RECORD IMPOUNDED

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

NOT FOR PUBLICATION WITHOUT THE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.
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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. 
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A-2621-16T4

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 
4

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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, MerriamWebster Dictionary, https://www.merriam-webster.com/dictionary/etiology

(last visited Jan. 2, 2019).
5

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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. 
6

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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, 
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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. 
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A-2621-16T4

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 nonneurological 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, 
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A-2621-16T4

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 
10 A-2621-16T4

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").
11 A-2621-16T4

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. 
12 A-2621-16T4

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 
13 A-2621-16T4

"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 
14 A-2621-16T4

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 
15 A-2621-16T4

"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 
16 A-2621-16T4

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-
17 A-2621-16T4

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] 
18 A-2621-16T4

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 
19 A-2621-16T4

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 
20 A-2621-16T4

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 
21 A-2621-16T4

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, 
22 A-2621-16T4

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.
23 A-2621-16T4

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.