WILLIAM QUAIL v. SHOP-RITE SUPERMARKETS, INC.

Annotate this Case

(NOTE: The status of this decision is Published.)

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-1164-16T2

WILLIAM QUAIL, as Administrator
of the ESTATE OF MARY K. QUAIL
and WILLIAM QUAIL, Individually, APPROVED FOR PUBLICATION

June 4, 2018
Plaintiff-Appellant,
APPELLATE DIVISION
v.

SHOP-RITE SUPERMARKETS, INC.,
SHOP-RITE OF STANHOPE, NEW
JERSEY, SHOP-RITE OF BYRAM
TOWNSHIP, NEW JERSEY, and RONETCO
d/b/a SHOPRITE OF BYRAM, NJ #203,

Defendants-Respondents.
___________________________________

Argued April 9, 2018 – Decided June 4, 2018

Before Judges Sabatino, Ostrer and Rose.

On appeal from Superior Court of New Jersey,
Law Division, Sussex County, Docket No.
L-0606-14.

Michael S. Bubb argued the cause for appellant
(Bubb, Grogan & Cocca, LLP, attorneys; Michael
S. Bubb, of counsel and on the briefs; Anthony
Cocca, on the brief).

Mark D. Marino argued the cause for
respondents (Harwood Lloyd, LLC, attorneys;
Stephen Wellinghorst and Mark D. Marino, on
the briefs).

The opinion of the court was delivered by

SABATINO, P.J.A.D.
Plaintiff in this wrongful death and survival action appeals

from the trial court's rulings to: (1) exclude from evidence at

trial a Certificate of Death issued following an examination by

the county deputy medical examiner; (2) deny plaintiff a reopening

and extension of discovery to allow the use of the medical

examiner's associated report; and (3) grant summary judgment

dismissing plaintiff's claims.

On the date of the accident, decedent and plaintiff were

shopping at defendant's supermarket. Decedent was using a

motorized cart. As she went down a narrow aisle, her cart's basket

caught on a cash register station, causing the station to fall on

her. The accident injured her leg. Decedent stated she was fine

and went home, but four days later she was taken to the hospital

with complications. She died the following morning.

After a deputy medical examiner inspected decedent's body, a

Certificate of Death was issued. The Certificate stated that the

manner of her death was an "accident" and that the cause of death

was "complications of blunt trauma of [the] right lower extremity."

The examiner's associated report reiterated these conclusions in

more detail.

The key legal issue in this appeal is whether the State

Medical Examiner Act,
N.J.S.A. 52:17B-92, mandates the admission

before a civil jury of the Certificate of Death and the hearsay

A-1164-16T2
opinions it contained. In addition, we consider whether the hearsay

exception for vital statistics, N.J.R.E. 803(c)(9), supplies a

sufficient pathway for the Certificate's admissibility. As part

of that analysis, we consider whether the "net opinion" doctrine,

N.J.R.E. 808 (disallowing the admission of certain disputed

complex opinions embedded in otherwise-admissible hearsay

records), and case law require the exclusion of the examiner's

hearsay opinions. The panel also considers whether the trial

court misapplied its discretion in declining to reopen and extend

discovery under the circumstances, and whether the court erred in

granting summary judgment.

For the reasons that follow, we hold that
N.J.S.A. 52:17B-92

does not provide an absolute right to a civil plaintiff to admit

the full contents of the Certificate of Death. The hearsay

opinions within the Certificate were properly excluded by the

trial court under N.J.R.E. 808, the net opinion doctrine, and

pertinent case law. We also hold the hearsay exception for vital

statistics does not require admission of the examiner's opinions.

Additionally, we conclude the trial court reasonably

exercised its discretion in declining to reopen and extend

discovery after declaring the Certificate inadmissible. Nor did

the court err in granting defendant summary judgment, in light of

plaintiff's lack of necessary expert proof of medical causation.

A-1164-16T2
I.

On October 19, 2012, plaintiff William Quail and his wife,

decedent Mary Quail ("Mary"),1 were shopping in Stanhope at the

"Shop-Rite of Byram" supermarket. Mary used a motorized shopping

cart, but had difficulty maneuvering through the checkout aisle.

When the cart's grocery basket caught the edge of a register

station, the register station collapsed and fell on Mary's right

leg. A cashier asked if Mary was alright or needed help, and Mary

responded at the time that she was fine but a little shaken. The

cashier called the store manager, who also asked Mary about her

condition. According to the manager's written statement, Mary

stated at the time that she was fine and not hurt at all.

