NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

The opinion of the court was delivered by

SUMNERS, Jr., J.A.D.

In this medical malpractice action, plaintiff Cindy Johnson, Administratix Ad Prosequendum and Administratix of the Estate of Tony Johnson, decedent, appeals from the December 13, 2013 and March 28, 2014 Law Division orders dismissing plaintiff's direct claims against defendant Robert Wood Johnson University Hospital (RWJUH or hospital), and her claim of vicarious liability against RWJUH for failure to comply with the Affidavit of Merit (AOM) statute, N.J.S.A. 2A:53A-26 to-29. Having considered the parties' arguments in light of the record and applicable legal standards, we affirm.

I

The essential facts are undisputed. On December 19, 2008, Tony Johnson appeared at St. Barnabas Medical Center with shortness of breath. The attending physician, after conducting several tests, believed that Johnson had hypoxia and a possible pulmonary embolism, and admitted him for further evaluation. Several imaging studies were performed by multiple physicians, some of whom had the impression that Johnson likely had a pulmonary embolism. Though further evaluation for a pulmonary embolism was recommended, no further treatment or testing was ordered. Johnson was subsequently discharged from the hospital on December 24.

Two days after being discharged, Johnson lost consciousness in his home. He was taken by ambulance to RWJUH for abdominal pain and syncope where he was seen by attending physician, Michael Steinberg, M.D. Dr. Steinberg indicated on the discharge summary report that he considered getting a CT scan of Johnson's chest to prove the absence of pulmonary emboli, but due to his belief that Johnson was over the weight capacity for the CT equipment at RWJUH, the CT was not performed. However, he was mistaken as Johnson weighed 397 lbs., and the maximum CT scan table load and machine limit were 450 lbs. and 485 lbs., respectively. On December 28, while still hospitalized, Johnson went into cardiac arrest and died. The autopsy report identified a "bilateral pulmonary thromboembolism" as one of the causes of his death.

Thereafter, plaintiff, Johnson's wife, filed a medical malpractice complaint, alleging a number of defendants failed to timely diagnose and treat the pulmonary embolism, resulting in Johnson's wrongful death. Specifically, she alleged that Johnson was admitted to St. Barnabas Medical Center on December 19, 2008, where he was treated, but not properly diagnosed, by co-defendants, Eric Handler, M.D., Reynald Altema, M.D., Sunil Patel, M.D., and Louis Sangosse, M.D. Plaintiff further contended that Johnson was treated by Dr. Steinberg at RWJUH on December 26, 2008, but did not allege a direct claim of negligence against Dr. Steinberg nor name him as a defendant. There was no claim in the initial or amended complaint that RWJUH was vicariously liable for any physicians at the hospital. Moreover, plaintiff never submitted an AOM asserting that Dr. Steinberg committed malpractice in treating Johnson. Rather, the AOM submitted by plaintiff's expert, Arnon Rubin, M.D., provided, in part:

During discovery, plaintiff deposed Theresa Rifenburg, RWJUH's CT supervisor, who testified that the hospital had certain policies concerning evaluations of patients whose body weight was too heavy to be supported by their CT scan equipment. Specifically, if a physician believed a patient needed a CT scan, he/she was required to place an order in their computer system; a visual inspection of the patient by the doctor would not warrant denying a patient a CT scan. The radiology department would then review the order to determine whether the CT table and CT machine could accommodate the physical size of the patient. If the patient was too large, the hospital would refer these patients to outside institutions that could accommodate the patient. Notably, Rifenburg could not recall whether these policies existed at the time of Johnson's examination.

Approximately a week following Rifenburg's deposition, plaintiff served an amended expert report by Dr. Rubin, criticizing both RWJUH and Dr. Steinberg. Relying on Rifenburg's testimony, Dr. Rubin concluded that if proper testing and evaluations were performed, the diagnosis of pulmonary embolism would have been made and Johnson would have been properly treated, thus preventing his eventual death. To substantiate his conclusion, Dr. Rubin listed the following deficiencies with regard to Dr. Steinberg's standard of care:

With regard to RWJUH, Dr. Rubin offered the following criticisms:

Following the close of discovery, RWJUH filed a summary judgment motion arguing that Dr. Rubin's opinions were net opinions and that plaintiff failed to state a claim for vicarious liability against RWJUH for the acts of Dr. Steinberg. After oral argument on December 13, 2013, Judge Joseph L. Rea issued a bench decision that Dr. Rubin's expert opinion with regard to RWJUH constituted a "net opinion" and was inadmissible. Judge Rea ordered that the direct claims against RWJUH be dismissed with prejudice, but denied RWJUH's motion seeking a dismissal of the vicarious liability claims asserted against it.

