PRAKAS RAGOONANAN et al. v. CHRISTINA CONLEY

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6572-03T36572-03T3

PRAKAS RAGOONANAN and BARBARA

RAGOONANAN, his wife,

Plaintiffs,

v.

CHRISTINA CONLEY,

Defendant-Respondent,

and,

AMOS VAVILUS,

Defendant-Appellant,

______________________________________

AMOS VAVILUS,

Plaintiff-Appellant,

and

MALENE VAVILUS,

Plaintiff,

v.

CHRISTINA CONLEY and ROUTE 22 HONDA

AUTO SALES,

Defendants-Respondents.

_______________________________________

 
Argued September 19, 2005 - Decided

Before Judges C. S. Fisher and Yannotti.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket Nos. MID-L-2677-02 and MID-L-506-03.

Daniel B. Needle argued the cause for appellant (Kohn, Needle & Silverman, attorneys; Jonathan R. Lautman, on the brief).

Mark P. Ciarrocca argued the cause for respondent Route 22 Honda Auto Sales (Ciarrocca & Ciarrocca, attorneys; David C. Rosciszewski, on the brief).

Richard B. Smith argued the cause for defendant Christina Conley (Weston, Stierli & McFadden, attorneys; Mr. Smith, on the letter joining the brief of respondent Route 22 Honda Auto Sales).

PER CURIAM

Plaintiff Amos Vavilus appeals from an order filed April 30, 2004 granting summary judgment in favor of defendants Christina Conley and Route 22 Honda Auto Sales, and denying plaintiff's motion for leave to amend his answers to interrogatories. We affirm.

This action arises from an automobile accident that occurred on July 25, 2001. Plaintiff filed a complaint on May 24, 2002 in which he alleged that he was stopped in traffic on Route 22 when his vehicle was struck in the rear by an automobile that was being test-driven by Conley. The vehicle was owned by Route 22 Honda. Plaintiff sought non-economic damages for personal injuries allegedly sustained in the accident. It is undisputed that plaintiff is subject to the limitation on lawsuit threshold in N.J.S.A. 39:6A-8(a), as amended by the Automobile Insurance Cost Reduction Act, N.J.S.A. 39:6A-1.1 to

-35.

On February 25, 2004, Conley filed a motion for summary judgment, arguing that plaintiff's injuries did not satisfy the threshold. Route 22 Honda joined in the motion. The motion was initially returnable April 2, 2004, but was adjourned to April 16, 2004 and then to April 30, 2004. The case was scheduled for trial on May 3, 2004. On April 28, 2004, plaintiff moved on short notice for leave to amend his answers to interrogatories to include a report from Dr. Nazar Haidri, a neurologist, which set forth his findings based on certain electro-diagnostic testing performed April 15, 2004. The judge denied plaintiff's motion to amend the answers and granted defendants' motion for summary judgment.

Plaintiff argues that the judge erred in denying his motion to amend the answers to interrogatories. We disagree. R. 4:17-7 provides that amendments to previously furnished answers to interrogatories shall be served no later than 20 days prior to the discovery end date. The rule additionally provides that:

Amendments may be allowed thereafter only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date. In the absence of said certification, the late amendment shall be disregarded by the court and adverse parties

[Ibid.]

Here, the motion judge correctly found that the amendment was untimely. The motion to amend the answers was not made prior to the discovery end date. Indeed, it was not made until the eve of trial.

Moreover, plaintiff failed to certify that the information was not reasonably available prior to the discovery end date as required by R. 4:17-7. As the judge pointed out in her decision from the bench on April 30, 2004, Dr. David S. Wolkstein treated plaintiff and diagnosed certain injuries in reports dated August 6, 2001 and December 12, 2001. The injuries identified by Dr. Wolkstein in his reports were subject to confirmation by electro-diagnostic studies or other objective testing. However, plaintiff did not present to Dr. Haidri until April 15, 2004, after the case had been arbitrated, the trial date fixed and defendants moved for summary judgment. We agree with the judge's conclusion that in the exercise of due diligence, plaintiff could have had the diagnostic tests performed and a report submitted prior to the discovery end date. We therefore are satisfied that the judge did not abuse her discretion in denying plaintiff's motion for additional discovery.

