Opinion
DOCKET NO. A-1256-11T3
03-01-2013
MEKISHA JOHNSON and WALTER JOHNSON, JR., Husband and Wife, Plaintiffs-Appellants, v. JESSICA FALASCA, Defendant-Respondent.
Michael Confusione argued the cause for appellants (Hegge & Confusione, LLC, attorneys; Mr. Confusione, of counsel and on the brief). Walter F. Kawalec, III, argued the cause for respondent (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Kawalec, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Simonelli and Koblitz.
On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-6167-09.
Michael Confusione argued the cause for appellants (Hegge & Confusione, LLC, attorneys; Mr. Confusione, of counsel and on the brief).
Walter F. Kawalec, III, argued the cause for respondent (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Kawalec, on the brief). PER CURIAM
This matter involves a claim by plaintiff Mekisha Johnson that she sustained bodily injuries as the result of an automobile accident that occurred on December 18, 2007. The Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, governed plaintiff's claim, and required her to show that she suffered "a permanent injury within a reasonable degree of medical probability." N.J.S.A. 39:6A-8. Plaintiff appeals from the October 6, 2011 Law Division order, which barred her medical expert from testifying at trial, the expert's two reports and certification of permanency, and reports of her objective testing. The order also granted summary judgment to defendant and dismissed the complaint with prejudice. We affirm.
Plaintiff's husband, Walter Johnson, Jr. who filed a per quod claim, also appeals.
On February 8, 2008, plaintiff went to the Regional Orthopedic Professional Association (ROPA) for treatment for her injuries. Stuart Dubowitch, D.O. examined her, diagnosed her with soft-tissue injuries, and recommended "home stretching," "warm soaks" and the use of a lumbar support. Due to plaintiff's pregnancy, the doctor delayed any objective testing. In May 2008, plaintiff gave birth and returned to work that month. She was laid off from her job in March 2009, presumably for reasons unrelated to her injuries. She did not undergo any objective testing until 2011.
On December 8, 2009, plaintiff filed a complaint against defendant. The court assigned the case to Track II, with a 300-day discovery period. The court twice extended discovery for an additional 60 days, bringing the total discovery period to 420 days. During the discovery period, plaintiff served answers to Form A interrogatories. There is no evidence that she named an expert in her original interrogatory answers.
On March 8, 2010, Dr. Dubowitch re-examined plaintiff. On the same day, he wrote to Joseph White, D.O., plaintiff's primary care physician, diagnosing plaintiff with "[p]ersistent post[-]traumatic cervical, thoracic, and lumbar strain/sprain with myofasciitis with radicular symptomatology upper and lower extremities." He recommended physical therapy, and if plaintiff did not improve, a cervical and lumbar MRI and an EMG of her upper and lower extremities.
On June 25, 2010, Dr. Dubowitch re-examined plaintiff and recommended a cervical and lumbar MRI and an EMG of her upper extremities. Plaintiff did not undergo a lumbar MRI until March 8, 2011, a cervical MRI until April 30, 2011, and an EMG until June 22, 2011.
The lumbar MRI report showed no abnormalities.
On May 19, 2011, plaintiff's counsel retained I. David Weisband, D.O., who was affiliated with ROPA, as an expert. Counsel sent plaintiff's medical records to the doctor, including her cervical MRI report, and asked him to render an expert's report and permanency certification. Counsel did not amend plaintiff's interrogatory answers at that time to name Dr. Weisband as plaintiff's expert. Dr. Weisband examined plaintiff on May 24, 2011.
Discovery ended on June 6, 2011. On May 26, 2011, plaintiff's counsel filed a motion to extend discovery an additional 60 days, returnable after the discovery deadline. In his supporting certification, dated May 24, 2011, plaintiff's counsel only stated that an extension was necessary because plaintiff was scheduled to see Dr. Weisband on May 24, 2011 for a clinical evaluation and records review; plaintiff would thereafter schedule an EMG of her upper extremities; and the doctor needed time to review the EMG results and render a final narrative report. Counsel did not otherwise address the good cause factors set forth in Tynes v. St. Peter's Univ. Med. Ctr., 408 N.J. Super. 159, 169-70 (App. Div.), certif. denied, 200 N.J. 502 (2009).
