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Wolfe v. Malberg

October 27, 2000

JEFFREY WOLFE AND ROSANNA WOLFE, HIS WIFE, PLAINTIFFS-APPELLANTS,
v.
MARC MALBERG, M.D., ST. PETER'S MEDICAL CENTER, DANEK MEDICAL, INC. AND SOFAMOR DANEK GROUP, INC., DEFENDANTS-RESPONDENTS, AND NICOLE EINHORN, M.D., DEFENDANT.



Before Judges King, Kleiner and Coburn.

The opinion of the court was delivered by: Coburn, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted, September 27, 2000

On appeal from Superior Court of New Jersey, Law Division, Middlesex County.

In this medical malpractice action, the trial judge concluded that defendants' ability to engage in discovery was impeded by the conduct of both plaintiffs' attorney and their expert witness. He also held plaintiffs' attorney in contempt of court. In two orders dated October 6, 1999, the judge directed that plaintiffs' attorney pay $1,000 to the court for violation of a case management order; $10,800 to the court for improper objections at a deposition; $5,135.50 to defendants as reimbursement for counsel fees and costs incurred in participating in the deposition; and $1,000 to the court for contempt. In addition to those assessments, which total $17,935.50, the judge ordered that defendants would not be required to pay plaintiffs' expert's fees for the depositions, barred plaintiffs' liability expert from testifying, and, since plaintiffs could not prove their case without expert testimony, granted summary judgment to all defendants. Plaintiffs appeal. *fn1 We reverse.

I.

The trial judge found, while conducting a telephonically argued motion on July 29, 1999, that during a defense deposition of plaintiffs' expert witness, plaintiffs' attorney objected on fifty-four occasions in a manner that the judge concluded flagrantly violated R. 4:14-3(c). He did not specify in any instance why he believed the objection was improper, although from some of his comments it would appear that in general he believed the objections were designed to assist the expert in providing answers helpful to plaintiffs' case. He sanctioned plaintiffs' attorney "$200 for each of the 54 violations that defense counsel have alleged" for a total of $10,800. Without referring to any particular provision of the prior order, he found that plaintiffs' attorney "flagrantly violated [his] case management order" and he sanctioned plaintiffs' attorney $1,000. At another point, he said that plaintiffs' attorney had "violated the spirit of that case management order with [his] obstructionist tactics" and as far as he was concerned, "that was an outright violation of the case management order." The judge also found, again without specificity, that the depositions were "a farce and that defense counsel do not need to pay for them." Finally, because of the unspecified violation of the case management order, he dismissed plaintiffs' case.

During the argument of this motion, a dispute arose among counsel as to whether defendants had agreed to pay a particular fee to plaintiffs' expert in excess of that ordered by the judge. The judge determined that plaintiffs' attorney might have made a misrepresentation to the court on this issue during the telephonically argued motion, and, as a result, orally directed that he show cause on a subsequent date as to why he should not be held in contempt of court. The judge noted that "under the circumstances everybody deserves a chance to testify in front of [him] so that [he] can see them." (Emphasis added.)

On the subsequent date, September 7, 1999, the judge, conducting the hearing over plaintiffs' attorney's objection, elicited representations from counsel on both sides, and then, without taking any testimony, found that plaintiffs' attorney's version of what had transpired during his conversations with opposing counsel was untrue. He proceeded to hold the attorney in contempt and fine him $1,000 under R. 1:10-1.

Thereafter, counsel for defendants Sofamor Danek Group, Inc. and Danek Medical Inc. moved for counsel fees to reimburse them for the expenses incurred in the deposition of plaintiffs' expert. Without making any findings of fact, the judge entered an order requiring plaintiffs' attorney to pay these defendants' costs and counsel fees totaling $5,135.50.

II.

The judge erred in holding the attorney in contempt of court under R. 1:10-1. *fn2 Assuming for the moment that the attorney made a misrepresentation during the telephonically argued motion, a point that even the judge assumed could not then be determined, that conduct did not obstruct the proceedings. Therefore, subsection (a) of the rule was not satisfied. Furthermore, subsection (d) of the rule was not satisfied since immediate adjudication was not "necessary to permit the proceeding to continue in an orderly and proper manner[.]" The judge recognized that testimony would be required to establish whether a misrepresentation had been made, but in the subsequent hearing he took no testimony, relying instead on the unsworn representations of defense counsel. Since testimony was required, the judge would have had to proceed under R. 1:10-2, but he followed none of the procedures called for by that rule. Therefore, the order holding the attorney in contempt is reversed.

III.

We turn to the $1,000 fine for violating the "spirit" of the case management order and the $10,800 fine for unspecified but supposedly improper objections during the deposition of the plaintiffs' expert witness. The judge made these ...


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