PAMELA C. QUINN v. VICTOR LORRAINE

This case can also be found at 198 N.J. 473, 968 A.2d 1189.
(NOTE: The status of this decision is unpublished.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0682-07T30682-07T3

PAMELA C. QUINN,

Plaintiff-Appellant,

v.

VICTOR LORRAINE, REMEGIO

MIJARES, ESTRELLA MIJARES,

KATRINA P. MIJARES and SCOTT J.

DAVENPORT, j/s/a,

Defendants-Respondents.

___________________________________________________________

 

Argued September 24, 2008 - Decided

Before Judges Parrillo, Lihotz and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1929-05.

Michael J. Gaffney argued the cause for appellant (Radano & Lide, attorneys; Mr. Gaffney, on the brief).

Steven M. Swain argued the cause for respondents Victor Lorraine, Remegio Mijares, Estrella Mijares and Katrina Mijares (Law Office of Debra Hart, attorneys; Mr. Swain, on the brief).

Chad M. Sherwood argued the cause for respondent Scott Davenport (Youngblood, Corcoran, Lafferty & Hyberg P.A., attorneys; Mr. Sherwood, on the brief).

PER CURIAM

Plaintiff Pamela Quinn appeals from the judgment of no cause of action entered in favor of defendants Victor Lorraine and Scott J. Davenport following a jury trial, and the subsequent denial of her motion for a new trial. We have considered the arguments plaintiff raises in light of the record and applicable legal standards. We affirm.

I.

Trial in the matter took place from July 16 to July 19, 2007. The testimony revealed that on April 19, 2003, plaintiff, who was fifty-three years old at the time, was traveling westbound in the far left lane of the Black Horse Pike in Egg Harbor Township when she was struck by Davenport's car. Immediately before the collision, plaintiff witnessed Loraine's vehicle pull out of a gas station and into "a shoulder or . . . acceleration lane." As the front end of Loraine's car entered Davenport's lane of travel, he swerved left and struck plaintiff's car.

Plaintiff testified she had been involved in minor motor vehicle accidents in 1969, 1986, 2001, and, after the accident in question, in 2004. She contended that she suffered only minor muscle aches and did not make any claims for injuries as a result of any of those accidents. She also testified that she had injured her back in 2001 while carrying boxes at work and that this required seven weeks of physical therapy. During cross-examination, plaintiff acknowledged that she also tore her rotator cuff in a slip and fall accident in 1983 and had previously broken her ankle.

Plaintiff testified that she had been asymptomatic as to any neck or back pain until the April 2003 accident. Shortly thereafter, she began to experience pain and discomfort leading her to seek treatment from a chiropractor. When her symptoms worsened, plaintiff was referred to Dr. Frederick S. Lieberman, an orthopedist. Lieberman conducted diagnostic tests on plaintiff and prescribed various pain medications, which plaintiff took until the time of trial, though they never totally alleviated her pain. In 2005, Lieberman referred plaintiff to Dr. Tariq S. Siddiqi, a neurosurgeon, who recommended cervical fusion surgery, an opinion confirmed by Dr. James G. Lowe, a second neurosurgeon plaintiff consulted in 2007. Plaintiff testified that she had not had the surgery "yet."

Plaintiff's father Marvin Quinn testified that his daughter had no neck or back complaints prior to the accident. He claimed that plaintiff now required substantial rest throughout the day, that she was unable to pursue her activities as before, and that the injuries had substantially decreased her energy level.

Lieberman testified as plaintiff's orthopedic expert and conceded that prior to the April 2003 accident, plaintiff's spine had undergone some degenerative changes. However, based upon the medical history plaintiff provided and the examinations and tests he conducted, it was Lieberman's conclusion that plaintiff had sustained permanent injuries as a result of the April 2003 accident, including herniated discs at C4-5, C5-6, and "radiculopathies involving the L4-5 and S1 [nerve] roots."

Plaintiff presented the testimony of her second expert, Lowe, via videotape. Lowe described the surgery he anticipated performing on plaintiff in the near future as a "three level cervical discectomy and fusion" in which he would "remov[e] the ruptured cervical disc . . . and put[] bone grafts into the spaces where the discs were with [a] little metal plate to stabilize everything." He opined that within a reasonable degree of medical probability plaintiff's injuries were direct results of her April 2003 motor vehicle accident.

The defense case began with Loraine's testimony. He denied that he ever entered Davenport's lane of travel and claimed that he did not come into contact with either vehicle. Davenport testified that he was in the far right lane when he observed Loraine's car approximately fifty feet ahead stopped in the exit lane. As Davenport began pulling into the exit lane, Loraine began pulling out into the road, forcing Davenport to veer to the left, at which point he hit plaintiff's rear bumper and the side of her car.

Defendants called Dr. Douglas Noble, a neuroradiologist, as an expert witness. Noble testified that plaintiff's injuries were not attributable to a traumatic event such as the motor vehicle accident. Instead, he opined that the cervical and lumber conditions observed in the MRI studies of plaintiff's spine were attributable to degenerative changes that occurred over time and predated the car accident.

Defendants also presented the testimony of Dr. John A. Cristini, an orthopedist, via videotape. Cristini personally examined plaintiff and reviewed her medical records, but not her MRI films, leading him to acknowledge that he could not agree or disagree with the other doctors' opinions as to the films. Cristini also could not offer an opinion as to whether plaintiff's "herniated disk in the cervical region" "was a preexisting problem or due to the injury sustained as a result of the accident." However, he opined that plaintiff had suffered a "cervical and lumbosacral sprain and strain" as a result of the accident.

After summations, the judge charged the jury. Approximately three hours later, it returned its verdict finding both defendants negligent, but also concluding that neither defendants' negligence was a proximate cause of plaintiff's injuries.

II.

A.

Plaintiff argues that the trial judge, who also case-managed the litigation, committed error 1) by not granting a brief adjournment of the trial because of the unavailability of her medical experts; 2) by not adjourning the trial to permit her to undergo spinal fusion surgery which, in fact, occurred some two months after the trial; and 3) by denying her pre-trial motion in limine to bar Noble's testimony because defendants never amended their answers to interrogatories. R. 4:17-7.

We must set forth the pre-trial procedural history of the litigation at some length to properly consider these issues. Plaintiff filed a complaint on March 11, 2005. On July 11, 2005, the judge entered an initial management order setting March 1, 2006 as the discovery end date. R. 4:24-1(a). The discovery end date was extended sixty days to April 30, 2006 by mutual consent of the parties. R. 4:24-1(c). The parties engaged in mandatory, non-binding arbitration, Rule 4:21A, on September 23, 2006. At that time, and although discovery had already ended, Davenport attached and supplied to all parties as part of his arbitration package Noble's report interpreting plaintiff's MRI films. Plaintiff rejected the arbitration award and requested a trial de novo, Rule 4:21A-6(b)(1), which was scheduled for December 11, 2006.

Defendants' request to adjourn the trial due to the inability to videotape one of the defense experts was granted, and the trial was adjourned to January 16, 2007. Because plaintiff's counsel was on trial in an older matter on that date, the case was again adjourned until February 20, 2007. This date was adjourned again at defendant Davenport's request, the exact reason for which is not disclosed in the record.

Meanwhile, on January 5, 2007, the judge granted plaintiff's motion to extend discovery which was premised on her anticipated spinal surgery. Determining "exceptional circumstances" existed because "the surgery [was] recommended recently," and "ha[d] not yet been completed because [plaintiff's] no-fault PIP insurance carrier ha[d] failed to pre-certify the surgery necessitating [her] to file a demand for arbitration[,]" the judge extended discovery through May 5, 2007 and re-scheduled the trial for May 7, 2007. The order noted that "NO FURTHER DISCOVERY EXTENSIONS SHALL BE PERMITTED."

However, when defendants were unable to reschedule the videotape testimony of Cristini, the parties mutually agreed to once again adjourn the trial to July 16, 2007. Notice of the new trial date was sent to plaintiff and defendants on April 19, 2007.

