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Lai v. Dick

September 4, 2007


On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-7445-04.

Per curiam.


Submitted July 17, 2007

Before Judges R. B. Coleman and Sapp-Peterson.

Plaintiff Katherine Lai appeals pro se from the December 14, 2006 order denying her motion for reconsideration of the court's order granting summary judgment dismissing her complaint against defendants Leon Dick, M.D., and the Saint Barnabas Medical Center (SBMC). We affirm.

Plaintiff's complaint arises out of medical treatment she received on February 23, 2003. At that time, plaintiff came under the care of Dr. Dick for excision of a right breast mass, which was performed at SBMC. Plaintiff claims that while she was under anesthesia, Dr. Dick, with the use of an electric pad, branded the initial "L" on the upper portion of her left leg.

On September 15, 2004, plaintiff filed a complaint against defendants alleging medical malpractice, sexual harassment, and assault. Defendants answered the complaint, denying all of the allegations. Discovery commenced, during which the court issued a number of orders directing plaintiff to provide discovery to defendants, including (1) providing expert reports on liability and damages, (2) executing Health Insurance Portability and Accountability Act (HIPAA) forms for disclosure of relevant medical records from plaintiff's treating physicians, and (3) allowing defendants to depose her. Plaintiff failed to comply with these orders. Additionally, plaintiff's conduct during discovery led the court to order plaintiff to undergo an evaluation to determine whether she was a danger to herself or others and whether she was competent to prosecute her complaint. Plaintiff failed to comply with these orders as well.

On November 17, 2006, the motion judge granted defendants' motion for summary judgment dismissing plaintiff's complaint with prejudice, apparently for willful non-compliance with discovery orders. Plaintiff moved for reconsideration. The motion judge, however, suffered a heart attack and was on medical leave. The motion was heard by the Civil Presiding Judge, who "reviewed the original documentation and also listened to an audiotape of the 11-17-06 motion hearing in preparation for deciding this Motion for Reconsideration." The court denied plaintiff's motion on December 15, 2006, finding, Mrs. Lai has displayed a pattern of long-standing behavior of failing to comply with numerous prior court orders in this matter. This behavior has been willful and deliberate. There is absolutely no basis to change Judge Giles's well reasoned decision.

This matter will not be further reconsidered by this Court. The Plaintiff shall proceed to file for her appeal if she wishes to further challenge Judge Giles's decision.

The present appeal followed. As best we can glean from plaintiff's brief, which does not contain point headings to be argued, Rule 2:6-2, plaintiff claims the Presiding Judge thereafter wrongfully denied her motion for reconsideration.

From our review of the limited record before us, we are satisfied that plaintiff's arguments are without merit.

At the outset, plaintiff's appeal fails to comply with Rule 2:5-4, which provides that the record on appeal shall consist of all papers on file in the court including "the stenographic transcript or statement of the proceedings therein[.]" Plaintiff bears the burden, pursuant to R. 2:6-1(a), to include in her appendix the pleadings as well as "such other parts of the record . . . as are essential to the proper consideration of the issues." R. 2:6-1(a).

That was not done here. Plaintiff has neither included proper transcripts of the proceedings nor has she included other necessary parts of the record. Nonetheless, based upon the documents included in the appellate record, there is no dispute that plaintiff failed to comply with the numerous discovery orders issued by the court. To the extent plaintiff claims that the conduct of Dr. Dick was such that no expert testimony was required, she failed to produce any evidence demonstrating, at least on the issue of liability, that expert testimony was not required in this case. Plaintiff also produced no expert reports or reports from treating physicians on the nature and extent of her physical and psychological injuries causally related to defendants' conduct. She also refused to be deposed, refused to submit to a physical examination, and failed to provide any records from any doctor attesting to the existence of her injury.

Reconsideration pursuant to Rule 4:49-2 is granted at the court's discretion and in the interests of justice, D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990), and is to be utilized only for those cases which fall into that narrow corridor in which either 1) the court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the court either did not consider, or failed to appreciate the significance of probative, competent evidence, or 3) if a litigant wishes to bring new or additional information to the court's attention which it could not have provided on the first application, the court should, in the interest of justice (and in the exercise of sound discretion), consider the evidence. Cummings v. Bahr, 295 N.J. ...

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