On appeal from Superior Court, Law Division, Hudson County.
Pressler, Baime and Ashbey. The opinion of the court was delivered by Baime, J.A.D.
[217 NJSuper Page 41] In this appeal, we are constrained to revisit an old but distasteful subject. At issue is the extent to which an attorney's gross dereliction of duty in failing to abide by our discovery rules is permitted to impact upon the rights of his client. We last explored this area in Johnson v. Mountainside Hosp., Resp. Disease Asso., 199 N.J. Super. 114 (App.Div.1985) and Jansson v. Fairleigh Dickinson University, 198 N.J. Super. 190 (App.Div.1985). The gist of our opinions in those cases was that "the sins or faults of an errant attorney should not [generally] be visited upon his client," Jansson v. Fairleigh Dickinson University, supra, 198 N.J. Super. at 194 and that dismissal of a complaint or exclusion of highly probative evidence should not ordinarily be ordered where some lesser
sanction will suffice to erase the prejudice suffered by the non-delinquent party. Johnson v. Mountainside Hosp., Resp. Disease Asso., supra, 199 N.J. Super. at 119. Applying those principles, we are obliged in this appeal to reverse the judgment in favor of defendants reflecting the jury's verdict of no cause of action and remand for a new trial.
The tragic events giving rise to this action occurred on April 14, 1982. On that date, plaintiff's decedent, Adolphus Mitchell, and six other inmates perished in a fire while locked in their dormitory cellblock at the Hudson County Jail. Apparently, the fire was set by a mentally disturbed prisoner. On May 31, 1983, plaintiff, as administratrix ad prosequendum and administratrix of Mitchell's estate, instituted a wrongful death and a survivorship action claiming that defendants were negligent in their administration of the jail. Thereafter, plaintiff dismissed her former attorney and retained present counsel.
Although the record submitted to us is far from complete, it plainly discloses the tortured history surrounding the pretrial discovery process. The desultory pace of disclosure resulted in several motions and orders. Plaintiff's answers to defendants' interrogatories, which apparently were prepared by her former attorney, were grossly inadequate. Among other deficiencies, plaintiff failed to disclose the names and addresses of expert witnesses. Pursuant to R. 4:17-5(c), defendants obtained an order compelling more specific answers, but plaintiff's present attorney blithely ignored that mandate. Based upon plaintiff's failure to abide by the order, the trial judge subsequently denied her motion to depose several of defendants' witnesses and to produce various documents.
The matter remained dormant until the pretrial conference on October 26, 1984. Unfortunately, those proceedings were not transcribed and the record is not entirely informative with respect to what transpired. Although plaintiff served amended answers to the interrogatories previously propounded, her attorney continued to flout the trial judge's prior order, and no
effort was made to disclose the identity of prospective expert witnesses. The trial judge thus entered a pretrial order, signed by both attorneys, restricting plaintiff's right to present expert witnesses at trial. The order provides that "[t]he only expert witness permitted [to be called by] plaintiff is the Hudson County Medical Examiner."
Trial commenced on December 14, 1984. Plaintiff offered Captain Alfred LaSala, supervisor of the arson unit of the Jersey City Fire Department, as an expert witness to testify regarding the origin and cause of the fire. In response to defendants' vigorous objection, the trial judge ruled that Captain LaSala would be allowed to testify only as a fact witness, and could not give opinion testimony. Notwithstanding the trial judge's repeated adjurations in open court and during the course of two side-bar conferences, plaintiff's attorney persisted in his attempt to elicit opinion testimony from the witness. Although counsel for defendants stated his objections with particularity and the judge meticulously explained the basis of his decision, plaintiff's attorney repeatedly protested that he did not understand the ruling and continued his interrogation. When plaintiff's attorney continued on this course, the trial judge found it necessary to declare a mistrial. The judge ordered that plaintiff not be permitted to present expert witnesses at the retrial other than in accordance with the pretrial order.
At the retrial before another judge, plaintiff was not allowed to introduce expert testimony concerning the cause and origin of the fire and the allegedly highly combustible qualities of the foam mattresses which had been issued to the prisoners at the jail. The judge refused to permit plaintiff to offer such evidence upon the basis that the prior orders constituted the law of the case. The jury rendered a verdict of no cause of action. Judgment was entered accordingly and this appeal followed.
Plaintiff assigns as error the judge's determination that the orders entered previously ...