On July 6, 2007, ten days prior to the trial date, plaintiff forwarded a letter to the Civil Division staff requesting an adjournment of the trial "in accordance with . . . Rule 4:36-3[,]" noting that Lowe and Siddiqi were unavailable for trial. Plaintiff argued that she "ha[d] never received an adjournment based upon a doctor's unavailability." Plaintiff further noted that although she intended to call two additional doctors at trial, Lieberman and "Dr. J. Scott Neuner," "each physician [wa]s necessary to establish each of the alleged injuries and causation . . . ." The letter contained a second basis for the adjournment request. Plaintiff advised that she "ha[d] finally been cleared to receive the cervical spine surgery . . . previously recommended . . . [and was] scheduled for surgery on August 10 . . . ." The letter further noted that plaintiff had already moved for a discovery extension, but the motion was denied by the judge on June 22, 2007.

This letter request made to the Civil Division staff was apparently denied. On July 10, noting the impending videotape deposition of a defense expert and again seeking a brief adjournment of the trial, plaintiff's counsel sent a letter directly to the judge requesting a telephone conference. Counsel for both defendants joined in the request. Plaintiff's counsel noted that he had filed a motion for reconsideration of the judge's prior order denying the discovery extension request. Receiving no response to his letter to the trial judge, plaintiff's counsel sought the intervention of the vicinage assignment judge, also by letter of July 10. The next day, the assignment judge responded by letter. Noting five prior trial dates had been adjourned, she found no basis to intervene with the trial judge's management of the case.

On the day of trial, plaintiff moved for reconsideration of the judge's denial of the discovery extension request, claiming that although Lowe's testimony had been videotaped, Siddiqi and Neuner were unavailable. She also argued that her delay in undergoing surgery was not the result of bad faith, but rather was due to delays in receiving pre-certification from her insurance company and in receiving pre-surgical medical clearance. Plaintiff also moved in limine to bar the testimony of Noble, arguing that defendants had never amended their interrogatories to name him as a witness.

The trial judge denied all the requests. He noted that while Noble's report was provided after the original discovery end date, plaintiff suffered no harm or undue prejudice because she had been in possession of Noble's report since September 2006, and discovery was thereafter re-opened and extended to May 2007 at plaintiff's request. Plaintiff therefore had adequate time to depose Noble, or have her own experts rebut his findings in supplemental reports.

As to plaintiff's request to adjourn the trial, the judge noted that discovery had been extended on multiple occasions and that the trial had been adjourned several times. He concluded that the unavailability of plaintiff's experts could have been determined far in advance of the July trial date because notices had been served in April. The judge also noted his prior order indicated that no further extensions of discovery or adjournments of trial would be granted, and he found no basis to reconsider his denial of plaintiff's adjournment request. The trial commenced immediately thereafter.

After the verdict, plaintiff moved for a new trial, arguing the verdict was against the weight of the evidence, and also raising the denial of her requests for an adjournment and the denial of her motion in limine to bar Noble's testimony. Plaintiff noted that Lowe had performed the anticipated spinal fusion surgery on September 11, and that the delay was due to insurance pre-certification and medical clearance issues over which she had no control. Plaintiff argued that the denial of her adjournment request was prejudicial because it limited Lowe, "the one doctor who [] [wa]s in the absolute best position to say what [condition in her spine] [wa]s related [to] and what [wa]s not related" to the accident, from fully testifying before the jury. Plaintiff also reiterated her contention that the denial of her adjournment request based upon the unavailability of her experts was prejudicial, as was the judge's decision permitting Noble to testify for the defense.

The judge acknowledged that defendants should have provided formal notice of their intention to call Noble as a witness. However, he concluded as he did pre-trial, that he permitted the testimony "to meet the standard of trying to get the case decided on the merits without unduly prejudicing either party[.]" After again reviewing the numerous adjournments that had plagued the litigation, the judge explained,

I denied those applications for adjournment . . . not because I believed . . . mechanically simply because it was the sixth adjournment request, or because [the case] was two-and-a-half years old, you should never have an adjournment. Rather, it was then and is now my view that with three months' notice, it should be next to impossible to secure an adjournment for the unavailability of witnesses . . . . And with respect to the question of the plaintiff's medical status . . . there was no showing before me at that time . . . as to whether and, if so, when, and with what results, any additional medical procedures might be affected.

