SHANE JOHN v. JOSEPH MOORE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6005-07T36005-07T3

SHANE JOHN,

Plaintiff-Appellant,

vs.

JOSEPH MOORE,

Defendant-Respondent,

and

THERESA PATRICK and NEW JERSEY

MANUFACTURERS INSURANCE CO.,

Defendants.

__________________________________

 

Argued: September 16, 2009 - Decided:

Before Judges Cuff and Payne.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2909-06.

Daniel B. Zonies argued the cause for appellant (Daniel B. Zonies & Associates, attorneys; Mr. Zonies, on the brief).

Andrew Siegeltuch argued that cause for respondent (Sweeney & Sheehan, P.C., attorneys; Mr. Siegeltuch, of counsel; Erin S. Miller, on the brief).

PER CURIAM

Plaintiff Shane John appeals from an order granting summary judgment in favor of defendant Joseph Moore. Plaintiff had filed a complaint seeking damages for injuries allegedly sustained in an October 13, 2004 auto accident. Plaintiff alleged that the automobile in which he was a passenger had been struck from behind by an automobile driven by defendant Joseph Moore. We affirm.

Consideration of the issues presented by this appeal requires a detailed review of the procedural history of this civil action. The automobile accident occurred on October 13, 2004. Almost two years later, on October 11, 2006, plaintiff filed a complaint seeking damages for the injuries he sustained in the 2004 accident. Defendant Moore filed an answer on January 8, 2007.

In response to the uniform interrogatories used in all automobile cases, plaintiff revealed that Dr. Leonard Strobel examined and treated him until January 6, 2005. Plaintiff stated that he experienced numbness in his back, legs and neck. He asserted he cannot bend or pick up anything without pain. His legs become numb if he sits for any length of time. He also asserted that he experiences limitation of motion. Plaintiff stated that he has a torn medial meniscus, a ruptured anterior cruciate ligament, and multilevel lumbar and inferior thoracic spine degenerative disc disease.

Plaintiff also disclosed that he fell from a tree stand in November 2005 and was treated by a physician in Philadelphia, Pennsylvania. Medical records obtained by defendant revealed treatment for an injury to plaintiff's low back, right knee, and right shoulder following a fall from a deer blind in 1999. Plaintiff revealed that he had not worked since that fall. During a March 15, 2004 examination with a physician other than the physician who treated him following his October 2004 automobile accident, plaintiff complained of right shoulder pain, instability in his right knee, and low back pain with radiating numbness in both legs.

Defendant deposed plaintiff on March 19, 2008. At oral argument plaintiff's attorney explained that he was unable to contact his client for a period of time which contributed to the delay in scheduling the deposition. Plaintiff's attorney also asserted he was hampered in obtaining all of his client's medical records because he could not locate him. Plaintiff testified at his deposition that he used his father's address as his mailing address and that he had lived at other places but had never changed his mailing address. Moreover, he testified that he never moved out of town.

The initial discovery end date was November 4, 2007. It was extended three times to January 3, 2008, then to April 2, 2008, and finally to June 2, 2008. On April 29, 2008, the court scheduled non-binding arbitration for July 2, 2008. On May 23, 2008, defendant filed a motion for summary judgment.

In his motion, defendant argued that plaintiff had never submitted a Certificate of Permanency or an opinion from any physician causally relating plaintiff's complaints and injuries to the October 2004 automobile accident. Defendant noted that he had nothing more than ten pages of office notes and reports of diagnostic tests from plaintiff's treating physician. In response, plaintiff provided the Attending Physician Report Dr. Strobel submitted to plaintiff's insurance carrier for personal injury protection (PIP) benefits, and a June 11, 2008 report from Dr. Steven Klein. The latter report was accompanied by a certification from plaintiff's attorney in which he informed the court that Dr. Strobel died in May 2008 and that he had not obtained a report from Dr. Strobel that causally related plaintiff's complaints and injuries to the October 2004 accident before the doctor's death. Plaintiff's attorney also related that he immediately scheduled an evaluation of plaintiff with Dr. Klein at the earliest available date of June 4, 2008.

