JOSEPH DESTAFANO v. WHARTON HARDWARE AND SUPPLY CORPORATION, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6552-05T56552-05T5

JOSEPH DESTAFANO,

Plaintiff-Appellant,

v.

WHARTON HARDWARE AND SUPPLY

CORPORATION, ACME MARKETS, INC.,

ALBERTSONS, INC. and ACME

SUPERMARKETS,

Defendants-Respondents.

_______________________________________________

 

Submitted May 9, 2007 - Decided May 23, 2007

Before Judges Parker and C.S. Fisher.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. BUR-L-1363-03.

Gercke & Dumser, attorneys for appellant (Stephen R. Dumser, on the brief).

Riley & Shovlin, attorneys for respondents (Thomas A. Shovlin, on the brief).

PER CURIAM

Plaintiff commenced this action, claiming he was injured as the result of defendants' negligence. At the conclusion of a trial, the jury rendered a verdict in defendants' favor. On appeal, plaintiff argues that the trial judge erred by refusing to allow a late amendment to his answers to interrogatories to name a new expert and, also, by denying his motion to strike the defense of comparative negligence. We find no merit in these arguments and affirm.

Plaintiff filed his complaint on May 8, 2003. He alleged that, on December 12, 2001, he was working for Canada Dry as a "pack out person," which involved delivering merchandise and refilling displays of Canada Dry products in various stores on his route. On the date in question, plaintiff delivered goods to the Acme in Medford. Claiming that no Acme personnel was on hand to assist him, as was the custom, plaintiff climbed up a stack of pallets and fell.

On November 10, 2003, the trial court assigned the matter to Track II and ordered a 300-day period of discovery. The order also required that plaintiff serve all liability expert reports by February 15, 2004 and mandated the close of discovery by March 21, 2004. A later case management order, which was filed on February 13, 2004, extended the due date for plaintiff's expert reports to May 31, 2004 and extended the discovery end date to June 30, 2004. A separate notice scheduled an arbitration for August 4, 2004.

Plaintiff's counsel wrote to the court's team leader on June 30, 2004, asserting that certain depositions had not been completed. He requested, with defense counsel's consent, that the deadline for expert reports be extended to August 31, 2004 and that the arbitration be adjourned. These requests were honored and the arbitration rescheduled for September 22, 2004.

The arbitration did not occur as scheduled and yet another case management order was entered on October 28, 2004. This order required the service of plaintiff's expert reports by January 14, 2005 and imposed a discovery end date of May 13, 2005. Plaintiff's expert report was served on January 18, 2005.

On April 18, 2005, plaintiff moved for leave to amend his answers to interrogatories, pursuant to R. 4:17-7, and for an extension of the discovery end date, pursuant to R. 4:24-1, in order to name a second liability expert. In seeking this relief plaintiff argued that his new expert was "significantly [more] impress[ive]" than his other expert. He claimed that the new expert "had more specialized experience and actual employment in the supermarket industry" in that he had previously renovated commercial facilities for Acme Markets, Inc., and, as a result, his opinion would have "greater force and credibility" than his previously named expert.

On the motion's return date, the judge relied upon our decision in Ponden v. Ponden, 374 N.J. Super. 1, 10-11 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005), and concluded that because no arbitration or trial date was scheduled when the motion was filed that plaintiff was entitled to have his motion decided through the application of the more indulgent "good cause" standard and not the "exceptional circumstances" standard imposed by R. 4:24-1. An order memorializing that ruling was entered on May 11, 2005.

In light of our disposition of this appeal, we need not decide, but will assume, that the judge correctly applied the less onerous standard since no trial date was scheduled and an arbitration date -- although previously scheduled and adjourned -- was not rescheduled until after the motion was filed. The application of this less onerous standard, however, did not require the granting of relief.

Admittedly, the good cause standard is more indulgent of such applications than the standards currently embodied in the amendments to R. 4:17-7 and R. 4:24-1 -- the so-called Best Practices rule amendments -- but that standard is not without its limits. Even under the more liberal approach that pre-existed "Best Practices," a movant was obligated to show a valid basis for the relief sought, which included "the absence of a design to mislead or conceal, the absence of an element of surprise, and the absence of prejudice." Glowacki v. Underwood Mem. Hosp., 270 N.J. Super. 1, 13 (App. Div. 1994). And it was not just any prejudice to the movant that permitted relief under this standard. Instead, a court was required to determine whether the expert testimony that would be foreclosed by a denial of the motion was critical to the moving party's claim or defense. See, e.g., O'Connor v. Altus, 67 N.J. 106, 129-30 (1975); Mason v. Sportsman's Pub, 305 N.J. Super. 483, 493-94 (App. Div. 1997).

