SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3569-17T1

JOSHUA PIPERATO, by his Parents

and Natural Guardians, CHRISTOPHER

PIPERATO and ANA PIPERATO, and 

CHRISTOPHER PIPERATO, and ANA 

PIPERATO, Individually, 

Plaintiffs-Appellants,

v.

ALLISON LAM, M.D., JONATHAN 

GAMSS, M.D., STEPHANIE FOLTZER,

PA-C, ALEKSEY IKHELSON, PA-C, 

and EMERGENCY MEDICAL 

ASSOCIATES, 

Defendants, 

and

ALDRIN GUERRERO, RN, JAMIE

NIGRO, RN, JOYCE IANNUZZI, RN,

NADIA PORCARO, RN, and CLARA 

MAASS MEDICAL CENTER,

Defendants-Respondents.

__________________________________

Submitted January 30, 2019 - Decided 

NOT FOR PUBLICATION WITHOUT THE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.

August 23, 2019
2

A-3569-17T1

Before Judges Accurso, Vernoia and Moynihan.

On appeal from the Superior Court of New 

Jersey, Law Division, Hudson County, Docket 

No. L-2081-15.

Gair Gair Conason Rubinowitz Bloom Hershenhorn 

Steigman & MacKauf, attorneys for appellants 

(Christopher J. Donadio, on the briefs).

De Cotiis Fitzpatrick Cole & Giblin LLP, attorneys for 

respondents (Catherine Joan Flynn, of counsel and on 

the brief; Stefanie L. Rokosz, on the brief).

PER CURIAM

Plaintiffs Christopher and Ana Piperato on behalf of themselves and 

their minor son Joshua, appeal from the entry of summary judgment dismissing 

their medical malpractice complaint against defendant registered nurses Aldrin 

Guerrero, Jamie Nigro, Joyce Iannuzzi, and Nadia Porcaro and their employer 

Clara Maass Medical Center and the denial of their motion for 

reconsideration.

1

 Because we conclude plaintiffs established a prima facie 

case of professional negligence on the summary judgment motion, we reverse.

Although defendants failed to file a statement of material facts in 

accordance with Rule 4:46-2(a), the following essential facts appear 

 

1

 Plaintiffs settled their claims against defendant doctors and physician 

assistants and their employer Emergency Medical Associates and those parties 

are not participants in this appeal.
3

A-3569-17T1

undisputed. When Joshua was seven years old, he caught his foot in a 

trampoline. His father took him to an urgent care center the next day. The 

doctor there diagnosed Joshua with a sprained ankle. 

When Joshua's pain persisted, his mother the following day took him to 

the emergency department at Clara Maass for treatment. Although Nurse 

Nadia Porcaro testified at deposition that Joshua should have received a 

focused assessment, she was on duty that day and did not perform one. She

could not explain why. She did not examine Joshua's foot or test pulses or 

sensations in his foot or leg. Joshua was evaluated by a physician assistant, 

who ordered an x-ray that showed no fracture or dislocation. Joshua was 

diagnosed with a foot sprain and discharged. 

As Joshua's pain persisted over the next two days, his parents took him 

back to the emergency department at Clara Maass two more times. When his 

father took him three days after his injury, the day after their first visit, he 

reported that Joshua had been restless and in pain the night before and had run 

a fever. Nurse Joyce Iannuzzi, the triage nurse, although noting Joshua 

presented with "foot pain — swelling," failed to assess his foot. She did not 

take Joshua's blood pressure, although she noted his heart rate of 160 beats a 
4

A-3569-17T1

minute was elevated. According to one of plaintiffs' experts, the normal heart 

rate for a seven-year-old is between 80 and 120 beats a minute. 

Nurse Porcaro saw Joshua again during that visit, and again failed to 

examine his foot or ankle, check pulses or sensations in his leg or foot, or 

assess his skin temperature or color. Joshua was again evaluated by the same 

physician assistant, who applied a splint to Joshua's leg and provided him with 

crutches. Joshua was again discharged with a diagnosis of foot sprain. 

