Opinion
DOCKET NO. A-1796-13T4
03-31-2016
DONALD WAMPLER, Plaintiff-Appellant, v. DENTAL HEALTH ASSOCIATES, P.A., DR. RUCHI BATRA and DR. SYED HUSSAIN, Defendants-Respondents.
Andrew M. Kusnirik, III, attorney for appellant. Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for respondent Dental Health Associates (Walter F. Kawalec, III, on the brief). Hardin, Kundla, McKeon & Poletto, attorneys for respondent Dr. Ruchi Batra (Mark S. Kundla, of counsel; Candice H. Rienzo, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Messano and Sumners. On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-19-12. Andrew M. Kusnirik, III, attorney for appellant. Marshall, Dennehey, Warner, Coleman & Goggin, attorneys for respondent Dental Health Associates (Walter F. Kawalec, III, on the brief). Hardin, Kundla, McKeon & Poletto, attorneys for respondent Dr. Ruchi Batra (Mark S. Kundla, of counsel; Candice H. Rienzo, on the brief). The opinion of the court was delivered by SUMNERS, JR., J.A.D.
Plaintiff Donald Wampler appeals a Law Division order denying his motion to extend discovery and granting defendants Dental Health Associates' (DHA) and Dr. Ruchi Batra's motions for summary judgment dismissing plaintiff's dental malpractice complaint. Having considered the parties' arguments in light of the record and applicable legal standards, we affirm.
I
We derive the following facts and procedural history from the record. Plaintiff's claim arises from dental care and treatment he received at DHA from May 2008 through November 2010. Dr. Syed Hussain initially treated plaintiff for veneers in May 2008. Dr. Hussain left the practice before plaintiff returned for additional dental work in May 2010, when plaintiff was dissatisfied with the initial veneers. Upon his return, plaintiff was treated by Dr. Batra, who replaced all of plaintiff's veneers with crowns. Plaintiff's last visit with Dr. Batra was on November 15, 2010.
On December 30, 2011, plaintiff filed a complaint against defendants alleging dental malpractice. Over two years later, defendants deposed plaintiff on January 30, 2013. Although plaintiff noticed Dr. Batra's deposition for the same date, plaintiff's counsel adjourned the deposition. Plaintiff neither sought to re-schedule Dr. Batra's deposition nor conducted any further discovery before the discovery end date on May 31, 2013.
On or about July 16, 2012, presumably based on a motion to dismiss in lieu of an answer, although no order was provided by the parties, plaintiff's claim against Dr. Hussain was dismissed from the matter because he was not sued individually within the two-year statute of limitations pursuant to N.J.S.A. 2A:14-2(a). However, the cross-claims against Dr. Hussain remained open. --------
One week prior to the discovery end date, plaintiff filed a motion to extend discovery pursuant to Rule 4:24-1 in order to "obtain and provide defendants [with] [p]laintiff's dental expert report" and also to "take the defendants depositions . . . ." Plaintiff's counsel certified that "all records to date have been provided to [p]laintiff's expert," Dr. Kenneth Kurtz, D.D.S., who had authored the previously submitted affidavit of merit, and that plaintiff was merely "awaiting the provision of a report." On June 21, 2013, the motion court, over defendants' opposition, extended discovery one hundred and twenty additional days to October 21, 2013.
For reasons that are unclear, it was not until a letter to defense counsel dated October 17, 2013, four days before the new discovery end date, that plaintiff requested Dr. Bata's and Dr. Hussain's availability for deposition within the next sixty days. The next day, plaintiff filed a second motion per Rule 4:24-1, identical to his first motion, seeking to extend the discovery end date "an additional 90 days to conduct further depositions and obtain and provide defendants [p]laintiff's dental expert report . . . ." Plaintiff's counsel's certification in support of the motion provided that "certain additional information is in the process of being provided" and Dr. Kurtz's final report was expected "within [thirty] — [forty-five] days from the date hereof." The motion was returnable November 8, 2013, after the second discovery end date.
Defendants opposed the motion. Additionally, on October 23, 2013, Dr. Batra filed a motion for summary judgment on the grounds that plaintiff provided no expert report opining that Dr. Batra was negligent. DHA followed with a similar motion. Plaintiff opposed both motions. No arbitration or trial date had yet to be assigned at that time.
On November 13, 2013, twenty-three days after the discovery end date, plaintiff served Dr. Kurtz's expert report on defendants by way of amendment to his interrogatory answers, per Rule 4:17-7. Included with the report was plaintiff's counsel's certification that the information required to complete the expert report was not reasonably available or discoverable prior to the discovery end date due to plaintiff's recent medical treatment. However, this assertion was contradicted by the expert report which reflected that the date of the most "recent medical treatment" was January 21, 2012 - a little over one month after plaintiff initially filed the complaint.
