CAROLYN WIGHTMAN v. PRISCILLA HODSON D.M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

CAROLYN WIGHTMAN,

Plaintiff-Appellant,

v.

PRISCILLA HODSON, D.M.D.,

Defendant-Respondent.

___________________________

June 19, 2014

Before Judges Simonelli and Fasciale.

On appeal from the Superior Court of New Jersey, Law Division, Morris County, Docket No. L-2501-10.

Murphy & Lambiase, attorneys for appellant (George A. Smith, on the brief).

Krompier & Tamn, L.L.C., attorneys for respondent (Jeffrey A. Krompier, of counsel and on the brief; Jason M. Altschul, on the brief).

PER CURIAM

In this dental malpractice matter, plaintiff Carolyn Wightman appeals from the July 9, 2013 Law Division order, which dismissed the complaint with prejudice against defendant Priscilla Hodson, D.M.D. Because we conclude that the trial judge mistakenly exercised his discretion in denying a brief adjournment of the trial, we reverse.

Plaintiff filed her complaint in July 2010, and defendant filed her answer in November 2010. The court adjourned the trial date several times for reasons the record on appeal does not reveal. On May 3, 2013, the court sent the parties notice of the June 3, 2013 trial date. Plaintiff's counsel communicated the trial date to plaintiff's liability expert, Mitchell Bialor, D.D.S.,1 no later than May 29, 2013, the date of the doctor's deposition. Dr. Bialor responded that "he expected more notice."

At jury selection on Monday, June 3, 2013, the trial judge advised the jury panel that the trial would continue until the following Wednesday or Thursday. Jury selection concluded on the morning of Tuesday, June 4, and the attorneys thereafter completed their opening statements. After a lunch break, plaintiff's counsel advised the judge that Dr. Bialor, whom counsel expected to call to testify on Thursday, June 6, was unavailable that day, but available for a de bene esse deposition on Friday, June 7, which was a motion day. Counsel stated that he could call defendant to testify on plaintiff's main case in the meantime and play the de bene esse videotape to the jury on Monday, June 10. Counsel requested a brief adjournment. Defendant did not object.

The judge denied an adjournment and dismissed the complaint with prejudice. The judge acknowledged that Dr. Bialor's testimony was essential to plaintiff's case, but concluded that a two-day adjournment was unfair to the jury, the court, and adversary counsel.

We review a trial court's decision to grant or deny an adjournment under an abuse of discretion standard. Kosmowski v. Atlantic City Med. Ctr., 175 N.J. 568, 574 (2003). "'Absent an abuse of discretion, denial of a request for an adjournment does not constitute reversible error.'" State v. D'Orsi, 113 N.J. Super. 527, 532 (App. Div.) (quoting State v. Smith, 87 N.J. Super. 98, 105 (App. Div. 1965)), certif. denied, 58 N.J. 335 (1971). We will reverse a refusal to grant an adjournment only if it causes "manifest wrong or injury." State v. Hayes, 205 N.J. 522, 537 (2011).

When determining whether to adjourn a case due to an expert's unavailability, the court

must focus on the tension between, on the one hand, the salutary principle that the sins of the advocate should not be visited on the blameless litigant, and, on the other, the court's strong interest that management of litigation, if it is to be effective, must lie ultimately with the trial court and not counsel trying the case.

[Kosmowski, supra, 175 N.J. at 574 (quoting Aujero v. Cirelli, 110 N.J. 566, 573 (1988); Rabboh v. Lamattina, 312 N.J. Super. 487, 492 (App. Div. 1998)) (internal quotation marks omitted).]

In balancing these considerations, the court must remain mindful of its overriding objective that "[c]ases should be won or lost on their merits and not because litigants have failed to comply precisely with particular court schedules, unless such noncompliance was purposeful and no lesser remedy was available." Connors v. Sexton Studios, Inc., 270 N.J. Super. 390, 395 (App. Div. 1994).

In Kosmowski, the court set a trial date after reluctantly granting several adjournments. Kosmowski, supra, 175 N.J. at 572-73. Three days before trial, plaintiff's counsel learned that plaintiff's expert would be unavailable for the start of trial. Id. at 573. On the trial date, counsel misrepresented to the court that the expert was in Europe, and thus unavailable for two weeks. Ibid. The court dismissed the complaint with prejudice, and later refused to reinstate the complaint after learning of counsel's misrepresentation. Ibid.

Our Supreme Court held that counsel's clients were "denied their day in court based exclusively on the conduct of their attorney." Id. at 575. The Court stated that "[w]hen an attorney is unable to try a case due to the first unavailability of an expert, dismissal of the complaint with prejudice 'is drastic punishment and should not be invoked except in those cases where the actions of the party show a deliberate and contumacious disregard of the court's authority.'" Ibid. (quoting Allegro v. Afton Vill. Corp., 9 N.J. 156, 160-61 (1952)). Dismissal with prejudice should be imposed "'only sparingly,'" and only "'when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party.'" Ibid. (quoting Zaccardi v. Becker, 88 N.J. 245, 253 (1982)). Accordingly, the Court directed the trial court, on remand, to "consider whether restoration of the complaint would cause any prejudice to defendants caused by the delay . . . . [and] [i]f the complaint is restored . . . the court should consider the range of sanctions to be imposed on plaintiffs' counsel." Id. at 576.

Here, the actions of plaintiff's counsel did not amount to a "deliberate and contumacious disregard of the court's authority" to warrant dismissal of the complaint with prejudice. Nor was there any reason to impose sanctions. Defendant did not object to the adjournment, and the jury was aware the case would continue to the following Thursday. Accordingly, we conclude that the denial of an adjournment under the circumstances of this case was a mistaken use of discretion that deprived plaintiff of her day in court.

Reversed and remanded for trial.

1 Mitchell Bialor, D.D.S. is also referenced as Mitchell Bailor in documentation.