HARSHAD D. CHAPADIA v. PASQUALE R. CAMPBELL et al.
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-6186-04T16186-04T1
HARSHAD D. CHAPADIA,
Plaintiff-Appellant,
v.
PASQUALE R. CAMPBELL and
PATRICK RASILE,
Defendants-Respondents.
_____________________________________
Submitted July 18, 2006 - Decided August 15, 2006
Before Judges Parker and Sapp-Peterson.
On appeal from the Superior Court of New Jersey, Law Division, Passaic County,
L-3595-03.
Amy L. Peterson, attorney for appellant.
Saiber, Schlesinger, Satz & Goldstein, attorneys for respondents (David J. D'Aloia, of counsel; Joan M. Schwab and Phoebe S. Sorial, on the brief).
PER CURIAM
Plaintiff Harshad D. Chapadia appeals from the entry of an order dated April 14, 2005, granting summary judgment dismissing plaintiff's complaint pursuant to R. 4:17-7. We affirm.
On August 21, 2003, plaintiff filed a complaint in which he alleged that he sustained injuries to his neck, back, right elbow, right shoulder, and right wrist and hand, as a result of his September 5, 2002, accident with a vehicle operated by defendant Pasquale R. Campbell and owned by defendant Patrick Rasile.
Plaintiff sought treatment with Dr. Mariamma Thomas, with whom he had also treated in connection with a 1997 motor vehicle accident from which he sustained similar injuries.
Dr. Thomas treated plaintiff for his injuries from September 9, 2002, to January 6, 2003. As part of her treatment, Dr. Thomas ordered diagnostic studies of plaintiff's neck and back. She authored a report dated January 9, 2003, in which she found that plaintiff sustained "injuries of the cervical spine, dorsal spine, lumbosacral spine, and right shoulder" that "are permanent." Dr. Thomas' report referenced the earlier accident but did not discuss the impact, if any, of those injuries on the most recent injuries.
Following completion of discovery, the parties proceeded to arbitration on December 16, 2004. Liability was allocated 100 percent to defendant, and the arbitrator awarded $12,500 to plaintiff. Defendant rejected the award and, on December 23, 2004, filed a notice of demand for trial de novo.
In a letter dated December 22, 2004, plaintiff's counsel served upon defense counsel an "updated narrative report" from Dr. Thomas Abraham, Dr. Mariamma Thomas' partner and spouse. In the letter that accompanied the report, plaintiff's counsel stated:
Enclosed herewith please find an updated narrative report from Dr. Mariamma Thomas in the above captioned matter.
The preceding is supplementary to the Answers already supplied; if inconsistent with any previous answer, this information is intended to modify, correct, or replace the original. You may accept this as certified and we represent that it shall have the same force and effect in lieu of a more formal manner.
Thank you for your attention and courtesy in this regard.
The updated report indicated that plaintiff had returned to the office on December 20, 2004, "with complaints of persistent neck, and back pain, which [were] related to the accident of 9-05-02." In the report, Dr. Abraham also stated, "I had an opportunity also to evaluate Mr. Chapadia's reports regarding an auto accident on 6-08-97. He was treated [by] Dr. Mariamma Thomas from 6-17-97 to 11-03-97 for the accident of 6-08-97." He noted that x-ray and MRI diagnostic studies were ordered in connection with the 1997 accident as well. Dr. Abraham ended his report by comparing the injuries plaintiff sustained from both accidents in terms of percentages, attributing twenty percent of plaintiff's cervical injury, eighty percent of plaintiff's upper dorsal spine injury, and ten percent of plaintiff's lower dorsal spine injury to the 1997 accident. The remaining percentages of injuries to plaintiff's neck and back were attributed to the 2002 accident.
The matter was scheduled for trial on February 28, 2005, but it was adjourned at the request of defense counsel and rescheduled for April 4, 2005. On that date, during a pre-trial conference with the trial judge, defense counsel, for the first time, objected to the updated report from Dr. Abraham on the basis that the report was barred for non-compliance with R. 4:17-7. Defense counsel argued that the updated report was used to "correct a fatal flaw in plaintiff's case," namely, the absence of a comparative analysis of the injuries sustained in the two accidents; and, in addition, the updated report was not accompanied by a certification of due diligence.
