SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4196-18T1

MARTA LUKACS and

FRANK P. LUKACS,

Plaintiffs-Appellants,

v.

HIGHTSTOWN MEDICAL

ASSOCIATES, HANK R. LUBIN,

M.D. and VALERIE A. LAYNE, D.N.P.,

Defendants-Respondents.

__________________________________

Submitted November 2, 2020 – Decided

Before Judges Fasciale and Rothstadt.

On appeal from the Superior Court of New Jersey, Law 

Division, Middlesex County, Docket No. L-8095-13.

Frank P. Lukacs, appellant pro se.

Buckley Theroux Kline & Cooley, LLC, attorneys for 

respondents Hightstown Medical Associates and Hank 

R. Lubin, M.D. (William G. Theroux, of counsel; 

Sheila Murugan, on the brief).

PER CURIAM

NOT FOR PUBLICATION WITHOUT THE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.

January 13, 2021
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Plaintiff Frank Lukacs and his late wife, Marta Lukacs1filed a complaint 

for damages arising from what they alleged was the professional negligence of 

defendants Hightstown Medical Associates (Hightstown), Dr. Hank R. Lubin, 

and D.N.P. Valerie Layne, based upon their failure to properly diagnose and 

treat Marta2 with having Bordetella Pertussis (BP), commonly known as 

whooping cough. Plaintiff appeals from the trial judge's order granting 

defendants' Rule 4:40-1 motion made at the close of plaintiff's case, dismissing 

his complaint. The trial judge granted defendants' motion after finding that 

plaintiff failed to make a prima facie showing that defendants had deviated from 

a professional standard of care that caused Marta to suffer damages arising from 

injuries she allegedly sustained due to defendants' negligence.

On appeal, plaintiff challenges the trial judge's rulings regarding his 

attempt to admit into evidence forty-two publications he deemed to be "learned 

treatises," and about his request to read to the jury from his late wife's deposition

and answers to interrogatories. He also raises a constitutional challenge to the 

Patient First Act, N.J.S.A. 2A:53A-37 to -42.

1

 She died on July 13, 2018, about nine months before the trial in this matter. 

2

 We refer to the late Mrs. Lukacs by her first name to avoid any confusion 

arising from her and her husband's common last name.
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We affirm, as plaintiff failed to argue why the trial judge's order 

dismissing the complaint was erroneous and because we find no merit to 

plaintiff's contentions about the judge's evidentiary rulings, including those 

limiting the number of learned treatises that could be admitted, or his challenge 

to the Patients First Act.

I.

A.

Our review of a trial judge's decision on a motion for judgment is de novo, 

adhering to the same standard as that applied by the trial judge. Lechler v. 303 

Sunset Ave. Condo. Ass'n, 452 N.J. Super. 574, 582 (App. Div. 2017) (citing 

Frugis v. Bracigliano, 177 N.J. 250, 269 (2003)). In our review, we "accept[]

as true all the evidence which supports the position of the party defending 

against the motion and accord[ that party] the benefit of all inferences which can 

reasonably and legitimately be deduced therefrom, [and if] reasonable minds 

could differ [as to the outcome], the motion must be denied." Verdicchio v.

Ricca, 179 N.J. 1, 30 (2004). In reaching our conclusion we do not "consider 

'the worth, nature or extent (beyond a scintilla) of the evidence,' but only review 

'its existence, viewed most favorably to the party opposing the motion.'" 
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Lechler, 452 N.J. Super. at 582 (quoting Dolson v. Anastasia, 55 N.J. 2, 5-6 

(1969)).

B.

Applying that standard, we summarize the facts developed from the record 

as follows. On December 28, 2011, Marta presented to Hightstown with 

symptoms that included a nasal drip, scratchy throat, and dry cough. She was 

evaluated by Layne, who diagnosed her with having an upper respiratory 

infection. Layne directed that she continue taking over-the-counter medications,

as Marta indicated she had been, and provided Marta with a prescription for a 

cough suppressant. Marta went home but returned on January 3, 2012, still not 

feeling any better. 

At her January 3 visit, Marta was evaluated by Lubin, who also diagnosed 

her with an upper respiratory infection along with a cough and unspecified fever. 

