KEVIN J. COFFEY, et al. v. BRIAN M. BEACHEMIN and EDWIN N. RAGONE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0017-050017-05T1

KEVIN J. COFFEY,

Plaintiff,

and

MARTHA LOBOSCO,

Plaintiff-Appellant,

v.

BRIAN M. BEACHEMIN and EDWIN N.

RAGONE,

Defendants,

and

CONCETTA RUSSINO,

Defendant-Respondent.

_______________________________________

 

Argued January 9, 2007 - Decided February 9, 2007

Before Judges Skillman and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Camden County,

L-7069-02.

John Morelli argued the cause for

appellant.

Claire B. Neiger argued the cause for

respondent (Goldberg, Miller & Rubin,

attorneys; Ms. Neiger, on the brief.

PER CURIAM

Plaintiff Martha Lobosco appeals from an order granting summary judgment in favor of defendant Concetta Russino and dismissing a complaint in which she alleged that she sustained injuries as a consequence of a car accident. Plaintiff was a passenger in a car driven by plaintiff Kevin J. Coffey that was struck by two cars; one driven by defendant Brian M. Beachemin and owned by Edwin N. Ragone and the other driven by defendant Russino. The judge determined that plaintiff's medical evidence was insufficient to permit a reasonable juror to find a "permanent injury" within the meaning of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. Because our review of the competent evidence properly submitted on the motion leads us to the same conclusion, we affirm.

This accident occurred on October 17, 2001. Plaintiff was taken to the emergency room and complained of lower back pain and paresthesias in her right arm. A CT scan and x-ray of her cervical spine were normal. She was released, and on October 19, 2001, she saw her family physician and complained of neck, back, right shoulder and arm pain. The doctor's diagnoses were cervical sprain, radicular symptomatology, possible thoracic outlet syndrome of the right upper extremity, thoracic sprain, bilateral shoulder sprain and stress reaction. Physical therapy was scheduled.

On November 13, 2001, plaintiff saw a neurologist with complaints of headaches, neck, middle back, and right shoulder pain and numbness of the right arm down to the right hand and fingers. The neurologist detected limited range of motion. His diagnoses were post-traumatic headaches, cervical sprain and strain, dorsal sprain and strain, right shoulder sprain and right cervical radiculopathy. He recommended physical therapy. One month later, on December 11, 2001, plaintiff returned to the neurologist. She reported that her headaches were less frequent and that the pain in her neck, middle back and right shoulder and the numbness in her arm had all improved. The doctor found that the range of motion in her right shoulder was still limited. Although plaintiff was instructed to continue physical therapy and "[a]wait approval of the cervical and right shoulder MRI precertification request," she did not return to the neurologist.

On March 7, 2002, plaintiff saw an orthopedic doctor, Dr. Kahn. Dr. Kahn reported that a physical examination of plaintiff's right shoulder revealed "a positive impingement arc" but noted good strength and full range of motion with tenderness at the extremes of rotation. He diagnosed plaintiff's shoulder condition as "impingement syndrome." He ordered an MRI of plaintiff's right shoulder. Plaintiff did not secure an MRI, and she did not return to Dr. Kahn until June 9, 2005.

Defendant filed the motion for summary judgment on May 20, 2005. On June 6, 2005, plaintiff's second attorney filed a substitution. The discovery end date was June 17, 2005. On June 21, 2005, plaintiff's new attorney submitted a brief and plaintiff's certification in opposition to the motion for summary judgment. Plaintiff asserted that her insurance company denied the request for precertification of an MRI; she also claimed that because she was employed on a full-time basis and required to work and care for her young children as a consequence of her ongoing divorce it was "difficult for her to seek medical care."

By letters dated June 27, July 18 and 21, 2005, plaintiff's attorney submitted four new, supplemental medical reports in opposition to defendant's summary judgment motion. Among the documents first submitted by letter and after plaintiff's opposition to the motion was the certificate of permanency required by N.J.S.A. 39:6A-8a and an MRI, which the radiologist read as normal and Dr. Kahn read as showing a "SLAP lesion."

Judge Dortch heard oral argument on the motion on July 22, 2005. Although an arbitration date had been fixed and plaitniff's attorney had not filed a motion to extend discovery, the attorney urged the judge to consider the new medical evidence.

The judge found that plaintiff did not establish exceptional circumstances as required by Rule 4:24-1(c). On that basis, he declined to consider medical reports other than those that were timely served and properly submitted on the motion. Concluding that there was no objective clinical evidence of a permanent injury, the judge granted summary judgment.

On appeal plaintiff first contends that judge erred by refusing to consider the medical reports she produced after the period for discovery expired and an arbitration date had been fixed. We find no merit in that claim. This court "generally defer[s] 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 Bender v. Adelson, 187 N.J. 411, 428 (2006) (reviewing a ruling on a motion to extend discovery based upon exceptional circumstances for abuse of discretion).

