ROXANNE MARTIN v. JOHANNA H. BREZNAK et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5295-04T25295-04T2

ROXANNE MARTIN,

Plaintiff-Respondent,

v.

JOHANNA H. BREZNAK and JAMES

MURRAY,

Defendants-Appellants.

_______________________________________

 

Argued June 7, 2006 - Decided June 28, 2006

Before Judges Parker and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Union County,

L-4667-02.

Vincent R. Glorisi argued the cause for appellants.

David M. Welt argued the cause for respondent (Welt & Kuzemczak, attorneys;

Mr. Welt, of counsel and on the brief).

PER CURIAM

Defendants Johanna Breznak and James Murray appeal from a final judgment in this civil action filed by plaintiff Roxanne Martin to recover damages for injuries she sustained as a consequence of a dog bite. The trial judge granted plaintiff's motion for summary judgment on liability, and the jury awarded plaintiff $130,000 for loss of future earnings and $6140.97 for medical expenses. Because plaintiff materially and substantially altered her claim for loss of earnings after the end of the discovery period and did not comply with R. 4:17-7, and because defendants were prejudiced by the late amendment, we vacate the damage award and remand for further proceedings.

On December 21, 2000, Murray took Breznak's dog to the park at Wachtung Reservation. Plaintiff was in the same area of the park. She held a bone while Breznak's dog chewed on it and was bitten while playing with the dog.

As a consequence of the dog's bite, plaintiff sustained a "four-centimeter complex laceration along the medial aspect of [her right index] finger." Although the tendon remained intact, her digital artery was "slightly transected." She required surgery, which was performed by Dr. Larry Weinstein, M.D., who treated her until March 2001. She underwent physical therapy and in three months recovered appropriate range of motion. She continued to experience "numbness-paresthesia and loss of sensation" in her finger. She "couldn't feel light touch" in her injured finger and more "coarse touch" evoked an unpleasant tingling feeling.

Plaintiff is a graphic artist. She continued to work in that field after the accident. She filed this complaint for damages on October 17, 2002. Defendants filed their answer on September 10, 2003.

The procedural and historical facts relevant to defendants' objection to plaintiff's evidence of "lost productivity" are as follows. On January 20, 2004, plaintiff responded to interrogatories. The twelfth interrogatory directed:

If other loss of income, profit or earnings is claimed: (a) state total amount of the loss; (b) give a complete detailed computation of the loss; and (c) state the dates of the deprivation.

Plaintiff responded by listing the dates and amount of pay she lost because she was required to receive physical therapy. She specified that the total amount of that claim was $2100.

Plaintiff was deposed on June 10, 2004. The questions posed by defendants' attorney and plaintiff's responses pertinent to the issues on appeal are set forth below.

Q. Does any part of the injury that you say you got in our incident affect you from earning monies?

A. Well, not - I'm not as fast as I used to be as far as art. I'm an artist, so it has slowed down my productivity in a large way. And sometimes the dexterity that I need is - I don't have it. So it takes me a lot longer to do a job and that, you know, reflects on the productivity. Artists usually get paid per piece and not necessarily - you know, you get a certain amount of money as far as piece-wise goes, rather than an hourly rate.

Q. Have you ever, or someone on your behalf, quantified in any way what you say that diminishment or that loss is?

A. As far as my boss goes? He said I was not as productive as he would have hoped, because of the dexterity in my finger. That was at Scott Kay, and the gentleman's name was Dan Scott.

Q. What about in terms of sitting down and trying to figure out any kind of monetary difference between before and after that you would attribute to the incident?

A. Can you rephrase that?

Q. Have you ever calculated, or put a dollar figure, on what you think this change has resulted to you in an economic sense?

A. That would be hard to quantify, because each piece is totally different. So it would be hard to quantify that.

Q So you've never attempted to quantify it, correct?

A. No.

. . . .

A. I work a lot longer than what I really should. So instead of doing something in 8 hours, it will take me 10 hours. So I put in a lot of extra time. I put in a lot of extra time on the weekends and at night in order to perform my job function and do it successfully.

The discovery period concluded on July 6, 2004, and plaintiff submitted a statement for arbitration on October 27, 2005. She did not amend her interrogatory and continued to quote an "economic loss" of $2100.

