JOHN DELLIGATTI v. SUMMIT OAKS HOSPITAL

NOT FOR PUBLICATION WITHOUT THE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-4374-18

JOHN DELLIGATTI,

          Plaintiff-Appellant,

v.

SUMMIT OAKS HOSPITAL,
AHS HOSPITAL CORP./OVER-
LOOK MEDICAL CENTER, 1
MEDICAL DEPOT, INC.,2
BRIGGS MEDICAL SERVICES
CORPORATION,3 and NOVA
ORTHO-MED, INC.,4

          Defendants,

and

INVACARE CORPORATION,

          Defendant-Respondent.

1
     Improperly pled as Overlook Medical Center.
2
     Improperly pled as Drive Medical Design and Manufacturing.
3
     Improperly pled as Health Smart International.
4
     Improperly pled as Nova Medical Products.
             Submitted February 3, 2021 – Decided February 23, 2021

             Before Judges Whipple, Rose and Firko.

             On appeal from the Superior Court of New Jersey, Law
             Division, Union County, Docket No. L-0539-18.

             Russell P. Trocano, attorney for appellant.

             Post & Schell, PC, attorneys for respondent
             (Christopher T. Chancler and Karyn Dobroskey Rienzi,
             on the brief).

PER CURIAM

      In this personal injury action, plaintiff John Delligatti appeals from an

April 26, 2019 Law Division order dismissing his second amended complaint

against defendant Invacare Corporation pursuant to Rule 4:6-2(e) for failure to

state a claim. When the action originally was filed, Invacare was not named in

the complaint, which instead named five entities, and fictitious defendants under

Rule 4:26-4.    Following expiration of the two-year statute of limitations,

 N.J.S.A. 2A:14-2, plaintiff learned Invacare's identity and was granted leave to

file and serve a second amended complaint naming Invacare as a defendant. The

motion judge found plaintiff did not exercise "due diligence" in identifying the

fictitious defendants prior to the expiration of the statute of limitations and after



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he learned Invacare's identity. As such, the judge granted Invacare's motion to

dismiss the second amended complaint. We affirm.

      Viewed in the light most favorable to plaintiff, Printing Mart-Morristown

v. Sharp Electronics Corp.,  116 N.J. 739, 746 (1989), we summarize the

pertinent facts chronologically to give context to plaintiff's efforts in

ascertaining Invacare's identity. Plaintiff was hospitalized at Summit Oaks

Hospital on February 10, 2016. The next day, 5 plaintiff fell while showering

when the shower chair he was utilizing collapsed. Plaintiff sustained injuries

requiring treatment at Overlook Medical Center.

      On February 9, 2018 – just prior to the expiration of the two-year

limitations period – plaintiff filed a ten-count complaint against defendants

Drive Medical Design and Manufacturing, Health Smart International, and Nova

Medical Products (collectively, manufacturer defendants); Summit Oaks

Hospital and Overlook Medical Center; and fictitious defendants denominated

as John Does 1-5, Jane Does 1-5, ABC Corporation[s] 1-5, DEF Corporation[s]

1-5 and XYZ Corporation[s] 1-5. Relevant here, plaintiff asserted negligence



5
  In his merits brief and initial complaint, plaintiff avers the accident occurred
on February 11, 2016. Plaintiff's amended complaints list that date and February
13, 2016 as the accident date. The discrepancy in the dates has no bearing on
our decision.
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and strict liability claims against the manufacturer defendants and the ABC,

DEF, and XYZ Corporations, contending they "designed, manufactured and/or

distributed" the shower chair that caused his accident.

      On June 20, 2018, in its responses to Nova Medical's discovery demands,

Summit Oaks identified Invacare as the manufacturer of the "Care Guard shower

chairs" utilized at its facility. Eight days later, plaintiff filed his first amended

complaint against the same entities and fictitious parties but did not name

Invacare as a defendant.

      Thereafter, Summit Oaks moved to dismiss plaintiff's complaint for

failing to respond to discovery demands. In conjunction with his January 22,

2019 opposition to Summit Oaks's motion, plaintiff moved for leave to add

Invacare as an additional party to his lawsuit. The accompanying certification

of plaintiff's attorney quoted Summit Oaks's response to Nova Medical naming

Invacare, without including the date of the disclosure.          Plaintiff's counsel

generally mentioned that information "was brought to [his] attention recently

during discussions and correspondence with [counsel for Summit Oaks]." On

January 25, 2019, the trial court granted both motions.          On the same day,

plaintiff voluntarily dismissed his claims against Health Smart and Drive

Medical.


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      On February 7, 2019, plaintiff filed his second-amended complaint

naming the same entities and Invacare as defendants.  6 On March 1, 2019, the

trial court granted Nova Medical's motion to dismiss plaintiff's complaint

against that entity for failing to provide discovery.

      Thereafter, Invacare moved to dismiss plaintiff's second amended

complaint, claiming plaintiff's claims were time-barred under the statute of

limitations.   During oral argument on April 26, 2019, Invacare contended

plaintiff failed to exercise due diligence in ascertaining Invacare's identity

before filing his complaint and "waited another full seven months before seeking

to join Invacare to this lawsuit." Accordingly, defendant contended plaintiff

was not entitled to the protections of the fictitious party rule.

      Plaintiff's counsel countered that dismissal would infringe upon the

"general precept" that his client was entitled to his "fair day in court." Plaintiff's

counsel told the judge he "requested [plaintiff']s medical records," but "was

unable to ascertain the identity of the chair [manufacturer]." But plaintiff's

counsel acknowledged he never requested that information from Summit Oaks

before he filed plaintiff's initial complaint. Instead, plaintiff's counsel located


6
  For reasons that are unclear from the record, plaintiff filed in the trial court
what purports to be an identical copy of his second amended complaint on
February 13, 2019.
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the names of the manufacturer defendants through an internet search and named

those entities because they were "three major local healthcare product

manufacturers."

      As to why it took seven months after learning Invacare's identity to move

to amend his complaint, plaintiff's counsel disclosed that his office "was going

through some staffing changes" and he had "a high volume of cases." Conceding

he had "no excuse that it took seven months," counsel argued "the client

shouldn't be made to suffer for that."     Plaintiff's counsel further asserted

Invacare was not prejudiced here, where "no witnesses . . . have died or are

otherwise unavailable."

      Following argument, the motion judge rendered a cogent oral decision

from the bench, granting Invacare's motion. In reaching his decision, the judge

found defendant failed to exercise due diligence prior to filing his initial

complaint and after he learned of Invacare's identity. Citing our decision in

Baez v. Paulo,  453 N.J. Super. 422 (App. Div. 2018), the judge determined

plaintiff failed to undertake any steps to ascertain the identity of the

manufacturer prior to filing his initial complaint and waited seven months after

Summit Oaks disclosed Invacare's identity in discovery. Recognizing he need

not reach the issue as to whether Invacare was prejudiced by plaintiff's delay,


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the judge nonetheless determined there existed "great prejudice" here, where the

chair no longer exists and the circumstances under which it was broken are

unknown. This appeal followed.

      On appeal, plaintiff reprises the arguments he asserted before the motion

judge. In a multi-part point heading, he claims he satisfied the mandates of the

fictitious pleading rule because he "was diligent in his efforts to discover

Inva[c]are's true identity as the manufacturer of the shower chair"; "Invacare

will not suffer undue prejudice by the delay in its inclusion to the lawsuit"; and

"courts may relax rules of procedure when rigid application would time bar an

otherwise meritorious claim." Plaintiff's contentions are unavailing.

      We review de novo the trial court's decision on a motion to dismiss a

complaint as barred by the statute of limitations. See Estate of Hainthaler v.

Zurich Commercial Ins.,  387 N.J. Super. 318, 325 (App. Div. 2006); see also

Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of Pittsburg,  224 N.J.
 189, 199 (2016) (expressing the well-settled principle that reviewing courts

afford no special deference to the legal determinations of the trial court when no

issue of fact exists). Accordingly, the trial court's "interpretation of the law and

the legal consequences that flow from established facts are not entitled to any




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special deference." Manalapan Realty, L.P. v. Twp. Comm. of Manalapan,  140 N.J. 366, 378 (1995).

      A party seeking to invoke fictitious party practice bears the burden of

demonstrating compliance with the Rule. See Giovine v. Giovine,  284 N.J.

Super. 3, 38 (App. Div. 1995) (Skillman, J.A.D., concurring and dissenting)

(citing Lopez v. Swyer,  62 N.J. 267, 276 (1973)) ("A party who seeks to avoid

the bar of a statute of limitations by invocation of the discovery rule or other

comparable doctrine has the burden of proof.").

      The fictitious party practice rule provides in relevant part:

            In any action, . . . if the defendant's true name is
            unknown to the plaintiff, process may issue against the
            defendant under a fictitious name, stating it to be
            fictitious and adding an appropriate description
            sufficient for identification. Plaintiff shall on motion,
            prior to judgment, amend the complaint to state
            defendant's true name, such motion to be accompanied
            by an affidavit stating the manner in which that
            information was obtained.

            [Rule 4:26-4.]

Accordingly, the Rule requires a plaintiff invoking fictitious party practice to

satisfy three requirements: (1) the plaintiff must not know the identity of the

defendant said to be named fictitiously; (2) the fictitiously named defendant




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must be described with sufficient detail to allow identification; and (3) the

plaintiff must provide proof of how it learned the defendant's identity. Ibid.

       Although not expressly stated in the Rule, the party invoking fictitious

party practice also must satisfy a fourth requirement:       the party must act

diligently in attempting to identify the defendant. Matynska v. Fried,  175 N.J.
 51, 53 (2002); Claypotch v. Heller, Inc.,  360 N.J. Super. 472, 479-80 (App. Div.

2003); Mears v. Sandoz Pharms., Inc.,  300 N.J. Super. 622, 629 (App. Div.

1997). Indeed, "[t]he purpose of the rule is to render timely the complaint filed

by a diligent plaintiff, who is aware of a cause of action against an identified

defendant but does not know the defendant's name."         Greczyn v. Colgate-

Palmolive,  183 N.J. 5, 11 (2005) (emphasis added); see also Pressler & Verniero,

Current N.J. Court Rules, cmt. 2 on R. 4:26-4 (2021). The amended complaint

substituting the real name of a fictitiously named party is said to "relate back"

to the date the complaint was originally filed. Claypotch,  360 N.J. Super. at
 480.

       As the motion judge correctly recognized, a plaintiff may invoke Rule

4:26-4 only if the plaintiff satisfies two phases of due diligence. "First, a

plaintiff must exercise due diligence in endeavoring to identify the responsible

defendants before filing the original complaint naming [fictitious] parties.


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Second, a plaintiff must act with due diligence in taking prompt steps to

substitute the defendant's true name, after becoming aware of that defendant's

identity." Baez,  453 N.J. Super. at 439; see also Claypotch,  360 N.J. Super. at
 480.

       Stated another way, a showing of diligence is a threshold requirement for

resort to fictitious party practice. See Matynska,  175 N.J. at 53 (referring to the

"due diligence threshold"); Claypotch,  360 N.J. Super. at 479-80 (stating that

defendant may use a fictitious name "only if a defendant's true name cannot be

ascertained by the exercise of due diligence prior to filing the complaint");

Mears,  300 N.J. Super. at 630 (among other things, a plaintiff's failure to act

with due diligence would "disregard considerations of essential fairness to [the]

defendant[,] thereby violating the purpose behind the statute of limitations").

       When the plaintiff has acted diligently, the absence of prejudice may

permit an amendment to serve the interests of justice and fairness. Farrell v.

Votator Div. of Chemetron Corp.,  62 N.J. 111, 122-23 (1973).              However,

"[t]here cannot be any doubt that a defendant suffers some prejudice merely by

the fact that it is exposed to potential liability for a lawsuit after the statute of

limitations has run." Mears,  300 N.J. Super. at 631; see also Claypotch,  360 N.J. Super. at 480 (recognizing prejudice to the defendant is "a crucial factor"


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as to "whether a plaintiff has acted with due diligence"). Nonetheless, the

absence of prejudice to the defendant does not necessarily imply that the

plaintiff has exercised due diligence.

      Applying these principles, we conclude plaintiff raises no issues on

appeal that warrant extended discussion.          R. 2:11-3(e)(1)(E).     We affirm

substantially for the sound reasons expressed by the motion judge. We add only

the following brief remarks.

      Plaintiff's reliance on our Supreme Court's decision in Farrell is

misplaced. In Farrell, the plaintiff was injured while cleaning an industrial

machine.  62 N.J. at 113. He did not know the identity of the builder of the

machine and named a fictitious defendant in his initial complaint. Ibid. After

the expiration of the statute of limitations, at a deposition, the plaintiff's attorney

learned that the name of the builder was adhered to the machine itself. Ibid.

Within a month, he moved to amend the complaint to name the builder as a

defendant. Id. at 114. The Court found "the plaintiffs[7] in good faith brought

their action expeditiously against the manufacturer under a fictitious name,




7
  The plaintiff's wife also filed a derivative claim for loss of consortium.  62 N.J. at 113.
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identified it by amendment as soon as they discovered its true name, and served

the amended complaint diligently thereafter." Id. at 122.

      By contrast in the present matter, plaintiff inadvertently discovered

Invacare's identity pursuant to discovery exchanged between Summit Oaks and

Nova Medical. And plaintiff waited seven months thereafter to move for leave

to add Invacare to his lawsuit. Simply put, plaintiff's lack of diligence was

solely responsible for the delay in filing a timely complaint against Invacare,

and, as a result, plaintiff neither is entitled to the protection afforded by Rule

4:26-4 nor relaxation of the Rule on equity grounds.

      Affirmed.




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