Plaintiff's counsel responded:
In this matter, Your Honor, if I may give you a brief history, Dr. [Mariamma] Thomas -- -- several cases even to say also, there is an ongoing problem of last year. Many cases with -- -- defense counsel's office although not directly with defense counsel, where there was an ongoing problem where many trial dates moved -- -- as to -- -- ill unavailable to appear. Several times cases were dismissed before Judge Miniman or by Judge Brogan. And it came to a point where she's physically unable to return back to work for various reasons . . . heart problems, diabetes, and [a] . . . she has kidney problem. For that reason . . . the expert doctor no longer -- is no longer physically available to come to court. The papers were sent back for a report. In this case, it was submitted to counsel, I have no defense that there was not a certification other than to state [that] with defense counsel's firm, this is an ongoing problem throughout all of last year and numerous instances where we had dismissals where we had a, you know, cases -- -- be adjourned because [Mariamma] Thomas' unavailability. So, Dr. Abraham has been submitting amended reports in many other cases at least in -- -- trials with Dr. Abraham coming in and testify. Your Honor, -- -- good faith attempt to comply with the -- -- court rule which I don't think had been even out [publicly] at the time that -- -- and I submit that we made a good faith attempt to amend according to the court rules.
The trial judge found R. 4:17-7 precluded his consideration of the report if the amended report was not accompanied by a certification. The court concluded that "without the new report . . . the plaintiff cannot proceed with the matter and I will grant the motion to dismiss."
Plaintiff filed a motion for reconsideration, which the trial judge denied. He found:
The new rule that we're operating under is very clear in . . . its intent. It's a more strict version of the circumstance[s] than existed before the rule was amended previously. Such a dismissal would have been without prejudice, and it could have been cured, or there would have been no dismissal. The matter would simply have been adjourned. The offending party, so to speak, would have been given an opportunity to supply the missing information, and everyone would have had an opportunity to look at it, and examine it[, a]nd then the matter would have been rescheduled for trial, and there would not have been a problem.
But that procedure, was evidently frowned upon, which resulted in the new rule, which indicates, I think clearly, that that procedure should no longer be followed. That these things have to be done in a timely matter. As said, the time limits are set forth in the rule. That if the time limits in the rule are not complied with, additional discovery can be supplied only with a certification explaining why. And if that's not done, the Court is to disregard the additional items. In this case, the reports of the physicians. The Court has no discretion in that.
It seems pretty clear, as I've stated previously, that the purpose of the rule was to require these things absolutely, and that if the rule was not followed, that the matter was to be dismissed. And there was to be no leeway, except insofar was provided by the rule.
So for those reasons, as I've indicated have been previously stated, I think that that particular rule precludes my consideration of those documents, and the motion to reconsider is denied.
On appeal, plaintiff argues:
POINT I
THIS COURT SHOULD REVERSE THE DECISION OF THE COURT BELOW, DISMISSING PLAINTIFF'S COMPLAINT WITH PREJUDICE, AND PERMIT THE MATTER TO BE REMANDED FOR TRIAL.
POINT II
DEFENDANTS' FAILURE TO RAISE THE ISSUE OF THE MEDICAL REPORT AND CERTIFICATION, FROM DECEMBER 2 004 TO APRIL 2005, SHOULD HAVE EQUITABLY ESTOPPED THE COURT FROM DISMISSING PLAINTIFF'S COMPLAINT.
R. 4:17-7 permits amended answers to interrogatories up to twenty days before the discovery end date fixed by the track assignment or court order. Thereafter, any amendments must be accompanied by a certification that the information was not reasonably available through the exercise of due diligence. R. 4:17-7. The rule was amended in 2004 to include additional language:
In the absence of said certification, the late amendment shall be disregarded by the court and adverse parties. Any challenge to the certification of due diligence will be deemed waived unless brought by way of motion on notice filed and served within 20 days after service of the amendment. Objections made thereafter shall not be entertained by the court.
[R. 4:17-7.]
