The opinion of the court was delivered by: Todd, P.J.
Approved for Publication January 22, 2002.
This opinion deals with plaintiff's motion to bar the testimony of defendant Ingersoll's proposed bio-mechanical expert based on defendant's failure to identify that expert within the time provided in the rules governing discovery. In resolving that application it is necessary to address the standards and procedures governing requests to bar late amendments to answers to interrogatories based on the rule amendments effective in September 2000, commonly referred to as "Best Practices." This is an action for damages for personal injuries sustained by plaintiff in a motor vehicle accident which occurred in August 1998. The complaint was filed on June 14, 2000, asserting claims against defendant Ingersoll, the driver of the other vehicle involved in the accident, and Allstate Insurance Company.
The original discovery period was established based on the rules in effect prior to September 2000 under the differentiated case management program in effect in this vicinage. On that basis, discovery was permitted through February 2001. The time for discovery was then extended by formal order to May 15, 2001. That order was forwarded to counsel by letter dated February 9, 2001, specifically noting that any additional requests for an extension of the time for discovery would have to be presented by motion, consistent with Director Williams' Notice to the Bar of August 7, 2000. Notice to the Bar, 161 N.J.L.J. 530 (August 7, 2000).
On May 23, 2001, following the expiration of the extended discovery period, the court issued a notice scheduling the matter for arbitration July 17, 2001. There were no additional requests to extend the time for discovery either before or after the issuance of that May 23, 2001 notice. On July 9, 2001, plaintiff's counsel received the report of the expert at issue from defendant's attorney. That report was dated May 24, 2001, but was forwarded to plaintiff's counsel by letter dated July 3, 2001.
This application was filed by plaintiff's counsel July 12, 2001, five days prior to the arbitration asking that the court bar defendant from presenting the report of the testimony of the expert in question at arbitration or trial. Counsel requested the matter be considered on short notice before the scheduled arbitration. The court declined to deal with the matter on short notice. The matter proceeded to arbitration on July 17, 2001. A request for a trial de novo has been filed. The matter was scheduled for trial October 10, 2001. For the reasons noted below, plaintiff's application is granted.
In resolving this dispute, it is necessary to consider the effect of the rule amendments effective in September 2000 dealing with the discovery process, and particularly the amendments to R. 4:24-1, dealing with extensions of the time for discovery and R. 4:17-7, dealing with amendments to answers to interrogatories. In that context, a review of the rules and amendments effective in September 2000 is appropriate.
R. 4:24-1 deals with the time for discovery and the manner in which that time can be extended. Prior to September 2000, the rule provided for 150 days of discovery. That period could be extended for good cause. In vicinages subject to differentiated case management, longer periods of discovery were permitted based on track assignment. See the Bergen and Camden Differentiated Case Management Rules, previously reproduced with the appendices to the rules. The amended rule provides much more substantial time for discovery, again based on track assignments. It permits a sixty day extension of discovery by consent, and permits additional extensions for good cause, provided the application for an extension of time is returnable prior to the discovery end date. No extension of the time for discovery is permitted after an arbitration or trial date has been set absent a showing of exceptional circumstances. See R. 4:24-1(c). Those same standards should be applied in cases filed prior to September 2000, when the time for discovery expires after that date. See Director Williams' Notice to the Bar dated August 7, 2000. Notice to the Bar, supra.