When Mary returned home, her leg began to swell, but she did

not seek immediate medical attention. Four days later, on October

23, Mary was taken to St. Clare's Hospital. She presented with a

large hematoma on her right leg. Mary's condition deteriorated

rapidly. She was pronounced dead at the hospital at 5:51 a.m. on

October 24, 2012.

Generally, when a person dies within twenty-four hours after

admission into a hospital, the Morris County Medical Examiner is

notified to inspect the body. Accordingly, on October 24, Dr.

1
We use decedent's first name in this narrative to distinguish
her from her husband. In doing so, we intend no disrespect.
4

A-1164-16T2
Carlos A. Fonseca, a forensic pathologist and deputy county medical

examiner, externally inspected decedent's refrigerated body and

prepared a report. The following day, a Certificate of Death was

issued. It stated decedent's manner of death was an "accident,"

and that the cause of death was "complications of blunt trauma of

[the] right lower extremity." The Certificate was issued by the

Local Registrar, and bears the sealed signature of the Acting

State Registrar of the New Jersey Office of Vital Statistics and

Registry.

Dr. Fonseca's associated three-page report amplified the

findings noted on the Certificate of Death. The report described

decedent as "a morbidly obese, well developed, elderly white female

who appears to be the stated age of 68 years." The report included

observations about the decedent's condition as to various parts

of her body. One of Dr. Fonseca's observations in the report was

that:

The right lower extremity reveals mild pitting
edema from the knee level down. The right leg
reveals extensive swelling of the
anterolateral surface due to a 9" x 7"
hematoma. Associated with this is
purplish/bluish bruising of the back of the
leg extending into the popliteal fossa that
reveals thickening of the skin. The skin
overlying the hematoma is tense and with
fluctuation on compression. A large area of
epidermolysis measuring 7" x 4" is noted at
this level with superficial ulceration of the
skin with partial splitting of the dermis and
oozing of clear to hemorrhagic fluid. Patchy
5

A-1164-16T2
areas of skin slippage are noted around the
margins of the hematoma.

[(Emphasis added).]

Near the end of the report, Dr. Fonseca opined:

Based on the investigation, medical history,
medical records, and external examination, it
is my opinion that the deceased died as a
consequence of complications of blunt trauma
of right lower extremity having as
contributory conditions anticoagulation
therapy for atrial fibrillation, diabetes
mellitus, coronary artery disease, chronic
obstructive pulmonary disease, and congestive
heart failure. Manner of death is accidental.

[(Emphasis added).]

Thereafter, plaintiff, as administrator of his late wife's

estate and individually, filed a civil action in the Law Division

against Shop-Rite2 and fictitious defendants. He asserts claims

under the Wrongful Death Act,
N.J.S.A. 2A:31-1 to -6, and under

the Survivor Act,
N.J.S.A. 2A:15-3. Both claims rest upon a theory

that decedent's accident was caused by the supermarket's

negligence, allegedly causing her leg injury and ultimate death.

Shop-Rite contests liability and resultant damages. With

respect to the issues on appeal, its main argument is that

2
The caption identifies the non-fictitious defendants as "Shop-
Rite Supermarkets, Inc., Shop-Rite of Stanhope, New Jersey, Shop-
Rite of Byram Township, New Jersey, and Ronetco D/B/A Shoprite of
Byram, NJ #203." We collectively refer to them as "Shop-Rite."
The fictitiously named defendants were never identified, nor
substituted into the case.

A-1164-16T2
plaintiff, who did not retain a medical expert, failed to present

sufficient evidence to establish medical causation. Plaintiff

counters that such causation is substantiated by the Certificate

of Death, a document which Shop-Rite contends is inadmissible

hearsay and net opinion.

After discovery ended, Shop-Rite moved to bar admission of

the Certificate of Death and also for summary judgment dismissing

plaintiff's claims. Following oral argument, Judge Robert M.

Hanna barred the findings within the Certificate of Death. He

also denied a discovery extension to plaintiff and granted Shop-

Rite summary judgment. The judge issued a comprehensive twenty-

page statement of reasons explaining his determinations.