On January 7, 2014, RWJUH filed a motion to dismiss the vicarious liability claims due to plaintiff's failure to file an AOM as to Dr. Steinberg.1 On March 28, 2014, Judge Rea issued an order and written opinion granting the motion.

In his opinion, Judge Rea agreed with RWJUH that plaintiff did not allege a direct claim of negligence against Dr. Steinberg, never named Dr. Steinberg as a defendant, and importantly, failed to submit an AOM asserting negligence against Dr. Steinberg. Judge Rea also held that because he previously denied RWJUH's motion seeking a dismissal of the vicarious liability claims, RWJUH was required for the first time to provide a defense related to Dr. Steinberg's conduct, as it "stepped into the shoes" of Dr. Steinberg, even though Dr. Steinberg was never named a defendant and did not have to defend himself.

Judge Rea further explained that if Dr. Steinberg was a named defendant, plaintiff would have had to identify Dr. Steinberg's malpractice in an AOM. Thus, the question was whether plaintiff should have filed an AOM regarding Dr. Steinberg's employer, RWJUH, which was allegedly vicariously liable for his negligence. The judge determined that this question was one of first impression in New Jersey, but relied upon a decision in Michigan, a state with a similar AOM statute, in Nippa v. Botsford Gen. Hosp., 668 N.W.2d 628 (Mich. Ct. App. 2003), appeal denied, 673 N.W.2d 747 (Mich. 2004). There, the Michigan Court of Appeals summarized, "`[p]laintiff maintained that because the hospital, the only named defendant to the action, was not board certified . . ., plaintiff was not required to produce an expert witness with like qualifications.'" Id. at 630. However, "[a] plaintiff must submit with a medical-malpractice complaint against an institutional defendant an AOM from a physician who specializes or is board-certified in the same specialty as that of the institutional defendant's agents involved in the alleged negligent conduct." Id. at 632.

Judge Rea found that the reasoning espoused by the Michigan Court of Appeals was "compelling" and "correct," and held that "under N.J.S.A. []2A:53A-27, an employer of a licensed person alleged to be vicariously liable to the plaintiff is entitled to an AOM particularly if the actual licensed person is not named as a defendant in the case." Since plaintiff did not timely file an AOM supporting allegations of malpractice by Dr. Steinberg, the judge dismissed her vicarious liability claims against RWJUH that were solely based upon Dr. Steinberg's conduct.

Additionally, Judge Rea rejected plaintiff's contention that the doctrine of laches barred RWJUH's motion to dismiss the vicarious liability claims. He reasoned that RWJUH had no notice that it would be required to defend the actions of Dr. Steinberg until the trial court's ruling on December 13, 2013, and the hospital promptly filed its motion to dismiss based on plaintiff's failure to submit an AOM as to Dr. Steinberg. This appeal followed.

II

Plaintiff seeks reversal of the trial court's decisions granting RWJUH's summary judgment motions dismissing plaintiff's direct claims due to failure to submit a proper expert's report, and her vicarious liability claims due to failure to submit an AOM setting forth Dr. Steinberg's negligence. We address plaintiff's contentions in the order presented.

We review a ruling on a motion for summary judgment de novo, applying the same standard governing the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014) (citations omitted). Thus, we consider, as the motion judge did, "`whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.'" Id. at 406 (citation omitted). "If there is no genuine issue of material fact, we must then `decide whether the trial court correctly interpreted the law.'" DepoLink Court Reporting & Litig. Servs. v. Rochma, 430 N.J.Super. 325, 333 (App. Div. 2013) (citation omitted).

We review issues of law de novo and accord no deference to the trial judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (citations omitted). However, we review a trial court's decision regarding the admissibility of expert evidence for an abuse of discretion. Hisenaj v. Kuehner, 194 N.J. 6, 16 (2008). The abuse of discretion standard applies to evidentiary rulings regarding the evaluation, admission or exclusion of expert testimony. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 384-85 (2010) (citation omitted); State v. Torres, 183 N.J. 554, 572 (2005).

