EILEEN MELTZER v. LIBERTY MUTUAL GROUP

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4418-04T2A-4418-04T2

EILEEN MELTZER,

Plaintiff-Appellant,

v.

LIBERTY MUTUAL GROUP,

Defendant-Respondent.

______________________________________________________________

 

Argued October 31, 2006 - Decided June 14, 2007

Before Judges Coburn, Axelrad and R. B. Coleman.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-9265-02.

Harvey R. Meltzer argued the cause for appellant.

Robert P. Clark argued the cause for respondent (Clark & DiStefano, attorneys; Mr. Clark, on the brief).

PER CURIAM

Plaintiff Eileen Meltzer, appeals from: (1) eight pretrial orders entered by Judge Ramona A. Santiago requiring that plaintiff submit to four independent medical examinations (IMEs) and temporarily suspending her personal injury protection (PIP) benefits; (2) Judge Rachel N. Davidson's February 7, 2005 order precluding plaintiff from presenting expert testimony from treating physicians from whom she had not submitted reports and dismissing her claim for PIP benefits with prejudice on the trial date; and (3) Judge Davidson's denial of plaintiff's motion for reconsideration on April 8, 2005. We affirm.

Plaintiff, a passenger, was injured in a motor vehicle accident on October 12, 1998, while her husband, Harvey Meltzer, was driving. On the date of the accident, Harvey Meltzer had an automobile insurance policy with defendant, Liberty Mutual Group. In October 2002, Harvey Meltzer filed an order to show cause on plaintiff's behalf against defendant Liberty Mutual Group, their PIP carrier, when it advised it would stop paying her neurological bills based on an IME report that her injuries were not caused by the accident. The court entered an order on October 12, 2002, requiring defendant to pay all medical expense payments on behalf of plaintiff for all automobile accident related medication, care and treatment approved or prescribed by plaintiff's treating physicians or her physical therapists until such time as said treating medical health providers determined that plaintiff had achieved the maximum medical benefit from their respective treatment or until defendant produced competent proof to the court that said treatment was no longer necessary and reasonable.

Defendant continued paying for plaintiff's medical treatment until December 2003, when it notified plaintiff that, based on reports by its peer review doctors, it intended to stop paying neurological, neuropsychiatric and ophthalmologic bills. On December 8, 2003, plaintiff filed a second order to show cause, seeking to compel defendant to comply with the October 2002 order. At a hearing on January 9, 2004, Judge Santiago ordered plaintiff to submit to IMEs in ophthalmology, neurology and neuropsychiatry.

Plaintiff submitted to some IMEs, including an examination by Dr. Anthony J. Micale, an ophthalmologist; Dr. Eric Fremed, a neuropsychiatrist; and Dr. Jed Kwartler, a neuro-otologist. After significant delays involving a psychiatric IME, the court issued an order on October 12, 2004, temporarily suspending the payment of plaintiff's medical bills, requiring PIP benefits to be held in escrow pending trial as to their reasonableness, and mandating that plaintiff submit to an IME by Dr. William Head. Plaintiff eventually completed the psychiatric exam with Dr. Head in October 2004. Another hearing was held before Judge Santiago on October 18, 2004. The judge then issued an order giving plaintiff until October 25, 2004, to supply either the outstanding reports or the necessary authorizations and ordering plaintiff to serve her experts' reports no later than November 17, 2004. The order also directed both parties to submit to the court their respective schedules of physician witnesses by October 22, 2004, and stated that the hearing would commence in December 2004.

Plaintiff subsequently filed two motions for reconsideration of the October 18, 2004 order. Defendant responded with a notice of cross-motion (1) seeking an order holding plaintiff in contempt of court, (2) compelling plaintiff to produce the medical records and authorizations the parties had previously agreed would be supplied and which were required by the October 18 order, and (3) requesting the removal of Mr. Meltzer as counsel for plaintiff. On November 8, 2004, defendant cross-moved for an order holding plaintiff in contempt of court and compelling plaintiff to produce the medical records and authorizations required by the order of October 18, 2004.

Arguments were heard and, on December 10, 2004, Judge Santiago denied plaintiff's motion for reconsideration and explained that the October 12, 2004 order stayed, rather than terminated, plaintiff's PIP benefits and that it required defendant to pay all plaintiff's medical bills up to that date. In the December 10, 2004 order, Judge Santiago also granted plaintiff yet another extension for the production of her experts' reports. She ordered plaintiff to produce copies of all expert reports by January 20, 2005. The court also set a firm trial date of January 25, 2005, and ordered that the trial would not be adjourned for any reason and that any further noncompliance by plaintiff would result in the dismissal of her complaint with prejudice.

