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Quinn v. Lorraine

December 5, 2008

PAMELA C. QUINN, PLAINTIFF-APPELLANT,
v.
VICTOR LORRAINE, REMEGIO MIJARES, ESTRELLA MIJARES, KATRINA P. MIJARES AND SCOTT J. DAVENPORT, J/S/A, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1929-05.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued September 24, 2008

Before Judges Parrillo, Lihotz and Messano.

Plaintiff Pamela Quinn appeals from the judgment of no cause of action entered in favor of defendants Victor Lorraine*fn1 and Scott J. Davenport following a jury trial, and the subsequent denial of her motion for a new trial. We have considered the arguments plaintiff raises in light of the record and applicable legal standards. We affirm.

I.

Trial in the matter took place from July 16 to July 19, 2007. The testimony revealed that on April 19, 2003, plaintiff, who was fifty-three years old at the time, was traveling westbound in the far left lane of the Black Horse Pike in Egg Harbor Township when she was struck by Davenport's car. Immediately before the collision, plaintiff witnessed Loraine's vehicle pull out of a gas station and into "a shoulder or . . . acceleration lane." As the front end of Loraine's car entered Davenport's lane of travel, he swerved left and struck plaintiff's car.

Plaintiff testified she had been involved in minor motor vehicle accidents in 1969, 1986, 2001, and, after the accident in question, in 2004. She contended that she suffered only minor muscle aches and did not make any claims for injuries as a result of any of those accidents. She also testified that she had injured her back in 2001 while carrying boxes at work and that this required seven weeks of physical therapy. During cross-examination, plaintiff acknowledged that she also tore her rotator cuff in a slip and fall accident in 1983 and had previously broken her ankle.

Plaintiff testified that she had been asymptomatic as to any neck or back pain until the April 2003 accident. Shortly thereafter, she began to experience pain and discomfort leading her to seek treatment from a chiropractor. When her symptoms worsened, plaintiff was referred to Dr. Frederick S. Lieberman, an orthopedist. Lieberman conducted diagnostic tests on plaintiff and prescribed various pain medications, which plaintiff took until the time of trial, though they never totally alleviated her pain. In 2005, Lieberman referred plaintiff to Dr. Tariq S. Siddiqi, a neurosurgeon, who recommended cervical fusion surgery, an opinion confirmed by Dr. James G. Lowe, a second neurosurgeon plaintiff consulted in 2007. Plaintiff testified that she had not had the surgery "yet."

Plaintiff's father Marvin Quinn testified that his daughter had no neck or back complaints prior to the accident. He claimed that plaintiff now required substantial rest throughout the day, that she was unable to pursue her activities as before, and that the injuries had substantially decreased her energy level.

Lieberman testified as plaintiff's orthopedic expert and conceded that prior to the April 2003 accident, plaintiff's spine had undergone some degenerative changes. However, based upon the medical history plaintiff provided and the examinations and tests he conducted, it was Lieberman's conclusion that plaintiff had sustained permanent injuries as a result of the April 2003 accident, including herniated discs at C4-5, C5-6, and "radiculopathies involving the L4-5 and S1 [nerve] roots."

Plaintiff presented the testimony of her second expert, Lowe, via videotape. Lowe described the surgery he anticipated performing on plaintiff in the near future as a "three level cervical discectomy and fusion" in which he would "remov[e] the ruptured cervical disc . . . and put[] bone grafts into the spaces where the discs were with [a] little metal plate to stabilize everything." He opined that within a reasonable degree of medical probability plaintiff's injuries were direct results of her April 2003 motor vehicle accident.

The defense case began with Loraine's testimony. He denied that he ever entered Davenport's lane of travel and claimed that he did not come into contact with either vehicle. Davenport testified that he was in the far right lane when he observed Loraine's car approximately fifty feet ahead stopped in the exit lane. As Davenport began pulling into the exit lane, Loraine began pulling out into the road, forcing Davenport to veer to the left, at which point he hit plaintiff's rear bumper and the side of her car.

Defendants called Dr. Douglas Noble, a neuroradiologist, as an expert witness. Noble testified that plaintiff's injuries were not attributable to a traumatic event such as the motor vehicle accident. Instead, he opined that the cervical and lumber conditions observed in the MRI studies of plaintiff's spine were attributable to degenerative changes that occurred over time and predated the car accident.