Lubin believed plaintiff's illness could be viral. The doctor ordered bloodwork 

and a chest x-ray, the results of which were within normal parameters. The 

doctor concluded the infection was viral and did not prescribe any medication. 

Marta returned home that day.

On January 9, 2012, Marta was taken by ambulance to the emergency 

room at a hospital. There, she tested positive for BP and began treatment. Over 
5

A-4196-18T1

the course of the following months, Marta recovered from her whooping cough

but continued to suffer from a number of ailments she claimed had developed 

while she was dealing with the illness. Her recovery continued until May 30, 

2012, when a doctor noted that Marta was "well-nourished," "well-developed

and in no apparent distress." 

C.

Plaintiff and his late wife filed their complaint for negligence on 

December 20, 2013, seeking $60,000 in damages for medical expenses and lost 

wages stemming from defendants' failure to correctly diagnose and treat Marta. 

Defendants filed timely responses and the parties thereafter engaged in 

discovery.

During discovery, plaintiff retained three medical experts, Dr. Mark 

Levin, Dr. Raven Wentworth, and Dr. Harry Jackson, who all produced medical 

expert reports and who were each deposed. In their depositions, the doctors 

were presented with various publications and related materials that they verified 

were reliable materials regarding the diagnosis and treatment of patients. 

The trial was scheduled for April 8, 2019. Before trial, plaintiff filed 

several unsuccessful motions to have forty-two documents qualified as learned 

treatises so that they could be read to the jury without the need to call an expert 
6

A-4196-18T1

witness.3 Thereafter, on February 19, 2019, he filed another motion seeking a 

determination that the documents were admissible as learned treatises under 

N.J.R.E. 803(c)(18) based on his experts' verification of their reliability at their 

depositions. 

In denying the February 19 motion, the motion judge noted that it was 

clear that plaintiff did not intend to call expert witnesses at trial because of the 

high cost of doing so, and instead sought to use his experts' deposition testimony 

to establish that the forty-two articles were learned treatises. However, although 

the judge had requested the deposition transcripts of each of plaintiff's experts, 

plaintiff provided only an excerpt from Levin's deposition, in which the doctor

agreed that each treatise was reliable. 

The motion judge concluded that plaintiff's efforts to qualify the articles 

as learned treaties were insufficient. He ruled that in order to qualify the 

documents, plaintiff would need to have Levin appear at trial so the trial judge 

could make a determination at a Rule 104 hearing as to whether the materials 

constituted reliable authority and whether plaintiff would be able to read them 

to the jury without an expert testifying. Finally, the judge concluded that he 

3

 As it turned out, plaintiff did not originally intend to call any expert witnesses

at trial. Instead he planned on using their deposition testimony and reading to 

the jury from the alleged learned treatises to establish defendants' liability.
7

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could not qualify the documents as reliable authority by way of judicial notice

under N.J.R.E 201(b)(3), as also requested by plaintiff, because plaintiff had not 

provided the judge with enough information to make that determination, 

especially since plaintiff did not provide the forty-two articles. 

As contemplated by the motion judge, on April 4, 2019, prior to trial, the 

trial judge held a Rule 104 hearing to determine which, if any, of the forty-two 

articles, textbooks, webpages, and documents that plaintiff claimed Levin relied 

upon in reaching the conclusions to which he was going to testify could be 

qualified as "learned treatises." At the hearing, Levin testified that he relied on 

all of the forty-two articles in equal but different ways, and that he premised his 

stipulation to the articles' being learned treatises upon his application of the 

definition of a learned treatise provided to him by plaintiff.4 

4

 The exact language of the definition of a "learned treatise" given to Levin is 

unclear from the record. Levin testified that he premised his stipulation on the 

definition of a learned treatise "in the New Jersey State law," as well as in an 

"article by Brown." The Brown "article" presumably refers to an excerpt from 

Abbot S. Brown, New Jersey Medical Malpractice Law (2015) titled "Treatises."

