June 13, 2008
KIM S. BATTLE, INDIVIDUALLY AND AS GUARDIAN AD LITEM OF OLIVIA CONKLIN, AN INFANT, AND THOMAS L. BATTLE, JR., HER HUSBAND, PLAINTIFFS-APPELLANTS,
JERSEY CENTRAL POWER & LIGHT, JAMES SODAITIS, NATIONSBANC LEASING CORPORATION, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-4521-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 6, 2008
Before Judges Skillman and Yannotti.
By leave granted, plaintiffs appeal from an order entered by the trial court on December 7, 2007, which denied their motion for an extension of time for discovery. For the reasons that follow, we reverse.
On January 6, 2004, the vehicle in which plaintiff Kim S. Battle and her minor daughter Olivia Conklin were riding was struck in the rear by a commercial truck driven by James Sodaitis. Jersey Central Power & Light Co. (JCP&L) had apparently leased the vehicle from Nationsbanc Leasing Corporation. On June 16, 2005, Ms. Battle filed an action on her own behalf, and as guardian ad litem for Olivia, against JCP&L, Sodaitis, and Nationsbanc. Ms. Battle's spouse, Thomas L. Battle, also asserted a claim for the loss of his wife's services, society and consortium.
The record does not disclose the initial discovery end date for the case.*fn1 However, the court entered orders on August 4, 2006, December 1, 2006, March 2, 2007, and August 3, 2007, which extended the time for discovery through October 4, 2007. The August 3, 2007 order also provided that discovery was extended to allow plaintiff to obtain a final medical report from Ms. Battle's treating orthopedist, Dr. Jason D. Cohen; a final medical report from Ms. Battle's treating psychologist, Dr. Robbin J. Kay; a report from her actuarial expert, Royal A. Bunin; and a report from her vocational expert, Dr. Richard Schuster.
On September 4, 2007, defendants filed a motion seeking a further extension of time for discovery. In a certification submitted in support of that motion, defendants' attorney Thomas C. Hart asserted that Ms. Battle had been scheduled to be examined by a neurologist and a psychologist in February 2007 "to evaluate and respond to plaintiff's own experts and continuing medical issues." Mr. Hart stated that due to Ms. Battle's "incapacitation and impending third surgery, the examinations by these experts had to be postponed and could not be rescheduled until notification that [she] has recuperated sufficiently from her most recent surgery." Mr. Hart stated that Ms. Battle was scheduled for independent medical examinations by a neurologist on September 17, 2007, and a psychologist on September 19, 2007.
Mr. Hart indicated that, once Ms. Battle had been examined, defendants "will need to obtain and serve their reports, and plaintiffs' attorney may want to schedule depositions of these experts." He added that, "given the extensive medical records from [Ms. Battle's] medical treatment and three surgeries, it is expected that it will take more than an average amount of time for the experts to complete and forward their reports."
Mr. Hart additionally noted that discovery in the case had been extended to October 4, 2007 to afford plaintiffs' attorney time to serve the reports of four "new" experts. He stated that defendants would require "additional time to examine the new damage reports from plaintiffs' proposed experts and consult with and possibly retain rebuttal experts in the same or similar fields." He asserted that depositions of the experts had to be conducted and this "will also require additional time." Mr. Hart added that, although Ms. Battle had been examined by defendants' orthopedic expert in March 2006, this was more than a year before her most recent back surgery, and a new exam was scheduled to take place on September 13, 2007.
Mr. Hart also stated that defendants needed to depose "a few remaining witnesses" and to take another deposition of Ms. Battle "regarding issues related to her current medical condition and present status." He said that the parties had been "actively working" to complete discovery in a "timely manner" but Ms. Battle's "continuing medical treatment, recent surgeries, and the extensive volume of records which need to be obtained and reviewed, as well as the scheduling of additional depositions and independent medical examinations have made this task far more difficult than in the ordinary case."
Mr. Hart stated that, due to the "unique circumstances" of Ms. Battle's "medical condition, treatment, recent surgery, and situation," his proposed form of order did not include discovery deadlines that might "be appropriate in other cases." He suggested that the court might want to schedule a case management conference if the court believed "that one is necessary to affirm and assess [Ms. Battle's] medical condition, progress of discovery and scheduling needs."