This amended portion of the rule was included in the Rules and Appendices Amended and Adopted by the Supreme Court (effective September 1, 2004), ordered on July 28, 2004, and published as a notice to the bar on July 30, 2004. 177 N.J.L.J. 493 (August 9, 2004). In the comments to this rule, Judge Pressler writes:
This paragraph of the rule was again amended effective September 2004 with respect to the certification of due diligence required for late amendments. The amendment provides that in the absence of the certification, the amendment will be disregarded . . . .
[Pressler, Current N.J. Court Rules, comment 1 on R. 4:17-7 (2006).]
The thrust of plaintiff's argument on appeal is not that there was compliance, or even substantial compliance, with the rule. Rather, plaintiff urges that circumstances surrounding his non-compliance warrant relaxation of the rule pursuant to R. 1:1-2, or, in the alternative, that the court should have applied equitable principles to estop defendant from raising any objection to the report because of defendant's failure to raise the issue of the untimely medical report from December 2004 to April 2005.
"Generally, the disposition of discovery issues is within the trial court's discretion." Mango v. Pierce-Coombs, 370 N.J. Super. 239, 258 (App. Div. 2004). To that end, a trial court's discovery decision will not be disturbed on appeal unless the court has abused its discretion or its determination is based on a mistaken understanding of applicable law. Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.) (citing Payton v. N.J. Tpk. Auth., 148 N.J. 524, 559 (1997)), certif. denied, 185 N.J. 296 (2005).
In serving the December 21, 2004, expert report, we note that plaintiff not only violated R. 4:17-7, but also R. 4:24-1(c). Plaintiff disregarded R. 4:24-1(c) by failing to file a motion to reopen discovery. Had there been compliance with this rule, there would have been a record to assist the court in determining whether exceptional circumstances were demonstrated to warrant re-opening discovery to permit Dr. Abraham's report. Zadigan v. Cole, 369 N.J. Super. 123, 132-33 (Law Div. 2004); see also Bender v. Adelson, ___ N.J. ___, ___ (2006) (slip op. at 32-22). This was not done. Instead, when defendant moved for dismissal on the day of trial, plaintiff's counsel proceeded to explain the "ongoing problem of last year" and that it was the fact that Dr. Thomas "[was] no longer physically available to come to court," which necessitated the second report. The record, however, suggests otherwise.
In the updated report, Dr. Abraham begins by stating, "Mr. Harshad Chapadia was seen in my office on 12-20-04 with complaints of persistent neck, and back pain, which are related to the accident of 9-05-02." In the next nine sentences thereafter, Dr. Abraham discusses plaintiff's 1997 accident. The report concludes with a comparison, in terms of percentages, between the 1997 and 2002 accidents. Nothing in the report makes any reference to Dr. Abraham examining plaintiff and preparing a report due to the anticipated unavailability of Dr. Thomas.
Next, discovery ended September 2004. When the updated report was served on December 22, 2004, plaintiff filed no certification of due diligence. Moreover, the certification that was eventually served, after the dismissal of the complaint, still did not explain why Dr. Thomas failed to discuss a comparison of the two injuries in her original report, although she made specific reference to the 1997 accident in the report. Dr. Thomas treated plaintiff for the earlier accident and, as noted in Dr. Abraham's report, Dr. Thomas also ordered diagnostic testing as part of that treatment. In addition, the certification does not indicate the specific date when plaintiff's counsel learned that Dr. Thomas would not be available to testify at the time of trial. This latter omission is particularly problematic in light of counsel's representation to the court that Dr. Thomas' unavailability to testify had been an "ongoing problem last year."
During the reconsideration motion, defense counsel argued there was never a Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993), analysis in the original report, and if the requisite certification had accompanied the updated report, he would have challenged the admissibility of the report because:
plaintiff would have to certify that the material was unavailable until after [the] discovery end date. And it couldn't be done in this case, since the initial treating physician who issued the initial report, Dr. Thomas, was the treating physician for [the] other record, and had the record, and still failed to provide a Polk.
We are of the view that where, as in this case, discovery has closed and arbitration has been completed, defendant should be permitted to rely upon the proofs a plaintiff has presented during the discovery process in preparing for trial. See Town of Phillipsburg v. Block 1508, Lot 12, 380 N.J. Super. 159, 173-74 (App. Div. 2005). Moreover, R. 4:17-7 does not place any affirmative obligation upon an adverse party to object to a late amendment unaccompanied by the requisite certification. Rather, the rule expressly directs the court and a party's adversary to disregard the amendment. Ibid. It is only when the certification of due diligence is served that the rule imposes a twenty-day time limit for the opposing party to object to an amendment. Ibid.
