JOHN G. DWYER et al. v. GEORGE DIDDEN GREENHOUSES, INC. et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5535-05T55535-05T5

JOHN G. DWYER and

MARGARET C. DWYER,

Plaintiffs-Appellants,

v.

GEORGE DIDDEN GREENHOUSES, INC.

and RUSSELL M. RUCH,

Defendants-Respondents.

________________________________________

 

Submitted July 17, 2007 - Decided August 3, 2007

Before Judges C.S. Fisher and Grall.

On appeal from Superior Court of New

Jersey, Law Division, Hunterdon County,

Docket No. L-579-04.

Wysoker, Glassner, Weingartner, Gonzalez

& Lockspeiser, attorneys for appellants

(Raul I. Gonzalez, on the brief).

McCormick & Priore, attorneys for

respondents (Stephen M. McManus,

on the brief).

PER CURIAM

In this action to recover damages sustained in a motor vehicle accident, the jury determined that plaintiff John G. Dwyer failed to establish that the accident was the proximate cause of his injuries and returned a verdict in favor of defendants George Didden Greenhouses, Inc. and Russell M. Ruch. Plaintiff John G. Dwyer (Dwyer), and plaintiff Margaret C. Dwyer, whose claims are per quod, appeal. They contend that the trial court erred in denying their motion to adjourn the trial date and extend discovery and their motion for reconsideration of those rulings.

The accident occurred on March 7, 2003. On June 4, 2003, Dwyer saw a physiatrist who referred him to Dr. Matthew Garfinkel, an orthopaedic surgeon. An MRI of Dwyer's left shoulder showed evidence of "a rotator cuff partial thickness tear." Dr. Garfinkel prescribed medication and advised Dwyer to avoid heavy lifting for a month. The doctor noted that since the accident, Dwyer, a firefighter, had been driving the fire engine and not fighting fires. The doctor agreed with that course of action. He noted that "surgery [might] be necessary" and directed Dwyer to return in four weeks.

Dwyer did not see Dr. Garfinkel four weeks later.

On May 26, 2004, he returned to the physiatrist. In that doctor's opinion, Dwyer "suffered some degree of permanent disability" as a consequence of the accident and would continue to require medical and possibly surgical care.

Plaintiffs commenced this civil action on December 8, 2004. The discovery period ended on January 4, 2006.

On February 9, 2006, Dwyer returned to Dr. Garfinkel for the first time since 2003. Dwyer told the doctor that despite two years of physical therapy, his pain had "progressively worsened," especially "over the past three months." A second MRI was ordered and medication was prescribed. On March 9, 2006, Dr. Garfinkel noted that the MRI showed a "rotator cuff tear which appears to be partial but may be complete and [i]mpingement."

Arbitration was completed on March 16, 2006. On March 21, 2006, plaintiffs filed a demand for trial de novo, and on March 28, 2006, trial was scheduled for May 8, 2006.

On April 3, 2006, plaintiffs filed a motion to adjourn the trial date and reopen discovery. That motion was supported by their attorney's certification. He reported that Dr. Garfinkel was scheduled to operate on Dwyer on April 26, 2006. He further indicated that Dwyer would "probably undergo [post-operative] physical therapy for an unknown period of time" and would "have to be re-examined" by his medical expert, supply additional reports from his expert and Dr. Garfinkel and submit to further evaluation by defendants' expert. In reply to defendants' opposition to the motion, plaintiffs' attorney submitted the medical reports.

The trial court denied plaintiffs' motion on May 1, 2006. The court determined that plaintiffs failed to establish "exceptional circumstances" warranting an extension of the discovery period pursuant to Rule 4:24-1(c).

On May 22, 2006, the trial court denied plaintiffs' motion for reconsideration. In support of that motion, plaintiffs' attorney explained that he did not know that his client was considering additional medical treatment or surgery until after the March 16, 2006 arbitration. Dwyer submitted a certification in which he indicated that although his "left shoulder complaints were constant and worsened over time as a result of [his] physical work as a Kearny firefighter, [he] did not seek medical care for his left shoulder until [he] again saw Dr. Garfinkel on February 9, 2006." He explained that he delayed treatment out of concern for loss of time from his full-time job as a firefighter and his part-time job as a car salesman.

Plaintiffs filed a motion for leave to appeal, which this court denied on May 23, 2006. The case was tried to the jury on May 23 and 24, 2006. As noted above, the jurors determined that plaintiffs failed to establish that the accident was a proximate cause of Dwyer's injuries. This appeal followed.

Plaintiffs do not challenge the verdict. Rather, they argue that the court abused its discretion in denying their motion to extend discovery and adjourn the trial date and declining to reconsider that order in light of his subsequent surgery. Rulings on discovery matters and motions for reconsideration are reviewable for abuse of discretion and compliance with controlling legal principles. Bender v. Adelson, 187 N.J. 411, 428 (2006); Quick Chek Food Stores v. Twp. of Springfield, 83 N.J. 438, 446 (1980); Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005); Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996). We find no abuse of discretion or misapplication of the discovery rules warranting any intervention by this court.

Extensions of discovery are authorized under limited circumstances. Absent a showing of good cause, motions to extend the discovery period must be made before its expiration. R. 4:24-2. After an arbitration or trial date has been fixed, a request for extension must be justified by "exceptional circumstances." 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, 9-10 (App. Div. 2004) (discussing the importance of the fixing of a date for arbitration or trial and whether discovery can be extended "without jeopardizing the arbitration or trial date"), certif. denied, 183 N.J. 212 (2005). In order to establish exceptional circumstances, plaintiffs were required to explain: the importance of the discovery; why discovery was not completed within time, despite diligent effort; why the extension was not requested before expiration of the discovery period; and that the circumstances requiring the late request were "clearly beyond the control of the attorney and litigant." Rivers, supra, 378 N.J. Super. at 79.

We cannot conclude that the trial court abused its discretion in concluding that plaintiffs failed to show exceptional circumstances. Although Dr. Garfinkel recommended surgery on February 9, 2006, Dwyer's lawyer was not told about that recommendation until after the arbitration, which was held on March 16, 2006. Neither the attorney's assertion that he was "unaware" of that recommendation nor Dwyer's assertion that concern about loss of time from work led him to delay medical care is sufficient to establish an exceptional circumstance within the meaning of Rule 4:24-1(c). 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). At most, the affidavits in support of the motions indicate a delay in seeking treatment and a subsequent failure of communications between the clients and the attorney.

Affirmed.

 

Prior to trial, defendant Didden Realty Company was dismissed by stipulation.

(continued)

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August 3, 2007