ROSA JOVANOVIC v. RICHARD A. BOIARDO M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

ROSA JOVANOVIC AND BOBAN

JOVANOVIC,

Plaintiffs-Appellants,

v.

RICHARD A. BOIARDO, M.D.,

Defendant-Respondent,

and

SAINT MICHAELS MEDICAL CENTER,

Defendant.

_______________________________

September 1, 2016

Submitted February 8, 2016 - Decided

Before Judges Lihotz and Higbee.

On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3594-12.

Franzblau Dratch, P.C., attorneys for appellants (Brian M. Dratch, on the briefs).

Rosenberg, Jacobs & Heller, P.C., attorneys for respondent (Scott T. Heller, of counsel; Fred J. Hughes, on the brief).

PER CURIAM

Plaintiffs Rosa and Boban Jovanovic appeal from a January 23, 2015 order denying their motion to reconsider the summary judgment dismissal of their medical negligence complaint against defendant Richard A. Boiardo, M.D.1 When plaintiffs' expert changed his opinion pending the litigation, the judge permitted plaintiffs a specific time-period to obtain a new expert. Plaintiffs failed to abide the deadline or otherwise adequately explain the basis for their lapse. The judge granted defendant's motion to dismiss the action on August 25, 2014. Plaintiffs filed a motion to reconsider the order of dismissal. The certification supporting the motion stated plaintiffs had located and paid an expert prior to dismissal and also explained the circumstances surrounding the delay in completing his review. The motion judge denied plaintiffs' motion. She concluded plaintiffs' untimely presentation of a replacement expert did not amount to "new evidence" warranting reconsideration.

On appeal, plaintiffs argue their case deserves to be heard on its merits, and, therefore, the trial judge abused her discretion in denying the motion for reconsideration. Following review of the record and applicable law, we agree and reverse.

The issue essentially requires review of the procedural posture rather than consideration of the merits of plaintiffs' case. We tailor the facts accordingly.

On May 22, 2012, plaintiffs initiated this action alleging defendant deviated from the accepted standard of care when performing knee replacement surgery on March 14, 2011, causing misalignment of Mrs. Jovanovic's knee. This allegation was supported by an affidavit of merit authored by Jeffrey F. Shapiro, M.D.

Approximately two years later, prior to the discovery end date and before trial was scheduled, counsel notified plaintiffs she intended to discontinue her representation because the evidence did not support a factual or legal basis to meet the required burden of proof. Apparently, plaintiffs' expert had advised he could not opine defendant was negligent. Counsel filed a motion to withdraw. On April 14, 2014, Dr. Shapiro formally issued a written opinion, stating "there does not appear to be a deviation from an acceptable standard of care." A second expert, with whom plaintiffs consulted, agreed there was "no evidence of malpractice outside the standard of care."

When these circumstances were explained, the judge extended the discovery end date for sixty days, to allow plaintiffs to obtain a new expert and, possibly, new counsel. Counsel's motion to withdraw was denied.2 Trial was scheduled for two months following the extended discovery end date.

Counsel again moved to be relieved, which was opposed by plaintiffs. Defendant also moved for summary judgment. By the return date, the motion record reflects plaintiffs consulted a new attorney and paid for a new expert to evaluate the medical records and opine on the issue of professional negligence. However, new counsel had not formally filed a substitution while awaiting the expert's evaluation. Plaintiffs also insisted defendant withheld, from requested discovery, a post-operative x-ray film taken in his office. The judge continued the motions for two weeks, instructing she would consider whether to dismiss plaintiffs' complaint on the continued date and emphasized it was critical for plaintiffs to present information from an attorney and expert.

When the matter was heard, plaintiffs explained a new expert was hired, but his report was not yet secured because he requested to review x-ray films held by Saint Michaels, which supplied only the radiology reports. No document was provided by the new expert and plaintiffs could not articulate why these films were necessary for the expert to render an opinion. Further, new counsel, with whom plaintiffs were consulting, did not appear. Concluding plaintiffs had no expert evidence of malpractice, the judge granted defendant's motion for summary judgment. The resultant order dismissed plaintiffs' complaint.

Plaintiffs, who were self-represented, timely moved for reconsideration. The certification filed in support of the motion averred Michael C. Raklewicz, M.D., concluded his examination September 3, 2014 and attached his nine-page report. The report identified "two errors, which were substandard care" in performing the surgery. Plaintiffs also related what transpired, requiring them to obtain Dr. Raklewicz after learning the expert identified during the summary judgment hearing was unqualified to opine on the specific orthopedic surgery performed. New counsel filed his notice of appearance.

Defendant opposed reconsideration, outlining the procedural history of the matter discussed above. Defendant emphasized Dr. Raklewicz was retained before the August 22, 2014 summary judgment hearing, but plaintiffs failed explain the status of the proposed expert's opinion or their delay in obtaining his report at that time.

The motion was not heard until January, 2015. In her review, the judge determined plaintiffs could and should have obtained the expert's report earlier. She noted the expert, who was consulted prior to dismissal, rendered an opinion without reviewing the missing x-ray films, therefore no new evidence came to light. She denied reconsideration in a January 23, 2015 order. This appeal was filed on February 12, 2015.

Reconsideration is "a matter within the sound discretion of the court, to be exercised in the interest of justice." Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990)). Governed by Rule 4:49-2, reconsideration is appropriate for a "narrow corridor" of cases in which either the court's decision was made upon a "palpably incorrect or irrational basis," or where "it is obvious that the Court either did not consider, or failed to appreciate the significance of probative, competent evidence." Ibid. (quoting D'Atria, supra, 242 N.J. Super. at 401).