At the outset of his written analysis, Judge Hanna found that

plaintiff had presented sufficient evidence to support a jury

finding that Shop-Rite acted negligently. The judge noted in this

regard that Shop-Rite had a duty to ensure that its store aisles

were safe for motorized shopping carts. He found that plaintiff

had offered ample proof of a breach of that duty, and that such

an issue of negligence was within the common knowledge of the

jurors.

Nevertheless, the judge ruled that plaintiff would be unable

to show proximate cause without expert testimony. Because

A-1164-16T2
plaintiff had retained no such medical expert, defendant was

entitled to summary judgment as a matter of law.

The judge reasoned that complex medical issues were involved

in linking the accident at the store with decedent's demise five

days later. The judge recognized that plaintiff had proffered the

Certificate of Death as evidence of proximate causation. The

judge assumed, for the purposes of his decision, that the

Certificate of Death would be potentially admissible at trial

under N.J.R.E. 803(c)(9) as a "vital statistic." Even so, the

judge found that the Certificate of Death must be excluded for

three reasons:

(1) [S]tanding alone, it is a "net opinion"
lacking the whys and wherefores on which it
is based;

(2) Plaintiff during discovery failed to
identify as a witness the Deputy Medical
Examiner whose opinion as to cause of death
is found in the Certificate of Death and
failed to produce the underlying Medical
Examiner's report and records providing the
basis for that opinion; and

(3) N.J.R.E. 808 requires exclusion in these
circumstances, which involve complex medical
circumstances and medical causation issues,
since the declarant (the Deputy Medical
Examiner) whose expert opinion is included in
the Certificate of Death was not identified
as an expert witness nor were his underlying
report and records produced during discovery.

Judge Hanna found it significant that plaintiff had not sought

to obtain the medical examiner's file until after the discovery
8

A-1164-16T2
period had already ended. That discovery violation constituted

an additional reason to exclude the Certificate of Death. The

judge found that plaintiff failed to show due diligence under Rule

4:17-7 or exceptional circumstances under Rule 4:24-1(c) to

justify reopening discovery. The judge observed that plaintiff

had made a "conscious, strategic decision" to rely on the

Certificate of Death alone. Plaintiff had not identified the

deputy medical examiner as an expert, nor had he retained an

expert, even though those options were available to him during

discovery.

Represented by new counsel, plaintiff moved for

reconsideration. Judge Hanna denied the motion, issuing a five-

page supporting statement of reasons. The judge reiterated that

plaintiff "failed to provide the necessary causal link by coming

forward with an expert opinion on the element of proximate

causation." The judge also repeated his original finding that the

Certificate of Death, "as the sole piece of evidence provided on

the issue," was inadequate to support plaintiff's burden of proving

Shop-Rite's conduct was a substantial cause of decedent's death

or injuries.

As another point addressed on reconsideration, the judge

rejected plaintiff's argument that the dismissal of his

survivorship action, as distinct from his wrongful death claim,

A-1164-16T2
was improper. In this regard, the judge noted that plaintiff

critically lacked necessary expert opinion proof "establishing the

causal link between the Shop[-]Rite incident and [d]ecedent's pain

and suffering prior to her death, a link that involve[d] complex

medical issues."

This appeal by plaintiff ensued. He principally contests the

trial court's evidential rulings concerning the Certificate of

Death. He also seeks reversal of the court's denial of a discovery

extension and its grant of summary judgment.

II.

The State Medical Examiners Act,
N.J.S.A. 52:17B-92, states,

in relevant part:

It shall be the duty of the State Medical
Examiner, and the county medical examiners,
to keep full and complete records in their
respective offices, properly indexed, giving
the name, if known, of every such person, the
place where the body was found, date and cause
of death, and all other available information
relating thereto. . . . The records of the
office of the State Medical Examiner, and of
the county medical examiners, made by
themselves or by anyone under their direction
or supervision, or transcripts thereof
certified by such medical examiner, shall be
received as competent evidence in any court
in this State of the matters and facts therein
contained . . . The records which shall be
admissible as evidence under this section
shall be records of the results of views and
examinations of or autopsies upon the bodies
of deceased persons by such medical examiner,
or by anyone under his direct supervision or

A-1164-16T2
control, and shall not include statements made
by witnesses or other persons.

[
N.J.S.A. 52:17B-92 (emphasis added).]