There is no basis upon which we could find that Judge Dortch abused his discretion or misapplied the law by declining to consider the late reports. First, the reports were submitted after plaintiff's opposition to the summary judgment motion, a practice not consistent with the requirements of Rule 4:46-2(b) and Rule 1:6-3. Second, plaintiff's attorney had not moved to extend the period for discovery prior to its expiration or shown good cause for a late application, as required by Rule 4:24-2. Third, because the reports were submitted after the period for discovery had expired and an arbitration date had been set, plaintiff was required to show that "exceptional circumstances" explained the late production of this evidence. R. 4:24-1(c); see Bender, supra, 187 N.J. at 425-29 (affirming an order excluding expert reports submitted after the discovery period and the fixing of the trial date); Ponden v. Ponden, 374 N.J. Super. 1, 9 (App. Div. 2004) (discussing the importance of the fixing of a date for arbitration or trial), certif. denied, 183 N.J. 212 (2005)). Plaintiff's affidavit asserting that full-time employment and family obligations made it "difficult for her to seek medical care" did not establish exceptional circumstances within the meaning of Rule 4:24-1(c), as construed by our courts. See Bender, supra, 187 N.J. at 429 (noting that "[a] precise explanation that details the cause of delay and what actions were taken during the elapsed time is a necessary part of proving . . . exceptional circumstances"); Rivers, supra, 378 N.J. Super. at 79 (stating general criteria); O'Donnell v. Ahmed, 363 N.J. Super. 44, 51 (Law Div. 2003) (noting that conclusory statements about "hectic schedules" are inadequate).

Defendant was entitled to summary judgment. A grant of summary judgment based upon failure to establish a qualifying injury within the meaning of AICRA is appropriate when the evidence, viewed most favorably to plaintiff, would not permit a rational factfinder to conclude that the plaintiff sustained such an injury as a consequence of the accident. See N.J.S.A. 39:6A-8a; Davidson v. Slater, ___ N.J. ___, ___ (2007) (slip. op. at 15 n.7); DiProspero v. Penn, 183 N.J. 477, 481 (2005) (listing injuries); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); R. 4:46-2(c). We apply the same standard in reviewing the ruling. See Kramer v. Ceiba-Geigy Corp., 371 N.J. Super. 580, 602 (App. Div. 2004). Objective medical evidence of permanent injury is required, and the materials plaintiff properly submitted in opposition to defendant's motion presented no evidence of that sort. Subjective complaints of pain and range of motion tests are not enough. Oswin v. Shaw, 129 N.J. 290, 320 (1992); see Serrano v. Serrano, 183 N.J. 508, 515 (2005) (noting that AICRA includes Oswin's objective medical evidence test); DiProspero, supra, 183 N.J. at 495-96 (same). Moreover, a need to secure additional evidence in order to establish a material fact does not prevent an award of summary judgment where the discovery period has ended and the time has not been enlarged. Schettino v. Roizman Dev., Inc., 310 N.J. Super. 159, 165 (App. Div. 1998), aff'd, 158 N.J. 476 (1999).

Before addressing plaintiff's claim that the judge erred in denying her post-judgment motions, we note the improper manner in which this matter was litigated following the grant of summary judgment and dismissal of her complaint. On August 1, 2005, plaintiff filed a motion for reconsideration of the order granting summary judgment and a motion to extend the discovery deadline, which were returnable on September 9, 2005. On August 31, 2005, plaintiff filed a notice of appeal. Because her motions and plaintiff Coffey's claims against Russino were still pending in the trial court, the order was not final and she was obligated to file a motion for leave to appeal. See New Jersey Div. of Youth and Family Servs. v. L.A., 357 N.J. Super. 155, 164 (App. Div. 2003); see R. 2:2-3(a); R. 2:2-4.

In any event, we conclude that Judge Dortch properly denied the motion for reconsideration and the motion to extend discovery. A grant of either motion would have been inconsistent with and undermined a "central purpose of our court rules: the fair and efficient administration of justice." Shulas v. Estabrook, 385 N.J. Super. 91, 102-03 (App. Div. 2006). One who seeks reconsideration based upon "new" evidence must demonstrate that the evidence could not have been discovered earlier with an exercise of due diligence. See D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990) (discussing the standard for consideration of new evidence on a motion for reconsideration, R. 4:49-2). Compliance with discovery rules is obviously relevant to due diligence and grant of summary judgment. See Schettino, supra, 310 N.J. Super. at 165. As noted above, plaintiff did not establish exceptional circumstances. She may not avoid the requirements of Rule 4:24-1(c) by seeking reconsideration at a later date or filing a motion for extension of discovery after a claim is dismissed.

We have previously held that Rule 4:37-1(b), authorizing voluntary dismissal, cannot be applied to permit a litigant to avoid the requirements of Rule 4:24-1(c). Shulas, supra, 385 N.J. Super. at 102-03. Similarly, the purpose of Rule 4:24-1(c) would be undermined if courts were to permit a litigant to utilize a motion for reconsideration of summary judgment to circumvent the requirements of the rule.

Affirmed.

 

Plaintiff Coffey's claims against Russino were resolved by agreement of the parties and dismissed by stipulation on November 23, 2005, three months after plaintiff filed this notice of appeal and plaintiff had motions pending in the trial court when she filed this appeal. The record provided on appeal does not disclose whether Coffey's claims against Beachemin and Ragone have been resolved. An appeal may be taken only from a final judgment, R. 2:2-3(a)(1), and a judgment is final only if it is final both as to all claims and all parties. New Jersey Div. of Youth and Family Servs. v. L.A., 357 N.J. Super. 155, 164 (App. Div. 2003); Caggiano v. Fontoura, 354 N.J. Super. 111, 123 (App. Div. 2002); see Hudson v. Hudson, 36 N.J. 549, 553 (1962). Accordingly, plaintiff was obligated to file a motion for leave to appeal. R. 2:2-4. Because the parties have fully briefed the issues relevant to the summary judgment motion and to avoid further delay and expense for the litigants, we exercise our discretion to grant leave to appeal as within time. R. 2:4-4(b)(2); R. 1:1-2.

(continued)

(continued)

10

A-0017-05

February 9, 2007