Opinion
DOCKET NO. A-2035-14T2
06-29-2016
AETNA HEALTH INC. and AETNA LIFE INSURANCE COMPANY, Plaintiffs-Appellants/Cross-Respondents, v. DEEPAK SRINIVASAN, M.D., Defendant-Respondent/Cross-Appellant.
Connell Foley, L.L.P., attorneys for appellants/cross-respondents (Edward S. Wardell, on the briefs). Andrew Schlafly, attorney for respondent/cross-appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Fasciale and Nugent. On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4092-10. Connell Foley, L.L.P., attorneys for appellants/cross-respondents (Edward S. Wardell, on the briefs). Andrew Schlafly, attorney for respondent/cross-appellant. PER CURIAM
Plaintiffs Aetna Health, Inc., and Aetna Life Insurance Company (collectively Aetna) appeal from a November 17, 2014 order and final judgment awarding defendant Deepak Srinivasan, M.D., $2,124,113, together with post-judgment interest on his unjust enrichment claim. Defendant cross-appeals from the same order as to the involuntary dismissal of his tortious interference claim. We affirm.
Defendant was awarded $1,918,467.72 in damages, plus pre-judgment interest, which totaled $2,124,113.
I.
Aetna is a health insurance company that provides a range of health care benefits and insurance plans. Aetna has contractual relationships with certain health care providers, known as "participating" providers, who render medical services in return for a pre-negotiated fee. These are known as "in-network" services. However, certain services are provided by "non-participating" providers, who do not have contracts with Aetna. These are known as "out-of-network" services.
Defendant is an interventional cardiologist who renders emergency services to patients; he is employed at Hackensack University Medical Center (HUMC). Defendant is an "out-of network" provider. Defendant conducts a hospital-based practice: he does not maintain an office or an independent practice, but solely provides emergency aid to emergency-room patients. At the conclusion of services, a bill is then submitted to the patient's medical-insurance provider, called a "super bill," which itemizes the procedures performed and the Current Procedural Terminology (CPT) code associated with the procedure. Once the bill is created, defendant's billing service creates a standard Health Insurance Claim Form 1500 listing the procedures performed and the amount for each service. Defendant does not bill or negotiate his fee with patients, rather he explains he will bill the insurance company. The bill is then submitted to the insurance company. Defendant reserves the right to "balance bill" the patient, but does not actually do so.
A "balance bill" refers to the difference between the doctor's fee and what the insurance company actually pays. This balance can be charged to the patient.
Aetna believes defendant is charging an excessive rate for his services. Aetna claims defendant charges approximately "three to thirty-five times what other providers charge[] for the same services in the same region" and "ten to thirty times more than other cardiologists in the same county." Defendant counters that he charges the reasonable value of his services given his education and expertise.
This dispute has created a proverbial catch twenty-two for Aetna. On the one hand, defendant is an out-of-network provider, which usually means the doctor and patient will confer regarding a price, insurance companies like Aetna will pay a certain percentage of the rate in accordance with the policy between it and its insured, and the patient will be balance billed for the rest. However, here, defendant provides emergency services, and in such a scenario there is no real discussion or negotiation between the doctor and patient. Then you add to this that for emergency services, regulations provide that an insurance company should not allow patients to be balance billed. Thus, Aetna is faced with the choice of either paying the bill in full or running the risk of patients being balance billed. The record elucidates that other insurance companies, presumably faced with this same dilemma, negotiated directly with defendant to pay a discounted rate, which defendant has agreed to in certain instances. Aetna seeks a declaratory judgment from the courts to limit defendant's fees to a reasonable amount, based on a theory of quasi-contract.
On August 13, 2010, Aetna filed a complaint against defendant seeking declaratory and injunctive relief, and asserting claims of insurance fraud, common law fraud, negligent misrepresentation, tortious interference, and violation of the New Jersey Board of Medical Examiners' regulation against excessive fees. After removal to and remand from federal court, and after service of amended pleadings and answers, as well as motion practice trimming claims and counterclaims, defendant moved for summary judgment, which resulted in the judge dismissing all but Aetna's claim for negligent misrepresentation. Defendant's counterclaims for unjust enrichment, tortious interference, and abuse of process also proceeded to trial.
