                                NOT FOR PUBLICATION WITHOUT THE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-1837-18T1

DANIEL BLAND,

          Plaintiff-Appellant,

v.

K.R., and NEW JERSEY
MANUFACTURERS
INSURANCE COMPANY,

          Defendants,

and

LISA JORDAN-SCALIA, D.O.,
RARITAN FAMILY HEALTH
CARE, P.A., MANISH B.
VIRADIA, M.D., HUNTERDON
ORTHOPEDIC INSTITUTE, P.A., 1
RICHARD HALL COMMUNITY
MENTAL HEALTH CENTER, and
LAURA KOLLER, MA, LAC, 2

     Defendants-Respondents.
____________________________________

1
     Hunterdon Orthopedic Institute is now known as Mid Jersey Orthopaedics.
2
     Laura Koller was improperly pled as Laura Keller, MA, LAC.
           Argued February 12, 2020 – Decided May 15, 2020

           Before Judges Whipple, Gooden Brown, and Mawla.

           On appeal from the Superior Court of New Jersey, Law
           Division, Somerset County, Docket No. L-1077-14.

           Michael B. Zerres argued the cause for appellant
           (Blume, Forte, Fried, Zerres & Molinari, PC, attorneys;
           Michael B. Zerres, of counsel and on the briefs; Ashley
           A. Smith, on the briefs).

           Gary L. Riveles argued the cause for respondents Lisa
           Jordan-Scalia, D.O. and Raritan Family Health Care,
           P.A. (MacNeill, O'Neill & Riveles, LLC, attorneys;
           Gary L. Riveles, of counsel; Anelia Dikovytska Brown,
           on the brief).

           John P. Shusted argued the cause for respondents
           Manish B. Viradia, M.D. and Hunterdon Orthopedic
           Institute P.A. (German, Gallagher & Murtagh,
           attorneys; John P. Shusted, of counsel and on the brief).

           Francesco Taddeo argued the cause for respondents
           Richard Hall Community Health Center and Laura
           Koller, MA, LAC.

PER CURIAM

     Plaintiff appeals from three orders dated September 18 and 28, 2018, and

October 26, 2018, granting summary judgment to defendants Lisa Jordan-Scalia,

D.O. and her employer Raritan Family Health Care, P.A. (RFHC); Manish B.

Viradia, M.D. and his employer Hunterdon Orthopedic Institute, P.A. (HOI);


                                                                       A-1837-18T1
                                      2
and Laura Koller, MA, LAC and her employer Richard Hall Community Mental

Health Center (RHCMHC), as well as three orders denying reconsideration

dated October 30, 2018, and December 3 and 12, 2018. We affirm.

      This case arises out of an automobile accident.       On May 20, 2014,

defendant K.R. (Kay)3 was driving and drifted into the opposite lane, where she

collided head-on with plaintiff Daniel Bland, causing him serious orthopedic

injuries. Kay was cited for the accident and pled guilty to unsafe driving.

      Prior to the accident, Kay was seen by various doctors and mental

healthcare professionals: Dr. Jordan-Scalia, a general practitioner; Dr. Manish

Viradia, a neurologist; and Laura Koller, a therapist. Plaintiff filed suit on

August 6, 2014, naming Kay as the defendant, but later added Jordan-Scalia and

her employer RFHC, as well as Viradia and his employer HOI, as defendants,

alleging they were negligent in the diagnosis of Kay's condition and deviated

from accepted standards in rendering medical care, which resulted in plaintiff's

injuries.




3
    We use the defendant driver's initials and a pseudonym to ensure
confidentiality throughout this opinion because the record indicates she was
subject to civil commitment. R. 1:38-11.
                                                                         A-1837-18T1
                                       3
      Plaintiff and Kay settled, and the matter as to Kay was dismissed with

prejudice. The remaining defendants' initial motions to dismiss pursuant to Rule

4:6-2 for failure to state a claim upon which relief could be granted were denied.

