                                      RECORD IMPOUNDED

                                NOT FOR PUBLICATION WITHOUT THE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-2621-16T4

J.M.,

          Plaintiff-Respondent,

v.

T.F.,

     Defendant-Appellant.
_________________________

                    Argued November 8, 2018 – Decided January 17, 2019

                    Before Judges Fuentes, Vernoia and Moynihan.

                    On appeal from Superior Court of New Jersey,
                    Chancery Division, Family Part, Middlesex County,
                    Docket No. FV-12-2253-16.

                    Philip Nettl argued the cause for appellant (Benedict
                    and Altman, attorneys; Philip Nettl, on the briefs).

                    Joseph DiRienzo argued the cause for respondent
                    (DiRienzo & DiRienzo PA, attorneys; Joseph
                    DiRienzo, on the briefs).

PER CURIAM
      Defendant T.F. appeals from a February 3, 2017 final restraining order

(FRO) entered in favor of plaintiff J.M. pursuant to the Prevention of Domestic

Violence Act of 1991 (PDVA), N.J.S.A. 2C:25-17 to -35. We reverse.1

                                       I.

      Plaintiff and defendant are the parents of a daughter who was eight years

old at the time of the incident which gave rise to the FRO. Defendant was the

child's parent of primary residence, and plaintiff enjoyed regular parenting time

with the child.

      On May 24, 2016, defendant sent plaintiff a text message asking whether

he "prefer[red] sugar in [his] coffee or plain black" and stating their daughter

wanted to show plaintiff a "tee and net" in defendant's backyard when plaintiff

arrived the following day to pick her up for his scheduled parenting time.

Plaintiff was surprised by the message and offer of coffee because for many

years defendant had not provided refreshments when he picked up the child for



1
   The FRO required that defendant pay plaintiff's attorney's fees "incurred for
this matter" but did not specify the amount. On March 7, 2017, the court entered
an order of judgment against defendant in the amount of $49,542 for plaintiff 's
attorney's fees. Defendant's notice of appeal does not list the March 7, 2017
order and, therefore, defendant does not appeal from that order. However,
because we reverse the entry of the FRO which directed the payment of
attorney's fees in the first instance, we also reverse the March 7, 2017 order of
judgment.
                                                                         A-2621-16T4
                                       2
his parenting time, and plaintiff's and defendant's interactions concerning

parenting time had been contentious on occasion. Plaintiff's surprise at the offer

is reflected in the text message he sent in response: "Try again. I think you got

the wrong person."

      The following day, May 25, 2016, was eventful. Plaintiff usually picked

up his daughter at defendant's parents' home, but received a text message from

defendant advising the child was at her home. When plaintiff arrived at 5:00

p.m., defendant and the child were on the porch. Defendant had a cup of coffee

waiting for plaintiff.     The parties' daughter poured sugar from a box into

plaintiff's cup. Plaintiff, defendant, and the child then went to the backyard

where plaintiff and the child played catch and defendant attempted to construct

a pitch-back net. Shortly after plaintiff finished drinking the coffee, his speech

became slurred. He then became incapacitated and nonresponsive.

      Defendant unsuccessfully attempted to call her father, a physician, and

then called 9-1-1.       Emergency medical personnel arrived and transported

plaintiff to the emergency room at J.F.K. Medical Center, where he arrived

comatose and in critical condition.

      His treating physician's initial diagnoses included a "[p]ossible seizure at

the time of presentation," "[r]espiratory failure," "[b]enzodiazepine, positive


                                                                          A-2621-16T4
                                        3
urine drug screen," and that plaintiff's "[a]ltered mental status [was] of unknown

etiology," meaning the cause of his condition was unknown. 2 When plaintiff

was discharged from the hospital six days later, his treating physician 's

discharge diagnoses were "[a]ltered mental status" and "[r]espiratory failure of

unknown etiology."

