CORINA PARODI-CHIPOCO v. ROBERT J. FUERSTMAN DPM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4805-10T1

CORINA PARODI-CHIPOCO and

GUILLERMO CHIPOCO, her husband,

per quod,1

Plaintiffs-Appellants,

v.

ROBERT J. FUERSTMAN, DPM,

Defendant-Respondent,

and

CLARA MAASS MEDICAL CENTER,2

Defendant.

______________________________

March 5, 2012

Argued February 15, 2012 - Decided

Before Judges Payne and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1190-09.

Douglas D. Burgess argued the cause for appellants (Icaza & Burgess, P.C., attorneys; Mr. Burgess, on the brief).

William T. McGloin argued the cause for respondent (Connell Foley, LLP, attorneys; Mr. McGloin, of counsel and on the brief).

PER CURIAM

In this medical malpractice matter, plaintiff Corina Parodi-Chipoco appeals from three Law Division orders entered by Judge DeCastro: (1) the April 15, 2011 order, which granted the motion of defendant Robert J. Fuerstman D.P.M. to bar an amendment to plaintiff's interrogatory answers, bar an expert report plaintiff served after the discovery deadline and setting of a trial date, and bar the expert's trial testimony; (2) the second April 15, 2011 order, which granted summary judgment to defendant, and dismissed the complaint with prejudice; and (3) the May 13, 2011 order, which denied plaintiff's motions for reconsideration of the two April 15, 2011 orders. Plaintiff also appeals from two orders entered by Judge Bariso: (1) the April 15, 2011 order, which denied plaintiff's motion to re-open and extend discovery; and (2) the May 27, 2011 order, which denied plaintiff's motion for reconsideration of the April 15, 2011 order. For the reasons that follow, we affirm.

We detail the relevant procedural history that relates to the issues on appeal. Plaintiff filed a complaint on March 5, 2009, alleging that defendant, a podiatrist, deviated from the

accepted standard of podiatric care in treating her right foot. The court assigned the matter to Track 3 with a four-hundred-and-fifty-day discovery period. Thereafter, Judge DeCastro entered five case management orders, which extended discovery several times, and ordered plaintiff to serve expert reports by dates certain, among other things. The last case management order, dated November 29, 2010, extended discovery to March 1, 2011, ordered plaintiff to serve her expert reports by December 15, 2010, and ordered the completion of all expert depositions by March 1, 2011, among other things.3

On September 30, 2010, plaintiff served an expert report from Mark Herbst, M.D., a radiologist, and on October 15, 2010, she served an expert report from Jack B. Gorman, D.P.M., a podiatrist. Neither expert rendered an opinion on the applicable standard of care, defendant's deviation therefrom, or proximate cause. In fact, Dr. Herbst did not even mention defendant in his report, and Dr. Gorman ultimately concluded that the surgery defendant performed was within the accepted standard in podiatry.

Discovery ended on March 1, 2011. On March 3, 2011, the court scheduled the trial for May 16, 2011.4 On March 17, 2011, plaintiff's counsel advised Judge DeCastro and defense counsel, without explanation, that Drs. Herbst and Gorman would no longer serve as plaintiff's experts.

Defendant filed a summary judgment motion, arguing, in part, that the complaint must be dismissed with prejudice because plaintiff had no expert evidence that defendant deviated from the accepted standard of podiatric care. On March 23, 2011, without leave of court, plaintiff's counsel served a new expert report from Howard S. Shapiro, D.P.M., and an unsigned certification of due diligence, which misrepresented that Dr. Shapiro's report "could not, within the exercise of due diligence, have been provided earlier as it stems from treatment that [p]laintiff underwent after the end of the discovery period." Dr. Shapiro never stated in his report that plaintiff received any further treatment after March 26, 2009, or that he obtained additional relevant information after the discovery deadline. In addition, unlike Dr. Gorman, Dr. Shapiro concluded that defendant deviated from the accepted standard of care by performing surgery instead of continuing conservative treatments, and performing the surgery "[in]correctly and removing entirely too much fascia."

