January 15, 2010
KYUNG CHAN CHOI, MYUNG J. SHIN INDIVIDUALLY, AND SHARON CHOI, A MINOR BY HER GUARDIAN AD LITEM, MYUNG J. SHIN, PLAINTIFFS-APPELLANTS,
RIVER TERRACE GARDENS ASSOCIATES, LLC, DEFENDANT-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-8627-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 16, 2009
Before Judges Fisher and Espinosa.
Plaintiffs appeal from an order dismissing their complaint with prejudice pursuant to Rule 4:23-5(a)(2) and denying their motion to reinstate the complaint. Among the discovery deficiencies alleged was plaintiffs' failure to provide any expert reports, a failure that was not cured prior to the date the motion to dismiss with prejudice was argued. We affirm.
The plaintiffs are Kyung Chan Choi and Myung J. Shin, and their minor daughter, Sharon Choi. Their claims arise from their contention that the negligence of defendant, their landlord, resulted in a mold condition that caused them to suffer severe and permanent injury. Their complaint, filed on November 26, 2007, alleged negligence; an unconscionable commercial practice in violation of the Consumer Fraud Act; a breach of the warranty of habitability; and that the landlord failed to return the security deposit. The case was assigned to Track 2, with a three-hundred-day discovery period. The original discovery end date was December 2, 2008.
Defendant promptly served its first discovery demands: a demand for answers to Uniform Interrogatories Form A served with its answer on February 6, 2008; a similar demand with its amended answer on February 15, 2008; and a first demand for production of documents on February 14, 2008.
Plaintiffs did not provide answers to interrogatories by their March 7, 2008 due date. Defendant sent letters on March 11 and April 7, 2008, advising plaintiffs' counsel of their failure and asking that answers be provided. Receiving no response, defendant sent a third letter on April 23, 2008, advising that unless answers were received by May 1, 2008, a motion would be filed without further effort to resolve the discovery issue.
Defendant filed a motion to compel discovery on May 7, 2008 that was returnable on May 23, 2008. However, upon receipt of plaintiffs' answers to interrogatories on May 12, 2008, defendant withdrew its motion.
By letter dated July 10, 2008, defense counsel advised plaintiffs' counsel of deficiencies in the answers to the Form A Interrogatories, specifically to Interrogatories 13, 14, 15, 22 and 23, and the request for expert discovery. In addition, defendant served a second demand for production of documents and requested that plaintiffs provide authorizations for the release of medical records.
By letter dated August 19, 2008, defense counsel advised plaintiffs' counsel of the continuing deficiencies in plaintiffs' discovery obligations and warned that continued non-compliance would result in a motion being filed.
Defendant filed a second motion to compel discovery on September 17, 2008, returnable October 10, 2008. The motion sought an order, pursuant to Rule 4:23-5(c), compelling plaintiffs to provide complete or more specific answers to Uniform Form A Interrogatories 13, 14, 15, 22 and 23 by a date certain and to provide documents demanded in the second demand for production of documents by a date certain. The motion was unopposed.
Before the return date, plaintiffs provided authorizations for the release of medical records. By letter dated October 6, 2008, defense counsel advised that the authorizations were unacceptable because: they appeared to be signed by the same person; Section B on all of the authorizations was not initialed; and the authorization on behalf of the minor child did not identify the name and relationship of the person who signed on her behalf. Defense counsel also advised that he would not withdraw the motion to compel in light of the continuing failure to provide responses to Interrogatories 14, 15, 22 and 23.
On October 14, 2008, defendant's motion to compel discovery was granted. The order required plaintiffs to provide answers to Uniform Form A Interrogatories 13, 14, 15, 22 and 23 and to produce documents responsive to the second demand for production of documents no later than November 15, 2008.
Plaintiffs provided an incomplete response on October 21, 2008. They provided authorizations for the release of medical records for Myung J. Shin and her daughter, Sharon Choi, but not for Kyung Chan Choi. In addition, no answers were provided to interrogatories 22 and 23. Defense counsel advised by letter dated October 27, 2008 that, since Mr. Choi claimed to suffer from medical symptoms, his failure to provide a signed authorization by the November 15 deadline and the failure to provide answers to Interrogatories 22 and 23 "will be considered a violation" of the court's order.
By letter dated November 17, 2008, defense counsel advised plaintiffs' counsel that plaintiffs were in violation of the order compelling discovery. As corrected by a November 19 letter, the deficiencies were identified as the failure to provide a properly initialed, signed and dated authorization for release of protected health information by Kyung Chan Choi and answers to Form A Interrogatories 15, 22 and 23. Defense counsel advised plaintiffs that if such discovery was not received by the close of business on November 19, 2008, a motion to dismiss the complaint without prejudice would be made pursuant to Rule 4:23-5(a)(1). Plaintiffs provided the authorization for the release of Mr. Choi's medical records on November 18, 2008. However, they provided no further answers to interrogatories prior to the filing of defendant's motion to dismiss without prejudice.*fn1
Therefore, as of November 20, 2008, defendant's position was that plaintiff had failed to answer the following Uniform Form A Interrogatories:
15. Identify all documents that may relate to this action, and attach copies of each such document.
22. If you claim that the violation of any [statute] rule, regulation or ordinance is a factor in this litigation, state the exact title and section.
