On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Michels, Petrella and Baime.
Plaintiff, Edward W. Johnson, individually and as executor of the last will and testament of Aurelia A. Johnson, deceased, appeals from an order of the Law Division that denied his motion to vacate prior trial court orders dismissing his complaint against defendants The Mountainside Hospital (Mountainside), Respiratory Disease Associates (Associates), Jack H. Dadaian, M.D. (Dadaian), Barry J. Weber, M.D. (Weber), Frank T. Vallario, M.D. (Vallario) and Puritan-Bennett Corp. (Puritan) in this medical malpractice and products liability action. At issue is whether the drastic sanction of dismissal should be visited upon plaintiff as a result of the gross inattention, carelessness and negligence of his attorney in prosecuting this matter.
The procedural history is not in dispute and is recounted briefly as follows. This action arises out of an incident which occurred on November 17, 1979 while plaintiff's decedent was a patient at Mountainside. Plaintiff's decedent had been placed on a respirator to assist her breathing and according to plaintiff some time on November 17, 1979 the respirator hose became disconnected and remained so for some period of time, causing decedent to sustain severe and permanent personal injuries and resulting in her death on May 7, 1980. On November 17, 1981 plaintiff, through his former attorney, John J. Cullen, Esq. (Cullen),*fn1 a member of the bar of New Jersey, instituted this
action against defendants Mountainside, Associates, Dadaian, Weber and Vallario, charging them with negligence and medical malpractice and against Puritan charging it with negligence in the manufacture, design, sale, delivery and maintenance of the respirator. Plaintiff also sued various fictitiously named manufacturers, retailers and repairmen in connection with the respirator used on decedent during her stay at Mountainside.
On or about December 24, 1981, Associates and Dadaian, Weber and Vallario served their answer upon plaintiff's attorney, denying generally the allegations of negligence and malpractice. At the same time they served plaintiff's attorney with interrogatories and a demand for expert reports. On January 26, 1982 Mountainside served its answer denying generally the allegations of the complaint and a few days earlier on January 13, 1982 had served plaintiff's attorney with interrogatories and a demand for expert reports. Puritan did not file an answer to the complaint but instead moved pursuant to R. 4:6-4 for a more definite statement as to the identity of the respirator involved and on February 11, 1982 the trial court ordered plaintiff to provide such a statement. On May 24, 1982 the trial court ordered plaintiff to answer Mountainside's interrogatories and demand for expert reports. This order further provided that in the event plaintiff failed to answer the interrogatories and supply the expert reports within the required time, Mountainside would have the right to move for an ex parte order dismissing the complaint.
On June 4, 1982, Puritan moved for and obtained an order of the trial court dismissing the complaint against it for failure to comply with the prior order of February 11, 1982 requiring plaintiff to file a more definite statement as to the identity of the respirator. And on July 6, 1982, the trial court pursuant to R. 4:23-5 and on an ex parte motion, dismissed the complaint against Mountainside.
Associates and Dadaian, Weber and Vallario, having previously requested answers to interrogatories and the production
of expert reports in letters of March 24, 1982 and May 7, 1982, moved for an order compelling the production of the answers and the reports. This motion, however, was withdrawn on the representation by Cullen that he would sign a consent order for the production of such material.
It was not until December 9, 1982 that counsel for Associates and the defendant doctors obtained the consent order. The order directed plaintiff to provide answers to the interrogatories on or before December 17, 1982 and to provide the names, addresses, qualifications and reports of all proposed expert witnesses on or before January 15, 1983. After plaintiff failed to answer the interrogatories, Associates and the defendant doctors moved to dismiss the complaint with prejudice, and on January 7, 1983 the trial court dismissed the action against them, but without prejudice. However, on March 1, 1983 after plaintiff failed to provide the expert reports as required, the trial court dismissed, with prejudice, the complaint as to Associates and the defendant doctors. At this point in time the complaint had been dismissed as to all parties with the exception of those fictitiously named.
On July 5, 1983, Cullen moved to vacate the order of dismissal as to Mountainside, serving answers to interrogatories along with his motion papers. The trial court granted the motion and conditionally restored the case to the trial calendar as against Mountainside so long as plaintiff served expert reports upon Mountainside on or before September 15, 1983. On October 31, 1983, after plaintiff served the expert reports on Mountainside, the trial court amended its prior order and actually restored the case to the active trial list as to ...