Since plaintiffs had consented to defendants' motion, the judge decided the motion without oral argument. The judge entered an order on October 5, 2007, denying the motion. On the order, the judge wrote that the motion was denied because defendants had not complied with Rule 4:24-1(c). The judge noted that defendants failed to attach all prior discovery orders, or set forth in the proposed order all of the discovery that remained "to be completed and [the respective] completion dates."
On October 16, 2007, defendants filed a motion to vacate the October 5, 2007 order and extend discovery. In a certification filed in support of this motion, Mr. Hart stated that he had been advised by plaintiffs' attorney that Ms. Battle "was encountering further complications" from her most recent surgery and might require additional surgery or invasive neurological treatment to her lower back. Mr. Hart additionally indicated that he had been advised that plaintiffs' attorney had been unable to obtain final medical reports from the treating doctors, including Ms. Battle's orthopedic surgeon and psychologist.
Moreover, Mr. Hart stated that, because plaintiffs had not received a final medical report, plaintiffs could not obtain a report from their vocational expert. He also said that plaintiffs' economic expert was unable to prepare a report until he had received the report of plaintiffs' vocational expert. Mr. Hart added that after plaintiffs had served their expert reports, defendants would need time to obtain responding reports and depose the experts.
Mr. Hart additionally stated that the parties had conducted further "significant" discovery since they last had requested case management. He indicated that depositions had been taken of additional fact witnesses, and "initial defense medical examinations" by an orthopedist, neurologist, and psychologist had taken place. He stated, however, that defendants "will need plaintiffs' updated medical records and expert reports for review and submission to defendants' experts for further comment as may be needed prior to the close of discovery."
Defendants' proposed form of order included a schedule for discovery, which required plaintiffs to provide final expert medical reports by January 17, 2008, the vocational expert report by March 2, 2008, and the report of the expert economist by April 17, 2008. The proposed order stated that defendants would serve the reports of their medical experts by March 16, 2008, the report of their vocational expert by April 17, 2008, and the report of their economic expert by May 17, 2008.
The proposed order further indicated that the parties would have 45 days after service of any expert report to depose the expert submitting the report, and "[r]outine fact discovery" could continue through June 17, 2008, "unless limited or extended by the [c]court." In addition, the proposed order stated that a case management or pretrial conference would be held on June 2, 2008.
Because plaintiffs had consented to defendants' motion, it was submitted to the court for a decision without oral argument. The judge entered an order on November 2, 2007, denying the motion. On the order, the judge wrote:
Motion Denied: Moving Party's certification provide[s] statements as to why "Plaintiff" could not complete discovery. Plaintiff has not filed [a] motion to extend discovery. Additionally, this court will not grant an extension to discovery because Plaintiff may need discovery. Such a motion must be accompanied by proof that surgery is scheduled and is causally related to [the] accident.
The order additionally stated that the arbitration date was November 7, 2007. The arbitration took place as scheduled.
On November 14, 2007, plaintiffs filed a motion seeking to extend or reopen discovery. Plaintiffs' attorney Nicholas C. Caliendo submitted a certification in support of this motion. In his certification, Mr. Caliendo stated that, as result of the January 6, 2004 accident, Ms. Battle suffered focal disc herniations at the C4-5 and C5-6 levels of her spine, with "each [herniation] causing severe impingement upon the spinal cord." Mr. Caliendo said that Ms. Battle also had suffered a disc herniation at the L5-S1 level, which "compromised the spinal cord."
Mr. Caliendo indicated that, as a result of these injuries, Ms. Battle had undergone three surgical procedures. On May 6, 2005, Dr. Cohen performed an anterior cervical discectomy and fusion at the C3-4 and C5-6 levels of Ms. Battle's spine. On May 26, 2006, Dr. Cohen performed a posterior spinal fusion at L5-S1. In addition, on May 14, 2007, Dr. Cohen performed a second surgery at L5-S1 because Ms. Battle had been experiencing continued lumbar pain due to the "non-union of the L5-S1 fusion." Mr. Caleindo stated that the second lumbar surgery was "significantly more invasive" than the first. He said that, since the May 14, 2007 operation, Ms. Battle's medical care had been "active and ongoing."
Mr. Caliendo also stated that he was seeking to extend or re-open discovery because Dr. Cohen was unable to provide his final medical report "at this time." Mr. Caliendo added that, because he could not obtain a final orthopedic report, he was unable to serve reports from his vocational and economic experts. He stated that:
[s]ince the date of the accident, [Ms. Battle] has been unable to work and, due to the nature and extent of her injuries, [she] will be unable to return to her previous form of employment. As such, [Ms. Battle] will offer, at the time of trial, testimony of a vocational expert who will opine as to the diminution of [Ms. Battle's] work expectancy and earning capacity. Consistent therewith, that expert will need the benefit of the opinion of [Ms. Battle's] treating physician as to [her] ultimate disability and prognosis.
Mr. Caliendo requested that the court "actively participate" in the management of the case and schedule a case management conference sixty days after the return date of the motion.
With his certification, Mr. Caliendo submitted a letter dated November 12, 2007 from Dr. Cohen, in which the doctor explained why he was unable to provide a final medical report. Dr. Cohen stated that
[a]fter the last surgery, Mrs. Battle, during her first office visit on June 9, 2007, complained of hip pain, primarily trochanteric in nature. These complaints have continued to date. Mrs. Battle was seen on a regular basis, as I wished to consider whether these complaints were of a radicular component following from the surgery or whether they involved the bursa. Mrs. Battle was last seen by me on October 22, 2007 and October 31, 2007. During the October 22, 2007 visit, I injected her left hip as clinically, I was of the opinion that she was suffering from left trochanteric bursitis.
In follow-up on October 31, 2007, her complaints continued. However, she did report some relief following the injection. I took a series of radiographs of the lumbar spine with the focus on the L5-S1 segment which revealed some bony consolidation occurring in the subject interspace. Being that Mrs. Battle previously suffered pseudoarthrosis which resulted in the second lumbar surgery, attention must be paid to the progress of the L5-S1 interspace given the continued symptoms being experienced. Only six months have lapsed since the more invasive surgery of May 2007, I would like to follow this present situation for at least an additional six month period. Should Mrs. Battle's symptoms continue, an MRI of the L5-S1 lumbar spine, as well as CT scan, as well as study of the hip will be warranted. It is essential that a recurring defect at the L5-S1 be considered or eliminated as well as the existence of fluid at the trochanter bursa. In the event of continued clinical symptoms and a positive MRI finding, yet another surgical procedure may be warranted.
As previously indicated, all of Ms. Battle's medical care is the result of those injuries sustained by her in the January 6, 2004 motor vehicle accident. In light of Mrs. Battle's complex and ongoing medical care, I am unable to provide you with a final medical report as her prognosis is presently unknown. In addition, the medical care Mrs. Battle is presently receiving is not palliative in nature but is curative. From a medical standpoint, it would be a disservice to my patient to expect me to opine as to her ultimate state when her medical care is active and ongoing.
In response to plaintiffs' motion, Mr. Hart submitted to the court a letter dated December 5, 2007 on behalf of defendants, in which he stated that the matter raised "unique and complex medical expert and related issues" that warranted an extension of time for discovery. He asserted that defendants also needed additional time to complete discovery and "get this case ready for trial." Mr. Hart requested that the court grant plaintiffs' motion and also schedule a case management conference to assess Ms. Battle's medical condition and progress as well as the parties' compliance with the discovery order.
On December 7, 2007, the judge entered an order denying plaintiffs' motion. On the order, the judge wrote:
Motion Denied: Trial scheduled [for] 1/28/08. Plaintiff has had more than ample time to address [the] issue of damages. Her current condition which may be permanent is an element of damage to be explained to the jury. This accident happened almost 4 years ago. Plaintiff now seeks almost one more year of discovery after having conducted discovery for more than 2 years.
Thereafter, plaintiffs' moved for leave to appeal from the court's December 7, 2007 order. On January 17, 2008, we granted plaintiffs' motion.
We review an order of the trial court denying a motion for an extension of time for discovery under an abuse of discretion standard. Bender v. Adelson, 187 N.J. 411, 428 (2006) (citing Rivers v. LSC Partnership, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005)). Plaintiffs argue that the judge mistakenly exercised his discretion by denying their motion to extend the time for discovery because they had established "exceptional circumstances" warranting the extension. We agree and therefore reverse.
Extensions of time for discovery are governed by Rule 4:24-1(c). When a motion for an extension is filed and "made returnable prior to the conclusion of the applicable discovery period," the time for discovery can be extended upon a showing of "good cause[.]" Ibid. Once an arbitration or trial date has been established, the time for discovery may only be extended upon a showing of "exceptional circumstances." Ibid. Here, plaintiffs did not file their motion to extend discovery until after the November 7, 2007 arbitration. Therefore, plaintiffs were required to show that an extension of time for discovery was required due to "exceptional circumstances."