      Plaintiff filed a second amended complaint—this time alleging defendants

Jordan-Scalia, RFHC, Viradia, and HOI were "negligent and careless in their

failure to report [Kay's] condition of recurrent periods of unconsciousness or

impairment or loss of motor coordination" to the Director of the New Jersey

Motor Vehicle Commission (MVC) pursuant to N.J.S.A. 39:3-10.4, which

resulted in plaintiff's injuries. The initial common law negligence claims against

Jordan-Scalia and Viradia and their employers contained in the first amended

complaint were not included in the second amended complaint. Plaintiff later

filed a third amended complaint adding licensed therapist Laura Koller and her

employer RHCMHC. The complaint against Koller and the two doctors re-

asserted the failure to report Kay's condition to the MVC pursuant to N.J.S.A.

39:3-10.4.

      In her deposition, Jordan-Scalia testified Kay was a prior patient who left

Jordan-Scalia's practice for insurance reasons, but who had recently come back

to see her for a physical in March 2014. Kay, who had a history of depression




                                                                          A-1837-18T1
                                        4
and anxiety, reported being prescribed Prozac and Klonopin. At the end of the

physical, Kay stated she thought she had been having seizures for the past year.

       Based on this self-report, Jordan-Scalia sent Kay to see neurologist

Viradia for an EEG4 and full work-up to confirm a diagnosis. Jordan-Scalia did

not diagnose or treat for seizures as part of her practice, but testified she advised

Kay not to drive. Kay told Jordan-Scalia she had already ceased driving, and in

fact had her boyfriend drive her to the physical that day. While Jordan -Scalia

was aware of the statutory requirement to report a patient with seizures to the

MVC, she did not do so here because it was a self-report and there was no

diagnosis.

       When Jordan-Scalia next saw Kay a couple months later on May 12,

Jordan-Scalia had received Viradia's initial assessment; it included a list of tests

ordered but offered no definitive diagnosis. Kay's boyfriend drove her to the

appointment, and Kay told Jordan-Scalia her boyfriend drove her everywhere.

Kay reported she had been in a psychiatric hospital for three weeks, where she

was diagnosed with bipolar affective disorder. Kay was now taking Haldol,

Topamax, Trileptal, Trazodone, and Cogentin, all prescribed by a psychiatrist at

the psychiatric hospital.


4
    EEG stands for electroencephalogram.
                                                                             A-1837-18T1
                                         5
      Kay visited Jordan-Scalia again a few days later on May 20, the day of the

accident; Kay asked for a refill of psychiatric medicine to hold her over until her

next psychiatrist appointment on May 28.        Kay's medical record noted she

agreed to go to a psychiatric emergency center "if any suicidal or homicidal

ideations occur," which Jordan-Scalia stated is something she may say to a

patient on psychiatric medications, but she did not recall specifically why she

told Kay at that visit. Kay reported she drank a couple of alcoholic beverages

daily, and while Jordan-Scalia did not notice any signs of alcohol consumption

during the visit, it was her practice to warn patients of potential interaction

between alcohol and their medications.

      As for Viradia, he first saw Kay at HOI on April 7, on Jordan-Scalia's

referral, "to rule out [the] possibility of seizures." Kay was accompanied by her

boyfriend to the appointment, and they discussed how he was driving her

everywhere at that time. Viradia testified in his deposition that while not

documented in the record, he told Kay it was important she not drive, and stated

it was standard practice for him to advise his patients as such.

      Viradia ordered tests and listed "convulsions" and "simple partial

seizures" as a primary diagnosis, but testified it was "an impression . . . [i]t is

not a diagnosis. When you initiate a workup, there is no diagnosis," and testified


                                                                           A-1837-18T1
                                         6
those codes were used so insurance would authorize the test. He stated "one

cannot diagnose seizure or epilepsy on seeing a patient one time," and unless he

put something pertinent to the epilepsy spectrum in the diagnosis spot on the

form, Kay "would never get any test that she needed to rule it out or rule it in."

      Viradia also listed multiple "differential" diagnoses, which included

insomnia, alcohol-related issues, recreational drug use, prescription drug use not

disclosed to him, sleep deprivation, psychiatric problems, and pseudoseizures;

he testified "seizure was the last thing I was thinking. However, [Kay] was sent

to me to rule that out and that was my job to do so." He indicated Kay told him

she was only on Prozac and he did not know if she was on any medication to

treat seizures.