Nor are we persuaded that the unexplained omissions reflected in this record are candidates for application of equitable relief in the form of rule relaxation pursuant to R. 1:1-2. As Judge Pressler noted in the comments to the 2004 amendment to R. 4:17-7:
2. Rule relaxation. As a caveat to the discussion on relaxation, it should be noted that the effect of the 2000 Best Practice Rules, see generally Comment 4. on R. 1:1-2, on the typical liberality with which amendments had been allowed has yet to be determined but it may be anticipated that the spirit of those rules will mandate stricter compliance.
[Pressler, supra, comment 2 on R. 4:17-7.]
The Supreme Court's recent decisions in Bender, supra, ___ N.J. at ___ (slip op. at 29-34), and Szalontai v. Yazbo's Sports Caf , 183 N.J. 386, 396-97 (2005), confirm Judge Pressler's prediction.
Bender, supra, involved an appeal of a trial court's grant of a motion for mistrial following a jury verdict based upon the plaintiff's counsel's improper remarks during summation that the jury could draw an adverse inference from the defendants' failure to produce independent experts. ___ N.J. at ___ (slip op. at 11-12). We reversed and the Supreme Court granted certification. Id. at ___ (slip op. at 25-28). As part of its decision, the Court also addressed the motion judge's exclusion of three defense expert reports. Id. at ___ (slip op. at 28-29). The motion judge barred the experts' reports as untimely, recognizing there had been a number of discovery extensions and non-compliance by defendants with prior discovery orders. Id. at ___ (slip op. at 17-18). The motion judge also found that R. 1:2-2, the catch-all "relaxation rule," did not apply because defendants' "request to relax the rule in question is essentially a request that the Court excuse a lack of diligence." Id. at ___ (slip op. at 19-20).
The Court found:
Applying an abuse of discretion review standard to the trial court's decision to bar defendants' requested amendments to their interrogatory answers and deny a further discovery extension, [Rivers, supra, 378 N.J. Super. at 80 (citation omitted)], we find that defendants failed to show "due diligence," Rule 4:17-7, or "exceptional circumstances," Rule 4-24-1(c). We therefore see no reason to upset the trial court's exercise of discretion. Defendants submitted the three disputed expert names and reports in June and July 2002, in violation of two mandatory court orders that expressly precluded the submission of experts after the dates specified and after discovery already had been extended twice. They failed to move before the trial court to accept the additional names and extend discovery prior to the setting of a final trial date. See Ponden v. Ponden, 374 N.J. Super. 1, 10 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005) (noting importance of set trial or arbitration date under new rules because "raison d'etre" of amendments is "to render trial dates meaningful").
[Id. at ___ (slip op. at 35-36).
In Szalontai, supra, the plaintiff served an expert report and moved to extend discovery after arbitration had been completed and the arbitrator had entered an award favorable to defendants. 183 N.J. at 392-93. On the same day the motion to extend discovery was filed, the trial date was also fixed. Id. at 393. Because arbitration had been completed and a trial date fixed, the trial judge properly concluded that the standard governing the grant of the motion was "exceptional circumstances," pursuant to R. 4:24-1(c). Ibid. The court denied the motion, finding that exceptional circumstances had not been demonstrated. Ibid. The court explained that "'allowing discovery to reopen at this point . . . would be using the arbitration procedure as almost a screening event to figure out where the weaknesses are' . . . ." Ibid. On appeal, we concluded that plaintiff's "'failure to conduct discovery until after he lost at the arbitration was sufficient reason to deny his motion to extend discovery.'" Id. at 395. The Supreme Court granted certification and rejected plaintiff's argument that he was prejudiced by the motion judge's application of "Best Practices" that resulted in the denial of the plaintiff's motion to extend discovery and to produce a liability expert at the time of trial. Id. at 395-96. The Court stated:
In this case, plaintiff's request for an extension of the discovery deadline was made not only after both the arbitration and trial date were fixed, but after the arbitration itself had been concluded and an award rendered, and on the very day the trial date was set. Moreover, that request included plaintiff's statement that even his own deposition needed to be taken. Under those circumstances, we wholly endorse the trial court's rejection of plaintiff's request for an extension of the discovery deadline. In the words of the trial court:
There were no depositions that were taken, there's just the report that was apparently put together by some expert and could have been - all the information in that report was available before the discovery ending. My concern in allowing discovery to reopen at this point is that we really would be using the arbitration procedure as almost a screening event to figure out where the weaknesses are; and then, after the arbitration, we'll go forward and plug in all the holes in our case, and I just don't think that's what arbitration is for. And I think if I were to allow this to proceed that would be undermining the whole effort of the court system to have discovery concluded prior to the arbitration.
[Id. at 397 (footnote omitted).]
Finally, in counsel's certification submitted in support of plaintiff's motion for reconsideration, counsel stated:
4. On April 4, 2005, during conference with Judge Graziano, defense counsel objected, for the first time, to a submitted medical report by Dr. Thomas Abraham. Said medical report, dated December 21, 2004, was served on defense counsel December 22, 2004. A discussion was held between the attorneys for both parties, and Judge Graziano, regarding the admissibility of said report. Thereafter, Judge Graziano dismissed the instant matter in order to give plaintiff the opportunity to provide a Certification in accordance with amended Rule 4:17-7, with regard to an interrogatory amendment served after the discovery period.
The designated trial counsel for plaintiff did not appear for oral argument on the reconsideration motion. Instead, the attorney who appeared for the trial call, and who was therefore privy to the off-the-record discussions, appeared to argue the motion. His first remarks to the court corrected a statement in the certification the designated trial counsel submitted in support of the reconsideration motion:
THE COURT: Okay. Good afternoon to both of you.
Plaintiff, your motion. I have the papers here. Tell me what you want -- if you want to add anything to them, or explain it.
[PLAINTIFF'S COUNSEL]: Yes. If I may, Your Honor. First, as the Court and counsel is aware, I am an attorney. I'm hired . . . to appear at trial matters and certain discovery matters. I appeared at the trial on this matter. [Designated trial counsel] filed various motions in this matter, but I'm not officially affiliated with her office.
I do wish to correct Paragraph [4] in the certification . . . sent in on my behalf that I signed. It's Paragraph [4] where it states, . . . ["]the instant matter, in order to give plaintiff [the] opportunity." That was a typo. There was many certifications going back and forth between her office in Passaic and my office in Jersey City. And that was -- it should have meant "which would have given the plaintiff an opportunity in this matter."
THE COURT: All right. We'll certainly accept that correction.
Defense counsel, you would agree with that, I think?
[DEFENSE COUNSEL]: I accept the correction, Your Honor.
In the argument that followed, counsel said he thought the court's dismissal was without prejudice. He does not reference any discussion off the record where the court or defense counsel led him to believe the dismissal was without prejudice. Instead, he told the court, "when I came out of court and I reviewed the transcript of the hearing, I know the matter was dismissed. I didn't realize it was with prejudice." To the extent counsel had been led to believe the dismissal was without prejudice by the court, or that there had been some agreement between counsel that the dismissal would be without prejudice, we believe that may have warranted a different outcome. That not being the case, however, we see no abuse of discretion in the trial court's dismissal with prejudice of plaintiff's complaint on the day of trial. See Bender, supra, ___ N.J. at ___ (slip op. at 40). Nor do we conclude that the use of the term "summary judgment" in the April 14, 2005, order constitutes reversible error. R. 4:37-2(d) provides, "[u]nless the order of dismissal otherwise specifies, a dismissal under R. 4:37-2(b) or (c) and any dismissal not specifically provided for by R. 4:37, other than a dismissal for lack of jurisdiction, operates as an adjudication on the merits." Here, the court barred the report based upon the failure to comply with the requirements of R. 4:17-7 and then recognized, "without the new report . . . plaintiff cannot proceed with the matter and I will grant the motion to dismiss."
Affirmed.
(continued)
(continued)
18
A-6186-04T1
August 15, 2006
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.