      Twenty days after he left the hospital, plaintiff filed a June 20, 2016

complaint seeking a temporary restraining order against defendant under the

PDVA. The complaint alleged defendant committed the predicate act of assault,

N.J.S.A. 2C:25-19(a)(2), and asserted defendant gave plaintiff a cup of coffee

on May 25, 2016, plaintiff woke up at a hospital several days later, and doctors

told plaintiff they found a substance in his "blood stream." Plaintiff later alleged

more specifically that defendant assaulted him by putting benzodiazepine in the

coffee and that the benzodiazepine caused his coma and life-threatening medical

conditions. The court entered a June 20, 2016 domestic violence temporary

restraining order against defendant. Defendant was also charged criminally with



2
   Plaintiff's treating physician did not testify at trial. He prepared a discharge
summary that was admitted in evidence and details plaintiff's "admitting
diagnoses" and "discharge diagnoses." "Etiology" means "cause [or] origin[,]
specifically: the cause of a disease or abnormal condition." Etiology, Merriam-
Webster Dictionary, https://www.merriam-webster.com/dictionary/etiology
(last visited Jan. 2, 2019).
                                                                            A-2621-16T4
                                         4
offenses, including attempted murder, based on the allegation that she put

benzodiazepine in plaintiff's coffee and caused his medical condition.

      The trial on plaintiff's request for an FRO took place over eleven days,

and primarily turned on the issue of causation: that is, did benzodiazepine cause

plaintiff's critical medical condition. Plaintiff claimed his condition was caused

by benzodiazepine and that, based on the totality of the circumstances, it could

be reasonably inferred defendant assaulted him by placing benzodiazepine in the

coffee she gave him.

      Plaintiff first called defendant as a witness. Defendant asserted her Fifth

Amendment right to remain silent and refused to testify. 3 Her counsel argued


3
   Defendant filed a motion to supplement the record on appeal with an order
dismissing the criminal charges against defendant arising out of the alleged
incident with plaintiff and the transcript of the May 18, 2018 Criminal Division
proceeding during which the charges were dismissed. The transcript shows the
State requested dismissal of the criminal charges because its expert could not
"opine beyond a reasonable doubt that [plaintiff's medical condition] was the
result of benzodiazepine poisoning . . . as opposed to . . . an underlying medical
condition." We granted the motion to supplement the record on appeal with the
caveat that "[t]he Merits Panel shall decide whether the supplemental documents
shall be considered." We have reviewed the transcript and order and conclude
they are irrelevant to our determination of whether the Family Part correctly
found plaintiff presented sufficient evidence supporting the issuance of the FRO
under the PDVA. We consider the transcript and order only to the extent they
provide confirmation that, at the time of the Family Part trial, defendant was
charged with attempted murder and five other offenses in connection with the
incident involving plaintiff. We otherwise decide the merits of the case based
solely on the Family Part record.
                                                                          A-2621-16T4
                                        5
the court should not draw any negative inference based on her assertion of her

Fifth Amendment rights. The judge observed that plaintiff had not argued a

negative inference should be drawn and said defendant's counsel should not

"make [the argument] for" plaintiff. Plaintiff's counsel did not request that the

court draw a negative inference based on defendant's refusal to testify. Instead,

he asserted that defendant's reliance on the Fifth Amendment right to remain

silent did not support her refusal to testify because testimony in the FRO hearing

could not be used "in a criminal proceeding or in any other proceeding." The

court rejected the argument, finding out of "an abundance of caution" that

defendant could properly refuse to testify.

      Plaintiff testified and generally explained his interactions with defendant

concerning parenting time issues prior to May 25, 2016. He described his

exchange of text messages with defendant on May 24, 2016, and what occurred

when he went to defendant's home on May 25, 2016. He recalled defendant

holding the cup of coffee when he arrived, the child pouring what he understood

was sugar into the coffee, going into the back yard, drinking the coffee and

feeling incapacitated. He next remembered waking up in the hospital three days

later. He testified he did not eat or drink anything unusual on May 25, 2016,




                                                                          A-2621-16T4
                                        6
and had not taken medications or drugs of any kind on that day or the days

preceding it.

      Plaintiff also called Dr. Kamalakar Vanam as a witness.           He is the

emergency room doctor who cared for plaintiff from shortly after 6:00 p.m. on

May 25, 2016, when plaintiff arrived at the hospital, until Dr. Vanam's shift

ended eight hours later at approximately 2:00 a.m. on May 26. Dr. Vanam

testified as a fact witness and was neither qualified nor offered as an expert.

      Dr. Vanam explained that during his treatment of plaintiff, he determined

based on a series of tests that defendant had not suffered a stroke. He then

concluded plaintiff's condition was "probably . . . related to a metabolic

encephalopathy, which is an altered mental status not related to a stroke." Dr.