      Viradia had reported patients to the MVC in the past, likely over 100

times, by fax or mail, and those decisions were made on a case by case basis;

here, Kay's boyfriend drove her and reported he was taking her to appointments,

and Viradia asserted he was told that Kay was no longer driving. A couple

months after the accident, the results of the tests ordered by Viradia for Kay

turned out to be normal.

      Koller was a licensed associate counselor at RHCMHC who began seeing

Kay on March 12, 2014, and saw her a total of three times between then and the


                                                                           A-1837-18T1
                                        7
May 20 accident.       Kay's initial comprehensive assessment at RHCMHC

indicated Kay reported delusions, amnesia, and sleepwalking.

      Kay reported she was blacking out, had been violent, and exhibited signs

of psychosis while she was taking prednisone for a misdiagnosis of lupus. An

April 15 note states a "friend" of Kay's called to tell Koller that Kay had been

experiencing "petit seizures and instances of blacking out and not remembering

certain things she's done." Koller also learned at that time that Kay had been

admitted as an inpatient to a psychiatric hospital and would not make her next

appointment; the record indicates Kay was admitted after trying to stab her

boyfriend.

      Upon discharge from the hospital, Kay was referred for follow up

psychiatric treatment because she was brought to the hospital intoxicated,

"express[ing] thought[s] of wanting to kill herself," and "drinking more than

usual . . . and has a history of blackouts and some seizure episodes." Kay

"reported drinking [three to four] glasses of wine in order to 'heal her depression'

in addition to taking her prescribed Klonopin."

      Koller next saw Kay on May 20, the day of the accident, from around

2:00-2:50 p.m., where Kay was "tearful" and said her friends and parents were

concerned about her behavior at night and her sleepwalking. Kay had been


                                                                            A-1837-18T1
                                         8
kicked out of her house by her sons and ex-boyfriend and was currently living

with her ex-husband. Koller referred Kay for a substance abuse evaluation and

noted she

               currently struggles with depression and many medical
               issues. Some not diagnosed. [Kay] was hospitalized
               three times during the past month and reported that
               friends and family members are accusing her of
               drinking when she is not. [Kay] said that she has a
               problem when she drinks, but she does not have a
               drinking problem.

      The June 11 summary of treatment stated "[Kay] has had a history of

blackouts, psychotic behavior, emotional volatility and substance use issues.

[Koller] had difficulty detecting [the] origin of [Kay]'s symptoms, alcohol use,

medication and/or abuse.       [Kay] agreed to [a] higher level of care . . .

evaluation."

      As for Kay, she testified in her deposition she had no recollection of the

accident. She stated she went to work, to two doctor's appointments, and then

at around 2:30 p.m. met a friend at a deli, after which she drove to Pennsylvania;

the last thing she remembered was stopping for gas and calling her ex-husband.

      Kay stated she was taking Trileptal, Baclofen, and a blood pressure

medication. She stated Trileptal was a seizure medication prescribed to her, but

did not remember who prescribed it. Kay asserted she did not remember the last


                                                                          A-1837-18T1
                                        9
time she blacked out before the accident, did not recall anything about blackouts,

and had not blacked out since. In response to a question asking whether a

blackout might be what caused the accident, she agreed a blackout might be an

explanation.

      Kay recalled little about her conversations with Jordan-Scalia and Viradia.

She recalled filling out the initial intake application for RHCMHC, but did not

recall why, other than she had frequent falls, then later stated it was because she

was depressed. Kay did not recall being intoxicated during an earlier November

2013 incident where she received a laceration, although medical records

suggested her blood alcohol level was 0.182.            Nor did she recall the

circumstances of her involuntary commitments during April and May of 2014,

or the circumstances surrounding the police being called because of her

interactions with her boyfriend.

