THE ESTATE OF LUCY CAPLANIS v. JOHN MORONE, M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

THE ESTATE OF LUCY CAPLANIS

f/k/a LUCY STYLIANOU and

CHRISTOS CAPLANIS, an

individual,

Plaintiffs-Respondents,

v.

JOHN MORONE, M.D.,

Defendant-Appellant.

___________________________________

September 8, 2015

Argued February 10, 2015 Decided

Before Judges Ostrer and Sumners.

On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-156-12.

Alex W. Raybould argued the cause for appellant (Mattia & McBride, P.C., attorneys; Philip F. Mattia, of counsel; Mr. Raybould, on the briefs).

Timothy J. McIlwain argued the cause for respondent.

PER CURIAM

In this medical malpractice case, defendant John Morone, M.D., by leave granted, appeals from the trial court's interlocutory orders barring his two experts from testifying at trial, and denying reconsideration. Having considered the parties' arguments in light of the record and applicable principles of law, we reverse.

I.

The Estate of Lucy Caplanis filed a complaint in January 2012, alleging that the death of Lucy Caplanis (Caplanis) on January 17, 2010, was proximately caused by defendant's negligence. Plaintiff's neurology expert opined that Caplanis died from a ruptured intracranial aneurysm. An internist, defendant treated Caplanis for headaches over an extended period of time. The expert opined that defendant negligently failed to refer her for a brain MRI, was careless in his medical documentation, and deviated from the standard of care in other respects.

Two judges alternated in managing the case Judge Ralph L. De Luccia, Jr., and the judge whose orders are the subject of the appeal. Neither side complied with discovery, leading, at various points, to the dismissal of the complaint and suppression of the answer, but the parties' respective pleadings were ultimately restored.

Discovery was extended multiple times. The parties consensually extended the initial discovery end date (DED) by sixty days, to November 21, 2013. Judge De Luccia subsequently extended discovery to November 21, 2013. It was extended again to April 30, 2014.1

There was substantial motion practice related to the legibility of defendant's treatment notes, which is indirectly related to the delayed service of expert reports. In December 2013, the court required defendant to produce a typewritten version of his notes. Plaintiff maintained that production of reliable, legible notes was needed before its experts could properly prepare reports. Defendant produced a transcription of his notes by hand, but provided a typewritten version on February 25, 2014.

Nonetheless, the court entered an order three days later allowing plaintiff to amend expert reports after the notes were typed, defendant was deposed, and he produced his own expert reports. The statement of reasons provided, "This court needs a copy of 'the legible copy' of Dr. Morone's handwritten notes [apparently referring to the physician's hand transcription]. If this legible copy is not legible movant is to move and seek the striking of Dr. Morone's answer with prejudice."

The court suppressed defendant's answer with prejudice a month later, and granted plaintiff leave to file an amended complaint. Apparently, the dismissal was related to the dispute over the transcription of the notes however, the court did not expressly state so. The court's statement of reasons provided only, "It is time to focus on this case. Discovery end date remains 4/30/14. This motion should have been made months ago."

However, by order entered May 23, 2014, the same judge restored the answer upon defendant's motion for reconsideration. In a written statement of reasons, the judge explained, "Defendant has failed to diligently conduct discovery. Despite that the App[.] Div. will undoubtedly restore this case so this court will not prolong the inevitable." The court did not say whether the defendant's lack of diligence pertained to the production of notes, or other discovery issues.

Plaintiff served the initial reports of two experts Joseph S. Jeret, M.D., and David E. Gabros, M.D. by fax and regular mail on January 29, 2014. By that time, the DED had been extended to April 30, 2014. On April 8, 2014, plaintiff served a third expert report, this one from Joanie Kurland, M.D., who rendered an opinion that defendant's notes were "fraudulently altered."

On April 29 and 30, 2014, defendant amended his answers to interrogatories, to include the responsive reports of his two experts, Kenneth Granet, M.D., and Alan Pertchik, M.D. Defense counsel provided a certification of due diligence, explaining that he received plaintiff's expert reports Drs. Jeret and Gabros in early February, and that his experts needed "ample time" to prepare their responsive reports. Dr. Granet defended defendant's record keeping; and Dr. Pertchik opined that defendant's treatment of Caplanis' headache conformed with the reasonable standard of care. Plaintiff did not file a motion challenging defense counsel's certification of due diligence.