Despite the court's order instructing plaintiff to submit her experts' reports by January 20, 2005, plaintiff went to trial without ever having done so. Instead, plaintiff sought yet another adjournment, citing various delays caused by defendant and Judge Santiago. Her motion was denied and the trial judge ordered that plaintiff could not present expert testimony from any witness for whom she had not submitted a report. After the judge asked plaintiff to proceed with her claim, plaintiff conceded she could not prove her case without her experts' testimony and, on defendant's motion, the court dismissed the complaint with prejudice. An order to that effect was issued on February 7, 2005.

Plaintiff's counsel indicated an intention to appeal. Rather than appeal, however, plaintiff filed a motion for reconsideration, claiming the judge's February 7, 2005 ruling was contrary to case law, asserting a new theory that the Rules of Evidence permitted plaintiff to present testimony from her treating doctors as to their opinions of causality, treatment and prognosis since defendant made no showing of prejudice or surprise. Judge Davidson reiterated that her ruling was based on plaintiff's failure to comply with the prior court order, not the Rules of Evidence. The court denied the motion for reconsideration on April 8, 2005, indicating that she felt plaintiff had filed the motion with the sole intention of trying to extend the appeal period. After plaintiff filed an appeal of her decision, Judge Davidson sent in a supplemental letter to this court stating that she believed the appeal period ran from the January 26 order dismissing plaintiff's complaint with prejudice, and since plaintiff had failed to file a timely appeal, the only issue on appeal was denial of her motion for reconsideration.

Generally, we will "not disturb the factual findings and legal conclusions of the trial judge unless . . . they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (citation and internal quotation omitted). Here, we are satisfied that the findings of both Judge Santiago and Judge Davidson were supported by adequate, substantial and credible evidence and, therefore, we affirm for the following reasons.

Plaintiff contends that Judge Santiago abused her discretion and violated N.J.S.A. 39:6A-13 in ordering plaintiff to appear for examinations requested by the insurer. N.J.S.A. 39:6A-13(d) requires IMEs to be "conducted within the municipality of residence of the injured person," or if there is no "qualified healthcare provider" in that municipality, the IMEs are to be conducted "in an area of the closest proximity to the injured person's residence." Plaintiff argues that since defendant chose not to schedule the IMEs with qualified doctors located near plaintiff's home, plaintiff was not obligated to attend the ordered examinations. If plaintiff objected to the location of the IMEs, she had the burden to come forward to challenge their location. Benyola v. Allstate Ins. Co., 237 N.J. Super. 472, 479 (App. Div.), certif. denied, 127 N.J. 548 (1991). One challenging an IME need only show that: (1) he or she was noticed to appear for an examination in a municipality outside his or her residence; and (2) there was a qualified physician who could conduct the examination in his or her municipality or in closer proximity to their residence. Ibid. In the instant matter, most of the IMEs were arranged by consent and no timely objection was made by plaintiff's counsel to the examinations or the locations. Since plaintiff failed to formally object to the location of the IMEs, she cannot now use her failure as the basis for her appeal.

Plaintiff argues that Judge Santiago abused her discretion by "terminating" plaintiff's PIP benefits. Contrary to plaintiff's assertions, however, Judge Santiago did not terminate plaintiff's PIP benefits. Rather, on October 12, 2004, the judge suspended defendant's obligation to pay those benefits pending resolution of the underlying issue, that is, whether plaintiff had reached her maximum medical benefit, thereby rendering further medical treatment unnecessary. R. 4:23-2 grants the trial court broad discretion in formulating sanctions so long as those sanctions are just and reasonable. Pressler, Current N.J. Court Rules, comment on R. 4:23-2 (2007). Subsection (b) of R. 4:23-2 states, in pertinent part: "If a party . . . fails to obey an order to provide or permit discovery, . . . the court in which the action is pending may make such orders in regard to the failure as are just[.]"

Suspending plaintiff's benefits was a reasonable sanction created to facilitate the completion of discovery. Even then, the judge required defendant to hold all payments in escrow until the case was resolved. It was only after plaintiff's repeated failure to comply with the court's order that the judge asserted, on December 22, 2004, that any further noncompliance would result in the dismissal of plaintiff's complaint and the termination of her benefits. Judge Santiago's order afforded plaintiff an opportunity to bring herself into compliance with the court's orders and was otherwise reasonable and just. Therefore, the judge did not abuse her discretion in issuing the October 12, 2004 order.