This current statute repeats similar language dating back as

early as 1927, and which stated:

The records of the office of the chief medical
examiner made by himself or by anyone under
his direction or supervision shall be
considered public records, and such records
or transcripts thereof certified by the chief
medical examiner shall be received as evidence
in any court in this State of the matters and
facts therein contained. The records which
shall be admissible as evidence under this
section shall be records of the results of
views and examinations of or autopsies upon
the bodies of deceased persons by the chief
medical examiner or by anyone acting under his
direction, supervision or control, and shall
not include statements made by witnesses or
other persons.

[L. 1927, c. 106, § 6 (emphasis added); see
also R.S. 40:21-70 (1937) (superseded by L.
1967, c. 234).]

The 1927 statute, which covered only medical examiners in first-

class counties, was supplemented in 1944 with a companion provision

that extended to second-class counties. See L. 1944, c. 182, §

10.

According to the legislative history from 1944, this

statutory scheme was enacted with a focus on criminal cases. The

laws sought to address "considerable apprehension upon the part

of the judiciary and the prosecutor concerning proof in homicide

A-1164-16T2
cases and the records of the county physician pertaining thereto."

Sponsor's Statement to S175 (Mar. 6, 1944) (emphasis added). The

1944 Sponsor added, "This act will also facilitate criminal

investigations when the disinterment of a body becomes necessary.

It makes the medical records of sudden and violent deaths public

records.[3] It is a permissive act and a step forward in the

conduct of public business." Ibid. (emphasis added).

The 1927 and 1944 statutes were superseded by the adoption

of
N.J.S.A. 52:17B-92 in 1967, establishing the Office of the

State Medical Examiner. L. 1967, c. 234. This successor version

of the law retained the language instructing that the medical

examiner's records "shall be received as competent evidence in any

court . . . ." Ibid.

Notably, the Supreme Court has issued several opinions

restricting the breadth of this admissibility provision. For

instance, in State v. Reddick,
53 N.J. 66, 67 (1968), the Court

considered whether a medical examiner's autopsy report, relied

upon by a testifying expert, would be admissible before a criminal

3
The ensuing passage of medical privacy legislation such as the
Health Insurance Accountability and Portability Act ("HIPAA"), 29
U.S.C. § 1181 to 1183, 42 U.S.C. § 300gg, and 42 U.S.C. § 1320d
to -9, has apparently eclipsed this secondary purpose of public
disclosure. See, e.g.,
45 C.F.R. 160.103 (declaring that a
person's private health information is no longer protected under
HIPAA fifty years after death).

A-1164-16T2
jury. The medical examiner had died before trial. The Court held

his report was admissible, because the trial court had "excis[ed]

from it all matters of opinion as to the cause of death and other

conclusions made by the examining doctor with regard to the place

and manner of death." Id. at 68. The Court cited to the analysis

in a New York Court of Appeals opinion, People v. Nisonoff,
59 N.E.2d 420, 421 (N.Y. Ct. App. 1944), which similarly redacted

the portion of a medical examiner's report containing his opinions.

Essentially, the Court ruled that the non-testifying medical

examiner's opinions could not be "bootstrapped" into evidence

through the report. See Reddick,
53 N.J. at 68-69.

The Court applied Reddick in a civil context to hold that a

non-testifying medical examiner's report or record is admissible

only if the examiner's opinion is excised from it. Theer v. Philip

Carey Co.,
133 N.J. 610, 629-30 (1993). In Theer, a testifying

expert witness based his testimony in part upon the medical

examiner's written findings within an autopsy report concerning

the "synergistic causal effect of asbestos exposure and cigarette

smoking on [the decedent's] fatal lung cancer . . . ." Id. at

630. Citing its earlier decision in Reddick, the Court ruled that

the hearsay opinion of the medical examiner on such a "complex and

controversial" subject was inadmissible. Id. at 629-30. The

A-1164-16T2
Court directed that, on retrial, "the erroneous admission of the

opinion evidence should not be repeated." Id. at 630.

Both Reddick and Theer, which remain good law, support the

trial court's exclusion of the opinions about decedent's cause of

death stated in the Certificate of Death. We recognize those

Supreme Court cases do not discuss
N.J.S.A. 52:17B-92. Even so,

the Court's case law places an important judicial gloss on what

otherwise would seem at first blush to be an unqualified direction

in the statute that a medical examiner's records "shall be received

as competent evidence in any court" and "shall be admissible."

