ALETHEA VAUGHN v. PETER N. MASSA

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1092-09T21092-09T2

ALETHEA VAUGHN,

Plaintiff-Appellant,

v.

PETER N. MASSA and BROADWAY

BUS COMPANY,

Defendants-Respondents.

 

Submitted April 26, 2010 - Decided

Before Judges Baxter and Alvarez.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1329-08.

Mattleman, Weinroth & Miller, P.C., attorneys for appellant (Kimberley Kluchnick, on the brief).

Salmon, Ricchezza, Singer & Turchi, LLP, attorneys for respondents (Timothy J. Schipske, on the brief).

PER CURIAM

Plaintiff Alethea Vaughn appeals from the denial of her motion for reconsideration of a July 17, 2009 order barring the use of an expert report she produced as an amendment to interrogatories six days prior to the discovery end date. We affirm.

Plaintiff filed suit against defendants Peter N. Massa and Broadway Bus Company (Broadway) for personal injuries suffered when, as alleged in her complaint, she was struck by a Broadway-owned bus operated by Massa while seated on a motor scooter in the City of Bayonne. At the time, plaintiff was working as a "traffic officer." She alleges Massa was negligent and proximately caused her to suffer injuries to her back and right knee.

Defendants filed their answer out of time on June 19, 2008. Plaintiff's attorney agreed to vacate the default on the condition that defendants would grant plaintiff an additional sixty days for the submission of a "tort threshold certification of treating physician" if necessary. Plaintiff forwarded her answers to interrogatories to defendants on December 11, 2008. She listed her treating physician, Dr. John A. Faccone, as her proposed expert witness. The parties stipulated to a discovery end date of June 18, 2009.

On June 12, 2009, six days before the discovery end date, plaintiff mailed an April 20, 2009 expert report authored by Dr. Stuart Dubowitch as an amendment to her answers to interrogatories. In that report Dr. Dubowitch opined that plaintiff's injuries were "severe and permanent," that she would experience "ongoing problems in the future," and that she would continue to require medical care indefinitely. The letter forwarding the report indicated that Dr. Dubowitch was the "expert physician who may testify at the time of trial," and that the absence of a response by defense counsel within ten days would constitute acceptance of the amendment to plaintiff's interrogatory answers. Plaintiff's counsel included neither a copy of Dr. Dubowitch's credentials nor a certification stating that the report "was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date" as required by Rule 4:17-7. Plaintiff asserts that Dr. Dubowitch is the sole expert to be presented during trial and that his report is the only report as to causation, although it merely indicated in passing that the injuries were "sustained in an accident."

On June 17, 2009, defendants filed a motion to bar the amendment to interrogatories premised on plaintiff's failure to comply with Rule 4:17-7, which provides:

Except as otherwise provided by [Rule] 4:17-4(e), if 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 the absence of said certification, the late amendment shall be disregarded by the court and adverse parties. Any challenge to the certification of due diligence will be deemed waived unless brought by way of motion on notice filed and served within 20 days after service of the amendment. Objections made thereafter shall not be entertained by the court. All amendments to answers to interrogatories shall be binding on the party submitting them. A certification of the amendments shall be furnished promptly to any other party so requesting.

[R. 4:17-7.]

Plaintiff's opposition to the motion was filed on July 9, 2009. On that same date, both parties were sent a notice advising of the date of mandatory, non-binding arbitration. The motion was decided on the papers on July 17, 2009. Defendant's motion was granted and plaintiffs were precluded from use of the report in arbitration and at trial. Additionally, the order prohibited "any and all reference, reliance upon, or testimony arising from or associated with Dr. Stuart Dubowitch."

In reaching her decision, the first motion judge relied heavily on the timeline, and the fact that while the report was dated April 20, 2009, two months before the discovery end date of June 18, 2009, it was not sent to defendants until June 12, 2009. The court also noted that the late submission "deprived movant of [the] ability to timely move for [an extension] of [discovery]" and that plaintiff did not request an extension of the discovery end date. The court stated that no explanation was provided for the late filing, arbitration was scheduled for August 27, 2009, and that exceptional circumstances were not established. The court further opined that defendants would be severely prejudiced if the expert was not barred.

On August 13, 2009, plaintiff filed for reconsideration before a second motion judge, the first having retired. For the first time, plaintiff's counsel certified that the report was produced so late in the process because he "failed to include in [his] diary a second entry for the submission of [the] expert report pursuant to Rule 4:17-7." The certification went on to state that he did not realize the error had even occurred until he received defendants' letter objecting to the report. The motion was opposed.

During oral argument on the reconsideration motion, plaintiff's counsel reiterated that the late submission was innocent and merely a result of his failure to diary the report. When asked directly why he did not forward it to opposing counsel upon receipt, plaintiff's counsel responded only by saying he simply "put it in the file." He went on to say that he read the report but put it in the file for "further review," and "lost track of it." Defendants argued that they would be prejudiced by the admission of the report as it was "diametrically opposed" to the earlier submission. The motion court denied reconsideration, finding that although the exceptional circumstances requirement was inapplicable because arbitration was not scheduled until after the filing date of the motion, the prior decision barring use of the expert was nonetheless correct. Dr. Dubowitch's report was not produced until two months subsequent to its receipt and no due diligence certification was supplied at any time. When the parties appeared on September 17, 2009 for mandatory, non-binding arbitration, the arbitrators no caused plaintiff because she had not provided the opinion of an expert. This appeal followed.

