New Jersey Appellate Division reinforces same specialty requirements for expert testimony and refuses to save plaintiff’s claims by applying res ipsa loquitur.

The plaintiff underwent a robotic assisted prostatectomy performed by the defendant, a board certified urologist. The plaintiff claimed to have suffered serious injury as a result of the defendant’s negligence and brought suit against both the urologist and anesthesiologist. The plaintiff relied on the Affidavit of Merit (AOM) of a general surgeon to prosecute the claim against the urologist. Both the trial court and Appellate Division sustained the defendant urologist’s contention that the AOM was insufficient to support a prima facie claim of negligence. In response, the plaintiff alternatively argued that an AOM was not required as his claims sounded in res ipsa loquitur and common knowledge due to the nature of the injuries. The Appellate Division swiftly discarded this argument, finding the allegations in this case to be nuanced and ones in which an average layperson could not resolve without the benefit of expert testimony. The lower court’s dismissal was affirmed. For practitioners, this defense-friendly decision reinforces: (1) the same specialty AOM requirements; (2) res ipsa loquitur is infrequently applicable to medical malpractice cases; and (3) sham expert affidavits submitted in opposition to a summary judgment motion that contradict prior testimony of that witness will not create a genuine issue of fact.

_{Case Law Alerts, 2^nd Quarter, April 1, 2016}

_{Case Law Alerts is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. Copyright © 2016 Marshall Dennehey Warner Coleman & Goggin, all rights reserved. This article may not be reprinted without the express written permission of our firm.}