"To prove medical malpractice, 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, supra, 213 N.J. at 478 (quoting Gardner v. Pawliw, 150 N.J. 359, 375 (1997)). This is not a situation where plaintiff contends that the common knowledge doctrine, foreclosing the need for expert testimony, would apply. See Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387, 394 (2001) ("The doctrine applies where `jurors' common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant's negligence without the benefit of the specialized knowledge of experts.'" (citation omitted)).

Judge Rea found that the report by Dr. Rubin, plaintiff's expert, that RWJUH's negligence caused decedent's death was inadmissible as a net opinion. Dr. Rubin contended that RWJUH failed to educate and train its staff regarding the proper procedures for conducting CT scans of large-bodied patients. The judge reasoned that Dr. Rubin's opinions were speculative, finding that "the only thing [Dr.] Rubin ha[d] to hang his hat on [wa]s, well, because the CT person and Dr. Steinberg screwed up[,] they must not have been instructed properly as to a policy regardless of whether one existed."

Two recent Supreme Court opinions addressing the net opinion rule support Judge Rea's decision. In Townsend v. Pierre, the Court observed that N.J.R.E. 703 requires expert opinion to 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.'" 221 N.J. 36, 53 (2015) (citation omitted) (quoting Polzo v. Cty. of Essex, 196 N.J. 569, 583 (2008)). The Court noted that "[t]he net opinion rule is a `corollary of [N.J.R.E. 703] . . . which forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or other data.'" Id. at 53-54 (alteration in original) (quoting Polzo, supra, 196 N.J. at 583).

The Court explained that the rule "mandates that experts `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.'" Id. at 55 (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992)). "An expert's conclusion `is excluded if it is based merely on unfounded speculation and unquantified possibilities.'" Ibid. (quoting Grzanka v. Pfeifer, 301 N.J.Super. 563, 580 (App. Div.), certif. denied, 154 N.J. 607 (1997)).

In Davis, the Court has stated that the "net opinion rule `requir[es] that the expert give the why and wherefore that supports the opinion, rather than a mere conclusion.'" Davis, supra, 219 N.J. at 410 (alteration in original) (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 372 (2011)). There, the Court held that an expert offers an inadmissible net opinion if he or she "cannot offer objective support for his or her opinions, but testifies only to a view about a standard that is `personal.'" Ibid. (quoting Pomerantz Paper Corp., supra, 207 N.J. at 373). The Court quoted Wellenheider v. Rader, 49 N.J. 1, 7 (1967), for the proposition that "`[t]he customs of an industry are not conclusive on the issue of the proper standard of care; they are at most evidential of this standard.'" Davis, supra, 219 N.J. at 411.

We are convinced that Judge Rea's decision was consistent with the principles set forth in Townsend and Davis. Dr. Rubin merely set forth conclusions without providing the requisite "why" or "wherefore." See Buckelew v. Grossbard, 87 N.J. 512, 524 (1981) ("[A]n expert's bare conclusions, unsupported by factual evidence, is inadmissible."). He did not rely upon any facts that were revealed in discovery to substantiate his opinion that RWJUH staff were not properly educated or trained regarding the hospital's policies that were relevant to decedent's CT scan. Given that the judge did not abuse his discretion in excluding Dr. Rubin's expert report, we agree that RWJUH was entitled to summary judgment on the direct claims as there was no factual basis to establish medical malpractice.

Turning to the trial court's dismissal of plaintiff's vicarious liability claims against RWJUH, the question now is whether plaintiff was obligated to file an AOM regarding Dr. Steinberg's negligence, who was not a party defendant, but whose alleged negligence formed the foundation of the claims. As noted, we review this decision de novo.