Plaintiff argues that both judges erred in precluding plaintiff's treating physicians from testifying, and that such ruling was improper because plaintiff had not retained her witnesses in anticipation of litigation, but did so for purposes of diagnosis and treatment. She claims there is a "separate category of experts" and that courts permit treating physicians to give their opinions based upon the treatment provided even though they have not been named as expert witnesses. Contrary to her current premise, plaintiff appears to have consistently referred to her physicians as expert witnesses throughout the pretrial process, and she repeatedly agreed to produce expert reports.

As noted, Judge Santiago did not actually preclude the use of plaintiff's physicians. Rather, she suspended benefits and ordered that plaintiff's continued noncompliance would result in a dismissal with prejudice. When plaintiff still failed to provide the necessary reports, Judge Davidson did preclude expert testimony from the witnesses for whom plaintiff had submitted no report. Plaintiff conceded she could not prove her claim without detailed testimony from those witnesses. Hence, the trial judge properly exercised her sound discretion to impose the sanction of barring the doctors' testimony even though she knew plaintiff could not prove her case without them.

Plaintiff always intended to present her treating physicians as experts, not fact witnesses, and was given multiple extensions for that purpose. Plaintiff's counsel presented no legitimate excuse for his failure to provide the required reports. Under such circumstances, Judge Davidson's decision to dismiss plaintiff's complaint is affirmed.

In its opinion in Stigliano v. Connaught Lab., Inc., 140 N.J. 305, 313-14 (1995), the Supreme Court recognized that "[u]nlike . . . expert[s] retained to testify at trial, the treating doctors gain[] no confidential information about plaintiffs' trial strategy" and thus, although they "are doubtless 'experts,' in this case they are more accurately fact witnesses" since "[t]heir testimony relates to their diagnosis and treatment of . . . plaintiff." While the Court also recognized that in testifying as to their diagnoses and treatment, treating physicians must necessarily be permitted to give their opinions as to causation because "treating doctors to treat their patients must determine the cause of a disease, whether that determination is characterized as fact or opinion." Ibid. The Court did not signal the exemption of treating physicians from the disclosure requirements of R. 4:10-2(d), including the requirement that a treating physician who is expected to testify as an expert witness at trial shall provide an expert's report. When the treating physician's role is unquestionably intended to be that of an expert witness, such physician is subject to and must comply with the rules of discovery. Ibid.

The main flaw in plaintiff's argument, however, is not the court's characterization of plaintiff's witnesses, but rather her own. Plaintiff submitted her physicians as expert witnesses throughout the entire pretrial process. In fact, even at the trial, Harvey Meltzer requested additional time for his witnesses to review the reports from defendant's experts in order to generate their expert reports.

Furthermore, Judge Davidson did not abuse her discretion in denying plaintiff's request for another adjournment of the trial. Generally, applications to extend the time allotted for discovery are the exception rather than the rule. Rivers v. LSC P'ship, 378 N.J. Super. 68, 78 (App. Div.), certif. denied, 185 N.J. 296 (2005). Thus, under R. 4:24-1(c), "[a]bsent exceptional circumstances, no extension of the discovery period may be permitted after an arbitration or trial date is fixed." Plaintiff cannot satisfy the exceptional circumstances requirement and, therefore, her argument must fail.

Plaintiff argues that Judge Davidson erred by requiring her to proceed first at trial. This case arises out of plaintiff's order to show cause, requiring defendant to show cause why it should no longer be obligated to abide by the terms of the October 2002 order, which instructed defendant to continue to make all medical expense payments for plaintiff until she received the maximum medical benefit. Therefore, the burden was on defendant to prove that plaintiff's treatment is no longer necessary and reasonable. However, N.J.R.E. 611(a) vests broad discretion in the court to exercise reasonable control over the mode and order of interrogation of witnesses and the presentation of evidence. Moreover, the judge's decision to have plaintiff proceed first was harmless error, since plaintiff conceded that she could not prove her claim without expert testimony from her doctors and did not oppose defendant's motion to dismiss her complaint.

Finally, plaintiff alleges that both Judge Santiago and defense counsel committed ethical violations and that those violations resulted in the erroneous imposition of sanctions on plaintiff. There is no evidence in the record to support these allegations and, therefore, they are without merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(A) and (E).

Affirmed.

 

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A-4418-04T2

June 14, 2007