The judge's discretion is also implicated by the right to manage the orderly progression of cases. Castello v. Wohler, 446 N.J. Super. 1, 25 (App. Div. 2016) (quoting Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 488 (App. Div.), certif. denied, 165 N.J. 607 (2000)). We generally defer to a trial judge's discretionary dispositions unless convinced "the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." Ibid. (quoting Rivers v. LSC P'ship, 320 N.J. Super. 68, 80 (App. Div.) certif. denied, 165 N.J. 607 (2000)); see also Santos v. Estate of Santos, 217 N.J. Super. 411, 415 (App. Div. 1986) ("Where a question which calls for the exercise of judicial discretion is properly presented, it is the duty of the court to consider and determine that question so that the rights of the parties may be fairly protected in an orderly manner." (citation omitted)). An abuse of discretion "arises when a decision is 'made without a rational explanation, inexplicably departed from established policies, or rested on an impermissible basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. Immigration & Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

As plaintiffs correctly point out, their failing was procedural, inasmuch as they did not obtain a new expert within the relatively short time-frame allowed by the judge to do so. The inability to comply resulted in a dismissal of their complaint.

When reviewing circumstances such as those presented, a judge must consider the basis for noncompliance, the prejudice to other parties, and alternative available remedies that address prejudice caused by delay. See Estate of Santos, supra, 217 N.J. Super. at 414 ("To assure that justice not be delayed, we must efficiently manage the litigation calendar while simultaneously affording litigants and their attorneys adequate time to prepare and try their cases."). The ultimate objective must be tempered with this timeless policy expressed by our Supreme Court

[C]ourts exist for the sole purpose of rendering justice between parties according to law. While the expedition of business and the full utilization of their time is highly to be desired, the duty of administering justice in each individual case must not be lost sight of as their paramount objective.

[Allegro v. Afton Village Corp., 9 N.J. 156, 161 (1952).]

The circumstances presented here show that two weeks before the May 14, 2014 discovery end date plaintiffs' expert retracted his initial opinion, upon which their complaint was grounded. In light of this event, counsel sought to be relieved. It appears plaintiffs reacted and located a new attorney who identified a possible expert. When summary judgment was first considered, plaintiffs stated they paid the new expert to review the medical files. No evidence shows plaintiffs delayed in rendering payment to the expert, rather the uncontroverted facts show the expert was not qualified. Unfortunately, Mrs. Jovanovic suffered a serious illness, requiring her hospitalization and recuperation. It was then learned the potential expert was not qualified to opine regarding the standard of care relative to partial knee replacement surgery at issue, resulting in the commencement of a new expert search. Plaintiffs located Dr. Raklewicz and paid his requested review fee, prior to the summary judgment motion.

Plaintiffs' original counsel, who remained of record and appeared for the summary judgment motion hearing, seemed uninvolved in engaging the new expert. During the hearing, she did not identify the expert or advise of the status of plaintiffs' search. This left the impression plaintiffs' claim could not be supported. With no explanation for the failure to provide an expert report, the motion judge summarily dismissed the complaint.

The facts show, however, Dr. Raklewicz expeditiously reviewed the available records, examined Mrs. Jovanovic, and opined on whether the standard of care was properly followed. Ironically, the judge's review of plaintiffs' motion for reconsideration was delayed for nearly the same period she gave plaintiffs to locate a new expert and provide a report.

Following our review, we conclude the judge abused her discretion. Once plaintiffs' timely moved for reconsideration, demonstrated an expert was retained and a report issued to support their claims, the judge should have considered plaintiffs' explanation regarding circumstances causing their inability to meet the prior deadline and weighed whether defendant suffered prejudice by the delay and whether the harm, if any, could otherwise be compensated. The ultimate sanction of dismissal was not appropriate. See Kent Motor Cars, Inc. v. Reynolds and Reynolds, Co., 207 N.J. 428, 447 (2011) (holding dismissal only should be used sparingly); Zaccaridi v. Becker, 88 N.J. 245, 253 (1982) (same).

The record does not support a finding that plaintiffs themselves created or caused delay in retaining a new expert. Nor can we agree with the notion Dr. Raklewicz should have rendered a report sooner. We cannot ignore that the expert opinion required involves a meticulous review of sophisticated evidence by a highly qualified medical professional, who met all specialized requisites to render an opinion regarding the standard of care governing defendant's conduct. To suggest the expert should have been located quicker and his review should have been rendered faster is specious.

Importantly, "there has been no showing of prejudice to [defendant] that would outweigh the strong preference for adjudication on the merits rather than final disposition for procedural reasons." Wohler, supra, 446 N.J. Super. at 26-27 (alteration in original) (quoting Mayfield v. Cmty. Med. Assocs., P.A., 335 N.J. Super. 198, 207 (App. Div. 2000)). Other than delay, including the additional twenty days from dismissal to the filing for reconsideration (which, incidentally, is compensable), defendant did not articulate an inability to present witnesses or evidence that would impede his ability to present his defense. See Baskett v. Cheung, 422 N.J. Super. 377, 384-85 (App. Div. 2011) (listing possible prejudices eroding a defendant's ability to defend an action).

In the interests of justice, we conclude the judge should have considered the efforts undertaken to secure Dr. Raklewicz to replace Dr. Shapiro and evaluated whether proven prejudice to defendant outweighed review of the merits of plaintiffs' claims. We conclude the judge's failure to do so rose to an abuse of discretion. The order is reversed and the matter remanded to the trial court for reinstatement of plaintiffs' complaint and further proceedings.

Reversed.

1 Pending appellate review, defendant Saint Michaels Medical Center filed a voluntary petition seeking protection under the United States Bankruptcy Code, staying legal proceedings against it. 11 U.S.C.A. 362(a).

2 The record does not contain the transcript from the April 25, 2014 motion hearing.