RACHEL BROWNE v. DAVID CARVER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4234-08T34234-08T3

RACHEL BROWNE,

Plaintiff,

v.

DAVID CARVER, STACY A.

SWARTS-CARVER, MIGUEL A.

ORTEGA, ALYSA L. MARISCO and

STEVEN L. STRAUBE,

Defendants.

____________________________________

MIGUEL A. ORTEGA and DOLORES

ORTEGA,

Plaintiffs-Appellants,

v.

DAVID F. CARVER and STACY A.

SWARTS-CARVER,

Defendants-Respondents.

_________________________________________________

 

Argued January 19, 2010 - Decided

Before Judges Yannotti and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket Nos. L-2566-07 and L-2999-07.

Jeffrey S. Mandel argued the cause for appellants (PinilisHalpern, L.L.P., attorneys; Mr. Mandel, of counsel and on the brief).

John V. Mallon argued the cause for respondents (Chasan Leyner & Lamparello, P.C., attorneys; Mr. Mallon, of counsel and on the brief; Cindy Nan Vogelman and Maria P. Vallejo, on the brief.

PER CURIAM

Plaintiffs Miguel A. and Dolores Ortega contend that the trial court abused its discretion when denying their request to adjourn the case's first trial date because their doctors were not available. As a result of the denial of the adjournment request, plaintiffs' complaint was dismissed with prejudice because they were unable to meet the verbal threshold and prove damages. Plaintiffs appeal that order. We reverse, concluding that, under the circumstances, the trial court mistakenly exercised its discretion in denying the adjournment request.

Plaintiff Miguel A. Ortega brought this personal injury action for injuries he sustained in a motor vehicle accident, and his wife Dolores Ortega brought a per quod claim. Plaintiffs' claims were governed by the "limitation on lawsuit option," also known as the verbal threshold, set forth in the Automobile Insurance Cost Reduction Act ("AICRA"), N.J.S.A. 39:6A-8(a). A person injured in an automobile accident whose claim is governed by AICRA may not recover for noneconomic loss unless the claim meets one of the six statutory categories. Ibid. In addition, the qualifying injury must be supported by "objective credible evidence." DiProspero v. Penn, 183 N.J. 477, 495 (2005). As a result, medical testimony is needed to prove the claim.

The trial court sent out trial notices giving the case its first trial date of March 23, 2009. Designated trial counsel for plaintiff had an older case in Essex County scheduled for trial that same day. As a result, on March 17, 2009, the Tuesday preceding the trial date, he asked defense counsel for an adjournment. She indicated that she was not available on the alternative dates he proposed. Plaintiff's designated trial counsel then arranged for another lawyer to try the case.

On March 18, 2009, the Wednesday preceding the trial date, plaintiffs' counsel's office, unable to confirm the availability of Gautam Sehgal, M.D., attempted to obtain the consent of defense counsel to an adjournment, but that consent was also not forthcoming. At the trial call on the morning of March 23, 2009, plaintiffs' counsel did not raise a scheduling problem with the civil presiding judge. When the case was conferenced with the trial judge that morning, defense counsel objected to plaintiffs' plan to have Roman Kosiborod, D.O., testify in place of Dr. Sehgal. Her objection was based on the fact that the interrogatories naming Dr. Kosiborod had been amended after the discovery end date without the required certification. Since the trial judge had another case to handle, he placed the case on call and did not bring it in for trial until two days later, on Wednesday, March 25, 2009.

In the interim, plaintiffs' counsel made repeated and persistent efforts to obtain a firm date from Dr. Sehgal's office. While he was led to believe that a day would be provided, none was forthcoming. By the time the case was called in for trial, he was unable to confirm Dr. Sehgal's availability to testify during the trial week. As a result, plaintiffs' counsel applied to the civil presiding judge for an adjournment.

The civil presiding judge denied the adjournment request because the attorney had not made a prior written request for an adjournment and had allowed the case to be marked ready at the trial call. When the case went back to the trial judge, plaintiffs' counsel indicated that he had no expert witnesses available that week. The trial judge dismissed the case with prejudice because without medical witnesses plaintiffs could not prove their claims. Plaintiffs appeal from the order of April 1, 2009, memorializing that dismissal.

