CAROL LEE GORDON v. SOMERSET MEDICAL CENTER

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CAROL LEE GORDON,

Plaintiff-Appellant,

v.

SOMERSET MEDICAL CENTER,

STEEPLE CHASE BREAST CARE

CENTER, JEANNETTE GREER, M.D.,

and ASSOCIATED RADIOLOGISTS,

P.A.,

Defendants-Respondents.

________________________________

August 29, 2014

 

Argued September 17, 2013 Decided

 

Before Judges Alvarez and Ostrer.

 

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-697-09.

 

Carol Lee Gordon, appellant, argued the cause pro se.

 

Peter A. Greene argued the cause for respondents Somerset Medical Center and Steeple Chase Breast Care Center (Sachs, Maitlin, Fleming & Greene, attorneys; Mr. Greene, on the brief).

 

Michael R. Ricciardulli argued the cause for respondents Jeannette Greer, M.D. and Associated Radiologists, P.A. (Ruprecht Hart Weeks & Ricciardulli, LLP, attorneys; Matthew E. Blackman, on the brief).

PER CURIAM

Plaintiff Carol Lee Gordon appeals from trial court orders denying her an extension of discovery, granting defendants summary judgment dismissal of her medical malpractice complaint, and denying reconsideration. Summary judgment was granted because plaintiff failed to file an expert report before the discovery end date to support her claim that defendants negligently failed to diagnose her breast cancer.

The core of this appeal pertains to the court's order denying plaintiff additional time to obtain an expert. It is essentially undisputed that, absent an expert report, plaintiff's malpractice claims lacked necessary support, justifying summary judgment dismissal. However, we discern no abuse of discretion by the court in denying the extension of discovery. We therefore affirm.

I.

The critical facts in this case pertain to its procedural history, the disability of plaintiff's original attorney, and orders affecting discovery. Plaintiff filed her complaint in April 2009. She alleged a negligent failure to diagnose breast cancer after mammogram studies in April and December 2005. As a result, she alleged, her breast cancer was not discovered until April 2007. Plaintiff was represented by the firm, Leifer Levine & Grossbart, later known as Leifer & Grossbart, LLC, and then Larry L. Leifer, P.C. Larry L. Leifer signed the complaint.

Defendants answered the complaint in June 2009 and plaintiff filed an affidavit of merit in August 2009. Plaintiff answered interrogatories in September 2009, but did not identify any proposed experts.

After a case management conference in June 2010, Assignment Judge Yolanda Ciccone entered an order setting a discovery end date of April 15, 2011. The order also set intervening deadlines, requiring plaintiff to produce expert reports by November 1, 2010, and defendants to respond by February 1, 2011.

In the meantime, however, defendants Jeannette Greer, M.D., and Associated Radiologists, P.A. (A.R.), had sought the court's assistance in enforcing their right to discovery. Judge Edward M. Coleman granted Greer and A.R.'s unopposed motion on June 11, 2010, compelling plaintiff to return signed medical authorization forms, and providing the failure to do so would result in dismissal without prejudice. After plaintiff apparently failed to comply, Judge Coleman, on August 13, 2010, granted Greer and A.R.'s unopposed motion for dismissal without prejudice.

Plaintiff later asserted she had, in fact, provided medical authorizations to her attorney long before the enforcement motions were filed. She maintained that her attorneys did not advise her of the motions or the subsequent orders. Plaintiff's firm, through an associate of Leifer, sought defendants' consent in September 2010 to vacate the dismissal order. The order was signed by defense counsel but apparently not filed by Leifer's colleague.

It soon became evident, after entry of the dismissal order, that plaintiff's lead attorney, Leifer, had become unable to continue in the practice of law. By this time, apparently, Leifer's firm was known as Larry L. Leifer, P.C. On October 6, 2010, the Law Division in Essex County entered an order pursuant to Rule 1:20-19(a)(2) appointing a trustee for Leifer and his firm, based on proof that Leifer was "unable to carry on the practice of law."

The trustee notified plaintiff by letter the next day that Leifer was unable to continue to represent her, the trustee possessed her file, and would release it to a new attorney of her choosing. The trustee stated,

It is critical that you immediately take steps to protect your interests. Statutes of Limitation, Court deadlines, trial deadlines, discovery requirements and expert reports may[]be pending and it is imperative that they be addressed. Failure to do so may even cause dismissal of your case with prejudice.