The last charge was dismissed in an April 2012 consent order for partial summary judgment. --------
The judge bifurcated the liability and damages portions of the trial. After an eight-day liability trial, the jury found against Aetna on its claim for negligent misrepresentation, but found for defendant on his claim for tortious interference and unjust enrichment. The jury rejected defendant's abuse of process claim. The judge memorialized the verdict in an order dated May 1, 2014. Aetna moved for judgment notwithstanding the verdict (JNOV) on liability, or for a new trial. The judge denied Aetna's motion after a hearing. Aetna moved for leave to file an interlocutory appeal, which we denied.
After the damages trial began, the judge granted Aetna's motion for involuntary dismissal of defendant's claim for tortious interference. The jury found for defendant on his unjust enrichment claim, and awarded damages. The judge entered the November 17, 2014 order now under review. Aetna again moved for JNOV or a new trial, which the judge denied after a hearing.
II.
On appeal, Aetna argues the trial court erred in dismissing its claim for declaratory relief and denying its motion for JNOV. Specifically, Aetna argues that defendant can only recover the fair value of his services and failed to produce any evidence sufficient to establish a claim for unjust enrichment. Aetna additionally argues that the judge erred in rejecting its request that the jury be instructed on the "fair value" measure of damages; in bifurcating an indivisible unjust enrichment claim; in excluding relevant evidence disputing the reasonableness of defendant's charges; in granting summary judgment on Aetna's insurance fraud claim; and in impermissibly permitting "David and Goliath" references to be made to the jury.
A.
Aetna's arguments on appeal are overlapping insofar as they revolve around the judge's failure to conclude that defendant was only entitled to the "fair value" of his services; therefore, we address Aetna's Points A, B, and D. Aetna's first claim is that the judge erred in dismissing its request for a declaratory judgment.
This court reviews a summary judgment order de novo, applying the same standard governing the trial court, Oyola v. Xing Lan Liu, 431 N.J. Super. 493, 497 (App. Div.) (citations omitted), certif. denied, 216 N.J. 86 (2013), and according no deference to its legal conclusions, Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 382-83 (2010) (citations omitted). Under that standard, summary judgment is appropriate where, considering the evidence in the light most favorable to the non-moving party, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. R. 4:46-2(c); see also Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
The Declaratory Judgment Act states, in pertinent part, that "[a]ll courts of record in this state shall, within their respective jurisdictions, have power to declare rights, status and other legal relations, whether or not further relief is or could be claimed." N.J.S.A. 2A:16-52. The decision to award declaratory relief is within the judge's discretion. Util. Blade & Razor Co. v. Donovan, 33 N.J. Super. 566, 570-71 (App. Div. 1955).
Here, Aetna asked the court to declare that defendant's charges are unlawful and unenforceable. Aetna contends defendant submitted health insurance claims despite failing to "specify, discuss or inform Aetna members of his charges for services." Moreover, Aetna claims that the fees submitted by defendant were excessive and violated N.J.A.C. 13:35-6.11, and that defendant sought to coerce it to pay his excessive fees by threating to balance bill Aetna's members.
The judge granted defendant's motion for summary judgment on this issue, explaining that Aetna does not have a private right of action under N.J.A.C. 13:35-6.11. Moreover, the judge concluded that defendant, being an out-of-network provider, can bill what he wants to, subject to negotiation with Aetna. The court declined to "define fair value" of the doctor's services, concluding such a determination is "not the prerogative of the [c]ourt." The judge explained that definitions of fair value can be discerned from the usual, customary and reasonable rate and Medicare rates. The judge explained that such rate determinations are determined by market forces, subject to the oversight of the Board of Medical Examiners.
On appeal, Aetna argues it has no duty to pay defendant's charges because it never agreed to pay defendant's rates. Essentially, Aetna argues that defendant never made an agreement with his patients as to what his fee would be, and therefore can only recover the fair value of his services based on a quasi-contract theory.
We conclude the judge did not err in denying declaratory relief to Aetna, and therefore properly granted summary judgment on Aetna's claim. Defendant explained in his certification in support of summary judgment that his practice is devoted to treating patients "in the emergency room setting and the medically emergent and urgent hospital setting." Defendant explained:
I do not talk to patients in need of emergent or urgent cardiac services about how the patient will pay for his fees. The hospital setting does not allow for discussion of fees prior to the provision of medical services. Rather, the hospital has a system in place, for all of its emergency and on-call physicians, not just myself, which sets forth the patient's willingness to assign their insurance benefits to the hospital and derivatively those treating them.Defendant further certified that
[a]s a matter of practice, Aetna accepted [his claim forms]. As a matter of practice, any and all questions regarding the service performed were directed to me and/or my billing service and not to the patient. As a matter of practice, all checks were sent directly to me, and not sent to the patient or HUMC.
