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Dwyer v. George Didden Greenhouses

August 3, 2007

JOHN G. DWYER AND MARGARET C. DWYER, PLAINTIFFS-APPELLANTS,
v.
GEORGE DIDDEN GREENHOUSES, INC. AND RUSSELL M. RUCH, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-579-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted July 17, 2007

Before Judges C.S. Fisher and Grall.

In this action to recover damages sustained in a motor vehicle accident, the jury determined that plaintiff John G. Dwyer failed to establish that the accident was the proximate cause of his injuries and returned a verdict in favor of defendants George Didden Greenhouses, Inc. and Russell M. Ruch.*fn1

Plaintiff John G. Dwyer (Dwyer), and plaintiff Margaret C. Dwyer, whose claims are per quod, appeal. They contend that the trial court erred in denying their motion to adjourn the trial date and extend discovery and their motion for reconsideration of those rulings.

The accident occurred on March 7, 2003. On June 4, 2003, Dwyer saw a physiatrist who referred him to Dr. Matthew Garfinkel, an orthopaedic surgeon. An MRI of Dwyer's left shoulder showed evidence of "a rotator cuff partial thickness tear." Dr. Garfinkel prescribed medication and advised Dwyer to avoid heavy lifting for a month. The doctor noted that since the accident, Dwyer, a firefighter, had been driving the fire engine and not fighting fires. The doctor agreed with that course of action. He noted that "surgery [might] be necessary" and directed Dwyer to return in four weeks.

Dwyer did not see Dr. Garfinkel four weeks later. On May 26, 2004, he returned to the physiatrist. In that doctor's opinion, Dwyer "suffered some degree of permanent disability" as a consequence of the accident and would continue to require medical and possibly surgical care.

Plaintiffs commenced this civil action on December 8, 2004. The discovery period ended on January 4, 2006.

On February 9, 2006, Dwyer returned to Dr. Garfinkel for the first time since 2003. Dwyer told the doctor that despite two years of physical therapy, his pain had "progressively worsened," especially "over the past three months." A second MRI was ordered and medication was prescribed. On March 9, 2006, Dr. Garfinkel noted that the MRI showed a "rotator cuff tear which appears to be partial but may be complete and [i]mpingement."

Arbitration was completed on March 16, 2006. On March 21, 2006, plaintiffs filed a demand for trial de novo, and on March 28, 2006, trial was scheduled for May 8, 2006.

On April 3, 2006, plaintiffs filed a motion to adjourn the trial date and reopen discovery. That motion was supported by their attorney's certification. He reported that Dr. Garfinkel was scheduled to operate on Dwyer on April 26, 2006. He further indicated that Dwyer would "probably undergo [post-operative] physical therapy for an unknown period of time" and would "have to be re-examined" by his medical expert, supply additional reports from his expert and Dr. Garfinkel and submit to further evaluation by defendants' expert. In reply to defendants' opposition to the motion, plaintiffs' attorney submitted the medical reports.

The trial court denied plaintiffs' motion on May 1, 2006. The court determined that plaintiffs failed to establish "exceptional circumstances" warranting an extension of the discovery period pursuant to Rule 4:24-1(c).

On May 22, 2006, the trial court denied plaintiffs' motion for reconsideration. In support of that motion, plaintiffs' attorney explained that he did not know that his client was considering additional medical treatment or surgery until after the March 16, 2006 arbitration. Dwyer submitted a certification in which he indicated that although his "left shoulder complaints were constant and worsened over time as a result of [his] physical work as a Kearny firefighter, [he] did not seek medical care for his left shoulder until [he] again saw Dr. Garfinkel on February 9, 2006." He ...


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