In the recent decision of Francis Ross Clark v. David Nenna, M.D., New Jersey’s Appellate Division reiterated the jurisdiction’s well-established rule that a plaintiff alleging that she has sustained emotional distress due to another’s negligence must support that claim with expert evidence. In Clark, the Court was confronted with a plaintiff who had undergone an orthopedic surgery to remove orthopedic screws. During the procedure, the physician removed the screws, but left washers within the Plaintiff’s body, finding that they were embedded in scar tissue. The physician failed to tell Plaintiff of this decision.
After discovering that the washers remained within his body from an x-ray several years later, Plaintiff filed suit against the orthopedic surgeon. Plaintiff never obtained an affidavit of merit as to the physician, and never retained an expert to support his claim of damages. As such, at the close of discovery, the defendant sought dismissal on the grounds that Plaintiff had no compensable damages.
On appeal, the Appellate Division reiterated New Jersey’s rule for recovering damages for negligently-inflicted emotional distress. “To be compensable, a plaintiff must demonstrate he or she suffered from “severe,” … or “genuine and substantial” emotional distress.” The severity of a plaintiff’s claimed emotional distress raises questions of both fact and law, and as such, “a court first decides whether, as a matter of law, such emotional distress can be found.” New Jersey courts have repeatedly thrown out negligence claims whose only symptoms were lack of sleep, aggravation, headaches and depression, finding them insufficient to meet this legal threshold. In order for recovery to be had, the emotional distress must be “so severe that no reasonable person could be expected to endure it.” Ordinarily, this requires expert proof to establish.
There are two well-recognized exceptions to the need for expert evidence. First, in the case of intentional wrongs, including claims for racial or sexual discrimination. The second is applied in cases involving “special circumstances,” where there is “an especial likelihood of genuine and serious mental distress.” Examples have included the malicious use of process, wrongful birth arising from inadequate genetic counseling, and where a funeral home failed to ensure that orthodox ritual requirements were met.
The Court ultimately held that the facts of this case – the failure to remove surgical washers from his leg – does not present “an especial likelihood of genuine and serious mental distress.” As such, the Court affirmed the dismissal for the lack of an expert witness.
For more information on this decision, or on this topic, please contact MKC&I’s Tom Emala.
 The trial court also agreed with defendant’s contention that an affidavit of merit was required, but this issue was not reached on appeal.