That night, Joshua's mother testified Joshua was awake the entire night, 

crying and in a great deal of pain, not allayed by pain medication. At 3 a.m., 

Joshua's father took him back to the emergency department at Clara Maass. 

Nurse Jamie Nigro was the triage nurse on duty. Nurse Nigro took some of 

Joshua's vital signs but did not examine his foot, check pulses in his foot or 

leg, or assess his pain level. Nurse Aldrin Guerrero also examined Joshua that 

morning. Nurse Guerrero completed a pain assessment, recording Joshua's 

pain level at six on a scale of ten. Despite performing gastrointestinal, 

genitourinary, integumentary, neurological, and respiratory assessments, Nurse

Guerrero could not recall performing, and there are no notes in the medical 

records indicating, a skin or sensation assessment or a pulse check of Joshua's 

lower leg. 
5

A-3569-17T1

A different physician assistant examined Joshua on that visit. 

Performing a physical exam, she noted tenderness to the left foot, mild 

swelling, and ecchymosis (bruising) of the lateral and medial aspects of the left 

foot. The physician assistant reapplied the splint and a prescription was 

written for Motrin for pain as needed. Joshua was discharged around 6 a.m.

with a diagnosis of foot sprain.

That morning, Joshua's mother took him with her to work. When he 

went to use the bathroom, she saw his leg was purple and he stopped 

responding to her. She called Joshua's pediatrician, who told her to take 

Joshua immediately to Hackensack Medical Center. On arrival at 12:30 p.m., 

Joshua was noted to be pale, fussy and uncomfortable. His left leg was 

cyanotic and cold to touch. A Doppler signal showed no pulses in his lower 

left extremity and an ultrasound revealed deep vein thrombosis. 

Joshua was diagnosed with severe compartment syndrome and taken into 

surgery for a fasciotomy. Following surgery, Joshua developed septic shock 

and went into respiratory failure requiring ventilator support. That led to a 

lifesaving, below-knee amputation. When a free flap repair was unsuccessful, 

Joshua's leg was amputated above his knee.
6

A-3569-17T1

Plaintiffs served several expert reports in the course of discovery

directed to the substandard care Joshua received from the nurses, physician 

assistants and doctors at Clara Maass responsible for his treatment. Among 

those reports was one rendered by a registered nurse, Jamie Byerly, that 

defendant nurses deviated from the accepted standards of emergency nursing 

practice by failing to properly assess and document findings of Joshua's 

complaint of lower extremity pain and swelling and failing to communicate the 

findings of that assessment to the physician or physician assistant. 

In order to meet their burden of demonstrating those deviations harmed 

Joshua and contributed to the resulting amputation of his leg, plaintiffs served 

the report of an expert in emergency medicine, Diane Sixsmith, M.D., board 

certified in internal medicine and emergency medicine, who opined that "[t]he 

nursing assessments performed by Nurse Iannuzzi, Nurse Nigro, Nurse 

Porcaro, and Nurse Guerrero were deficient and incomplete and were a 

contributing factor to the misdiagnosis of Joshua Piperato." 

In addition to providing a causation opinion with regard to the nurses, 

Dr. Sixsmith also rendered an opinion that defendant physician assistants 

deviated from the standard of care, as did defendant emergency room 

physicians who supervised them and co-signed their records. Dr. Sixsmith 
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A-3569-17T1

further opined that defendant Emergency Medical Associates, which employed

both the physicians and the physician assistants, deviated from accepted 

standards by failing to ensure the proficiency of one of the physician 

assistants.

Plaintiffs served a report by a second expert in emergency medicine, Jill 

M. Baren, M.D., who concluded the physician assistants deviated significantly 

from the standard of care by, among other things, failing to ensure that the 

nursing assessments were adequately performed. Dr. Baren opined that the 

failure of the physician assistants and supervising physicians to ensure that 

each and every necessary nursing assessment was adequately completed 

contributed to the patient's ultimate outcome. 