Defendants also presented the testimony of Dr. John A. Cristini, an orthopedist, via videotape. Cristini personally examined plaintiff and reviewed her medical records, but not her MRI films, leading him to acknowledge that he could not agree or disagree with the other doctors' opinions as to the films. Cristini also could not offer an opinion as to whether plaintiff's "herniated disk in the cervical region" "was a pre-existing problem or due to the injury sustained as a result of the accident." However, he opined that plaintiff had suffered a "cervical and lumbosacral sprain and strain" as a result of the accident.

After summations, the judge charged the jury. Approximately three hours later, it returned its verdict finding both defendants negligent, but also concluding that neither defendants' negligence was a proximate cause of plaintiff's injuries.

II.

A.

Plaintiff argues that the trial judge, who also case-managed the litigation, committed error 1) by not granting a brief adjournment of the trial because of the unavailability of her medical experts; 2) by not adjourning the trial to permit her to undergo spinal fusion surgery which, in fact, occurred some two months after the trial; and 3) by denying her pre-trial motion in limine to bar Noble's testimony because defendants never amended their answers to interrogatories. R. 4:17-7.

We must set forth the pre-trial procedural history of the litigation at some length to properly consider these issues. Plaintiff filed a complaint on March 11, 2005.*fn2 On July 11, 2005, the judge entered an initial management order setting March 1, 2006 as the discovery end date. R. 4:24-1(a). The discovery end date was extended sixty days to April 30, 2006 by mutual consent of the parties. R. 4:24-1(c). The parties engaged in mandatory, non-binding arbitration, Rule 4:21A, on September 23, 2006. At that time, and although discovery had already ended, Davenport attached and supplied to all parties as part of his arbitration package Noble's report interpreting plaintiff's MRI films.*fn3 Plaintiff rejected the arbitration award and requested a trial de novo, Rule 4:21A-6(b)(1), which was scheduled for December 11, 2006.

Defendants' request to adjourn the trial due to the inability to videotape one of the defense experts was granted, and the trial was adjourned to January 16, 2007. Because plaintiff's counsel was on trial in an older matter on that date, the case was again adjourned until February 20, 2007.

This date was adjourned again at defendant Davenport's request, the exact reason for which is not disclosed in the record.

Meanwhile, on January 5, 2007, the judge granted plaintiff's motion to extend discovery which was premised on her anticipated spinal surgery. Determining "exceptional circumstances" existed because "the surgery [was] recommended recently," and "ha[d] not yet been completed because [plaintiff's] no-fault PIP insurance carrier ha[d] failed to pre-certify the surgery necessitating [her] to file a demand for arbitration[,]" the judge extended discovery through May 5, 2007 and re-scheduled the trial for May 7, 2007. The order noted that "NO FURTHER DISCOVERY EXTENSIONS SHALL BE PERMITTED."

However, when defendants were unable to reschedule the videotape testimony of Cristini, the parties mutually agreed to once again adjourn the trial to July 16, 2007. Notice of the new trial date was sent to plaintiff and defendants on April 19, 2007.

On July 6, 2007, ten days prior to the trial date, plaintiff forwarded a letter to the Civil Division staff requesting an adjournment of the trial "in accordance with . . . Rule 4:36-3[,]" noting that Lowe and Siddiqi were unavailable for trial. Plaintiff argued that she "ha[d] never received an adjournment based upon a doctor's unavailability." Plaintiff further noted that although she intended to call two additional doctors at trial, Lieberman and "Dr. J. Scott Neuner," "each physician [wa]s necessary to establish each of the alleged injuries and causation . . . ." The letter contained a second basis for the adjournment request. Plaintiff advised that she "ha[d] finally been cleared to receive the cervical spine surgery . . . previously recommended . . . [and was] scheduled for surgery on August 10 . . . ." The letter further noted that plaintiff had already moved for a discovery extension, but the motion was denied by the judge on June 22, 2007.*fn4

This letter request made to the Civil Division staff was apparently denied.*fn5 On July 10, noting the impending videotape deposition of a defense expert and again seeking a brief adjournment of the trial, plaintiff's counsel sent a letter directly to the judge requesting a telephone conference. Counsel for both defendants joined in the request. Plaintiff's counsel noted that he had filed a motion for reconsideration of the judge's prior order denying the discovery extension request. Receiving no response to his letter to the trial judge, plaintiff's counsel sought the intervention of the vicinage assignment judge, also by letter of July 10. The next day, ...


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