The denial of the adjournment request and dismissal of the case under these circumstances was an abuse of discretion. As the Court has clearly stated: "[w]hen an attorney is unable to try a case due to the first unavailability of an expert, dismissal of the complaint with prejudice 'is drastic punishment and should not be invoked except in those cases where the actions of the party show a deliberate and contumacious disregard of the court's authority.'" Kosmowski v. Atl. City Med. Ctr., 175 N.J. 568, 575 (2003) (quoting Allegro v. Afton Village Corp., 9 N.J. 156, 160-61 (1952)).

The courts recognize the difficulty attorneys have in coordinating trial dates with the schedules of witnesses. As a result, a party is ordinarily entitled to an adjournment if a witness is unavailable for the first trial date, provided a timely request is made. R. 4:36-3(b). In particular, the courts recognize the unusual difficulty in scheduling expert witnesses for trial. To minimize multiple adjournments for the same expert, the Rules provide that after the first adjournment for an expert witness, no further adjournment will be granted for that witness absent a showing of exceptional circumstances. R. 4:36-3(c). However, the witness may appear by videotape. Ibid.

Since this was the first trial date, substantively, plaintiffs were entitled to an adjournment due to the unavailability of their witness. However, they were denied the adjournment request because the trial court determined that procedurally they had submitted the request to the court too late. Rule 4:36-3(b) requires that an adjournment request be submitted to the trial court "as soon as the need is known but in no event, absent exceptional circumstances, shall such request be made later than the close of business on the Wednesday preceding the Monday of the trial week." Because plaintiffs did not submit the adjournment request by the Wednesday before the trial nor did they raise the problem at the trial court, the adjournment request was denied.

Here, while plaintiffs' counsel recognized that he had a doctor scheduling problem on the Wednesday before the trial date, it was not at all clear that he would be unable to proceed with the trial. He had Dr. Kosiborod available to testify in place of Dr. Sehgal. Further, Dr. Sehgal's office had not told counsel that Dr. Sehgal was unavailable, but rather that they would get back to him. However, despite his numerous inquiries, Dr. Sehgal's office did not get back to him with a confirmed date. This is not a situation where counsel was seeking to avoid a trial. Indeed, designated trial counsel arranged for another attorney to handle the case so that the trial could move forward. Rather counsel was making every attempt to arrange for his expert witnesses, and because of the difficulty in obtaining a firm date from Dr. Sehgal's office, he was unable to do so. The facts here do not reflect "a deliberate and contumacious disregard of the court's authority" or avoidance of the court rules. Kosmowski v. Atl. City Med. Ctr., supra, 175 N.J. at 575.

As we have earlier stated with respect to the Best Practices rule amendments, the rules "were not designed 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, 364 N.J. Super. 48, 53 (2003) (quoting Rule 1:1-2). A dismissal with prejudice is a sanction of "last resort" and is "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." Id. at 52. Here the denial of the adjournment request, triggered by the unavailability of Dr. Sehgal, inextricably led to the dismissal with prejudice because, without an expert available to testify, plaintiffs could not prove their case.

Reversed and remanded.

 

The case was consolidated with Browne v. Carver, Docket No. 2566-07, another personal injury action, arising out of the same accident. The Browne case settled prior to trial.

The discovery end date, pursuant to Rule 4:24-1, was October 24, 2008. Nonetheless, after the discovery end date, defendant deposed Miguel Ortega, and at that deposition, plaintiffs' counsel learned that within the previous month, his client had been placed on disability and was being treated by Dr. Kosibored. As a result, plaintiffs' counsel obtained the records from this Doctor and served them upon defense counsel, but apparently without the certification required by Rule 4:17-7. That Rule permits amendments to answers to interrogatories after the discovery end date provided they are accompanied by the party's certification that the additional information "was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date." Ibid.

Since this was a Track II tort case and had not been pending for more than two years, the trial court did not have the discretion to waive plaintiffs' designation of trial counsel. R. 4:25-4.

(continued)

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A-4234-08T3

February 5, 2010