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Co-Chair, Long-Term Care Liability Practice

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Portrait of Lynne N. Nahmani

The Quarterly Dose

New Leverage for Defendants: Burckhardt’s Impact on New Jersey Nursing Home Act Litigation

The Quarterly Dose – June 2026

June 11, 2026

by Lynne N. Nahmani

In a unanimous, unpublished opinion issued on February 24, 2026, the New Jersey Superior Court, Appellate Division, affirmed the dismissal of claims against a rehabilitation facility based on the plaintiffs’ failure to prove proximate causation—an essential element of negligence claims as well as claims brought under New Jersey’s Nursing Home Act (NHA). Although unpublished, Burckhardt v. Advanced Subacute Rehabilitation Center at Sewell, LLC provides important guidance for defendants facing nursing home malpractice and Resident-Rights Act litigation.

Background of the Case

The decedent, Burckhardt, was a 72-year-old resident at Advanced Subacute Rehabilitation Center at Sewell (Advanced). He had numerous medical conditions, including encephalopathy, diabetes mellitus, hypertension, urinary tract infection, respiratory failure, dysphagia, and required assistance with activities of daily living, including eating.

The plaintiffs alleged that Advanced failed to follow Burckhardt’s care plan by leaving him alone in his room while eating and failing to follow his care plan.  During that time, he choked and required emergency medical intervention and was hospitalized.  Burckhardt suffered cardiac arrest and died two days later. His children, the Estate representatives, filed suit against Advanced, alleging negligence and violations of the NHA based on the alleged failure to appropriately “monitor” him during meals as care planned for.

Trial Court’s Ruling

After five days of testimony, the trial court granted a directed verdict in favor of Advanced, dismissing all claims. The court concluded that the plaintiffs failed to present sufficient evidence of proximate causation. Specifically, Advanced argued, previously via summary judgment and again at trial, that neither of the plaintiffs’ medical experts offered sufficient testimony establishing that the alleged lack of staff presence was a “but-for” or “substantial factor” cause of Burckhardt’s injuries and death, as required under New Jersey law.

The trial court agreed. It emphasized that the plaintiffs’ nursing expert, Bonnie Tadrick, testified only as to the applicable standard of care and an alleged failure to monitor, but admittedly did not offer an opinion on causation. The plaintiffs’ physician expert, Dr. Hood,  testified about the mechanics of choking and identified choking as the cause of death. However, Dr. Hood failed to opine that any conduct by the Advanced staff caused, increased the risk or worsened the choking episode. Without expert testimony linking the alleged breach of care to the outcome, the court found the plaintiffs’ proofs legally insufficient and dismissed the case.

Appellate Division’s Analysis

The Appellate Division affirmed, carefully analyzing the causation requirements for both negligence and NHA claims. The court held that the Estate failed to establish the essential causal link between any alleged lapse in care and Burckhardt’s injury.

With respect to Nurse Tadrick, the court noted that while she testified about the standard of care and the need for monitoring, she admitted she was not offering a causation opinion—and could not do so under New Jersey law, which prohibits nurses from testifying about medical causation. Her testimony did not explain how staff presence in the room would have prevented the choking, altered its severity or the ultimate outcome.

As to Dr. Hood, the Appellate Division acknowledged that he was qualified to testify on causation but found his testimony inadequate. Although he explained how choking occurs and identified it as the cause of death, he never testified that the alleged absence of staff caused the choking or was a substantial factor in producing the injury. He also never opined that the staff failed to timely respond to the alleged incident.

The court stressed that to reach a jury, plaintiffs were required to present evidence from which a jury could reasonably conclude that the absence of staff increased the risk of harm and that earlier intervention would likely have changed the outcome. In this case, the plaintiffs failed to meet that minimal threshold.

Nursing Home Act Claims and Causation

The Appellate Division also squarely addressed whether NHA claims require proof of causation. The Estate argued they did not. The court rejected that argument, holding that causation is required even though the NHA does not explicitly use the word. The court reasoned that damages are, by definition, compensation for harm, and recovery without a causal connection would make little sense.

The court further held that the NHA claims failed for an additional reason: the Estate did not establish a separate or distinct injury attributable to the alleged resident-rights violation. Even if causation had been established, the absence of proof that the alleged NHA violation resulted in an independent injury was fatal to the claim.

