DEBORAH BERK v. STATE OF NEW JERSEY OFFICE OF THE PUBLIC DEFENDER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5759-09T3

DEBORAH BERK,

Plaintiff-Appellant,

v.

STATE OF NEW JERSEY, OFFICE

OF THE PUBLIC DEFENDER,

CYNTHIA SAMUELS and LORRAINE

AUGOSTINI,

Defendants-Respondents.

________________________________________________________________

Argued May 3, 2011 Decided May 25, 2011

Before Judges Wefing, Baxter and Koblitz.

On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2889-06.

Andrew Dwyer argued the cause for appellant (The Dwyer Law Firm, L.L.C., attorneys; Mr. Dwyer, of counsel and on the briefs).

Noreen P. Kemether, Deputy Attorney General, argued the cause for respondents (Paula T. Dow, Attorney General, attorney; Lewis A. Scheindlin, Assistant Attorney General, of counsel; Ms. Kemether, on the brief).

PER CURIAM

Plaintiff Deborah Berk appeals from a June 7, 2010 Law Division order that dismissed her complaint with prejudice based upon her repeated failure to appear for deposition. She also appeals from a July 23, 2010 order denying her motion for reconsideration. Although we recognize that the dismissal of a party's cause of action with prejudice is a drastic measure that should be applied sparingly, only when no lesser sanction will suffice, we conclude such remedy was warranted here. We affirm.

I.

Plaintiff is an attorney who was employed by the Office of the Public Defender from July 1999 until November 4, 2005, by which time she had been promoted to the title of managing attorney in the Office of Law Guardian. As managing attorney, plaintiff was required to supervise a number of attorneys, one of whom never became eligible to practice law in New Jersey, because he never paid the annual attorney assessment. Plaintiff also learned that he had been disbarred in New York in June 2004. When plaintiff brought these issues to the attention of her immediate supervisors, defendants Lorraine Augostini and Cynthia Samuels, both allegedly engaged in ongoing harassment of plaintiff.

On November 8, 2006, plaintiff filed suit against Samuels and Augostini, as well as the Office of the Public Defender, alleging that in violation of the Conscientious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 to -8, defendants unlawfully terminated her employment in November 20051 in retaliation for having reported that an attorney in her office was ineligible to practice law.

After filing their answer on January 2, 2007, defendants served plaintiff with interrogatories and requests for production of documents. The record does not provide any detail concerning plaintiff's response to those requests. Instead, the record on appeal merely includes a copy of an August 28, 2008 Law Division order dismissing plaintiff's complaint without prejudice "for failure to answer interrogatories and failure to produce documents[.]" The order also required plaintiff to make herself available for a deposition "prior to September 22, 2008, or she [will be] barred from presenting testimony in this matter."

When by June 2009 plaintiff had not cured the discovery violations that had led to the August 28, 2008 order of dismissal without prejudice, defendants moved for dismissal with prejudice pursuant to Rule 4:23-5(a)(2). In response to defendants' motion, and after supplying discovery responses that were satisfactory to defense counsel, plaintiff cross-moved to vacate the order of dismissal. By order of July 17, 2009, the judge granted plaintiff's motion to vacate the dismissal of her complaint and to restore her cause of action to active status. The judge also extended the discovery end date (DED) to December 15, 2009. The record does not inform us of the reasons for that extension, nor does the order set a date by which plaintiff was required to appear for her deposition, other than the DED of December 15, 2009.

Shortly after the entry of the July 17, 2009 order, defendants again served plaintiff with a notice to take her deposition, scheduling it for August 21, 2009. Plaintiff's counsel responded that he had another deposition scheduled that day, "so we will need to reschedule." He promised to "reach out" to his client "to figure out her availability." Counsel noted that "due to vacation plans and work obligations," he was "already pre-booked into September," but promised to "try to find the earliest possible date."

Defense counsel responded to plaintiff's counsel's email by stating "[t]hat's fine -- please give me dates in September/October now that the discovery end date is December 15th and the trial date is now cancelled."

When plaintiff had not appeared for her deposition or provided alternate dates when she was willing to do so, defendants moved on December 15, 2009, for a second time, for an order dismissing plaintiff's complaint with prejudice. The court denied the motion by order of February 16, 2010, but granted plaintiff's cross-motion for another extension of discovery, for the express purpose of completing depositions. The DED was extended to March 1, 2010.