On November 22, 2013, a different motion judge heard oral argument on plaintiff's motion to extend discovery and defendants' motions for summary judgment. The judge directly asked the associate of plaintiff's counsel, who appeared at argument, what had prevented Dr. Kurtz from producing his report at any time prior to, or even after, the first discovery extension in June, since Dr. Kurtz had all of the necessary documents the previous year, and plaintiff's deposition was the only discovery that occurred after plaintiff filed his claim. The associate responded, "since probably the end of August, maybe beginning September, we've been - [plaintiff's counsel] has been working with Dr. Kurtz through e-mails, telephone calls, to fine tune his report." When furthered questioned about the delay in providing the report in light of the fact that plaintiff was using the same expert for both the affidavit of merit and the expert's report, the associate reiterated that "since the end of August, beginning of September there's been a flurry of activity, e-mail, telephone calls," between his office and Dr. Kurtz "to fine tune" the report, which had been returned for Dr. Kurtz to address "other issues that would come up." Finally, in response to the court's question as to what discovery had occurred from January 2013, to the flurry of activity in August or September 2013, counsel replied: "Could have been a financial situation, I don't really know."
Finding that "there's been absolutely no showing of good cause" to support plaintiff's motion to extend discovery, see Rule 4:24-1, the court denied the motion. In doing so, the court commented,
. . . there's been absolutely no showing of good cause.
As I said, nobody's certified and I appreciate that in terms of -- because we want people to be truthful that we couldn't get an expert, we had this expert, he had a conflict, he was sick, whatever reason, there is nothing, okay. [Dr.]Kurtz -- and you don't have to use him -- but you have to produce an expert and [the initial motion judge] gave specific time frames and that was the reason why he extended the discovery end date from the end of May until October 21st, and here we are November 22nd and there's been really no efforts made to comply, that I can see, with those time frames and no reason why they couldn't have been complied with.
In turn, the court granted defendants' summary judgment, finding that plaintiff had not submitted an expert report supporting claims of negligence by the close of discovery. Plaintiff appealed both decisions.
II
The crux of the appeal is whether the trial court abused its discretion in denying a second extension of time for plaintiff to serve its expert report and conduct depositions of Doctors Batra and Hussain. If the court did not, plaintiff cannot prove his malpractice claim. If the court erred in denying a second extension of discovery, then genuine issues of fact exist precluding summary judgment.
We begin by acknowledging the well-established principle that "decisions of trial courts" on discovery matters are upheld unless they constitute an abuse of discretion. Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011). Accordingly, a reviewing court "generally defer[s] to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of applicable law." Ibid. (quoting Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005)) (emphasis added). In that regard, "[t]he right of a trial court to manage the orderly progression of cases before it has been recognized as inherent in its function." Casino Reinvestment Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 488 (App. Div.), certif. denied, 165 N.J. 607 (2000). Thus, the trial court is authorized to fix "the timing for service of experts' reports." Id. at 489.
In accordance with Rule 4:24-1(c), on "good cause . . . shown," discovery extensions are granted where there is no scheduled trial or arbitration date and no showing of prejudice to the other party. Leitner v. Toms River Reg'l Schools, 392 N.J. Super. 80, 93 (App. Div. 2007); Ponden v. Ponden, 374 N.J. Super. 1, 9-11 (App. Div. 2004), certif. denied, 183 N.J. 212, (2005). The rule was part of the substantial procedural changes to New Jersey's litigation practices in 2000 that resulted in the "Best Practices" rules. Bender v. Adelson, 187 N.J. 411, 426 (2006). These rules lengthened the initial discovery periods and made "it substantially more difficult to obtain extensions and [to provide] amendments [to discovery responses] once discovery has ended and a trial or arbitration date is set." Ibid.
We have recognized that, "[u]nder Leitner, we must first consider the reasons that plaintiffs offered for the requested discovery extension and whether plaintiffs were diligent in pursuing discovery earlier in the case." Tynes v. St. Peter's Univ. Med. Ctr., 408 N.J. Super. 159, 170 (App. Div.), certif. denied, 200 N.J. 502, (2009) (citing Leitner, supra, 392 N.J. Super. at 87). The standard of good cause is flexible; typically courts consider a number of factors in this evaluation. Leitner, supra, 392 N.J. Super. at 87-88. These include:
(1) the movant's reasons for the requested extension of discovery;
(2) the movant's diligence in earlier pursuing discovery;
(3) the type and nature of the case, including any unique factual issues which may give rise to discovery problems;
(4) any prejudice which would inure to the individual movant if an extension is denied;
(5) whether granting the application would be consistent with the goals and aims of "Best Practices";
(6) the age of the case and whether an arbitration date or trial date has been established;
(7) the type and extent of discovery that remains to be completed;
(8) any prejudice which may inure to the non-moving party if an extension is granted; and
(9) what motions have been heard and decided by the court to date.
[Ibid.]
