GLADYS PAGAN v. MICHAEL KENNETH MOORE

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1709-09T11709-09T1

GLADYS PAGAN,

Plaintiff-Appellant,

v.

MICHAEL KENNETH MOORE,

ALLSTATE INSURANCE

COMPANY,

Defendants-Respondents.

_______________________________________

 

Argued June 7, 2010 - Decided

Before Judges Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1769-07.

Kevin T. Kutyla argued the cause for appellant.

John W. McDermott argued the cause for respondents (Harwood Lloyd, L.L.C., attorneys; Cynthia Molkenthin Lay, on the brief).

PER CURIAM

Plaintiff Gladys Pagan appeals from orders entered by the trial court on November 10, 2009, which granted a motion by defendant Michael Kenneth Moore (Moore) to bar plaintiff from presenting any testimony or report from her proposed expert witness, Bryan J. Massoud, M.D. (Dr. Massoud), and denied plaintiff's motion for permission to introduce Dr. Massoud's videotaped deposition testimony into evidence at the time of trial. For the reasons that follow, we reverse.

I.

This appeal arises from the following facts. Plaintiff filed a complaint in the Law Division, in which she alleged that she was involved in a motor vehicle accident on June 25, 2005, and, as a result, sustained personal injuries. Plaintiff asserted that her vehicle was struck in the rear by a vehicle that was owned and operated by Moore. Plaintiff claimed that Moore had operated his vehicle negligently and she sustained injuries as a proximate cause of his negligence.

On or about January 31, 2008, plaintiff filed answers to the Form A Uniform Interrogatories, supplemental interrogatories and a notice to produce documents. Question twenty-three of the Form A interrogatories asked that plaintiff name her proposed expert witnesses and provide the expert's reports. In response to this question, plaintiff stated, "[a]ll treating physicians and staff named in these answers and attached documents." However, Dr. Massoud was not named as a treating doctor in the documents attached to the answers, nor did plaintiff furnish defendant with an expert report from Dr. Massoud.

Plaintiff was deposed on December 10, 2008. She testified that several months earlier, she had surgery to address an injury sustained in the accident. She incorrectly stated that a Dr. Leu had performed the procedure. In March 2009, defendant requested copies of all of the records pertaining to the surgery. Plaintiff did not provide those records. Discovery in the case ended on May 14, 2009.

The matter was submitted to arbitration on May 21, 2009, pursuant to Rule 4:21A-1(a)(1). Plaintiff's attorney attached a copy of Dr. Massoud's two-page report to the arbitration statement dated May 20, 2009, which he submitted on plaintiff's behalf. Dr. Massoud's report was dated February 23, 2009.

In his report, Dr. Massoud noted that in October 2008, plaintiff underwent a bilateral, posterolateral endoscopic discectomy and annuloplasty at the L5-S1 level of the spine. Among other conditions, Dr. Massoud diagnosed cervical and lumbar strain syndrome, annular bulges, left lumbar radiculopathy, and exacerbation of plaintiff's pre-existing, asymptomatic cervical spondylosis. Dr. Massoud additionally stated that plaintiff was a candidate for another cervical endoscopic discectomy and annuloplasty at the C2-C3 and C5-C6 levels of the spine.

Dr. Massoud opined that, within a reasonable degree of medical certainty, plaintiff's diagnoses, need for surgical intervention and further medical care, decreased quality of life, and functional abilities were the direct causal result of the June 25, 2005, motor vehicle accident. The doctor further opined that plaintiff's condition was permanent in nature.

The case was initially scheduled for trial on October 19, 2009. On July 30, 2009, plaintiff's counsel advised defense counsel that he intended to conduct a videotaped deposition of Dr. Massoud on October 1, 2009. Before participating in the deposition, defendant's attorney stated on the record that she would object to the presentation of Dr. Massoud's testimony at trial because plaintiff failed to name the doctor as her expert or furnish his report and treatment records prior to the discovery end date. It appears that the treatment records were provided at the deposition and defendant's attorney was given an opportunity to review them before deposing Dr. Massoud.

At defendant's request, the court adjourned the trial date to November 30, 2009. On October 13, 2009, plaintiff filed a motion seeking leave to present Dr. Massoud's videotaped deposition as evidence at trial. Defendant thereafter filed a cross-motion to preclude the introduction into evidence of Dr. Massoud's report and testimony.

The court considered the motions on November 10, 2009, and entered orders on that date denying plaintiff's motion and granting defendant's cross-motion. On the order denying plaintiff's motion, the court noted that plaintiff had not properly amended her answers to interrogatories pursuant to Rule 4:17-7. On November 25, 2009, plaintiff filed a motion for reconsideration of the court's November 10, 2009 orders.

The motion was referred to the judge who was assigned to the trial of the matter. The trial judge did not rule on the motion for reconsideration on November 10, 2009, but stated on the record that he had discussed the matter with counsel and plaintiff's attorney understood that he could not proceed with the case in light of the orders entered on November 10, 2009.

