TYRONE ROCKEMORE v. AMBA CORPORATION BELLMAWR ECONO LODGE and KAMLISH PATEL - and SUN VIKING LANDSCAPE CONTRACTING & DESIGN, LLC (improperly pled as LANDSCAPE CONTRACTING & DESIGN LLC

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2193-11T1

TYRONE ROCKEMORE,

Plaintiff-Appellant,

v.

AMBA CORPORATION, BELLMAWR

ECONO LODGE and KAMLISH PATEL,

Defendants-Respondents,

and

SUN VIKING LANDSCAPE CONTRACTING &

DESIGN, LLC (improperly pled as

LANDSCAPE CONTRACTING & DESIGN,

LLC),

Defendant.

_________________________________

April 30, 2013

Argued December 5, 2012 - Decided

Before Judges Grall, Koblitz and Accurso.

On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket

No. L-1491-09.

Tyrone Rockemore, appellant, argued the cause pro se.

James A. Kassis argued the cause for respondents (Schenck, Price, Smith & King, LLP, attorneys; Michael J. Marotte, of counsel; Mr. Kassis, on the brief).

PER CURIAM

Plaintiff Tyrone Rockemore appeals from the involuntary dismissal of his tort action at trial pursuant to R. 4:37-2(b), following the court's ruling barring plaintiff's expert from testifying to opinions not provided to the defense in discovery. As the ruling prevented the expert from providing any opinion as to causation, plaintiff did not call him, and the judge determined that plaintiff failed to establish a prima facie case warranting a dismissal at the close of plaintiff's proofs. Because we determine that the judge did not abuse his discretion in limiting the testimony of plaintiff's expert resulting in the failure of plaintiff's prima facie case, we affirm.

Plaintiff's cause of action was based upon an alleged slip and fall on an exterior staircase sprinkled with calcium chloride while a guest at defendants' motel. Plaintiff was represented by counsel throughout the pleading and discovery stages of the litigation, but his counsel was relieved on motion prior to the first trial listing. Plaintiff thereafter elected to represent himself. Before the jury, plaintiff presented himself and his long-time girlfriend to testify to the circumstances of the accident.

Plaintiff testified that he arrived at the motel in the evening on March 28, 2007. He requested a first floor room because he was "somewhat disabled" and suffered from a "gait dysfunction" that made it difficult for him to climb stairs. He explained that he had been involved in a serious car accident in 2005 in which he suffered neck and back injuries for which he was still treating to some extent in 2007. The motel could not accommodate his request, and plaintiff was assigned a room on the second floor. Plaintiff described the outside stairs as wide and steep with handrails on both sides. He testified that when he ascended the stairs, it was dark, and there were no lights, but he "did feel some crunching" underfoot.

The next morning, plaintiff and his girlfriend decided to leave the motel and called for the driver who had dropped them off the night before. Plaintiff testified that the driver arrived between eleven and noon. The driver and plaintiff's girlfriend attended to the luggage. Plaintiff, holding a small bag in his left hand and gripping the handrail with his right, started down the stairs alone. Plaintiff described the accident to the jury in the following colloquy in which he is both posing the question and answering it.

Q Mr. Rockemore, how far did you descend down the steps; or were you -- what was the position as you descended down the steps? Were you looking forward; were you looking down, what have you?

A I was looking in -- forward. But in the position as that to where I was going. Because they have an awning or something at that point. And I remember that day. It was rather nice that day. The sun was beaming from the Howard Johnson's way. And I wasn't blind-sided by nothing because the sun was beaming, it just was that [it] was a bright day.

I think I got about, maybe, four -- three or four steps. And from under me, mind you, I was at the rail, so, you know, the pebbles and the ice melt and -- the calcium sodiums -- sodium calcite, that was on the steps. What may have occurred, to me, is that the excess from it being there for so long is what was on the corner of the steps, right where my foot, so I lost my footing on my right leg; tossed and tumbled all the way down to the bottom step. And when I -- I was semi-conscious when I got down there. My leg -- left leg was tuck[ed] under me and my right leg was extended. I was waiting on a particular -- and a particular -- an operation, a cervical operation at the time.

On cross-examination, however, defendant was adamant that the accident had happened in the evening. He testified on redirect that he was in excruciating pain following the fall and suffered injuries to his knee, his left arm and his back. He added that he had to have back surgery and was taking more pain medication than before the fall. The judge sustained objections to plaintiff's attempt to quantify and differentiate the injuries he received in the fall from those incurred in his prior accident.

Plaintiff's girlfriend's testimony was punctuated by repeated sustained objections to plaintiff's attempt to lead her narrative. She testified that she did not see the accident, but noted it occurred during the morning when they were leaving the motel. She was attending to the luggage when she found plaintiff, on the ground and in pain, at the bottom of the stairs.

On the second day of trial, plaintiff sought to call his treating chiropractor. Defendants objected, claiming that they had received only one report from the chiropractor relating to his initial consultation with plaintiff which did not address causation. The court had the report read into the record and requested a proffer from plaintiff as to what he intended to ask his expert. Plaintiff advised that he intended to ask his expert how long he treated plaintiff, what treatment he provided, how the injuries from this accident compared to those plaintiff received in his prior car accident based on a review of plaintiff's medical records, the expert's treatment strategy for plaintiff, the discharge diagnosis, any referrals for further treatment, the expert's opinion of the effect of the accident on plaintiff's abilities to perform daily tasks, and whether plaintiff had suffered a permanent injury in the fall.

Defense counsel objected to the expert testifying to anything beyond the report provided in discovery, which was limited to his assessment of plaintiff on his first visit and the expert's initial treatment plan. He argued that defendants would be severely prejudiced by any new opinion offered by plaintiff's expert because defendants had videotaped their expert's intended trial testimony, and thus would be unable to respond to any new information provided by plaintiff's expert. Counsel noted that the parties were appearing on their seventh trial listing, and that the court had earlier requested that both parties have their experts on tape to avoid any further adjournments based on an inability to schedule experts.

Plaintiff countered that he had to borrow to pay the expert to come in, that the trial date had been adjourned several times through no fault of his, and that the expert had now reviewed plaintiff's prior medical records, done the necessary comparison and was available to testify in court that afternoon. He further argued that the expert had not prepared a final report earlier because the expert was not aware that plaintiff was proceeding after his counsel had been relieved before the first trial listing. Plaintiff contended that any violation of the discovery rules was inadvertent, and thus harmless, and that the court should use its discretion to allow the expert to testify in consideration of plaintiff's self-represented status.

After hearing argument, Judge Holden determined that plaintiff's expert would only be allowed to testify about his initial impressions of plaintiff and his treatment strategy as set forth in the report provided to the defense in discovery. Plaintiff declined to call the witness with those limitations and left the courtroom as defense counsel made his application for a directed verdict. The court granted the motion.

In a comprehensive opinion delivered from the bench, Judge Holden noted plaintiff's somewhat confusing testimony about the injuries he suffered in his prior accident as well as those sustained in the fall and the treatments provided for both. Although plaintiff's expert had reviewed plaintiff's prior medical records and was apparently prepared to offer opinions on causation and compare the injuries suffered in the fall with those received in the prior car accident, no such opinions were known by or previously provided to defendants. The judge concluded that it would be "far too prejudicial" to defendants to allow plaintiff to present expert opinion not previously disclosed to them, especially in light of plaintiff's admitted prior injuries, and that without it, plaintiff could not make out a prima facie case.

On appeal, plaintiff contends the trial judge erred in limiting the testimony of his expert resulting in the directed verdict. We review a trial court's decision limiting the testimony of an expert for abuse of discretion. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371-72 (2011). It is well settled that an expert's testimony at trial may be limited to opinions expressed within the expert's report provided as part of discovery. Conrad v. Robbi, 341 N.J. Super. 424, 440-41 (App. Div.), certif. denied, 170 N.J. 210 (2001). Because limiting an expert in that manner is in the nature of a discovery sanction, Velazquez ex rel. Velazquez v. Portadin, 321 N.J. Super. 558, 576 (App. Div. 1999), rev'd on other grounds, 163 N.J. 677 (2000), the court's focus is on the absence of any intent to mislead on the part of the party proffering the testimony and the presence of any surprise or prejudice to the party opposing its admission. Westphal v. Guarino, 163 N.J. Super. 139, 146 (App. Div.), aff'd o.b., 78 N.J. 308 (1978).

Our review of the record satisfies us that Judge Holden considered these factors in ruling to limit plaintiff's expert's testimony. The judge asked plaintiff for a proffer and then painstakingly compared what opinions plaintiff sought to elicit from his expert with the opinions supplied to defendants in discovery. The court accepted plaintiff's explanation of why no comprehensive report had been served and that plaintiff had not acted with any intent to deceive. The judge, however, rejected plaintiff's contention that, because he did not act underhandedly, the ommission was harmless.

As noted by the judge, and confirmed by our review of the record, plaintiff's testimony as to his injuries was unclear and confusing. Although he very articulately expressed an intent to pursue an aggravation claim in his proffer, and well understood the requirement for a comparative analysis under Davidson v. Slater, 189 N.J. 166 (2007), he made plain that his expert had only reviewed plaintiff's past medical records after trial had already begun. The surprise and prejudice the admission of such testimony would cause to defendants, whose expert had already testified on videotape, is undeniable. Like the trial judge, we are cognizant of the difficulties encountered by a self-represented litigant attempting to present a case to a jury. Nevertheless, plaintiff's choice to represent himself cannot be a basis for denying fundamental due process to defendants. See Rubin v. Rubin, 188 N.J. Super. 155, 159 (App. Div. 1982) (noting the court system's obligation to accord procedural due process to all litigants). We are satisfied that Judge Holden did not abuse his discretion in limiting plaintiff's expert to the opinions provided defendants in discovery.

We are also satisfied that the court was correct in directing a verdict for defendants in the absence of any expert testimony on damages. In order to get to a jury, a plaintiff must to do more than simply present evidence of a defendant's negligence. A plaintiff must present evidence, or reasonable inferences therefrom, showing that defendant's negligence was a proximate cause of the injury. Reynolds v. Gonzalez, 172 N.J. 266, 284 (2002). Here, plaintiff's failure to present any medical testimony as to his claimed injuries prevented him from demonstrating any causal link between defendant's alleged negligence and those injuries. Involuntary dismissal was thus mandated pursuant to R. 4:37-2. See Dolson v. Anastasia, 55 N.J. 2, 5 (1969).

Affirmed.