In the interim, having heard nothing from plaintiff or her counsel concerning dates upon which they would be available, on January 22, 2010, which was five months after plaintiff's counsel cancelled the August 21, 2009 deposition, defense counsel sent plaintiff another deposition notice. Captioning the notice as a "6th Notice to Take Oral Deposition of Plaintiff," defense counsel scheduled the deposition for February 3, 2010.

On February 1, 2010, two days before the deposition was to take place, defense counsel sent plaintiff's counsel a follow-up email concerning plaintiff's counsel's earlier statement that he might still be on trial on February 3, and therefore unable to appear with his client at the deposition. Defense counsel wrote, "[a]s your trial concluded on 1/27, I don't know why you could not be ready to proceed with the deposition on 2/3 as scheduled[,]" but "I am available Thursday, 2/4 for the deposition if you can't do the 3rd."

On February 4, 2010, plaintiff's counsel responded as follows:

My client is in the hospital because she had a seizure, fell and broke her collarbone. She has been quite sick due to seizures for some time. I am reaching out to her neurologist to get a clearer picture of her condition, as it relates to her ability to be deposed. Once I have that information, I will share it with you.

I believe that given my client's condition, it will probably be necessary to seek a further extension of the discovery period. . . . I would appreciate hearing . . . your position on that issue.

Again, I am hoping to be able to speak with her doctor today, and once I do, I will give you an update.

[(Emphasis added).]

Plaintiff did not provide the medical information to which her attorney referred in his February 4, 2010 email. Consequently, having been provided with no medical information and having received no dates upon which plaintiff would be available, defense counsel sent plaintiff a "Seventh Notice to Take Oral Deposition," which she scheduled for March 31, 2010. Plaintiff's counsel responded to the deposition notice for March 31, 2010, stating:

I received your deposition notice. I am on trial right now in Hudson County. I am also starting a new trial next Monday in Morris County. More importantly, I am still trying to speak with my client's neurologist (Dr. Wu) about medical issues concerning her deposition.

The next day, defense counsel wrote back:

Good luck with your tiral [sic] - I am just coming off 2 of them back to back [sic]. What aer [sic] we going to do about the discovery end date in this case? Can you assure me you will produce her for deposition outisde [sic] the discovery end date?

The response from plaintiff's counsel was brief:

Yes. Still on trial at the moment.

Plaintiff's counsel's March 23, 2010 email assuring defense counsel that he would produce his client even though the DED had expired, was the last communication between the two concerning the scheduling of plaintiff's deposition, because on April 28, 2010, some five weeks later, defendants filed the motion that is the subject of this appeal. In particular, in their April 28, 2010 motion, defendants moved to dismiss plaintiff's complaint with prejudice for failure to appear at deposition, or, in the alternative, for an order barring plaintiff from giving testimony at trial, and compelling plaintiff's treating physicians to respond to subpoenas that had been previously served. In support of that motion, defense counsel certified that although the August 28, 2008 order dismissing plaintiff's complaint with prejudice had ultimately been vacated, that order had required plaintiff to make herself available for deposition prior to September 28, 2008, but she had not done so. After noting that the July 17, 2009 order extended the DED until December 15, 2009, defense counsel argued that despite that extension, "plaintiff continued to refuse to present herself for deposition" because:

[A]s of August 2009, Defendants had served Plaintiff with four separate notices to appear for deposition, but Plaintiff had not appeared in response to any of these notices. Therefore, on or about August 7, 2009, [defendants] sent a Fifth Notice to Take Plaintiff's Deposition on August 21, 2009.

Defense counsel then explained, as we have already noted, that plaintiff's counsel advised her he was unavailable on August 21, 2009, but promised to provide alternate dates for plaintiff's deposition. She also certified that as of December 11, 2009, which was a mere four days before the December 15, 2009 DED was set to expire, plaintiff had still not provided alternate dates when she was willing to appear for deposition, and defendants again filed a motion to dismiss the complaint with prejudice. Defense counsel also noted that despite the notices she sent scheduling plaintiff's deposition for February 3, 2010 and March 31, 2010, plaintiff had still not appeared or suggested any alternate dates, even though the March 1, 2010 DED was imminent, or had already passed. Finally, defendants observed that although plaintiff's counsel had assured them that plaintiff would appear for her deposition after the March 22, 2010 cancellation of the March 31 deposition date, in the five weeks that had elapsed plaintiff had not done so.

Defendants argued that a deposition of plaintiff was essential to establish the extent of any medical and psychological conditions plaintiff was claiming as damages, and to ascertain whether those conditions were caused, in whole or in part, by defendants' conduct. Finally, defendants noted that although they had served subpoenas on many of plaintiff's treating physicians, and upon New York University Hospital, at which plaintiff claimed she was treated for a broken collarbone, none of the medical professionals would agree to provide copies of plaintiff's medical records without a signed authorization from plaintiff, which had not been forthcoming.

Defendants' motion for dismissal with prejudice was returnable on May 14, 2010. Plaintiff filed no opposition. In an oral statement of reasons placed on the record on June 7, 2010, the judge traced the history of plaintiff's failure to appear for deposition, noting that despite the order requiring that plaintiff's deposition be completed by September 22, 2008, and the numerous deposition notices issued thereafter, plaintiff had failed to appear for her deposition in the eighteen months that had passed since the entry of the August 28, 2008 order. The judge also noted that plaintiff had filed no opposition to the motion, either before the May 14, 2010 motion date, or in the three weeks between then and June 7, 2010.

The judge concluded that although there were references in some of plaintiff's counsel's emails to plaintiff having experienced health problems, including a seizure disorder, there was, according to the judge, "no documentation of that" and "no proof of any reason why" plaintiff "could not appear for those 18 months to have her deposition taken." Noting that plaintiff had been told as early as August 28, 2008 that if she failed to appear for her deposition she would be barred from testifying at trial, and that such notice apparently had had no effect, the judge concluded that a dismissal with prejudice was warranted. The judge signed a confirming order that day, June 7, 2010.

On July 6, 2010, plaintiff moved for reconsideration of the order dismissing her complaint with prejudice.2 Notably, plaintiff did not support her motion for reconsideration with her own certification asserting, for example, that her medical problems had interfered with her ability to appear for her deposition, or that her attorney had never contacted her to notify her of the scheduled deposition dates. Nor did she submit a certification asserting that she was unaware that defense counsel had been attempting to take her deposition for the three years after defendants' answer had been filed. Instead, plaintiff relied solely on her attorney's certification in which he recited in considerable detail the email exchange between himself and defense counsel from August 21, 2009 through March 22, 2010. Counsel emphasized the fact that when his trial in Hudson County concluded at the end of January 2010, he "reached out to [his] client to ascertain her availability for deposition" only to learn "that she had fallen, was having a seizure, and had seriously injured herself, resulting in her being hospitalized for a broken collarbone." Plaintiff's counsel also pointed to plaintiff's medical condition, which he described as "very poor for the past couple of years," including "neurological problems, which have resulted in constant seizures" that "have left her completely disabled." He also asserted:

In my dealings with my client, she has been frequently unable to communicate effectively, and frequently unable to maintain concentration, due to her neurological and mental impairments. As a result, it has been difficult for her to handle this litigation. Given her frequent seizures, I was concerned that a normal, full day deposition would be medically, physically impossible for her.

Plaintiff's counsel noted that he had explained what he described as plaintiff's medical situation to defense counsel on February 4, 2010. As we have noted, plaintiff did not include any medical records along with her motion for reconsideration, nor did she submit a report from an expert opining that her medical and psychiatric conditions made it impossible for her to appear for a deposition.

Last, plaintiff's counsel argued that he had been, in effect, blindsided by defendants' filing of their motion to dismiss with prejudice in April 2010. He asserted that after his email to defense counsel on March 23, 2010 assuring her that he would produce his client for deposition "out[si]de the discovery end date," he had "never received another communication from defense counsel "either re-noticing the deposition" or "expressing any concern about the scheduling of same" until he received defendants' motion seeking dismissal with prejudice. Plaintiff's counsel's certification closed with the request that because plaintiff's "severe medical problems" had "interfere[d] with her ability to cope with the demands of litigation (including depositions)," a case management conference should be conducted and the order granting defendants' motion for dismissal with prejudice should be vacated.

At the July 23, 2010 hearing on plaintiff's motion for reconsideration, the judge began by noting that plaintiff had filed no opposition to defendants' April 28, 2010 motion for dismissal with prejudice. The judge then observed that over the course of the litigation, plaintiff's failure to appear for deposition and failure to answer interrogatories had forced defendants to file three separate motions to dismiss plaintiff's complaint. The judge also noted that plaintiff's deposition "was supposed to happen by September 22, 2008 or else her testimony would be barred. And we keep going like that until the last motion."

The judge then asked plaintiff's counsel if he had advised plaintiff of the August 28, 2008 order requiring her to make herself available for a deposition prior to September 22, 2008, and of the February 16, 2010 order extending discovery until March 1, 2010. Plaintiff's counsel answered yes. The judge then denied plaintiff's motion for reconsideration, reasoning:

[A]s of August 2008, plaintiff didn't appear for depositions, and there were four notices, and since that time there have been at least, I think three or four other notices.

And this is an '06 case. This is going on two years now, since plaintiff was originally ordered to have her deposition taken by September 22, 2008. And while, most recently, she may have been in the hospital, I just -- it's inexcusable. There has to be a point in time where discovery has to be completed, where depositions have to be taken, and this has been -- this is the third motion to dismiss with prejudice.

And, frankly, I just think that there's no reason to reconsider my prior ruling. . . . [A]t some point, it has to come to an end, and I'm not going to grant the motion for reconsideration, and the matter stays dismissed.

When plaintiff's counsel urged the judge to change her mind and "impose the severest [sic] sanction imaginable on [him], but not on [his] client who was in the hospital when the deposition was noticed," the judge responded:

Okay, well, but this last time she may have been in the hospital[.] But, that still doesn't excuse everything that's brought this up to this time, and I have to look at this as a continuing course.

The judge signed a confirming order on July 23, 2010, denying plaintiff's motion for reconsideration.

On appeal, plaintiff argues: 1) "dismissal with prejudice for a discovery violation is an extreme measure, to be used sparingly and only as a last resort"; 2) "defendants' motion to dismiss was procedurally defective"; 3) "plaintiff did not re[f]u[s]e to appear at her deposition, or engage in any willful or contumacious behavior"; and 4) "the trial court erred in failing to consider whether any lesser sanction other than dismissal would cure any alleged prejudice."

II.

"A trial court has inherent discretionary power to impose sanctions for failure to make discovery, subject only to the requirement that they be just and reasonable in the circumstances." Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 513 (1995) (internal quotation marks and citation omitted). Rule 4:23-2(b) establishes an array of remedies available to a judge when a party fails to comply with discovery. The judge may order that the matters in question be deemed established in favor of the party obtaining the order; may refuse to allow the delinquent party to support or oppose designated claims or defenses; may strike out pleadings or parts thereof; may dismiss the action with or without prejudice, or render a judgment by default against the disobedient party; or may hold the delinquent party in contempt of court. R. 4:23-2(b).

In Abtrax, the Court provided guidance to trial judges in determining which of the Rule 4:23-2(b) sanctions to apply. The Court stated:

In respect of the ultimate sanction of dismissal, this Court has struck a balance by instructing courts to impose that sanction only sparingly. The dismissal of a party's cause of action, with prejudice, is drastic and is generally not to be invoked except in those cases in which the order for discovery goes to the very foundation of the cause of action, or where the refusal to comply is deliberate and contumacious. Since dismissal with prejudice is the ultimate sanction, it will normally be ordered only when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party, or when the litigant rather than the attorney was at fault.

[Abtrax, supra, 139 N.J. at 514 (internal quotation marks and citations omitted).]

Applying the standards articulated by the Court in Abtrax, we are satisfied that the motion judge did not abuse her discretion when she dismissed plaintiff's complaint with prejudice. First, although the judge did not say so expressly, we discern from her remarks a conclusion that defendants' ability to depose plaintiff was essential to their ability to defend themselves against her claims. Without plaintiff's deposition, defendants would be unable to determine which medical conditions described by plaintiff were the result of, or exacerbated by, defendants' conduct. Further, without obtaining plaintiff's deposition, defendants' effort to understand plaintiff's precise liability claims under CEPA would have been severely hampered. Defendants thus faced the prospect of being forced to present their defenses without the benefit of a deposition of plaintiff, which surely exposed them to considerable prejudice. That factor, when combined with the fact that a deposition of plaintiff went "to the very foundation of the cause of action," id. at 514, thereby satisfied two of the critical Abtrax factors: prejudice to the moving party, and a showing that the missing discovery pertained to a central aspect of the delinquent party's claims.

As for plaintiff's argument that the dismissal with prejudice was flawed because the judge failed to consider any lesser sanctions, we note that the judge pointedly remarked that because this was defendants' third motion to dismiss with prejudice, and plaintiff still had not made herself available for deposition, the lesser sanction of yet another dismissal without prejudice would be futile. While it is true that other remedies, such as barring plaintiff from testifying, were never expressly considered by the judge at this motion hearing,3 we conclude that such a remedy would provide defendants with little benefit, as plaintiff would still be entitled to produce her treating physicians as fact or expert witnesses. Thus, the lesser sanctions of dismissal without prejudice or barring plaintiff from testifying strike us as wholly inadequate to address the problem defendants faced in not having secured plaintiff's deposition testimony.

We turn to plaintiff's arguments about her medical condition. As defendants correctly argue, we will not presume that every person who receives a disability retirement is incapable of appearing for a deposition. Moreover, although the record contains several expert reports from 2002 through 2005 attesting to plaintiff's psychiatric disorders, plaintiff provided no contemporaneous reports on that subject, nor did she offer any expert testimony establishing that submitting to a deposition was impossible, or even onerous, in 2009 and 2010. As the judge noted, in the six weeks between the time defendants filed their motion on April 28, 2010, and the time the motion was eventually decided on June 7, 2010, plaintiff could have, but did not, seek a protective order quashing defendants' notice of deposition if submitting to a deposition was medically impossible for her. Thus, in the absence of any expert opinion or medical records establishing that plaintiff was too ill to appear for her deposition, we concur in the judge's determination that plaintiff's claim of her inability to endure a deposition should be rejected.

Finally, we are satisfied that plaintiff herself was well aware of the requirement that she submit to a deposition, as evidenced by her attorney's affirmative answer to the judge's question about whether he had notified his client of the 2008 and 2010 orders. On this subject, what is most telling is not what plaintiff said, but rather what she did not say. Notably, the record contains no assertion by plaintiff that she was unaware of the deposition dates or that she was medically unable to appear and give testimony. While plaintiff's attorney valiantly offered to assume all responsibility for plaintiff's non-appearance, and even urged the court to sanction him rather than dismiss plaintiff's complaint with prejudice, in the end we are satisfied that plaintiff's failure to appear for her deposition over a three-year period -- after seven notices of deposition had been served -- warranted the extreme sanction of dismissal.

As the judge correctly observed, the final subpoena for the March 31, 2010 deposition cannot be viewed in a vacuum. Instead, that final, and seventh, notice must be viewed in the context of a longstanding failure to appear for depositions, a failure that two prior court orders could not cure. Under such circumstances, the judge did not abuse her discretion by dismissing plaintiff's complaint with prejudice.

Plaintiff's remaining argument, that defendants' motion was procedurally defective and should not have been considered, lacks sufficient merit to warrant discussion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Although plaintiff alleged in her complaint that she was "terminated" from her position, her answers to interrogatories made it clear that following her "termination," at which time she was earning approximately $90,100 per year, she "was given a job that paid a gross salary of approximately $86,000." On October 18, 2007, the Division of Pensions and Benefits approved plaintiff's application for Ordinary Disability Retirement, effective July 1, 2007. Thus, there is some question as to whether plaintiff was, as she alleges, "terminated" by defendants; however, we need not address that question, as it is not germane to the issues on appeal.

2 Although reconsideration motions must be filed no later than twenty days after service of the order for which reconsideration is sought, R. 4:49-2, plaintiff asserted that the June 7, 2010 order was not served upon her until June 15, 2010, and therefore her motion for reconsideration was timely.

3 As we have noted, this potential remedy was contained in the September 22, 2008 order that was subsequently vacated. As is evident, the prospect of being potentially barred from presenting testimony did not cause plaintiff to appear for deposition.