MI S. GI v. SONAL DUGAR

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MI S. GI and HARRY GI,

her husband,

Plaintiffs-Appellants,

v.

SONAL DUGAR and AMIT R.

AGARAWAL,1

Defendants-Respondents,

and

TRAVELERS AUTO INSURANCE

COMPANY OF NEW JERSEY,

Defendant/Intervenor-

Respondent.

__________________________________

August 11, 2014

Submitted August 4, 2014 - Decided

Before Judges Sapp-Peterson and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7524-11.

Law Offices of Albert H. Wunsch, III, attorneys for appellants (Paul A. Krauss, on the brief).

Law Offices of Walter F. Skrod, attorneys for respondents Sonal Dugar and Amit R. Agarawal (Sarah K. Resch, on the brief).

Law Offices of William E. Staehle, attorneys for respondent Travelers Auto Insurance Company of New Jersey (Christina P. Fisher, on the brief).

PER CURIAM

Plaintiff2 appeals the trial court's dismissal of her complaint for personal injuries in this automobile negligence action. The case was dismissed because plaintiff had not presented appropriate proof establishing that her injuries from the motor vehicle accident were permanent and thereby could surmount the so-called "verbal threshold" under the Automobile Insurance Cost Reduction Act ("AICRA"), N.J.S.A. 39:6A-1.1 to -35. In particular, plaintiff contends that the trial court erred in declining to consider an expert report from her treating physician, which the court deemed to be untimely because it was submitted well beyond the discovery end date. We affirm.

Although the details of the accident have virtually no relevance to the issues before us, the case arises out of a head-on collision between plaintiff's vehicle and a vehicle driven by defendant Sonal Dugar in Secaucus on December 7, 2012. The record suggests that Dugar swerved into plaintiff's lane in order to avoid an unidentified oncoming sedan. The sedan allegedly had been behind plaintiff's vehicle and had crossed over the double-yellow line in an attempt to pass plaintiff, thereby causing Dugar to veer into plaintiff's lane.

Plaintiff was transported from the accident scene to a local hospital emergency room, where she was examined and released. She subsequently treated with a pain management doctor, John S. Cho, M.D., and a chiropractor, Mansoo Jo, D.C., to address ongoing pain and limited movement in her left shoulder, neck, and lower back. The treatments included acupuncture, physical therapy, injections, and chiropractic treatment. The treatment apparently ended after November 2011.

Plaintiff filed her negligence complaint against Dugar and the Dugar car's owner, Amit R. Agarawal, on September 1, 2011, and defendants filed an answer on or about October 19, 2011. As a Track II verbal threshold case, the matter was afforded 300 days of discovery. R. 4:24-1(a). Following a sixty-day extension to which the parties consented, the discovery end date was ultimately established as October 15, 2012. On December 7, 2012, the trial court entered an order granting Travelers Auto Insurance Company ("Travelers") leave to intervene in the case and to file an answer within thirty days. Meanwhile, the non-binding arbitration date was adjourned from its original date of December 10, 2012 to January 10, 2013. The arbitration was again adjourned to January 24, 2013, and was completed on that date. A trial date of April 22, 2013 was scheduled.

In early January 2013, defendants moved for summary judgment, on the basis that the evidence exchanged in discovery failed to create a genuine issue of material fact establishing that plaintiff sustained a permanent injury from the accident, as required for her to recover pain and suffering damages under AICRA. See N.J.S.A. 39:6A-8. The summary judgment motion was originally returnable February 13, 2013, but was later adjourned to February 22, 2013.

Nine days before the summary judgment argument, plaintiff notified opposing counsel by letter that she was amending her interrogatory responses to include a narrative expert report from Dr. Cho. In that expert report, Dr. Cho expressed his opinion that the injuries plaintiff sustained to her shoulder and spine were all causally related to the December 2010 accident, and that those injuries were permanent. Defense counsel objected to the court's consideration of Dr. Cho's report because it had been tendered well after the discovery period had expired, and the case had already been arbitrated.

The motion judge agreed with defendants that Dr. Cho's report was untimely and that plaintiff had failed to justify its lateness. Consequently, the judge declined to consider the substance of the report. Because the other medical information exchanged in discovery failed to show a genuine material dispute on the permanency and causation requirements, the judge granted summary judgment to defendants. The judge denied plaintiff's motion for reconsideration, and her present appeal ensued.3

Plaintiff contends that the trial court acted unfairly in declining to consider the substance of Dr. Cho's narrative report. We disagree.