Plaintiff's arguments on appeal essentially sidestep the thrust of the applicable rule. The initial decision resulted from an incorrect exceptional-circumstances analysis. Once "an arbitration or trial date is fixed," Rule 4:24-1(c) only permits the extension of a discovery end date upon the showing of "exceptional circumstances." When granting defendant's motion to preclude Dr. Dubowitch's report, the trial court improperly applied an exceptional-circumstances analysis, mistakenly assuming that the arbitration had been scheduled prior to the filing of the motion. But the outcome is the same under the correct due diligence analysis.

As plaintiff points out, there were less draconian means of addressing plaintiff's misstep. That argument does not, however, avoid the rule's preclusion of the untimely expert report. A "trial court's decisions regarding discovery are normally given deference by a reviewing court, and will not be upset on appeal absent an abuse of discretion. . . ." Piniero v. N.J. Div. of State Police, 404 N.J. Super. 194, 204 (App. Div. 2008). See also Wilson v. Amerada Hess Corp., 168 N.J. 236, 253 (2001); Payton v. N.J. Tpk. Auth., 148 N.J. 524, 559 (1997); Spinks v. Twp. of Clinton, 402 N.J. Super. 454, 459 (App. Div. 2008); Medford v. Duggan, 323 N.J. Super. 127, 133 (App. Div. 1999). This same abuse-of-discretion standard applies to a trial court's decision to bar a party's "requested amendments to [] interrogatory answers." Bender v. Adelson, 187 N.J. 411, 428 (2006).

In this instance, plaintiff's production of the report after the twenty-day deadline contained in Rule 4:17-7 was a clear violation. The amendment to the interrogatories and inclusion of the report was not accompanied by a certification asserting that the report was not "reasonably available or discoverable by the exercise of due diligence." R. 4:17-7. In fact, plaintiff's counsel did not explain that he had "lost track of" the report until the motion for reconsideration, months after the report was received by his office. No due diligence certification could possibly have been provided given these circumstances. Therefore, the issue is not whether the rule's proscriptions have been breached, but whether there is any justification for relaxation of those proscriptions in favor of plaintiff.

We agree with plaintiff's contention that the Best Practices Rules were not intended "to do away with substantial justice on the merits or to preclude rule relaxation when necessary to 'secure a just determination.'" Tucci v. Tropicana Casino & Resort, Inc., 364 N.J. Super. 48, 53 (App. Div. 2003) (quoting R. 1:1-2(a)). In Tucci, the delay in production of an expert's report resulted from difficulties with receipt of records that were in the defendant's possession and were necessary to the expert's determination. Id. at 50-51. Additionally, the plaintiff's counsel's mother became terminally ill and died; as a result, counsel was absent from the office. Id. at 51-52.

Similarly, in Ponden v. Ponden, 374 N.J. Super. 1, 7 (App. Div. 2004), the certificate of due diligence filed by the plaintiff included a certification from his new attorney asserting that the prior expert report needed to be replaced due to a conflict of interest. Counsel also stated that when the file was forwarded to his office, it did not contain the discovery end date. Ibid. As a result, he was not aware of the deadline until he was served with the motion for summary judgment. Ibid.

The circumstances in Tucci and in Ponden cried out for an exception to be made. As plaintiff points out, dismissal is a "recourse of last resort, not to be invoked unless no lesser sanction is adequate in view of the nature of the default, its attendant prejudice to other parties, and the innocence of the sanctioned litigant." Tucci, supra, 364 N.J. Super. at 52 (citations omitted). The circumstances in this case, however, do not warrant an exception to the rule.

Although no arbitration date was set at the time of plaintiff's late production of Dr. Dubowitch's report, it is undisputed that an arbitration date had been set by the time the first motion judge considered the matter. Plaintiff did not move for an extension of discovery nor provide a certification explaining the situation at all until the motion for reconsideration. The belated admission of the expert report in this case would have further delayed discovery, arbitration, and the eventual trial. Plaintiff simply cannot satisfy the "due diligence" requirement of Rule 4:17-7 and has not presented any good cause justifying relaxation.

Plaintiff further argues that barring the use of Dr. Dubowitch's report necessarily results in a dismissal of her cause of action. Since the report's explanation of causation is virtually nonexistent, in reality, plaintiff still faced the very real prospect of dismissal due to a lack of evidence as to causation. This is a factor that also weighs against relaxation of the rule.

 
Affirmed.

The record contains no transcript of a hearing regarding this motion. The order itself states that the court "reviewed the moving papers [and] heard oral arguments of counsel."

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A-1092-09T2

June 3, 2010