23. State the names and addresses of any and all proposed expert witnesses. Set forth in detail the qualifications of each expert named and attach a copy of each expert's current resume. Also attach true copies of all written reports provided to you by any such proposed expert witnesses. With respect to all expert witnesses, including treating physicians, who are expected to testify at trial, and with respect to any person who has conducted an examination pursuant to Rule 4:19, state each such witness's name, address and area of expertise and attach a true copy of all written reports provided to you. If a report is not written, supply a summary of any oral report provided to you. State the subject matter on which your experts are expected to testify. State the substance of the facts and opinions to which your experts are expected to testify and provide a summary of the factual grounds for each opinion.
Just three days before the December 19 return date for defendant's motion to dismiss without prejudice, plaintiffs' counsel provided responses to the interrogatories and requested that the motion be withdrawn. In response to Interrogatory 15, seeking documents related to the action, plaintiffs stated:
All documents in plaintiff's possession relating to this incident have already been provided. Investigation and discovery are continuing and Plaintiff reserves the right to supplement, revise, augment and modify these answers up to and including trial.
In response to Interrogatory 22, seeking the identification of any violation that was a factor, plaintiffs answered:
Objection to the extent that this Interrogatory requests expert information and/or requests legal conclusions from a layperson. Nevertheless, plaintiff has not yet determined and/or designated expert witnesses who will be called to testify at the time of trial. After completion of discovery, plaintiff will designate expert witnesses and produce expert reports and curricula vitae. By way of further response, this answer to Interrogatory and any supplemental answer hereto are not and should not be considered an adoptive admission. Investigation and discovery are continuing and plaintiff reserves the right to revise, augment and modify this answer.
In response to Interrogatory 23, seeking the identification of experts and their opinions, plaintiffs stated:
Plaintiff has not yet determined and/or designated expert witnesses who will be called to testify at the time of trial. In discovery and in accordance with New Jersey Rules of Civil Procedure and/or any issued Case Management Order, plaintiff will designate expert witnesses and produce expert reports and curricula vitae. By way of further response, this answer to Interrogatory and any supplemental answer hereto are not and should not be considered an adoptive admission. Moreover, plaintiff reserves the right to call each and every expert disclosed in discovery. Investigation and discovery are continuing and plaintiff reserves the right to revise, augment and modify this answer.
By letter dated December 17, 2008, defense counsel identified the deficiencies in these responses and advised that the motion would not be withdrawn. Defense counsel also specifically responded to plaintiffs' assertion of a right to supplement discovery that continued throughout "discovery," even to the time of trial. Defense counsel noted that documents to be relied upon must ordinarily be produced before the expiration of the discovery period, which was January 31, 2009; that in this case, the documents were required to be supplied by November 15 by court order, and that any supplements must comply with Rule 4:17-7. Similarly, defense counsel addressed the failure to provide any expert information, stating "The designation of expert witnesses and production of expert reports is part of the discovery process and must be provided prior to the expiration of the discovery period or, in this case, by the deadline that was imposed by the Court's Order dated October 14, 2008 . . . ." Defense counsel noted the prejudice to defendant caused by plaintiffs' discovery failures:
Since the defendants have the right to depose any expert witness named by the plaintiffs pursuant to R. 4:10-2(d)(2), those depositions must be completed within the discovery period. Your clients' failure to provide this information has prevented defendant thus far from taking the deposition of their experts, and in fact, their complete lack of cooperation in providing discovery has prevented defendant from deposing the plaintiffs themselves.
Plaintiffs did not oppose the motion to dismiss without prejudice. On December 22, 2008, an order was entered that declared plaintiffs to be in violation of the order dated October 15, 2008 and dismissed the complaint without prejudice pursuant to Rule 4:23-5(a)(1).
The discovery end date of January 31, 2009 passed without any further discovery responses from plaintiffs.
Pursuant to Rule 4:23-5(a)(2), a motion to dismiss a complaint with prejudice may be filed "after the expiration of 60 days from the date of" an order dismissing the complaint without prejudice pursuant to Rule 4:23-5(a)(1). Accordingly, on February 26, 2009, after the sixty-day period had expired, defendant filed a motion to dismiss the complaint with prejudice, returnable March 20, 2009. Plaintiffs filed opposition along with a cross-motion to restore the complaint that was accompanied by "Plaintiffs' More Responsive Answers to Form A Interrogatories."*fn2
Although the discovery period had expired, each of the "more responsive" answers included this statement: "Investigation and discovery are continuing and plaintiff reserves the right to revise, augment and modify this answer." In the case of relevant documents, plaintiffs claimed the right to revise their answer "up to and including trial." In response to Interrogatory 15, plaintiffs again maintained that all requested documents had been provided, although the response provided no detail and did not identify any of the documents produced or the circumstances of their production. In response to Interrogatory 22, seeking an identification of relevant violations, plaintiffs produced a list of "violations" that were as general as "Local, County and State Building Codes." The answer provided only two references to statutes, the Consumer Fraud Act, "Consumer Fraud Provision; N.J.S.A. 56:8-1, et seq., 56:12-71 et seq., 56[:]12-60, et seq.," and a criminal statute, "N.J.S.A. 2C:17-2. Causing or risking widespread injury or damage[.]" As for Interrogatory 23, seeking expert discovery, plaintiffs identified four physicians but provided no expert reports. Plaintiffs also responded,
All physicians who have examined plaintiff and/or all physicians who may be called upon to examine plaintiff through ongoing discovery. All property damage experts, engineers, indoor air quality experts, toxic mold experts, environmental experts to be revealed through ongoing discovery.
As of March 20, 2009, the date the motions were argued, plaintiffs had not provided any expert reports to defendant and plaintiff's counsel admitted that he had no experts at that time:
I don't know who they are at this time. They may have a Korean doctor who's an EMT [sic]. He's never written an expert report. So I'm trying to confer with him and he doesn't speak English so I'm doing it through office people to get an expert report, explain to him what it is, explain to him what needs to be in there.
Plaintiffs' counsel also acknowledged that he had no liability expert, stating that he needed to get an engineer to examine the property but had been unable to do so because the case had been dismissed. The trial court granted the motion to dismiss the complaint with prejudice, denied the motion to reinstate the complaint and provided a written statement of reasons for its rulings on March 20, 2009.
In this appeal, plaintiffs argue that the trial court was precluded from dismissing the complaint with prejudice pursuant to Rule 4:23-5(a)(2) because they provided fully responsive answers to interrogatories before the return date for the motion. To support this argument, plaintiffs cite St. James AME Dev. Corp. v. City of Jersey City, 403 N.J. Super. 480, 485 (App. Div. 2008) ("[T]he production of fully responsive answers by the time of the return date, even without exceptional circumstances, precludes dismissing the complaint with prejudice."). Their reliance is misplaced.
Although plaintiffs have attempted to characterize the issue here as a bona fide dispute over the sufficiency of the answers provided, the fact remains that plaintiffs never provided any expert reports to defendant. As a result, their contention that they provided fully responsive answers by the return date is simply false and we need not consider the sufficiency of plaintiffs' other answers to interrogatories.
Plaintiffs were repeatedly informed of this deficiency throughout the litigation and failed to cure it. During the period from May 2008 through February 2009, defendant filed two motions to compel discovery, one motion to dismiss without prejudice and, finally, a motion to dismiss with prejudice, all of which were based in part on the failure to provide expert reports. Yet, this failure persisted despite a court order directing production of outstanding discovery that included expert reports by November 15, 2008, the expiration of the discovery period on January 31, 2009, and even on March 20, 2009, the date that the motions were argued. This failure cannot be minimized as a mere dispute over the sufficiency of interrogatory responses. As defense counsel noted in one of his many letters seeking discovery, even if there had been no order compelling plaintiffs to provide this information by November 15, 2008, they were required to provide expert reports before the expiration of the discovery period. See also Pressler, Current N.J. Court Rules, comment 5.1 on R. 4:17-4 (2010). Plaintiffs' failure to provide expert reports thwarted defendant's ability to complete discovery by deposing plaintiffs' experts and obtaining defense experts to counter their claims.
Rule 4:23-5(a)(2) provides, "[t]he motion to dismiss . . . with prejudice shall be granted unless a motion to vacate the previously entered order of dismissal . . . without prejudice has been filed by the delinquent party and either the demanded and fully responsive discovery has been provided or exceptional circumstances are demonstrated."
Plaintiffs do not argue that they have demonstrated exceptional circumstances that preclude the dismissal of their complaint with prejudice. They have also failed to show that "the demanded and fully responsive discovery has been provided[.]" R. 4:23-5(a)(2). Therefore, the motion to dismiss the complaint with prejudice was properly granted. Because a motion to vacate the dismissal requires that outstanding discovery "has been fully and responsively provided," R. 4:23-5(a)(1), plaintiffs' failure to provide expert reports similarly precludes the granting of their motion to restore the complaint.