      Kay remembered being very stressed between March and May 2014

because she did not feel well. She stated she drove "[v]ery little" and made an

effort to have her boyfriend drive her during this time because she didn't feel

well, but would drive occasionally "[i]f [she] felt okay." She answered in the

negative when asked if she "believe[d] if the [MVC] had temporarily suspended

your license you would have driven a car?"


                                                                           A-1837-18T1
                                       10
      Damian F. Rigatti, D.O., plaintiff's expert, opined that Jordan-Scalia

deviated from the accepted medical standard of care because she did not file a

report to the MVC on Kay's first self-report of a seizure, and because there was

no written record that Jordan-Scalia advised Kay not to drive. Rigatti conceded,

however, that while Kay self-reported a history of more than one seizure, she

had never been treated for seizures.

      Rigatti noted the medications Kay had refilled through Jordan-Scalia had

side effects including impaired concentration, impaired driving skills, seizures,

drowsiness, and suicidal ideation, although he later clarified Jordan-Scalia only

refilled the Trileptal, which was a mood stabilizer prescribed by a different

doctor.   Rigatti acknowledged hospital records questioned whether Kay

intentionally drove into plaintiff's vehicle as a suicide attempt, and opined her

medications "can increase suicidality."

      Rigatti opined Jordan-Scalia should also have reported Kay to the MVC

because her medications could result in impairment and cause an accident. He

asserted that given Kay's "multiple encounters with psychiatric admissions," and

"[e]rratic, sometimes violent, behavior," in March and April, her ability to

follow instructions not to drive should have been perceived as unreliable.




                                                                         A-1837-18T1
                                       11
      His opinion of what caused Kay to swerve into the other lane was

equivocal. Rigatti said a seizure was "a possible diagnosis," as was blacking

out, or "syncope," falling asleep at the wheel, and suicidality.

      Richard Lechtenberg, M.D., a neurology expert, prepared an expert

neurological report for plaintiff. He noted Kay had numerous ailments, and as

of April 7, was taking Prozac for agitated depression or possibly bipolar

affective disorder, and as of May 12 was prescribed Haldol, Topamax, Trileptal,

Trazadone, and Cogentin, and on May 20 was prescribed Trileptal and Baclofen.

Dr. Lechtenberg opined, based only on the records provided, that Kay's

appropriate diagnoses at the time of the accident were agitated depression and

complex partial seizures.

      He opined Kay was being tested for episodes of altered consciousness or

loss of consciousness at the time of the accident, and may have just started on

anti-epileptic medication and may not have been adequately medicated to

suppress seizure activity, "if in fact seizure activity was the basis for her

disturbances of consciousness."      It was his opinion that it was "clearly

irresponsible" for her to be driving, whether her impairment was because of a

seizure disorder or an affective disturbance. He asserted her episodes of altered

consciousness were "a sufficient basis for alerting the [MVC] to suspend her


                                                                         A-1837-18T1
                                       12
driver's license until these episodes were fully eliminated," and that it was a

deviation from the accepted standards of care not to do so.

      While he contended Kay was diagnosed by Viradia, Jordan-Scalia, and

Koller as having a seizure disorder, he conceded a "differential diagnosis" is

only a possible diagnosis, where a regular diagnosis would be one supported by

evidence. He noted that while some of the medications Kay was prescribed are

also antiepileptics, he acknowledged those drugs were not prescribed

specifically for a seizure disorder and that Trileptal in particular was prescribed

off-label for a variety of things. He opined that it was a deviation from the

standard of care for Viradia not to have established Kay was on antiepileptic

medications when he saw her, and if he established she was not, it would have

been a deviation not to prescribe an antiepileptic and not to report her to the

MVC.

      A third plaintiff's expert, Steven A. Fayer, M.D., P.C., a psychiatrist,

prepared an expert report to offer an opinion as to the care given Kay by Koller

and RHCMHC. Fayer reviewed Kay's inpatient psychiatric records from her

hospitalization on April 27, to May 3, 2014. Those records stated Kay had a

five-year history of depression, and her first hospital admission was "a few




                                                                           A-1837-18T1
                                       13
months ago" when she threatened her boyfriend with a knife and police were

called, which she denied remembering or even that it happened.