Plaintiffs served several other reports, directed to both deviation and 

causation, focused on the actions of the physician assistants and their 

supervising doctors. The number of reports was made necessary by what 

followed from Joshua's injury. As Dr. Alik Farber, plaintiff's expert vascular 

surgeon, explained:

It is likely that Joshua Piperato suffered a left 

leg injury that likely had a crush component and 

developed a compartment syndrome that was not 

tested for and diagnosed in a timely fashion at the 

[Clara Maass emergency department] on multiple 

occasions. Additionally he likely developed an 
8

A-3569-17T1

infection of his compromised muscle with Group A 

Strep that led to further and progressive tissue injury, 

septic shock and systemic inflammatory response 

syndrome. Deep venous thrombosis (DVT) likely 

occurred in a secondary fashion

Dr. Farber opined that had Joshua been tested "for compartment 

syndrome and/or infection, muscle enzymes etc., such tests would have been 

abnormal prompting further diagnostic workup and medical specialty 

consultation." In his opinion, had the appropriate testing been done, Joshua 

would have been correctly diagnosed on his second visit to the emergency 

department at Clara Maass at "a point in time where there was much less tissue 

affected by the compartment syndrome and/or infection." 

In Dr. Farber's view, had Joshua been correctly diagnosed on that second

visit, the deep vein thrombosis likely would not have occurred and amputation 

would have been avoided. Noting the dramatic change in Joshua's leg in the 

hours between his leaving Clara Maass the last time and his appearance at 

Hackensack Medical Center, Dr. Farber further opined that a correct diagnosis,

even as late as Joshua's last visit to Clara Maass, would have likely saved his 

leg.

To specifically address the contribution of the infection Joshua suffered 

to the loss of his leg, plaintiffs served an expert report by an internist and 
9

A-3569-17T1

specialist in infectious diseases, Angelo Scotti, M.D., who opined that had 

Joshua's compartment syndrome been diagnosed and treated in a timely 

fashion, the deep vein thrombosis and secondary infection that led to the 

amputation would have been avoided. He further opined that even without a 

compartment syndrome diagnosis, it is likely appropriate laboratory testing 

would have yielded abnormal results demonstrating early systemic infection. 

Dr. Scotti opined that had Clara Maass initiated anti-microbial therapy on 

Joshua's second or even third visit, when he "had a much lighter bacterial

burden," the infection would likely have been successfully treated and 

amputation avoided.

After the close of discovery, the settlement of plaintiffs' claims against 

the doctors, the physician assistants and their employer, and an eleventh hour

adjournment of the fourth — and agreed upon — trial date by defendant nurses 

and Clara Maass, they moved for summary judgment asserting plaintiffs failed 

to present any evidence that the negligent care and treatment allegedly 

provided by defendant nurses was a proximate cause of Joshua's injuries. 

Plaintiffs opposed the motion, relying on Dr. Sixsmith's report that 

assessments of Joshua by defendant nurses "were deficient and incomplete and 

were a contributing factor of the misdiagnosis of Joshua Piperato." 
10 A-3569-17T1

Plaintiffs also submitted an affidavit from Dr. Sixsmith in opposition to 

the motion, stating that she agreed with Nurse Byerly's assessment that 

defendant nurses deviated from the standard of care. As she is not a nurse, 

however, Dr. Sixsmith explained she would not typically testify at trial to 

those deviations. Dr. Sixsmith stated her testimony at trial would focus on the 

"medical significance [of those deviations] based on [her] more than 40 years 

of experience as an emergency room physician." 

