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Kellam v. Feliciano

April 21, 2005

DENNIS KELLAM, PLAINTIFF-RESPONDENT,
v.
JOHN FELICIANO AND FELICIANO GENERAL CONTRACTORS, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. PAS-DC-8288-04.

Before Judges Fall, Payne and C.S. Fisher.

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

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 16, 2005

This appeal requires that we consider whether trial judges may authorize the use of discovery procedures -- beyond those expressly permitted by rule -- in Special Civil Part personal injury actions. Informed by notions of fundamental fairness, we conclude that a trial judge may order a plaintiff to answer Form A interrogatories, to submit to an independent medical examination, or to be deposed, or any suitable combination thereof, upon determining that any limitations in the extent of discovery expressly permitted by the Special Civil Part rules inequitably restrict the flow of pretrial information, as occurred in the case at hand.

In this action, plaintiff alleged that, on July 18, 2003, a vehicle owned by defendant Feliciano General Contractors, and driven by defendant John Feliciano, was negligently operated and rear-ended his vehicle on Route 46 in Clifton. Plaintiff filed a complaint in the Special Civil Part, alleging that defendants' negligence proximately caused permanent injuries to his neck and nervous system, and that he has and will continue to suffer great physical pain and loss of income. By lodging this action in the Special Civil Part, plaintiff acceded to a $15,000 limitation on his potential recovery in exchange for the promise of a speedy resolution of his claim. It is also apparent that plaintiff sought to take advantage of what defendants complain to be the Barmecidal discovery available to defendants in Special Civil Part personal injury actions.

When defendants filed their answer to the complaint, they demanded answers to Form A interrogatories.*fn1 Plaintiff, in fact, answered those interrogatories, indicating his claim of two bulging discs and providing two reports from a pain management specialist, two reports from a radiologist, and one report from a chiropractor. Defendants responded by noticing plaintiff's deposition and demanding that he appear for a medical examination. Plaintiff refused, asserting that such discovery devices are not permitted in the Special Civil Part. The trial judge agreed, and we granted leave to appeal to consider whether a defendant in a Special Civil Part personal injury action should be limited to the discovery methods expressly recognized by the rules applicable to that forum.

We commence our consideration of this problem by first acknowledging that the Special Civil Part rules were designed to permit a rapid and streamlined forum for minor disputes. Lettenmaier v. Lube Connection, Inc., 162 N.J. 134, 143-44 (1999); Andriola v. Galloping Hill Shopping Ctr., 93 N.J. Super. 196, 200 (App. Div. 1966); Pressler, Current N.J. Court Rules, comment on R. 6:4-3 (2005). Thus, the rules only expressly authorize a small variety of discovery methods and provide a short period of time for their accomplishment.

R. 6:3-1 delineates those Part IV provisions applicable to Special Civil Part matters, but makes no mention of the broad discovery rules utilized in "upper court" cases. Instead, the modes of discovery expressly permitted are set forth in R. 6:4-3 to -5. As will be seen, these rules expressly limit the scope of interrogatories, practically eliminate the opportunity to take depositions, and are silent on a defendant's right to obtain an independent medical examination.

As for interrogatories, R. 6:4-3(b) states that in an "automobile negligence or personal injury action" brought in the Special Civil Part, a party "may propound interrogatories only by demanding, in the initial pleading, that the opposing party answer the appropriate standard set of interrogatories set forth in Forms C, C(1) through C(4), D, and E of Appendix II to these Rules, specifying to which set of interrogatories answers are demanded and to which questions, if less than all in the set."

R. 6:4-3(b). Only Form E contains questions to be answered by plaintiffs. The other form interrogatories expressly referenced in R. 6:4-3(b) are to be answered (when demanded) only by defendants.

Form E includes interrogatories that, for the most part, relate to vehicle ownership, insurance coverage, the manner in which the accident occurred, and the names of persons with knowledge of the "facts relating to the collision or case." None of the Form E interrogatories requires a plaintiff to divulge information of physical injuries, complaints, and limitations, except to the extent that a plaintiff must, when demanded, identify experts who may testify at trial and provide copies of expert reports. Appendix II, Form E, interrogatory no. 23.

Form A interrogatories, on the other hand, seek information about the nature of a plaintiff's injuries and physical complaints. But R. 6:4-3(b) does not include Form A as a set of interrogatories that may be demanded in the Special Civil Part. Instead, a defendant is relegated to R. 6:4-3(b), which provides that "[a]additional interrogatories may be served [but] only by court order upon motion on notice, made within the 30-day period, for good cause shown, and on such terms as the court directs." ...


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