      The records reported Kay "may have seizures in the past, not sure," with

a diagnosis of bipolar disorder, alcohol dependence, and noncompliance. Fayer

stated this diagnosis was a "dangerous combination of circumstances." There

was also a note in the records stating Kay took 0.5 mg of Klonopin and muscle

relaxers before the accident, which Fayer stated could cause drowsiness.

      Fayer noted Kay had a history of alcohol use, minimized her alcohol

abuse, and records showed she "has experienced symptoms of withdrawal when

attempting to discontinue use."     The May 4 hospital discharge summary

indicated she was "anxious, nervous, depressed, withdrawn," but compliant with

treatment, and that day seemed better, wanted to be discharged, and did not

report homicidal or suicidal ideations or hallucinations. The final diagnosis was

bipolar disorder and alcohol dependence, and she was to be discharged to an

outpatient clinic.

      Fayer opined it was a deviation from good and accepted mental health

practices for Koller not to have contacted the MVC about Kay's "history of

seizure disorders and/or alcohol abuse," although he retracted that statement in

his deposition upon a reading of the statute. Fayer conceded there were no


                                                                         A-1837-18T1
                                      14
codified standards, but opined it would be good and acceptable practice to make

sure someone is not driving that possibly has a seizure disorder, blackouts, and

is drinking; although Kay was not specifically diagnosed with seizure disorder,

he said Koller was aware of possible seizures from the phone call she received

from Kay's unidentified "friend."

      After discovery ended, defendants Jordan-Scalia and RFHC moved for

summary judgment, arguing failure to report under N.J.S.A. 39:3-10.4 did not

create a private cause of action—rather, the statute simply calls for a fine.

Defendants Viradia and HOI also moved for summary judgment, as did

defendants Koller and RHCMHC.

      The trial court agreed with defendants that N.J.S.A. 39:3-10.4 does not

confer a private cause of action, and additionally, the alleged failure to notify

the MVC of the alleged seizure disorder "cannot, under any reasonable basis, be

determined to be . . . a proximate cause of this accident." The trial judge granted

Jordan-Scalia and RFHC, as well as Viradia and HOI, summary judgment.

      The trial judge also granted summary judgment to Koller and RHCMHC

after finding Koller was not a physician, but rather a social worker who "got

lumped in with" the other defendant-physicians with the failure to follow the

statute, which only mandates reporting by treating physicians. The judge noted


                                                                           A-1837-18T1
                                       15
the claim at issue was "not a general negligence claim," but rather a clai m of

carelessness and negligence in failure to report Kay's condition to the MVC

pursuant to the statute and there was "no possible basis for liability against

[Koller] or her employer regardless of the proximate cause issue, which, in any

event, I find doesn't exist. . . ."

       Plaintiff moved for reconsideration of the summary judgment motions as

to all defendants, asserting as his basis to do so that 1) the court should have

considered an unpublished Appellate Division opinion, 5 and 2) that Kay testified

during her deposition she would not have driven a car if the MVC had suspended

her license. The motions for reconsideration were denied.

       This appeal followed.

                                       I.

       We review summary judgment de novo, using the same standard as that

employed by the trial court. Hinton v. Meyers, 416 N.J. Super. 141, 146 (App.

Div. 2010) (citing Turner v. Wong, 363 N.J. Super. 186, 198-99 (App. Div.

2003)). Rule 4:46-2 provides that a court should grant summary judgment when

the pleadings, depositions, answers to interrogatories and admissions on file,




5
    Corso v. State, No. A-2860-06 (App. Div. May 27, 2009).
                                                                         A-1837-18T1
                                      16
along with any affidavits, show there is no genuine issue of material fact and the

moving party is entitled to judgment as a matter of law.

              [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, when viewed in the light most
              favorable to the non-moving party, are sufficient to
              permit a rational factfinder to resolve the alleged
              disputed issue in favor of the non-moving party.

              [Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520,
              540 (1995).]