N.J.S.A. 52:17B-92. We have been supplied with no legislative

history that is contrary to that precedential gloss. If anything,

the limited history set forth in the 1944 Sponsor's Statement

reflects a concern about impediments to criminal investigations,

which is not the context before us.

Unable to distinguish or discredit Reddick and Theer,

plaintiff criticizes the trial court's citation to Biro v.

Prudential Ins. Co. of Am.,
57 N.J. 204, aff'g dissent,
110 N.J.

Super. 391, 402 (App. Div. 1970). In Biro, the decedent was found

slumped over the front seat of his car with the engine running and

the garage door closed. Id.;
110 N.J. Super. at 403. The medical

examiner examined the body and concluded that the decedent had

committed suicide.
110 N.J. Super. at 399. His opinion was

A-1164-16T2
reflected on the Certificate of Death, in which the suicide block

was marked with an "X" above the words "to the best of my

knowledge." Id. at 395-96. The Appellate Division majority

concluded that the document was admissible because the medical

examiner was proffered to testify about his opinions before the

jury. Id. at 399. However, applying Reddick, the majority

cautioned that if the medical examiner did not testify, then his

opinions in the death certificate would need to be excised. Ibid.

In his dissenting opinion in Biro, which was later adopted

by the Supreme Court,
57 N.J. at 204, Judge Matthews concluded

that the medical examiner's opinions should have been excluded,

because the examiner had "no special competence" to ascertain the

decedent's state of mind when opining that the death was suicidal.

110 N.J. Super. at 406. Judge Matthews also distinguished between

"facts" reflected on a death certificate, which are admissible,

versus "conclusions" or opinions, which are not. Id. at 405-06.

Biro does not aid plaintiff's argument for admissibility

here. The Certificate of Death here noted the cause of death was

an "accident," which was plainly a subjective opinion and not a

"fact." Judge Matthews did acknowledge that, had the medical

examiner testified, his opinions within his area of specialized

knowledge (such as whether the death was caused by carbon monoxide

and alcohol poisoning), would be admissible, but not his opinions

A-1164-16T2
about suicide. Id. at 405-06. Here, however, plaintiff was

attempting to present those opinions through the death certificate

itself. Moreover, Biro was decided before the adoption of the

restrictions set forth in N.J.R.E. 808 on hearsay expert opinion,

which we discuss, infra.

Nor is Pearson v. St. Paul,
220 N.J. Super. 110 (App. Div.

1987), another case cited by plaintiff, dispositive. In Pearson,

we held the report of an anesthesiologist, who had been consulted

by a medical examiner in certifying the decedent's cause of death,

was admissible in a medical malpractice case. Id. at 118-19. In

Pearson, the medical examiner testified and explained why he had

relied upon the consulting anesthesiologist's findings in reaching

his final conclusions. Id. at 118. Here, there was no effort

before discovery closed to proffer testimony from the medical

examiner. In addition, Pearson also preceded the adoption of

N.J.R.E. 808.

There are two other compelling reasons for upholding the

exclusion of the Certificate of Death in this case: the special

hearsay restrictions in N.J.R.E. 808, and the "net opinion"

doctrine.

N.J.R.E. 808 was adopted in 1992. The rule codifies the

Supreme Court's opinion in State v. Matulewicz,
101 N.J. 27, 30-

33 (1985), adopting restrictions upon the admission at trial of

A-1164-16T2
complex disputed expert opinions that appear within an otherwise-

admissible hearsay record. Supreme Court Committee Comment to

N.J.R.E. 808 (1991); Biunno, Weissbard & Zegas, Current N.J. Rules

of Evidence, cmt. 1 on N.J.R.E. 808 (2018). In essence, the Rule

functions as a barrier to hearsay expert opinions that may be

untrustworthy, and which the opposing party has no opportunity to

impeach through cross-examination of the declarant. The Rule

directs as follows:

Expert opinion which is included in an
admissible hearsay statement shall be excluded
if the declarant has not been produced as a
witness unless the trial judge finds that the
circumstances involved in rendering the
opinion, including the motive, duty, and
interest of the declarant, whether litigation
was contemplated by the declarant, the
complexity of the subject matter, and the
likelihood of accuracy of the opinion, tend
to establish its trustworthiness.

[N.J.R.E. 808 (emphasis added).]

