SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5328-15T4

DIANA DASENT,

Plaintiff-Appellant,

v.

TODD KOPPEL, M.D., GARDEN 

STATE PAIN MANAGEMENT, and

CLIFTON SURGERY CENTER,

Defendants-Respondents.

______________________________

Submitted September 26, 2017 – Decided

Before Judges Fasciale and Moynihan.

On appeal from Superior Court of New Jersey, 

Law Division, Essex County, Docket No. L-3743-

14.

Rothenberg, Rubenstein, Berliner & Shinrod, 

LLC, attorneys for appellant (Alan Berliner, 

on the brief).

Rosenberg, Jacobs & Heller, P.C., attorneys 

for respondents Todd Koppel, M.D. and Garden 

State Pain Management (Scott T. Heller, of 

counsel and on the brief; Ronald J. Morgan, 

on the brief).

Farkas & Donohue, LLC, attorneys for 

respondent Clifton Surgery Center (Beth A. 

NOT FOR PUBLICATION WITHOUT THE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.

October 4, 2017
2 A-5328-15T4

Hardy, of counsel; Meredith T. Zaita, on the 

brief).

PER CURIAM 

In this medical malpractice case, plaintiff appeals from a 

July 18, 2016 order granting Todd Koppel, M.D., Garden State Pain 

Management (GSPM), and Clifton Surgery Center's (CSC) 

(collectively defendants) motions for involuntary dismissal 

pursuant to Rule 4:37-2(b). Judge Stephanie A. Mitterhoff entered 

the order and rendered an oral opinion dated July 11, 2016. We 

affirm.

Plaintiff sustained injuries from an automobile accident, and 

sought medical treatment from defendants. Dr. Koppel, a pain 

management specialist, performed epidural injections in 

plaintiff's cervical spine at the C4-5, C5-6 and C6-7 vertebrae. 

The doctor performed injections without complications. The 

discharge instructions informed plaintiff to use ice every few 

hours for twenty-minute intervals if she experienced discomfort 

in the area of the injections. 

Plaintiff went home and experienced discomfort in her right 

upper shoulder, which was not the location of the injections. She 

applied ice to her shoulder, fell asleep, and awakened the next 

day with blistering of the skin in the area she had iced. 

Approximately one week later, plaintiff went to the emergency room 
3 A-5328-15T4

and stated that she applied ice, fell asleep, and woke up the next 

morning with the blistering. 

Plaintiff filed this complaint alleging that the injections

burned her skin. Plaintiff's expert opined that the use of an

electrical grounding pad during the injection procedure caused the 

burning. It is undisputed that defendants did not use such a pad. 

Defendants filed a motion to bar the expert from testifying at 

trial and contended that the expert rendered a net opinion. A 

different judge agreed with defendants and granted defendants' 

motion.

1 

Judge Mitterhoff entered the order under review at the 

beginning of the trial. She acknowledged that plaintiff would be 

unable to proceed without an expert. The judge concluded that the 

doctrine of res ipsa loquitor was inapplicable, and that the 

conditional res ipsa loquitor charge did not apply. Consequently, 

she dismissed the case. 

On appeal, plaintiff argues that she does not need an expert 

in this medical malpractice case. Plaintiff asserts that the 

doctrine of res ipsa loquitor obviates the need to submit expert 

testimony. Plaintiff also contends that even if res ipsa loquitor 

 

1 Plaintiff did not appeal from the order barring the expert 

from testifying. 
4 A-5328-15T4

is inapplicable, then she was entitled to a conditional res ipsa 

loquitor charge. 

We begin by addressing our standard of review of the order 

dismissing plaintiff's complaint. Defendants moved for 

involuntary dismissal pursuant to Rule 4:37-2(b), providing in 

part that

[a]fter having completed the presentation of 

the evidence on all matters other than the

matter of damages . . . , the plaintiff shall 

so announce to the court, and thereupon the 

defendant, without waiving the right to offer 

evidence in the event the motion is not 

granted, may move for a dismissal of the 

action . . . on the ground that upon the facts 

and upon the law the plaintiff has shown no 

right to relief. . . . [S]uch motion shall 

be denied if the evidence, together with the 

legitimate inferences therefrom, could 

sustain a judgment in plaintiff's favor.

"If the court, 'accepting as true all the evidence which supports 

the position of the party defending against the motion and 

according him the benefit of all inferences which can reasonably 

and legitimately be deduced therefrom,' finds that 'reasonable 

minds could differ,' then 'the motion must be denied.'" ADS 

Assocs. Grp., Inc. v. Oritani Sav. Bank, 219 N.J. 496, 510-11 

(2014) (quoting Verdicchio v. Ricca, 179 N.J. 1, 30 (2004)). "An 

appellate court applies the same standard when it reviews a trial 

court's grant or denial of a Rule 4:37-2(b) motion for involuntary 
5 A-5328-15T4

dismissal." Id. at 511. Applying these standards, we conclude 

that Judge Mitterhoff properly granted the motion. 

To prevail in a medical malpractice action, "ordinarily, a 

plaintiff must present expert testimony establishing (1) the 

applicable standard of care; (2) a deviation from that standard 

of care; and (3) that the deviation proximately caused the injury." 

Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (internal quotation 

marks and citation omitted). Such "[e]xpert testimony is permitted 

to 'assist the trier of fact to understand the evidence or to 

determine a fact in issue.'" Ibid. (quoting N.J.R.E. 702). 

Further, an expert must be qualified to testify, meaning he or she 

must have the requisite "knowledge, skill, experience, training, 

or education . . . ." N.J.R.E. 702. Plaintiff's failure to 

present an expert is fatal to her case. 

The res ipsa loquitor doctrine permits an inference of 

negligence establishing a prima facie case of negligence. Jerista 

v. Murray, 185 N.J. 175, 191-92 (2005). To invoke the doctrine, 

a plaintiff must establish that "(a) the occurrence itself 

ordinarily bespeaks negligence; (b) the instrumentality [causing 

the injury] was within the defendant's exclusive control; and (c) 

there is no indication in the circumstances that the injury was 

the result of the plaintiff's own voluntary act or neglect." 

Szalontai v. Yazbo's Sports Cafe, 183 N.J. 386, 398 (2005)
6 A-5328-15T4

(alteration in original) (quoting Brown v. Racquet Club of 

Bricktown, 95 N.J. 280, 288 (1984)). Plaintiff failed to establish 

each prong. 

The first prong, that the occurrence ordinarily bespeaks 

negligence, is dependent on "whether based on common knowledge the 

balance of probabilities favors negligence, thus rendering fair 

the drawing of a res ipsa inference." Jerista, supra, 185 N.J.

at 199. Where, like here, "the res ipsa inference falls outside 

of the common knowledge of the factfinder and depends on 

scientific, technical, or other specialized knowledge . . . expert 

testimony [is] required." Ibid.; see also Buckelew v. Grossbard, 

87 N.J. 512, 527 (1981) (holding that "expert testimony to the 

effect that the medical community recognizes that an event does 

not ordinarily occur in the absence of negligence may afford a 

sufficient basis for the application of the doctrine of res ipsa 

loquitur"). We cannot say on the facts before us that plaintiff's 

burn to her shoulder, which appeared in a different location than 

the site of the injections, as a matter of common understanding,

raises an inference of negligence. 

Plaintiff cannot credibly argue that such an expert is 

unnecessary, especially because she unsuccessfully retained one 

who rendered a net opinion. Here, the res ipsa loquitor inference 

falls outside of the common knowledge of the factfinder. It is 
7 A-5328-15T4

undisputed that plaintiff's alleged burn occurred to her right 

upper shoulder. The doctor did not apply the injections to 

plaintiff's right upper shoulder. Whether the burn to the shoulder 

ordinarily bespeaks negligence, when the doctor injected

plaintiff's neck at the C4-5, C5-6 and C6-7 levels, is not a matter 

of common knowledge.

As to the second prong, that the instrumentality causing the 

injury was within the defendants' exclusive control, plaintiff is 

unable to describe without expert testimony what conduct and 

instrumentality caused the burn. Without expert testimony about 

the instrumentality, the jury would be speculating as to what 

caused the burn. Indeed, plaintiff did not have a theory as to 

what instrumentality caused the alleged injury. 

As to the third prong, that there is no indication that the 

injury was the result of the plaintiff's own voluntary act or 

neglect, plaintiff iced the area of the burn overnight. Applying 

ice overnight, rather than every twenty minutes for a few hours,

is inconsistent with the discharge instructions. Thus, there is 

a suggestion that the injury was the result of plaintiff's own 

voluntary act or neglect.

Under the facts of this case, a conditional res ipsa loquitor 

charge is unwarranted. Where a plaintiff's entitlement to the 

charge is dependent on the jury's resolution of a specific factual 
8 A-5328-15T4

dispute, a court should consider what has been referred to as a 

"'conditional res ipsa' instruction." Khan v. Singh, 200 N.J.

82, 98 (2009) (citing Roper v. Blumenfeld, 309 N.J. Super. 219, 

234 (App. Div. 1998)). The "conditional res ipsa" theory is 

premised on the principle "that there is a question of fact that, 

if the jury decides it in plaintiff's favor, would entitle 

plaintiff to the res ipsa charge." Id. at 103. 

[I]f the evidence presents a factual issue as 

to how an accident occurred, and the res ipsa 

loquitur doctrine would be applicable under 

only one version of the accident, the court 

should give a "conditional" res ipsa loquitur 

instruction, under which the jury is directed 

first to decide how the accident happened and 

to consider res ipsa loquitur only if it finds 

that the accident occurred in a manner which 

fits the doctrine.

[Id. at 98 (citation and internal quotation 

marks omitted).]

The charge should only be given if plaintiff's expert provides 

"the required basis needed for a conclusion that the injury[,] [if 

the jury agrees with plaintiff's version,] ordinarily bespeaks 

negligence or that the medical community recognizes the injury to 

be one that meets that defining criteria." Id. at 99 (citation 

and internal quotation marks omitted). Here, plaintiff is without 

an expert and is unable to make the requisite showing to warrant 

a conditional res ipsa loquitor charge. 
9 A-5328-15T4

Affirmed.