The exceptional circumstances standard, now a part of R. 4:24-1, is new. It was designed to deal with the problems created when requests for discovery are presented out of time, creating the potential for delay. Those requests can result in substantial delay. That delay is particularly problematic given the extended discovery periods provided under the new rules. It impacts on the scheduling of arbitration and trial, a clear focus of "Best Practices." For those reasons, a much more substantial showing is required to justify an extension of discovery once a case has been scheduled for arbitration or trial. Compare Hartsfield v. Fantini, 149 N.J. 611, 619, 695 A.2d 259 (1997) and Wallace v. JFK Hartwyck at Oak Tree, Inc., 149 N.J. 605, 610, 695 A.2d 257 (1997) (an attorney's mistake cannot give rise to extraordinary circumstances capable of relaxing the thirty-day limitations period for filing a demand for a trial de novo after arbitration) Ricra v. Barbera, 328 N.J. Super. 424, 746 A.2d 68 (App. Div. 2000) (in the context of late filings, attorney carelessness does not qualify as exceptional circumstances) and Packaging Industries Ltd. v. Hayduchok, 94 N.J. Super. 494, 229 A.2d 261 (App. Div. 1967), cert. denied 50 N.J. 87, 232 A.2d 149 (1967) (good cause justifying extension of discovery proceedings was not shown by fact of substitution of counsel).
Rule 4:17-7 governs amendments to answers to interrogatories. Prior to September 2000, R. 4:17-7 provided as follows:Except as otherwise provided by R.4: 17-4(e), if a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than 20 days prior to the first date fixed for trial. Thereafter amendments may be allowed only for extraordinary or compelling reasons and to prevent manifest injustice, and upon such terms as the court directs. In no case shall amendments be allowed at trial where it appears that the evidence sought to be introduced was known to the party seeking such leave, more than 10 days prior to trial. [emphasis added]
That rule was also amended as a part of "Best Practices," effective in September 2000. As amended, R. 4:17-7 now provides as follows: Except as otherwise provided by R. 4:17-4(e), if a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than 20 days prior to the end of the discovery period, as fixed by the track assignment or subsequent order. Thereafter amendments may be allowed only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date. [emphasis added]
The amendment is specific and deals with the issue presented here. Amendments are to be served not later than 20 days prior to the end of the discovery period. In most cases, that will be well before the matter is listed for trial. (Most cases will be scheduled for arbitration approximately 60 days after the time for discovery has expired, and will then be listed for trial only if a demand for a trial de novo is filed. The parties will then have six to eight weeks notice of the initial trial date.)
The amended rule clearly applies to this dispute. The September 2000 amendment to Rule 4:17-7 is not limited to cases filed after September 2000. Compare R. 4:24-1(d). While R. 4:17-7 does not deal specifically with the manner in which these types of disputes should be brought before the court, the Conference of Civil Presiding Judges has suggested that the party objecting to a late amendment to answers to interrogatories has the burden of presenting the matter through the filing of a formal motion seeking to bar the amendment, when the amendment is accompanied by an appropriate certification of due diligence. Best Practices Cumulative Update, 175 N.J.L.J. 67 (July 2, 2001). In this case that certification was not provided, and one could legitimately suggest the amendment would have been disallowed at trial, even if this application had not been filed.
It is appropriate to treat the information at issue here as a proposed amendment to defendant's prior answers to interrogatories. Defendant had identified proposed expert witnesses in prior answers to interrogatories. This witness was subsequently identified in two ways. Defendant first identified the witness in question in a document captioned, "Defendant Joanne T. Ingersoll's More Specific Answers to Interrogatories," forwarded by letter dated May 15, 2001, the date discovery concluded under the terms of the order entered February 9, 2001. In addition, the report of the expert in question was provided in July 2001, well after the extended discovery period. Each of those submissions amended defendant's prior answers to interrogatories. Each submission was subsequent to twenty days prior to the discovery end date, the date referenced in R. 4:17-7. Neither submission contained the certification of due diligence required by R. 4:17-7. The defendant does not and apparently could not argue that she complied with the rule governing amendments to interrogatories, requiring the party seeking the amendment to "certify therein" that the information at issue was not reasonably available through the exercise of due diligence prior to the discovery end date.
Defendant opposed plaintiff's application, and has requested that the court permit the expert in question to testify at trial. The opposition submitted, however, did not address the standards discussed above in any meaningful fashion. As noted above, the report in question was dated May 24, 2001, but was forwarded to plaintiff's counsel by letter dated July 3, 2001. Defendant's counsel made no effort to explain that delay. Defendant's counsel also failed to explain the failure to obtain the report at ...