 

. . . .

Regardless of whom you choose to pursue your matter, you must do something. If I do not hear from you immediately, I will be required to file a motion in your case to have Mr. Leifer's firm removed as counsel.

 

In his original letter, the trustee also advised plaintiff that he had consulted with two attorneys not in his firm who were "undertaking a review" of her file. In November 2010, with plaintiff's authorization, an attorney at the trustee's firm forwarded her file to another firm for review, which declined to take the case in a January 2011 letter. As plaintiff failed to retain a substitute attorney, the trustee moved for an order to relieve Leifer as attorney of record. Judge Coleman entered the order on February 4, 2011, and stayed the litigation for sixty days "to enable [p]laintiff to retain new counsel in this matter."1

On March 29, 2011, plaintiff filed a notice of motion "on short notice" seeking reinstatement of her complaint, ninety days more to find counsel, and a ten-month extension of the discovery end date. She also asked for an indefinite stay of the litigation and discovery "while [p]laintiff pro se recovers missing voluminous documents critical to her case." Plaintiff also requested an order compelling defense counsel to review their files with her.

In support of her motion, plaintiff asserted that an associate of Leifer, who was handling her case while Leifer was absent, failed to diligently represent her, inform her of progress in her case, particularly entry of the dismissal order, and failed to file the consent order restoring her case. She complained that her files were in disarray, and missing essential documents and medical records, which impeded her efforts to retain another attorney to take her case. She also accused an attorney at the trustee's firm of dilatorily forwarding her file to prospective attorneys, and portraying her case in a negative light. At oral argument, plaintiff disclosed that she had personally met with only one prospective attorney, but her file had been forwarded to several attorneys, none of whom expressed interest in representing her.

Greer and A.R. objected to the extension of the stay, arguing that plaintiff had been aware since October 2010 she needed to find substitute counsel. Noting that he had previously signed a consent order vacating the prior dismissal, counsel requested a case management conference "to set a new schedule for completion of discovery, as previously established deadlines for discovery, including expert discovery, were still outstanding when the case was dismissed on August 13, 2010."

On April 15, 2011, Judge Coleman restored the complaint and amended the February 4, 2011 order, extending time to seek counsel by forty-five days. The court denied all other requested relief, including an extension of the discovery end date. Judge Coleman concluded that plaintiff was provided ample time to find a new attorney, and that plaintiff's concerns about the completeness of her file should be secondary to her effort to retain counsel. In light of "the stress" that plaintiff faced, the court granted her more time to retain an attorney.

A month later, the court issued notice of a July 25, 2011 trial date. After the additional forty-five-day period expired, Greer and A.R. filed their motion for summary judgment. Co-defendant Somerset Medical Center (Somerset) and Steeple Chase Breast Care Center (Steeple) also sought summary judgment.2

Plaintiff cross-moved for an additional forty-five days to find counsel, denial of the summary judgment motions as premature, postponement of trial, and a case management conference. She sought an additional 300 to 350 days of discovery. She also sought leave to file an amended complaint, to add claims of negligence in her post-diagnosis treatment. In opposition to the summary judgment motion, plaintiff submitted various medical records to demonstrate negligence, and stated she was in the process of obtaining experts to support her claims.

Judge Coleman granted defendants' motions. In a written opinion, he concluded that, given the nature of plaintiff's malpractice claims, expert testimony was required to satisfy her burden of establishing a deviation from the standard of care. In rejecting plaintiff's cross-motion, Judge Coleman noted that the discovery period approached 680 days and during most of that time, plaintiff was represented by counsel. Notwithstanding plaintiff's complaints that Leifer's associate disserved her, the court concluded that plaintiff herself had not been diligent in obtaining substitute counsel since October 2010.3

On August 23, 2011, the judge denied plaintiff's motion to reconsider and to extend discovery by ten months. In another written opinion, Judge Coleman rejected plaintiff's claims that she was treated unfairly by the court and staff, and emphasized that plaintiff was repeatedly informed that she was required to seek any relief in writing upon formal motion.

Plaintiff's appeal followed. She presents twenty-three separate points, which, in general, challenge the court's denial of her request for an extension of the discovery end date and other procedural relief, and asserts she was treated unfairly.