Defendant filed a motion pursuant to Rule 4:17-7 to bar both plaintiff's proposed amendment to her interrogatory answers, and Dr. Shapiro's report and trial testimony. Plaintiff filed a cross-motion to re-open and extend discovery. In support thereof, plaintiff's counsel submitted a certification stating, without further explanation, that Dr. Herbst withdrew "for personal reasons[,]" and Dr. Gorman "requested that he be relieved of his duties as an expert in this case." Neither doctor submitted a certification confirming their withdrawals or their reasons for withdrawing. Nonetheless, plaintiff argued that her experts' sudden withdrawals at the last minute were beyond her control and constituted exceptional circumstances to grant her cross-motion.

In a written opinion and order dated April 15, 2011, Judge DeCastro granted defendant's motion to bar plaintiff's proposed amendment to her interrogatory answers and Dr. Shapiro's report and trial testimony. The judge concluded that discovery had exceeded seven hundred days, the discovery deadline had expired on March 1, 2011, plaintiff never moved to extend discovery prior to the discovery deadline, and plaintiff gave no explanation as to why her experts withdrew. The judge also concluded that the late submission of a "significantly different" expert report only a month before trial was an injustice and prejudiced defendant.

In a second written opinion and order dated April 15, 2011, Judge DeCastro granted defendant's summary judgment motion and dismissed the complaint with prejudice. The judge concluded that Dr. Gorman's report did not create a genuine issue of material fact as to defendant's liability because Dr. Gorman never stated that defendant deviated from the accepted standard of care, and he had agreed that the surgical procedure defendant performed was within the accepted standard of care in podiatry. In an April 15, 2011 order, Judge Bariso denied plaintiff's motion to re-open and extend discovery.

On April 26 and 27, 2011, plaintiff filed motions for reconsideration of Judge DeCastro's two April 15, 2011 orders. Again, plaintiff did not submit certifications from Drs. Herbst or Gorman. Instead, plaintiff's counsel submitted a certification reiterating, again without further explanation, that Dr. Herbst withdrew for personal reasons. Counsel also submitted a purported letter from Dr. Gorman, which stated that he withdrew for personal reasons. On May 4, 2011, plaintiff filed a motion for reconsideration of Judge Bariso's April 15, 2011 order.

In a May 13, 2011 written decision and order, Judge DeCastro denied plaintiff's motions for reconsideration. The judge concluded that plaintiff presented nothing new, and failed to demonstrate that the judge's decisions were palpably incorrect, lacked a rational basis, or that the judge failed to consider relevant facts or law. In a May 27, 2011 order, Judge Bariso denied plaintiff's motion to re-open and extend discovery because summary judgment had been granted and the case was dismissed. This appeal followed.

I.

Plaintiff contends that Judge DeCastro erred in barring Dr. Shapiro's report and trial testimony, and in holding that the late submission of Dr. Shapiro's report prejudiced defendant. Plaintiff again argues that there were exceptional circumstances to re-open and extend discovery. She also argues that defendant would suffer no prejudice because Dr. Shapiro's report was not materially different from Dr. Gorman's report. We disagree with these arguments.

We generally defer to the trial court's decision relating to discovery matters, including extensions of time for discovery, absent an abuse of discretion or mistaken understanding of the applicable law. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011). We apply the same standard to the court's decision to bar a party's request to amend interrogatory answers. Bender v. Adelson, 187 N.J. 411, 428 (2006).

"No extension of the discovery period may be permitted after an arbitration or trial date is fixed, unless exceptional circumstances are shown." R. 4:24-1(c); Bender, supra, 187 N.J. at 426. In order to establish exceptional circumstances,

the moving party must satisfy four inquiries: (1) why discovery has not been completed within time and counsel's diligence in pursuing discovery during that time; (2) the additional discovery or disclosure sought is essential; (3) an explanation for counsel's failure to request an extension of time for discovery within the original time period; and (4) the circumstances presented were clearly beyond the control of the attorney and litigant seeking the extension of time.

[Rivers v. LSC P'ship, 378 N.J. Super. 68, 79 (App. Div.), certif. denied, 185 N.J. 296 (2005).]

In addition to showing exceptional circumstances, untimely requests to amend interrogatory answers must be accompanied by a certification that "the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date." R. 4:17-7; Bender, supra, 187 N.J. at 427. "In the absence of said certification, the late amendment shall be disregarded by the court and adverse parties." R. 4:17-7 (emphasis added).

Applying the abuse of discretion standard to review Judge DeCastro's and Judge Bariso's decisions, we find that plaintiff failed to show exceptional circumstances and due diligence. Plaintiff did not provide competent evidence explaining why her experts withdrew. There are no certifications from the experts confirming their alleged withdrawals and their reasons for withdrawing. Plaintiff's counsel's certifications, stating that the experts withdrew for personal reasons, and his submission of a purported letter from Dr. Gorman, do not suffice. See R. 1:6-6 (a motion based on facts not appearing of record or not judicially noticeable must be supported by "affidavits made on personal knowledge, setting forth only facts which are admissible in evidence to which the affiant is competent to testify"); R. 4:46-5(a) (a party opposing summary judgment must submit affidavits meeting the requirements of Rule 1:6-6). Plaintiff also failed to provide a signed due diligence certification, and the unsigned certification that she submitted misrepresented the reason for her late submission of Dr. Shapiro's report.

Further, we agree with Judge DeCastro that Dr. Shapiro's report is "significantly different" than Dr. Gorman's report. Although Dr. Gorman criticized both defendant's resort to surgery before completing conservative treatment and the surgical procedure defendant performed, he did not conclude these were deviations from the accepted standard of podiatric care. Dr. Gorman ultimately concluded that the surgery defendant performed was within the accepted standard in podiatry, and he never said that defendant performed the surgery incorrectly and removed too much fascia. Dr. Shapiro's report is, thus, highly prejudicial to defendant because it completely changed the nature of the case shortly before trial. Accordingly, Judge DeCastro properly barred Dr. Shapiro's report and trial testimony.

II.

Plaintiff contends that Judge DeCastro erred in granting summary judgment based on Dr. Gorman's alleged failure to fully explain how defendant's treatment of plaintiff was inconsistent with the accepted standard of podiatric care. This contention lacks merit.

"To establish a prima facie case of negligence in a medical-malpractice action, a plaintiff must present expert evidence establishing (1) the applicable standard of care, (2) a deviation from that standard of care, and (3) that the deviation proximately caused the injury." Gonzalez v. Silver, 407 N.J. Super. 576, 586 (App. Div. 2009). Dr. Gorman's report fails to meet these three requirements -- he did not establish the applicable standard of care, that defendant deviated therefrom, or that the deviation proximately caused plaintiff's alleged injury. "Absent competent expert proof of these three elements, the case is not sufficient for determination by the jury." Rosenberg v. Tavorath, 352 N.J. Super. 385, 399 (App. Div. 2002).

Affirmed.

1 Plaintiff Guillermo Chipoco was dismissed from this matter with prejudice pursuant to a stipulation dated November 15, 2010.

2 By order entered on August 27, 2010, the court granted summary judgment and dismissed the complaint and all crossclaims with prejudice as to defendant Clara Maass Medical Center. There is no appeal from that order.

3 There is no order in the record before us that supports plaintiff's claim that Judge DeCastro extended the time for completion of all expert depositions beyond March 1, 2011.

4 The record before us does not support plaintiff's claim in her merits brief that Judge DeCastro had originally set the trial date for September 12, 2011, and that this date was "inexplicably changed" to May 16, 2011. The record also does not indicate that plaintiff opposed the May 16, 2011 trial date or sought to change it.