At oral argument, plaintiff's attorney advised Judge Hogan that an independent medical examination of plaintiff occurred in December 2007 and that he requested plaintiff's medical records before and after the October 2004 automobile accident. He also reminded the judge that he had filed a motion to compel defendant to provide him with any medical records defendant had in his possession. He obtained those records in April 2008, provided the information to Dr. Strobel, obtained an extension of discovery, and called the doctor's office to inquire about receipt of a report. When he received defendant's motion for summary judgment on or about May 23, 2008, plaintiff's attorney called the treating physician's office and was informed that the doctor had died. Plaintiff also contended that the Attending Physician's Report was sufficient to satisfy the need for a narrative report because it describes plaintiff's complaints, contains the treating physician's diagnoses and sets forth the treatment rendered to plaintiff.

In his July 3, 2008 opinion, Judge Hogan held that plaintiff did not comply with Rule 4:17-7 because he failed to amend his answers to interrogatories twenty days before the June 2, 2008 discovery end date. Furthermore, the June 11, 2008 physician's report was accompanied by a certification that did not satisfy the rule. In addition, the judge held that the June 11, 2008 report was inconclusive because it omitted any reference to plaintiff's asserted knee injury.

Rule 4:17-7 provides that interrogatory responses may be supplemented up to twenty days before the expiration of discovery. Supplementation may occur following that date if the party seeking to supplement its earlier responses "certifies . . . that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date." R. 4:17-7. In addition, once an arbitration date has been fixed, discovery may not be extended without a showing of exceptional circumstances. R. 4:24-1(c).

The purpose of these rules is to address and rectify the liberality with which late amendments had been tolerated before 2000 and the consequent delays occasioned by this approach. Bender v. Adelson, 187 N.J. 411, 426 (2006); Brun v. Cardoso, 390 N.J. Super. 409, 411 n.2 (App. Div. 2006). A decision to bar a requested amendment and deny a further discovery extension is governed by the abuse of discretion standard. Bender, supra, 187 N.J. at 428.

In Bender, the defendants sought to amend their answers to interrogatories to name three additional experts several weeks following the date fixed by the court to identify experts. Id. at 418. The Court held that the trial judge properly refused to allow the defendants to amend their answers to interrogatories because they failed to show either due diligence or exceptional circumstances. Id. at 428. The Court explained that "[a] precise explanation that details the cause of delay and what actions were taken during the elapsed time is a necessary part of proving due diligence . . . and exceptional circumstances . . . to extend discovery after a trial or arbitration date is set." Id. at 429. The Court noted that the defendants knew the central theory of the plaintiff's case for nine months but offered "no substantively adequate explanation for their delay in profferring the three expert names and reports." Ibid. The Court also recognized that the defendants had timely named an expert who testified at trial. Id. at 430.

Bender, of course, discusses the governing standard and its application in the context of an appeal by defendants from an unfavorable verdict. The defendants argued that the result might have been different if they had been able to present expert testimony more favorable to their position than the evidence they actually presented. The Court in Bender cited several cases illustrating instances in which courts have barred untimely requests for discovery extensions and interrogatory response amendments and discussing the standard and its application in the context of a plaintiff's pretrial request to supplement its proofs. Id. at 428.

In Szalontai v. Yazbo's Sports Caf , 183 N.J. 386 (2005), the Court held that the trial judge properly barred a discovery extension and amendment to interrogatories to name a liability expert and a new physician. The motion to extend discovery and amend interrogatories to name a liability expert followed a lengthy period of discovery marked by one formal extension and a short period of limited consensual post-discovery end-date discovery, and an arbitration award in favor of the defendants. Id. at 391-92. In a motion for reconsideration filed several months later, plaintiff also sought to submit an expert report from a new physician. Id. at 393-94. The trial judge allowed the plaintiff to file the new physician's report but denied the renewed application to submit a liability expert report. Id. at 394. At trial, the judge granted the defendants' motion for involuntary dismissal. Id. at 394-95.

The Court affirmed the denial of the initial motion to extend discovery and amend interrogatories to allow the belated designation of a liability expert and the denial of the motion for reconsideration. Id. at 396. The Court emphasized that the request for an extension of the discovery deadline occurred after both the arbitration and trial date had been fixed, after issuance of the arbitration award, and "on the very day the trial date was set." Id. at 397. Moreover, the Court highlighted the scant amount of discovery conducted during the initial and extended discovery periods, including the failure to depose even the plaintiff. Ibid.