He denied plaintiff's motion for a new trial.

B.

Plaintiff reiterates her arguments on appeal. She contends that the denial of her request for an adjournment to produce her unavailable experts, Neuner and Siddiqi, was prejudicial because Neuner was the first physician she saw after the accident and made the initial diagnoses regarding the injuries to her back. As for Saddiqi, plaintiff argues that he was the first doctor who recommended surgery, some two years after the accident, and much earlier than did Lowe. She contends that since her request was the first time she sought an adjournment based upon a witness' unavailability, she was entitled by Rule 4:36-3 to postponement of the trial date. Plaintiff also contends that the denial of her request for an adjournment until she underwent surgery was error because she was prejudiced by being denied the opportunity to have Lowe testify as to the actual condition of her cervical spine. Lastly, plaintiff argues the judge erred by permitting Noble to testify, and she suffered prejudice because Noble's testimony was the only medical evidence that unequivocally concluded the condition of her cervical spine was degenerative and not due to the accident.

We find these arguments to be unavailing and affirm substantially for the reasons expressed by the trial judge. We add these comments.

Requests for adjournments are addressed to the sound discretion of the trial judge. Kosmowski v. Atlantic City Med. Ctr., 175 N.J. 568, 575 (2003). Such discretionary decisions will not be set aside unless the judge pursued a "manifestly unjust course." Dolan v. Sea Transfer Corp., 398 N.J. Super. 313, 330 (App. Div.), certif. denied, 195 N.J. 520 (2008); Union Cty. Improvement Auth. v. Artaki, LLC, 392 N.J. Super. 141, 149 (App. Div. 2007). In considering an adjournment request based upon the unavailability of an expert witness, "the court must focus on the tension between . . . the salutary principle that the sins of the advocate should not be visited on the blameless litigant, and . . . the court's strong interest that management of litigation . . . must lie ultimately with the trial court and not counsel trying the case." Kosmowski, supra, 175 N.J. at 574 (citations and quotations omitted).

Rule 4:36 provides in relevant part

(a) . . . .

(b) Adjournments, Generally. An initial request for an adjournment for a reasonable period of time to accommodate a scheduling conflict or the unavailability of an attorney, a party, or a witness shall be granted if made timely in accordance with this rule. The request shall be made in writing stating the reason for the request and that all parties have consented thereto. The written adjournment request, which shall be submitted to the civil division manager, shall also include a proposed trial date, agreed upon by all parties, to occur as soon as possible after the problem requiring the adjournment is resolved. If consent cannot be obtained or if a second request is made, the court shall determine the matter by conference call with all parties. Requests for adjournment should be made as soon as the need is known but in no event, absent exceptional circumstances, shall such request be made later than the close of business on the Wednesday preceding the Monday of the trial week.

(c) Adjournments, Expert Unavailability. If the reason stated for the initial request for an adjournment was the unavailability of an expert witness, no further adjournment request based on that expert's unavailability shall be granted, except upon a showing of exceptional circumstances, but rather that expert shall be required to appear in person or by videotaped testimony . . . . If appropriate, given the circumstances of the particular case, the court may order that no further adjournments will be granted for the failure of any expert to appear.

(Emphasis added.)

It is plaintiff's essential argument that she was entitled to an adjournment because it was her first request for an adjournment to accommodate an expert's schedule, and pursuant to Rule 4:36, the judge was obligated to grant the adjournment and permit time to, at the least, videotape Neuner's and Siddiqi's deposition.

We disagree with plaintiff's construction of the Rule. Under her interpretation, every case would be subject to at least two adjournments based upon expert witness unavailability because, at a minimum, each party would be "entitled," as plaintiff argues, to an adjournment. With the addition of other parties, the number of adjournments required by plaintiff's interpretation of the Rule would continue to grow. This would hardly be consistent with the purposes of the significant Rule changes enacted in 2000, of which Rule 4:36 was a part. As we have noted, the Supreme Court implemented those changes "to establish uniformity in the trial courts throughout the State, to establish firm and meaningful trial dates, to restore the public's faith in expeditious and efficient litigation and to control dilatory litigation tactics by providing the trial courts with tools to manage litigation." Leitner v. Toms River Reg'l Schs., 392 N.J. Super. 80, 91 (App. Div. 2007)(emphasis added).

