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Febus v. Barot

Decided: November 19, 1992.


On appeal from Superior Court, Law Division, Camden County.

Antell, Skillman and Villanueva. The opinion of the court was delivered by Antell, P.J.A.D.


[260 NJSuper Page 323] In this medical malpractice action plaintiffs appeal from an order of August 23, 1991, granting defendant's motion for summary judgment. The trial court granted summary judgment

because plaintiffs had failed to appear in opposition to defendant's motion. On September 23, 1991, plaintiffs moved, under R. 4:50-1(a) and (f), for reconsideration*fn1 of the order, and argued that their failure to appear amounted to excusable neglect or, in the alternative, an exceptional circumstance. Plaintiffs explained that defendant's motion for summary judgment went unopposed because their attorney's secretary had made an error in diarying the hearing date. The trial court denied plaintiffs' motion for reconsideration on the ground that their explanation did not amount to excusable neglect or exceptional circumstances within the meaning of R. 4:50-1(a) and (f) or present a meritorious defense to the motion. Plaintiffs now appeal.

On December 3, 1987, defendant Lenora Barot (hereinafter "defendant") performed plastic surgery to correct stretch marks on the abdomen of plaintiff Isabel Febus (hereinafter "plaintiff"). According to plaintiff, before the procedure began, defendant told plaintiff that the only visible consequence of the operation would be a bikini scar over the pubic area. In her deposition, plaintiff stated that defendant told her that she

would have a swellingness of course and that it would take, some people take about a year to recover and that the incision would not show, it would be like a white line, because I specific [sic] asked about it, I said would the scar show and she says it will show for now but some people take about a year and a year went by.

Unfortunately, the operation apparently resulted in widespread disfiguration upon the surface of plaintiff's abdomen. She now has what she describes as extensive scarring extending from above the right leg in half-moon shape to an indentation at the navel and extending to the left side in half-moon shape for approximately six inches. She complains of pain in the scar area when exercising and numbness throughout the scar tissue.

Plaintiffs filed a two-count complaint on November 22, 1989. The first count alleges in general terms that defendant and others were negligent in the performance of surgery and therefore "did not provide medical care consistent with the appropriate standard of medical care." The second count asserts a demand for damages based upon the loss of consortium to Angel Febus, plaintiff's husband. On June 26, 1990, the court issued an amended scheduling order requiring plaintiffs to produce any and all expert reports on or before September 15, 1990. Plaintiffs did not comply with that order. On May 2, 1991, defendant moved for production of expert reports, and on May 31, 1991, an order was entered requiring plaintiffs to produce the names, addresses, qualifications and reports of any and all expert witnesses by July 15, 1991, "or thereafter be barred from introducing at trial any testimony or . . . report of any such expert witnesses."

Plaintiffs never complied with the May 31, 1991, order, and on July 23, 1991, defendant moved for summary judgment returnable August 23, 1991. By order of August 23, 1991, the motion was granted. Plaintiffs' motion for reconsideration was filed on September 23, 1991. The court, in an oral opinion, denied the motion for two reasons. First, as noted earlier, the court determined that the error in diarying the motion amounted neither to excusable neglect nor an exceptional circumstance. Secondly, the court denied the motion on the further ground that plaintiffs' failure to submit expert's reports prohibited them from proving their cause of action. On appeal, plaintiffs maintain that the trial court erred in finding that their attorney's neglect was not excusable and in determining that they would be unable to proceed with their cause of action without expert testimony.

We conclude that under the circumstances, the failure of plaintiffs' attorney to respond to the motion for summary judgment was not so egregious as to bar their right to relief from the order for summary judgment. Counsel's explanation

was that his secretary had erroneously diaried the motion for August 30 instead of August 23, 1991. He further explained that he had to be out of the country on business from August 22 to September 9, 1991. Therefore, when he realized the error he immediately mailed a letter request to the clerk's office on August 22 to reschedule the motion for a date subsequent to September 10, 1991. The letter request was accompanied by a request for oral argument. Under these circumstances, we conclude that the failure of plaintiff to defend the motion on August 23 amounted to excusable neglect pursuant to R. 4:50-1(a), since it was ...

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