ESTATE OF PATRICIA GILMORE v. ANNA DE DONA, D.O.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2465-10T4

ESTATE OF PATRICIA GILMORE,

by her Executor, DOUGLAS

KITCHELL and DOUGLAS KITCHELL,

Individually,

Plaintiffs-Appellants,

v.

ANNA DE DONA, D.O., JOHN P.

SALISBURY, M.D., MARY C.

WAGENHOFFER, A.P.N.C.,

Defendants-Respondents,

and

BUTLER PHARMACY and PERDUE

PHARMA, L.P.,

Defendants.

_____________________________________

January 31, 2012

Argued January 23, 2012 - Decided

Before Judges Parrillo and Skillman.

On appeal from Superior Court of New Jersey, Law Division, Ocean County, Docket No.

L-2435-07.

John R. Connelly, Jr., argued the cause for appellant (Drazin & Warshaw, attorneys; Mr. Connelly, on the brief).

Donald Grasso argued the cause for respondent Anna DeDona, D.O. (Grossman & Heavey, attorneys; Mr. Grasso, on the brief).

Russell J. Malta argued the cause for respondent John P. Salisbury, M.D. (McGreevy & Malta, attorneys; Mr. Malta, on the brief).

James H. Moody argued the cause for respondent Mary C. Wagenhoffer (Orlovsky, Moody, Schaaff, Conlon & Gabrysiak, attorneys; Mr. Moody, of counsel and on the brief; Nicole H. Klug, on the brief).

PER CURIAM

Plaintiffs appeal from orders for summary judgment entered on December 3, 2010, which dismissed their claims against defendants DeDona, Salisbury and Wagenhoffer.1 These dismissals were based on plaintiffs' failure to produce one of their originally identified medical malpractice experts, Dr. Paul DiLorenzo, for depositions, their failure to produce their other medical malpractice expert, Jeanette Seggebrush, a registered nurse, for the continuation of her deposition, and their failure to submit a report from a proposed substitute expert, Dr. Gil Roter, until after the deadline for the submission of expert reports had expired.

Plaintiffs' attempt to name Dr. Roter as a substitute expert required them to amend their answers to interrogatories. By the time they attempted to do this, the discovery end date had expired, and a trial date had been fixed. Consequently, the court was only permitted to grant the extension if plaintiff made a showing of "exceptional circumstances." R. 4:24-1(c).

The trial court determined that plaintiffs had not made this showing. Our review of that determination is limited to deciding whether it constituted an abuse of discretion. Bender v. Adelson, 187 N.J. 411, 428 (2006).

There is no basis for us finding such an abuse of discretion. Before plaintiffs sought a further extension of the discovery end date to name Dr. Roter as their expert, they had previously obtained seven extensions of discovery deadlines to obtain their original expert reports and numerous adjournments of the trial date. Furthermore, plaintiffs are responsible for failing to resolve the issues as to Dr. DiLorenzo's fees that resulted in him refusing to appear for a deposition.2 Therefore, the trial court properly exercised its discretion in denying plaintiffs' application for a further extension of the discovery end date to name Dr. Roter as a substitute expert.

Affirmed.

1 Plaintiffs' claims against the other defendants had been dismissed previously and are not the subject of this appeal.

2 We also note that Dr. Roter did not offer any opinion regarding the alleged malpractice of defendants Salisbury and Wagenhoffer. Therefore, even if the further extension of the discovery end date sought by plaintiffs had been granted, the case would have proceeded solely against Dr. DeDona.