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

four elements of: 1) duty of care, 2) breach of that duty, 3) proximate cause, and

4) damages. Townsend v. Pierre, 221 N.J. 36, 51 (2015) (citing Polzo v. Cnty.

of Essex, 196 N.J. 569, 584 (2008)).         The plaintiff must do so "by some

competent proof." Ibid. (quoting Davis v. Brickman Landscaping, Ltd., 219 N.J.

395, 406 (2014)).

      The question of whether a duty exists is a matter of law. Carvalho v. Toll

Bros., 143 N.J. 565, 572 (1996) (citations omitted). Foreseeability of the injury

is a "crucial element" when determining whether the imposition of a duty is

appropriate; "[o]nce the foreseeability of an injured party is established, . . .

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

warranted."     Id. at 572-73 (second alteration in original) (quoting Carter

                                                                           A-1837-18T1
                                        17
Lincoln-Mercury, Inc. v. EMAR Group, Inc., 135 N.J. 182, 194-95 (1994)).

"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." Vizzoni v. B.M.D., 459 N.J. Super.

554, 568 (App. Div. 2019) (quoting Hopkins v. Fox & Lazo Realtors, 132 N.J.

426, 439 (1993)).     Assessing fairness and policy requires consideration of

several factors, including 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. Carvalho, 143 N.J. at 573 (citing Hopkins, 132 N.J. at

439).

        Plaintiff argues Jordan-Scalia, Viradia, and their respective employers

owed plaintiff a duty under N.J.S.A. 39:3-10.4 to report Kay to the MVC for her

self-reported seizures, and that they breached that duty. We disagree.

        N.J.S.A. 39:3-10.4 provides that:

              Each physician treating any person [sixteen] years of
              age or older for recurrent convulsive seizures or for
              recurrent periods of unconsciousness or for impairment
              or loss of motor coordination due to conditions such as,
              but not limited to, epilepsy in any of its forms, when
              such conditions persist or recur despite medical
              treatments, shall, within [twenty-four] hours after his
              determination of such fact, report the same to the
              Director of the [MVC]. . . .


                                                                             A-1837-18T1
                                        18
            [(Emphasis added).]

N.J.S.A. 39:3-10.5 also requires that the individual suffering from the symptoms

enumerated in section 10.4 must themselves also report the existence of their

condition to the MVC at the time they apply for an initial driver's license or for

a renewal of an existing license. There is a $50 fine for failure to report for both

the physician and the individual under N.J.S.A. 39:3-10.8.

      N.J.S.A. 39:3-10.4 provides no basis for claims of negligence against the

medical defendants, and there is no binding case law establishing a cause of

action for the violation of N.J.S.A. 39:3-10.4 to protect against the physical

harm to others that may result from a driver whose condition makes it unsafe for

them to drive.

      Further, a plain reading of the statute indicates it requires a report to the

MVC where the enumerated symptoms "persist or recur despite medical

treatments." There is no evidence in the record, other than her own self-reports,

that Kay had seizures in the first place, let alone that they recurred after her

visits to Jordan-Scalia or Viradia. Other than a vague indication, in response to

a deposition question, that a blackout "might" have caused the accident, Kay

testified she did not remember the last time she had a blackout before the




                                                                            A-1837-18T1
                                        19
accident, had not blacked out since, and also said later she did not recall anything

about blackouts.

      Additionally, we reject plaintiff's assertion the doctors' visits constituted

treatment; the statute states a report must be made if the condition persists or

recurs "despite medical treatments," which suggests an active treatment that

would be expected to result in change. Here, there is no indication there was a

recurrence at all, let alone a recurrence despite treatment, as both doctors were

still awaiting the test results.    Although Kay was prescribed anti-seizure

medications, they were not prescribed by either Jordan-Scalia or Viradia, and

there is no evidence they were prescribed for seizures.

      Further, a report to the MVC is required "within [twenty-four] hours after

[the physician's] determination" that the conditions persist and recur despite the

medical treatments. Neither Viradia nor Jordan-Scalia ever determined there

was a recurrence of symptoms enumerated in the statute despite medical

treatment. To the contrary, both doctors were still awaiting test results, Viradia

testified seizures were the lowest on his list of possible differential diagnoses,

Kay testified in her deposition she did not recall having seizures at all, and

subsequent tests showed Kay did not suffer from seizures.