The scope of our review of what is, in essence, a discovery ruling here is limited. Generally, we do not disturb a trial court's discovery-related determination unless it represents an abuse of discretion or a misapplication of the law. Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995). We perceive no such abuse of discretion or legal error here.

As the motion judge correctly recognized, Rule 4:17-7 plainly states, in pertinent part, that late amendments to interrogatory responses may be allowed "only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date." (Emphasis added). The Rule further specifies that "[i]n the absence of said certification, the late amendment shall be disregarded by the court and adverse parties." Ibid. (emphasis added). No such certification was supplied here by plaintiff. Moreover, Dr. Cho was plaintiff's ongoing treating physician through the latter part of 2011. The record is bereft of any certified explanation by plaintiff or her counsel as to why the doctor could not have provided his narrative report within the discovery period or, alternatively, why plaintiff, in the exercise of due diligence, could not have sought a timely extension from the court if she was having legitimate problems in obtaining the report.

The motion judge properly followed Rule 4:17-7 in disregarding Dr. Cho's late report. It is immaterial that Travelers apparently amended its discovery responses in January 2013 to likewise rely on defendant's medical expert as its own expert. Any additional discovery that may have been exchanged after the expiration of the discovery period was conducted at the parties' own peril.

We reject plaintiff's reliance on Ponden v. Ponden, 374 N.J. Super. 1 (App. Div. 2004), as authority for reversing the trial court's order. Ponden is readily distinguishable from the present case because there, the plaintiff applied to the court for leave to serve a late expert report before the arbitration and before a trial date was assigned. No such motion was filed here.

We also reject plaintiff's contention that Dr. Cho's narrative merely "summarized" the doctor's prior findings reflected in her chart and in other materials exchanged during the discovery period. We do not regard the miscellaneous notations in the medical record to be the equivalent of the doctor's narrative report which, for the first time in the litigation, expressly articulated a medical opinion that plaintiff's injuries were permanent and were caused by the accident. It was not defendants' obligation to correlate for plaintiff the results of the various medical tests conducted during the discovery period and to make assumptions as to the possible expert findings that could be drawn from those test results. In addition, plaintiff's belated service of Dr. Cho's narrative was prejudicial to defendants, who would have had to move to reopen discovery if they wanted to have their own medical expert issue a supplemental report in response, or to possibly request to have an updated medical examination of plaintiff performed.

Plaintiff asserts in her reply brief, apparently for the first time, that Dr. Cho's report was actually untimely because the discovery period was automatically extended by sixty days to at least February 13, 2013, by virtue of the filing of intervenor Travelers' answers on or about the week of December 10, 2012. Although we need not address this new argument because it was not raised below or in plaintiff's merits brief, we do so anyway for sake of completeness. The argument is incorrect because Rule 4:24-1(b) provides that the sixty-day extension, unless it is reduced or enlarged by an order of the court for good cause, is tacked onto "the scheduled discovery end date." (Emphasis added).

Here, the last scheduled discovery end date was October 12, 2012. Consequently, when Travelers was granted intervenor status on December 7, 2012, the discovery period would only be extended automatically by Rule 4:24-1(b) to December 11, 2012, i.e., sixty days after October 12, 2012. The date that Travelers filed its answer is not, as plaintiff contends, the trigger date for the automatic sixty-day extension. See Pressler & Verniero, Current N.J. Court Rules, comment 2 on R. 4:24-1(b) (2014) ("The rule makes clear that the 60-day extension applies to the end date of the discovery period in effect, as it may have been previously extended, at the time the new party is joined."). If the parties desired a longer discovery period to accommodate the intervenor's participation in the case, a motion should have been filed to seek such an extension. No such motion was filed, perhaps because Travelers' legal position concerning plaintiff's inability to surmount the verbal threshold was identical to that of the existing defendants.

The order granting summary judgment, and the trial court's corresponding decisions declining to consider Dr. Cho's late report and rejecting plaintiff's motion for reconsideration, are therefore sustained in all respects.

Affirmed.

1 Respondent Amit R. Agarawal's last name was misspelled "Agarwal" in several documents in the record.

2 The complaint lists Mi S. Gi, the injured driver, and her husband Harry Gi, who claims a loss of consortium, as co-plaintiffs. We shall use the term "plaintiff" to refer to both plaintiffs unless the context suggests otherwise.

3 The court also denied as moot a comparable motion for summary judgment by intervenor Travelers, which took the same legal position as defendants in this appeal.