DOLORES BATTEN v. JOSEPH M. DOWNS and SHOPRITE OF BRIDGETON NJ

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5278-13T2

DOLORES BATTEN and ROBERT

BATTEN, her husband,

Plaintiffs-Appellants,

v.

JOSEPH M. DOWNS,

Defendant-Respondent,

and

SHOPRITE OF BRIDGETON, NJ,

Defendant.

______________________________

October 1, 2015

Argued September 21, 2015 Decided

Before Judges Lihotz and Fasciale.

On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-1233-10.

Beth White argued the cause for appellants (Chance & McCann, L.L.C., attorneys; Ms. White and Matthew Weng, on the briefs).

Jessica D. Adams argued the cause for respondent (Callegher & Mensching, attorneys; Ms. Adams, on the brief).

PER CURIAM

In this damages-only verbal threshold case, Dolores Batten (plaintiff) and her husband Robert Batten,1 (collectively plaintiffs) appeal from a June 5, 2014 order dismissing their complaint and entering judgment for defendant Joseph M. Downs following a jury verdict of no cause of action.2 Plaintiff argues that the judge erred by granting defendant's motion in limine barring part of her lost wage claim. We affirm.

On December 23, 2008, plaintiff was involved in an accident when defendant's vehicle rear-ended an automobile in which plaintiff was a passenger. Approximately six months later, on June 4, 2009, plaintiff slipped and fell in ShopRite. In January 2011, more than two years after the car accident, plaintiff filed a complaint against defendant and ShopRite seeking damages related to her alleged injuries.

This appeal focuses on plaintiff's alleged lost wage claim seeking compensation for her early retirement. In her interrogatory answers, plaintiff indicated that she was unable to work as a housekeeper from December 23, 2008 to February 16, 2009, and then again from July 21, 2010 to August 23, 2010. Plaintiff did not quantify the amount of her lost wages. Instead, plaintiff initially certified that she "received her salary, but lost her time."

In September 2011, defendant's counsel deposed plaintiff. At her deposition, plaintiff testified that she wanted to see her doctor because she "may have to retire on [her] job." Plaintiff, who was then approximately sixty-five years old, also testified that she originally planned to retire at the age of seventy.

Although the complaint had been pending for one and one-half years, plaintiff had not yet quantified her alleged lost wages. In June 2012, plaintiff obtained an order extending discovery until the end of August 2012. The court extended discovery to give plaintiff the opportunity to "investigate a potential wage loss claim."

In August 2012, plaintiff amended her interrogatory answers by producing a document from her employer, which purportedly calculated her lost wages and verified the time plaintiff had missed from work. The document reflected that plaintiff did not work from December 25, 2008 to February 16, 2009, which amounted to a lost wage claim in the amount of $4,017.60.3 Plaintiff's counsel indicated in his cover letter amending plaintiff's interrogatory answers that "[y]ou may accept this information as though certified, and we will be bound by same at the trial." Plaintiff did not further amend her interrogatory answers to alter her lost wage claim.

The court listed the case for non-binding arbitration. In November 2012, plaintiff's counsel faxed to defendant's counsel a draft arbitration statement. Without amending plaintiff's interrogatory answers, plaintiff's counsel indicated in the arbitration statement that plaintiff "was forced to retire on May 2, 2012 . . . ."4

In October 2013, the court extended the discovery end date (DED) to January 2014, so that ShopRite's counsel could have plaintiff examined by a doctor. By this time, the case had been pending for three years. Although discovery had been extended, plaintiff did not amend her interrogatory answers to assert a lost wage claim related to her decision to retire early.

In May 2014, the parties appeared for trial before Judge Richard J. Geiger. Defendant's counsel informed the judge that she had learned one week before the commencement of the trial that plaintiff intended to assert a lost wage claim, substantially exceeding $100,000, as a result of her purported early retirement. Defendant's counsel moved in limine to bar plaintiff from asserting what he characterized as an untimely and uncertified increased lost wage claim.