The motion did not comply with Rule 4:24-1(c) because it was not made returnable until after the discovery deadline, and counsel did not append copies of all previous orders granting prior extensions.
Thereafter, on June 15, 2011, plaintiff's counsel served plaintiff's cervical MRI report on defendant's counsel. On June 16, 2011, plaintiff's counsel amended plaintiff's interrogatory answers to name Dr. Weisband as plaintiff's expert and served the doctor's expert report dated May 24, 2011. Counsel did not submit the certification of due diligence mandated by Rule 4:17-7.
Plaintiff claims that the cervical MRI report was served on May 9, 2011; however, a June 15, 2011 e-mail to defendant's counsel confirms that the MRI report was served that day.
In a June 24, 2011 order and oral decision, the trial judge denied plaintiff's motion, finding that plaintiff had engaged in dilatory conduct. The judge emphasized that the court had twice extended discovery, and plaintiff did not show she suffered a new injury or had a new complaint requiring a new evaluation. The court then scheduled the arbitration for August 8, 2011, and trial for October 31, 2011.
On August 2, 2011, plaintiff's counsel amended plaintiff's interrogatory answers to serve Dr. Weisband's permanency certification, and on August 8, 2011, he served plaintiff's EMG report. At the arbitration on August 8, 2011, plaintiff's counsel served a second expert report from Dr. Weisband, dated June 27, 2011.
On August 30, 2011, defendant filed a motion to bar Dr. Weisband's testimony at trial, his two reports and certification of permanency, and the cervical MRI and EMG reports. Defendant also sought summary judgment. Plaintiff opposed the motion but did not file a cross-motion to extend discovery or permit late service. In her opposing certification, plaintiff asserted that on July 28, 2010, her automobile insurance carrier said it would no longer pay for medical treatment related to the accident, and thus, she had to rely on her private insurance carrier. She then contacted Dr. White, who recommended a cervical and lumbar MRI. She alleged there was a significant delay in obtaining any objective testing due to "red tape" involved in the pre-certification process.
Plaintiff's March 2, 2011 deposition testimony is in direct contrast to her certification. During her deposition, she never mentioned any insurance problems; rather she testified that she had returned to work in May 2008 after the birth of her child and she "didn't have an opportunity to get [the objective testing] done then." She was then laid off in March 2009 and had the opportunity to undergo objective testing but did not do so. She admitted that her failure to obtain objective testing "was some fault of [her] own as well because [she] didn't understand what needed to be done."
In his opposing certification, plaintiff's counsel misrepresented to the court, as plaintiff continues to do in this appeal, that counsel did not know prior to the June 6, 2011 discovery deadline that Dr. Dubowitch had taken a medical leave from ROPA and that Dr. Weisband "took over as the [p]laintiff's medical expert and treating physician." The evidence reveals that on May 19, 2011, counsel had retained Dr. Weisband as plaintiff's expert, and counsel knew that plaintiff was scheduled to see the doctor on May 24, 2011.
In an October 6, 2011 order and oral opinion, a different judge granted defendant's motions. The judge found that plaintiff served Dr. Weisband's first report after the discovery end date, served the doctor's second report at the arbitration, submitted no certification of due diligence, and showed no exceptional circumstances justifying the extension of discovery or late service. The judge concluded that Rule 4:17-7 mandated the granting of defendant's motion to bar. Because plaintiff had no objective medical evidence to vault the verbal threshold, the judge granted summary judgment as well. This appeal from the October 6, 2011 order followed.
Plaintiff's notice of appeal does not include the June 24, 2011 order denying her motion to extend discovery. Thus, we reject her attempt to challenge that order in this appeal. Pressler & Verniero, Current N.J. Court Rules, comment 6 on R. 2:5-1(f)(1) (2013); 1266 Apt. Corp. v. New Horizon Deli, Inc., 368 N.J. Super. 456, 459 (App. Div. 2004). In any event, plaintiff's challenge lacks merit. In her motion to extend discovery she failed to address all of the factors set forth Tynes, supra, 408 N.J. Super. at 169-70, and did not establish good cause for the extension.