We conclude that the language of the Rule should be taken on its unambiguous face, i.e., it applies to the "initial" adjournment request. See Pressler, Current N.J. Court Rules, comment 3.2 on R. 4.36(b) (2008)(noting that "[i]n attempting to provide certainty of trial dates," the Rule permits "an adjournment of the first scheduled trial date" based upon witness unavailability, and further noting that if the other provisions of the Rule are complied with, such a request "will ordinarily be granted . . . as of course")(emphasis added). If the reason for that "initial" request is an expert witness' unavailability, the parties must videotape that testimony in lieu of any further adjournments on that basis, unless exceptional circumstances are shown. R. 4:36-3(c). However, the provisions of subsection (c) do not imply that such a procedure is warranted every time an expert's schedule must be accommodated, or that each party is entitled to take its own bite from some proverbial adjournment apple. Rather, subsection (c) was adopted to address "the cooperation or lack thereof by experts with trial schedules . . . [a] common [ ] cause for multiple adjournments . . . ." Pressler, supra, comment 4 on R. 4.36(c)(emphasis added).

Thus, we reject plaintiff's assertion that the rule somehow divests the judge of his or her discretion and "entitles" each party to an adjournment based upon an expert witness' unavailability. In other contexts, we have noted that the extensive 2000 Rule changes were not intended as "inflexible, unbending dictates," but instead "vest significant discretion with the trial courts . . . on a case-by-case basis . . . ." See Leitner, supra, 392 N.J. Super. at 90 (discussing the Rule amendments in the context of discovery extensions). Rule 4:36 recognizes the ability of the judge to exercise his or her discretion in adjourning any trial date by requiring, first, that regardless of the reason, any adjournment request "be made as soon as the need [for the adjournment] is known . . . ." R. 4:36(b). Second, even if the judge grants an initial request because an expert witness is unavailable, the judge, "given the circumstances of the particular case[,] may order that no further adjournments will be granted for the failure of any expert to appear." R. 4:36(c).

Taken together, these provisions convince us further that the Rule was intended to vest a significant amount of discretion in the judge as to the grant of subsequent adjournments. In this case, the judge noted that plaintiff was aware of the July 16 trial date for almost three months. When he denied the motion for a new trial, the judge observed that any party seeking an adjournment because of witness unavailability must bear a heavy burden after prior adjournments have been granted and when the party was provided with significant advanced notice of the trial date. We see nothing unfair about that because the Rule a) mandates that the request be made "as soon as the need is known," and b) provides for direct intervention by the judge as necessary, "if a second request" for adjournment is made. R. 4:36-3(b). In this case, plaintiff's July 6 letter noted the unavailability of Siddiqi and Neuner. The record reveals Neuner was on a "prepaid vacation," though the explanation for Siddiqi's absence is not clear. In any event, we think that when trial dates are adjourned, particularly when, as in this case, the parties agreed to the adjourned date, expert witness availability should be checked immediately and the judge should be advised as quickly as possible thereafter if the new date presents an irreconcilable problem.

Additionally, in this particular case, the judge specifically included in the order granting plaintiff's discovery extension request and setting the trial date for May 7, 2007 a provision that no further discovery extensions would be granted. Implicit in that order was the judge's conclusion that the multiple trial adjournments, including the initial one granted because of a defense expert's unavailability, needed to end, and that "no further adjournments w[ould] be granted for the failure of any expert to appear." R. 4:36-3(c). See Pressler, supra, comment 4 on R. 4:36(c) (noting that "if a succession of experts have caused multiple adjournments, the court is accorded discretion to deny any further adjournment for that reason").