Notably, the adoption of Rule 808 post-dated the enactment of

N.J.S.A. 52:17B-92.

Case law applying Rule 808 has repeatedly enforced the Rule's

prohibition of the admission of complex expert opinions contained

in hearsay documents, where there are disputed issues concerning

the trustworthiness of those opinions. See, e.g., James v. Ruiz,

440 N.J. Super. 45, 62 (App. Div. 2015) (radiologist's hearsay

opinion finding a disc bulge); N.J. Div. of Youth and Family Servs.

A-1164-16T2
v. M.G.,
427 N.J. Super. 154, 173-75 (App. Div. 2012)

(psychologist's hearsay assessment of psychological and bonding

evaluations); Brun v. Cardoso,
390 N.J. Super. 409, 421 (App. Div.

2006) (hearsay interpretation of MRI of spine); Nowacki v. Cmty.

Med. Ctr.,
279 N.J. Super. 276, 281-83 (App. Div. 1995)

(radiologist's hearsay opinion within a hospital record addressing

whether patient's fractures were "pathologic" or "non-traumatic").

Recently, the Supreme Court endorsed and applied James and the

strict enforcement of Rule 808 in Hayes v. Delamotte,
231 N.J.
373, 392-93 (2018) (hearsay opinion by non-testifying doctor

concerning plaintiff's spinal problems).

As the motion judge recognized, the Certificate of Death on

its face qualifies as an admissible hearsay record as a "vital

statistic" under N.J.R.E. 803(c)(9). Indeed, the Certificate was

duly filed with the State Office of Vital Statistics, and bears

the seal of that office. However, that does not end the analysis

under Rule 808, which can bar expert opinion "included in an

[otherwise] admissible hearsay statement." N.J.R.E. 808.

Taking the necessary analysis under Rule 808 to the next

step, it is manifest that the terse finding within the Certificate

reciting a cause of death is the very sort of disputed opinion on

a complex subject that should not be admitted without the

opportunity to cross-examine the author. In this fashion, the

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principles of Rule 808 fortify the mandates of Reddick and Theer

to exclude the portion of a death certificate that contains

subjective opinions from a non-testifying medical examiner.

As the motion judge also rightly found, a separate reason for

excluding the Certificate of Death is the net opinion doctrine.

The doctrine barring the admission at trial of net opinions is a

"corollary of [N.J.R.E. 703] . . . which forbids the admission

into evidence of an expert's conclusions that are not supported

by factual evidence or other data." Townsend v. Pierre,
221 N.J.
36, 53-54 (2015) (alterations in original) (quoting Polzo v. Cnty.

of Essex,
196 N.J. 569, 583 (2008)). The net opinion principle

mandates that experts "give the why and wherefore" supporting

their opinions, "rather than . . . mere conclusion[s]." Id. at

54 (quoting Borough of Saddle River v. 66 E. Allendale, LLC,
216 N.J. 115, 144 (2013)).

The "whys and wherefores" supporting the death certificate's

opinions about decedent's cause of death are clearly absent from

the document. One cannot tell from the document how the medical

examiner reached the conclusion that the cause of death was

accidental, or how the mechanism of injury to plaintiff's leg at

the store produced her unfortunate demise five days later. The

document is a classic "net opinion" that must not be allowed in

A-1164-16T2
the absence of testimony by the author elaborating the basis for

the conclusions reached.

For these many reasons, the trial court correctly barred the

admission of the Certificate of Death. We affirm that

determination.

III.

We turn to plaintiff's argument that the trial court unfairly

precluded him from reopening discovery and seeking to use the

medical examiner's narrative report as alternative or additional

evidence of the cause of death.

Our scope of review of this procedural ruling is a narrow

one. A trial court's decision about whether to extend a period

of discovery is reviewed for abuse of discretion. Leitner v. Toms

River Reg'l Sch.,
392 N.J. Super. 80, 87 (App. Div. 2007).

Similarly, when reviewing the propriety of a trial court's

dismissal of a plaintiff's complaint with prejudice because of

discovery violations, this court considers only whether the court

abused its discretion. Abtrax Pharms., Inc. v. Elkins-Sinn, Inc.,

139 N.J. 499, 517 (1995). This deferential approach "cautions

appellate courts not to interfere unless an injustice appears to

have been done." Ibid. (citations omitted); see also Cavallaro

v. Jamco Prop. Mgmt.,
334 N.J. Super. 557, 570-72 (App. Div. 2000).

