MASAKI NISHIMURA et al. v. EDWARD SPECTOR, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5645-04T55645-04T5

MASAKI NISHIMURA and BETTY

NISHIMURA,

Plaintiffs-Appellants,

v.

EDWARD SPECTOR, M.D.,

Defendant-Respondent,

and

HUNTERDON MEDICAL CENTER and

JOSEPH SEXTON, M.D.,

Defendants.

____________________________________

 

Submitted March 28, 2006 - Decided April 20, 2006

Before Judges Skillman and Payne.

On appeal from Superior Court of New Jersey, Hunterdon County, Law Division, Docket No. L-43-02.

Pellettieri, Rabstein & Altman, attorneys for appellant (Robert J. Adinolfi, on the brief).

Duran & Pandos, attorneys for respondent (Debra V. Urbanowicz-Pandos, on the brief).

PER CURIAM

This is an appeal from a judgment memorializing a no cause jury verdict in a medical malpractice action.

On January 17, 2000, plaintiff Masaki Nishimura went to the emergency room at Hunterdon Medical Center with a fever and other flu-like symptoms. There, defendant Edward Spector, M.D., a member of the medical group that provides emergency room services at the hospital, examined Mr. Nishimura and diagnosed him as suffering from pneumonia. Dr. Spector prescribed an antibiotic, Zithromax.

At the time of his discharge from the hospital, Mr. Nishimura was given written instructions advising him to call his own doctor in one or two days if there was a problem. The instructions also advised Mr. Nishimura to return to the emergency room if his condition did not improve.

After taking the Zithromax prescribed by Dr. Spector, Mr. Nishimura began experiencing difficulty hearing, and by the morning of January 19, 2000, he could not hear at all. According to Mr. Nishimura's wife, plaintiff Betty Nishimura, she called Dr. Spector at Hunterdon Medical Center on her husband's behalf to find out what they should do. However, Dr. Spector was not there, so she left a message for him to call back. Mrs. Nishimura testified that Dr. Spector called her back around 9 p.m., identified himself, and she then told him that her husband "can't hear." Dr. Spector asked her whether her husband was experiencing any pain in his ears. Mrs. Nishimura then wrote a note to her husband, asking whether his ears hurt. Mr. Nishimura replied no. Mrs. Nishimura conveyed this answer to Dr. Spector, who told her that her husband "may have an ear infection" and that he should finish taking the Zithromax. According to Mrs. Nishimura, Dr. Spector also said that "it will take seven to ten days [for him] to feel better," and that he should "hang in there." Mrs. Nishimura then allegedly wrote another note to her husband to convey to him what Dr. Spector had said to her.

When Mr. Nishimura's hearing loss did not improve, plaintiffs went to another doctor several days later. However, neither that doctor nor the other doctors who treated Mr. Nishimura were able to correct the condition, and it is undisputed that he suffered total and complete hearing loss, necessitating surgical insertion of a cochlear implant.

Dr. Spector testified that he did not work on January 19, 2000, the day that Mrs. Nishimura allegedly told him about Mr. Nishimura's loss of hearing and asked him what to do. Dr. Spector stated that his medical group maintains a schedule of shift assignments that is prepared several months in advance. Those shifts run from 8 a.m. to 8 p.m. (the morning shift) and from 8 p.m. to 8 a.m. (the evening shift), and during the week, only one doctor is assigned at a time. Dr. Spector testified that he was assigned the morning shift on January 17th, a Monday, and the evening shift on January 18th, a Tuesday. However, he was not assigned to work on January 19th, a Wednesday, which was the day Mrs. Nishimura allegedly told him about her husband's hearing loss. The doctors on duty that day were Dr. Sexton on the day shift and Dr. Hickey on the night shift.

Dr. Spector also testified that if a patient who has been treated in the emergency room calls back while another member of the group is on duty, the doctor on duty responds to the inquiry rather than the inquiry being referred to the doctor who saw the patient. Since this is the medical group's standard procedure, he would never be called at home to respond to a patient's inquiry when he was not on duty, and he would never call a patient from home.