The record contains a copy of the "article" with highlighted phrases including:

"stipulate that the treatises were 'authoritative,'" "standard texts," "a standard 

text book," "an expert to recognize text as a standard authority," "the type of 

material reasonably relied on by experts in the field," and "regarded by 

professionals in the field as trustworthy." Based on the fact that plaintiff's 

experts stipulated to the articles being "'authoritative,' 'standard texts' or 

'standard textbooks,' 'standard authority,' 'the type of material reasonably relied 
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A-4196-18T1

However, Levin also testified that the first of his two reports did not cite 

or refer to any learned treatise. Rather, the only authority expressly cited to,

was a webpage published by the Center for Disease Control (CDC) listing 

guidelines for the control of BP outbreaks. As to his second report, Levin 

confirmed that it did not include a reference to any of the forty-two proposed 

learned treatises. Nevertheless, on direct examination, Levin indicated that he 

used at least thirty-nine of the would-be treatises in confirming his opinions he 

based on his "general medical knowledge," even though his reports did not make 

any reference to them, other than the CDC guidelines. 

After considering Levin's testimony, the judge permitted plaintiff to 

utilize six of the forty-two documents at trial as learned treatises "based on 

[Levin]'s testimony in terms of . . . overlap . . . of different areas . . . that he 

identified." The trial judge made clear that experts could not simply identify 

documents as learned treatises, but they also had to explain why and how they 

relied upon them in formulating their opinions. Notwithstanding the fact that 

Levin failed to demonstrate how he relied on the documents in forming his 

on by experts in the field,' 'regarded by professionals in the field as trustworthy,'

'reliable authority,' and . . . 'representative of the type of research material relied 

upon by experts in the field,'" in their reports and depositions, it is reasonable to 

conclude that this was the definition provided by plaintiff.
9

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opinion, the trial judge agreed to admit the six treatises based on Levin's 

testimony regarding how each treatise related to his opinion with respect to 

"deviation from [the] standard of care, review of clinical information, causation 

and damages." 

The judge did not select all six articles that plaintiff would be permitted 

to use. Instead, the judge stated that plaintiff was permitted to use four specific 

articles and to select one more from a group of four others, and a last one from 

a group of six other documents. 

D.

At trial, Levin was the only expert to testify on plaintiff's behalf.5 Prior 

to his testimony, during plaintiff's qualification of Levin as an expert, the trial 

judge rejected a request by plaintiff to allow Levin to read to the jury from the 

expert reports issued by the two non-testifying experts, Wentworth and Jackson. 

5

 Before the beginning of the trial, it was established that Wentworth and 

Jackson would not be appearing on plaintiff's behalf. Wentworth was not being 

called and Jackson was ill. At the end of plaintiff's case, plaintiff rested. The 

next day, plaintiff asked the trial judge to allow Jackson to testify. Defendants 

objected claiming surprise and noting that plaintiff had rested, and they were 

prepared to move for dismissal and, if unsuccessful, to call their expert to testify. 

The judge denied plaintiff's request. 
10 A-4196-18T1

The judge stated Levin could not "sign I agree with someone else's report" and 

"get to use their report," and explained that "[h]e has to testify as to his opinion."

Levin testified that the symptoms Marta presented with upon her

December 28, 2011 visit to Hightstown should have been indicative of whooping 

cough—which a blood test or a swab could have been ordered to identify—and 

antibiotics should have been prescribed on that date. For that reason, Layne 

deviated from the accepted standard of care during Marta's visit to Hightstown 

on December 28, 2011. Levin also testified that Marta's clinical presentation 

during her January 3, 2012 visit to Hightstown was typical of BP and that 

antibiotic therapy should have been initiated on that date. For that reason, Lubin 

deviated from the accepted standard of care on January 3, 2012. He also testified 

that defendants' alleged negligence in failing to accurately diagnose Marta 

resulted in her illness lasting three to four days longer than if antibiotics had 

been timely administered upon her visits to Hightstown. 

