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Meltzer v. Liberty Mutual Group

June 14, 2007


On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-9265-02.

Per curiam.


Argued October 31, 2006

Before Judges Coburn, Axelrad and R. B. Coleman.

Plaintiff Eileen Meltzer, appeals from: (1) eight pretrial orders entered by Judge Ramona A. Santiago requiring that plaintiff submit to four independent medical examinations (IMEs) and temporarily suspending her personal injury protection (PIP) benefits; (2) Judge Rachel N. Davidson's February 7, 2005 order precluding plaintiff from presenting expert testimony from treating physicians from whom she had not submitted reports and dismissing her claim for PIP benefits with prejudice on the trial date; and (3) Judge Davidson's denial of plaintiff's motion for reconsideration on April 8, 2005. We affirm.

Plaintiff, a passenger, was injured in a motor vehicle accident on October 12, 1998, while her husband, Harvey Meltzer, was driving. On the date of the accident, Harvey Meltzer had an automobile insurance policy with defendant, Liberty Mutual Group. In October 2002, Harvey Meltzer filed an order to show cause on plaintiff's behalf against defendant Liberty Mutual Group, their PIP carrier, when it advised it would stop paying her neurological bills based on an IME report that her injuries were not caused by the accident. The court entered an order on October 12, 2002, requiring defendant to pay all medical expense payments on behalf of plaintiff for all automobile accident related medication, care and treatment approved or prescribed by plaintiff's treating physicians or her physical therapists until such time as said treating medical health providers determined that plaintiff had achieved the maximum medical benefit from their respective treatment or until defendant produced competent proof to the court that said treatment was no longer necessary and reasonable.

Defendant continued paying for plaintiff's medical treatment until December 2003, when it notified plaintiff that, based on reports by its peer review doctors, it intended to stop paying neurological, neuropsychiatric and ophthalmologic bills. On December 8, 2003, plaintiff filed a second order to show cause, seeking to compel defendant to comply with the October 2002 order. At a hearing on January 9, 2004, Judge Santiago ordered plaintiff to submit to IMEs in ophthalmology, neurology and neuropsychiatry.

Plaintiff submitted to some IMEs, including an examination by Dr. Anthony J. Micale, an ophthalmologist; Dr. Eric Fremed, a neuropsychiatrist; and Dr. Jed Kwartler, a neuro-otologist. After significant delays involving a psychiatric IME, the court issued an order on October 12, 2004, temporarily suspending the payment of plaintiff's medical bills, requiring PIP benefits to be held in escrow pending trial as to their reasonableness, and mandating that plaintiff submit to an IME by Dr. William Head. Plaintiff eventually completed the psychiatric exam with Dr. Head in October 2004. Another hearing was held before Judge Santiago on October 18, 2004. The judge then issued an order giving plaintiff until October 25, 2004, to supply either the outstanding reports or the necessary authorizations and ordering plaintiff to serve her experts' reports no later than November 17, 2004. The order also directed both parties to submit to the court their respective schedules of physician witnesses by October 22, 2004, and stated that the hearing would commence in December 2004.

Plaintiff subsequently filed two motions for reconsideration of the October 18, 2004 order. Defendant responded with a notice of cross-motion (1) seeking an order holding plaintiff in contempt of court, (2) compelling plaintiff to produce the medical records and authorizations the parties had previously agreed would be supplied and which were required by the October 18 order, and (3) requesting the removal of Mr. Meltzer as counsel for plaintiff. On November 8, 2004, defendant cross-moved for an order holding plaintiff in contempt of court and compelling plaintiff to produce the medical records and authorizations required by the order of October 18, 2004.

Arguments were heard and, on December 10, 2004, Judge Santiago denied plaintiff's motion for reconsideration and explained that the October 12, 2004 order stayed, rather than terminated, plaintiff's PIP benefits and that it required defendant to pay all plaintiff's medical bills up to that date. In the December 10, 2004 order, Judge Santiago also granted plaintiff yet another extension for the production of her experts' reports. She ordered plaintiff to produce copies of all expert reports by January 20, 2005. The court also set a firm trial date of January 25, 2005, and ordered that the trial would not be adjourned for any reason and that any further noncompliance by plaintiff would result in the dismissal of her complaint with prejudice.

Despite the court's order instructing plaintiff to submit her experts' reports by January 20, 2005, plaintiff went to trial without ever having done so. Instead, plaintiff sought yet another adjournment, citing various delays caused by defendant and Judge Santiago. Her motion was denied and the trial judge ordered that plaintiff could not present expert testimony from any witness for whom she had not submitted a report. After the judge asked plaintiff to proceed with her claim, plaintiff conceded she could not prove her case without her experts' testimony and, on defendant's motion, the court dismissed the complaint with prejudice. An order to that effect was issued on February 7, 2005.

Plaintiff's counsel indicated an intention to appeal. Rather than appeal, however, plaintiff filed a motion for reconsideration, claiming the judge's February 7, 2005 ruling was contrary to case law, asserting a new theory that the Rules of Evidence permitted plaintiff to present testimony from her treating doctors as to their opinions of causality, treatment and prognosis since defendant made no showing of prejudice or surprise. Judge Davidson reiterated that her ruling was based on plaintiff's failure to comply with the prior court order, not the Rules of Evidence. The court denied the motion for reconsideration on April 8, 2005, indicating that she felt plaintiff had filed the motion with the sole intention of trying to extend the appeal period. After plaintiff filed an appeal of her decision, Judge Davidson sent in a supplemental letter to this court stating that she believed the appeal period ran from the January 26 order dismissing plaintiff's complaint with prejudice, and since plaintiff had failed to file a timely appeal, the only issue on appeal was denial of her motion for reconsideration.

Generally, we will "not disturb the factual findings and legal conclusions of the trial judge unless . . . they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Investors Ins. Co., 65 N.J. 474, 484 (1974) (citation and internal quotation omitted). Here, we are satisfied that the findings of both Judge Santiago and Judge Davidson were supported by adequate, substantial and credible evidence and, therefore, we affirm for the following reasons.

Plaintiff contends that Judge Santiago abused her discretion and violated N.J.S.A. 39:6A-13 in ordering plaintiff to appear for examinations requested by the insurer. N.J.S.A. 39:6A-13(d) requires IMEs to be "conducted within the municipality of residence of the injured person," or if there is no "qualified healthcare provider" in that municipality, the IMEs ...

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