In addition, Dr. Spector testified that any telephone conversation with a patient who has been treated in the emergency room is recorded on a "call back documentation sheet," and the original copy of this document is placed with the patient's chart. Dr. Spector testified that Mr. Nishimura's chart did not contain such a call back sheet or any other notation of a telephone conversation with Mrs. Nishimura.

Finally, Dr. Spector testified that if he had received a telephone call from Mrs. Nishimura informing him that her husband had experienced a total hearing loss after starting to take Zithromax, he would have advised the patient to stop taking the antibiotic and to return to the emergency room as soon as possible.

Plaintiff's medical expert testified that Dr. Spector deviated from the accepted standard in failing to advise Mrs. Nishimura during the alleged January 19th telephone conversation that her husband should stop taking Zithromax and return to the emergency room. He also testified that Dr. Spector's alleged failure to give this advice resulted in a missed opportunity for early diagnosis and increased the likelihood that Mr. Nishimura would suffer a permanent total loss of hearing.

Dr. Spector did not dispute that it would have been a deviation from the accepted standard of medical care if Mrs. Nishimura had told him on January 19th that her husband was experiencing total hearing loss and he failed to advise her to bring him back to the emergency room as soon as possible and to have him stop taking the Zithromax. However, Dr. Spector's medical expert expressed the opinion that Mr. Nishimura had already suffered irreversible hearing loss by January 19th and that he could not have been effectively treated for his hearing loss even if he had returned to the emergency room that day. The trial court submitted the case to the jury by written interrogatories. The court's first question was: "Have the plaintiffs proven that there was a telephone call on January 19th 2000 in which Betty Nishimura told Dr. Spector that Masaki Nishimura had experienced a sudden hearing loss?" The jury answered this question "no." Based on this answer, the court entered judgment in favor of Dr. Spector.

Plaintiff's sole argument on appeal is that the trial court erred in barring the introduction into evidence of a handwritten note Mrs. Nishimura allegedly wrote to Mr. Nishimura to inform him of the advice that Dr. Spector allegedly gave in his January 19th telephone conversation with Mrs. Nishimura.

Plaintiffs first produced this letter on December 2, 2004, which was nearly three years after the filing of their complaint, more than four months after the July 28, 2004 discovery end date, and after a trial date had been fixed. On that date, plaintiff's counsel sent a letter to Dr. Spector's counsel, which stated in pertinent part:

In preparing for trial, we came upon a note that had been written on January 19, 2000 to Mr. Nishimura, by his wife, as he could not hear. This note tells him what she had been told by Dr. Spector in her conversation with him over the phone. Although your office questioned in detail about what Betty Nishimura said she was told, there was no request for any written note she might have given her husband so that he knew what was going on.

I am sending you a copy of this note, as we intend to seek it's admission at time of trial, given it's confirmation of exactly what Betty Nishimura said she was told by the doctor. . . .

Although there was no request for any such note, I did want to let you know that we intend to introduce this note at time of trial. . . .

If you feel the need, we can probably arrange a brief pre-trial deposition, just on the writing of this note.

Defendant's counsel objected to the late production of this note by a letter to plaintiff's counsel dated December 13, 2004, which stated in pertinent part:

I am in receipt of your letter dated December 2, 2004 enclosing what you describe as a note prepared by Mrs. Nishimura, which you intend to utilize at trial. Please know that I object to same.

To supply this note at this very late hour, which in fact was only served a few days before the trial date of December 13, 2004 is exceedingly prejudicial to Dr. Spector. In the first place the discovery end date is long passed. Secondly, there would be undue waste of time and expense needed to be undertaken at a very late date to respond to this untimely submission. In that regard the original note would have to be examined, a deposition of Mrs. Nishimura and possibly Mr. Nishimura would have to be retaken and expert review by an ink analyst may be necessary. Had this note been supplied in response to one of the numerous discovery requests set forth in our notice to produce or in Form A or A1 interrogatory responses this could have been addressed early on in discovery.

. . . .

Finally, your attempted service of this document which can only be viewed as an amendment to answers to interrogatories, fails to comply with Rule 4:17-7 which specifically requires a certification indicating that the amendment was no[t] reasonably available or discoverable by the exercise of due diligence prior to the discovery end date.