However, when questioned about the prevalence of viral upper respiratory 

infections—which was both Layne's and Lubin's ultimate diagnosis of Marta's 

symptoms—Levin agreed that millions of patients develop such illnesses in the 

United States each year. He also agreed that viral upper respiratory infections 

were "one of the most common problems for which patients see primary care 
11 A-4196-18T1

physicians" and that "the majority of upper respiratory infections in the fall and 

winter are viral in nature." Moreover, based on the literature, it was Levin's

opinion that although there were over a million cases of BP in the United States 

in 2011, only twenty thousand were diagnosed. 

Reading from the New England Journal of Medicine, Levin testified that 

the risk factors of BP "included adolescent age, an absence of fever, and a 

prolonged duration of cough." On cross-examination, Levin agreed that, based 

on the New England Journal of Medicine, BP accounted for only 0.7% to 5.7% 

of episodes involving illnesses with symptoms such as the ones Marta had. He 

also agreed that between seventy-five and ninety percent of patients with a 

prolonged cough do not have BP. 

Levin further testified that upper respiratory infections can cause nasal 

congestion, nasal discharge, postnasal drip, scratchy throat, hoarseness, ear 

pressure, sinus pain and pressure, fever, and a productive cough. He also agreed 

that, while signs of BP can be non-specific to that illness, the symptoms that 

commonly accompany viral upper respiratory infections were the same 

symptoms Marta complained of upon her visits to Hightstown. 

As to his testimony about Lubin being required to administer antibiotics 

during Marta's January 3, 2012 visit to Hightstown, Levin conceded that a 
12 A-4196-18T1

patient who receives antibiotics unnecessarily can be exposed to preventable and 

sometimes serious health risks and that one potential risk is that prescribing 

antibiotics could result in a patient developing C-difficile—a potentially lifethreatening condition. Levin acknowledged that Marta had a history of 

developing C-difficile following antibiotic use. 

Further, Levin acknowledged that the CDC takes the position that 

antibiotics should only be prescribed when necessary in order to minimize the 

risk of antibiotic resistance and that physicians need to utilize their judgment in 

making a diagnosis. He further testified that individuals with BP usually recover 

without antibiotics. Levin also stated that antibiotics do not typically alter a 

patient's clinical course when given after the catarrhal phase which lasts several 

days to one week.

6

Levin also acknowledged that when Marta presented to Lubin at 

Hightstown, she stated that she had been suffering with her symptoms for two 

weeks. While Levin also stated that testing for BP when a patient presented 

6

 The catarrhal stage refers to the first five to ten days of BP's clinical course, 

during which the patient will have mild symptoms "indistinguishable from those 

of minor respiratory tract infections." Pertussis (Whooping Cough), Clinical 

Features, CDC, https://www.cdc.gov/pertussis/clinical/features.html (last 

visited Dec. 15, 2020).
13 A-4196-18T1

with symptoms as Marta did was required under the applicable standard of care, 

he conceded that "he [had] seen thousands of patients with a cough that lasted 

over five days," and that he personally has tested for BP only six times and 

diagnosed three cases of whooping cough in adults. 

According to Levin, had Marta been treated for BP upon her visit to 

Hightstown, she would not have developed a subsequent infection resulting in 

mycoplasma pneumonia.7 But, on cross-examination, Levin admitted that Marta 

had a history of mycoplasma pneumonia, and that not every patient who has BP 

will develop this infection. Further, he testified that he had not seen any record 

indicating that Marta had been diagnosed with any form of pneumonia among 

the medical records pertaining to the time period relevant to plaintiff's claims. 

Levin also conceded that Marta's medical records revealed that Lubin 

ordered a chest x-ray, which demonstrated that her lungs were clear. He further 

agreed that Lubin appropriately ordered a complete blood count, which 

ultimately showed that Marta's white blood cell count was within normal limits 

7

 This type of pneumonia is commonly referred to as "walking pneumonia" or 

"atypical pneumonia," and is caused by a specific type of bacteria that causes 

inflammation to the lungs but tends to be "milder than pneumonia caused by 

other germs." Mycoplasma Pneumonia Infections, CDC, 

https://www.cdc.gov/pneumonia/atypical/mycoplasma/index.html#:~:text=My

coplasma%20pneumoniae%20is%20a%20type,pneumonia%20caused%20by%

20other%20germs (last visited Dec. 15, 2020).
14 A-4196-18T1

and, based on this information, agreed that there was no medical evidence of 

infection at the time of Lubin's evaluation on January 3, 2012. 

Regarding Marta's later hospitalization, Levin testified that her blood 

cultures and sputum returned negative results, that the chest x-ray performed 

upon admission demonstrated no evidence of pneumonia, and that the CT scan 

demonstrated no acute abnormalities. He also agreed that, while she reported 

she felt as though she could not catch her breath, she was talking and conversing 

normally. 

Levin further agreed that there was no documentation in the nurse's 

assessment, nor was it reported to her, that Marta had complained of a whooping 

sound. However, when she was examined later that morning, a doctor noted 

hearing a whooping sound coming from Marta when she inspired prior to 

coughing. That observation was the only record of a medical provider 

discerning that symptom. 

As to damages, Levin testified that Marta suffered injuries as a result of 

defendants' alleged negligence because had Layne started antibiotics as of 

December 28, 2011, or had Lubin started antibiotics as of January 3, 2012, 

Marta's course would have been three to four days shorter. Furthermore, when 

he was asked to identify from plaintiff's answers to interrogatories which of 
15 A-4196-18T1

Marta's listed injuries were a result of defendants' failure to diagnose and treat 

her for BP, Levin stated her injuries included pericardial effusion, hiatal hernia, 

gastroesophageal reflux disease, urinary incontinence, and sleep irregularity. 

However, Levin could not "draw a straight line to each symptom's symptom," 

but stated that each of the alleged injuries were a consequence of defendants' 

failure to provide treatment. 

However, on cross-examination, Levin testified that he could not, within 

a reasonable degree of medical probability, say that any of the alleged injuries 

occurred within the last three to four days Marta was symptomatic despite his 

earlier claims that had Layne started antibiotics on December 28, 2011, or Lubin 

started antibiotics as of January 3, 2012, Marta's course would have been three 

to four days shorter. 

Levin was also unable to testify that, within a reasonable degree of 

medical probability, any of the alleged injuries could be causally related to 

defendants' alleged failure to treat Marta's BP. Similarly, with respect to 

testimony as to economic damages, Levin was unable to testify to a reasonable 

degree of medical probability that defendants' alleged failure to diagnose and 

treat Marta's BP led to plaintiff's claimed damages. 
16 A-4196-18T1

At the end of plaintiff's case, defendants moved for dismissal under Rule

4:40-1.8 After considering the parties' arguments, the trial judge granted the 

motion, finding that, based on Levin's testimony, plaintiff failed to establish that 

defendants had deviated from the applicable standard of care or that plaintiff's 

alleged damages could be connected to defendants' alleged negligence within a 

reasonable degree of medical probability. Without that evidence, plaintiff failed 

to make a prima facie case for medical malpractice. 

The judge found that, although Levin had adequately testified as to the 

standard of care applicable to Lubin and Layne, he had not connected the 

symptoms he observed in Marta's medical records sufficiently to establish a 

deviation from the applicable standard of care. The judge stated Levin was 

unable "to point to the presence or absence of certain clinical symptoms that he 

felt either Nurse Layne or Dr. Lubin failed to take appropriate action on." The 

judge concluded that although Levin suggested that defendants should have 

tested Marta for BP upon her two visits to Hightstown, he did not establish that 

defendants' diagnosis of upper respiratory infection deviated in any manner from 

professional norms. 

8

 At the point the trial judge considered defendants' motion to dismiss, the

record consisted of only Levin's testimony and Marta's medical records which 

plaintiff had submitted into evidence at the close of his case. 
17 A-4196-18T1

Also, according to the trial judge, Levin's testimony constituted a net 

opinion with respect to the issue of a causal link between plaintiff's claimed 

damages and defendants' alleged negligence. She found that even though Levin 

had testified that defendants' alleged negligence had extended Marta's symptoms 

anywhere from "three to five days," his testimony did not connect her symptoms 

or medical issues to a relevant three to five day period "[s]uch that a jury would 

be in a position to be able to make a determination relative to damages [from]

anything based in the record." Accordingly, the trial judge granted defendants' 

motion for dismissal with prejudice. This appeal followed.

II.

At the outset, we observe that plaintiff has not briefed in his merits brief 

any challenge to the trial judge's dismissal of his complaint under Rule 4:40-1, 

although he responds in his reply brief to defendants' contention that dismissal 

was properly granted.9 For that reason, we deem the issue to have been waived. 

9

 We also observe that despite making numerous legal arguments in his sixtyone-page merits brief, plaintiff mentions only one case in passing. Other than 

the one case, there is no legal support in the form of statutes, case law, or court 

rules identified or relied upon for any of plaintiff's arguments on appeal. See R.

2:6-2(a)(6); Hayling v. Hayling, 197 N.J. Super. 484, 488-89 (App. Div. 1984) 

(noting that under Rule 2:6-2(a)(5)—now 2:6-2(a)(6)—a party should provide 

"such parts of the record and such legal authorities as will be of help [to the 

court] in arriving at a proper determination.")
18 A-4196-18T1

See R. 2:6-2(a)(6); Gormley v. Wood-El, 218 N.J. 72, 95 n.8 (2014); N.J. Dep't 

of Env't Prot. v. Alloway Twp., 438 N.J. Super. 501, 505 n.2 (App. Div. 2015); 

Drinker Biddle & Reath, LLP v. N.J. Dep't of Law & Pub. Safety, 421 N.J. Super. 

489, 496 n.5 (App. Div. 2011) (claims not addressed in merits brief deemed 

abandoned, and could not properly be raised in a reply brief); see also Pressler 

& Verniero, Current N.J. Court Rules, comment 5 on R. 2:6-2 (2020). 

Even if he had, we discern no error in the complaint's dismissal 

substantially for the reasons articulated by the trial judge, in her oral decision of 

April 15, 2019, especially because no medical expert adequately testified to a 

deviation from the appropriate standard of care or that such deviation caused

any of Marta's alleged injuries. See Worthy v. Kennedy Health Sys., 446 N.J. 

Super. 71, 91 (App. Div. 2016) (stating the elements to be proven by a plaintiff 

in a malpractice action that include a "deviation from th[e] standard of care, 

and . . . that the deviation proximately caused the injury").

III.

Rather than briefing that dismissal was unwarranted, plaintiff instead 

contends that for twelve separate, but at times overlapping, reasons the trial 

judge's ruling regarding the admission of a limited number of plaintiff's 

proposed learned treatises was improper. Plaintiff insists that had he been 
19 A-4196-18T1

allowed to admit all forty-two documents into evidence, he would have been 

able to satisfy his burden of proof. We disagree.

We will not overturn a trial judge's evidentiary rulings unless it is clear 

that the judge palpably abused his or her discretion. State v. R.Y., 242 N.J. 48, 

64-65 (2020) (citing Brenman v. Demello, 191 N.J. 18, 31 (2007)). "[A]n abuse 

of discretion 'arises when a decision is made without a rational explanation, 

inexplicably departed from established policies, or rested on an impermissible 

basis.'" Id. at 65 (quoting Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571 

(2002)). See Est. of Hanges v. Metro. Prop. & Cas. Ins., 202 N.J. 369, 385 

(2010) (applying a de novo review to the greater issue of the trial court's decision 

on a motion for judgment only after applying the more deferential abuse of 

discretion standard to an evidentiary ruling). 

A publication is deemed a learned treatise "if it represents the type of 

material reasonably relied on by experts in the field." DaGraca v. Laing, 288 

N.J. Super. 292, 300 (App. Div. 1996) (quoting Jacober by Jacober v. St. Peter's 

Med. Ctr., 128 N.J. 475, 495 (1992)). The admissibility of learned treatises is 

addressed by N.J.R.E. 803(c)(18) as an exception to the rule against the 

admission of hearsay. Under the Rule, information from treatises may be 

admitted if it is
20 A-4196-18T1

[a] statement contained in a published treatise, 

periodical, or pamphlet, on a subject of history, 

medicine, or other science or art, if: 

(A) the statement is relied on by an expert witness 

on direct examination or called to the attention of the 

expert on cross-examination; and 

(B) the publication is established as a reliable 

authority by testimony or by judicial notice.

If admitted, the statement may not be received as 

an exhibit but may be read into evidence or, if graphics, 

shown to the jury.

[N.J.R.E. 803(c)(18).] 

"[T]he purpose of the learned-treatise exception is to allow statements 

from the treatise to be admitted as substantive evidence, with the caveat that the 

expert be on the stand to explain the studies he or she relies on and testify to the 

methodology or assist in its application." State v. Terrell, 452 N.J. Super. 226, 

257 (App. Div. 2016). Where there is doubt about a treatise's reliability, a trial 

judge should conduct a Rule 104 hearing either before or during trial, to 

determine whether the text qualifies as a learned treatise. Jacober, 128 N.J. at 

496. 

Contrary to the gist of all of plaintiff's contentions in this regard, learned 

treatises may not be qualified for admission under the Rule unless relied upon 

by an expert at trial during direct or cross-examination. Adamski v. Moss, 271 

N.J. Super. 513, 519-20 (App. Div. 1994). They cannot be qualified by an expert 
21 A-4196-18T1

who is called at trial to only establish the proposed treatise's qualification. The 

expert must be on the stand to "explain the studies he or she relies on and testify 

to the methodology or assist in its application." Terrell, 452 N.J. Super. at 257.

Here, then, neither the motion judge nor the trial judge abused their 

discretion by not permitting plaintiff to rely upon deposition transcripts to 

establish the admissibility of any of his proposed learned treatises. Similarly, it 

was not an abuse of the trial judge's discretion to limit plaintiff to six documents 

instead of allowing the admission of the forty-two documents he proposed. 

Contrary to plaintiff's argument, the judge did not arbitrarily select the 

documents. As described earlier, she selected four documents based on Levin's 

testimony and allowed plaintiff to select the other two of the six from two 

different groups of documents. The judge's limitation on the number of 

documents was consistent with the "expect[ation that trial courts will] exercise 

discretion to prevent juries from being inundated with learned treatises," 

Jacober, 128 N.J. at 496, and consistent with a court's obligation to limit expert 

testimony where its admission is unnecessary or confusing. See Terrell, 452 

N.J. Super. at 258-59.
22 A-4196-18T1

IV.

We next consider plaintiff's argument that the trial judge improperly 

barred him or Levin from reading to the jury from his late wife's deposition 

transcript or from her answers to interrogatories. Here again we find no merit 

to his contentions.

It is beyond cavil that portions of a deposition transcript from a witness 

who is unavailable at trial because of death may be read to the jury under Rule

4:16-1(c) "by any party for any purpose." So too under certain conditions can 

the unavailable witness's interrogatory answers be allowed. R. 4:17-8; See

Ramos v. Cmty. Coach, 229 N.J. Super. 452, 455-58 (App. Div. 1989).

Here, however, there is nothing in the record to establish that the trial 

judge barred plaintiff from using his late wife's deposition, and contrary to his 

assertions, the judge allowed Levin to read from Marta's answers to 

interrogatories during his testimony. Under these circumstances, plaintiff has 

failed to demonstrate how the trial judge abused her discretion in this regard.

V.

In his final point, plaintiff attempts to argue that New Jersey's Patients

First Act is unconstitutional. However, he does not describe the basis for his 

argument. Rather, plaintiff attempts to incorporate by reference arguments he 
23 A-4196-18T1

made to this court in an earlier motion for leave to appeal that we denied on 

March 20, 2017. See Lukacs v. Hightstown Med. Ctr., No. AM-0367-16 (App. 

Div. March 20, 2017). He also refers to a motion he allegedly made during trial 

about the Act and his need for additional discovery, without any discussion of 

any applicable law or legal basis for his contention. Under these circumstances, 

we are constrained to conclude plaintiff waived his contention about the Act 

because his arguments have not been properly briefed. R. 2:6-2(a)(6); N.J. Dep't 

of Env't Prot., 438 N.J. Super. at 505 n.2.

VI.

Finally, to the extent we have not specifically addressed any of plaintiff's

remaining arguments, we conclude they are without sufficient merit to warrant

discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.