Vanam considered whether plaintiff's condition was the result of "drugs,

infections and other possible causes," including "renal failure [and] liver

failure." He ordered a series of tests, including a urine drug screen, to determine

the cause of plaintiff's condition but "other than [a] positive" result for

"benzodiazepines" from the urine drug screen, he "didn't find anything else."4




4
   The evidence showed there are many different benzodiazepines. The drug
screen employed by the hospital did not identify a particular benzodiazepine or
quantify the level of benzodiazepine in plaintiff's urine.
                                                                           A-2621-16T4
                                        7
      Dr. Vanam testified that plaintiff reacted positively when given

flumazenil, an antidote for benzodiazepine poisoning. He explained that the

presence of benzodiazepine was a consideration in assessing the cause for

plaintiff's condition, but testified that he did not know the cause.

      Dr. Vanam responded to questioning from the court soliciting his opinion

as to whether benzodiazepine caused plaintiff's condition.

            [Dr. Vanam]: At that point, it wasn't ruled in as that was
            the only reason. We were just looking for -- and that
            was only positive evidence, at that point. Having
            benzos positive. So, we still kept looking to see if there
            were any other contributing factors.

            [Court]: And were any found?

            [Dr. Vanam]: None, at that point. None were found.

            [Court]: And, in your opinion, the causation for his
            medical condition was caused by what?

            [Dr. Vanam]: Well, I would say broadly, as a metabolic
            encephalopathy. Metabolic encephalopathy is a non-
            neurological condition. Metabolic encephalopathy, as
            I just said, can be from drugs, infections, other
            metabolic reasons like low or high blood sugars, low or
            high thyroid tests. All these -- any of those things can
            cause it. Infections, pneumonia, urinary tract
            infections. Infections in the belly.

            So, we looked at the blood test[,] renal panel, liver
            panel, chest X-rays. Normal urine analysis. And, so,
            we ran all those tests. And the only test, eventually,


                                                                         A-2621-16T4
                                         8
            was positive, was benzos. But, other than that, nothing
            else that we could find to be positive.

            [Court]: Well, would that lead you to the conclusion
            that his medical condition was caused by ingesting
            benzoids?

            [Dr. Vanam]: If I don't have any other source, and to
            my knowledge, we have not found anything. Then, that
            was one of the considerations.

      Later, in response to questioning by defense counsel, Dr. Vanam testified

that he did not know the cause of plaintiff's medical condition.

            [Defense Counsel]: Okay, and you, as you sit here
            today, do not know what caused --

            [Dr. Vanam]: Correct.

            [Defense Counsel]: -- [plaintiff's] condition?

            [Dr. Vanam]: That's correct.

      Further, when defense counsel asked Dr. Vanam if he could testify with a

reasonable degree of medical certainty that benzodiazepine caused plaintiff's

medical condition, plaintiff's counsel objected and argued Dr. Vanam could not

offer such an opinion because he was not an expert witness. Although the court

previously directly asked Dr. Vanam for his "opinion" on the cause of plaintiff's

condition, it sustained plaintiff's counsel's objection, finding Dr. Vanam could




                                                                         A-2621-16T4
                                       9
not offer an opinion on causation because he had not been qualified, and was

not testifying, as an expert witness. 5

      During defendant's case, she presented Dr. Philip Kramer, a neurologist

employed at J.F.K. Medical Center who consulted on plaintiff's treatment at the

hospital on May 28 and 29, 2016. Dr. Kramer was neither qualified nor offered

as an expert witness. In pertinent part, he testified that a toxicology screening

of plaintiff's blood on May 27, two days after defendant's admission to the

hospital, showed no benzodiazepine in plaintiff's system.


5
  At oral argument before this court, plaintiff's counsel represented that during
the hearing, he asked Dr. Vanam if it was the doctor's opinion within a
reasonable degree of medical certainty that plaintiff's critical medical condition
was caused by benzodiazepine and that Dr. Vanam responded in the affirmative.
The record shows plaintiff's counsel never asked Dr. Vanam that question and
Dr. Vanam never offered that opinion. The record shows the opposite. As noted,
when defendant's counsel asked Dr. Vanam if he held any opinion within a
reasonable degree of medical certainty concerning the cause of plaintiff's
condition, plaintiff's counsel objected and argued Dr. Vanam should not answer
because he was not an expert, and the court sustained the objection. Plaintiff's
counsel's representations to this court during the course of oral argument are
also contradicted by a more accurate acknowledgment in his brief: "[A]s [Dr.
Vanam] did not know what [plaintiff] consumed or when, [he] would not offer
an opinion as to what caused [plaintiff's] condition." We have decided to
attribute plaintiff's counsel's clearly inaccurate representations during oral
argument to inattention or inadequate preparation, and not as a violation of the
duty of candor he owes his adversary and this court. See R.P.C. 3.3(a)(1);
McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 371 (2001) (noting "[l]awyers
have an obligation of candor to each other and to the judicial system").



                                                                          A-2621-16T4
                                          10
      During his direct examination by defendant's counsel, Dr. Kramer was

asked what caused plaintiff's condition, but Dr. Kramer did not provide a

responsive answer.     On cross-examination, plaintiff's counsel followed up,

asking "[w]hat caused [plaintiff's] condition?" In response, Dr. Kramer noted

that "in medicine one is often not 100 percent sure" but that he "believe[d] it

was due to an overdose of . . . a benzodiazepine" because he had "no other

explanation for [plaintiff's] loss of consciousness and recovery . . . in the

timeframe in which it occurred."

      Defendant's counsel then asked Dr. Kramer a question concerning the

length of time a benzodiazepine would be present in a person's body after being

taken, but he did not answer the question, stating that he is "not a toxicologist."

He also could not answer defense counsel's inquiry concerning the amount of

benzodiazepine that is required to render "an adult male of significant height

and size . . . comatose." Dr. Kramer testified that "you need an expert to answer

that question."

      Defendant also presented Dr. Steven Marcus, who was qualified as an

expert in the area of toxicology. Dr. Marcus testified that the urine screen test

results were not sufficiently reliable to establish the presence of benzodiazepine

in plaintiff's system, and that a confirmatory blood test should have been done.


                                                                           A-2621-16T4
                                       11
He opined that plaintiff exhibited symptoms, including a right-side facial droop

when he first became incapacitated, that are inconsistent with a benzodiazepine

overdose and instead showed plaintiff suffered a transient mini-stroke. He

testified to a reasonable degree of medical certainty that plaintiff's condition was

not caused by benzodiazepine.

      Plaintiff also called Dr. Clinton Ewing, a pathologist and director of the

laboratory at J.F.K. Medical Center, who explained the hospital's laboratory

testing procedures. Dr. Joseph Landolfi, a J.F.K. Medical Center neurologist

and plaintiff's cousin, briefly testified he was advised about plaintiff's admission

to the hospital and saw him in the hospital.

      Following the submission of written summations, the court rendered an

oral opinion finding defendant committed the predicate act of aggravated assault

by placing benzodiazepine in the coffee and causing plaintiff's life-threatening

medical condition. The court rejected defendant's contention that the positive

urine screen may have been the result of the administration of benzodiazepine

in the emergency room, and found "crucial" Dr. Vanam's testimony that he

"believed . . . benzodiazepines to be the probable cause of the plaintiff['s]

comatose condition." The court also found credible Dr. Kramer's testimony




                                                                            A-2621-16T4
                                        12
"that he believed . . . plaintiff['s] condition was caused by an overdose of

benzodiazepine."

      The court rejected Dr. Marcus's expert testimony as not credible, finding

he exaggerated and was argumentative, combative and inconsistent. The court

also determined Dr. Marcus's expertise was limited to toxicology and he

therefore was not qualified to render an opinion about the cause of plaintiff 's

neurological condition.   The court found Dr. Marcus's conclusion plaintiff

suffered from a transient mini-stroke was contradicted by hospital records

showing the triage nurses did not observe a right-side facial droop and Dr.

Vanam's testimony that testing showed plaintiff did not suffer a stroke.

      The court concluded the evidence supports a rational inference defendant

caused plaintiff's life-threatening condition by providing plaintiff with

benzodiazepine. The court determined the inference is supported by the urine

screen results and plaintiff's positive response to the administration of

flumazenil. The court further relied on Dr. Vanam's and Dr. Kramer's opinions

and found "that the circumstantial evidence is sufficient to conclude that the

plaintiff's condition was caused by an overdose of benzodiazepine. Everything

else had been ruled out." The court also drew a negative inference that defendant




                                                                           A-2621-16T4
                                      13
committed the predicate act of assault under the PDVA based on her refusal to

testify at the hearing.

      The court accepted as credible plaintiff's testimony that he did not ingest

any benzodiazepine prior to arriving at defendant's home on May 25, 2016,

noted the circumstances surrounding defendant's unusual offer of the coffee on

May 24, 2016, and delivery of the coffee the following day, and concluded

"defendant, purposely or knowingly, poisoned plaintiff by administering

benzodiazepine in his coffee."

      The court found defendant committed the predicate act of assault under

the PDVA. The court further found an FRO was necessary to protect plaintiff

from future acts of domestic violence and entered the February 7, 2017 FRO.

The FRO provided that defendant shall pay plaintiff's attorney's fees "incurred

for this matter," but did not establish the fee award. In a March 7, 2017 order,

the court entered a $49,542 judgment against defendant for payment of

plaintiff's attorney's fees. This appeal followed.

                                        II.

      "The general rule is that findings by a trial court are binding on appeal

when supported by adequate, substantial, credible evidence." Gnall v. Gnall,

222 N.J. 414, 428 (2015). We defer to the factual findings of a trial court unless


                                                                          A-2621-16T4
                                       14
"they are so manifestly unsupported by or inconsistent with the competent,

relevant and reasonably credible evidence as to offend the interests of justice."

Ibid. (citation omitted). "'Only when the trial court's conclusions are so "clearly

mistaken" or "wide of the mark"' should we interfere to 'ensure that there is not

a denial of justice.'" Ibid. (quoting N.J. Div. of Youth & Family Servs. v. E.P.,

196 N.J. 88, 104 (2008)). Our review of a trial court's legal conclusions is

plenary. Manalapan Realty, LP v. Twp. Comm. of Manalapan, 140 N.J. 366,

378 (1995).

       In its consideration of a request for entry of an FRO, the Family Part "must

determine whether the plaintiff has proven, by a preponderance of the credible

evidence, that one or more of the predicate acts set forth in N.J.S.A. 2C:25-19(a)

has occurred." Silver v. Silver, 387 N.J. Super. 112, 125 (App. Div. 2006). The

court must then determine "whether a restraining order is necessary, upon an

evaluation of the factors set forth in N.J.S.A. 2C:25-29(a)(1) to -29(a)(6), to

protect the victim from an immediate danger or to prevent further abuse." Id. at

127.

       On appeal, defendant argues the court's determination that she committed

the predicate act of assault is not supported by credible evidence.          More

particularly, she argues there is no evidence establishing the reliability of the


                                                                           A-2621-16T4
                                       15
urine drug screen or that benzodiazepine caused plaintiff's condition.       She

further claims the court violated her due process rights by drawing a negative

inference based on her refusal to testify and assertion of her Fifth Amendment

rights. She also contends the court's comments and questioning of witnesses

conveyed a lack of impartiality that deprived her of a fair trial. Defendant last

asserts the court erred by failing to consider and make findings concerning the

reasonableness of plaintiff's counsel's attorney's fees.

      We first address defendant's argument there is insufficient credible

evidence supporting the court's finding that benzodiazepine caused plaintiff's

condition. Plaintiff alleged, and the court found, defendant committed the

predicate act of assault, N.J.S.A. 2C:12-1, under the PDVA, see N.J.S.A. 2C:25-

19(a)(2), by purposely or knowingly causing plaintiff's life-threatening medical

condition by administering benzodiazepine in the coffee. The court did not

expressly refer to a subsection of N.J.S.A. 2C:12-1 in defining the particular

offense it found defendant committed, but we surmise the court found defendant

committed an aggravated assault in violation of N.J.S.A. 2C:12-1(b)(7) because

it found defendant purposely or knowingly caused "significant bodily injury" to

defendant by administering benzodiazepine in his coffee. See N.J.S.A. 2C:12-




                                                                         A-2621-16T4
                                       16
1(b)(7) (providing that a person commits an aggravated assault by purposely or

knowingly causing significant bodily injury to another).