Focusing on the role of nursing assessments in patient care, Dr. Sixsmith

opined that such assessments not only provide important information to 

physicians handling the immediate care of the patient, but also to those 

reviewing the records of that care. She explained that assessments of an 

injured limb are critical to diagnosing compartment syndrome and deep vein 

thrombosis, including skin assessments, sensation assessments, capillary refill 

assessments, pulse assessments and pain assessments. "Compartment 

syndrome and [deep vein thrombosis] can cause changes in all of these 

assessments, that is why nursing assessments over time in the emergency can 

play a significant role in such a diagnosis." Dr. Sixsmith averred that 

"[c]ertainly, here the failure of the nurses to properly assess played a 

substantial role in the failure to diagnose."
11 A-3569-17T1

Dr. Sixsmith noted the undisputed fact that Joshua "was never seen by a 

physician" at Clara Maass, nor was one consulted. She opined:

Incredibly, this was true even though this child 

presented to the ER on three consecutive days with 

worsening complaints as reported by the family, 

including things like unrelenting pain, fever, and 

crying all night. A child with a sprain should be 

getting better, not worse. 

. . . . 

The nurses at issue failed to assess pain. These 

failures . . . again caused harm to the patient. In 

compartment syndrome cases, pain assessments are 

very important, as typically, the first sign of 

compartment syndrome is pain out of proportion to the 

injury.

Dr. Sixsmith opined that had a physician been consulted on this case, the 

correct diagnosis would have been made. She opined that the nurses' failure to 

have a physician see Joshua was a "substantial cause of the misdiagnosis." 

Plaintiffs' theory as to the nurses was clear; had they performed proper 

assessments and documented the pain and swelling in Joshua's leg, the

physician assistants and their physician supervisors would have been alerted to 

undertake further inquiry to determine the cause of the boy's pain. Plaintiffs 

contended their failure to do so contributed to the amputation of Joshua's leg. 

To that end, they relied on the deposition testimony of one of the defendant 
12 A-3569-17T1

doctors responsible for reviewing and signing off on Joshua's chart, Dr. 

Jonathan Gamss. He testified that had there been documentation "in the chart 

that supported pain out of proportion to exam, so then there probably would 

have been a more involved workup that would be taking place of the patient," 

including "[h]aving an orthopedist involved, doing some other assessments of 

the neurovascular supply." 

Plaintiffs argued that their expert on the nursing standard of care, Nurse 

Byerly, opined that defendant nurses failed to properly assess and document

Joshua's complaint "of lower extremity pain and swelling" meaning "they 

could not communicate their assessment findings to the physician or 

[physician assistant]." In addition to their reliance on Dr. Sixsmith's opinion, 

plaintiffs also relied on Dr. Baren's opinion that the failure of the physician 

assistants and supervising doctors to ensure the necessary nursing assessments

were adequately completed contributed to the resulting amputation of Joshua's

leg. Finally, plaintiffs also submitted and relied on the reports of Drs. Farber

and Scotti to the effect that had appropriate tests been done timely, a correct 

diagnosis and treatment would have followed and amputation would have been 

avoided.
13 A-3569-17T1

Defendants objected to plaintiffs' submission of Dr. Sixsmith's affidavit 

on the motion. They contended it was at odds with her deposition testimony 

and served after the close of discovery. Specifically, they relied on the 

following excerpt from Dr. Sixsmith's deposition:

Q: And you're not offering any opinions as to

causation in this case, are you?

A: No.

Q: I'm right, you're not—

A: I'm not.

Defendants contended Dr. Sixsmith's was a sham affidavit offered to counter 

plaintiffs' failure to offer expert opinion that the negligent care allegedly 

provided by defendant nurses was a proximate cause of Joshua's injuries. See

R. 4:46-5(b).

The trial court judge granted the motion. The judge found plaintiffs' 

"main report" from Dr. Byerly "had several pages with regard to the standard 

of care for each one of the nurses who had seen Joshua at the hospital." But 

"[w]hat this report did not do is give any opinion with regard to causation of 

the ultimate injury or damage" Joshua suffered. The judge refused to consider 

Dr. Sixsmith's affidavit because it was supplied months after the discovery end 

date and "was in contradiction not only to her report, but specific testimony in 
14 A-3569-17T1

her deposition where . . . she indicated that she was not providing an opinion 

on causation." 