In the matter at hand, plaintiff acknowledged that, unlike other decisions that have authorized an extension, his ability to have his case decided by a jury would not be jeopardized by the denial of relief. For instance, unlike Ponden, where the denial of relief from the discovery end date was understood as likely being "fatal to plaintiff's claim," 374 N.J. Super. at 11, and unlike Tucci v. Tropicana Casino and Resort, Inc., 364 N.J. Super. 48, 51 (App. Div. 2003), where the judge's refusal to extend the discovery end date led to the dismissal of the complaint, the denial of relief here did not foreclose the jury's assessment of plaintiff's claim on its merits. While plaintiff believed that his presentation at trial would have been improved by the testimony of his new expert, he conceded on the motion's return date that "yes, I have an expert, so in that sense, you know, . . . my client will have his day in court." In short, plaintiff's counsel acknowledged that his client was only prejudiced in the sense that "he won't have the advantage of a better available witness."

Indeed, there is little to distinguish between this matter and the Court's recent decision in Bender v. Adelson, 187 N.J. 411 (2006). There, the Court found no abuse of discretion in the denial of a motion to extend a date for the submission of expert reports where the only reason for the delay was counsel's contention that experts with the specialized training relevant to the issues in the case "were hard to locate." 187 N.J. at 429. Finding that this contention presented an inadequate basis for relief, the Court observed that "were we to extend discovery and grant amendments for every untimely request with conclusory references to specialized and hard to locate experts, we would revert to the pre-Best Practices approach to discovery -- an approach that litigants, courts, and the public at large all found highly unsatisfactory." Ibid.

In so ruling, the Court in Bender v. Adelson also found that the movant was not sufficiently prejudiced because the denial of his motion would not prevent him from presenting expert testimony at trial:

although defendants likely would have benefited at trial had the three experts been allowed to testify, defendants were able to present Dr. Hochberg, a distin-guished cardiac surgeon with an impressive resume whose name and report were submitted by defendants in a timely manner. Defen-dants, who are interventional cardiologists and experts in their field, also were able to testify at trial and defend their position. As such, defendants were not precluded from presenting their case to the jury despite exclusion of the three experts.

[187 N.J. at 430 (citations omitted).]

Here, the judge similarly found insufficient prejudice in the fact that although plaintiff would not have the added benefit of another expert, he retained the right to call his other liability expert at the time of trial.

In addition, the trial judge appropriately considered the status of the lawsuit. As we have indicated, the time to serve expert reports and the discovery end date had been extended a number of times and, by the time plaintiff moved for the extension in question, the suit was nearly two years old and the original 300-day discovery period had more than doubled. While it is true that no arbitration or trial date was scheduled when the motion was filed, a new arbitration date was noticed during the pendency of the motion. The parties also undoubtedly anticipated that the scheduling of a trial date was imminent, and, in fact, in July 2005, notice of a trial date of September 20, 2005 was forwarded to counsel. The judge's oral decision reveals that he appropriately weighed the status of the litigation against the prejudice that plaintiff claimed would result if relief was denied.

In short, even if we assume that the judge correctly concluded that plaintiff was entitled to have his motion decided by application of a less onerous approach because of the lack of a trial or arbitration date, this standard still required a consideration of the depth of the prejudice claimed as viewed in the context of the delays that had already occurred and the further delays that would likely be generated by the extension sought. In examining such a ruling, we will not intervene absent an abuse of discretion. Bender v. Adelson, supra, 187 N.J. at 428; Rivers v. LSC Partnership, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005). After careful examination of the record on appeal, we conclude that the trial judge did not abuse his discretion in denying plaintiff's motion.

Following the denial of plaintiff's motion to extend discovery, the parties filed cross-motions for summary judgment, which concluded plaintiff's contention that the defense of comparative negligence was inapplicable and ought to be stricken. The judge denied these motions, and plaintiff has appealed the denial of his cross-motion. We find insufficient merit in plaintiff's arguments on this point to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

 
Affirmed.

Ponden dealt with a motion to extend that was filed before the initial scheduling of either an arbitration or trial date. As indicated, we need not decide whether the more relaxed approach adopted in that circumstance in Ponden should be extended to circumstances such as those presented here.

The date for the arbitration that had previously been noticed had been adjourned by the time plaintiff filed his motion. A notice scheduling an arbitration to occur on June 15, 2005 was served on counsel a few days after plaintiff's motion was filed.

We are not unmindful of the fact that trial dates later scheduled were adjourned, and the case was not tried until July 10, 2006, more than one year after the judge denied the motion to extend discovery. What happened after the judge's ruling, however, cannot form the basis for questioning his exercise of discretion. We must judge the order in question in light of the circumstances as they existed when the ruling was made. We also need not determine whether it would have been appropriate for the judge to grant an extension once the trial date was postponed for a lengthy period of time since plaintiff never sought relief from the discovery deadlines once his motion to extend was denied on May 11, 2005.

(continued)

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9

A-6552-05T5

May 23, 2007