Plaintiff argues, however, that our decision in Tucci v. Tropicana Casino and Resort, Inc., 364 N.J. Super. 48 (App. Div. 2003), supports his contention that the judge erred in denying the motion for additional discovery. In Tucci, plaintiffs sought damages for injuries allegedly sustained in an "improperly leveled" elevator. Id. at 50. They failed to serve their expert report within the time mandated by the case management order. However, as we noted in our decision, counsel had difficulty obtaining maintenance records for the elevator and, with the apparent cooperation of defense counsel, an inspection of the elevator took place after the deadline for service of the expert report. Id. at 51. In addition, the mother of plaintiffs' counsel was terminally ill and she died one month prior to the date established for submission of the expert reports. Ibid. We held that, in the circumstances, the judge erred in dismissing plaintiffs' complaint noting that plaintiffs' failure to serve the report on time was not willful, there was no intention on the part of plaintiffs to mislead defendants and there were "legitimate problems" caused by the late submission to plaintiffs of the elevator maintenance records. Id. at 52. We also noted that plaintiffs' attorney's "personal situation" warranted "a reasonable modicum of judicial indulgence." Id. at 54.

Suffice it to say, this case does not present any of the unique factual circumstances that were present in Tucci. There is no claim that plaintiff's expert was unable to obtain necessary medical records. There is no allegation that defense counsel participated in discovery after the discovery end date. Plaintiff's counsel did not have to deal with any extraordinary personal difficulties while handling the matter.

Plaintiff also relies on our decision in Ponden v. Ponden, 374 N.J. Super. 1 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005). There, we concluded that the motion judge erred in refusing to extend the discovery end date so as to permit plaintiff to serve a new expert report where the request for an extension was made before the matter had been scheduled for arbitration or trial. We noted that one the purposes of the 2000 amendments to the discovery rules known as "Best Practices" was trial date certainty. Therefore, "enforcement or relaxation of discovery end dates are chiefly governed by the presence of an existing trial or arbitration date and whether the late discovery can be completed without jeopardizing the arbitration or trial date." Id. at 10.

Plaintiff's reliance upon Ponden is misplaced. The facts presented here are distinctly different. When plaintiff moved to extend the discovery end date, the matter had already been submitted to arbitration. Plaintiff's motion for additional discovery was made on short notice and was heard three days prior to the trial date. Defendants were undoubtedly prejudiced by the production of a new expert report a few weeks prior to trial. Additional discovery would be required and it would have jeopardized the fixed trial date.

We turn then to plaintiff's contention that he presented sufficient evidence to warrant denial of defendants' summary judgment motion, even without consideration of Dr. Haidri's report. Again, we disagree. In a report dated August 6, 2001, Dr. Wolkstein stated that plaintiff presented to his office on July 31, 2001 and complained of neck pain radiating to both upper extremities, pain in the left shoulder, back pain, as well as pain and weakness in the left knee. The doctor observed muscle spasm in the cervical region of the spine, and range of motion was limited. The doctor also found tenderness of the left shoulder on light palpation. The range of motion of the shoulder also was limited. In addition, the doctor observed muscle spasm of the dorsal and lumbar regions of the spine. The doctor stated that plaintiff had subjective complaints and weakness of the left knee. Dr. Wolkstein prescribed physical therapy and medication.

Dr. Wolkstein provided a supplemental report dated December 12, 2001. The doctor stated that he examined plaintiff on September 10, 2001 and he prescribed continued physical therapy. Plaintiff was again examined on October 15, 2001 and the doctor observed some loss of the range of motion in plaintiff's neck. Another examination followed on November 2, 2001. The doctor noted some limits to the range of motion in the neck and back. The doctor observed spasm in plaintiff's cervical paravertebral muscles, as well as in the upper trapezius muscles. Plaintiff was seen again on November 27, 2001 and plaintiff complained of left shoulder pain. The doctor's made the following diagnosis: cervical strain/sprain with spasm, left cervical radiculitis, contusion/sprain left shoulder, left impingement syndrome, dorsal/lumbar strain/sprain with spasm and contusion/sprain left knee. The doctor opined, to a reasonable degree of medical certainty, that plaintiff's injuries were permanent.

As the motion judge correctly found, Dr. Wolkstein's reports fail to provide the required objective credible evidence that would support a jury finding in his favor. Oswin v. Shaw, 129 N.J. 290, 319 (1992). The doctor's diagnosis is based in part on range of motion tests that reflect plaintiff's subjective pain responses. Id. at 320. Moreover, although the doctor states that he observed spasm in the cervical, dorsal and lumbar regions of plaintiff's spine, there is no evidence of any spasm after the last visit to Dr. Wolkstein on November 27, 2001. Plaintiff has not presented evidence of the sort of persistent, long-standing spasm that is indicative of a permanent injury. Owens v. Kessler, 272 N.J. Super. 225, 231-32 (App. Div. 1994). In short, the evidence did not raise a genuine issue of material fact as to whether plaintiff sustained a permanent injury that satisfies the limitation on lawsuit threshold in N.J.S.A. 39:6A-8(a). The judge correctly granted summary judgment in favor of defendants.

 
Affirmed.

(continued)

(continued)

9

A-6572-03T3

September 29, 2005