Appeals from discovery rulings have depended on weighing these or similar factors, and appellate courts have repeatedly stated that each case must be decided on its own facts, subject to the abuse of discretion standard of review. See Bender, supra, 187 N.J. at 428 (finding no abuse of discretion in trial court's ruling barring expert testimony because of late discovery); Leitner, supra, 392 N.J. Super. at 93 (reversing the trial court's denial of an initial, routine discovery extension as a mistaken exercise of discretion, despite plaintiffs' lack of diligence in pursuing discovery, where no trial or arbitration date had been set and where defendants could not show prejudice); Rivers, supra, 378 N.J. Super. at 79-81 (finding no abuse of discretion in denial of discovery extension "where the 'delay rests squarely on plaintiff's counsel's failure to retain an expert and pursue discovery in a timely manner'") (quoting Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463, 473-74, (App. Div.), rev'd on other grounds, 185 N.J. 290 (2005)); Huszar, supra, 375 N.J. Super. at 471-74 (affirming trial court's ruling denying an extension of discovery where plaintiffs' attorney had not pursued discovery diligently and where the discovery period had already ended); Casino Reinvestment Dev. Auth., supra, 332 N.J. Super. at 488-90 (in a condemnation case, finding no abuse of discretion in the trial court's denial of a motion to extend time for supplemental appraisal reports).
Applying these principles, we are not persuaded that the trial court abused its discretion. After plaintiff did not complete discovery within the initial period of 450 days, the court granted his motion to extend discovery. Plaintiff was given an additional 120 days to provide an expert's report as well as conduct depositions of Doctors Batra and Hussain. However, plaintiff did not complete any of the outstanding discovery within the extended time allowed, and again moved for the identical relief that he had previously been granted.
Not only was plaintiff's motion untimely, as it was not returnable prior to the discovery end date, but there was no apparent reason beyond plaintiff's control that prevented him from completing discovery by the extended end date. At the time plaintiff initially moved to extend discovery, it was represented to the court that Dr. Kurtz had all the records necessary to issue his report. Yet, approximately five months later at oral argument for his second discovery extension request, plaintiff gave an explanation lacking any reason why an expert report was not timely filed. There was also a vague response that there might be financial reasons for the untimely submission of the report.
Further, the representation that Dr. Kurtz's report could not be provided due to plaintiff's recent treatment was contradicted by the fact that the record reflects plaintiff's last treatment took place twenty-two months earlier. In fact, no explanation has been given as to why the depositions were not conducted. Moreover, defendants' conduct did not delay or impede plaintiff's ability to complete discovery.
We recognize that denying plaintiff's motion to extend discovery resulted in his inability to provide an expert report which, for the reason set forth below, is essential to substantiate his malpractice claim. We also acknowledge that at the time the motion was denied, a little less than two years had transpired. Nevertheless, under the circumstances, we conclude that plaintiff's explanation falls far short of establishing good cause to extend discovery a second time, and that the trial court acted within its discretionary authority per Rule 4:23-1(c) in denying plaintiff's second motion.
Having reached that conclusion, we need not discuss extensively the court's order granting summary judgment to defendants. We review a ruling on a motion for summary judgment de novo, applying the same standard governing the trial court. Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 405 (2014) (citations omitted). Thus, we consider, as the motion judge did, "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Id. at 406 (citation omitted). "If there is no genuine issue of material fact, we must then decide whether the trial court correctly interpreted the law." DepoLink Court Reporting & Litig. Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citation omitted). We review issues of law de novo and accord no deference to the trial judge's legal conclusions. See Nicholas v. Mynster, 213 N.J. 463, 478 (2013) (citations omitted).
"To prove medical malpractice, ordinarily, 'a plaintiff must present expert testimony establishing (1) the applicable standard of care; (2) a deviation from that standard of care; and (3) that the deviation proximately caused the injury.'" Ibid. (quoting Gardner v. Pawliw, 150 N.J. 359, 375 (1997)). This is not a situation where plaintiff contends that the common knowledge doctrine, foreclosing the need for expert testimony, would apply. See Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387, 394 (2001) ("The doctrine applies where 'jurors' common knowledge as lay persons is sufficient to enable them, using ordinary understanding and experience, to determine a defendant's negligence without the benefit of the specialized knowledge of experts.") (citation omitted).
Although the court did not state conclusions of law in accordance with Rule 1:7-4, to avoid unnecessary litigation delay, we conclude that it was appropriate to grant summary judgment. See Pressler & Verniero, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2014) (citing Leeds v. Chase Manhattan Bank, N.A., 331 N.J. Super. 416, 420-21 (App. Div. 2000) (affirming summary judgment even though order merely stated "denied")). Here, the legal issue is clear. An expert's report is required to establish a prima facie case of dental malpractice, and plaintiff failed to timely produce any report. The judge properly granted defendants summary judgment.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION