of damages was the difference between

the settlement and the amount of money that would have been obtained if the

underlying action was tried to its conclusion. Id. at 150-51 (citing Garcia, 179

N.J. at 358; Spaulding, 229 N.J. Super. at 444-45). We remanded the matter for

a new trial. Id. at 153

      Kranz is distinguishable, however, because in that case, the medical expert

had prepared a report which addressed causation and permanency, and there was

no issue as to the admissibility of the expert's testimony. See id. at 142.

Therefore, using the "suit within a suit" approach, the parties could reconstruct

the trial in the underlying action, and the jury could determine the amount that

the plaintiff would have obtained if the expert had testified and a judgment

rendered.

      Here, Prieto's report did not address the causation and permanency of

plaintiff's injuries, and she insisted she could not offer an opinion on plaintiff's

diagnoses because she had not performed a physical examination. This evidence

was insufficient for a jury, using the "suit within a suit" approach, to determine




                                                                            A-5631-16T3
                                        16
the damages that would have been awarded to plaintiff in the underlying action

if Prieto had testified. Therefore, plaintiff's reliance upon Kranz is misplaced.

      On appeal, plaintiff also relies upon Spaulding.        There, the plaintiff

brought an action asserting claims for breach of contract and negligence against

his treating physician. Spaulding, 229 N.J. Super. at 432. The physician had

refused to testify for the plaintiff in a personal injury action, and allegedly

caused the plaintiff to settle the case for $75,000, an amount the plaintiff claimed

was inadequate. Id. at 435. In the action against the physician, the jury awarded

the plaintiff damages of $250,000. Id. at 439.

      However, in Spaulding, it was undisputed that the expert was the

plaintiff's treating physician, and the evidence supported the jury's finding that

the physician had reneged on his promise to provide specific litigation assistance

to the plaintiff. Id. at 432, 441. In our opinion, we did not address the question

of whether the plaintiff presented sufficient evidence to support the jury's award

of damages, which is the key issue in this appeal. Therefore, plaintiff's reliance

on Spaulding is misplaced.

      We therefore conclude that the trial court correctly determined that

plaintiff's claims against Prieto failed as a matter of law because he did not




                                                                            A-5631-16T3
                                        17
present sufficient evidence on proximate cause and damages. In view of that

decision, we need not address the other arguments raised on appeal.

      Affirmed.




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                                     18
