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John v. Moore

October 22, 2009


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-2909-06.

Per curiam.


Argued: September 16, 2009

Before Judges Cuff and Payne.

Plaintiff Shane John appeals from an order granting summary judgment in favor of defendant Joseph Moore.*fn1 Plaintiff had filed a complaint seeking damages for injuries allegedly sustained in an October 13, 2004 auto accident. Plaintiff alleged that the automobile in which he was a passenger had been struck from behind by an automobile driven by defendant Joseph Moore. We affirm.

Consideration of the issues presented by this appeal requires a detailed review of the procedural history of this civil action. The automobile accident occurred on October 13, 2004. Almost two years later, on October 11, 2006, plaintiff filed a complaint seeking damages for the injuries he sustained in the 2004 accident. Defendant Moore filed an answer on January 8, 2007.

In response to the uniform interrogatories used in all automobile cases, plaintiff revealed that Dr. Leonard Strobel examined and treated him until January 6, 2005. Plaintiff stated that he experienced numbness in his back, legs and neck. He asserted he cannot bend or pick up anything without pain. His legs become numb if he sits for any length of time. He also asserted that he experiences limitation of motion. Plaintiff stated that he has a torn medial meniscus, a ruptured anterior cruciate ligament, and multilevel lumbar and inferior thoracic spine degenerative disc disease.

Plaintiff also disclosed that he fell from a tree stand in November 2005 and was treated by a physician in Philadelphia, Pennsylvania. Medical records obtained by defendant revealed treatment for an injury to plaintiff's low back, right knee, and right shoulder following a fall from a deer blind in 1999. Plaintiff revealed that he had not worked since that fall. During a March 15, 2004 examination with a physician other than the physician who treated him following his October 2004 automobile accident, plaintiff complained of right shoulder pain, instability in his right knee, and low back pain with radiating numbness in both legs.

Defendant deposed plaintiff on March 19, 2008. At oral argument plaintiff's attorney explained that he was unable to contact his client for a period of time which contributed to the delay in scheduling the deposition. Plaintiff's attorney also asserted he was hampered in obtaining all of his client's medical records because he could not locate him. Plaintiff testified at his deposition that he used his father's address as his mailing address and that he had lived at other places but had never changed his mailing address. Moreover, he testified that he never moved out of town.

The initial discovery end date was November 4, 2007. It was extended three times to January 3, 2008, then to April 2, 2008, and finally to June 2, 2008. On April 29, 2008, the court scheduled non-binding arbitration for July 2, 2008. On May 23, 2008, defendant filed a motion for summary judgment.

In his motion, defendant argued that plaintiff had never submitted a Certificate of Permanency*fn2 or an opinion from any physician causally relating plaintiff's complaints and injuries to the October 2004 automobile accident. Defendant noted that he had nothing more than ten pages of office notes and reports of diagnostic tests from plaintiff's treating physician. In response, plaintiff provided the Attending Physician Report Dr. Strobel submitted to plaintiff's insurance carrier for personal injury protection (PIP) benefits, and a June 11, 2008 report from Dr. Steven Klein. The latter report was accompanied by a certification from plaintiff's attorney in which he informed the court that Dr. Strobel died in May 2008 and that he had not obtained a report from Dr. Strobel that causally related plaintiff's complaints and injuries to the October 2004 accident before the doctor's death. Plaintiff's attorney also related that he immediately scheduled an evaluation of plaintiff with Dr. Klein at the earliest available date of June 4, 2008.

At oral argument, plaintiff's attorney advised Judge Hogan that an independent medical examination of plaintiff occurred in December 2007 and that he requested plaintiff's medical records before and after the October 2004 automobile accident. He also reminded the judge that he had filed a motion to compel defendant to provide him with any medical records defendant had in his possession. He obtained those records in April 2008, provided the information to Dr. Strobel, obtained an extension of discovery, and called the doctor's office to inquire about receipt of a report. When he received defendant's motion for summary judgment on or about May 23, 2008, plaintiff's attorney called the treating physician's office and was informed that the doctor had died. Plaintiff also contended that the Attending Physician's Report was sufficient to satisfy the need for a narrative report because it describes plaintiff's complaints, contains the treating physician's diagnoses and sets forth the treatment rendered to plaintiff.

In his July 3, 2008 opinion, Judge Hogan held that plaintiff did not comply with Rule 4:17-7 because he failed to amend his answers to interrogatories twenty days before the June 2, 2008 discovery end date. Furthermore, the June 11, 2008 physician's report was accompanied by a certification that did not satisfy the rule. In addition, the judge held that the June 11, 2008 report was inconclusive because it omitted any reference to plaintiff's asserted knee injury.

Rule 4:17-7 provides that interrogatory responses may be supplemented up to twenty days before the expiration of discovery. Supplementation may occur following that date if the party seeking to supplement its earlier responses "certifies . . . that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date." R. 4:17-7. In addition, once an ...

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