Similarly, in Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463 (App. Div. 2005), this court affirmed the denial of the plaintiff's motion to extend discovery. The plaintiff did not discover a mistake in information provided by the defendant in the early stages of discovery until the plaintiff's deposition was taken after the expiration of the initial discovery period. Id. at 473. We emphasized that the problem facing the plaintiff, including the inability to retain an expert to examine the equipment actually involved in the incident, was caused solely by the plaintiff's failure to engage in timely discovery. Id. at 474.

In Smith v. Schalk, 360 N.J. Super. 337, 346 (App. Div. 2003), we held that the defendant was entitled to a new trial after the trial judge permitted the plaintiff to admit medical evidence that the plaintiff disclosed on the very eve of trial. We emphasized that the plaintiff failed to file an application to amend her answers to interrogatories supported by an affidavit of due diligence. Id. at 345. We held that a new trial was necessary because the medical evidence submitted five and three days before trial materially enhanced plaintiff's evidence concerning the nature of her injuries and their permanence. Ibid. The evidence had the clear capacity to influence the verdict, and the defendant was unable to effectively rebut this evidence. Id. at 345-46.

Here, plaintiff's pre-trial preparation of his case can best be characterized as lackadaisical. Other than responding to defendant's initial set of interrogatories, it is difficult to determine what, if anything, occurred to prepare the case for trial. Once plaintiff responded to defendant's interrogatories and defendant obtained his records, plaintiff's counsel and defendant recognized that plaintiff had experienced prior and subsequent injuries to the same areas of his body as alleged in this case. Plaintiff's attorney ascribes his difficulty in obtaining plaintiff's prior and subsequent medical records to his inability to contact his client. Yet in his deposition, plaintiff stated that he never left the area and always maintained the same mailing address.

Plaintiff attempts to depict the death of his treating physician as an unanticipated occurrence that merits judicial rescue. To be sure, plaintiff faced a crisis as the discovery end date and arbitration approached and he learned that his treating physician had died. The record demonstrates, however, that the treating physician's death only exacerbated the problem facing plaintiff as the discovery end date approached. Nothing of any consequence had been done to prepare this case for trial. Thus, as the discovery end date and the arbitration approached, twenty months after the filing of the complaint and forty-four months after the accident, plaintiff did not have an opinion from any physician causally relating the October 2004 auto accident to the injuries treated by the deceased Dr. Strobel between October 2004 and January 2005.

In many instances, the death of a treating or examining physician is a circumstance that will produce a relaxation of the rules. Nadal v. Bergamo, 160 N.J. Super. 213, 218 (App. Div. 1978); Pressler, Current N.J. Court Rules, comment 1.1 and 1.33 on R. 4:17-7 (2010). See also O'Donnell v. Ahmed, 353 N.J. Super. 44, 51 (Law Div. 2003) (providing examples of what constitutes exceptional circumstances under Rule 4:24-1, including the "death or health problems of a key witness requiring further discovery to develop information caused by the loss of the witness"); Montiel v. Ingersoll, 347 N.J. Super. 246 (Law Div. 2001) (generally discussing the exceptional circumstances standard under Rule 4:24-1 and due diligence standard under Rule 4:17-7 and the effect of the 2000 "Best Practices" amendment). In those instances, however, the physician had rendered a report that detailed complaints, findings, treatment, prognosis, and causal relationship between the injury and the purported traumatic event. That is not this case. Plaintiff's deceased treating doctor never rendered a report linking plaintiff's complaints and the doctor's clinical findings to the October 2004 auto accident. Thus, the late amendment and further substitution sought by plaintiff would have dramatically altered the viability of plaintiff's case and stood the current discovery scheme on its head.

In short, plaintiff failed to demonstrate due diligence or exceptional circumstances to warrant a further extension of discovery and an amendment to his interrogatory responses. Furthermore, because plaintiff failed to produce any evidence of a causal relationship between his alleged injuries and the October 2004 automobile accident, the judge properly granted defendant's motion for summary judgment.

 
Affirmed.

Defendants Theresa Patrick and New Jersey Manufacturers Co. were dismissed as defendants by orders dated April 28, 2007 and January 17, 2008, respectively.

The parties eventually agreed that plaintiff was not subject to the verbal threshold.

(continued)

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A-6005-07T3

October 22, 2009