Defendant further certified, beginning in 2006, Aetna resisted paying his fee and would only pay its in-network rate. Defendant sought intervention from the New Jersey Department of Banking and Insurance (DOBI). DOBI ultimately entered an order directing remediation and assessing penalties, concluding that pertinent regulations
establish that for services rendered by non-participating providers for emergency care, during admissions to a network hospital by a network provider and where a member is referred by the HMO to a non-participating provider, the member has no liability for the difference between the non-participating provider's billed charges and the benefit paid by the HMO because the member is responsible only for the network copayment, coinsurance or deductible.
Accordingly, in such situations, Aetna must pay the non-participating provider a benefit large enough to insure that the non-participating provider does not balance bill the member for the difference between his billed charges and the Aetna payment, even if it means that Aetna must pay the provider's billed charges less the member's network copayment, coinsurance or deductible.
We conclude under these facts the judge properly declined Aetna's request for a declaratory judgment to establish defendant's fee. As instructed by the DOBI, Aetna may either negotiate with defendant to bring him in-network; negotiate with defendant to reach a settlement for a lesser amount, as other companies have done; or, if it feels the rates are an ethical issue, report the doctor to the Board of Medical Examiners. See N.J.A.C. 13:35-6.11(a) (explaining "[t]he Board of Medical Examiners shall review information and complaints concerning allegations of excessive fees charged by licensees of the Board"). Aetna has failed to provide any authority to support the use of a declaratory judgment action to regulate a health care provider's rates. Thus, the judge did not err in granting summary judgment to defendant on this issue.
Because we have determined defendant was not limited to a quasi-contract recovery, we conclude Aetna's arguments that the judge erred in failing to instruct the jury that defendant can recover only the "fair value" of his services, and in excluding relevant evidence comparing defendant's rates to other rates in the market, are without sufficient merit to warrant extended discussion. R. 2:11-3(e)(1)(E). We add the following remarks.
As to the jury instruction, the judge denied Aetna's request, explaining:
We[ have] made our rulings in that regard. And what we have consistently indicated, and when I say we I mean myself and at least [one other judge] who previously made rulings in this case is that the court is not in a position to impose some standard, particularly in an area such as this which is heavily regulated by [the] New Jersey Insurance Commission, by legislature, by a number of, as I understand it, either federal legislation, legislation at the New Jersey level in terms of, I know there[ have] been special committees on topics such as this. And I think it's appropriate that the . . . court . . . has not weighed into this scenario . . . and attempt by judicial fiat . . . to impose some standard . . . . And it's for the jury to say if Aetna did something which a prior jury has found that may require compensation [for] unjust enrichment, the jury will decide what that amount was.
For the same reasons that declaratory judgment was inappropriate, a jury instruction essentially accomplishing the same result was not required. The verdict sheet appropriately asked: first, whether defendant had proven damages; and second, given the evidence presented during trial as to amounts owed to the doctor, what amount of damages would "fairly and reasonably" compensate defendant. Contrary to Aetna's claim, the jury was not asked to award the full amount of the doctor's services, and indeed came to a determination of a lesser amount. The instructions comported with the law.
As to the exclusion of evidence, the judge had already rejected Aetna's theory and had eliminated it from the case. Defendant is an out-of-network provider who may, within the bounds of ethics, charge a rate he believes is commensurate with the quality of his services. His charges compared to that of other providers was not relevant.
B.
Aetna next claims that defendant failed to provide sufficient evidence to support a claim for unjust enrichment. We review a judge's denial of a motion for JNOV under the same standard governing an involuntary dismissal, namely whether "the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." R. 4:37-2(b); see also Pressler & Verniero, Current N.J. Court Rules, cmt. 1 on R. 4:40-2 (2016).
To prevail on a claim of unjust enrichment, "a plaintiff must show both that defendant received a benefit and that retention of that benefit without payment would be unjust." VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 554 (1994) (citations omitted). A plaintiff must establish that he or she expected remuneration from the defendant and that the defendant's failure to pay "enriched defendant beyond its contractual rights." Ibid. (citations omitted).
