JO ANN CATELLO ONELLO v. ULYSSES ISA

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3382-16T4

JO ANN CATELLO ONELLO,

           Plaintiff-Appellant,

v.

ULYSSES ISA and STATE
FARM FIRE AND CASUALTY
COMPANY,

           Defendants-Respondents,

and

JOHANNA VELAZQUEZ,

     Defendant.
____________________________

                    Argued December 11, 2018 – Decided January 10, 2019

                    Before Judges Hoffman and Geiger.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Bergen County, Docket No. L-2556-14.

                    Natalie A. Zammitti Shaw argued the cause for
                    appellant (Law Offices Rosemarie Arnold, attorneys;
                    Natalie A. Zammitti Shaw, on the briefs).
            Caesar D. Brazza argued the cause for respondent
            Ulysses Isa (Sponder & Sellitti, attorneys; Caesar D.
            Brazza, on the brief).

            Carl A. Mazzie argued the cause for respondent State
            Farm Fire and Casualty Company (Foster & Mazzie,
            LLC, attorneys; Carl A. Mazzie and Jennifer Sanyshyn,
            on the brief).

PER CURIAM

      Plaintiff Jo Ann Catello Onello appeals from a March 31, 2017 order

dismissing the complaint with prejudice following a jury verdict of no cause of

action, and a February 23, 2017 oral ruling barring Dr. Mark Berman from

testifying at trial. We affirm.

      On May 18, 2012, plaintiff and defendant Ulysses Isa were involved in a

motor vehicle accident when a vehicle owned by defendant Johanna Velasquez

and operated by Isa rear-ended plaintiff's vehicle while she was stopped in

traffic. Plaintiff declined medical treatment at the scene and was driven home

by her son. She later went to Valley Hospital, where she was treated in the

Emergency Department and released.

      Plaintiff continued to be treated for her injuries and submitted medical

bills to her own automobile insurance carrier, State Farm Fire and Casualty

Company (State Farm), to obtain personal injury protection (PIP) benefits. On


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                                       2 October 15, 2012, State Farm obtained an independent medical examination

(IME) from Dr. Mark Berman, an orthopedic surgeon, for purposes of

determining eligibility for PIP benefits. Dr. Berman opined plaintiff suffered

bilateral contusions to her knees, a possible medial meniscus tear to her left

knee, a left shoulder contusion with labral tear and rotator cuff tendonitis, and

an acute cervical sprain. In his report, Dr. Berman stated the injuries to the left

shoulder, cervical spine, right hip, and bilateral knees were causally related to

the accident. Dr. Berman further opined the bilateral knee contusions and acute

cervical sprain had resolved and that plaintiff had a pre-existing history of

fibromyalgia. He noted plaintiff had suffered an elbow injury in the past and

had a history of migraine headaches that were both unrelated to the accident.

Dr. Berman was not involved in plaintiff's treatment.

      Plaintiff, an attorney, filed a pro se complaint against Isa and Velazquez

on March 17, 2014, alleging defendants were negligent. Thereafter, plaintiff

retained counsel to represent her. Counsel filed an amended complaint on March

16, 2015. The amended complaint added State Farm as a defendant, and asserted

claims for underinsured motorist (UIM) coverage under a policy issued to

plaintiff by State Farm.




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      Plaintiff claimed the accident proximately caused left shoulder (torn

rotator cuff and biceps tendon), left knee (torn medial and lateral meniscus),

cervical (disc herniation at several levels), left elbow, right knee, and right hip

injuries. Plaintiff underwent three cervical fusion surgeries, two left shoulder

surgeries, and a left knee surgery.

      The parties conducted discovery. Plaintiff provided answers to Form A

and Supplemental Interrogatories and a series of amendments thereto.              In

response to question seventeen, plaintiff stated:

            We will be calling all parties to the action, their agents,
            servants, employees, all treating physicians,
            radiologists, X-rays, physical therapists . . . within the
            Answers to Interrogatories and depositions together
            with -- with any and all persons who shall be revealed
            by continuing discovery and investigation in this
            matter.

At no time during the course of discovery did plaintiff amend her answers to

interrogatories to name Dr. Berman as an expert witness. State Farm did not

retain Dr. Berman as an expert in this case and did not identify him as an expert

witness.

      In a February 18, 2016 letter, defense counsel forwarded the State Farm

PIP file to plaintiff's counsel, which included Dr. Berman's IME report. The

letter stated defendant's answers to interrogatories were to be deemed amended


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to the extent that defendant reserved the right to call as witnesses at trial any of

the medical providers named in the PIP file.

      Summary judgment as to liability was granted to plaintiff. Therefore, t he

trial was limited to damages, with proximate causation being the predominate

issue. Plaintiff was subject to the limitation on lawsuit option. Causation was

contested because plaintiff had been treated for some of her injuries, particularly

those deemed permanent, years prior to the accident.

      Plaintiff first gave notice she intended to call Dr. Berman as an expert in

her pretrial exchange submitted pursuant to Rule 4:25-7, which requires parties

to provide a list of all witnesses, seven days before the first scheduled trial date.

Pressler & Verniero, Current N.J. Court Rules, Appendix XXIII to R. 4:25-7(b),

www.gannlaw.com (2019). Although this disclosure occurred some five months

after the discovery end date, plaintiff notes the pretrial exchange was provided

considerably in advance of the actual trial due to trial adjournments unrelated to

the late notice.

      On the first day of trial, defendants moved to bar the testimony of Dr.

Berman because he was not named in discovery as a fact or expert witness. The

trial court conducted an N.J.R.E. 104 hearing, and ruled Dr. Berman was barred

from testifying. The trial court found that Dr. Berman was not identified as an


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expert witness during discovery. The court concluded that allowing Dr. Berman

to testify "would be akin to . . . trial by ambush." The court further concluded

the fact that Dr. Berman was utilized with regard to PIP benefit determinations

"does not automatically somehow make him available . . . as an expert witness

without being named" and affording the defense an ability to challenge or depose

him during discovery.

      The trial court found the decision in Bardis v. First Trenton Ins. Co.,  199 N.J. 265 (2009) analogous, and noted a PIP IME physician should not be

dragged into the tort action because of the chilling impact it would have on

insurance companies paying PIP and medical bills quickly going forward.

      The next day, plaintiff moved for reconsideration.         Relying on an

unpublished case, plaintiff argued defendants identified Dr. Berman as a

possible witness and submitted his IME report. Plaintiff noted that the defense

had attached the February 18, 2016 cover letter when it was transmitted the PIP

file, which stated: "please be advised that the defendants shall rely upon these

documents at the time of trial and the medical care providers identified therein

may be called to testify at the time of trial." The court denied reconsideration,

concluding Dr. Berman was not a medical provider for the plaintiff and did not




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provide any medical treatment to her. The court also noted "Rule 4:17 and the

other discovery rules apply to both parties in this matter."

      At trial, plaintiff presented the testimony of four experts: Dr. Robert

Traflet, a radiologist; Dr. Isa Esformes, an orthopedic surgeon; Dr. John Athas,

a radiologist; and Dr. Joshua Rovner, a spinal surgeon. Two of the experts

opined as to causation.

      Defendants presented evidence in support of their contention that

plaintiff's injuries were entirely pre-existing and not proximately caused by the

accident. The evidence included a 1997 slip and fall accident causing neck,

back, bilateral knee, and bilateral shoulder injuries, resulting in three surgeries.

The evidence also included a 2000 slip and fall accident causing neck, back,

right knee, and shoulder injuries. Defendants introduced MRI studies performed

in 2011, depicting degenerative disc disease throughout plaintiff's cervical

spine, and MRI studies performed in 2007, depicting degenerative changes in

plaintiff's lumbar spine.   Defendants also uncovered evidence that a spinal

surgeon had opined plaintiff may need cervical spine surgery long before the

accident.

      At the conclusion of the nine-day trial the jury issued a unanimous verdict

in favor of defendants. This appeal followed.


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      Plaintiff argues: 1) defendants' oral motion on the first day of trial to

exclude Dr. Berman's testimony was untimely; and 2) the trial court committed

a manifest abuse of discretion by barring Dr. Berman's testimony without any

finding of intent to deceive, surprise, or prejudice. We are unpersuaded by these

arguments.