Significance of Burckhardt

Although unpublished, Burckhardt is a meaningful decision for defendants in nursing home litigation. The Appellate Division’s clear statement that NHA claims require proof of proximate causation—and an identifiable injury tied to the alleged statutory violation—provides defendants with a powerful basis for early motion practice. The decision supports dispositive motions at the summary judgment stage where plaintiffs’ experts fail to connect alleged care deficiencies to a specific injury. It also serves as a lesson to defense counsel to renew the dispositive motion grounds at the end of a plaintiff’s case, where appropriate.

Firm Highlights

Thought Leadership

WCJ Improperly Refused to Conduct C&R Hearing and Erroneously Required Settlement of All Pending Petitions

In this case, the claimant sustained injuries in the course and scope of her employment as a registered nurse. The employer acknowledged the injury by a Notice of Compensation Payable (NCP).  Subsequently, a Workers’ Compensation Judge (WCJ) expanded the description of injury. The employer then filed a Termination Petition, alleging the claimant was fully recovered from the injuries. Providers filed Utilization Review (UR) Petitions, challenging UR determinations finding their chiropractic treatment to be not reasonable and necessary. A settlement of the claim was eventually reached, and the employer filed a Petition to Seek Approval of a Compromise and Release (C&R) Agreement. The C&R outlined that the agreement fully resolved all future workers’ compensation claims except for the termination and UR Petitions. Briefs were filed and one day later, the WCJ issued an Interlocutory Order which stated if instructions were not followed regarding filing of a C&R, a settlement hearing date would not be given. The employer complied with the order, and filed the C&R. Subsequently, the WCJ notified the parties that the C&R must resolve all issues in the petitions, or would not be entertained. A settlement hearing was never held, and the WCJ then issued a decision, granting the Termination Petition and dismissing the UR Petitions. The WCJ also said that the Petition for Approval of a C&R was dismissed without prejudice, as the issues in the Termination and UR Petitions went to a decision. The claimant appealed to the Workers’ Compensation Appeal Board (Board). The Board granted the claimant’s appeal, finding that the WCJ violated the requirement of Section 449 that an expedited hearing be held when a Petition for Approval of a C&R is filed.  The Board further held that it was legally incorrect for the WCJ to insist that the C&R resolve all issues raised by the pending Petitions. The Board remanded the case to a new WCJ, and Employer appealed to the Commonwealth Court. The court affirmed the Board and held that the WCJ erred, as a matter of law, by refusing to hold an expedited hearing within 30 days, once the Petition for Approval of a C&R was filed.  The court noted that the language of Section 449(b) is mandatory, and a settlement hearing is not discretionary or dependent on a party’s separate request for a stay, or whether the record has been closed. The court further rejected Employer’s argument that the case should not be remanded to a new WCJ for a new decision on the termination and and UR Petitions, as the Board passed no judgment on whether the C&R Agreement resolved the termination and UR Petitions, and left it for the WCJ to decide in connection with the Petition for Approval of a C&R.

Thought Leadership

Commonwealth Court Reaffirms the Constitutionality of Act 111's IRE Provisions

In this case, the claimant sustained a work injury of January 6, 1994, which was acknowledged by Notice of Compensation Payable (NCP). After the claimant’s receipt of 104 weeks of temporary total disability benefits, the employer filed a Request for an Impairment Rating Examination (IRE). The IRE was performed in May 2023 and the IRE physician found that the claimant had a 5% whole person impairment, under the AMA Guides. The employer filed a Petition based on the IRE results, and the Petition was granted by the WCJ. During litigation, the claimant argued that the IRE provisions of Act 111 (Section 306(a.3) of the Act) were not applicable to her injury, since it predated June 24, 1996, the date Act 57 went into effect, and that the IRE provisions were unconstitutional. The Workers’ Compensation Judge (WCJ)) granted the Petition and the Board affirmed. On appeal to the Commonwealth Court, the claimant argued that Act 111 violated the nondelegation doctrine and that its retroactive application to the claimant’s injury was unconstitutional. The court rejected the arguments on the basis that they had already found the same arguments without merit in multiple, prior cases. The court also addressed an argument made by the claimant that Act 111 was procedurally defective under the Pennsylvania Constitution because it was only considered on two days in each House after having undergone amendments and reassignments. The court noted that the Pennsylvania Constitution requires every bill to be considered on three different days in each House. The claimant maintained that, according to the legislative history, the bill did not receive three separate days of consideration from each House when it was assigned a new bill number. The court pointed out, however, that the bill number, H.B. 1840 remained constant and was considered on three occasions by the House. Further, the court concluded that minor amendments to the bill were germane to its original subject, which was to modify the Act’s IRE process, in accordance with Protz II.