The judge found Dr. Farber's opinion "does not begin to address . . . the 

alleged negligence of the nurses. It doesn't make reference to their actions, it 

doesn't give us an indication as to why the things he did suggest would have 

prevented this ultimate amputation." The judge found Dr. Farber "just 

provides that in broad strokes and clearly is . . . talking about either the 

[physician assistants] or the doctors who would be ordering that type of 

diagnostic work-up."

Although satisfied plaintiffs established on the motion that defendant 

nurses deviated from the standard of care, the judge noted plaintiffs needed to 

have an expert "opine that the actions of these nurses resulted in the ultimate 

damage and/or injury" Joshua sustained. The judge concluded "after 

reviewing all of the reports and going through Dr. Farber's deposition 

testimony trying to essentially bridge, for lack of terms, his opinion to Ms. 

Byerly's" she could not find plaintiffs had offered an opinion on causation.

Plaintiffs moved for reconsideration arguing three points. First, as to the 

nurses, plaintiffs argued Dr. Sixsmith offered a causation opinion as to the 

nurses in her report and reiterated it at her deposition, and that defendants' 
15 A-3569-17T1

argument to the contrary relied on taking a snippet of the deposition out of 

context. Second, plaintiffs argued they established causation even without Dr. 

Sixsmith's opinion because the nurses failed to appreciate or document that 

Joshua was experiencing pain out of proportion to injury. Dr. Gamss testified 

that had pain out of proportion to injury been documented, there likely would 

have been "a more involved workup," which Drs. Farber and Scotti opined 

would have led to Joshua being properly diagnosed and treated, thus saving his 

leg.

Third, as to the hospital, plaintiffs argued it was not entitled to summary 

judgment even if the complaint against the nurses was dismissed. They 

claimed the judge overlooked an existing order entered by another judge

dismissing plaintiffs' direct claims against Clara Maass, but specifically 

preserving "[t]he claims asserted against Clara Maass Medical Center under 

apparent authority" for the negligence of the settling defendant physicians and 

physician assistants. Specifically, plaintiffs contended Clara Maass was 

vicariously liable for the negligence of the physicians and physician assistants 

because plaintiffs accepted care for Joshua in the reasonable belief that those

defendants were rendering treatment on behalf of Clara Maass even though 

they were actually employed by Emergency Medical Associates. See Estate of 
16 A-3569-17T1

Cordero, ex rel. Cordero v. Christ Hosp., 403 N.J. Super. 306, 310 (App. Div. 

2008).

Defendants opposed the motion. Regarding the nurses, they argued 

plaintiffs were only rehashing the arguments they made in opposition to 

summary judgment. Regarding the hospital, defendants argued first that the 

prior order was not addressed to its vicarious liability for the settling defendant 

doctors and physician assistants, but only to its nurse employees. 

Alternatively, and although not having addressed the issue on their motion, 

defendants argued that plaintiffs executed a "General Consent: Inpatient, 

Outpatient & Emergency Department," putting them on notice that the 

physician and physician's assistants were not employees of the hospital, and 

thus that all of plaintiffs' claims against the hospital, including those based on

apparent authority, were properly dismissed.

The judge denied the motion for reconsideration. In a written opinion, 

the judge ruled that plaintiffs had "failed to present evidence" relative to their 

apparent authority claim. Specifically, the judge found that although plaintiffs 

on reconsideration asserted "there was an 'abundance of testimony'" from 

Joshua's parents and grandmother that they believed the health care providers 

they encountered at Clara Maass were employees of the hospital, they merely 
17 A-3569-17T1

appended the deposition transcripts of those witnesses without specific citation 

to the portions supporting their contention. 