Thereafter, plaintiffs moved to amend their answers to interrogatories to include reference to the note Mrs. Nishimura alleged wrote to her husband on January 19, 2000. The court concluded that the note was inadmissible hearsay insofar as it was offered to prove what Dr. Spector said in his alleged conversation with Mrs. Nishimura, but reserved for determination at trial whether the note would be admissible for the purpose of proving that the alleged conversation took place. The court indicated that this ruling may have "mooted" defendant's application to bar introduction of the note on the basis of plaintiffs' violation of the discovery rules. However, the court apparently entered an order on March 10, 2005, which has not been included in plaintiffs' appendix, barring introduction of the note for any purpose.

Plaintiffs filed a motion for reconsideration of this order, which the court denied on April 1, 2005. In the statement of reasons attached to the order denying the motion, the court stated:

[P]laintiff once again makes no showing of exceptional circumstances for this Court to allow discovery to be reopen[ed]. Plaintiff's argument that defendant will have adequate time to have the note examined and evaluated is not a sufficient showing to reopen discovery.

At the beginning of trial, plaintiffs' counsel again raised the issue of the admissibility of the note. The court reiterated its previous ruling that the note could not be introduced but that plaintiffs could testify that Mrs. Nishimura informed Mr. Nishimura about what was said in her alleged telephone conversation with Dr. Spector by a written note. Consistent with this ruling, both plaintiffs testified that Mrs. Nishimura conveyed the contents of the alleged telephone conversation with Dr. Spector to Mr. Nishimura in writing.

On appeal, plaintiffs argue that the exclusion of Mrs. Nishimura's note from evidence constituted reversible error. We conclude that the trial court did not abuse its discretion in barring introduction of the note on the ground that plaintiffs violated their discovery obligations by failing to produce the note until after the discovery end date. We also conclude that even if the court should have relaxed the court rules and allowed plaintiffs to amend their answers to interrogatories to add the note to the list of their proposed trial exhibits, and the note was not inadmissible as hearsay, its exclusion from evidence was harmless error.

I

Rule 4:17-7 provides in pertinent part:

[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. 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 addition, Rule 4:24-1(c) provides in pertinent part:

[A] motion for relief [from the deadline for completion of discovery] shall be filed

. . . and made returnable prior to the conclusion of the applicable discovery period. . . . Absent exceptional circumstances, no extension of the discovery period may be permitted after an arbitration or trial date is fixed.

The current form of these rules is the result of the Best Practices amendments to the court rules adopted in 2000. See Ponden v. Ponden, 374 N.J. Super. 1, 8-9 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005). Best Practices "was undertaken by the Conference of Civil Presiding Judges for the purpose of attempting to improve the efficiency and expedition of the litigation process[.]" Pressler, Current N.J. Court Rules, comment 4 on R. 1:1-2 (2006). "The predicate of the project was that by amending the rules . . ., a discovery-completion target date could be enforceable, and if enforceable, credible trial dates could be set[.]" Ibid. And in particular, "a major concern of the Best Practices rules was the establishment of credible trial dates by the avoidance of last-minute or 'eve of trial' adjournments by reason of incomplete discovery." Tucci v. Tropicana Casino and Resort, Inc., 364 N.J. Super. 48, 53 (App. Div. 2003).

To that end, an extension under Rule 4:24-1(c) requires a showing of "exceptional circumstances." Rivers v. LSC P'ship, 378 N.J. Super. 68, 78 (App. Div.), certif. denied, 185 N.J. 296 (2005). The moving party must show: (1) "why discovery has not been completed within time and counsel's diligence in pursuing discovery during that time;" (2) "the additional discovery or disclosure sought is essential;" (3) "an explanation for counsel's failure to request an extension of the time for discovery within the original time period;" and (4) "the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension of time." Id. at 79.

Our review of a trial court's ruling on a motion for an extension of the discovery period under Rule 4:24-1(c) is limited to determining whether the court abused its discretion. Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463, 471 (App. Div.), remanded on other grounds, 185 N.J. 290 (2005).

Plaintiffs' motion for leave to amend their interrogatories to add the note that Mrs. Nishimura purportedly wrote to her husband was filed after the discovery end date of July 28, 2004, and after a trial date had been fixed. Consequently, plaintiffs were required to show "exceptional circumstances" under the criteria set forth in Rivers.

The trial court correctly concluded that plaintiffs did not make the required showings. Plaintiffs did not demonstrate their "counsel's diligence" in complying with discovery obligations, provide a reasonable explanation for "counsel's failure to request an extension of the time for discovery within the original time period," or establish that their failure to produce the note within the discovery period was due to "circumstances . . . clearly beyond the control of" plaintiffs and their attorney. Rivers, supra, 378 N.J. Super. at 79. To the contrary, plaintiffs' counsel acknowledged that the note was not produced during discovery due to attorney neglect:

[W]hat happened is the client at one point gave us a stack of papers and when we were preparing this matter for trial that's when it came up. It was in between a whole bunch of other things and we just didn't see it.

Such attorney neglect does not constitute "exceptional circumstances" under Rule 4:24-1(c). See Rivers, supra, 378 N.J. Super. at 79-81.

Furthermore, plaintiffs failed to show that the introduction of the note was "essential" to the presentation of their case at trial. Id. at 79. Mr. Nishimura was permitted to testify that she told Dr. Spector about her husband's hearing loss and that Dr. Spector did not advise Mr. Nishimura to come back to the emergency room or to stop taking Zithromax, and both plaintiffs were permitted to testify that this alleged advice was conveyed from Mrs. Nishimura to Mr. Nishimura by a handwritten note. As discussed in greater detail in section II of this opinion, the introduction into evidence of a document that purported to be the handwritten note from Mrs. Nishimura to Mr. Nishimura would not have materially added to plaintiffs' testimony about the alleged telephone conversation with Dr. Spector. Therefore, the trial court did not abuse its discretion in denying plaintiff's motion for an extension of the discovery period.

II

Although we have concluded that the trial court did not err in barring introduction of Mrs. Nishimura's purported note to Mr. Nishimura conveying what Dr. Spector alleged told her, we also consider, for completeness, whether the exclusion of the note, even if erroneous, would have been grounds for a new trial.

Under Rule 2:10-2, an error regarding the admission of evidence is grounds for a new trial only if "it is of such a nature as to have been clearly capable of producing an unjust result[.]" See Rosenblit v. Zimmerman, 166 N.J. 391, 408-11 (2000). The purported note from Mrs. Nishimura to her husband that plaintiffs sought to introduce into evidence stated in pertinent part:

The doctor says your symptoms are normal. It takes a week to 10 days to feel better. He said to give you popsicles. Don't go back to work. He said you may have ear infection. The Zithromax should clear it up. If you still have loss of hearing later you will need to go to an ear/throat/nose specialist. You have to go [unintelligible in copy of note contained in plaintiffs' appendix] a week. And take [T]ylenol instead of [M]otrin.

Initially, we observe that this note does not identify Dr. Spector as the doctor with whom Mrs. Nishimura allegedly discussed her husband's hearing loss, which was the critical issue in the case. Furthermore, the note was not self-authenticating. The determination of the genuineness of the document would have turned entirely on the jury's evaluation of the credibility of plaintiffs' proposed foundation testimony that this note was written by Mrs. Nishimura to Mr. Nishimura immediately after her alleged telephone conversation with Dr. Spector. If plaintiffs had given such testimony on direct examination, they undoubtedly would have been asked on cross-examination to explain why they failed to produce the note until nearly three years after filing their complaint and defense counsel could have sought to raise an inference of recent fabrication.

Most significantly, even if the note had been admitted, the case still ultimately would have turned on the jury's evaluation of the credibility of Mrs. Nishimura's claim that she spoke to Dr. Spector on the evening of January 19, 2000, and that he did not advise her to bring her husband back to the emergency room or have him stop taking Zithromax even though he was experiencing a total hearing loss, and Dr. Spector's testimony that he did not work that evening and therefore could not have had such a conversation with Mrs. Nishimura. We see no basis for concluding that the introduction into evidence of Mrs. Nishimura's purported note to her husband would have materially affected the jury's consideration of this credibility issue. Therefore, even if the exclusion of this note from evidence had been erroneous, we would conclude that the error was harmless.

Affirmed.

 

(continued)

(continued)

16

A-5645-04T5

April 20, 2006