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On appeal, plaintiff contends that the judge erred in barring her expert's reports, permanency certification, and objective tests results, and the judge should have considered these documents despite their late service and denied summary judgment. We disagree.
Discovery in Track II cases must be completed within 300 days. R. 4:24-1(a). The parties may consent to a 60-day extension, but must file a motion if they seek a longer discovery period. R. 4:24-1(c)
During the discovery period, the parties may obtain discovery by written interrogatories. R. 4:10-1. The interrogatory may require the adverse party to disclose the names and addresses of each expert and furnish the experts' reports. R. 4:10-2(d)(1). In this case, plaintiff was required to answer Form A interrogatories. Interrogatory 23 required plaintiff to state the name and address of any and all proposed expert witnesses and attach the expert's written reports. Interrogatory Forms, Pressler & Verniero, Current N.J. Court Rules, Appendix II to R. 4:17-1 at 2519 (2013). There is no evidence that plaintiff named an expert in her original interrogatory answers. Even assuming she named Dr. Dubowitch as an expert, she was required to amend her interrogatory answers to change her expert to Dr. Weisband "not later than 20 days prior to the end of the discovery period, as fixed by the track assignment or subsequent order." R. 4:17-7. Thereafter, she could only amend if she "certifie[d] . . . 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." Ibid. (emphasis added).
Here, discovery ended on June 6, 2011. Plaintiff's counsel did not serve amended interrogatory answers, the cervical MRI and EMG reports, and the expert's two reports and permanency certification twenty days prior to the discovery end date. Counsel also failed to submit a certification of due diligence. Accordingly, Rule 4:17-7 mandated the barring of Dr. Weisband's testimony at trial, his reports and permanency certification, and the MRI and EMG reports.
In addition, plaintiff filed no cross-motion to extend discovery or permit late service, and we discern no abuse of discretion in the judge's refusal to consider Dr. Weisband's reports and permanency certification and the MRI and EMG reports. See Bldg. Materials Corp. of Am. v. Allstate Ins. Co., 424 N.J. Super. 448, 478 (App. Div.), certif. denied, 212 N.J. 198 (2012). The arbitration had already occurred and a trial date had been set by the time defendant filed her motion to bar and for summary judgment. Thus, Rule 4:24-1(c) precluded the judge from extending discovery or permitting late service absent a showing of exceptional circumstances. Id. at 479; see also Szalontai v. Yazbo's Sports Café, 183 N.J. 386, 396-97 (2005) (strictly construing Rule 4:24-1(c) to require an exceptional circumstance showing particularly after the arbitration had already occurred).
"[E]xceptional circumstances generally denote something unusual or remarkable. The moving party must demonstrate counsel's diligence in pursuing discovery, establish the essential nature of the discovery sought, explain counsel's failure to request an extension within the original time period, and show that the circumstances presented were clearly beyond counsel's control." Bldg. Materials Corp. of Am., supra, 424 N.J. Super. at 479. "'[W]here the 'delay rests squarely on plaintiff's counsel's failure to retain an expert and pursue discovery in a timely manner,' and the [above] factors are not present, there are no exceptional circumstances to warrant an extension.'" Ibid. (alteration in original) (quoting Rivers v. LSC P'ship, 378 N.J. Super. 68, 79 (App. Div.), certif. denied, 185 N.J. 296 (2005)).
There is nothing unusual or remarkable about this case. It is a simple AICRA case where plaintiff failed to act diligently in pursuing discovery during the discovery period, and where the circumstances surrounding her failure to timely complete discovery were clearly within her control. Plaintiff had more than sufficient time between the accident in December 2007 and the alleged termination of her automobile insurance coverage in July 2010 to obtain objective testing and serve the test results and an expert's report. She failed to do so without any good reason whatsoever. There were no exceptional circumstances warranting the judge's admission of plaintiff's untimely-served expert's report and objective test results.
Affirmed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION