On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5134-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Fisher and Sapp-Peterson.
Plaintiff Roy Battle appeals from a no cause verdict returned against him, and defendant Estell Maye cross-appeals from the trial court order precluding defendant from using any portion of plaintiff's deposition at the time of trial. On appeal, plaintiff claims the court abused its discretion when it barred his expert report and precluded his expert from testifying at trial. In addition, plaintiff contends the court erred when it denied his motion for a new trial. We agree that the trial court mistakenly exercised its discretion when it barred plaintiff's expert report and prohibited the expert from testifying. Nonetheless, because the expert report and testimony were limited to the issue of damages, which the jury never reached due to its finding of no negligence on the part of Estell Maye, we find no reversible error. We therefore affirm.
The facts giving rise to plaintiff's complaint arose out of a motor vehicle accident occurring on Interstate 495 in Fairfax, Virginia. Plaintiff was a rear seat passenger in a vehicle operated by defendant Estell Maye (Estell)*fn4 and owned by defendant Felicia Maye (Felicia). Plaintiff claims that Estell made a sudden and illegal lane change into the path of a vehicle operated by defendant Scott Sewell, causing a collision from which plaintiff contends he sustained serious injuries. Plaintiff commenced an action in the Law Division to recover damages for the injuries he sustained. Because only Estell and Felicia were served with the summons and complaint, the court administratively dismissed the complaint against the other named defendants.
Pretrial discovery was slated to end on November 29, 2006, but was extended by consent of the parties to January 28, 2007. Although defendants filed a motion to dismiss plaintiff's complaint for failure to provide discovery in early January 2007, that motion was later withdrawn when plaintiff served the requisite responses on January 29, one day after the discovery end date. Notwithstanding that the discovery period had ended, the parties continued to engage in discovery and, according to plaintiff's counsel, agreed that the parties would be deposed at the same time. Depositions were scheduled for February 9, and a defense medical examination of plaintiff was scheduled for June.
On February 9, only plaintiff appeared for the deposition. Plaintiff's counsel later told the court, during a pretrial hearing, that defense counsel represented that he had not received the notice for his client but promised to reschedule the deposition. When plaintiff's counsel attempted to schedule the deposition, he was told to "get them an order showing that the discovery has been extended for me to take their client's deposition even though they took my client's deposition after the expiration of... the discovery end date." Thereafter, plaintiff's counsel filed a motion seeking to further extend discovery. By order dated March 16, the court denied the motion, finding that discovery had ended, an arbitration date had already been scheduled for June 21, and that "[n]o precise explanation detailing the cause of the delay and no description of plaintiff's actions during the elapsed time was provided."
Three months later, plaintiff failed to appear for the previously scheduled June 5 defense medical examination, and defense counsel sent written notice to plaintiff's counsel rescheduling the examination for an October date. In response, plaintiff's counsel advised defense counsel that the discovery period was over and that he would not produce his client absent a court order. A motion to dismiss plaintiff's complaint for failure to submit to the examination followed, but the court denied the motion, finding that the "[m]otion [was] extremely untimely," discovery had ended in January, arbitration had occurred in June, and the matter was listed for trial on February 11, 2008.
When the parties next appeared before the court on April 8, 2008 as part of a pretrial hearing, defense counsel moved to bar the use of plaintiff's expert report at the time of trial because it had been served after the discovery end date. Defense counsel argued:
Your Honor, it's my position that if... I don't get the opportunity to get an exam that I'm entitled to under the rules and have an expert testify in my client's behalf and they're going to be prejudiced that way[,] then it has to flow both ways and plaintiff's expert should be barred as well... [.]
The court was persuaded by this argument and ruled:
I'm going to bar the use of plaintiff's deposition and... I'm going to bar the... use of plaintiff's expert report, all of which was presented after the discovery end date based on the... plaintiff's refusal to have the plaintiff submit to an IME [Independent Medical Examination] during that same period after having agreed to it.
The matter proceeded to trial one week later without either plaintiff or defendant presenting any expert testimony on the nature and extent, if any, of plaintiff's injuries. After hearing two days of testimony from plaintiff, Estell and Felicia, the jury retired to commence its deliberations following summations and the court's jury charge. When the jury announced that it had reached a verdict, it answered the first question as to whether defendant Estell was negligent with a "Yes," by a vote of three to five, but the jury ...