      Plaintiff did not present any direct evidence showing defendant placed

benzodiazepine in the coffee. Instead, plaintiff argued the court should infer

defendant placed benzodiazepine in the coffee because his critical medical

condition was caused by benzodiazepine and the only possible source of his

consumption of benzodiazepine was the coffee defendant curiously gave him

when he arrived to pick up his daughter. Proving plaintiff's critical medical

condition was proximately caused by benzodiazepine was essential to his claim

and the court's finding defendant committed the predicate act of aggravated

assault. Stated differently, in the absence of proof establishing benzodiazepine

caused plaintiff's critical medical condition, plaintiff and the court lacked any

support for a finding defendant committed an assault.

      "The test of need of expert testimony is whether the matter to be dealt with

is so esoteric that jurors of common judgment and experience cannot form a

valid judgment" as to a fact in issue. Butler v. Acme Mkts, Inc., 89 N.J. 270,

283 (1982). Expert testimony is required where the issue of proximate cause is

"beyond the 'common knowledge of lay persons.'" Froom v. Perel, 377 N.J.

Super. 298, 318 (App. Div. 2005) (citation omitted). For example, "[i]f [a]


                                                                          A-2621-16T4
                                      17
plaintiff seeks to prove causation of a current medical or psychological

condition, of course, competent expert testimony would be required." J.W. v.

L.R., 325 N.J. Super. 543, 548 (App. Div. 1999); see also Kennelly-Murray v.

Megill, 381 N.J. Super. 303, 311 (App. Div. 2005) (requiring expert testimony

to establish an accident contributed to the cause of the plaintiff's cancer because

a causal link could not be based on common knowledge).

       Here, whether benzodiazepine caused plaintiff's medical condition

presented an issue that required expert testimony. See generally Canesi v.

Wilson, 158 N.J. 490, 505 (1999) (explaining that "medical causation" requires

proof of a "causal relation between" a drug and a plaintiff's injuries). Plaintiff

failed to present any expert testimony establishing that benzodiazepine was the

proximate cause of his critical medical condition. Thus, the court was without

sufficient evidence supporting its finding of a fact essential to its conclusion that

defendant committed an assault: that plaintiff's critical medical condition was

caused by benzodiazepine.

      To be sure, there is significant and seemingly persuasive circumstantial

evidence suggesting benzodiazepine caused plaintiff's condition. As noted by

the court, the urine test confirmed the presence of benzodiazepine, and other

testing did not reveal a cause for plaintiff's condition. The evidence further


                                                                             A-2621-16T4
                                        18
showed plaintiff's condition was consistent with a benzodiazepine overdose, and

plaintiff reacted positively to an antidote for benzodiazepine.          But the

complexity of the issue of medical causation precluded the judge, as the

factfinder, from surmising that benzodiazepine caused plaintiff's condition. See

State v. Doriguzzi, 334 N.J. Super. 530, 538 (App. Div. 2000) ("A factfinder

should not be allowed to speculate without the assistance of expert testimony in

an area where the average person could not be expected to have sufficient

knowledge or experience."). Indeed, plaintiff's treating physician, who handled

defendant's care during his six-day hospitalization, discharged plaintiff with a

diagnosis that the cause of his condition was unknown.

      Lacking any expert testimony supporting its findings, the court relied on

the testimony of Dr. Vanam and Dr. Kramer to support its causation

determination, but we are convinced it was error to do so. Treating physicians

may properly opine as to the cause of a patient's injuries or condition based only

on their diagnoses and treatment of the patient.        Delvecchio v. Twp. of

Bridgewater, 224 N.J. 559, 577 (2016). "Because the determination of the cause

of a patient's illness is an essential part of diagnosis and treatment, a treating

physician may testify about the cause of a patient's disease or injury," even




                                                                          A-2621-16T4
                                       19
though not otherwise qualified as an expert.          Ibid. (quoting Stigliano v.

Connaught Labs., Inc., 140 N.J. 305, 314 (1995)).

      Dr. Vanam, who was aware of the positive urine test for benzodiazepine

and plaintiff's positive response to the administration of the antidote for

benzodiazepine, did not testify he diagnosed benzodiazepine as the cause of

plaintiff's critical medical condition. To the contrary, he first testified he never

determined the cause of plaintiff's condition and later stated only that

benzodiazepine was "one of the considerations" as a potential cause. And when

he was asked if he could offer an opinion as to the cause of plaintiff 's condition

to a reasonable degree of medical certainty, the court sustained plaintiff's

objection because Dr. Vanam had not been qualified as an expert. Thus, the

court's finding that Dr. Vanam testified the "probable cause" of plaintiff's

condition was benzodiazepine is wholly undermined by the record.