In December 2004, plaintiff's attorney moved to be relieved as counsel due to "an impasse [with his client] as to how [he] should represent her . . . ." Defendants' attorney cross-moved for an order compelling production of plaintiff's performance and salary reviews, appraisals and copies of any documents upon which she intended to rely at trial. On January 21, 2005, the judge authorized a substitution of counsel for plaintiff. Because the trial date was set for February 7, 2005, the judge denied defendants' cross-motion for additional discovery.

Trial did not commence on February 7, 2005, and plaintiff's attorney presented an additional claim for damages to defendants' attorney by letter dated February 10, 2005. With that claim, the attorney provided new documents, which included a performance evaluation dated March 3, 2003 and plaintiff's "hours worked and hourly rates for eight years pre- and post-accident." The attorney explained: "These documents will also corroborate testimony that for the four years following the accident, her disability required her to work more hours to earn about the same as she did for the four years prior to the accident." Counsel elaborated:

The following is the analysis the jury will consider relative to Ms. Martin's economic damages. From 1997 through 2000, she averaged 1877.62 hours (7,510.50/4) to earn an average of $68,536.50 per year, which translates to an average hourly rate of $36.50. From 2000 through 2004, she averaged 2644.25 hours to earn an average of $68,312.70 per year which translates to an average hourly rate of $25.83.

Ms. Martin averaged 766.63 more hours each year during the four years following the accident. Using her average post-accident hourly rate of $25.83, this translates to an annual loss of $19,802.06. At trial, of course, the jury will be free to consider the use of her pre-accident average hourly rate of $36.50 or $27,982 annual loss.

Plaintiff's attorney suggested that the total claim for these economic damages, considering that plaintiff, who was forty-six years of age at the time of the accident, would work for an additional twenty-five years, was between $396,041.02 and $559,640.

On March 21, 2005, defendants moved to exclude evidence relevant to plaintiff's late loss of productivity claim. They invoked R. 4:17-7. Defendants argued that their adversary's February 11, 2005 letter concerning lost productivity was an impermissibly late amendment to her answers to interrogatories not consistent with an exercise of due diligence. Plaintiff's attorney argued that it "was clearly set forth in [plaintiff's] answers to interrogatories that indeed an economic wage loss [claim] would be set forth." Referencing plaintiff's deposition testimony, which we have quoted above, her lawyer argued that there was neither prejudice nor surprise.

The judge concluded that there was no "discovery violation or the violation of best practice." He noted that although plaintiff's interrogatory answers did not "spell out what [she] said at deposition," her complaint gave "some notice" that there was "something beyond the medical expenses and the pain and suffering" that "could include something in the nature of los[t] wages." He noted that while plaintiff had not calculated the claim, the formula was "based upon her income and how slow productivity equals dollars." On that basis the court denied defendants' motion for relief grounded on plaintiff's violation of R. 4:17-7.

The judge denied defendants' application for an adjournment to address the claim. The matter proceeded to trial without further discovery, and the jury returned a verdict awarding plaintiff nothing for pain and suffering or past lost wages, $130,000 for future lost wages and $6140.97 for medical expenses.

We conclude that the judge erred in allowing plaintiff's untimely claim for future lost wages and compounded that error by denying defendants' request for an adjournment to meet the newly asserted claim. This court "generally defer[s] to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.) (citing Payton v. New Jersey Tpk. Auth., 148 N.J. 524, 559 (1997)), certif. denied, 185 N.J. 296 (2005). The trial court's rulings are based on a misapplication of R. 4:17-7.

R. 4:17-7 imposes a continuing obligation to amend answers to interrogatories. In pertinent part it provides:

[I]f a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than 20 days prior to the end of the discovery period, as fixed by the track assignment or subsequent order.

R. 4:17-7 required an amendment to plaintiff's interrogatory answer about "loss of income, profit or earnings." Plaintiff's answer to that interrogatory described damages limited to $2100 in pay she lost when she missed work to receive physical therapy. That response does not completely or accurately describe a claim of future lost income in excess of $300,000. To the contrary, the response is sufficiently definitive to lead defendants to conclude that it would be unnecessary to explore any information related to future loss of wages, earnings or profit.

Plaintiff's deposition testimony in June 2004 was not an effective substitute for an amendment of the answer that limited her claim for loss of earnings to $2100. Even assuming that a plaintiff's response during deposition could substitute for a timely amendment of this misleading response to an interrogatory, which is a matter we need not decide here, plaintiff's deposition testimony did not suggest that she would present a claim for future loss of earnings. Cf. Hillas v. Westinghouse Electric Copr., 120 N.J. Super. 105 (App. Div.), certif. denied, 62 N.J. 83 (1972) (holding expert witness not listed in answers to interrogatories could state an opinion given his testimony at a deposition in which the objecting party had participated).

Plaintiff's deposition testimony gave no notice of a quantifiable claim. She simply stated that her work took a longer period of time -- sometimes as much as ten hours to accomplish what she could previously do in eight. However, when asked if she had calculated or put a dollar figure on that loss of productivity, she responded that it "would be hard to quantify, because each piece [of work] is totally different." This testimony about an unquantifiable loss was consistent with and did not give notice of an intention to deviate from the answer that limited her claim to $2100. See Tessmar v. Grosner, 23 N.J. 193, 203 (1957) (noting that uncertainty as to amount of damages does not preclude recovery if the evidence affords a basis for estimating the damages with some reasonable degree of certainty). Thus, because plaintiff's new found ability to quantify her loss of productivity was materially different than her deposition testimony, there was an obligation to give timely notice of the intended deviation. See McKenney v. Jersey City Med. Ctr., 167 N.J. 359, 370-72 (2001) (holding that there is an obligation to give notice of material differences between deposition and trial testimony).

Plaintiff's presentation of what she now characterizes as a simple formula for loss of future earnings was the equivalent of an amendment to her interrogatory answer. Her prior answer was incomplete and inaccurate with respect to future earnings. See Montiel v. Ingersoll, 347 N.J. Super. 246 (Law Div. 2001) (holding that late submission of an expert report constituted an amendment to defendant's prior interrogatory answers). The amendment came long after a date twenty days prior to the expiration of the discovery period: it was submitted after arbitration and after the first scheduled trial date.

R. 4:17-7 permits such an untimely amendment only if the party certifies "that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery date." Because plaintiff did not present such a certification, the defendants were permitted and the court was required to disregard the amendment. R. 4:17-7 (as amended effective September 1, 2004, R. 4:17-7 provides that in the absence of a certification of due diligence, "the late amendment shall be disregarded by the court and adverse parties").

Plaintiff argues that defendants delayed in objecting to her amendment. The argument is misplaced. R. 4:17-7 requires the recipient to file a timely objection if there is a "challenge to the certification of due diligence." Absent a certification of due diligence, the recipient of a late amendment may disregard it.

This court's decision in Smith v. Schalk, 360 N.J. Super. 337 (App. Div. 2003), is instructive. In that case we held that it was reversible error for the trial judge to allow plaintiff to introduce new medical evidence of her injury that was served on defendant only five days before the trial date. Id. at 345-46. We reasoned that pursuant to R. 4:17-7, plaintiff was required to "file an application to amend her interrogatories supported by an affidavit that due diligence would not have produced a much earlier medical re-examination, tests and reports." Id. at 345. Plaintiff failed to do so and because the evidence "had the clear capacity to influence the jury," its admission prejudiced defendant and contributed to a "miscarriage of justice" warranting a new trial. Id. at 345-46. We held that in focusing on the absence of prejudice or surprise to defendants, "without requiring [plaintiff] to make a showing that due diligence would not have revealed the [information] earlier, [the judge] improperly shifted the burden to [defendants] to meet the evidence." Id. at 346. Moreover, after Schalk, R. 4:17-7 was amended to provide that the court and adverse party "shall disregard" an untimely amendment to an interrogatory answer that is not accompanied by a certification of due diligence.

The late amendment in this case had the same impact as the late amendment in Schalk. The judge focused on the absence of prejudice or surprise to defendants and did not require plaintiff to make any showing of due diligence. In effect, the burden was shifted to defendants.

As in Schalk, there was prejudice to the defense. Plaintiff's new assertion of damages was based on a detailed factual recitation of hours spent working and income earned prior and subsequent to the accident and her assertion that her effective hourly rate of pay had declined. Defendants did not receive any of that information until a date after arbitration and the first scheduled trial date. At a minimum, in order to meet this new claim, defendants were entitled to discovery related to the supporting facts and an opportunity to determine whether to obtain an expert to evaluate the validity of the novel formula.

In Schalk, we reversed and remanded for a new trial. Ibid. The posture of this case is different, however. The judge did not consider whether plaintiff's new loss of earnings claim and her supporting factual information and formula could have been provided within the regular discovery period through the exercise of due diligence, and the jurors awarded damages identifiable to that claim. Thus, a new trial would be appropriate only if the judge finds that plaintiff acted with due diligence, as required by R. 4:17-7, in presenting the new information and claim about future wage loss. If plaintiff did not act with due diligence, then the error in allowing the amendment can be remedied by simply vacating the damage award attributable to the claim. Conversely, if the judge determines that the information "was not reasonably available to or discoverable by exercise of due diligence prior to the discovery end date," R. 4:17-7, then a new trial on the issue is warranted.

If, and only if, the judge determines that plaintiff has established grounds for a late amendment of an interrogatory answer pursuant to R. 4:17-7, then, prior to scheduling the new trial, the judge must consider and address defendants' need for additional discovery to meet the amendment. R. 4:24-1(c) permits an extension of the discovery period after arbitration upon a showing of "exceptional circumstances." We have noted the relationship between R. 4:17-7 and R. 4:24-1 in the past. See Schalk, supra, 360 N.J. Super. at 345 (considering R. 4:24-1(d) in determining whether the amendment to R. 4:17-7 applied to a case filed before the amendment of R. 4:17-7 and indicating that trial judges should not permit "gamesmanship" that works to the "detriment of the litigants and the public"). When a late amendment to an interrogatory answer is permissible under R. 4:17-7, a judge must consider the amendment in determining whether "exceptional circumstances" warrant an extension of the discovery requested by the recipient of the amended answer.

We stress that the R. 4:17-7 standard is based on a showing of diligence that is far from relaxed or liberal. As noted above, R. 4:17-7 permits a late amendment to an interrogatory answer only when "the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date." The showing required for an extension of discovery on grounds of "exceptional circumstances" also demands due diligence in conducting discovery and circumstances "clearly beyond the control of the attorney and litigant seeking the extension of time." Rivers, supra, 378 N.J. Super. at 79. When the recipient of a late amendment to a critical interrogatory answer played no role in delaying the other parties' discovery of the relevant information, the recipient may well qualify for an extension of the discovery period in order to meet the new information, based on "exceptional circumstances." See R. 4:24-1(c) (providing for extension orders describing discovery permitted).

II.

Defendants raise a related issue about plaintiff's loss of earning claim that we will not address. They contend that the judge erred in allowing plaintiff to present her claim for future loss of earnings without expert testimony. Our disposition of the case makes it unnecessary to decide this issue, which can be considered anew if plaintiff establishes grounds sufficient to permit the late amendment of her interrogatory answer.

III.

Defendants also argue that the judge erred in granting summary judgment on liability. Defendants, however, have not complied with R. 2:6-1(a)(1), which provides:

If the appeal is from a summary judgment, the appendix shall also include a statement of all items submitted to the court on the summary judgment motion and all such items shall be included in the appendix . . . .

Because defendants have not presented the materials essential to establishing that the trial judge erred in concluding that their were no genuine issues of material fact relevant to liability, we affirm the grant of summary judgment.

IV.

In conclusion, we summarize our rulings. The grant of summary judgment on liability is affirmed. The damage award for loss of future earnings in the amount of $130,000 is vacated, and the matter is remanded to permit plaintiff to establish grounds for relief pursuant to R. 4:17-7. If the plaintiff establishes "that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date," then the judge must consider and address defendants' need for additional discovery to meet the late amendment. If the judge determines that plaintiff is not entitled to file the amended answer, then the judge should dismiss the case. We do not retain jurisdiction.

 

 

Because neither party references or explains that adjournment, we assume that neither party deems it relevant to the issues on appeal.

At oral argument before this court, plaintiff's attorney argued that his client's loss of earnings claim was unique and not unlike a claim for damages based on loss of enjoyment. The jury's verdict, however, was based only on loss of future of earnings. Thus, while plaintiff testified about activities that she no longer had time to enjoy, the jury did not award damages on that basis. For that reason, we reject plaintiff's claim that the late amendment to her interrogatory answer was an assertion of non-economic loss rather than an amendment to her answer about loss of earnings.

(continued)

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A-5295-04T2

June 28, 2006