Clearly, whether the denial of an adjournment results in significant prejudice to one side or the other must be an essential element of the judge's discretionary calculus. We have already noted that the 2000 Rule amendments "were not designed to do away with substantial justice on the merits or to preclude rule relaxation when necessary to 'secure a just determination.'" Tucci v. Tropicana Casino and Resort, Inc., 364 N.J. Super. 48, 53 (App. Div. 2003)(quoting R. 1:1-2). However, despite plaintiff's contentions to the contrary, we fail to see how any significant prejudice resulted from the denial of her adjournment request because of Neuner's and Saddiqui's unavailability. Neuner, a chiropractor, saw plaintiff within a couple of weeks of the accident. However, Leiberman, an orthopedist who actually testified in court, saw plaintiff for the first time following Neuner's referral in August 2003, less than four months after the accident, and his diagnosis was essentially no different from that reflected in Neuner's later report. Saddiqui saw plaintiff for the first time in April 2005, at Lieberman's referral, and recommended surgery. Lowe saw defendant for the first time in February 2007, also at the request of Lieberman who continued to treat plaintiff throughout the ensuing years. Lowe reached the same conclusion as did Saddiqi, that surgery was warranted, and testified via videotape comprehensively about his opinions and the surgical procedure anticipated. Under these circumstances, plaintiff suffered no prejudice whatsoever by not having Neuner or Saddiqui testify. In our opinion, the testimony of all four doctors would have been cumulative and unnecessary.

Likewise, we find plaintiff's second contention--that the judge mistakenly exercised his discretion by denying a "brief adjournment" while she had spinal surgery--to be unavailing. We note initially that the record does not include the motion and supporting papers actually filed by plaintiff, however, it appears to be undisputed that the request was not made prior to the close of discovery on May 5, 2007.

Essentially, plaintiff's request made then, and renewed on the first day of trial, sought an adjournment of the trial date and a necessary extension of the discovery period. A motion seeking the extension of discovery must be made "returnable prior to the conclusion of the applicable discovery period." R. 4:24-1(c). Once a trial date is set, a movant must demonstrate "exceptional circumstances" exist for further discovery extensions. Bender v. Adelson, 187 N.J. 411, 427 (2006); Ponden v. Ponden, 374 N.J. Super. 1, 9 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005); R. 4:24-1(c). In order to establish exceptional circumstances, the moving party must demonstrate: 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 v. LSC P'ship, 378 N.J. Super. 68, 79 (App. Div.)(citing Vitti v. Brown, 359 N.J. Super. 40, 51 (Law Div. 2003)), certif. denied, 185 N.J. 296 (2005).

The record fails to reveal why plaintiff did not move for an extension of discovery prior to the May 5 end date, since it was clear that despite the grant of her earlier request in January, she still was not scheduled for surgery. Although plaintiff characterized the adjournment request and additional discovery time as "brief," and does so before us, we have little doubt that discovery would have consumed many more months after plaintiff's actual surgery. Defendants undoubtedly would have been entitled to 1) have plaintiff re-examined and possibly re-deposed; 2) obtain Lowe's operative report and possibly depose him; and 3) have their own experts render supplemental reports as necessary.

In denying plaintiff's subsequent motion for a new trial, the judge noted that "there was no showing [by plaintiff] . . . as to whether and, if so, when, and with what results, any additional medical procedures might be affected." We imply from this conclusion that the judge determined plaintiff had not demonstrated exceptional circumstances. Moreover, we can find no real prejudice to plaintiff by the denial of her request. Lowe actually testified as to plaintiff's pre-surgical condition, the procedure he anticipated performing, and the likely consequences. During his testimony, Lowe acknowledged that plaintiff demonstrated degenerative "processes" in her spine, though he clearly opined that plaintiff's disc herniations were traumatically caused by the April 2003 accident. He noted the importance of the timing of plaintiff's complaints in relation to the accident, and the clinical correlation he made between her subjective complaints and the images he saw in her MRI films. We assume he would have testified to the same conclusions after performing the surgery. He likely would have continued to place significant reliance on plaintiff's self-reported medical history, including the timing of the onset of her complaints, in determining whether the accident caused her injuries, or whether they were degenerative in nature, the essential dispute in the case. In short, we see the actual performance of the surgery as adding little to the jury's consideration of the question of causation.