After the liability trial, the jury determined unanimously that "Aetna benefit[ted] from the services provided by Dr. Srinivasan to patients covered by Aetna insurance, for which Aetna did not pay a just amount." Further, the jury unanimously found "Aetna [was] unjustly enriched at the expense of Dr. Srinivasan for the services that he provided to patients covered by Aetna insurance."
The jury's conclusion was supported by the evidence. Defendant produced testimony from a representative of his billing service, who testified "the amount of money that Aetna pays is very insignificant compared to . . . other insurance companies." He explained that Aetna, unlike other companies, provides an "explanation of benefits [saying] . . . this is what we're paying you, and that's it." He testified he maintains an "accounts receivable[] on behalf of [defendant]" for different insurance companies, and testified that the books of the billing company indicate that Aetna owes defendant money.
Defendant testified that when he provided services to Aetna-insured patients, he expected to be paid for those services, and that Aetna was aware of that expectation. Defendant also introduced evidence establishing that Aetna had received claims from him in the past, which Aetna paid. Thus, the evidence established that defendant rendered services to Aetna patients expecting to be paid and that Aetna failed to pay the full value of those services. Accordingly, this evidence was sufficient to establish unjust enrichment.
As to damages, the evidence established defendant had the right, as an out-of-network provider, to set rates for his services. The doctor testified as to how he arrives at his rates, specifically based on his level of expertise and training. Defendant's witness, another doctor, testified his services were reasonable. Aetna's own executive testified that defendant, as an out-of-network provider, can charge whatever he likes. We further reject Aetna's argument that damages were unduly speculative. The jury was provided with the difference between the amount billed and the amount paid via an Aetna spreadsheet, which was approximately $8 million. The jury awarded defendant slightly less than $2 million, which was less than the total amount owed. Thus, defendant produced sufficient evidence to overcome the JNOV motion.
C.
Aetna next argues that the court erred in bifurcating the liability and damages portion of defendant's unjust enrichment claim, contending that the claim is indivisible.
We ordinarily review the judge's decision to bifurcate for abuse of discretion. Thompson by Thompson v. Merrell Dow Pharms., Inc., 229 N.J. Super. 230, 255 (App. Div. 1988) (explaining "bifurcation of the issues of liability and damages is within the sound discretion of the trial judge, which we will not disturb on appeal absent an abuse of discretion" (citation omitted)). Here, the court originally chose to bifurcate the trial during motions in limine. No objection was made at that time by Aetna. Thus, this court will review the determination for plain error. R. 2:10-2.
Rule 4:38-2 states:
Whenever multiple parties, issues or claims are presented in individual or consolidated actions and the nature of the action or actions is such that a trial of all issues as to liability and damages may be complex and confusing, or whenever the court finds that a substantial saving of time would result from trial of the issue of liability
in the first instance, the court may on a party's or its own motion, direct that the issues of liability and damages be separately tried. Except in extraordinary circumstances, the issue of liability shall be tried first and if the order of bifurcation otherwise directs, the reasons therefor shall be explicitly stated therein.In some circumstances, the relevant proofs on liability and damages are intermingled such that bifurcation may become prejudicial to the party defending against the lawsuit. See Beasley v. Passaic Cty., 377 N.J. Super. 585, 611 (App. Div. 2005) ("We recognize that it is sometimes necessary to grant a new trial when proofs of damages were inadvertently withheld because they were thought to be germane only to damages, not liability issues.").
Aetna concedes that it was able to produce evidence of defendant's allegedly excessive fee during the damages phase, which if credited by the jury could have resulted in defendant failing to recover damages. Therefore, this was not a scenario in which Aetna was prejudiced as a result of the bifurcated proceedings. The jury could have found that the amount Aetna paid was fair and reasonable, and declined to award any recovery. The judge did not abuse his discretion in electing to bifurcate the liability and damages phase of the trial.
D.
Aetna claims that the court erred both as a procedural and substantive matter in dismissing its claim under the New Jersey Insurance Fraud Prevention Act (IFPA).
The Legislature enacted the IFPA
to confront aggressively the problem of insurance fraud in New Jersey by facilitating the detection of insurance fraud, eliminating the occurrence of such fraud through the development of fraud prevention programs, requiring the restitution of fraudulently obtained insurance benefits, and reducing the amount of premium dollars used to pay fraudulent claims.The IFPA "interdicts a broad range of fraudulent conduct," Liberty Mut. Ins. Co. v. Land, 186 N.J. 163, 172 (2006). A practitioner violates the IFPA if he or she
[N.J.S.A. 17:33A-2.]
