On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-9924-00.
Before Judges Coburn, Wells and Fisher.
The opinion of the court was delivered by: Wells, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 16, 2003
Plaintiffs, Edna and George Williams, appeal from a judgment which directed a verdict in favor of defendant, George Hodes.
The facts, which we glean from the record, including that of the jury trial that took place in February 2002, are as follows. On February 11, 1999, Edna Williams, driving her Chevrolet Van, was exiting the Garden State Parkway at Exit 145 near South Orange, and came to a stop. The driver behind her, John Duryea, also stopped. A third vehicle operated by Patricia Harley was coming to a stop when a fourth car in line, operated by the defendant, Hodes, struck the Harley vehicle in the rear causing a chain reaction collision in which Edna's van was damaged and she was injured.
Edna and her husband, per quod, sued Hodes. Hodes, in turn, joined as third-party defendants, Harley and Duryea. Edna did not amend her complaint to name either of the two drivers behind her as direct defendants. All parties answered and discovery ensued. Some time before the first trial listing, Edna served upon counsel for Duryea and Harley notices in lieu of subpoena to produce their respective clients at the time of trial.
The trial convened on February 20, 2002. Immediately prior to jury selection, defense counsel took a voluntary dismissal as to Duryea and Harley, and the case was continued to the next day. Using what time was available following the February 20, 2002 session of court, plaintiffs' counsel prepared and faxed subpoenas naming Duryee and Harley to a commercial subpoena server with directions that they be served on an expedited basis. She also tried to contact both Harley and Duryea by telephone and sought the cooperation of counsel who had represented them. However, by the time the case reconvened the following day, counsel could not represent to the court that the subpoenas had been served or that her other efforts to reach Harley or Duryea had been successful.
The trial commenced. As to the happening of the accident, Edna introduced the testimony of her daughter, who was a passenger in her vehicle. She testified that the van came to a stop, they"got hit from the back," she got out of the van to look at the damage and saw four cars lined up and identified the driver of the fourth car as Hodes. Hodes' deposition was introduced in which he admitted slowing down but then striking the car in front of him.
Neither Duryea nor Harley appeared at trial. Plaintiff sought to read their deposition testimony to the jury. After an extended colloquy between the court and counsel, on Hodes' objection to such readings, which included plaintiffs' counsel's statements of her efforts to produce these witnesses beginning the day before, the Judge ruled:
[T]here -- there has been a proffer made herein by the plaintiffs for certain readings from testimony of John M. Duryee the second and Patricia Harley, and in order to put the -- there have been objections posed by the defendant to the reading of those depositions.....
Now, the facts in this matter are, as I indicated, that prior to jury selection yesterday morning, in open court the defendant voluntarily stipped out the third-party defendants thereby relieving them from any compulsion to testify at that particular junction in time. We are now more than 24 hours subsequent... and the question before the court: is has there been an appropriate degree of reasonable diligence to obtain the availability of the witnesses before this particular point?
And, again, the question is whether or not the compulsory process of the court through subpoena has been used by counsel with reasonable diligence. By that I mean, with expedition in light of the circumstances presented during the progress of the trial, a trial that was clearly scheduled to continue from yesterday to today, and thereafter.
And in this particular instance, the information that the court has before it at this point is that the proposed... witnesses have not been subpoenaed nor... -- has the compulsory process of the court been used expeditiously.... [T]he court finds that that is, indeed, a failure to use reasonable diligence to procure their attendance when it became apparent that they were no longer participants to the litigation ...