However, multiple motions came before the two judges on May 23, 2014. Defendant moved to reconsider the order suppressing his answer; to extend discovery; and to bar plaintiff's experts because of alleged failures to provide discovery by plaintiff. Plaintiff opposed, arguing that defendant had failed to demonstrate error by the court in its earlier suppression order, the discovery extension request was late, and defendant's expert reports were untimely, as they "were ordered due March 27, 2014 by Judge Deluccia [sic]."

As noted, the court granted the reconsideration motion and restored defendant's answer, although noting that "[d]efendant has failed to diligently conduct discovery." The same judge denied defendant's motion to extend discovery an additional ninety days, stating, "Exceptional circumstances not demonstrated why defendant has failed to complete discovery." A trial date was then scheduled for July 14, 2014.

Judge De Luccia heard argument on defendant's motion to bar plaintiff's expert witnesses from testifying at trial should they fail to appear for depositions, which defendant had noticed. Independent of the motion to extend discovery, pending before the other judge, Judge De Luccia entered an order barring plaintiff's experts if they did not appear for depositions by June 30, 2014. The court also compelled plaintiff to provide a copy of Caplanis' death certificate and certain medical authorizations. The court did not address plaintiff's complaint about the timeliness of the defense expert reports. Moreover, the order was silent on the deposition of the defense experts, which plaintiff had not yet requested.

In June, disputes over discovery continued. Plaintiff served notices to take the deposition of defendant's experts on June 25 and 26, but then counsel wrote that he was only interested in deposing Dr. Granet. Plaintiff's counsel also suggested postponing Dr. Jeret's deposition until shortly after June 30, 2014, given the amount of time consumed by the depositions which had already taken place. Defense counsel wrote that he would refuse to produce Dr. Granet until the deposition of all three plaintiff's experts were complete. Dr. Jeret was deposed June 27 and Dr. Gabros on June 30, 2014.

Meanwhile, new motions were filed. On June 9, 2014, defendant moved to dismiss plaintiff's complaint for failure to comply with aspects of Judge De Luccia's May 23, 2014, order compelling discovery, unrelated to the deposition of plaintiff's experts.

Plaintiff's cross-motion led to the order now on appeal, barring defendant's experts. The record reflects a significant discrepancy in the relief plaintiff sought. In the notice of motion apparently served on defendant, plaintiff sought an order compelling defendant to provide dates for the deposition of his experts. There was no request for an order barring defendant's experts. The proposed form of order apparently served on defendant was consistent with that notice of motion.

However, in plaintiff's counsel's certification, he sought an order barring defense experts, or alternatively, setting dates for their deposition. Plaintiff noted that the reports were filed on the last day of discovery, and challenged defendant's due diligence: "On May 23, 2014, [the court] denied Defendant's motion to extend discovery and found that Defendant failed to be diligent with discovery despite Defendant's self-proclamation of due diligence when producing expert reports out of time." Plaintiff's proposed form of order filed with the court included the alternative forms of relief.

Defendant responded to the relief requested in the notice and form of order, noting in his letter brief that plaintiff sought "leave to provide dates certain for the deposition of experts." Defendant argued that the deposition notices were filed after the April 30, 2014, DED. Defendant also asserted that Judge De Luccia's May 23, 2014, order, which expressly provided for depositions of plaintiff's experts after the DED, was silent on the deposition of defendant's experts, who had not then been noticed.

The motions were considered on the papers by Judge De Luccia's colleague, who entered two orders. A July 11, 2014, order barred Drs. Jeret and Gabros from testifying. The judge stated that the failure to engage in discovery was "inexcusable" and any discovery not performed was waived.

The instant appeal pertains to the second order, entered on July 21, 2014, which granted in significant part plaintiff's cross-motion, in particular, barring defendant's experts. Apparently, the judge began writing the order on or before July 14, 2014, as the court stated: "Quite frankly, discovery has been abysmal. Trial date remains 7/14/14." The court added a post-script on July 21, stating, "I suggest consensual discovery be utilized." The court stated that a trial date would now occur in October. The judge did not otherwise provide reasons for barring defendant's experts.

