DREW BRADFORD v. DR. STUART FREEDENFELD et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5257-05T35257-05T3

DREW BRADFORD,

Plaintiff-Appellant,

v.

DR. STUART FREEDENFELD and

STOCKTON FAMILY PRACTICE,

Defendants-Respondents.

_____________________________________

 

Submitted January 24, 2007 - Decided March 7, 2007

Before Judges Wefing and C.S. Fisher.

On appeal from Superior Court of New Jersey,

Law Division, Somerset County, No. SOM-L-1212-03.

Carole K. Boyd, attorney for appellant.

Buckley & Theroux, attorneys for respondents

(George H. Cortelyou, of counsel and on the brief).

PER CURIAM

Plaintiff Drew Bradford appeals from a trial court order entered May 2, 2006, denying his motion for reconsideration of the trial court's earlier order granting summary judgment to defendant Stuart Freedenfeld, M.D. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.

Plaintiff came under defendant's care for treatment of his high blood pressure condition through the administration of chelation therapy. Plaintiff received eight treatments in the period from August 25, 2000, to December 4, 2000. Several days after that last treatment, plaintiff called defendant. Plaintiff tape-recorded their conversation, as was his practice.

DR. FREEDENFELD: Hello. Is this Drew?

MR. BRADFORD: Yes.

DR. FREEDENFELD: Dr. Freedenfeld.

MR. BRADFORD: Hi, Stu. I think something is going wrong with the chelation, Doctor, because, you know, um, um, I believe the literature and you had told me it wouldn't pull the calcium out of the bones, but what's been happening is that I have a very bad pain on the bottom of my right foot in the bone area; the left wrist has a very bad pain on the side of the wrist, it's pretty wide; my teeth have become very sensitive, one of them is even cracked, the dentist says he's got to cap it. And I had mentioned to you before about that pain on my side which is by the bottom rib there; but I just-at first I didn't think anything of it, because I just, you know, you had said there wouldn't be any problems like this. And the literature said it wouldn't. And-but then I [sic] just started to dawn on me that this is the only thing I can think of, the chelation, because it's just so many bone type things that are starting to hurt now.

DR. FREEDENFELD: No, it has nothing to do with the chelation. Is there something that happened acutely today that we need to know right now?

MR. BRADFORD: Right now?

DR. FREEDENFELD: Yeah.

MR. BRADFORD: No. I just started to put this all together and, you know, I figured it was the responsible thing on my part to let you know-I mean, I'm trying to drink extra skim milk and going to run to the health store and get some magnesium, but I can't think of anything else that-

DR. FREEDENFELD: First of all, your symptoms that you're having pain in your wrist and your foot is not one of bone loss. If you think of the millions of people with osteoporosis, you don't have pain in their feet and wrists; its' just not painful.

MR. BRADFORD: Okay. I-

DR. FREEDENFELD: I think that these are things that we can talk about and we ought to review in the office setting where I can look at your wrist and feet and see what's going on.

MR. BRADFORD: Uh-huh. Okay.

DR. FREEDENFELD: I wouldn't be concerned about this as far as osteoporosis.

MR. BRADFORD: It's just that I've never--

DR. FREEDENFELD: The dental problems, that's what they are, dental problems.

MR. BRADFORD: Well, I've never had these problems before in the bones and in these areas and the pain in these areas and with my teeth, so it just seems--

DR. FREEDENFELD: Right. I understand the concern. It's just absolutely no cause of concern that the chelation would cause softening of your bones, absolutely not.

MR. BRADFORD: Yes. I know that's what you had told me. That's what the literature said. So at first I didn't even think - I mean, this has actually been - probably been going on for a while, you know, and --

DR. FREEDENFELD: Well, we don't know that you even have osteoporosis. I mean, there are very simple ways to find that out.

MR. BRADFORD: Okay.

DR. FREEDENFELD: All right.

MR. BRADFORD: I listen -

DR. FREEDENFELD: When are you going to be in the office again?

MR. BRADFORD: Well, I was due for the next chelation not this Monday-what is this going to be the 11th - I think the 18th or something like that, but I called to cancel it because I didn't want to get any more chelation, you know, because I figured, Jesus-

DR. FREEDENFELD: Well, that's always your decision; but as far as checking these things, if you would like me to get involved, call the office on Monday and schedule an appointment some time during the week, and we will take a look at it. Okay?

MR. BRADFORD: Yes.

DR. FREEDENFELD: All right.

MR. BRADFORD: I certainly can call the office and schedule appointments for you to look at it, but I've never had these bone pains before and -

DR. FREEDENFELD: I understand that. Let's take care of that in the office setting. Okay.

MR. BRADFORD: Okay.

DR. FREEDENFELD: All right.

MR. BRADFORD: Thank you.

DR. FREEDENFELD: You take care, bye-bye.

MR. BRADFORD: Bye-bye.

Plaintiff never returned to defendant's office.

On September 3, 2003, plaintiff filed a complaint alleging defendant deviated from the standard of care in treating plaintiff. In addition to defendant, plaintiff named Jean Graber, who worked as a nurse for defendant. Ms. Graber has been granted summary judgment, and plaintiff does not challenge that on this appeal.