Lastly, we consider plaintiff's argument that the judge erred in denying her in limine motion, made on the first day of trial, to bar Noble's testimony. We concede that defendants violated Rule 4:17-7, that provides in pertinent part,

[I]f a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than 20 days prior to the end of the discovery period . . . . Amendments may be allowed thereafter only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date. In the absence of said certification, the late amendment shall be disregarded by the court and adverse parties.

This rule, which was also part of the extensive 2000 Rule amendments, was intended to address "[t]he typical liberality with which late amendments to interrogatories had been tolerated" by demanding "stricter compliance with the discovery timeframes[.]" Pressler, supra, comment 1.1. on R. 4:17-7. Defendants failed to certify why Noble's report could not have been obtained through the "exercise of due diligence" prior to the original close of discovery on April 30, 2006, and they never sought to re-open discovery thereafter. See Bender, supra, 187 N.J. at 429 (interpreting obligations placed upon a party seeking late amendment under the Rule).

However, in this case, plaintiff actually possessed Noble's report in September 2006, months before she herself sought an extension of discovery, which was granted. In that sense, the amendment to defendants' interrogatories was not made after the end of discovery, but rather during a temporary hiatus in the entire discovery process. In the ensuing five months of additional discovery, plaintiff never brought defendants' violation of the Rule to the judge's attention, and apparently never served an objection upon defendants. Plaintiff claims prejudice in being unable to depose Noble, however, there is nothing in the record to support this conclusion because as of January 2006, plaintiff had five months in which to depose the witness but never did so. On balance, while defendants' violation of the Rule should not be countenanced, we agree with the trial judge that fairness and a full adjudication on the merits required plaintiff's motion, made for the first time at trial, be denied.

III.

Plaintiff contends that during the cross-examination of Lieberman before the jury, the judge interrupted several times and injected limits upon the testimony, adversely affecting the jury's evaluation of her expert's demeanor and credibility. Plaintiff argues that after being admonished by the trial judge, Lieberman became timid and that his responses lost their force and effect.

Plaintiff cites the following exchanges during Lieberman's cross-examination in support of this argument:

Q: And would it be fair to say that if there is a carpal tunnel issue, it's not related to the neck or the disc in this situation?

A: Well, the only aspect . . . which is of import would be-

Judge: No, no, Doctor, listen to the question, please. We're not interested in what's of great import. The question is is there any reason to believe that if there was a carpal tunnel problem, it was related to the cervical disc. That's the question

A: Okay. The answer is, yes, it would. The symptoms--

Judge: Thank you. The answer is yes.

. . . .

Q: So--but we have situations where we can have a herniation and no pain, correct?

A: I would say that if somebody has a hernia-- a true herniation--

Judge: Doctor, doctor--

A: you would have pain.

Judge: --Doctor--

Witness: Yes.

The Court: --stop talking.

Witness: Okay.

Judge: Correct or not correct, yes or no.

Witness: You would have--

Judge: You--yes or no.

Witness: Yes.

Judge: Thank you.

Witness: You would have pain.

. . . .

Judge: . . . When he asks a question that says correct, your answer is limited to one word.

. . . .

Judge: Sit, please, and be quiet.

At sidebar, the following exchange took place between the judge and plaintiff's counsel:

Counsel: I know he hasn't answered the question, but I don't necessarily know if yelling at him in front of the jury was--

Judge: I tried my level best three times. He proceeded to talk over me. He doesn't do that in this courtroom.

. . . .

He can do that in his operating room.

Counsel: Can we just give him an instruction that he should answer the question?

Judge: I did that. I'm sorry. I tried my level best.

The judge addressed the jury sua sponte immediately after Lieberman's testimony.

As I mentioned to you, it's your job to weigh and to evaluate the testimony and the credibility of all of the witnesses. As you heard a few minutes ago, the doctor and I had a disagreement over the manner of his testimony, and I'm not going to apologize for that disagreement. It is what it is, but I do want you to understand that your role in evaluating his testimony should not pay any attention to the fact of that disagreement. He and I disagreed over how he should be testifying. I won the disagreement because I'm sitting here with the robe, but that's [] got nothing to do and should have nothing to do with your responsibility to weigh and evaluate his testimony and everybody else's testimony and to decide what you believe.