The judge further noted that counsel offered nothing more at oral 

argument as to how plaintiffs "were led to believe that the treating nurses, 

physician assistants or doctors were Clara Maass employees." The judge 

wrote, "[t]o the contrary, evidence was presented that the plaintiff's mother had 

executed a document clearly outlining that the treating physicians were not 

employees of Clara Maass," and "that the treating physicians wore clothing 

that would identify the doctors as [Emergency Medical Associates] 

employees." The judge concluded that for those reasons "and arguments in 

defendant's brief," the claim of apparent authority fails.2

As to the nurses, the judge wrote "it was necessary for an expert to opine 

not only [on] the deviation of the nurses but also provide an opinion relating

their alleged deviation to amputation of [Joshua's] leg." The judge declined 

 

2

 As we observed in Vartenissian v. Food Haulers, Inc., 193 N.J. Super. 603, 

612 (App. Div. 1984), while it is not always fatal for a judge to rely on the 

reasons advanced by a party in deciding a motion, it is, of course "preferable 

that . . . a judge states his or her reasons with particularity." Rule 1:7-4 

requires the court to "find the facts and state its conclusions of law . . . on 

every motion decided by a written order that is appealable as of right." 

Reviewing courts "should not be forced to examine the moving papers and 

attempt to glean the judge's reasons," Vartenissian, 193 N.J. Super. at 612, for 

orders terminating litigation in light of the requirements of Rule 1:7-4. 
18 A-3569-17T1

plaintiffs' suggestion "that the court should chain link the various opinions into 

a complete opinion that the nurses were negligent and a proximate cause of the 

ultimate injury," as plaintiff did not "provide any legal authority in this 

regard." The court concluded "[a]s no expert opined directly to the relation of 

the nursing deviations and the proximate cause of the amputation, the 

plaintiff's claims against the nursing defendants could not be proven." This 

appeal followed.

We review summary judgment using the same standard that governs the 

trial court. Murray v. Plainfield Rescue Squad, 210 N.J. 581, 584 (2012). As 

the parties essentially agreed on the material facts for purposes of the motion, 

our task is limited to determining whether the trial court's ruling on the law 

was correct. See Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 

162, 167 (App. Div. 1998). Because a trial court does not enjoy the advantage 

in discerning the law that it does in discerning the facts, a reviewing court 

owes no special deference to the "trial court's interpretation of the law and the 

legal consequences that flow from established facts." Manalapan Realty, L.P. 

v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995). 

Our function, like that of the trial judge, is not "to weigh the evidence 

and determine the truth of the matter but to determine whether there is a 
19 A-3569-17T1

genuine issue for trial." Petro-Lubricant Testing Labs., Inc. v. Adelman, 233 

N.J. 236, 256 (2018) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 

520, 540 (1995)). Only "when the evidence 'is so one-sided that one party 

must prevail as a matter of law'" should a court enter an order for summary 

judgment. Brill, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 

477 U.S. 242, 252 (1986)).

Having reviewed the evidence on the motion, we are satisfied summary 

judgment should not have been granted on this record. To the extent the trial 

court's opinions can be read to suggest plaintiffs needed to present a single 

report as to the alleged negligence of the nurses addressing both deviation and 

causation, we disagree. 

As was pointed out by plaintiffs' counsel on the motion, as is typical in 

nursing malpractice claims, their nursing expert, Byerly, a registered nurse, 

although well-qualified to render an opinion on the nursing standard of care, 

was not qualified to render a medical opinion that the deviations she identified 

contributed to the amputation of Joshua's leg. See Sanzari v. Rosenfeld, 34 

N.J. 128, 136 (1961). For expert opinion on causation, plaintiffs relied on Dr. 
20 A-3569-17T1

Sixsmith, a physician board certified in both emergency medicine and internal 

medicine.3

Contrary to the judge's finding on summary judgment that Dr. Sixsmith

"in neither her written report or in her deposition . . . address[ed] proximate 

cause or causation between the nurse's treatment and the ultimate injury that 

Joshua sustained," Dr. Sixsmith actually did both. In her report, Sixsmith 

plainly stated, "[t]he nursing assessments performed by Nurse Iannuzzi, Nurse 

Nigro, Nurse Porcaro, and Nurse Guerrero were deficient and incomplete and 

were a contributing factor to the misdiagnosis of Joshua Piperato."

At Sixsmith's deposition, counsel for defendant nurses queried Dr. 

