On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-3873-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Collester, C.S. Fisher and C.L. Miniman.
Unfortunately, this is the second time this case has come before us as a result of erroneous procedural rulings. The action itself is relatively simple. Plaintiff Hector L. Cruz filed a complaint that alleges he suffered personal injuries when his vehicle was struck as a result of defendant Heather L. Glenn's alleged negligent operation of her vehicle.
In an earlier appeal, we reversed the entry of summary judgment in favor of defendant, concluding that the judge then handling the matter mistakenly precluded plaintiff from relying upon a supplemental expert report, and that she also erred in viewing that expert's initial report as containing only an inadmissible net opinion. We rejected both those determinations in reversing the summary judgment. And, because we found plaintiff was entitled to rely upon the opinions contained in the supplemental report at the time of trial, we held that defendant should be afforded "a full and fair opportunity to conduct discovery regarding the supplemental report or to provide an additional report in rebuttal," and, as a result, we did "not foreclose the reopening of discovery for a brief period of time." Cruz v. Glenn, No. A-4010-05T1 (App. Div. April 4, 2007) (slip opinion at 8). We did not retain jurisdiction.
Thereafter, defense counsel retained Dr. Douglas M. Noble to serve as a defense expert and forwarded his report to plaintiff's counsel on June 1, 2007. Plaintiff's counsel served a notice to produce in which he sought the production of records that would reveal the extent to which Dr. Noble provided services for defendants and insurance carriers. Specifically, plaintiff sought (1) "[t]he number of independent medical evaluations and reports" that Dr. Noble performed or provided "for defendants and insurance carriers for the time period of January 1, 2005 through December 31, 2006"; (2) "[a] breakdown of monies received" by Dr. Noble "through any corporate entity . . . including the amounts of monies received from each insurance company and/or their representatives . . . and . . . 1099s received for any medical evaluation, reports and testing relating to legal/medical matter[s] for the aforesaid services" from January 1, 2005 through December 31, 2006; (3) "[t]he number of trial appearances and video taped depositions made by Dr. Noble on a yearly basis, and the matters in which he appeared for the period of time beginning January 1, 2005 through June 1, 2007"; and (4) "[t]he fees received during 2005, 2006 and 2007 for any trials in which Dr. Noble testified on behalf of defendants and/or insurance carriers . . . or from any other source relating to trial testimony in person or by video testimony."
Defense counsel responded two days later, indicating that neither he nor his client possessed the information sought and suggesting that defense counsel take Dr. Noble's deposition.
Plaintiff moved in August 2007 for an order compelling defendant's response to the notice to produce. The motion was made returnable September 7, 2007. Because of his vacation plans, defense counsel obtained the consent of his adversary and sought an adjournment of the motion from the judge newly assigned to the matter. On September 4, 2007, defense counsel wrote to the judge stating in part the following:
Plaintiff's attorney has filed a motion seeking to have [Dr. Noble] produce documents. On behalf of the defendant, we object to the application and I will be submitting opposition papers.
The motion has a return date of 9-7-07. With the consent of plaintiff's attorney, I appeared at Your Honor's Chambers on 8-27-07 and requested that the motion date be adjourned to 10-19-07. Your secretary indicated that the adjournment request would be granted.
I will be out of the country on vacation until 10-03-07. The trial date which had been scheduled for 10-15-07 has been adjourned at my request to 12-3-07.
When defense counsel returned from his vacation, he found on his desk the judge's September 11, 2007 order, which granted in part the relief sought by plaintiff. As a result, on September 27, 2007, defense counsel wrote to the judge stating in part the following:
In August of 2007, I appeared at Your Honor's Chambers in the Wilentz Justice Complex and spoke with both the Law Clerk and Your Honor's secretary regarding my request for an adjournment of the hearing date for 9-7-07. I was advised by both the Law Clerk and your secretary that there would be no problem with my request that the matter be rescheduled for hearing on 10-19-07.
After my appearance at Your Honor's Chambers, I forwarded a letter to Your Honor's attention . . . confirming that the hearing date had been adjourned to 10-19-07. I initially anticipated that I would be out of the country until early October, however, I returned to my office on 9-25-07, at which time, on reviewing my mail, I found that Your Honor had entered an order on 9-11-07.
Defense counsel indicated in the letter that he had intended to oppose the motion and requested the rescheduling of a hearing on plaintiff's ...