The parties each sought reconsideration of the respective orders barring experts. Plaintiff relied on the fact that Drs. Jeret and Gabros had appeared for depositions by the deadline in Judge De Luccia's May 23 order.

Defendant argued that the court had provided no basis for barring his experts. Although he asserted plaintiff had no legal basis to demand the deposition of defense experts as the DED had passed defendant expressed his amenability to such depositions. Defendant noted the discrepancy between plaintiff's notice of cross-motion, and the order entered. Defendant renewed an argument presented in opposition to the cross-motion, that it was not a germane motion under Rule 1:6-3.

In plaintiff's letter opposing defendant's reconsideration motion, plaintiff conceded that "[p]laintiff did not have the right to conduct Defendant's expert's deposition pursuant to a court order or rule." However, plaintiff noted that the court's February 28 order allowed plaintiff's experts to file amended reports after defendant's progress notes were typed, defendant was deposed, and his expert reports were produced. Plaintiff asserted that "this did not happen," apparently alleging that the typescript that was provided was incomplete or inaccurate.

The court denied defendant's reconsideration motion on the papers, stating

As unfortunate as it may seem, the court rules apply to all cases, even medical malpractice cases. Judge De Luccia provided an order outlining when discovery was to be completed in this track III case which has had 671 days of discovery when discovery ended in April of 2014. If the parties want to consensually engage in discovery [and] allow testimony that this court has barred for non-compliance with the court's order, then they are entitled to do so.

Although the court stated that it barred defendant's experts "for non-compliance with the court's order," the court did not identify the specific violation.

On appeal, defendant argues that the trial court failed to provide sufficient reasons for its order barring his experts. Defendant asserts he produced his expert reports within the DED. Although the trial court referred to Judge De Luccia's orders in its statement denying reconsideration, defendant contended that his production of expert reports did not violate any order. He also noted that the last of plaintiff's expert reports apparently referring to Dr. Kurland was not received until April 2014. Defendant also argued that barring his experts was not required to avoid prejudice to plaintiff, especially as it pertained to Dr. Pertchik, because plaintiff's counsel expressly withdrew his request to depose him. Defendant also renews his argument that the cross-motion was procedurally deficient, and the court should have afforded him oral argument.

In response, plaintiff argues that the court's order should be affirmed because of defendant's alleged violation of the court's order pertaining to the typing of his progress notes. Plaintiff also argues that defendant's expert reports were untimely, because they were produced less than twenty days before the end of discovery. Although defense counsel provided a certification of due diligence, plaintiff argued that the "trial court determined that the Defendant failed to diligently conduct discovery," referring to the court's statement of reasons attached to its order denying a discovery extension.

II.

An abuse of discretion standard governs our review of a trial court decision related to discovery matters. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011); Bender v. Adelson, 187 N.J. 411, 428 (2006). Although the "'abuse of discretion' standard defies precise definition," we may find an abuse of discretion when a decision is "made without a rational explanation," "rest[s] on an impermissible basis," or was "based upon a consideration of irrelevant or inappropriate factors." Flaggv. Essex Cnty. Prosecutor, 171 N.J.561, 571 (2002) (internal quotation marks and citations omitted). When a decision is left to a court's discretion, what is meant is "discretion founded on the facts and the applicable law." State v. Daniels, 38 N.J. 242, 249 (1962), cert. denied, 374 U.S. 837, 83 S. Ct. 1885, 10 L. Ed. 2d 1057 (1963). To command our deference, "the court must provide factual underpinnings and legal bases supporting the exercise of judicial discretion." Clark v. Clark, 429 N.J. Super.61, 72 (App. Div. 2012). This comports with the court's general obligation to set forth its findings of fact and conclusions of law with sufficient particularity to enable both parties, and a reviewing court, to understand the basis for its decision. See R. 1:7-4(a); In re Commitment of D.M., 313 N.J. Super. 449, 454 (App. Div. 1998) ("Naked conclusions do not satisfy the purpose of R. 1:7-4.") (internal quotation marks and citation omitted).
Applying that standard, we are persuaded that the court mistakenly exercised its discretion. The trial court's July 21 order barring defendant's expert provided no detailed reason for its severe sanction. The court said little more than discovery was abysmal. On the motion for reconsideration, the court was slightly more detailed, stating that it had barred defendant's expert for non-compliance with the court's order, apparently referring to one entered by Judge De Luccia. However, the court "neither identified" the specific violation, nor "justified" the sanction imposed.