POINT I

APPELLANT WAS ENTITLED TO HER ENTIRE FILE NOT A CLUMP OF DISORGANIZED PAPERS THAT HAD VOLUMINOUS MISSING FILES.

 

POINT II

APPELLANT WAS ENTITLED TO A STAY OF DISCOVERY UNTIL SUCH DOCUMENTS WERE LOCATED BY TRUSTEE.

 

POINT III

APPELLANT WAS ENTITLED TO DISCOVERY BEING EXTENDED FOR AT LEAST A YEAR IF NOT LONGER. See R. 4:24- 1 Extension minimum 60 days.

 

POINT IV

APPELLANT WAS ENTITLED TO REVIEW DEFENDANT'S FILES FOR ANY MISSING DOCUMENTS IN THE INTERIM IN LIEU OF AN ALREADY PROMULGATED NOTICE TO PRODUCE UPON DEFENDANTS.

 

POINT V

APPELLANT WAS ENTITLED TO A CASE MANAGEMENT CONFERENCE AND WAS DENIED THREE TIMES.

 

POINT VI

APPELLANT IS ENTITLED TO DUE PROCESS OF LAW.

 

POINT VII

APPELLANT ALSO RELIED ON THE STATE OF NEW JERSEY FOR PRO SES TO BE TREATED WITH THE SAME COURTESY AS AN ATTORNEY GIVEN THE UNUSUAL DETRIMENTAL FACTS OF HAVING A DISABLED ATTORNEY.

 

POINT VIII

APPELLANT HAD THE RIGHT TO AMEND HER COMPLAINT TO ADD OTHER DEFENDANTS CAUSALLY WHICH WERE DIRECTLY INVOLVED IN PLAINTIFF[']S INJURIES AND ALSO A THIRD PARTY THE FEDERAL GOVERNMENT. ONCE DOING SO, PLAINTIFF WOULD HAVE REMOVED THE CASE TO FEDERAL COURT OR AT LEAST JOINED THE CASES. PRIMA FACIE CASE.

POINT IX

APPELLANT RELIED ON TRUSTEE TO MAINTAIN AND MOVE THE FILE EXPEDITIOUSLY.

 

POINT X

APPELLANT WAS DENIED THE RIGHT TO PUT INTO MOTION A REASONABLE SET OF DEMANDS TO PROMOTE THE PROCURING OF AN ATTORNEY UPON RESTORING HER COMPLAINT.

 

POINT XI

APPELLANT RELIED ON DISCOVERY JUDGE CICCONE'S PROMISES FOR RELIEF AND WAS OVERTURNED BY JUDGE COLEMAN.

 

POINT XII

APPELLANT WAS DISCRIMINATED AGAINST AS BEING PRO SE, INDIGENT, A WOMAN, A VETERAN, AND HANDICAPPED/DISABLED.

 

POINT XIII

APPELLANT SHOULD NOT BE PENALIZED FOR PAST LAW FIRM'S FAILURE TO DELIVER ALREADY SIGNED HIP[A]AS.

 

POINT XIV

APPELLANT WAS ENTITLED TO THE SAME RELIEF THAT ANY SUBSTITUTE ATTORNEY WOULD HAVE BEEN AFFORDED UPON ENTERING THIS CASE.

 

POINT XV

APPELLANT WAS PREJUDICED BY HAVING A TRIAL NOTICE DATED MAY 16, 2010.

POINT XVI

APPELLANT WAS INSTRUCTED BY [THE] COURT TO ONLY SPEND TIME FINDING AN ATTORNEY.

 

POINT XVII

APPELLANT NOTIFIED COURT THAT TRIAL DATE IS IN ERROR AND MUST BE REMOVED WITH NO NEW DATE.

 

POINT XVIII

APPELLANT NOTIFIED COURT THAT TRIAL DATE PROMULGATED THE TWO SUMMARY JUDGMENTS.

 

POINT XIX

APPELLANT MADE KNOWN THAT PRIOR DISCOVERY ORDER ENTRIES FOR DATES CERTAIN WERE NOT DISPOSED OF BY DEFENDANTS WHICH HAD TO BE ACCOMPLISHED PRIOR TO MY EXPERT REPORT BEING DUE.

 

POINT XX

APPELLANT'S COMPLAINT WAS DISMISSED WITHOUT PREJUDICE DUE TO HER ATTORNEY[']S LACK OF CARE AND NOT HER INCOMPLIANCE [SIC] OF SAME.

 

POINT XXI

APPELLANT'S MATTER IS AUTOMATICALLY STAYED AS TO ALL PROCEEDINGS INCLUDING BUT MORE PARTICULARLY DISCOVERY.

 

POINT XXII

APPELLANT'S CONCERNS WERE LEGITIMATE IN NATURE AND OF A SUBSTANTIAL MATERIAL IMPORTANCE FOR THE CONTINUING SUIT TO NOT HAVE AN UNJUST EFFECT WHICH WOULD RESULT IN A DETRIMENT OF JUSTICE.

 

POINT XXIII

APPELLANT WENT TO GREAT LENGTHS TO PINPOINT THE GREAT INJUSTICE IN HER MOTION FOR RECONSIDERATION.

 

 

 

 

 

II.

There is no serious dispute that the filing of an expert report was essential to proving plaintiff's medical malpractice claim. See, e.g., Gardner v. Pawliw, 150 N.J. 359, 375 (1997); Rosenberg ex rel. Rosenberg v. Cahill, 99 N.J. 318, 325 (1985). We consequently reach the same conclusion as Judge Coleman that summary judgment dismissal was appropriate in the absence of an expert report. See Henry v. N.J. Dep't of Human Servs., 204 N.J.320, 330 (2010) (stating that on appeal from an order granting summary judgment, the appellate court exercises de novo review, and applies the same standard as the trial court).

We also discern no error in Judge Coleman's April 15, 2011, order, and in the subsequent orders, declining to grant plaintiff discovery extensions and other procedural relief.4 "We generally defer to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005). See also Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463, 471-72 (App. Div.), summarily remanded on other grounds, 185 N.J. 290 (2005).

Plaintiff's initial motion to extend discovery was presented before the discovery end date and the setting of a trial date. It therefore was subject to the "good cause" standard under Rule 4:24-1(c). We have recognized that "the measure as to what constitutes good cause under R. 4:24-1(c) is not high." Leitner v. Toms River Reg'l Sch., 392 N.J. Super. 80, 93 (App. Div. 2007).

In deciding whether good cause has been shown for an extension of discovery in the absence of a fixed arbitration or trial date, there are a number of factors which a trial court should consider. They include, but are not limited to, the following:

 

(1) the movant's reasons for the requested extension of discovery;

 

(2) the movant's diligence in earlier pursuing discovery;

 

(3) the type and nature of the case, including any unique factual issues which may give rise to discovery problems;

 

(4) any prejudice which would inure to the individual movant if an extension is denied;

 

(5) whether granting the application would be consistent with the goals and aims of "Best Practices";

 

(6) the age of the case and whether an arbitration date or trial date has been established;

 

(7) the type and extent of discovery that remains to be completed;

 

(8) any prejudice which may inure to the non-moving party if an extension is granted; and

 

(9) what motions have been heard and decided by the court to date.

 
[Id. at 87-88.]

 

"After reviewing each of these factors, a determination can be made as to whether the trial court's discretion was properly exercised with respect to an individual application to extend discovery." Id.at 88. However, we may not substitute our judgment for that of the trial court, in whom the discretionary authority is vested. SeePomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.344, 371 (2011).

We discern sufficient support in the record for the court's denial of plaintiff's motion. The court recognized that plaintiff was coping with the disability of her attorney, and the apparent disorganization of her files. She labored without the assistance of counsel. According to plaintiff, even before her attorney's practice was placed in trusteeship, he and his firm had ceased diligently representing her allowing a dismissal order to be entered, and failing, in the year-and-a-half after filing the complaint, to obtain an essential expert.

Nonetheless, the critical factor in the court's decision was plaintiff's failure, since she received notice from the trustee in early October 2010, to secure new counsel. Plaintiff was reminded when Leifer was formally relieved in February 2011 that she needed to find counsel.

There was nothing apparently unique about the case that prevented plaintiff from securing an expert report. Indeed, plaintiff had secured an affidavit of merit in 2009. The record reflects no timely and concerted effort by plaintiff through counsel or on her own to secure an opinion from an expert that a physician exercising reasonable care should have reached a different diagnosis after plaintiff's 2005 mammograms.

The court's denial of a discovery extension in April 2011 on its face deprived plaintiff of the opportunity to serve an expert report after April 15, 2011, the discovery end date. However, implicit in the court's decision was a willingness to reconsider the status of discovery if plaintiff secured counsel within the additional forty-five days provided. Plaintiff failed to secure counsel in that time.

One of the principal goals of the civil discovery Rules is to assure trial date certainty. Leitner, supra, 392 N.J. Super.at 91. Consequently, the Rules set a less demanding standard for extension of discovery before a trial date is set. Seeid.at 91-92. However, the Rules are also designed to "'counteract . . . [a] dilatory, casual and desultory approach" to litigation. Id.at 90 (quoting Tucci v. Tropicana Casino and Resort, Inc., 364 N.J. Super. 48, 53 (App. Div. 2003)).

Judge Coleman was also mindful that the case had been pending since April 2009. Plaintiff sought a ten-month extension of discovery and demonstrated no likelihood that the results of the next several months would differ from those that preceded it. However, if plaintiff did succeed in retaining counsel, and procuring an expert report, that would have extended discovery even further, to allow defendants to serve a responding expert, and to allow depositions of experts.

Although defendants did not allege any specific prejudice to them from delay, the fact remains that the alleged malpractice had occurred in 2005. Parties are entitled to reasonably prompt resolution of disputes. In particular, a physician or medical service provider who is alleged to have acted negligently is entitled to a timely resolution of a claim that casts a shadow on his or her professional reputation.

When plaintiff renewed her request for relief in response to the motion for summary judgment, the discovery end date had passed, and a trial date was set. Therefore, she was subject to the more stringent "exceptional circumstances" standard under Rule4:24-1(c).

[E]xceptional circumstances generally denote something unusual or remarkable. The moving party must demonstrate counsel's diligence in pursuing discovery, establish the essential nature of the discovery sought, explain counsel's failure to request an extension within the original time period, and show that the circumstances presented were clearly beyond counsel's control. "[W]here the 'delay rests squarely on plaintiff's counsel's failure to retain an expert and pursue discovery in a timely manner,' and the [above] factors are not present, there are no exceptional circumstances to warrant an extension."

 

[Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super.448, 479-80 (App. Div.) (alteration in original) (citation omitted) (quoting Rivers, supra, 378 N.J. Super.at 79), certif. denied, 212 N.J.198 (2012).]

 

Health problems of an attorney may qualify as exceptional circumstances. O'Donnell v. Ahmed, 363 N.J. Super.44, 51 (Law Div. 2003). See alsoTucci, supra, 364 N.J. Super.at 54 (finding exceptional circumstances created by terminal illness and death of attorney's mother).

However, Leifer's health issues were known to plaintiff since October 2010. Plaintiff's request for relief post-discovery end date did not become stronger with the passage of time. Plaintiff still had not identified or retained an attorney. Nor had she retained an expert. Judge Coleman concluded, based on adequate support in the record, that plaintiff did not diligently seek new counsel, and an extension of discovery was not warranted.

To the extent not addressed, plaintiff's remaining points lack sufficient merit to warrant discussion in a written opinion. R.2:11-3(e)(1)(E).

Affirmed.

 

 

1 The motion was opposed, but the transcript of the oral argument, if any, is not before us.

2 Somerset noted in its motion that Steeple was a department of the hospital.

3 The judge also addressed various efforts by plaintiff to secure relief orally and informally, through ex parte conversations with law clerks in his chambers and Judge Ciccone's. He noted that plaintiff was repeatedly advised of the necessity of seeking relief in writing, on notice to her adversaries. Judge Coleman noted that he permitted plaintiff to file a sur-reply, and concluded she was afforded ample time to present her opposition.

4 We recognize that plaintiff has not cited to any law, rule or case in support of her claims of error. An appellant is obliged "to justify [her] positions by specific reference to legal authority." State v. Hild, 148 N.J. Super. 294, 296 (App. Div. 1977). See also R. 2:6-9. Nonetheless, we choose to address plaintiff's essential claim that she established good cause for the procedural relief sought.