JUNG MIN CHOI v. KWANG H. KIM

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4868-11T3

JUNG MIN CHOI,

Plaintiff-Appellant,

v.

KWANG H. KIM,

Defendant-Respondent.

___________________________

May 16, 2013

Argued April 9, 2013 Decided

Before Judges Reisner and Yannotti.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8511-09.

Russell S. Warren, Jr., argued the cause for appellant.

Roosevelt Jean argued the cause for respondent (Chasan Leyner & Lamparello, P.C., attorneys; Mr. Jean, of counsel and on the brief).

PER CURIAM

Plaintiff Jung Min Choi appeals from an April 18, 2012 order dismissing her personal injury lawsuit against defendant Kwang H. Kim with prejudice. For the reasons that follow, we affirm.

I

On September 28, 2009, plaintiff filed a complaint, claiming that on April 16, 2008, she was injured in an automobile accident caused by defendant. In order to satisfy the limit-on-lawsuit threshold, N.J.S.A. 39:6A-8a, plaintiff contended that she suffered permanent injuries in the 2008 accident. Defendant admitted liability, and the case was scheduled for a trial on the issue of damages only. There was no dispute that plaintiff had been involved in two previous auto accidents, in 2001 and 2002, but she claimed that she suffered new injuries to her back and neck in the 2008 accident. She contended that she had no further medical treatment for the 2001 and 2002 accidents after 2003. Plaintiff was also involved in a subsequent accident in 2010. The same physician, Dr. Chee Gap Kim, treated plaintiff after each of the four accidents.

The trial began on October 5, 2011. On October 7, 2011, the third day of the trial, plaintiff called Dr. Kim as a witness. Prior to the trial, defense counsel had subpoenaed Dr. Kim's entire file, on notice to plaintiff's counsel, and was provided with some of plaintiff's medical documents. However, just prior to Dr. Kim's testimony, defense counsel had an opportunity to review Dr. Kim's original file, which the doctor brought with him to the trial. On reviewing the file, defense counsel realized that Dr. Kim had not turned over copies of certain medical records that were relevant to the case. When the judge asked Dr. Kim whether he needed "to look at the whole medical file of Jung-Min Choi" in order to render his expert report, Dr. Kim replied that he did.

Defense counsel moved to bar Dr. Kim from testifying. The trial judge acknowledged that Dr. Kim's report was "based upon very important documents that [defense counsel had] never seen." However, to prevent severe prejudice to the defense without depriving plaintiff her cause of action, the trial judge declared a mistrial.

On October 19, 2011, plaintiff filed a motion to reopen discovery for sixty days, based on alleged "exceptional circumstances" and to "determine the parties' discovery obligations." In a certification supporting the motion, plaintiff's attorney asserted that he had not read or reviewed the medical records that defense counsel claimed Dr. Kim failed to disclose.

For the first time, plaintiff's attorney also asserted that Dr. Kim "has informed me that the annexed medical report supplied by his office to me, is not his final medical report, but a draft of an interim report that he never completed and should not have been released by his office." Plaintiff's counsel contended that "Dr. Kim seeks to furnish a final medical report." Plaintiff's counsel asked the court to extend discovery to permit both sides to obtain the additional medical records from Dr. Kim, and to allow both sides to submit supplemental expert reports. The motion was not supported by a certification from Dr. Kim.

Defendant filed a cross-motion, requesting that the court assess counsel fees and costs, either against Dr. Kim for failing to disclose documents, or against plaintiff's counsel for failing to disclose the documents or for failing to meet with Dr. Kim and review his file in preparation for the trial. Defendant also opposed plaintiff's application for permission to file a new expert report.

After hearing oral argument on November 4, 2011, the trial judge declined to rule on the fee request because defendant had not served the motion on Dr. Kim. He denied plaintiff's application to file a new expert report, reasoning that plaintiff was not entitled to "redo the case." However, the judge limited defense counsel's supplemental expert report to addressing only the undisclosed documents already addressed in Dr. Kim's report. The judge ordered Dr. Kim to produce his complete treatment file for plaintiff from the first date of medical treatment until October 7, 2011.

Subsequently, defendant re-filed the motion to assess costs against either Dr. Kim or plaintiff's counsel. At the hearing on that motion, the judge revised his earlier ruling and limited the defense experts' supplemental reports to medical records issued on or before the date of Dr. Kim's report. The judge issued an order on January 10, 2012, reserving decision on the fee issue, giving the defense until February 15, 2012 to serve supplemental expert reports, and providing that plaintiff would not be permitted to serve a supplemental report and would be bound by all opinions expressed in Dr. Kim's June 11, 2010 report.1

The re-trial was scheduled for April 2, 2012. On March 14, 2012, plaintiff filed yet another motion, seeking to reopen discovery in order to permit plaintiff to serve and file an expert report for "exceptional circumstances." In a certification supporting this motion, plaintiff's counsel admitted to knowing, before he presented Dr. Kim as a witness at the first trial, that the doctor's report was allegedly only a draft that he did not prepare:

Prior to Dr. Chee Gap Kim, MD [sic] taking the witness stand, Dr. Kim informed Plaintiff's counsel that the final narrative medical report supplied to Plaintiff's counsel by Dr. Chee Gap Kim, MD's medical office was not prepared by him, was not complete, appeared to him to be a draft based upon a template he uses to prepare medical reports which template he believes was filled in by his physician's assistant and released by his office without his knowledge. As such, Dr. Chee Gap Kim, MD cannot testify based upon the content of a final narrative medical report that he did not prepare or author and as such Dr. Kim is refusing to come to court and testify.

. . . . The fact that the June 11, 2010 purported narrative medical report . . . is not his final . . . report will most likely result in Dr. Kim being barred from testifying at trial . . . even if he is compelled to appear by Subpoena.

Defendant opposed the motion, arguing that it was an untimely reconsideration motion. See R. 1:7-4; R. 4:49-2. Defendant also contended that there were no exceptional circumstances. Rather, plaintiff's situation was attributable to her attorney's failure to either timely disclose a problem with Dr. Kim's report before the first trial or his failure to prepare for the first trial by conferring in advance with his expert witness.

The trial judge denied plaintiff's motion. He considered that the representations about Dr. Kim's alleged draft report were not supported by a certification from the doctor. He also found no exceptional circumstances because the situation was due to plaintiff's counsel's failure to speak to his expert witness prior to the trial. The judge also noted that he had, in the past, permitted experts to testify to opinions contained in draft reports, so long as they confirmed their agreement with the opinions stated in the reports. He did not rule that Dr. Kim could not testify at the upcoming trial. By order dated March 30, 2012, the judge also denied a motion that plaintiff had filed, seeking his recusal.

On April 2, 2012, the judge dismissed the complaint after plaintiff's counsel appeared for trial and stated that he would not present testimony from Dr. Kim. In response to the judge's question as to whether Dr. Kim would appear, plaintiff's counsel stated that the doctor was willing to testify, provided he could issue a new report. He stated that the doctor was not willing to testify concerning the June 11, 2010 report, because the doctor allegedly did not author the report, although it was issued by his office under his name. The judge again noted that there was no certification from Dr. Kim attesting to any of those facts. He also found that plaintiff could not satisfy the verbal threshold without presenting expert testimony.

II

We first address the trial judge's decision denying plaintiff's motions to re-open discovery after the court declared the mistrial. Pursuant to Rule 4:24-1(c), "[n]o extension of the discovery period may be permitted after an arbitration or trial date is fixed, unless exceptional circumstances are shown." We review a trial judge's decision to grant or deny a discovery extension for abuse of discretion. See Bender v. Adelson, 187 N.J. 411, 428 (2006); Rivers v. LSC Partnership, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005). We find no abuse of discretion here. Plaintiff's arguments on this point are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following comments.

A "lack of diligence" on the part of plaintiff's counsel does not constitute an exceptional circumstance justifying a discovery extension under Rule 4:24-1(c). Bender, supra, 187 N.J. at 431; Rivers, supra, 378 N.J. Super. at 79 (citing Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463, 473-74 (App. Div.), remanded on other grounds, 185 N.J. 290 (2005)). In this case, plaintiff's counsel evidently failed to speak to his expert witness from June 2010 until the night before the expert was scheduled to testify. He apparently also did not review the expert's file in preparation for the trial. Otherwise, he would have known that the doctor had not produced his entire file.

Plaintiff's counsel also did not support either of his discovery-extension motions with legally competent evidence. See R. 1:6-2(a); R. 1:6-6. As the judge noted in ruling on the motions, there was no certification from Dr. Kim to support the claim that his June 11, 2010 report was a draft prepared by a physician's assistant. There also was no evidence to support counsel's representation to the court, on the second trial date, that Dr. Kim was unwilling to testify to the opinions stated in the alleged draft report because he was not the author.2 Further, counsel produced nothing from Dr. Kim, even in letter form, explaining whether he agreed or disagreed with the opinions stated in the report, regardless of whether he was the author.

We are likewise not convinced by plaintiff's argument that the trial judge should have recused himself. The judge handled this matter in an evenhanded manner, and the fact that he ruled against plaintiff is not evidence of bias. See State v. Marshall, 148 N.J. 89, 186-87, cert. denied, 522 U.S. 850, 118 S. Ct. 140, 139 L. Ed. 2d 88 (1997). We find no abuse of discretion in the decision to deny the recusal motion. See Jadlowski v. Owens-Corning Fiberglass Corp., 283 N.J. Super. 199, 221 (App. Div. 1995), certif. denied, 143 N.J. 326 (1996). Plaintiff's arguments on this point do not warrant further discussion. R. 2:11-3(e)(1)(E).

Affirmed.

1 On February 3, 2012, the judge ordered Dr. Kim to pay defendant's counsel $6344 in fees in connection with the mistrial. The court later granted Dr. Kim's motion to stay the order, pending Dr. Kim's appeal. The validity of the February 3, 2012 order is not before us and we express no view on that issue. Nor is the assessment of fees against Dr. Kim relevant to this appeal. There is no indication in this record that the fee assessment affected the doctor's willingness to testify at the second trial. In fact, plaintiff's counsel represented to the trial judge that Dr. Kim was willing to testify, provided he could issue a new expert report.

2 If that were the case, it is not clear why Dr. Kim appeared for the first trial, apparently prepared to testify on the basis of the June 2010 report.