JULIANNE JEKONSKI v. ANDREW E. AVRIN AND WILLIAM N. AVRIN

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4212-08T14212-08T1

JULIANNE JEKONSKI,

Plaintiff-Appellant,

v.

ANDREW E. AVRIN

AND WILLIAM N. AVRIN,

Defendant-Respondent.

__________________________

 

Argued January 11, 2010 - Decided

Before Judges Rodr guez and Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-2965-05.

Erik A. Hassing argued the cause for appellant (Bell and Hassing, attorneys; Mr. Hassing, on the brief).

David N. Heleniak argued the cause for respondents (O'Donnell, McCord & DeMarzo, attorneys; James M. DeMarzo, of counsel and on the brief; Mr. Heleniak, on the brief).

PER CURIAM

Plaintiff Julianne Jekonski appeals from a September 30, 2008 trial court order precluding her medical expert from testifying as to the permanency of her automobile accident injuries. She also appeals from: a December 1, 2008 order denying reconsideration; and a March 20, 2009 order granting summary judgment as to non-economic damages because plaintiff could not demonstrate permanent injuries. We reverse and remand.

I

The automobile accident occurred on November 6, 2003, when plaintiff was seventeen years old. She filed suit on October 18, 2005, alleging permanent injuries in her complaint. Thereafter, plaintiff served defendant with form interrogatory answers dated March 13, 2006, in which she claimed permanent injuries to her back. On March 16, 2006, she filed and served a certification of permanency from her treating orthopedic specialist, Dr. Frank Capecci, attesting that based on an MRI he had diagnosed plaintiff with two herniated spinal discs that constituted a permanent injury. See N.J.S.A. 39:6A-8a. Defendant promptly obtained an IME of plaintiff, and served plaintiff with a June 8, 2006 report and a July 3, 2006 supplemental report from its expert, Dr. Barry Levine, opining that plaintiff had not suffered a permanent injury in the accident.

On May 4, 2007, plaintiff served Dr. Capecci's expert report dated April 30, 2007. The report described her injuries and opined that the two herniated discs were caused by the auto accident, but did not set forth an opinion as to permanency. However, defendant was obviously aware that plaintiff was claiming a permanent injury based on her earlier filings, and had already obtained an expert report aimed at refuting her claim.

Defendant did not take a discovery deposition of Dr. Capecci. At oral argument defense counsel advised us that this was a strategic decision, made to avoid litigation costs. In preparation for trial, Dr. Capecci's de bene esse videotaped deposition was taken on May 6, 2008. At that deposition, he testified that it would be very unusual for a seventeen-year old to have herniated discs without having suffered physical trauma. Over defense counsel's objection, he also testified that the herniated discs constituted a permanent injury.

On or about July 10, 2008, defendant filed a motion returnable three days before the scheduled August 4, 2008 trial date, asking the court to strike the permanency testimony from Dr. Capecci's de bene esse deposition. In a brief hand-written notation on the order granting the motion, the judge stated:

Since this is a de bene esse deposition the opinions of Dr. Capecci are confined to the report he submitted [on] 4/30/07 in which he did not opine that the injuries were permanent.

After her motion for reconsideration was denied, plaintiff served a short supplemental report on January 20, 2009, in which Dr. Capecci indicated that he stood by his deposition testimony and stated that since plaintiff was still having back pain more than two years after the accident, her back pain was permanent. The trial court nonetheless granted summary judgment dismissing plaintiff's claims for non-economic damages.

II

At the heart of this appeal is the trial court's decision to preclude Dr. Capecci, through his de bene esse deposition, from offering an opinion as to the permanency of plaintiff's injuries. After reviewing the record, we conclude this ruling was a mistaken exercise of the court's discretion. See Ratner v. General Motors Corp., 241 N.J. Super. 197, 202 (App. Div. 1990).

A trial court may preclude an expert's testimony based on a failure to include the proposed opinions in the expert's report. "The decision as to exclusion must stand unless so wide of the mark that a manifest denial of justice resulted." Ibid. However, the trial judge may not automatically exclude testimony crucial to a plaintiff's case without engaging in a careful review of the applicable factors, as described in Ratner, supra:

[The decision to exclude evidence] is consigned to the sound discretion of the judge, subject only to the rule that the sanction visited upon the party must be just and reasonable. [citation omitted]. The factors which would "strongly urge" the trial judge, in the exercise of his discretion, to suspend the imposition of sanctions, are (1) the absence of a design to mislead, (2) absence of the element of surprise if the evidence is admitted, and (3) absence of prejudice which would result from the admission of the evidence.

[Ibid. (quoting Westphal v. Guarino, 163 N.J. Super. 139, 145-46 (App. Div. 1978), aff'd o.b. 78 N.J. 308 (1978)).]

"[W]hen the testimony in question is 'pivotal' to the case of the party offering the testimony, a court should seek to avoid exclusion where possible." Wymbs v. Twp. of Wayne, 163 N.J. 523, 544 (2000) (citation omitted).

Application of the factors cited above leads us to conclude that the trial court's decision was so wide of the mark as to produce a clear injustice. To begin with, this case concerned a seventeen-year old girl who suffered two herniated discs. It should have come as no surprise to defendant that she was claiming a permanent injury. And, in fact, from the filing of the complaint and the affidavit of permanency, the defense was on notice of that claim.

Anticipating the claim, the defense obtained an IME and actually served an expert report opining that there was no permanent injury. Plainly Dr. Capecci's de bene esse deposition testimony on permanency was no surprise to the defense, and there would have been no prejudice to the defense in allowing plaintiff to present that testimony to the jury. Even before Dr. Capecci offered the testimony at his deposition, the defense was well prepared to meet it.

While Dr. Capecci's reports could have been more specific, we consider that he is plaintiff's treating doctor, as opposed to a professional testifying expert. There is no evidence that plaintiff intended to mislead the defense about her claim. Further, eschewing the opportunity to explore the doctor's opinions in detail, the defense waived its right to take Dr. Capecci's discovery deposition. Finally, instead of giving plaintiff timely notice that the defense planned to move to strike the testimony, the defense waited until shortly before the trial date to file a motion to strike, returnable three days before the trial. In prevailing on that motion, the defense obtained a victory that elevated form over substance and unfairly deprived plaintiff of her day in court on the central issue in her case. See Ratner, supra, 241 N.J. Super. at 203.

Accordingly, we reverse the orders barring Dr. Capecci's testimony on permanency and granting summary judgment dismissing plaintiff's claim for non-economic damages. We remand this case for trial on all issues. Should defendant promptly file a motion seeking a discovery deposition, the trial court may in its discretion permit defendant to take Dr. Capecci's deposition prior to the trial.

Reversed and remanded.

 

An amended complaint filed November 3, 2005, likewise alleged permanent injuries.

The parties have not addressed whether the March 20, 2009 order was a final order; it is not clear whether plaintiff had any unresolved economic damage claims. However, if the order was interlocutory, we hereby grant leave to appeal nunc pro tunc in the interests of justice. We further note that plaintiff's appeal from the order denying reconsideration is moot in light of this opinion.

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A-4212-08T1

 

January 28, 2010