It is a judge's duty "to see that justice is done in every case that comes before him." In re Yaccarino, 101 N.J. 342, 388 (1985)(quoting In re Albano, 75 N.J. 509, 514 (1978)). This obligation "includes not only reaching the correct legal result in the particular case, but also the exhibiting at all times of judicial demeanor, patience and understanding." Ibid. We have noted that "[a] judge must conduct a trial in a fair and impartial manner, refraining from remarks that might prejudice a party or might influence the minds of the jury." Mercer v. Weyerhaeuser Co., 324 N.J. Super. 290, 297-98 (App. Div. 1999). "Alleged misconduct by a trial judge must be reviewed within the context of the entire record in order to determine whether it had prejudicial impact." D.G. ex rel. J.G. v. North Plainfield Bd. of Educ., 400 N.J. Super. 1, 26 (App. Div.), certif. denied,

196 N.J. 346 (2008).

Here, it is apparent that the judge grew impatient with Lieberman's style of testifying, and he injected himself in an attempt to expedite and focus the responses. The judge's acknowledgement, first at sidebar, and then in his curative instruction to the jury, recognized that he may have evidenced some of that impatience for the jury. However, viewing the record as a whole, and considering the immediate attempt made by the judge to address the situation, we conclude the remarks had no prejudicial effect and provide no basis for reversal.

IV.

Finally, plaintiff argues that the jury's finding that her injuries were not causally related to defendants' negligence was against the weight of the evidence, and her motion for a new trial should have been granted. Rule 4:49-1(a) provides that "[t]he trial judge shall grant the motion if, having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." "We [] adhere to essentially the same standard when reviewing a trial court's action." D.G., supra, 400 N.J. Super. at 26. Plaintiff's burden is particularly high because she must demonstrate that "the verdict is . . . so contrary to the weight of the evidence as to give rise to the inescapable conclusion that it is the result of mistake, passion, prejudice or partiality . . . ." Klawitter v. City of Trenton, 395 N.J. Super. 302, 325 (App. Div. 2007).

Plaintiff contends that even defendants' expert, Cristini, conceded that the April 2003 accident could have caused her disc herniations, and, as such, the jury's conclusion that the accident was not the proximate cause of any of her injuries was against the weight of the evidence. However, Noble's testimony was otherwise. While the judge noted at the motion for a new trial the "numerical superiority of the evidence" in plaintiff's favor, he also properly noted that the jury was presented with evidence that supported their verdict. We agree, and find no basis for reversal.

Affirmed.

 

The pleadings and the parties' briefs utilize this spelling of defendant's name, however, when he testified at trial, he spelled his name "Loraine," which we shall use throughout the balance of this opinion.

Also named in the complaint as defendants were Remegio Mijares, Estrella Mijares, and Katrina P. Mijares (the Mijareses), apparently the owners of the vehicle Loraine was operating. The record is unclear as to whether the Mijareses were actually dismissed from the case pre-trial, but the trial proceeded solely against Loraine and Davenport as defendants and the order of judgment under review is entered solely in their favor. The Mijareses and Loraine have filed one brief in opposition to plaintiff's appeal.

In his brief, Davenport also claims his counsel explicitly notified the other parties at the arbitration of his intention to call Noble as a witness at trial. This assertion is not denied by plaintiff.

Neither the notice of motion, nor the order denying it, is part of the appellate record.

The record is unclear whether or not the request was actually reviewed by the judge.

The judge entered an order on July 19, 2007, the last day of the trial, denying plaintiff's motion for reconsideration of the June 22, 2007 order that denied her request for an extension of discovery. In a brief statement of reasons attached, the judge determined the requested relief was "moot."

We accept plaintiff's contention that the letter erroneously listed Lowe, whose testimony had been videotaped, as unavailable, and that she intended to refer to Neuner.

(continued)

(continued)

30

A-0682-07T3

December 5, 2008