      Appellate review of evidentiary rulings of a trial judge is limited. "[A]

trial court's evidentiary rulings are 'entitled to deference absent a showing of

abuse of discretion, i.e., there has been a clear error of judgment.'" State v.

Brown,  170 N.J. 138, 147 (2000) (quoting State v. Marrero,  148 N.J. 469, 484

(1997)).     Accordingly, "an appellate court should not substitute its own

judgment for that of the trial court, unless 'the trial court's ruling was so wide of

the mark that a manifest denial of justice resulted.'" Ibid. (quoting Marrero,  148 N.J. at 484).

      Rule 4:10-2(d)(1) permits a party through interrogatories to "require any

other party to disclose the names and addresses of each person whom the other

party expects to call at trial as an expert witness, including a treating physician

who is expected to testify . . . ." The experts so disclosed may be deposed as to

their opinions. R. 4:10-2(d)(2).




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      Rule 4:17-7, in turn, requires that amendments to answers to

interrogatories at least twenty days prior to the end of the discovery period.

Thereafter, amendments may be allowed:

            only if the party seeking to amend certifies therein that
            the information requiring the amendment was not
            reasonably available or discoverable by the exercise of
            due diligence prior to the discovery end date. In the
            absence of said certification, the late amendment shall
            be disregarded by the court and adverse parties.

            [R. 4:17-7.]

      Defendants propounded interrogatories on plaintiff requiring the

disclosure of her experts. Plaintiff did not name Dr. Berman as an expert in her

answers to interrogatories or in any amendment to those answers. Plaintiff did

not provide a certification of due diligence pursuant to Rule 4:17-7. Nor could

she, since plaintiff was aware of the IME performed by Dr. Berman and had

possession of his report long before the close of discovery.

      By failing to timely amend her answers to interrogatories, plaintiff's

untimely, informal attempt to amend her answers to interrogatories months after

the discovery end date, by first identifying Dr. Berman in her Rule 4:27(b)

pretrial exchange with defendants, was properly disregarded by the trial court

and adverse parties pursuant to Rule 4:17-7. The inclusion of Dr. Berman as an



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expert in the pretrial exchange, months after the end of discovery, did not cure

plaintiff's discovery violation.

      Plaintiff argues she did not intend to deceive, surprise, or prejudice

defendants. Even if the failure to name Dr. Berman as an expert was inadvertent,

it still surprised defendants by not putting them on notice of plaintiff's intention

to call him as an expert, thereby precluding them from deposing him as part of

pretrial discovery.

      The trial court correctly noted Dr. Berman was not a medical provider.

He provided no medical treatment to plaintiff, nor could he ethically as an

independent medical examiner. Consequently, the catch-all language used by

defense counsel in his February 18, 2016 letter did not apply to Dr. Berman.

      In addition, allowing plaintiff to call a PIP independent medical examiner

as an expert witness without appropriate disclosure during discovery in a

subsequent personal injury action has the potential to thwart the important

legislative goal of ensuring prompt payment of PIP medical benefits. See

Bardis,  199 N.J. at 278 (citing Caviglia v. Royal Tours of Am.,  178 N.J. 460,

467 (2004)). Insurers that pay PIP medical benefits "in the ordinary course

should do so safe in the knowledge that the evidence of that payment will not be

admissible in the event there is a civil suit, in order to avoid creating an incentive


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to decline payment." Id. at 280. While Bardis involved an attempt to call the

PIP insurer's employee, rather than an independent medical examiner, the same

rationale applies. As noted by the Court, "payment of PIP benefits for treatment

of an injury is irrelevant to the question of causation of that injury. " Id. at 269.

      We discern no abuse of discretion by the trial court, much less a manifest

abuse of discretion. The trial court properly barred Dr. Berman from testifying.

By doing so, plaintiff was not precluded from presenting evidence of the nature

and extent of her injuries and the proximate causation of those injuries through

the testimony of her four experts and the other evidence adduced during the trial.

Therefore, we detect no unfair prejudice to plaintiff.

      Affirmed.




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