Sixsmith specifically about that opinion. After confirming with the doctor that

she was not offering any opinion on standard of care but would instead defer to 

the "nursing expert in this case that plaintiff has retained with respect to 

standards of care applicable to nurses," counsel asked Sixsmith about the 

causation opinion she was offering as to the nurses. 

 

3

 Because we conclude the court erred in excluding Dr. Sixsmith's affidavit on 

the motion, we need not consider whether Dr. Gamss's testimony in 

conjunction with plaintiffs' other experts was sufficient to get plaintiffs to a 

jury on causation. We certainly see no impediment to plaintiffs pursuing those 

proofs in addition to presenting Dr. Sixsmith's testimony as to causation at 

trial.
21 A-3569-17T1

Specifically, defense counsel asked: "And Doctor, is it correct that in 

reviewing your report dated November 17, 2016, on the fourth page of that 

report is the only one sentence [quoted above] that you offer by way of 

commentary on Nurse Iannuzzi, Nurse Nigro, Nurse Porcaro, and Nurse 

[G]uerrero?" When Sixsmith agreed, defense counsel pressed further: 

Q: There's no other opinion that you have in this 

matter other than what's contained on page 4 in 

that one sentence?

A: Correct.

Q: I have nothing further.

As we earlier noted, in addition to providing plaintiffs a causation 

opinion relative to the nurses, Dr. Sixsmith also rendered an opinion that 

defendant physician assistants deviated from the standard of care, as did 

defendant emergency room physicians who supervised them and co-signed 

their records. At the end of Sixsmith's deposition, at which she was also 

questioned by two different lawyers representing defendant physicians and 

physician assistants as well as counsel for their employer, Emergency Medical 

Associates, counsel for one of the physicians and physician assistants engaged 

the doctor in the following exchange:

Q: And you're not offering any opinions as to 

causation in this case, are you?
22 A-3569-17T1

A: No.

Q: I'm right, you're not —

A: I'm not.

Q: That was a poorly worded question. And there's 

nothing in the chart or any of the deposition 

testimony to support that there was any visual 

abnormality of the left calf on [Joshua's second 

visit to Clara Maass] correct?

A: Correct.

Q: And am I correct that you are not offering any 

opinion that there was a deviation from the 

standard of care on [Joshua's first visit]?

A: Correct.

Q: Would you agree that an ankle sprain in a 7-

year-old is not a particularly unusual

occurrence?

A: Very common.

Q: And that following a sprained ankle in a 7-yearold, that child can experience pain for several 

days; is that right?

A: Yes.

Q: The pain isn't expected to go away within 48 

hours, is it?

A: No.
23 A-3569-17T1

Q: And are you offering an opinion — you talked 

earlier about getting a CT or an MRI or 

ultrasound on [Joshua's second visit]. Are you 

offering any opinions as to what those studies 

would have shown had they been done?

A: No.

Q: Okay. That's all I have. Thank you.

At oral argument on the summary judgment motion, counsel for 

defendant nurses and Clara Maass quoted only that portion of the exchange in 

which Dr. Sixsmith said she was not offering any opinions as to causation in 

the case, omitting that the question was asked of the doctor by a lawyer 

representing different parties, and likewise omitting her own exchange with 

the doctor in which Sixsmith confirmed the causation opinion she was offering 

as to defendant nurses.4 We have no need to explore whether candor required 

 

4

 When plaintiffs' argued on the summary judgment motion that counsel for 

defendant nurses had the opportunity to ask Dr. Sixsmith at deposition the 

basis for her opinion, the judge observed, "I assume she strategically avoided

that . . . given the doctor's report." We have no comment on counsel's strategy. 

We note only that having chosen not to query the doctor about the basis for her 

opinion when provided the opportunity, we see no grounds for objecting to an 

affidavit conveying the information the doctor would have supplied at 

deposition had counsel asked. See McCalla v. Harnischfeger Corp., 215 N.J. 

Super. 160, 172 (App. Div. 1987) (holding a party has "no right to eschew 

discovery and then object to the admission of the materials that were fairly 

obtainable through interrogatories or depositions, and which logically flowed 

from the expert report already provided").
24 A-3569-17T1

more. We note only that the representations led the trial court judge to 

conclude, erroneously, that the affidavit from Dr. Sixsmith submitted on the 

motion contradicted "specific testimony in her deposition where she indicated 

. . . that she was not providing an opinion on causation."

As Dr. Sixsmith's affidavit plaintiffs submitted in opposition to summary 

judgment was not at odds with either her report or her deposition testimony, it 

was a mistaken application of discretion for the judge to refuse to consider it. 

See Shelcusky v. Garjulio, 172 N.J. 185, 201-02 (2002) (holding "[c]ourts 

should not reject alleged sham affidavits . . . where confusion or lack of clarity 

existed at the time of the deposition questioning and the affidavit reasonably 

clarifies the affiant's earlier statement"). If counsel for defendants was 

genuinely confused by Dr. Sixsmith's deposition testimony, a request for an 

N.J.R.E. 104 hearing may have been in order before arguing to the motion 

judge that plaintiffs had submitted a sham affidavit in order to defeat summary 

judgment.

As plaintiffs established a prima facie case of negligence against the 

nurses sufficient to defeat summary judgment based on the expert opinions of 

Nurse Byerly and Dr. Sixsmith, summary judgment was also improperly

entered in favor of defendant Clara Maass, as the hospital is subject to liability 
25 A-3569-17T1

based on a theory of respondeat superior. See Arthur v. St. Peters Hosp., 169 

N.J. Super. 575, 579-80 (Law Div. 1979). We are also convinced that 

summary judgment was likewise improperly entered in favor of the hospital on 

plaintiffs' theory of apparent authority.

The record is clear that Clara Maass never moved for summary judgment 

on plaintiffs' apparent authority claim, which was clearly preserved by prior 

order in the case.5 Thus it was completely improper for the hospital to address 

the claim on plaintiffs' motion for reconsideration. "The first prerequisite . . . 

of due process is fair notice, so that a response can be prepared and the 

respondent fairly heard." Nicoletta v. N. Jersey Dist. Water Supply Co., 77 

N.J. 145, 162 (1978) (citing Avant v. Clifford, 67 N.J. 496, 525 (1975)). As 

the hospital never sought judgment on the apparent authority claim, it was 

error for the judge to decide on reconsideration that summary judgment was 

 

5

 Defendants' argument on the reconsideration motion that the order preserved 

only plaintiffs' claims against the hospital based on its vicarious liability for 

defendant nurses was plainly wrong. Defendant nurse employees possessed 

actual authority to act on behalf of the hospital. See Arthur, 169 N.J. Super. at 

579-80 (explaining doctrine of respondeat superior in hospital context). The 

apparent authority claims obviously related only to those physician and 

physician assistant employees of defendant Emergency Medical Associates, 

who were without actual authority to act on behalf of the hospital. See Basil v.

Wolf, 193 N.J. 38, 67 (2007) (citation omitted) (explaining apparent authority 

in hospital context). 
26 A-3569-17T1

proper as plaintiffs "failed to present evidence relative to this claim." 

Plaintiffs had no obligation to respond to a motion for judgment the hospital 

never made.

"[Summary judgment] is designed to provide a prompt, businesslike and 

inexpensive method of disposing of any cause which a discriminating search of 

the merits in the pleadings, depositions and admissions on file, together with 

the affidavits submitted on the motion clearly shows not to present any 

genuine issue of material fact requiring disposition at trial," Brill, 142 N.J. at 

530 (quoting Ledley v. William Penn Life Ins. Co., 138 N.J. 627, 641-42 

(1995)), not "shut a deserving litigant from his [or her] trial," id. at 540 

(quoting Judson v. Peoples Bank & Tr. Co., 17 N.J. 67, 77 (1954)). As we are 

satisfied plaintiffs have demonstrated bona fide causes of action entitling them 

to fully expose their case to a jury, we reverse and remand the matter for trial. 

See id. at 541. 

Reversed and remanded. We do not retain jurisdiction.