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October 20, 2014


Argued October 9, 2013 Decided

Before Judges Sapp-Peterson, Lihotz and Maven.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2698-10.

Ursula H. Leo argued the cause for appellant (Laddey, Clark & Ryan, LLP, attorneys; Ms. Leo and Jessica A. Jansyn, on the briefs).

Douglas E. Motzenbecker argued the cause for respondent (Gordon & Rees, LLP, attorneys; Mr. Motzenbecker, of counsel and on the brief; Daniel J. DiMuro and Sarah L. Wieselgren, on the brief).

The opinion of the court was delivered by


Plaintiff Katherine McKenna suffered injuries in a workplace accident. She filed a disability discrimination complaint against her employer, defendant Kessler Institute for Rehabilitation, Inc. (Kessler). Plaintiff appeals from the October 19, 2012 order granting partial summary judgment in favor of defendant, and the November 27, 2012 sua sponte order summarily dismissing her complaint. For the reasons that follow, we vacate the dismissal order, and remand for further proceedings.


On April 10, 2009, McKenna, a registered nurse employed by Kessler for over twenty-five years, sustained an injury to the back of her head from a slip-and-fall accident while at work. Gerald Tramontano, Ph.D., McKenna's treating neuropsychologist, diagnosed her with a concussion, also referred to as a mild traumatic brain injury (TBI).

McKenna was placed on medical leave until January 2010. In December 2009, Dr. Tramontano cleared McKenna to resume limited occupational duties subject to a suggested reintegration plan in which McKenna would work six-hour shifts instead of the regular twelve-hour shift. Around that same time, Kessler retained George Carnevale, Ph.D., a neuropsychologist, to review McKenna's medical history. Dr. Carnevale opined that McKenna could return to work without restriction.

On January 19, 2010, McKenna returned to work. Kessler scheduled McKenna to work full twelve-hour shifts and assigned a shadow nurse to monitor her reintegration to her duties. Following the second shift on January 20, McKenna complained of a painful headache and was rushed to the emergency room. On January 23, 2010, Dr. Tramontano informed Kessler that McKenna was unable to work as a nurse due to an increase in her post concussive TBI syndrome. Kessler provided McKenna with a personal leave of absence from January 22, 2010 to March 23, 2010. On April 9, 2010, Kessler transferred McKenna to per diem status, without notice, because she had no personal leave time available to use. McKenna never returned to Kessler.

On August 20, 2010, McKenna filed her complaint. Following discovery, Kessler moved for summary judgment. Kessler argued McKenna could not satisfy the prima facie elements of a failure to accommodate discrimination claim under LAD because (1) she had not provided any evidence demonstrating that she would have been able to perform the essential functions of her job with or without accommodation, and (2) McKenna could not demonstrate that Kessler took an adverse employment action against her. The motion judge denied the motion because "the major issue" on summary judgment, "whether [McKenna] was able to return to work had she been properly accommodated," had to be addressed by the jury.

Kessler moved for reconsideration and raised the same arguments presented in its summary judgment motion. On October 19, 2012, the motion judge reiterated that he found "a genuine issue of material fact as to the issue of whether [p]laintiff would have been able to work had the [d]efendant made certain accommodations and abided by a more liberal reintegration plan. That issue alone, made granting defendant's motion for summary judgment inappropriate." The judge also found "a genuine issue of fact, which should be decided by a jury, whether defendant's institution of a relatively minimal accommodation plan and transfer of plaintiff to per diem status constitutes constructive discharge." Thus, the judge entered partial summary judgment dismissing count three alleging common law discrimination, and carried counts one and two over for trial.

The case was scheduled for trial on October 23, 2012, before a different judge assigned as the trial judge. Instead of starting the trial, the judge adjourned the trial to the next day and sent a letter to both counsel, in which he expressed what he considered a contradiction between the motion judge's statement of reasons and the October 19, 2012 order denying summary judgment. The trial judge wrote to counsel explaining,

There appears to be a contradiction on Pages 3-4 and Page 7 [of the motion judge's statement of reasons] as to the constructive discharge claim. I have conferred with [the motion judge] and confirmed that Pages 3-4 are accurate. Page 7 should state that the motion to dismiss common law disability claims and constructive discharge is granted.

The record contains no response from the parties and no order amending the October 19, 2012 order issued.

The next day, prior to jury selection, the trial judge considered Kessler's in limine motions, which, in part, sought to bar Dr. Tramontano's report as a net opinion and preclude his testimony at trial. The judge ruled he would delay a decision until after Dr. Tramontano testifies in aRule 104 hearing.

Next, in response to the judge's October 23rd letter, Kessler renewed its motion to dismiss based on its contention that McKenna could not prove the elements of the constructive discharge claim. After hearing extensive argument, the court recessed for lunch during which time the attorneys and the judge reviewed case law on the matters discussed in the morning session. When court resumed, the judge sua sponte questioned McKenna's counsel on the merits of her claims, specifically asking for the evidence of damages and proximate cause.1 After the short colloquy, the judge ruled McKenna's evidence insufficient to prove the elements of her LAD claims. The judge reasoned as follows

If [McKenna] is going to be successful in submitting [the failure to accommodate claim] to the jury there has to be evidence that [the] [two twelve]-hour shift[s] caused further damages which meant that she could no longer work, that that was the cause of no longer working.

. . . Dr. Tramontano's reports . . . do not mention the incidents in January of 2010. Each one of them refer back to the April 2009 fall and pretty much confirm permanent disability, which I think is probably beyond dispute, at least [McKenna] takes that position and so does Dr. Tramontano.

So what's left, . . . she has got to have some sort of expert testimony which says to me . . . the incidents in January of 2010, the [two] [twelve]-hour shifts versus the [two] [six]-hour shifts, that is the reason that I'm disabled now and I can no longer work and that's the proximate cause of the damages that I wish to seek.

In supporting his decision to dismiss the complaint, the judge found,

There's simply no evidence a jury could look at and say, ah, that's the proximate cause. I do believe there has to be some adverse employment conduct, but I'm not linking the dismissal [of] this case simply on that.

I'm also saying that there is simply no expert testimony which can create a reasonable inference or any kind of inference that the failure to provide [two six-hour] shifts rather than [two twelve-hour] shifts led to an exacerbation of her injury which caused a permanent disability.

. . . Without these two links you simply cannot go forward . . . because [McKenna] [has] not established the essential elements of [her] case, . . . Both as to proximate cause as well as the expert testimony linking the injury to the incidents in January of 2010 as well as . . . no adverse employment action.

The court entered an order on November 27, 2012, dismissing the complaint with prejudice. This appeal followed.

McKenna posits both procedural and substantive arguments before us. First, she maintains the trial court denied her due process of law by reconsidering Kessler's unsuccessful summary judgment motion, and sua sponte dismissing her case on the day of trial with no motion pending. See R. 4:46-1 (requiring motions for summary judgment to be returnable no later than thirty days before trial). McKenna also contends the issues raised by Kessler, and the court, were not included in either parties' pre-trial exchanges, in limine motions or briefs. See Pressler & Verniero, Current N.J. Court Rules, Appendix XXIII to R. 4:25-7(b) at 2736 (2015) (requiring a pre-trial information exchange, including in limine motions, seven days before trial). Substantively, McKenna contends the trial court improvidently barred her expert from testifying without holding a Rule 104 hearing, and improperly dismissed the constructive discharge claim by misapplying the elements of an LAD claim.