The trial judge thereupon entered an order dated November 30, 2009, dismissing plaintiff's complaint with prejudice. This appeal followed.

II.

Plaintiff argues that the court erred by denying her motion to present Dr. Massoud's videotaped testimony at trial. As noted previously, the judge relied upon Rule 4:17-7 as a basis for denying the motion.

Rule 4:17-7 provides in pertinent part that if a party has furnished answers to interrogatories and "thereafter obtains information that renders such answers incomplete or inaccurate," the party must serve amended answers on the other parties "not later than [twenty] days prior to the end of the discovery period[.]" The rule also states that

[a]mendments 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.

[Ibid.]

In this case, plaintiff provided answers to the Form A interrogatories, supplemental interrogatories and the notice to produce, but did not name Dr. Massoud as her expert or provide a copy of his report. It is undisputed that plaintiff's attorney did not amend plaintiff's discovery responses or serve Dr. Massoud's report upon defense counsel within the time prescribed by Rule 4:17-7.

We are satisfied that the motion judge correctly determined that plaintiff failed to amend her interrogatory answers within the time prescribed by Rule 4:17-7. However, we are convinced that under the particular circumstances presented in this matter, the judge mistakenly exercised his discretion by refusing to relax the requirements of the rule and precluding plaintiff from presenting Dr. Massoud's videotaped testimony at trial.

Here, plaintiff's attorney provided the court with two certifications in which he explained the reasons why Dr. Massoud's report had not been served within the time required by Rule 4:17-7. He explained that the attorney who filed plaintiff's complaint had decided not to pursue the matter and "stopped diligently prosecuting the case." Plaintiff then sought to retain another firm, Bavagnoli & Bavagnoli, which recommended that plaintiff handle the case. Plaintiff was associated at the time with Gruber, Colabella, Liuzza, Kutyla & Williams.

Dr. Massoud rendered a report dated February 23, 2009, and provided it to the Bavagnoli firm. The firm forwarded the report to plaintiff's attorney. In April 1, 2009, plaintiff left his firm and started a solo practice. According to plaintiff's counsel, Dr. Massoud's report was sent to him during the time when he was transitioning to his new office. Counsel says that he mistakenly assumed that the Bavagnoli firm had forwarded the report to defense counsel. He also states that, in this time, he had certain medical problems.

As we stated previously, discovery in the case ended on May 14, 2009, and the arbitration took place on May 21, 2009. Dr. Massoud's report was attached to plaintiff's arbitration statement. Defendant's attorney did not object to the introduction of the report at the arbitration. A settlement conference was held on July 29, 2009, and the attorneys discussed the availability of plaintiff's expert. On July 30, 2009, plaintiff's attorney informed defendant's attorney that Dr. Massoud would be deposed on October 1, 2009, and his testimony would be videotaped.

Defendant's attorney did not object to the deposition, even though it was scheduled after the discovery end date and Dr. Massoud's report had not been served within the time prescribed by Rule 4:17-7. Plaintiff's attorney paid the expert witness fee, the court reporter and the videographer. Moreover, defendant's attorney appeared for the deposition on October 1, 2009. Shortly before the deposition began, defense counsel told plaintiff's attorney that she intended to object to the presentation of Dr. Massoud's testimony at trial.

In our judgment, under these circumstances, barring Dr. Massoud's testimony and thereby effectively precluding plaintiff from going forward with her claims was a mistaken exercise of discretion. In this case, plaintiff's prior attorney had acted diligently in obtaining the expert report within the discovery period, and plaintiff's present attorney reasonably assumed that the report had been provided to defendant's attorney in a timely manner. We note that the failure to serve the report occurred in the time when plaintiff was changing firms and was experiencing certain medical problems.

We also note that defendant has not established that he was prejudiced by the late service of Dr. Massoud's report. In this regard, we emphasize that defendant did not object to the report when it was submitted at the arbitration. Furthermore, although defense counsel was aware on or about July 30, 2009, that the deposition would take place on October 1, 2009, counsel did not object to the deposition or renew her demand for Dr. Massoud's records.

Moreover, defendant's counsel had Dr. Massoud's report since at least May 21, 2009, and had ample time to review the report with her expert. Defense counsel has not explained how the service of Dr. Massoud's report outside the discovery period, or the late service of the medical records hampered her ability to depose Dr. Massoud. In addition, defendant's counsel did not inform plaintiff's attorney that she objected to Dr. Massoud's deposition and plaintiff incurred the considerable expense for the deposition.

We are convinced that, under these circumstances, the court should not have barred Dr. Massoud's testimony.

III.

Our conclusion is consistent with our decision in Brun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006). In that case, the plaintiff was injured in an auto accident and came under the care of a chiropractor, who referred her to an imaging center for a magnetic resonance imaging (MRI) test. Id. at 412. The MRI was performed and the radiologist rendered a report with his findings. Ibid. The plaintiff also came under the care of a neurologist. Ibid. In her answers to interrogatories, the plaintiff named the chiropractor, the neurologist and an unidentified person from the imaging center as expert witnesses. Id. at 413.

The matter was scheduled for trial and the plaintiff's attorney informed the court that the neurologist would not be called as a witness. Id. at 415. In addition, the court ruled that the chiropractor could not interpret the MRI and the plaintiff would have to present testimony about the MRI from a radiologist. Ibid. The radiologist who authored the report was no longer working at the imaging center and several weeks before the trial, the plaintiff enlisted another radiologist to testify about the MRI. Ibid.

The matter went to trial and the radiologist testified but differed in part with the findings in the MRI report. Ibid. The radiologist testified that he believed the MRI showed two disc herniations, rather than a disc herniation and a disc bulge, as stated in the MRI report. Ibid. Defense counsel objected to the testimony. Id. at 416. The trial court dismissed plaintiff's complaint with prejudice because the plaintiff had not amended her interrogatory answers as required by Rule 4:17-7 and the defendant was prejudiced by the new testimony presented at trial. Id. at 416-18.

We reversed and remanded for a new trial. Id. at 424. We concluded that the trial court had correctly found that the defendant was prejudiced by having the radiologist testify before the jury, and the prejudice could not have been remedied by a curative instruction restricting the jury's consideration to the findings in the MRI report. Id. at 418. We held that the trial court had the choice of either declaring a mistrial or dismissing the matter with prejudice and mistakenly chose the latter remedy. Id. at 419.

We noted that Rule 4:17-7 was one of the "Best Practices" rule amendments that had been adopted in 2000. We stated that, although the pre-2000 case law concerning interrogatory amendments no longer applied, "'the interests of justice standard continues fully viable under Best Practices and that time constraints will yield to exceptional circumstances and fundamental litigation fairness.'" Ibid. (quoting Pressler, Current N.J. Court Rules, comment 1.1 to R. 4:17-7 (2010)).

We additionally noted that, the trial court had ruled only shortly before the trial that the chiropractor could not testify about the MRI. Id. at 420. We observed that, previously, the plaintiff's attorney had reasonably assumed that the chiropractor could testify on that issue. Ibid. We also noted that because the radiologist who authored the MRI report had left the imaging center, the plaintiff had been required to retain a different radiologist to testify at trial. Ibid.

We also observed that the plaintiff's attorney did not know that the radiologist had a different opinion regarding the MRI until he met with the radiologist shortly before the trial. Ibid. We held that the trial court should not have dismissed the complaint with prejudice because the circumstances were "unique, unforeseen and largely unforeseeable." Ibid.

The circumstances that resulted in the untimely service of Dr. Massoud's expert report can also be characterized as "unique, unforeseen and largely unforeseeable." Here, as in Brun, the literal requirements of Rule 4:17-7 must give way to "fundamental litigation fairness." We are convinced that the interests of justice were not served by barring Dr. Massoud's videotaped deposition and the resulting dismissal of plaintiff's complaint with prejudice.

Our conclusion also is consistent with Tucci v. Tropicana Casino and Resort, Inc., 364 N.J. Super. 48 (App. Div. 2003). There, the plaintiffs were injured when they fell in an elevator that was alleged to have been "improperly leveled[.]" Id. at 50. The plaintiffs served the report of their elevator expert thirty-nine days after the date prescribed by the court's case management order. Id. at 51.

The report was delayed because the parties had difficulty scheduling an inspection of the elevator. Ibid. With the defendants' consent, the inspection took place after the deadline established for the service of the expert's report. Ibid. In addition, the plaintiffs' attorney certified that, during "these critical litigation events[,]" he was preoccupied with his mother's terminal illness and demise. Ibid.

The trial court in Tucci barred the plaintiffs from presenting the expert's testimony and dismissed the complaint with prejudice. Ibid. We held that the trial court erred because there was "an insufficient basis for the ultimate sanction of dismissal[.]" Ibid. We stated that the plaintiffs' failure to serve the report was not willful nor intended to mislead and there were "legitimate problems" that caused the late submission of the report. Id. at 52.

We added that, due to his personal problems, the plaintiffs' attorney had "good and sufficient reason" for being out of the office in the relevant period and the defendants had not shown "any irremediable prejudice." Ibid. We also pointed out that, due to the late service of the expert report, the parties were unable to complete the remaining discovery and the trial date could have been adjourned. Id. at 53. We held that, under the circumstances, the requirements of the rules should be relaxed pursuant to Rule 1:1-2. Ibid.

In this case, plaintiff's attorney also provided "good and sufficient" reasons for the failure to furnish the expert's report within the time required by Rule 4:17-7. Moreover, as we have explained, defendant has not shown that he was prejudiced by the late service of the report or the medical records. Furthermore, even if defendant has established such prejudice, it could have been addressed by an adjournment of the trial and a brief opportunity for further discovery.

 
Reversed and remanded for further proceedings consistent with this opinion.

Plaintiff also named Allstate Insurance Company (Allstate) as a defendant, since Moore's vehicle was insured under a policy that Allstate had issued. The record does not disclose whether Allstate answered the complaint.

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10

A-1709-09T1

August 11, 2010