JOHN J. KIM v. UMBERTO MAGARELLI

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2440-10T2

JOHN J. KIM and YOUNG HEE KIM,

Plaintiffs-Appellants,

v.

UMBERTO MAGARELLI,

Defendant-Respondent.

_________________________________

November 18, 2011

Submitted October 3, 2011 - Decided

Before Judges Parrillo and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Bergen County,

Docket No. L-4772-09.

Sim & Park, LLP, attorneys for appellants (Marc A. Williams, on the brief).

Law Offices of Edward Hoagland, Jr.,

attorneys for respondent (Cynthia A.

Petrowsky, on the brief).

PER CURIAM

Plaintiffs John J. Kim and Young Hee Kim filed a complaint to recover damages for personal injuries allegedly caused by defendant Umberto Magarelli's negligent driving. They appeal from an order of dismissal with prejudice for failure to provide discovery. R. 4:23-5; Feinsod v. Noon, 261 N.J. Super. 82, 84-85 (App. Div. 1992), certif. denied, 137 N.J. 314 (1994). Because the court erred in concluding that plaintiffs had not complied with their discovery obligations on the return date and did not consider whether plaintiffs' attorney gave them the notices required by Rule 4:23-5(a)(1)-(2), we vacate the order of dismissal with prejudice and remand to permit plaintiffs to file a motion to reinstate subject to payment of the restoration fee and such additional conditions and sanctions as the judge may impose.

The auto accident occurred on January 26, 2009, and plaintiffs filed their complaint on May 26, 2009. Defendant filed his answer and a counterclaim against John J. Kim six months later, on November 25, 2009. The court fixed July 14, 2010 as the discovery end date.

On June 22, 2010, defendant moved to compel discovery, and on the same day, with the consent of all parties, requested a sixty-day extension of the discovery end date. Plaintiffs' attorney opposed the motion as unnecessary, noting that he had provided authorizations from his clients allowing defendant to obtain their medical records. The authorizations plaintiffs' counsel appended to his certification, however, were not given to defendant's law firm; instead they authorized delivery of medical records to the firm representing John J. Kim on the defendant's counterclaim. In reply to plaintiffs' opposition to the motion to compel, defendant's attorney pointed out counsel's error in relying on the authorizations given to a different law firm and denied receipt of those authorizations. Defendant's attorney did not argue that plaintiffs should be required to provide their medical records and reports rather than authorizations.

On July 23, 2010, the court entered the discovery order provided by defendant's attorney. It required plaintiffs to produce the following within ten days of the order, or by August 2: all "records regarding" John J. Kim's treatment for TMJ and dizziness, sensitivity and tenderness over his left ear; the names and addresses of medical providers in Fort Lee who treated him in 2000 and 2007 for dizziness and TMJ; Young Hee Kim's "lumbar MRI report"; and any and all "records" relating to Young Hee Kim's "fall down accident" in February 2009. It also required plaintiffs to appear "for independent medical examinations on or before July 27," and for depositions on or before August 4.

Plaintiffs did not fully comply with that order. On July 26, 2010, they cancelled the independent medical examinations scheduled for July 27 and rescheduled them for August 10.

They also failed to appear for depositions on August 4. Nevertheless, on August 6, they provided authorizations permitting defendant's attorney to obtain the medical records and reports referenced in the July 23 order.

Detailing plaintiffs' alleged non-compliance, defendant moved to dismiss plaintiffs' complaint without prejudice on August 10, 2010. Among other things, defendant's attorney "submitted that it is not defendant's burden[,] given the terms of the July 23, 2010 order[,] to request and pay for the records that plaintiffs were required to produce."

Plaintiffs' attorney did not oppose the motion to dismiss without prejudice, but plaintiffs apparently made efforts to provide additional discovery while that motion was pending. Defendant's attorney wrote to the court to advise that plaintiffs had appeared for their independent medical examinations on August 10, but she further advised that she would not withdraw the motion to dismiss because plaintiffs had not yet appeared for depositions or complied with the order compelling production of medical reports and records. On August 27, the court entered an order dismissing the complaint without prejudice pursuant to Rule 4:23-5(a)(1). That order does not identify the deficiencies found by the court.

Sixty days after entry of order of dismissal without prejudice, on October 25, 2010, defendant moved for dismissal of the complaint with prejudice pursuant to Rule 4:23-5(a)(2). In a supporting certification, defendant's attorney indicated that plaintiffs had not moved to reinstate their complaint and that their attorney had not attempted to schedule his clients' depositions or provided the court-ordered documents.

In opposition to the motion to dismiss with prejudice, counsel for plaintiffs explained that Young Hee Kim had been in Korea since early September 2010, and had anticipated returning to the United States in early October but had been "unforeseeably and inevitably" delayed by "matters" that she had to address in her country. He also detailed the efforts plaintiffs had made after defendant filed the motion to dismiss with prejudice. According to the attorney, on November 1, 2010 he provided his adversary with authorizations to receive his clients' medical records and reports, with the exception of Young Hee Kim's MRI, which he represented would be provided as soon as she returned from Korea. In addition, he advised the judge that he had scheduled John J. Kim's deposition for November 22, 2010 and that Young Hee Kim would appear for her deposition when she returned. Counsel requested and was granted an adjournment of the return date, and Young Hee Kim did return in time to be deposed on November 22, when John J. Kim was also deposed.

Oral argument on the motion to dismiss with prejudice was held on December 23, 2010. On that date, there was another discovery motion pending in the case one to compel defendant's deposition that was filed by the attorneys defending plaintiff John J. Kim against defendant's counterclaim.

The motion for dismissal with prejudice was decided by a judge who had not entered the prior discovery orders. On the return date, the attorneys presented these arguments. Defendant asserted entitlement to a dismissal with prejudice on two grounds: 1) plaintiffs' failure to file a motion to restore the complaint as required by Rule 4:23-5(a)(1); and 2) plaintiffs' failure to provide medical reports and records as required by the July 23 order. In response, plaintiffs' counsel noted his inability to file a motion to restore the complaint in accordance with Rule 4:23-5(a)(1) until Young Hee Kim returned from Korea and was able to appear for her deposition; he also argued that by providing authorizations, his clients had satisfied their obligation under the July 23 order. Defendant's attorney rebutted by asserting that the judge who had entered the order to compel and dismiss without prejudice had rejected plaintiffs' argument that authorizations were adequate. In making that assertion, defendant's attorney apparently overlooked the fact that she first made that argument on the motion to dismiss without prejudice, which plaintiffs had not opposed.

During argument, there was no mention of whether plaintiffs' attorney had met his obligations to serve his clients with the order of dismissal without prejudice or the notice of the pending motion to dismiss with prejudice as required by the Rule 4:23-5(a)(1)-(2). Although there is no indication the plaintiffs' attorney submitted the affidavit required by Rule 4:23-5(a)(2) attesting to his compliance with his obligation, the judge did not question the attorney as required by Rule 4:23-5(a)(3). Based on plaintiffs' failure to file a motion to restore their complaint and defendant's representation that the issue of medical records versus authorizations had been resolved on the July 23 motion, the judge granted defendant's motion to dismiss with prejudice.

Decisions to grant or deny a motion filed pursuant to Rule 4:23-5 are not disturbed absent an abuse of discretion resulting in injustice. Sullivan v. Coverings & Installation, Inc., 403 N.J. Super. 86, 93 (App. Div. 2008); Cooper v. Consol. Rail Corp., 391 N.J. Super. 17, 22-23 (App. Div. 2007). Judges, however, must exercise their broad discretion in accordance with the provisions and purpose of the Rule.

The purpose of Rule 4:23-5 is "to elicit" compliance with discovery obligations "rather than to punish the offender by the loss of [a] cause of action or defense." Zimmerman v. United Servs. Auto. Ass'n, 260 N.J. Super. 368, 374 (App. Div. 1992). The Rule's two-step procedure a motion for dismissal without prejudice that may be followed by a motion for dismissal with prejudice only if non-compliance continues furthers that goal. This two-step procedure provides the party deprived of discovery with "an effective mechanism" for obtaining it and "the offending party an effective mechanism for preserving his action or defense." Ibid.

The Rule includes detailed provisions governing consultation and notice of deficiencies and consequences that advance its purpose. Because of the importance of these procedural provisions, we have noted that "meticulous attention" to compliance is required to ensure that the objective of the Rule is met, especially where notice provisions protective of the party at risk of dismissal are at issue. Id. at 376-77; see Klajman v. Fair Lawn Estates, 292 N.J. Super. 54, 60 (App. Div.) (quoting Suarez v. Sumitomo Chemical Co., 256 N.J. Super. 683, 688 (Law Div. 1991)), certif. denied, 146 N.J. 569 (1996). More recently, we have held that the Rule contemplates "technical compliance . . . by the moving party." Sullivan, supra, 403 N.J. Super. at 95.

The Rule requires the attorney for a party aggrieved by a discovery motion to consult with the attorney for the delinquent party before filing the motion to dismiss without or with prejudice. R. 4:23-5(a)(3); Zimmerman, supra, 260 N.J. Super. at 376. Such prior consultation ensures an opportunity for the parties to promptly clarify misunderstandings about their respective obligations and promptly complete discovery without costly motion practice. Indeed, it is highly unlikely that an attorney or litigant who reasonably believes the discovery provided is adequate will address a problem perceived but not communicated by the adversary without such consultation.

The Rule also includes procedural requirements that protect the party whose claims are at risk of dismissal. They require notice to the client who has failed to provide discovery. R. 4:23-5(a)(1)-(2). Where the offending client is represented by an attorney, that attorney must provide the client notice upon entry of an order of dismissal without prejudice and again when a motion for dismissal with prejudice is filed. Ibid. These notice rules reduce the risk of depriving a blameless client of a claim because of an attorney's inattention, which is an outcome to be avoided in a judicial system that prefers resolution of disputes on the merits. St. James AME Dev. Corp. v. City of Jersey City, 403 N.J. Super. 480, 483-84 (App. Div. 2008). To ensure that the client has received notice, attorneys for a delinquent party are required to provide an affidavit reciting compliance with these obligations before a motion to dismiss with prejudice can be heard; if the attorney does not provide the affidavit, the judge must take appropriate action to ensure compliance. R. 4:23-5(a)(2)-(3).

Finally, where there is a dispute about whether the offending party has met all discovery obligations, that court must resolve that dispute before dismissing the case with prejudice. Zimmerman, supra, 260 N.J. Super. at 376. Generally these disputes arise where the adequacy of answers to interrogatories is at issue, but dismissal in the face of an unresolved and reasonably debatable interpretation of an order compelling other forms of discovery is equally capable of undermining the Rule's purpose, which is, as noted above, compliance with discovery not dismissal of cases. Id. at 374.

This order of dismissal with prejudice was entered without any finding on compliance with the critical notice provisions of Rule 4:23-5. While plaintiffs do not raise the issue on the appeal, the record does not indicate whether plaintiffs' attorney gave his clients notice in accordance with Rule 4:23-5(a)(1)-(2). Thus, the judge should not have dismissed the complaint without first obtaining the attorney's affidavit required by paragraph (a)(2) or taking other appropriate action to ensure that plaintiffs' complaint was not dismissed without proper notice to them. R. 4:23-5(a)(3).

The purpose of the Rule was further undermined by the judge's erroneous finding that plaintiffs had failed to comply with discovery by the date the motion was heard. By the time the motion was heard, plaintiffs had submitted to independent medical examinations, been deposed and provided medical authorizations adequate to permit defendant to obtain records and reports from their healthcare providers on at least two occasions. The only remaining discovery question was whether the authorizations were sufficient to comply with the provisions of the July 23 order directing plaintiffs to provide medical records and reports.

The judge who heard the final motion accepted defendant's argument that the judge who entered the July 23 order intended to require plaintiffs to produce medical records and reports, rather than authorizations permitting defendant to acquire them. That determination is not supported by the record. True, plaintiffs opposed the motion to compel on the ground that they had provided authorizations, but the authorizations plaintiffs' attorney submitted were issued to the wrong law firm. Thus, the July 23 order was entered when there were no relevant authorizations. On these facts, there was no reason to conclude that the judge decided plaintiffs were required to produce the records in lieu of authorizations because the question was not presented.

Similarly, it was unreasonable to conclude that the order of dismissal without prejudice was based on the judge's conclusion that the authorizations were inadequate. In support of defendant's motion to dismiss without prejudice, defendant's attorney objected to the authorizations, but at that time dismissal was warranted on a separate ground, plaintiffs' failure to appear for depositions as required by the July 23 order. Thus, it is not clear which of the alleged insufficiencies led the judge to dismiss.

Viewed in context, plaintiffs' attorney reasonably understood the July 23 order to permit his clients to comply with the demand for medical records by providing authorizations. The pertinent discovery rules do not expressly require the party to obtain and produce medical records held by the healthcare provider. Pursuant to Rule 4:18-1(a), one party may request another "to produce and permit the party making the request . . . to inspect [and] copy . . . designated documents . . . in the possession, custody or control of the party on whom the request is served." Similarly, delivery of medical records is not required by Rule 4:17-4. Under that Rule, where a copy of a treating physician's report is requested by way of interrogatory, paragraph (e) governs. R. 4:17-4(a). Paragraph (e) of Rule 4:17-4 requires production of "reports" issued by treating physicians who are covered by Rule 4:10-2(d)(1) that is, those physicians expected to testify at trial. Medical records are not expressly addressed.

We review on a regular basis judicial decisions and orders addressing discovery of medical records that indicate that our courts and attorneys generally treat production of an authorization to obtain medical records as an adequate response to a request to produce medical records that are in the control, but frequently not in the possession, of a party. See, e.g., Stempler v. Speidell, 100 N.J. 368, 371-72 (1985) (observing that the plaintiff had provided authorization for defendant to receive her medical records); Sprankle v. Adamar of New Jersey, Inc., 388 N.J. Super. 216, 225 (Law Div. 2005) (same); Freeman v. Lincoln Beach Motel, 182 N.J. Super. 483, 485-86 (Law Div. 1981) (holding that plaintiff could be required to provide authorizations for defendant to receive documents within her control but not her possession); cf. Vazquez v. Young Men's Christian Ass'n of Somerset County, 263 N.J. Super. 408, 410-12 (Law Div. 1992) (noting that the defendant has obtained the plaintiff's medical records with authorizations provided, and denying plaintiff's request to require defendant to provide copies and suggesting, improperly in our view, that plaintiff's obligations to provide medical reports pursuant to Rules 4:10-2(d)(1) and 4:17-4(e) required the plaintiff to give defendant medical records). Given customary practice and the pertinent discovery rules, plaintiffs' understanding of the July 23 order was quite reasonable.

The core of this dispute about authorizations versus provision of actual records is significant. From defendant's perspective, at least as it was expressed in support of defendant's motion to dismiss without prejudice, the authorizations were objectionable because of the expense and burden of gathering the records, not because plaintiffs were withholding discoverable evidence. As we understand Rule 4:23-5, it does not contemplate dismissal with prejudice when the allegedly offended party has been given access to all of the records sought. Where burden and expense is at issue, monetary sanctions and an award of fees provide a remedy for the asserted harm. See, e.g., R. 1:10-3; R. 4:23-1(c); R. 4:23-2. Addressing that harm is not the major purpose of Rule 4:23-5's two-step dismissal procedure.

The failure of defendant's attorney to comply with the procedural provisions of Rule 4:23-5 is also important to our decision that the judge erred in accepting defendant's interpretation of the July 23 order. Defendant's attorney did not submit an affidavit representing prior consultation with plaintiffs' attorney as required by R. 4:23-5(a)(3), and that failure arguably complicated resolution of the confusion about the adequacy of authorizations. As noted above, we have held that the moving parties must comply with all technical provisions of Rule 4:23-5. In addition, the record discloses that plaintiff John J. Kim had a pending motion to compel discovery from defendant, which raises a question as to whether defendant was in a position to assert a right to a dismissal with prejudice. R. 4:23-5(a)(1).

We recognize that the judge also deemed plaintiffs' failure to file a motion to restore their complaint and vacate the dismissal without prejudice significant. We agree that Rule 4:23-5 suggests that a motion to dismiss with prejudice must be granted if the offending party has not filed a motion. In pertinent part, Rule 4:23-5(a)(2) provides:

The motion to dismiss or suppress with prejudice shall be granted unless a motion to vacate the previously entered order of dismissal or suppression without prejudice has been filed by the delinquent party and either the demanded and fully responsive discovery has been provided or exceptional circumstances are demonstrated.

This provision cannot, however, be read in isolation and without regard to the purpose of the Rule. First, it is clear that despite a delinquent party's failure to file a motion to reinstate, the order may not be entered unless the moving party has complied with the Rule's procedural provisions. Second, a delinquent party may withstand a motion to dismiss by either fulfilling the discovery obligation or showing exceptional circumstances. R. 4:23 5(a)(2); Adedoyin v. Arc of Morris County Chapter, Inc., 325 N.J. Super. 173, 183 (App. Div. 1999). When a party relies on exceptional circumstances, the party may not be in a position to assert that the discovery withheld has been fully provided, which is a requirement for filing a motion to reinstate, R. 4:23-5(a)(1). Third, where as here the delinquent party had opposed the motion and thereafter complied with a reasonable interpretation of a discovery order before entry of the order of dismissal with prejudice, the purpose of the Rule has been served. In that circumstance, it is appropriate to adjourn the motion to dismiss with prejudice and permit the filing of a motion to reinstate subject to payment of the requisite restoration fee and such sanctions and award of fees and costs as are authorized by the Rule and deemed appropriate by the judge. See R. 4:23-5(a)(1)-(3); Sprankle, supra, 388 N.J. Super. at 220-22.

For the reasons set forth above, we vacate the order of dismissal with prejudice and remand to permit the judge to set conditions for reinstatement that the judge deems appropriate and that are authorized by Rule 4:23-5 and judicial decisions interpreting it.

Reversed and remanded.