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Battle v. Jersey Central Power & Light

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,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 ...


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