[111 NJSuper Page 338] This is a medical malpractice action brought by infant plaintiff Elise Schlosser and her mother Jeanne Schlosser, who had been the patient of defendant Dr. Arthur Kragen prior and subsequent to the infant's birth. The suit is against Dr. Kragen, The Hospital Center at Orange and Dr. William Spencer, a member of the staff at The Hospital Center at Orange. The complaint, filed on December 7, 1966, alleges injury to plaintiffs resulting from the pre-natal and post-natal care given by defendants during the late Spring of 1965.
This matter comes before the court on a motion to restore this action to the active trial list. The complaint was dismissed on October 18, 1967 for failure to answer interrogatories pursuant to then R.R. 4:23-6(e) [now R. 4:23-5(a)].
On December 9, 1969 the attorneys for plaintiffs filed a notice of motion returnable December 19, 1969 to restore this action to the active trial list. The motion to restore was filed by the attorneys for plaintiffs more than 25 months after the order of dismissal. At the argument of the motion it was represented to the court that the main claim in the action was by an infant. The representation was made by Irwin L. Facher, attorney for defendant Dr. Arthur Kragen. This representation was not disputed by the attorney for plaintiffs. Upon that representation this court denied the application to restore the action to the active trial list since the infant could not have been prejudiced by the statute of limitations.
Subsequently, the attorneys for plaintiffs became aware that due to their inadvertence they had failed to advise the court at the hearing of December 19, 1969 that, in addition to the infant's claim, there was also a claim on behalf of an adult plaintiff. Plaintiffs' attorneys filed a new complaint on behalf of the adult and infant claimants. Defendants then moved to dismiss the claims of the adult plaintiffs on the ground that the claims were barred by the statute of limitations. Upon receipt of the motion to dismiss the adult claims, the attorneys for plaintiffs filed this motion to restore the original action to the active trial list. The motion to dismiss the claims of the adult plaintiffs has been adjourned pending the decision of his motion to restore the original action to the active trial list.
Preliminarily, it is to be noted that due to the confusion of the attorneys as to plaintiffs' respective claims, the court will consider this motion as though it were the original motion to restore filed on December 9, 1969. The court will consider the affidavits filed by all parties in connection
with the first motion and the affidavits and briefs filed in connection with the subsequent motion to restore which was returnable April 17, 1970.
The original court rule promulgated pursuant to the Constitution of 1947 providing for sanctions to be imposed for failure to answer interrogatories was Rule 3:37-4. On September 9, 1953 this rule became R.R. 4:27-4 [Now R. 4:23-4]. With certain amendments which are not relevant to the issues presently before this court, R.R. 4:27-4 remained in its original form until it was amended on August 13, 1964 to be effective September 9, 1964. The effects of the 1964 amendment will be discussed later in this opinion.
R.R. 4:27-4, adopted on September 9, 1953, provided:
If a party or an officer, director or managing or authorized agent of a party wilfully fails to appear before the officer within this State who is to take his deposition, after being served with a proper notice, or fails to serve answers to interrogatories submitted under Rule 4:23 after proper service of such interrogatories, the court on motion and notice may strike out all or any part of any pleading of that party, or dismiss the action or proceeding or any part thereof, or enter a judgment by default against that party, or take such other action as it deems advisable.
The implementation of this rule is discussed in Lang v. Morgan's Home Equipment Corp. , 6 N.J. 333 (1951). That case involved the failure of a defendant to make discovery. On plaintiffs' application to suppress the answer and dismiss the counter-claim, the trial court entered an order compelling defendant to make discovery. Under the rules then in effect, it was necessary for the aggrieved party to make formal application to the court, with notice to the adversary, in order to have sanctions imposed for failure to make discovery. After defendant again failed to make discovery, a further application to impose sanctions upon defendant was made by plaintiff. The trial court, while finding that defendant's conduct was not contumacious, entered an order dismissing the counterclaim and suppressing the
defenses. Defendant appealed, and the Supreme Court certified the appeal on its own motion. The Supreme Court, in reversing the trial court's order dismissing the counterclaim and suppressing the defenses, stated the necessity for providing for sanctions for failure to make discovery:
However, the Supreme Court further noted that
The dismissal of a party's cause of action, with prejudice, is drastic and is generally not to be invoked except in those cases where the order for discovery goes to the very foundation of the cause of action, Tsibikas v. Morrof , 5 N.J. Super. 306 (App. Div. 1949), or where the refusal to comply is deliberate and contumacious, Michigan Window Cleaning Co. v. Martino , 173 F.2d 466 (C.A. 6 th Cir. 1949). [at 339]
The Supreme Court stated that it did not wish to have the reversal of the judgment below to be construed as condoning defendant's actions. The reversal of the judgment was based primarily on the fact that the trial court expressly stated that defendant's conduct was not contumacious. Although the order suppressing the defenses was reversed, the Supreme Court stated (at 340): "Dilatory and obstructive tactics are not to be tolerated in preparation for trial any more than they would be at the trial itself."
The Lang decision clearly set forth the policy that discovery rules must be complied with. However, the decision also clearly set the tone that drastic sanctions should rarely be imposed. Because of the necessity of making a formal motion, with notice to the adversary, and the tone set by the Lang decision, the sanction of dismissal of a claim could ...