It is undisputed that defendant served the expert reports within the DED of April 30, 2014. Rule 4:17-7 requires a party to amend answers to interrogatories such as an amendment to disclose experts and provide their reports within twenty days of the expiration of discovery, unless the party provides a certification of due diligence, stating why the amendment could not have been provided sooner. An opposing party waives objection to the certification of due diligence, unless he or she challenges the certification by formal motion within twenty days. R. 4:17-7 ("Any challenge to the certification of due diligence will be deemed waived unless brought by way of motion on notice filed and served within 20 days after service of the amendment. Objections made thereafter shall not be entertained by the court.").

Plaintiff did not formally challenge defendant's certification of due diligence. Instead, in its opposition to defendant's motions to reconsider the striking of his answer, and to extend discovery, plaintiff alleged the expert reports were late because Judge De Luccia had allegedly ordered service of expert reports by March 27, 2014. However, no such order is included in the record.

In its subsequent motion to bar defendant's experts or to compel depositions on dates certain which, as we have noted above, was mischaracterized in the notice of motion as one only to compel depositions plaintiff relies on the judge's May 23 order denying the discovery extension, which included a general remark that defendant was not diligent in discovery. Plaintiff treats this as equivalent to a rejection of defendant's Rule 4:17-7 certification of due diligence. We do not. Plaintiff did not formally object to the certification. Moreover, there is insufficient basis for interpreting the court's brief expression of general frustration with the slow pace of discovery, as a rejection of the certification. Defense counsel pointed out in his certification that the reports of Drs. Jeret and Gabros were received in early February.2 Moreover, Dr. Kurland's report was not served until April. Defendant essentially contended that his experts needed the time to prepare their reports.

There is a second reason not to place such weight on the court's finding of lack of diligence. It may have been based on plaintiff's unsupported assertion that defendant's expert reports were due March 27, 2014 according to an alleged order of Judge De Luccia. As noted, that alleged order has not been produced in the record, and we are constrained to conclude the reference to it was made in error.

We do not condone defense counsel's refusal to afford plaintiff the opportunity to depose his experts after the DED of April 30. Although Judge De Luccia did not directly address that subject in his May 23 order, he allowed depositions of plaintiff's experts to be completed by June 30, beyond the DED. It would have been consistent with the spirit of that order to consensually permit depositions of defendant's experts within the same time frame. A spirit of cooperation would have avoided further motion practice to enable plaintiff to secure those depositions.

Nonetheless, we discern no basis in the record for the trial court's conclusion that defendant failed to comply with prior orders in its service of expert reports. Assuming the adequacy of defense counsel's certification of due diligence, the reports were served within the deadline.

We reject plaintiff's argument that we should affirm the court's sanction on the grounds that defendant did not comply with orders pertaining to the transcription of his progress notes. We shall not delve into the details of that dispute, particularly since plaintiff has not provided us with the notes, the handwritten transcription, or the typescript, to enable us to assess the claims of non-compliance. It is sufficient to note that the trial court did not state that it barred defendant's experts as a sanction for alleged non-compliance.

We therefore reverse the trial court's order barring defendant's experts from testifying at trial. Given our disposition, we need not address defendant's remaining arguments. We direct the court to allow an appropriate period of time before trial to enable plaintiff to depose Dr. Granet, and, if plaintiff so desires, Dr. Pertchik.

Reversed and remanded. The stay of trial is dissolved. We do not retain jurisdiction.

1 The record does not include the order extending discovery to April 30, 2014, however other orders recognize that as the then-controlling DED.

2 Plaintiff makes too much of the fact that he served them in January. He did so on January 29. It is certainly plausible that they did not come to defense counsel's attention until "early February."