[p]resents or causes to be presented any written or oral statement as part of, or in support of or opposition to, a claim for payment or other benefit pursuant to an insurance policy . . . knowing that the statement contains any false or misleading information concerning any fact or thing material to the claim.The IFPA "allows any insurance company that has been damaged as a result of a statutory violation to bring a civil action to recover compensatory damages, including reasonable investigation costs and attorneys' fees." Land, supra, 186 N.J. at 173 (citing N.J.S.A. 17:33A-7(a)).
[N.J.S.A. 17:33A-4(a)(1).]
As a procedural matter, Aetna claims that the judge "made neither written nor oral [findings] sufficient to review" his conclusions. The judge, at the summary judgment hearing, conducted extensive oral argument on the issue of insurance fraud. The judge addressed Aetna's position, namely that the doctor failed to disclose his fee to the patient, told the patient he or she would not have to pay, and submitted a bill to Aetna for the services at what Aetna contends is an inflated fee, which Aetna claims constituted insurance fraud. Aetna also claimed that because the doctor at times accepted a negotiated, lesser fee, it was proof that his charges were fabricated.
The judge rejected these arguments. He declined to accept the proposition that "because a physician accepts a compromise in his bill it's not a real or actual bill." The judge then noted that the gravamen of Aetna's claims really amounted to a dispute over the fee. The judge noted that the charges are not fictitious, and there was no intended deception by the doctor, he was simply submitting the bills for the services he performed.
"[A]n articulation of reasons is essential to the fair resolution of a case." Schwarz v. Schwarz, 328 N.J. Super. 275, 282 (App. Div. 2000). Rule 1:7-4(a) states that the court must "find the facts and state its conclusions of law thereon in all actions tried without a jury, on every motion decided by a written order that is appealable as of right." "This is especially true in the case of motions for summary judgment, as to which R. 4:46-2(c) specifically directs the court to make findings and conclusions in accordance with R. 1:7-4." Raspantini v. Arocho, 364 N.J. Super. 528, 533 (App. Div. 2003).
Here, the judge's articulation of reasons was clear and sufficient. The judge rejected Aetna's claim, concluding that what essentially amounted to a dispute in fees was not grounds for a claim of insurance fraud. This case is not like Raspantini, in which the judge denied a motion "without entertaining oral argument and without setting forth his reasons for the decision either orally on the record or in a separate written statement of reasons." Id. at 530.
As a matter of substantive law, the judge did not err.
To succeed on an IFPA claim, an insurance company must demonstrate that: (1) the defendant "presented" a "written or oral statement"; (2) the defendant knew that the statement contained "false or misleading information"; and (3) the information was "material" to "a claim for payment or other benefit pursuant to an insurance policy or the Unsatisfied Claim and Judgment Fund Law." N.J.S.A. 17:33A-4(a)(1). The insurance company must also prove a fourth element -- that it was "damaged as the
result of a violation of [the IFPA]." N.J.S.A. 17:33A-7(a).
[Allstate N.J. Ins. Co. v. Lajara, 222 N.J. 129, 147-48 (2015).]
Here, the element at issue is whether defendant knew that his charges to the insurance company were false or misleading. Aetna provided no evidence that the doctor knowingly provided false information to the insurance company. Aetna relies on Feiler v. N.J. Dental Asso., 191 N.J. Super. 426, 435-36 (Ch. Div. 1983), aff'd, 199 N.J. Super. 363 (App. Div.), certif. denied, 99 N.J. 162 (1984), a common law fraud case. There, the issue was that a dentist was engaging in a practice of not collecting the co-pay required from the insured, and billing the insurance company for the full amount, essentially defrauding the insurance company by requiring it to pay more than it otherwise would and creating an unfair advantage in the market place. Here, by contrast, defendant did not induce patients to visit him by offering to waive their co-pay, he simply treated any individual who presented to the emergency room with cardiac issues. He assured the patients they would not be required to pay for his services once they were stabilized, but that does not mean that his fees were "artificial" or "fake." Instead, he was assuring the patient that he or she would not be left with a large bill for emergency services.
Also, the judge was correct to note that defendant's later negotiation with insurance companies for lower rates is not probative and does not establish a claim for insurance fraud. He may have sought to negotiate his bill for any number of reasons, but that does not mean it is an implicit recognition that his claim was fraudulent in the first instance. Thus, the judge did not err in granting summary judgment on Aetna's IFPA claim.