The term "exceptional circumstances" is not defined in Rule 4:24-1(c). However, the term is commonly understood to mean "something unusual or remarkable." Rivers, supra, 378 N.J. Super. at 78 (quoting Vitti v. Brown, 359 N.J. Super. 40, 50 (Law Div. 2003)). Furthermore, a party seeking to extend discovery on the basis of "exceptional circumstances" must: (1) provide a satisfactory explanation as to why discovery was not completed prior to the discovery end date; (2) establish that the additional discovery is essential; (3) explain why the request for additional discovery was not made within the original time period; and (4) show that the circumstances warranting the extension were beyond the control of the attorney and the party seeking the extension. Id. at 79 (citing Vitti, supra, 359 N.J. Super. at 51).
We are convinced that plaintiffs established "exceptional circumstances" warranting a further extension of time for discovery. As we stated previously, plaintiffs asserted that Dr. Cohen could not render a final report concerning the extent and permanency of Ms. Battle's injuries prior to the established discovery end date because Ms. Battle was undergoing further treatment and might require a fourth surgical procedure. In our view, the nature and extent of Mr. Battle's injuries, her multiple surgeries, her ongoing treatment, and the potential for a fourth surgery, were "unusual" and "remarkable."
We recognize that plaintiffs in personal injury actions often require additional treatment. Such treatment does not generally justify extending the time for discovery. However, there may be situations, such as in this case, where a medical expert is reasonably incapable of rendering a thorough report regarding the plaintiff's injuries and prognosis due to the plaintiff's ongoing treatment.
As Dr. Cohen explained in his letter of November 12, 2007, Ms. Battle first had surgery at L5-S1 in May 2006 but the surgery appears to have been unsuccessful. A second surgery at L5-S1 was performed in May 2007. Thereafter, Ms. Battle experienced certain complications which suggested that the second surgery was not successful and a third procedure at L5-S1 might be needed.
In his letter, Dr. Cohen wrote that he needed another six months in which to observe Ms. Battle's progress to determine whether there was a "recurring defect at L5-S1" or whether Ms. Battle's complications were due to other causes. Dr. Cohen stated that, after further diagnostic testing, and depending upon the results of those tests, additional surgery might be required. In our view, these circumstances can fairly be characterized as "exceptional."
Moreover, plaintiffs satisfied the other criteria enumerated in Rivers for an extension of time for discovery. Plaintiffs provided a reasonable explanation for their failure to complete discovery before the discovery end date. Furthermore, the additional discovery is essential. Without the report of the medical expert, plaintiffs could not realistically pursue their claims. In addition, plaintiffs' application for an extension of time for discovery was not made before the discovery end date because defendants had made such an application and plaintiffs had consented to the motion. As noted, defendants' motion was denied on purely technical grounds. Finally, the reasons for plaintiffs' failure to complete discovery within the prescribed time were due to circumstances beyond their control and the control of their attorney.
We note that on the December 7, 2007 order, the trial judge set forth several reasons for denying plaintiffs' motion to extend the time for discovery. The judge commented that plaintiffs had more than sufficient time to address the issue of damages. The record does not support that conclusion. Although the parties had been given considerable time for discovery, the fact remains that, due to Ms. Battle's ongoing treatment, plaintiffs' experts did not have sufficient time to complete their reports.
The judge also observed that Ms. Battle's current condition may be permanent and this was an element of damages that could be presented to the jury. We disagree. Based on Ms. Battle's condition as reported by Dr. Cohen in his November 12, 2007 letter, there remained considerable uncertainty as to Ms. Battle's prognosis, at least with regard to her lumbar injuries. Additional discovery was warranted so that the jury would not have to speculate as to whether Ms. Battle's lumbar injuries were permanent.
The judge additionally remarked that the accident that gave rise to Ms. Battle's injuries occurred four years prior to the court's decision and the parties had already had two years in which to complete discovery. That may be so, but those considerations are not inconsistent with the conclusion that, in the unusual circumstances presented here, a further extension of the time for discovery is warranted.
Accordingly, we reverse the order entered on December 7, 2007 and remand the matter to the trial court. At oral argument, the parties advised that they believed that the case could be ready for trial within a relatively short period of time. Therefore, the trial court should conduct a case management conference, grant a brief extension of time for the completion of discovery, and schedule the matter for trial.
Reversed and remanded for further proceedings in conformity with this opinion.