      Similarly, Dr. Kramer did not testify that he diagnosed defendant's

medical condition as having been caused by benzodiazepine or that he treated

plaintiff for any conditions caused by benzodiazepine. In fact, the toxicology

blood screen taken on May 27, 2016, one day before Dr. Kramer first saw

plaintiff, showed no benzodiazepine in plaintiff's system.          Moreover, the

voluminous medical records introduced at trial do not include any diagnosis


                                                                            A-2621-16T4
                                        20
related to benzodiazepine made by Dr. Kramer or any of the numerous other

physicians who were involved in plaintiff's care and treatment at the hospital.

      "The testimony of a treating physician is subject to an important

limitation. Unless the treating physician is retained and designated as an expert

witness, his or her testimony is limited to issues relevant to the diagnosis and

treatment of the individual patient." Delvecchio, 224 N.J. at 579; see also

Rubanick v. Witco Chem. Corp., 125 N.J. 421, 452 (1991) (observing that an

expert on the causes of cancer is more qualified to testify concerning the cause

of a patient's cancer than a medical doctor who treats the cancer after it

develops). Dr. Kramer's testimony exceeded that limitation here. He did not

testify as to any diagnosis he made or treatment he rendered based on

benzodiazepine being the cause of plaintiff's medical condition. Instead, he

testified only that he "believe[d]" defendant's medical condition was caused by

benzodiazepine. Dr. Kramer was never qualified or offered as an expert witness

and expressly disavowed being an expert, stating he was not qualified to answer

questions concerning the manner in which benzodiazepine would have been

processed in plaintiff's body.6     Moreover, his testimony constituted an


6
  When defense counsel asked if Dr. Kramer would expect benzodiazepine to
be present in the blood of someone who overdosed on the drug two days earlier,


                                                                         A-2621-16T4
                                      21
inadmissible net opinion because there is no evidence as to the standard he

applied in forming his belief. 7 Pomerantz Paper Corp. v. New Cmty. Corp., 207

N.J. 344, 373 (2011) ("[A] trial court may not rely on expert testimony that lacks

an appropriate factual foundation and fails to establish the existence of any

standard about which the expert testified.").

      We are convinced it was plain error, R. 2:10-2, for the court to allow Dr.

Kramer to testify as to his belief and for the court to rely on his testimony to

support its conclusion benzodiazepine caused plaintiff's critical medical

condition. We are therefore constrained to reverse the court's finding that

defendant committed the predicate act of assault. The court's conclusion is




plaintiff's counsel objected, asserting in part that Dr. Kramer was a "non-expert"
witness.
7
   Dr. Kramer's belief about the cause of plaintiff's medical condition was not
admissible as a differential diagnosis. See Creanga v. Jardal, 185 N.J. 345, 356
(2005) (explaining that "courts have used the term [differential diagnosis] . . . to
describe the process by which causes of the patient's condition are identified"
(quoting Clausen v. M/V New Carissa, 339 F.3d 1049, 1057 n.4 (9th Cir.
2003))). A differential diagnosis is admissible only if "[i]n rejecting alternative
hypotheses, the expert . . . use[s] 'scientific methods and procedures' and
justif[ies] an elimination on more than 'subjective beliefs or unsupported
speculation.'" Id. at 358 (quoting Claar v. Burlington N. R.R., 29 F.3d 499, 502
(9th Cir. 1994)). Dr. Kramer never testified he made a differential diagnosis
concerning the cause of plaintiff's condition and his testimony about the cause
is untethered to scientific methods or procedures and, as he said, constitutes only
his belief.
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founded on a finding of causation that is "so manifestly unsupported by . . .

competent, relevant and reasonably credible evidence as to offend the interests

of justice." Gnall, 222 N.J. at 428 (citation omitted). We therefore reverse the

domestic violence FRO and the court's order awarding plaintiff attorney's fees

pursuant to N.J.S.A. 2C:25-29(b)(4).

      Because we reverse the court's entry of the FRO, it is unnecessary to

address defendant's remaining claims concerning the judge's alleged lack of

impartiality during the trial, the court's drawing of a negative inference based

on defendant's refusal to testify and the court's calculation and award of

attorney's fees.

      Reversed.




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