                                                                            A-1837-18T1
                                        20
      Finally, the MVC process indicates more than a self-report, referral, and

order of tests triggers the requirement that a physician report an individual to

the MVC. Once an individual has been reported to the MVC, the Director

forwards "all pertinent reports," including the treating physician's statement as

to diagnosis, treatment, and prognosis, to the specially-formed Neurological

Disorder Committee for review. 24 Ramsey, N.J. Practice, Motor Vehicle Law

and Practice § 2:36 (4th ed.) (citing N.J.A.C. 13:19-5.5); N.J.A.C. 13:19-5.3, -

5.4. The Committee performs an independent analysis based on the evidence,

and then makes a recommendation to the Director as to whether the individual

may retain his or her license or whether it should be suspended. Ibid. (citing

N.J.A.C. 13:19-5.6). From this, it can be inferred that to warrant a report to the

MVC, there must be some history, investigation, and evidence from which the

Committee can make an assessment.

      Therefore, because there was no diagnosis, no treatment, and no

recurrence, there is nothing in the plain reading of the statute or in the MVC

process to indicate either Jordan-Scalia, Viradia, or their employers had a duty

to report Kay to the MVC, and summary judgment on this ground was

appropriate.




                                                                          A-1837-18T1
                                       21
                                        II.

      Plaintiff argues the trial court should have considered whether plaintiff

could prove an independent basis for a claim of common law medical negligence

against Jordan-Scalia and Viradia, based on plaintiff's experts' reports as to their

alleged negligence under common-law malpractice principles.              However,

plaintiff's claims were not for common-law malpractice.            While the first

complaint alleged Jordan-Scalia and Viradia were negligent and deviated from

accepted standards in rendering medical care, which resulted in plaintiff's

injuries, those claims were dropped in the second and third amended complaints,

and changed to negligence in their failure to report Kay to the MVC under the

statute. Therefore, this argument is without merit.

      Plaintiff also argues that under the applicable standard of care according

to Fayer, Koller had a duty to contact appropriate persons who could make a

determination and take appropriate action to ensure Kay was not driving since

there was an "index of suspicion that the patient may be dangerous."

Additionally, plaintiff argues, under Corso a genuine issue of material fact exists

as to whether the applicable standards of care mandated that Koller arrange for

a medical or psychiatric consultation given her awareness of Kay's history.

Plaintiff asserts a jury could find Koller was negligent in failing to effectively


                                                                            A-1837-18T1
                                        22
deter Kay from driving, including but not limited to reporting her condition to

the MVC.

      These arguments are also without merit. The claim against Koller was

only that she was negligent in failing to report Kay to the MVC, not that she

deviated from general standards of care. Koller was aware that Kay was under

the care of other physicians, and as a non-physician Koller had no duty to take

any action under N.J.S.A. 39:3-10.4. Further, the record reflects that Koller did

refer Kay to a higher level of care than she could provide and was in the process

of referring her to a substance abuse program.

                                       III.

      Plaintiff argues the breaches of the alleged duty of defendants to report

Kay to the MVC were the proximate cause of plaintiff's injuries, in that the

negligence of the health care defendants was an efficient cause that set the series

of events into motion, which led to plaintiff's injuries. Plaintiff asserts Kay's

testimony that she would not have driven a car if her license had been suspended

demonstrates Kay would not have been driving at all on May 20, and that a jury

could reasonably conclude that but for the negligence of the healthcare provider

defendants, the accident would not have occurred.




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      Plaintiff also asserts Kay blacked out, which caused the accident, and that

if she were not driving while having a seizure the accident would not have

occurred. Additionally, plaintiff argues the issue of causation is a question of

fact for a jury to consider after trial, under Yun v. Ford Motor Company, 276

N.J. Super. 142, 156 (App. Div. 1994), rev'd. on other grounds, 143 N.J. 162

(1996).