E.
Aetna argues it was denied a fair trial because of references made by defendant's counsel to Aetna's size and wealth. Aetna objected to defense counsel's opening statement in which he referred to Aetna as "Goliath," but the judge allowed defense counsel to make references to Aetna's size and wealth.
Here, "considered in the entire context of trial, the probability that these statements could have affected the jury's final verdict is minimal." Amaru v. Stratton, 209 N.J. Super. 1, 16 (App. Div. 1985). The judge issued an instruction reminding the jury that both parties are on "equal footing" and that the jury could not "make [its] decision based on any kind of sympathy." Contrary to Aetna's argument, defendant did not misrepresent the evidence at trial, and the jury was instructed by the judge that the statements made by counsel were not evidence in the case. Even if the judge erred in allowing the statements by defense counsel, we conclude the error was harmless.
III.
Defendant cross-appeals, arguing that the judge erred in granting an involuntary dismissal during the damages portion of the trial.
During the liability phase of the trial, the jury found that Aetna unjustifiably interfered with defendant's ability to receive referrals from other doctors, and that Aetna's conduct was willful and malicious. However, the court dismissed the claim during the damages phase of the trial for lack of proof presented by defendant. Defendant contended that Aetna engaged in a campaign of negative publicity against him. As a result of this campaign, defendant provided a figure of $1.4 million in lost referrals per year since March 2011, but did not present any testimony from the doctors who allegedly stopped making referrals as a result of Aetna's conduct. Defendant alleged he stopped receiving referrals from various doctors, but mentioned two doctors specifically who he alleges met with him as a result of Aetna's publications and stopped giving him referrals. However, defendant provided no evidence showing the amount of his prospective loss.
As a result of the sparse proofs presented by defendant, the judge granted Aetna's motion for a directed verdict, explaining that even if the jury inferred it was Aetna's conduct that was the reason for the halt in referrals, there was only evidence as to the two specified doctors, leaving the judge with "seven other potential referral sources that have no nexus to those two conversations." Thus, the judge concluded the jury would have to
speculate as to the amount of referrals that were coming from [the two specified doctors] or the amount of referrals that were coming from any of the other seven sources because the other seven potential sources I don't have that temporal nexus and link with a conversation or a meeting that they called for because of the publication to the drop in referrals.
We review the judge's granting of an involuntary dismissal for whether "the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." R. 4:37-2(b). Tortious interference has four elements:
First, the complaint "must allege facts that show some protectable right--a prospective economic or contractual relationship. Although the right need not equate with that found in an enforceable contract, there must be allegations of fact giving rise to some 'reasonable expectation of economic advantage.'" Second, "the complaint must
allege facts claiming that the interference was done intentionally and with 'malice.' . . . [M]alice is defined to mean that the harm was inflicted intentionally and without justification or excuse." Third, "the complaint must allege facts leading to the conclusion that the interference caused the loss of the prospective gain. A plaintiff must show that 'if there had been no interference[,] there was a reasonable probability that the victim of the interference would have received the anticipated economic benefits.'" Fourth, "the complaint must allege that the injury caused damage."
[MacDougall v. Weichert, 144 N.J. 380, 404 (1996) (citations omitted).]
Here, defendant failed to establish a sufficient nexus between the loss of referrals and the alleged conduct by Aetna. Defendant referred to several newspaper articles that were published after the lawsuit was initiated in which Aetna made statements which "smeared" him. Defendant did not present any evidence from the doctors allegedly withholding the referrals, and did not establish that the meeting with the two doctors and the loss of referrals had anything more than just a temporal relation to the alleged newspaper articles.
Moreover, there was insufficient evidence for the jury to make an accurate estimate as to a proper measure of damages. There was no indication as to what defendant's loss was as to each doctor from whom he lost referrals. Defendant did not give any guidepost to reach a fair number, other than the assertion that his referrals went from $1.4 million to zero. As such, the judge did not err. See Lane v. Oil Delivery, 216 N.J. Super. 413, 420 (App. Div. 1987) (explaining the "plaintiff [must] prove damages with such certainty as the nature of the case may permit, laying a foundation which will enable the trier of the facts to make a fair and reasonable estimate"). Here, there was nothing to guide the jury beyond mere speculation.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION