ROCCO LOPRETE, et al. v. MOHEGAN SUN, INC., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0078-05-T10078-05T1

ROCCO and MARY ELLEN LOPRETE

husband and wife, and ANTHONY

JOHN LOPRETE, a minor,

Plaintiffs-Appellants,

v.

MOHEGAN SUN, INC., a Connecticut

corporation,

Defendant,

and

KIDS QUEST, INC., a Minnesota

corporation,

Defendant-Respondent.

______________________________________

 

Submitted March 29, 2006 - Filed

Before Judges Weissbard and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Morris County,

L-3437-03.

Donald P. Fedderly, attorney for appellants.

The Ferrara Law Firm, attorneys for respondent (Niki A. Trunk, on the brief).

PER CURIAM

Plaintiff appeals the entry of an order dated July 25, 2005, granting summary judgment dismissing plaintiffs' complaint. The court determined plaintiffs failed to present any evidence of damages during the applicable discovery period. The court further determined that plaintiffs failed to file a timely motion to extend discovery and declined to extend discovery. We affirm.

The facts in this case are not disputed. Plaintiffs, Mary Ellen and Rocco LoPrete, along with their two children, Anthony, then age four, and Elena Marie, then age two, checked into the Mohegan Sun Hotel on July 9, 2003. The hotel is part of the Mohegan Sun Casino Resort located in Uncasville, Connecticut. Located on the resort premises is defendant, Kids Quest, a facility that provides childcare services for patrons of the resort. Plaintiffs arranged for their two children to be watched from 6:00 p.m. to 9:00 p.m. the following day. Plaintiffs also paid an additional charge for their children to have dinner while at the facility.

As planned, the children were dropped off the next day at 5:50 p.m. Plaintiffs were provided with a vibrating buzzer device that operated anywhere within the resort. They were promised they would be buzzed if any problems occurred. At 8:35 p.m., plaintiffs were buzzed and told that Anthony had "escaped." They were told the matter was in the hands of the Connecticut State Police. Plaintiffs contacted the state police and were advised that Anthony had been found at 6:30 p.m., crying and wandering in the casino. After picking up Anthony, plaintiffs immediately attempted to learn the circumstances of their son's disappearance. They spoke with employees from Kids Quest and resort security, including the vice president of security. Plaintiffs requested a report of the incident, but were told they would have to make the request to the staff attorney and the vice president of administration. The hotel offered to pay plaintiffs' dinner charges for the evening, and Kids Quest offered to provide free childcare services for the remainder of plaintiffs' visit. Plaintiffs declined the offers. Over the next two months, plaintiffs continued to seek information about the circumstances surrounding their son's disappearance, to no avail.

Plaintiffs filed a complaint against Mohegan Sun and Kids Quest, alleging negligence, breach of contract, breach of a fiduciary duty, and fraudulent misrepresentation. The complaint against Mohegan Sun was dismissed based upon sovereign immunity. As a personal injury action, the Civil Case Information Statement (CIS) reflected a Track II designation, which entitled the parties to 300 days of discovery. Discovery ended February 27, 2005.

In interrogatories propounded by defendant, plaintiffs were asked to provide the names of expert witnesses expected to testify at trial. Plaintiffs indicated, "N/A at this time." This interrogatory was never amended. In response to the interrogatory requesting the identity of experts consulted, but not expected to testify at the time of trial, plaintiffs identified "Dr. Julie Juliano and/or Dr. Patrick Caruso." Additionally, when plaintiffs were asked to identify each person they may call as witnesses and to describe their testimony, plaintiffs referred to the reports referenced in interrogatory number two. The only reports referenced in that interrogatory were two notes authored by Dr. Caruso shortly after the incident. Dr. Caruso reported that since the incident, Anthony "illustrated his desire not to be separated from either of his parents. He tends to cling to his mother more than in the past." Dr. Caruso concluded that "[a]t present we will observe him and the behavior unless it becomes maladaptive, in which case psychological consultation will be necessary." Plaintiffs did not attach any reports from Dr. Juliano, but instead responded that Dr. Juliano had been the treating physician of Mary Ellen LoPrete since 1992 and "may testify to her near-monthly consultations with Mrs. LoPrete (beginning just after the 7/03 incident), Mrs. LoPrete['s] psychological and emotional symptoms, and medications prescribed for Mrs. LoPrete."

Plaintiffs' answers to interrogatories were served on April 28, 2005. Plaintiffs never amended their answers to interrogatories to include any other evidence of further medical or psychological treatment for Anthony, Rocco, or Mary Ellen, nor did they amend their answers to name any person they expected to call as an expert witness at trial.

On May 5, 2005, Kids Quest moved for summary judgment, claiming plaintiffs had not suffered any damages. Plaintiffs opposed the motion and submitted two certifications; one from their attorney and another from Dr. Juliano. In their attorney's certification, dated July 13, 2005, counsel stated that his efforts to refer plaintiffs to psychiatrists were "unavailing." Counsel indicated that several months earlier, plaintiffs gave him permission to speak with Dr. Juliano, and he spoke with the doctor telephonically. According to counsel, it was during this conversation that "Dr. Juliano suddenly recognized the source and reasons for Mary Ellen's psychological/emotional condition since August 2003." Counsel explained he later had a personal consultation with Dr. Juliano, during which she agreed to serve as an expert witness.

In her certification, also dated July 13, 2005, Dr. Juliano acknowledged that she noticed a change in Mary Ellen's affect in August 2003. She stated that Mary Ellen mentioned, "in passing, the incident with defendant Kids Quest and its two-three hour 'misplacement' of their four-year-old son Anthony." Dr. Juliano indicated, however, that she did not "connect that incident with Kids Quest with the new psychological symptoms manifested by Mary Ellen." Dr. Juliano explained it was not until she had a telephone conversation with Mary Ellen's lawyer several months earlier that she was able to make the connection

Oral argument on the motion was heard on July 22, 2005, and the court reserved decision. On July 25, 2005, the court entered an order granting summary judgment in favor of Kids Quest, dismissing the complaint in its entirety. The motion judge concluded that plaintiffs presented no evidence of damages and failed to file a timely motion to extend discovery. On July 28, 2005, plaintiffs filed a motion for leave to file an amended complaint and to extend discovery, returnable August 19, 2005. The present appeal was filed August 25, 2005.

On appeal, plaintiffs urge that summary judgment should have been denied because the discovery of Mary Ellen's post-traumatic stress syndrome is an exceptional circumstance and plaintiffs' responses to interrogatories gave defendant sufficient notice of the proposed testimony of Dr. Juliano.

We first address the motion for summary judgment. The standard of appellate review of a trial court's grant of summary judgment mirrors that of the trial court. Mango v. Pierce-Coombs, 370 N.J. Super. 239, 249 (App. Div. 2004). That standard was definitively established in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1999).

[W]hen deciding a motion for summary judgment under Rule 4:46-2, the determination whether there exists a genuine issue with respect to a material fact challenged requires the motion judge to consider whether the competent evidential materials presented, when reviewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. This assessment of the evidence is to be conducted in the same manner as that required under Rule 4:37-2(b).

[Id. at 523.]

In opposition to the defendant's motion, plaintiffs submitted a letter brief, a "Plaintiffs' Responding Statement of Material Facts," and two certifications; one from plaintiffs' counsel and one from Dr. Juliano. Plaintiffs did not dispute any of the material facts set forth in defendant's moving papers. Consequently, the record before the motion judge presented no proof of damages. Therefore, under Brill, supra, the grant of summary judgment for the failure of plaintiffs to raise any disputed issues as to damages is well supported by the record. Ibid. See also R. 4:46-2(b).

In addition, we discern no abuse of discretion in the trial court's rejection of the two certifications as a basis to defeat summary judgment and reopen discovery. Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463, 471-72 (App. Div.), remanded on other grounds, 185 N.J. 290 (2005). Plaintiffs contend Mary Ellen's late-discovered post-traumatic stress syndrome constituted exceptional circumstances that warranted an extension of discovery under Rule 4:24-1(c). We disagree.

At the outset, the exchange of discovery achieves two salient purposes: (1) it provides a method for obtaining information that might otherwise be unavailable; and (2) it provides disclosure of the positions and evidence to be presented at trial. Zadigan v. Cole, 369 N.J. Super. 123, 129 (Law. Div. 2004) (citing Vitti v. Brown, 359 N.J. Super. 40, 46-47 (Law Div. 2003)). Discovery ended in this case on February 27, 2005. The parties, however, apparently continued to engage in the consensual exchange of discovery. Plaintiffs served responses to interrogatories on April 28, 2005. In those responses, plaintiffs stated they did not intend to call any experts and submitted two medical notes from Dr. John Caruso, neither of which dealt with any post-traumatic stress syndrome claim. Thus, the answers to interrogatories, apparently for defendant's purposes, established plaintiffs' position as to damages. It is true that plaintiffs identified Dr. Juliano as a person who "may testify to her near-monthly consultations with Mrs. LoPrete (beginning just after the 7/03 incident), Mrs. LoPrete['s] psychological and emotional symptoms, and medications prescribed for Mrs. LoPrete." Plaintiffs, however, also identified Dr. Juliano as an expert they consulted but did not "expect to call at trial of this case . . . ."

Despite these confusing responses, we agree plaintiffs' answers placed defendants on notice that Dr. Juliano was Mary Ellen's treating physician and that she had apparently been treating her for "psychological symptoms" since the incident. We also agree defendant could have taken the deposition of Dr. Juliano to explore the nature of her treatment of Mary Ellen's "psychological symptoms" in more detail. These responses, however, did not place defendants on notice that Dr. Juliano was a person plaintiffs expected to call as an expert witness at the time of trial to render an opinion on post-traumatic stress syndrome. Moreover, Dr. Juliano's certification suggests she did not view herself as an expert qualified to render such an opinion. By Dr. Juliano's own admission, she advised Mary Ellen to "seek psychiatric attention from a specialist in that field."

More problematic were conclusory statements contained in the certification. Dr. Juliano opined that Mary Ellen was in a "Catch-22" situation because the "only such specialized psychiatric attention Mary Ellen could receive at a low cost was through her HMO coverage, which a) was not of a high quality, and b) required Mary Ellen herself to successfully negotiate a bureaucratic tangle of red tape in order to even see such a person through her HMO provider." The certification then proceeded to discuss Mary Ellen's failed attempt to secure psychiatric treatment and the limited financial resources of the LoPretes. Dr. Juliano provided no basis for any of these conclusions. She also failed to articulate the basis of her conclusion that Mary Ellen "literally is unable to function effectively anymore." Similarly, she did not set forth the basis of her conclusion that HMO psychiatrists are of poor quality. In addition, nowhere in her certification did she explain the basis of her opinion as to the LoPretes' financial circumstances.

Of even greater significance was Dr. Juliano's statement that she spoke with the LoPretes' attorney "several months ago," during which conversation she saw "clearly for the first time the connection between the Kids Quest incident and Mary Ellen's psychological/emotional symptoms." Thus, even accepting plaintiffs' contention that Mary Ellen's post-traumatic stress syndrome was recently discovered, it was not as recent as July 2005, or even June 2005, but instead several months earlier.

In the certification submitted by plaintiffs' counsel, he acknowledged he spoke with Dr. Juliano several months prior to the July 13, 2005, date of his certification. He indicated that during the conversation, "Dr. Juliano suddenly recognized the source and reasons for Mary Ellen's psychological/emotional condition since August 2003, and I finally learned why I was encountering obstacles in working with the LoPretes regarding this issue." Notwithstanding these revelations, counsel provided no explanation why a motion to re-open discovery was not filed earlier. Finally, by the time the certifications were provided to defendants, the trial had already been scheduled for August 22, 2005.

As the Supreme Court recently held, a party seeking to extend discovery or re-open discovery after an arbitration and/or trial date has been fixed must demonstrate exceptional circumstances. Szalontai v. Yazbo's Sports Caf , 183 N.J. 386, 396 (2005). Exceptional circumstances are established when:

(1) counsel [has been] diligent in pursuing discovery during the discovery time period; (2) the additional discovery or disclosure sought is essential to the case; (3) the reason why counsel failed to request an extension of discovery within the original discovery period is provided; and (4) the circumstances surrounding the failure to complete discovery are clearly beyond the control of both the attorney and the litigant seeking the extension. Vitti, supra, 359 N.J. Super. at 51. If a moving party fails to satisfy any of these minimums, the permission to late file discovery should be denied. Ibid. This is true, in part, because, absent such a showing, it would be difficult to conclude that denying the request would result in "grave injustice." Ibid.

[Zadigan, supra, 369 N.J. Super. at 133.]

On this record, we cannot conclude that the late disclosure of plaintiff Mary Ellen LoPrete's post-traumatic stress syndrome claim was due to circumstances beyond the control of plaintiffs or their attorney. No certifications were submitted from plaintiffs, for example, detailing with specificity their apparently unsuccessful efforts to secure psychiatric treatment as the certification of Dr. Juliano claims. As noted earlier, plaintiffs' counsel provided no explanation why a motion to re-open discovery was not filed soon after counsel spoke with Dr. Juliano and "a 'giant light bulb' was suddenly turned on in both of [their] heads" as to the "source and reasons for Mary Ellen's psychological/emotional condition since August 2003." Instead, plaintiffs served interrogatory responses on April 28, 2005, defendants served plaintiffs with a summary judgment motion on May 5, 2005, the parties completed arbitration on May 19, 2005, and the trial date was set for August 22, 2005, without any disclosure to defendants, verbally or otherwise, of this new claim until July 2005, when plaintiffs filed opposition to the summary judgment motion.

We therefore conclude the motion judge did not abuse his discretion when he refused to consider the certifications as a basis to deny summary judgment and reopen discovery.

Affirmed.

 

In the statement of reasons for the decision, the motion judge makes reference to Dr. Juliano recently diagnosing the "infant Anthony" as suffering from post-traumatic stress syndrome. In fact, Dr. Juliano diagnosed Mary Ellen LoPrete with post-traumatic stress syndrome. We therefore assume that the judge's reference to Anthony was inadvertent.

According to plaintiffs' "Statement of Facts and Procedural History" attached to the "Civil Appeal Case Information Statement," this motion was never heard. Plaintiffs' appeal, however, is based only upon the July 25, 2005 order.

(continued)

(continued)

13

A-0078-05T1

April 27, 2006