A-1164-16T2
Having fully considered the chronology of events, we are

satisfied the trial court did not misapply its discretion in

declining to let plaintiff to reopen discovery and belatedly rely

upon the medical examiner's narrative report to support his claims

of medical causation. Plaintiff did not move to extend discovery

prior to the setting of the trial date. Plaintiff could not have

reasonably expected in light of the precedent in Reddick and Theer,

to rely on the Certificate of Death as his sole medical proof of

causation. The court justifiably determined that plaintiff had

not demonstrated "exceptional circumstances" to justify an

extension of discovery under Rule 4:24-1(c).

Nor did the court act arbitrarily or unfairly in disallowing

plaintiff's effort to amend his interrogatory answers under Rule

4:17-7 in order to rely on the medical examiner's narrative.

Plaintiff and his former counsel had access to the Certificate of

Death early on in the case. During the course of discovery, they

did not attempt to procure the medical examiner's report or retain

an expert. Plaintiff obtained the medical examiner's narrative

only after discovery had ended and defendant already had moved for

summary judgment.

Even if the trial court, in its discretion, had granted

plaintiff the opportunity to extend discovery and amend his

interrogatory answers to include the medical examiner's narrative

A-1164-16T2
report, that would not have overcome the critical hearsay problem

we have already discussed in Part II. The narrative report is

filled with opinions and conclusions, which are barred under

Reddick, Theer, and N.J.R.E. 808, in the absence of testimony from

the examiner himself. There is no indication in the present record

that this county official is willing to testify as an expert at

trial for plaintiff. The record is bereft of any attempt, as of

the time of the motion practice, to proffer the medical examiner

as a trial expert witness for plaintiff. Hence, an extension of

discovery to include the bare report likely would have been futile.

IV.

Lastly, we consider the trial court's entry of summary

judgment in Shop-Rite's favor, given the state of the record. In

doing so, we apply the familiar principle that, on a motion for

summary judgment, the court must consider "whether the competent

evidential materials presented, when viewed in the light most

favorable to the non-moving party, are sufficient to permit a

rational factfinder to resolve the alleged disputed issue in favor

of the non-moving party." Brill v. Guardian Life Ins. Co. of Am.,

142 N.J. 520, 540 (1995); see also R. 4:46-2(c). Appellate review

of an order granting summary judgment observes the same standards,

including this court's obligation to view the record in a light

A-1164-16T2
most favorable to the non-moving parties. See IE Test, LLC v.

Carroll,
226 N.J. 166, 184 (2016) (citing Brill,
142 N.J. at 540).

A critical legal component of plaintiff's wrongful death and

survivorship claims is establishing that the incident in the

supermarket proximately caused decedent's medical complications

and her ultimate death. See Model Jury Charges (Civil), 6.13,

"Proximate Cause – Where There is Claim that Concurrent Causes of

Harm are Present and Claim that Specific Harm was not Foreseeable"

(1998). See also Townsend,
221 N.J. at 51.

Judge Hanna found that plaintiff needed expert opinion to

prove proximate cause in this case because the chain of proximate

cause – connecting the impact on decedent's right leg from the

store incident, to her medical complications at home that caused

her to go to the hospital, to her death five days later — all

entailed complex medical issues beyond the ken of an average juror.

To evaluate how this accident injuring the decedent's right leg

could have been a substantial factor in her death over the course

of a few days involves a highly technical assessment of not only

the foot injury but also the interaction of decedent's underlying

medical problems and medications. The topic is plainly outside

the common knowledge of the average juror. 2175 Lemoine Ave.

Corp. v. Finco, Inc.,
272 N.J. Super. 478, 490 (App. Div. 1994)

A-1164-16T2
(holding that expert testimony is necessary where proximate

causation cannot be established through common knowledge).

Plaintiff needed a medical expert to address these key issues

of medical causation, but did not retain one. This critical

shortcoming pertains as to both the wrongful death claim and the

survival claim. To be sure, we recognize that it is plausible

from the known facts to infer that decedent sustained a harsh blow

to her right leg. But that lay inference is simply not enough to

get the complex issues of medical causation before a jury.

Even viewing the record in a light most favorable to

plaintiff, we concur with the trial court that summary judgment

was appropriate in favor of Shop-Rite.

Affirmed.

A-1164-16T2

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