      When the evidence "is so one-sided that one party must prevail as a matter

of law," summary judgment should be granted. Brill 142 N.J. at 540 (citation

omitted). The opposing party must produce evidence that creates a genuine issue

of material fact, and "[c]onclusory and self-serving assertions by one of the

parties are insufficient to overcome the motion." Vizzoni, 459 N.J. Super. at

567 (citation omitted).

      "A party cannot defeat a motion for summary judgment merely by

submitting an expert's report in his or her favor," but rather, the expert report

must create a genuine issue of material fact. Brill, 142 N.J. at 544. An expert

opinion must be grounded in facts or data, and the net opinion rule forbids

admission of an expert's conclusions that are not supported by factual evidence

or other data – the expert must "give the why and wherefore" that supports the

opinion and not just "a mere conclusion." Townsend, 221 N.J. at 53-54 (quoting


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Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 144 (2013))

(other citations omitted). If there is no genuine issue of material fact, we look

to whether the trial court correctly interpreted the law, according the trial judge's

legal conclusions no deference. Vizzoni, 459 N.J. Super. at 567 (citations

omitted).

      The plaintiff may prove causation through "legitimate inference, so long

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

mere speculation." Vizzoni, 459 N.J. Super. at 576 (quoting Kulas v. Pub Serv.

Elec. & Gas Co., 41 N.J. 311, 319 (1964)). Proximate cause may "be removed

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

report." Id. at 576 (first citing Townsend, 221 N.J. at 57-58; then citing Dawson

v. Bunker Hill Plaza Assocs., 289 N.J. Super. 309, 324 (App. Div. 1996)).

Therefore, where "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.

      Here, there is no evidence Kay suffered a seizure or other symptom

enumerated under the statute at the time of the accident, other than Kay's own

response to a deposition question that a blackout "might" have been the cause,

and Rigatti's conclusion that a seizure was one of many other possible causes of


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the accident, including falling asleep at the wheel and suicidality. A review of

the record shows numerous factors that could have caused Kay to drift over the

center line head-on into plaintiff's car, including: alcohol abuse; multiple

medications that, according to Rigatti, had side effects that included impaired

concentration, seizures, drowsiness, and suicidal ideation; a recent history of

suicidal thoughts; a recent history of violent acts; and, as Fayer noted, Kay

reported that before the accident she took 0.5 mg of Klonopin and muscle

relaxers, which have side effects of dizziness, unsteadiness, weakness, and

drowsiness.

      Therefore, the record does not establish it is more likely than not that Kay

suffered a seizure that caused the accident, but only that it was a remote

possibility, as seizure disorder was later ruled out by the test results.

      Finally, plaintiff's argument that Kay would not have driven at all that day

had defendants reported her to the MVC, and plaintiff would not have been

injured, is completely speculative. Not only is it speculative to suggest Kay

would not have driven had her license been suspended, but it is also speculative

that her license would have been suspended in the first place. The MVC process

takes time, as the Committee reviews the evidence and makes an analysis before

making a recommendation to the Director. Further, the Director has wide


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discretion as to whether and when to suspend or allow an individual to retain his

or her license under N.J.A.C. 13:19-5.7. The Director may or may not suspend

a driver's license before receiving the Committee's recommendation, upon

notice and an opportunity to be heard under N.J.A.C. 13:9-5.2, and even after

the Committee makes its recommendation, it is not binding on the Director; the

Director may or may not suspend an individual's license no matter what the

Committee's recommendation under N.J.A.C. 13:19-5.7.           Given the MVC

process and the Director's discretion, there is no way to know whether the MVC

would have suspended Kay's license either before the accident or at all.

      Therefore, given the other potential and more likely causes of Kay's

accident, the lack of evidence Kay suffered from a reportable disorder, and the

process that ensues once an individual has been reported to the MVC, that

defendants' failure to report Kay to the MVC was the proximate cause of

plaintiff's injuries is "pure speculation or conjecture" and summary judgment

was appropriate on this ground as well. Plaintiff's remaining arguments are

without sufficient merit to warrant discussion in a written opinion. R. 2:11-

3(e)(1)(E).

      Affirmed.




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