Judge Geiger noted that plaintiff failed to amend her interrogatory answers or certify that the information requiring the interrogatory amendment was not reasonably available or discoverable by due diligence. Thus, plaintiff's lost wage claim was limited to the disclosed period of lost wages in the amount of $4,017.60. The judge granted defendant's motion for failure to comply with Rule 4:17-7. The trial then started and the jury returned a verdict of no cause of action in favor of defendant, finding that plaintiff failed to sustain a permanent injury and did not establish any lost wage claim caused by the automobile accident.

On appeal, plaintiff argues that defendant failed to request discovery after the arbitration proceeding as to her early retirement. She maintains defendant was not prejudiced because he must have known from both her deposition testimony and draft arbitration statement that she retired before the age of seventy. Plaintiff contends that it is "very likely" that the jury "might" have reached a different result had the jury heard the barred evidence. Consequently, she asserts that the judge erroneously granted defendant's motion in limine, which requires she be granted a new trial.

We review a trial court's decision to exclude certain evidence from trial under an abuse of discretion standard. Bd. of Educ. City of Clifton v. Zoning Bd. of Adjustment City of Clifton, 409 N.J. Super. 389, 430 (App. Div. 2009). As such, we grant substantial deference to the trial judge's exercise of discretion in evidentiary rulings. Ibid. Reversal of a trial court's evidentiary ruling is only appropriate when the ruling is "so wide of the mark that a manifest denial of justice" has occurred. Ibid. Applying this standard, we see no abuse of discretion.

In civil proceedings, parties have a continuing obligation to amend interrogatory answers during the course of discovery. The obligation is governed by Rule 4:17-7, which states in pertinent part that

if a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than 20 days prior to the end of the discovery period, . . . or subsequent order. Amendments may be allowed thereafter 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 [DED]. In the absence of said certification, the late amendment shall be disregarded by the court and adverse parties.

 
[(Emphasis added).]

It is undisputed that plaintiff neither amended her interrogatory responses within the time frame set forth in the rule to include a lost wage claim for her alleged early retirement, nor did she provide a late amendment with an accompanying certification. Plaintiff's production of an informal draft arbitration statement is no substitute for compliance with the rule. This is especially true here because plaintiff's counsel represented to defendant that plaintiff would be bound at trial by the employer's form which omitted a lost wage claim related to her early retirement. By failing to amend her interrogatory responses to include an early retirement claim against defendant, plaintiff failed to comply with the rule.

Further, contrary to her assertion, plaintiff's deposition testimony did not support a claim that she was forced to retire early because of the automobile accident. During her deposition testimony plaintiff testified that she intended to return to her doctor because she "may have to retire on [her] job." We reject as pure speculation, her suggestion that defendant should glean a lost wage damage claim from this testimony. At best, this testimony expressed plaintiff's uncertainty about whether her alleged injuries would force an early retirement and that she wanted to consult a doctor about it.

The record reflects that her counsel possessed the requisite information about her purported early retirement well before the DED. However, counsel represented to defendant's counsel that plaintiff would be bound by the wage claim as stated in the employer's letter totaling $4,017.60. She retired three months before plaintiff's counsel produced the employer's document in August 2012. That representation was made even though plaintiff knew she had retired three months earlier, presumably because of the accidents.

We conclude plaintiff's remaining contentions, that it is "very likely" the jury "may" have reached a different result and defendant failed to request discovery after the arbitration proceeding as to her early retirement, lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed.

1 Robert Batten asserted a derivative per quod claim.

2 Co-defendant ShopRite of Bridgeton (ShopRite) settled with plaintiffs during the jury trial and is not part of this appeal.

3 The form contradicted plaintiff's initial interrogatory answer that she was also unable to work from July 21, 2010 to August 23, 2010.

4 Counsel represented to us at oral argument that the arbitrator did not consider this informal assertion because plaintiff had not amended her interrogatory answers.