Before addressing McKenna's contentions, we are compelled to comment on the trial judge's interaction with the motion judge, as it presaged the events that occurred on the first day of trial. At the outset, we cannot say there was anything inherently improper with the trial judge discussing the summary judgment order with the motion judge as he prepared for trial, especially if he thought there was an inconsistency or lack of clarity in the order. However, once the motion judge agreed with the trial judge that there may have been an error in the order, as the trial judge intimated in his October 23, 2012 letter to counsel, the appropriate course of action at that time was to have the attorneys return to the motion judge to resolve the issue.

Judges may initiate the correction of perceived errors found in prior determinations. Rule 1:13-1 allows the court to correct "[c]lerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight and omission[.]" Also, trial judges have discretion to initiate the "revisiting and vacating [of an] interlocutory summary judgment order" where the judge believes it would be just to do so because he or she believes the order was entered in error. Lombardi v. Masso, 207 N.J. 517, 523, 536 (2011); see Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987) ("[T]he trial court has the inherent power, to be exercised in its sound discretion, to review, revise, reconsider and modify its interlocutory orders at any time prior to the entry of final judgment."), certif. denied, 110 N.J. 196 (1988). However, for the court to do so the judge must comply with due process. The court must provide notice and an opportunity to address the issues. "Procedurally, where a judge is inclined to revisit a prior interlocutory order, what is critical is that he provide the parties a fair opportunity to be heard on the subject. It is at such a proceeding that the parties may argue against reconsideration and advance claims of prejudice[.]" Lombardi, supra, 207 N.J. at 537.

This procedural safeguard is absent from this record. Neither the judge nor the parties sought this interlocutory review of the summary judgment order. Instead, the trial judge sent a letter to the attorneys informing them the order was wrong and then telling the lawyers what the motion judge intended. That was clearly improper. In the absence of a motion by one of the parties, or the notice by the court, after an opportunity to be heard, the case should have proceeded to trial in accordance with the summary judgment order.

We now turn to McKenna's contentions on appeal. Having considered the record supplied to us and the procedural posture of the case in the trial court, we conclude there is no evidence that McKenna received appropriate notice prior to the day of trial that her complaint could be dismissed that day based upon the matters raised sua sponte by Kessler or the judge. Instead of proceeding to jury selection after the in limine motions, McKenna was compelled to argue the merits of her case to the judge pre-trial. See Klier v. Sordoni Skanska Constr. Co., 337 N.J. Super. 76, 83-85 (App. Div. 2001) (setting aside the trial court's sua sponte order summarily dismissing a complaint after a conference on the scheduled trial date, where the plaintiff had failed to satisfy the judge's concerns about the sufficiency of his claims). We disfavored such a procedure in Klier, ibid., and we will not condone that procedure here.

Similarly, McKenna did not have notice that the judge would bar the expert's report and testimony after his earlier decision to hold a Rule 104 hearing. We have repeatedly reminded trial courts that consideration of motions in limine should be made with great caution. See Bellardini v. Krikorian, 222 N.J. Super. 457, 464 (App. Div. 1988) (noting that "in limine rulings on evidence questions . . . should be granted only sparingly[.]"); Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, comment 4 on N.J.R.E. 104 (2014).

Each of the decisions by the trial judge deprived McKenna of notice and a fair opportunity to defend against these pre-trial procedures. This case illustrates the inequities and inherent unfairness that can occur when a party raises a summary judgment-like action in the guise of a motion in limine, or when the court considers claims submitted in violation of our court rules. The rules are in place for a reason; to ensure fairness in the litigation process. Unfortunately, that did not happen here.

We conclude the summary dismissal of the complaint was an error and warrants reversal. In light of our conclusion, we need not reach the remainder of McKenna's arguments on appeal. Our decision not to consider those arguments should not be viewed as an indication as to how we perceive the merits of those claims, or the position taken by the trial judge.

We vacate the court's sua sponte order dismissing the complaint, and remand for further proceedings consistent with the October 19, 2012 order. We do not retain jurisdiction.

1 Because of our conclusion to remand this case for trial, we will not discuss McKenna's contention that the trial judge misapplied the elements of an LAD claim to include consideration of proximate cause.