After a period of some discovery, defendant moved for summary judgment, arguing that plaintiff had failed to comply with the affidavit of merit statute, N.J.S.A. 2A:53A-27, and that plaintiff's complaint was barred by the statute of limitations. The trial court rejected the first argument but, based upon the telephone conversation we have set forth, agreed with the second and granted summary judgment in an order entered March 8, 2006. Plaintiff moved for reconsideration. The trial court denied that motion. In the statement of reasons appended to the order, the trial court noted that it considered plaintiff's motion, filed April 3, 2006, to be untimely under R. 4:49-2. It also noted that plaintiff's motion failed to establish the requisite elements for reconsideration. This appeal followed.

R. 4:49-2 governs motions for reconsideration. It provides in pertinent part:

[A] motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it. The motion shall state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which counsel believes the court has overlooked or as to which it has erred.

The twenty-day deadline for filing a motion for reconsideration is one which may not be relaxed. R. 1:3-4(c).

In our judgment, the trial court erroneously computed the allowable period in which a party may file a motion for reconsideration. In its statement of reasons, the trial court allowed the three-day period permitted under R. 1:3-3 for service by mail and counted the twenty days from March 11, 2006.
R. 4:49-2, however, speaks of twenty days from service of the order upon all parties by the person obtaining it, in this case, defendant. Defendant moved for summary judgment, and the trial court executed the order supplied by defendant. That order contains the usual provision directing that it be served within seven days of its entry.

The record before us is silent as to when defendant served plaintiff with a copy of the order granting summary judgment. If, however, we adopt the three-day provision of R. 1:3-3, defense counsel would have received the order on March 11, 2006, and plaintiff would have received it on March 14, 2006. Twenty days from March 14 is April 3, and thus plaintiff's motion for reconsideration would have been timely filed.

We turn now to the substance of plaintiff's motion for reconsideration. In denying plaintiff's motion, the trial court included the following in its statement of reasons:

The standard governing the running of the statute of limitations is clear. The court imputes discovery of an injury if the plaintiff is aware of facts that would alert a reasonable person to the possibility of an actionable claim; medical or legal certainty is not required. Lapka v. Porter Hayden Co., 162 N.J. 545, 555-556 (2000).

The situation presented in Lapka, however, is far different than that presented here. The plaintiff in Lapka worked for Essex Chemical Corporation for more than fifteen years and was exposed to asbestos, dust, and a variety of harmful substances. 162 N.J. at 549. He developed pulmonary problems as a result of that exposure and was hospitalized twice for treatment of those problems. Id. at 549-50. On February 13, 1986, plaintiff filed a workers' compensation petition seeking compensation as a result of his work-related exposure to harmful substances. Id. at 551. On March 24, 1988, plaintiff filed a third-party action seeking damages from the manufacturers and suppliers of the substances to which plaintiff was exposed. Id. at 552-53. The Supreme Court affirmed the conclusions of the trial court and this court that the plaintiff's third-party action was barred by the two-year statute of limitations. Id. at 548.

In doing so, it framed the issue before it: "Did plaintiffs file suit within two years from the date they discovered, or by the exercise of reasonable diligence and intelligence should have discovered, the basis for an actionable claim?" Id. at 553. The Court recognized that its analysis had to reflect New Jersey's application of discovery rule principles. Ibid.; Lopez v. Sawyer, 62 N.J. 267 (1973). After analyzing the record, the Court concluded "that because the record here unquestionably establishes plaintiff's awareness of the essential facts, no formal hearing was necessary to resolve the discovery rule issue." Id. at 558.

Here, the record does not establish that awareness "unquestionably." Rather, when plaintiff called defendant to inquire about whether his chelation therapy could be the cause of his complaints, defendant assured him otherwise. A party's awareness that he or she has been injured, by itself, does not start the running of the period of limitations.

[T]he discovery rule centers upon an injured party's knowledge concerning the origin and existence of his injuries as related to the conduct of another person. Such knowledge involves two key elements, injury and fault.

[Lynch v. Rubacky, 85 N.J. 65, 70 (1981).]

The Court clearly set forth this element of knowledge of fault in Vispisiano v. Ashland Chemical Co., 107 N.J. 416, 434 (1987).

The point that Lynch and Alfone [v. Sarno] made was that in the face of defendant's reassurances, given within the doctor-patient relationship, there was no reason for those plaintiffs to suspect the defendant-physicians of deceit or dissembling. There was no reason for suspicion, hence the cause of action did not accrue.

It is not possible to determine from simply reading the transcript of that one telephone conversation, combined with the excerpts of plaintiff's deposition, whether plaintiff, on hanging up the telephone, accepted or rejected defendant's assurances.

[E]ach case calls for an identification, evaluation, and weighing of the equitable claims of the parties . . . .

That inquiry, though basically factual, should be punctilious and probing. The interplay of the conflicting interests of the competing parties must be considered. The decision requires more than a single factual determination; it should be made with a consciousness of the equitable nature of the issue.

To the extent that fault is not self-evident or obviously revealed by the injury itself, the judicial search into an aggrieved party's knowledge of possible fault must be commensurately exacting.

[Vispisiano, supra, 107 N.J. at 428 (citations omitted).]

Certain issues cannot adequately be resolved by review of discovery materials, no matter how extensive they may be. Kemp ex rel. Wright v. State, 174 N.J. 412 (2002) (holding that the trial court erred in dismissing plaintiff's complaint without conducting a N.J.R.E. 104 hearing even though no party had requested such a hearing). Here, the trial court did not adequately consider plaintiff's knowledge of possible fault on the part of this defendant.

The order under review is reversed, and the matter is remanded to the trial court for further proceedings. We do not retain jurisdiction.

 
Reversed and remanded.

(continued)

(continued)

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A-5257-05T3

March 7, 2007