The AOM statute requires that a plaintiff who sues alleging "malpractice or negligence by a licensed person in his profession or occupation . . . shall . . . provide each defendant" with an AOM. N.J.S.A. 2A:53A-27. Subsequent to Judge Rea's ruling, we held in Mortgage Grader, Inc. v. Ward & Olivo, L.L.P. that "[t]he requirement to serve an AOM also applies, . . . where a plaintiff `wishes to invoke principles of vicarious liability' against partners of a law firm for a fellow partner's malpractice or negligence." 438 N.J.Super. 202, 214 (App. Div. 2014) (quoting Shamrock Lacrosse, Inc. v. Klehr, Harrison, Harvey, Branzburg & Ellers, L.L.P., 416 N.J.Super. 1, 23, (App. Div. 2010) (noting that "[i]ndeed, the wording of the [AOM] statute contemplates such potential vicarious liability")). An exception applies where a plaintiff can show substantial compliance with the AOM statute, or there are extraordinary circumstances for noncompliance. Ibid. Additionally, failure to file an AOM within 120 days "shall be deemed a failure to state a cause of action," N.J.S.A. 2A:53A-29, which "generally requires dismissal with prejudice because the absence of an [AOM] strikes at the heart of the cause of action." Paragon Contractors, Inc. v. Peachtree Condo. Ass'n, 202 N.J. 415, 422 (2010) (citation omitted).

Applying these principles, we conclude that plaintiff's vicarious liability claims against RWJUH were properly dismissed for failure to file an AOM setting forth Dr. Steinberg's negligence. Plaintiff contends that the hospital is negligent because the negligence of its employee, Dr. Steinberg, caused Johnson's death. However, by not filing an AOM concerning Dr. Steinberg's negligence, plaintiff failed to put RWJUH on notice regarding how his conduct "fell outside acceptable professional or occupational standards or treatment practices." N.J.S.A. 2A:53A-27. Although not binding on us, we, like the trial court, find persuasive the Michigan Court of Appeals decision in Nippa that an AOM must be submitted addressing an institution's agents who are not sued but whose alleged negligence forms the basis of the action against the institution.

Plaintiff further argues that she substantially complied with the AOM statute and the purpose of the statute by: identifying physicians from RWJUH, filing a complaint that identified physicians from RWJUH as negligent, serving an expert report critical of Dr. Steinberg, and producing Dr. Rubin for deposition. Moreover, she maintains that the absence of an AOM did not prejudice RWJUH as it had ample notice of plaintiff's claims given the years of litigation. We disagree.

In the AOM that plaintiff submitted, no claims were made against Dr. Steinberg. Dr. Steinberg was never named a defendant. Plaintiff's mere naming of RWJUH as a defendant does not substantially comply with the need to address her vicarious liability claims based on Dr. Steinberg's conduct. The record thus supports RWJUH's contention that it had no notice of plaintiff's claims related to Dr. Steinberg's alleged negligence until December 13, 2013, when the judge denied the motion for summary judgment with regard to the vicarious liability claims. Before then, the hospital had no reason to retain an expert in defense of Dr. Steinberg.

Finally, plaintiff contends that the doctrine of laches bars RWJUH's motion to dismiss her vicarious liability claims. Like Judge Rea, we reject this argument.

The doctrine of laches "is invoked to deny a party enforcement of a known right when the party engages in an inexcusable and unexplained delay in exercising that right to the prejudice of the other party." Knorr v. Smear, 178 N.J. 169, 180-81 (2003) (citations omitted). "Laches may only be enforced when the delaying party had sufficient opportunity to assert the right in the proper forum and the prejudiced party acted in good faith believing that the right had been abandoned." Id. at 181. (citation omitted). "The core equitable concern in applying laches is whether a party has been harmed by the delay." Ibid. (citation omitted).

We are satisfied that RWJUH's motion on January 7, 2014 was timely filed once it realized that plaintiff was making vicarious liability claims against it based upon Dr. Steinberg's conduct. Plaintiff's AOM that was served on August 12, 2010 did not assert such claims. Moreover, despite plaintiff's expert's criticism of Dr. Steinberg in his expert report on May 24, 2012, and at his deposition on February 21, 2013, there was no reason for RWJUH to raise legal defenses related to Dr. Steinberg, a non-party to the action. It was not until Judge Rea issued the December 13, 2013 order that required RWJUH to "step into the shoes" of Dr. Steinberg that RWJUH had a reason to assert that an AOM should have been served as to Dr. Steinberg's malpractice. Therefore, it is clear that RWJUH did not delay in asserting its right following the court's order, and plaintiff did not act in good faith in believing that RWJUH's abandoned its right to assert the lack of an AOM for Dr. Steinberg. The fact remains that well before the two motions in question plaintiff should have submitted an AOM pertaining to Dr. Steinberg's negligence to substantiate her vicarious liability claims against RWJUH.

Affirmed.