Thought Leadership

Florida Supreme Court Rules Florida Statute §627.70152 Does not Apply Retroactively

In a decision that resolves years of appellate uncertainty and confirms that insurers and insureds alike can rely on the legal framework in place when a policy is issued, the Supreme Court of Florida last week found that Florida Statute §627.70152, which involves an insured’s requirement to provide an insurer with pre-suit notice before filing a suit, cannot be applied retroactively. In Universal Property & Casualty Insurance Company v. Hughes, the Court was presented with the issue of whether the statutory pre-suit notice requirement applied retroactively and whether it would apply to a breach of contract of an insurance policy that was issued before the statute went into effect. Before the Court was an appeal from a homeowner, Ms. Hughes, who sued her insurance carrier, Universal Property & Casualty Insurance Company (Universal) for breach of contract under an insurance policy that was in effect from April 24, 2019 through April 24, 2020. During the policy period, Ms. Hughes suffered a loss and, on May 29, 2019, made a claim for water damage. The carrier investigated the loss and issued payment; Ms. Hughes disputed the payment, finding the amount insufficient for repairs. On July 1, 2021, Florida Statute §627.70152 went into effect, which required insureds to provide notice of intent to initiate litigation against the carrier prior to filing a lawsuit; if an insured filed the lawsuit without complying with §627.70152, a court must dismiss the case without prejudice. On August 4, 2021, Ms. Hughes filed her lawsuit against Universal for breach of contract. Universal moved to dismiss based on her failure to comply with §627.70152. Ms. Hughes contended the notice requirement could not be applied retroactively. The trial court disagreed and dismissed the lawsuit without prejudice, and Ms. Hughes appealed. During the appeal, the Fourth District Court of Appeal, in Cole v. Universal Property & Casualty, 363 So. 3d 1089 (Fla. 4th DCA 2023), ruled that Florida Statute §627.70152 did apply retroactively to policies issued before the effective date of §627.70152. However, the Sixth District Court agreed with Ms. Hughes and overturned the trial court’s ruling, finding the statute could not retroactively apply to policies issued prior to the statute effective date. Thereafter, the other district courts weighed in, with the Third District Court agreeing with the Fourth District Court, and the First, Second and Fifth District Courts agreeing with the Sixth District Court. In resolving the conflict amongst the district courts, the Supreme Court advised “as a general rule, ‘the statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ Hassen v. State Farm Mut. Auto. Ins. Co., 674 So. 2d 106, 108 (Fla. 1996). The Court applied the two-step test when deciding whether a statute has retroactive application: “First, the Court must ascertain whether the Legislature intended for the statute to apply retroactively. Second, if such an intent is clearly expressed, the Court must determine whether retroactive application would violate any constitutional principles.” Menendez v. Progressive Exp. Ins. Co., 35 So. 3d 873, 877 (Fla. 2010). In analyzing the Legislature’s intent, the Court must determine whether the Legislature has manifested a clear command for retroactivity in the statutory text.  In review of the statutory text, the Court found nothing in the language of the statute to indicate that the phrase “all suits” was serving another purpose of expanding its reach to suits based on policies that both predate and postdate the enactment of the statute. Buis v. Universal Prop. & Cas. Ins. Co., 394 So. 3d 738, 741 (Fla. 2d DCA 2024). Further, the Court noted the statute has an effective date, which has long been considered to be evidence against retroactive application of a statute. The Court concluded that, on its face, no provision of §627.70152 speaks to application of the statute to insurance policies issued before the statute’s effective date and therefore, the Legislature did not clearly command retroactivity of the statute to include insurance policies issued prior to the enactment of the statute. The Court briefly reviewed Universal’s argument that the presuit notice requirement was procedural, not substantive, and therefore should be applied retroactively; however, the Court agreed with the Sixth District Court’s finding that, in its entirety, §627.70152 transformed an insured’s ability to sue an insurance company under a property insurance policy and an insurer’s obligations to respond to and pay insurance claims, thus making the requirement a substantive change. The Court thereby upheld the decision of the Sixth District and disapproved the decision of the Fourth District in Cole.