SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5537-18T2

MICHELLE HAMOR as 

executor of the ESTATE OF 

SADIE METZIGIAN, deceased,

and MICHELLE HAMOR,

individually,

Plaintiff-Appellant,

v.

SPRINGPOINT AT 

MONTGOMERY, d/b/a 

STONEBRIDGE AT 

MONTGOMERY, INC.,

Defendants-Respondents.

____________________________

Submitted November 30, 2020 – Decided

Before Judges Fasciale and Mayer.

On appeal from the Superior Court of New Jersey, Law 

Division, Mercer County, Docket No. L-0162-15.

Michelle Hamor, appellant pro se. 

Burns White, LLC, attorneys for respondents (Frantz J. 

Duncan and Ahsan A. Jafry, on the brief).

NOT FOR PUBLICATION WITHOUT THE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.

December 15, 2020
2

A-5537-18T2

PER CURIAM 

In this medical-malpractice case, plaintiffs appeal from two orders dated 

June 7, 2019 and June 21, 2019: the former granted Stark & Stark's motion to 

be relieved as plaintiffs' counsel, and the latter granted summary judgment to

Springpoint at Montgomery Inc., d/b/a Stonebridge at Montgomery, Inc. 

(defendants). We conclude the judge did not abuse his discretion by allowing 

counsel to withdraw, and that he correctly entered summary judgment because 

plaintiffs' expert gave a net opinion. We therefore affirm. 

On January 21, 2015, Sherri L. Warfel of Pellettieri Rabstein & Altman 

filed a complaint alleging defendants were negligent in rendering medical care 

to Sadie Metzigian in defendants' nursing home.1 Specifically, plaintiffs allege

that defendants provided substandard care, causing Metzigian to injure her back 

due to a fall. Defendants filed their answer on March 26, 2015. On September 

15, 2017, Warfel filed a substitution of attorney reflecting her new affiliation 

with the law firm Stark & Stark. 

On July 18, 2018, defendants filed a motion to strike plaintiffs' expert 

report, authored by Dr. Adam H. Karp, M.D., arguing that the opinion amounted 

1

 After Metzigian's passing, the judge entered a consent order allowing plaintiff 

Hamor to prosecute the case on behalf of Metzigian's estate. 
3

A-5537-18T2

to a net opinion. Plaintiffs filed opposition, and due to settlement negotiations,

defendants withdrew the motion. The parties were unable to reach a settlement. 

On April 18, 2019, defendants filed a motion for summary judgment, 

repeating their contention that plaintiffs' expert opinion constituted a net 

opinion. The return date for this motion was May 24, 2019. Discovery closed 

on April 29, 2019, and on April 30, 2019, the judge set a trial date for July 22, 

2019. 

About two weeks later, on May 16, 2019, plaintiffs' counsel filed a motion 

to be relieved as counsel, which had a return date of June 7, 2019. Plaintiffs 

opposed the motion to withdraw as counsel. Plaintiffs' counsel and defendants'

counsel agreed to adjourn the return date of defendants' motion for summary 

judgment to June 21, 2019, thus allowing plaintiffs counsel's motion to be heard 

first. 

On June 7, 2019, the judge granted plaintiffs' counsel's motion. That same 

day, the judge scheduled a case management conference for July 10, 2019. 

However, the judge sent this notice to plaintiffs' now-relieved counsel and 

defendants' counsel, rather than the pro se plaintiffs. There was no mention of 

the status of the pending unopposed motion for summary judgment or the 

upcoming trial date. 
4

A-5537-18T2

The judge attempted unsuccessfully to contact plaintiffs before 

adjudicating defendants' summary judgment motion. On June 21, 2019, the 

judge granted defendants' motion for summary judgment, concluding that

plaintiffs' expert rendered a net opinion. Four days later, the judge placed his

oral decision on the record, stating he likely would have adjourned defendants' 

motion if plaintiffs had answered his chamber's attempts to contact them. Since 

there was no response, however, he moved forward. The judge amplified his

opinion on August 13, 2019, which reiterated that plaintiffs failed to respond to 

his chamber's attempts at contacting them prior to his decision on defendants' 

motion. 

On appeal, plaintiffs raise the following points for this court's 

consideration: 

POINT I 

THE [JUDGE] ERRED WHEN [HE] PERMITTED 

PLAINTIFFS' COUNSEL TO WITHDRAW AS 

COUNSEL.

A. The [Judge] Should Not Have Permitted [Plaintiffs' 

Counsel] To Withdraw Under The Circumstances At 

Issue And With Grave Detriment To Plaintiffs Being 

Highly Probable, If Not Nearly Certain[.]

B. A Dispute Over Settlement Is Not A Proper Basis 

For An Attorney To Withdraw Representation From 

A Client In Any Event[.]
5

A-5537-18T2

C. Once Discovery Is Closed And A Trial Date Has 

Been Set, If The Client Does Not Consent An 

Attorney Should Only Be Permitted To Withdraw 

Where The Client's Actions Render The Attorney's 

Ability To Try The Case Unreasonably Difficult As 

Shown By Clear And Convincing Evidence, So The 

Client Is Not Left In The Lurch.

D. The [Judge] Erred In Resolving The Situation 

Between Plaintiffs And [Plaintiffs' Counsel] On The 

Basis Of Conflicting Certifications Without Holding 

A Plenary Hearing[.]

E. The [Judge] Failed To Provide Any Reasons To 

Justify [His] Ruling[.]

POINT II

PROCEDURALLY, THE [JUDGE] ERRED IN 

GRANTING DEFENDANTS['] MOTION FOR 

SUMMARY JUDGMENT TWO WEEKS AFTER 

[HE] HAD RENDERED PLAINTIFFS PRO SE[.]

POINT III 

SUBSTANTIVELY, THE [JUDGE] ERRED IN 

GRANTING DEFENDANTS['] MOTION FOR 

SUMMARY JUDGMENT BECAUSE PLAINTIFFS' 

EXPERT WAS HIGHLY QUALIFIED TO GIVE THE 

OPINIONS AT ISSUE AND BECAUSE THOSE 

OPINIONS WERE NOT NET OPINIONS[.]

A. A Motion Judge Is Still Required To Carefully 

Review A Motion For Summary Judgment Even If 

It Is Unopposed.
6

A-5537-18T2

B. The Arguments That Plaintiffs' Expert's Opinion 

Was A Net Opinion Are Utterly Specious And 

Devoid of Real Merit.

1. Plaintiffs' Expert Is Qualified To Be An 

Expert In A Geriatric Fall Occurring In A

Health-Care Facility. 

2. Plaintiffs' Expert Reviewed All Of The 

Relevant Medical Records And Was 

Therefore Able To Render A Reasonably 

Reliable Opinion About . . . Metzigian 

Without Examining Her.

3. Plaintiffs' Expert Did Not Render A Net 

Opinion And Gave The Whys And 

Wherefores For His Position In Detail[.]

4. Plaintiffs' Expert Witness Was Not 

Required To Cite To Authoritative 

Materials In Support Of His Expert 

Position.

5. Plaintiffs' Expert Witness Is Entitled To 

Opine About The Cause Of . . . Metzigian's 

Fracture Even If He Is Not A Radiologist 

Or Orthopedist.

6. Plaintiffs' Expert Witness Did Not Provide 

A Net Opinion On . . . Metzigian's Need To 

Be In A Higher-Level Care Facility Due To 

Her Fall And Back Fracture.

POINT IV

IF THE APPELLATE DIVISION REVERSES AND 

REINSTATES, A NEW JUDGE SHOULD BE 

ASSIGNED[.]
7

A-5537-18T2

I.

We begin by addressing plaintiffs' argument that the judge erred by

granting plaintiffs' counsel's motion to withdraw. They contend that the judge 

failed to hold a plenary hearing, that their counsel did not sufficiently explain 

the reason for withdrawal, and that the judge did not provide reasons for granting 

the motion.

We review a trial judge's determination on whether to allow the 

withdrawal of counsel for an abuse of discretion. See Jacobs v. Pendel, 98 N.J. 

Super. 252, 255 (App. Div. 1967). "An abuse of discretion 'arises when a 

decision is "made without a rational explanation, inexplicably departed from 

established policies, or rested on an impermissible basis."'" Castello v. Wohler, 

446 N.J. Super. 1, 24 (App. Div. 2016) (quoting Flagg v. Essex Cty. Prosecutor, 

171 N.J. 561, 571 (2002)). A trial judge has the discretion to grant a motion to 

be relieved as counsel, and he or she should consider the "proximity of the trial 

date and possibility for the client to obtain other representation." In re Simon, 

206 N.J. 306, 320 n.8 (2011) (quoting Pendel, 98 N.J. Super. at 255). 

Unless the client consents, counsel must give notice to the client and 

obtain leave of court to withdraw from a representation. R. 1:11-2(a)(2); see 

also RPC 1.16(c). That is the situation here. RPC 1.16(b) allows counsel to 
8

A-5537-18T2

withdraw when "the client insists upon taking action that the lawyer considers 

repugnant or with which the lawyer has a fundamental disagreement" or "other 

good cause for withdrawal exists." Where the relationship between counsel and 

client has deteriorated to the point where the lawyer and client are at total odds, 

withdrawal is often in the client's best interest. See Tax Auth., Inc. v. Jackson 

Hewitt, Inc., 377 N.J. Super. 493, 501 n.4 (App. Div. 2005), rev'd on other 

grounds, 187 N.J. 4 (2006).

Here, plaintiffs argue "a dispute over settlement is not a proper basis for 

an attorney to withdraw." But plaintiffs' counsel filed the motion because the 

attorney-client relationship deteriorated. In support of the motion to withdraw, 

plaintiffs' counsel provided two certifications. The first, authored by Warfel, 

described the deteriorated attorney-client relationship. For example, after the 

settlement conference in March 2018, Hamor and her husband

would address the same questions to me and would 

inevitably receive the same answers which seemed to 

irritate [Hamor] . . . . [T]he extent to which the 

inquiries were repeated and had to be repeatedly 

answered became unusual and nearly obsessive in 

nature . . . . 

Emails, phone calls, requests, and inquiries increased. 

Those emails became acrimonious, taunting, and 

derogatory.
9

A-5537-18T2

Warfel certified that she told plaintiffs it would be best if they find another 

attorney. Inevitably, because plaintiffs did not want to do so, Warfel's colleague 

in the firm, Denise Mariani, took over plaintiffs' case. Warfel also certified that 

plaintiffs continued this same behavior with Mariani. The second certification, 

authored by Mariani, also described the attorney-client relationship and 

emphasized that plaintiffs sent numerous emails which were "argumentative and 

some [were] personally insulting." 

Hamor provided a certification in opposition to the motion to withdraw. 

She certified she was a diligent client and admitted that there were several issues 

between her and counsel over the years—mostly communication and strategy 

issues. Hamor did not suggest she had a positive relationship with counsel, and 

importantly, she did not mention or dispute that she and her husband had sent 

"taunting" and "insulting" emails to plaintiffs' counsel. Contrary to plaintiffs' 

assertion, Hamor's certification does not "conflict" with plaintiffs' counsel's 

certifications.

The judge did not initially provide his reasons for granting the motion. 

However, in his amplification, the judge reiterated that he reviewed all moving 

papers on the motion, which were filed under seal, before entering the order. On 

this record, it is clear to us that the relationship had deteriorated and there was 
10 A-5537-18T2

an ample basis to grant the motion. After reviewing the certifications and the 

record, we conclude the judge did not abuse his discretion. 

II.

We now turn to whether the judge gave plaintiffs an opportunity to 

respond to defendants' motion for summary judgment. They argue that the judge 

failed to communicate with them, and that they were under the impression that 

defendants' motion would be dealt with at the case management conference 

scheduled for July 10, 2019. 

"The United States Supreme Court has recognized the due process 

guarantee expressed in the Fourteenth Amendment to the United States 

Constitution includes 'the requirement of "fundamental fairness"' in a legal 

proceeding." In re Adoption of Child ex rel. M.E.B., 444 N.J. Super. 83, 88 

(App. Div. 2016) (quoting Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 24 

(1981)); see also Doe v. Poritz, 142 N.J. 1, 99 (1995). The New Jersey Supreme 

Court has adopted these protections through Article I, Paragraph 1 of the State 

Constitution, "concluding it also '"protect[s] against injustice and, to that extent, 

protect[s] values like those encompassed by the principle[s] of due process[,] "' 

even though the provision 'does not expressly refer to the right to due process of 

law[.]'" M.E.B., 444 N.J. Super. at 88 (alterations in original) (quoting Crespo
11 A-5537-18T2

v. Crespo, 408 N.J. Super. 25, 34 (App. Div. 2009), aff'd o.b., 201 N.J. 207 

(2010)).

"A litigant in civil proceedings is entitled to a fair hearing, imbued with 

the protections of due process." Ibid. "In the context of litigation, fundamental 

due process demands a party be given adequate notice and a reasonable 

opportunity to be heard." Ibid.; see also Div. of Youth and Family Servs. v. 

M.Y.J.P., 360 N.J. Super. 426, 464 (App. Div. 2003). "Due process is not a 

fixed concept, however, but a flexible one that depends on the particular 

circumstances." Poritz, 142 N.J. at 106. Our Supreme Court has observed that 

"[f]undamentally, due process requires an opportunity to be heard at a 

meaningful time and in a meaningful manner." Ibid. 

Plaintiffs were given an opportunity to be heard. Here, counsel agreed 

to adjourn the return date of the summary judgment motion until the judge 

adjudicated plaintiffs' counsel's motion to withdraw. After the judge allowed 

counsel to withdraw, he notified pro se plaintiffs about the pending summary 

judgment motion. In his statement of reasons granting summary judgment, the 

judge said his chambers "reached out to . . . . plaintiff[s] on multiple occasions 

to see if they were going to oppose the motion or if they wanted an adjournment 

or wanted to come in for case management but [this court] has not heard any 
12 A-5537-18T2

response." Further, in his amplification of his decision, the judge repeated that 

"chambers reached out to plaintiff[s] on multiple occasions to see if plaintiff[s] 

wanted to file opposition [to the motion for summary judgment], wanted an 

adjournment or a case management conference. Since [this court] did not hear 

back from plaintiff[s], the unopposed motion was decided on June 21, 2019." 

The judge also stated "the record reflects that chambers reached out to 

plaintiff[s] on multiple occasions." On this record, we see no error. 

III.

Plaintiffs argue for the first time that defendants were not entitled to 

summary judgment because their expert did not render a net opinion. Thus, they 

now make the contention that they would have otherwise made had they opposed 

defendants' motion. Although plaintiffs did not oppose the motion, we consider 

their substantive assertions. Critical to such a consideration is whether the 

expert gave a net opinion. 

We review a ruling on a summary judgment motion under the same 

standard that governed the trial judge. Templo Fuente De Vida Corp. v. Nat'l 

Union Fire Ins. Co. of Pittsburgh, 224 N.J. 189, 199 (2016). Summary judgment 

is appropriate "if the pleadings, depositions, answers to interrogatories and 

admissions on file, together with the affidavits, if any, show that there is no 
13 A-5537-18T2

genuine issue as to any material fact challenged and that the moving party is 

entitled to a judgment or order as a matter of law." R. 4:46-2(c); Brill v. 

Guardian Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995). We "must accept 

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

against the motion and must accord him [or her] the benefit of all legitimate 

inferences which can be deduced therefrom[.]" Brill, 142 N.J. at 535 (first 

alteration in original) (quoting Lanzet v. Greenberg, 126 N.J. 168, 174 (1991)). 

"When . . . a trial [judge] is 'confronted with an evidence determination 

precedent to ruling on a summary judgment motion,' it 'squarely must address 

the evidence decision first.'" Townsend v. Pierre, 221 N.J. 36, 53 (2015) 

(quoting Estate of Hanges v. Metro. Prop. & Cas. Ins., 202 N.J. 369, 384-85 

(2010)). "[Our] review of the trial [judge]'s decisions proceeds in the same 

sequence, with the evidentiary issue resolved first, followed by the summary 

judgment determination of the trial [judge]." Ibid.

Generally, traditional negligence principles apply to a medicalmalpractice case. Verdicchio v. Ricca, 179 N.J. 1, 23 (2004). "In a medicalmalpractice action, the plaintiff has the burden of proving the relevant standard 

of care governing the defendant[], a deviation from that standard, an injury 

proximately caused by the deviation, and damages suffered from the 
14 A-5537-18T2

defendant['s] negligence." Smith v. Datla, 451 N.J. Super. 82, 102 (2017) 

(quoting Komlodi v. Picciano, 217 N.J. 387, 409 (2014)).

The admission or exclusion of expert testimony is within the trial judge's 

sound discretion. Pierre, 221 N.J. at 52 (citing State v. Berry, 140 N.J. 280, 293 

(1995)). "Absent a clear abuse of discretion, [we] will not interfere with the 

exercise of that discretion." Innes v. Marzano-Lesnevich, 435 N.J. Super. 198, 

247 (App. Div. 2014) (quoting Carey v. Lovett, 132 N.J. 44, 64 (1993)), aff'd as 

modified, 224 N.J. 584 (2016). Again, an abuse of discretion occurs when a 

decision is "made without a rational explanation, inexplicably departed from 

established policies, or rested on an impermissible basis." Flagg, 171 N.J. at 

571 (citation omitted). 

N.J.R.E. 702 governs the admissibility of expert testimony and states that: 

"[i]f scientific, technical, or other specialized knowledge will assist the trier of 

fact to understand the evidence or to determine a fact in issue, a witness qualified 

as an expert by knowledge, skill, experience, training, or education may testify 

thereto in the form of an opinion or otherwise." The rule imposes three 

requirements:

(1) the intended testimony must concern a subject 

matter that is beyond the ken of the average juror; (2) 

the field testified to must be at a state of the art such 

that an expert's testimony could be sufficiently reliable; 
15 A-5537-18T2

and (3) the witness must have sufficient expertise to 

offer the intended testimony. 

[Creanga v. Jardal, 185 N.J. 345, 355 (2005) (quoting 

Kemp ex rel. Wright v. State, 174 N.J. 412, 424 

(2002)).]

Additionally, N.J.R.E. 703 mandates that expert opinions be grounded in "facts 

or data derived from (1) the expert's personal observations, or (2) evidence 

admitted at the trial, or (3) data relied upon by the expert which is not necessarily 

admissible in evidence but which is the type of data normally relied upon by 

experts." Pierre, 221 N.J. at 53 (quoting Polzo v. County of Essex, 196 N.J. 569, 

583 (2008)).

"It is well-established that the trial [judge] 'must ensure that [a] proffered 

expert does not offer a mere net opinion.'" Satec, Inc. v. Hanover Ins. Grp., Inc., 

450 N.J. Super. 319, 330 (App. Div. 2017) (second alteration in original) 

(quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011)). 

"Such an opinion is inadmissible and 'insufficient to satisfy a plaintiff's burden 

on a motion for summary judgment.'" Ibid. (quoting Arroyo v. Durling Realty, 

LLC, 433 N.J. Super. 238, 244 (App. Div. 2013)). The net opinion rule "forbids 

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

factual evidence or other data." State v. Townsend, 186 N.J. 473, 494 (2006). 

A conclusion "based merely on unfounded speculation and unquantified 
16 A-5537-18T2

possibilities" is inadmissible. Pierre, 221 N.J. at 55 (quoting Grzanka v. Pfeifer, 

301 N.J. Super. 563, 580 (App. Div. 1997)). The rule requires that an expert 

provide "'the why and wherefore' that supports the opinion, 'rather than a mere 

conclusion.'" Borough of Saddle River v. 66 E. Allendale, LLC, 216 N.J. 115, 

144 (2013) (quoting Pomerantz Paper, 207 N.J. at 372). Moreover, the expert 

may not base his or her opinion solely on his or her own subjective standard. 

Pomerantz Paper, 207 N.J. at 373 (stating "if an expert cannot offer objective 

support for his . . . opinions, but testifies only to a view about a standard that is 

'personal,' it fails because it is a mere net opinion"). In other words, experts 

must "be able to identify the factual bases for their conclusions, explain their 

methodology, and demonstrate that both the factual bases and the methodology 

are reliable." Pierre, 221 N.J. at 55 (quoting Landrigan v. Celotex Corp., 127 

N.J. 404, 417 (1992)). However, experts may base their opinions on their 

personal experience and training. See Townsend, 186 N.J. at 493; see also

Rosenberg v. Tavorath, 352 N.J. Super. 385, 403 (App. Div. 2002) (emphasizing 

that "[e]vidential support for an expert opinion is not limited to treatises or any 

type of documentary support, but may include what the witness has learned from 

personal experience").
17 A-5537-18T2

First, we conclude the judge did not abuse his discretion in ruling that 

plaintiffs' expert, Dr. Karp, offered a net opinion as to the standard of care and 

causation. The judge held that "Dr. Karp is not qualified to render an opinion 

pertaining to a violation of the nursing standard of care or to the cause of the 

fracture." He based his decision on the fact that

Dr. Karp is an internal medicine and geriatric physician 

offering a causation opinion regarding the genesis of 

fractures which is distinct from his area of expertise. 

Dr. Karp has admitted at his deposition that the 

diagnosis of fractures are typically done by either a 

radiologist or an orthopedic physician and that he 

would generally not diagnose or treat fractures in his 

practice. He also testified that he did not review any of 

the radiology films.

The record supports the judge's conclusions.

For instance, in Dr. Karp's reports,2 he stated defendants breached their 

standard of care towards Metzigian, and this breach caused Metzigian's injury. 

However, as to both elements, Dr. Karp did not give the "why and wherefores" 

of his opinion; he simply provided a conclusory statement. Dr. Karp stated he 

based his conclusions 

2

 Dr. Karp's initial report is dated January 12, 2017. He then issued four 

supplemental reports dated February 13, 2018; March 29, 2018; September 9, 

2018; and September 12, 2018. Rather then add anything substantive, these 

supplemental reports continue to add to the list of documents he reviewed to 

render his report. He did not change his opinions or conclusions.
18 A-5537-18T2

in part from [his] experience as a Board Certified 

Internist and Geriatrician with more than [twenty] years 

experience. Additionally, as part of [his] position as 

the Medical Director of the Geriatric Fall Evaluation 

Unit for the Hospital for Joint Diseases in [New York], 

[he] often determine[s] what level of care is needed for 

patients at risk for falling. 

Dr. Karp admitted during his deposition that he is not an expert in nursing care, 

does not treat patients living in nursing homes or assisted living facilities, and

does not supervise nurses in nursing homes or assisted living facilities. 

As to causation, the record also shows Dr. Karp did not provide the whys 

and wherefores, nor did he have the experience or expertise to offer an opinion. 

At his deposition, Dr. Karp admitted he based his causation opinion on 

subjective evidence, specifically "the clinical aspects of the fracture, which 

means that [Metzigian] had no pain prior to the . . . fall. Then, after the fall, she 

had pain." He never physically examined Metzigian. Additionally, he admitted 

that a causation diagnosis is normally performed by an orthopedist or a 

radiologist, and that he did not actually look at Metzigian's films because he is 

not experienced in reading such. Therefore, the judge did not abuse his 

discretion in deeming Dr. Karp's causation opinion as a net opinion. Because 

plaintiffs provided no other expert reports, summary judgment was appropriate. 
19 A-5537-18T2

To the extent we have not addressed plaintiffs' remaining arguments, we 

conclude they are without sufficient merit to warrant discussion in a written 

opinion. R. 2:11-3(e)(1)(E).

Affirmed.