On certification to the Superior Court, Appellate Division.
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
The sole issue raised in this medical malpractice-wrongful death case is whether the complaint should have been dismissed because of the unavailability of plaintiff's medical expert, Dr. Aiden J. Doyle, a board-certified neurosurgeon. The complaint was filed in September of 1995. The essence of the complaint was that Drew J. Kosmowski was admitted to Atlantic City Medical Center and came under the care of the defendants in 1993; they were negligent in diagnosing and treating Kosmowski and Kosmowski died as the result of their negligence.
In September 1999, the trial judge notified plaintiff's counsel, Richard Simon, that he had been assigned to the case, that the case was scheduled to be tried on July 10th and that this was a peremptory trial date that would not be adjourned. In January of 2000, Simon requested that the trial date be adjourned to September because the discovery schedule was running late. The trial judge denied the request, stating there was no reason to carry the six- year-old matter any longer. Simon wrote again to request an adjournment, this time stating the reason for the request was to attend his family's scheduled reunion in Tennessee in July to celebrate his grandmother's 90th birthday. The judge again denied the request. Eventually, the judge rescheduled the trial for February 2001.
The judge's chambers contacted counsel to make certain everyone was ready for the February 5th trial. On February 2, 2001, Simon spoke to Dr. Doyle's wife, learned that he was in Europe and she was not aware of the exact date he was scheduled to return. On the morning of February 5th, Simon spoke to Dr. Doyle by telephone and learned that he had returned from Europe and was in Baltimore. Dr. Doyle advised that he was unavailable during the week of February 5th because he had commitments in North Carolina and Philadelphia. He told Simon that he would be available during the latter part of the next week. After Simon spoke with Dr. Doyle, he sought an adjournment. Simon told the judge that he found out on Friday that Dr. Doyle was in Europe and was not going to be available for two weeks but did not advise the judge of his telephone conversation with Dr. Doyle. Simon advised the judge that he could not proceed without an expert and Kosmowski's complaint was dismissed with prejudice.
On February 6, 2001, a defense attorney's secretary called Dr. Doyle in connection with another case. Dr. Doyle answered the telephone and said he had returned from Europe. Another hearing was held in March. When Simon was asked by the judge whether he had told the court that Dr. Doyle was unavailable because he was in Europe, Simon denied that he had made such a representation. The judge indicated that he would not have dismissed the case if he had been informed by Simon on February 5th that his expert was unavailable because he was in another state. The judge stated that he would have adjourned the case and ordered Simon to pay all expenses to videotape the expert or, in the alternative, would have made trial arrangements to allow Simon to present his expert. The trial judge did not reinstate the dismissed complaint following the rehearing.
The Appellate Division affirmed, finding no abuse of discretion primarily because Simon's lack of candor deprived the court of an opportunity to make arrangements to accommodate plaintiffs' expert.
The Supreme Court granted Kosmowski's petition for certification.
A-144-01 Kosmowski v. Atlantic City Medical Center, et al. 2.
HELD: This matter is remanded to the trial court to consider whether restoration of the complaint would cause any prejudice to defendants caused by the delay; if the complaint is restored, the court should consider the range of sanctions to be imposed on counsel. (p.10)
1. Simon's February 5th request for an adjournment due to the unavailability of Dr. Doyle was not proscribed by Best Practices. That said, other Best Practices rules govern cases filed prior to September 5, 2000 and discretionary rulings should be made reasonably consistent with the provisions and purposes of Best Practices. (p.7)
2. In determining whether to adjourn the case due to the unavailability of plaintiffs' expert, the court must focus on the tension between, on the one hand, the salutary principle that the sins of the advocate should not be visited on the blameless litigant and, on the other, the court's strong interest that management of litigation, if it is to be effective, must lie ultimately with the trial court and not counsel trying the case. (pp. 7-8)
3. Plaintiffs have been denied their day in court based exclusively on the conduct of their attorney. When an attorney is unable to try a case due to the first unavailability of an expert, dismissal of the complaint with prejudice should not be invoked except in those cases where the actions of the party show a deliberate and contumacious disregard of the court's authority. The ultimate sanction of dismissal with prejudice should be imposed only sparingly. Dismissal will normally be ordered only when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party. (pp.8-9)
4. In view of the statements by the trial judge, this Court senses a desire on his part to reconsider the matter. The Court is not confident that he would have dismissed the case with prejudice if plaintiffs' counsel had been candid and concludes that the trial judge should reassess his ruling in light of whether restoration of the complaint would cause any prejudice to defendants from the delay. (p.10)
Judgment of the Appellate Division is MODIFIED and the matter is REMANDED to the trial court to reassess its ruling.
JUSTICE LaVECCHIA concurs in Justice Coleman's opinion and adds that although the trial court has chosen not to pursue disciplinary charges, it clearly should be understood that a referral to disciplinary authorities is within the panoply of tools available to a trial court that is misled by an attorney; as a general matter, the attorney, not the client, should bear the brunt of a sanction for unethical conduct.
CHIEF JUSTICE PORITZ and JUSTICES LONG, VERNIERO, ZAZZALI and ALBIN join in JUSTICE COLEMAN's opinion. JUSTICE LaVECCHIA has ...