On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1030-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Miniman and Waugh.
Plaintiff Charles J.F. McHugh appeals the denial of his motion for a new trial following a jury verdict of no cause of action with respect to his personal injury claim against defendant University Medical Center at Princeton (Medical Center). He also appeals the denial of his subsequent motion for relief from the judgment pursuant to Rule 4:50-1. We affirm the denial of the motion for a new trial, but remand to the trial court for consideration on the merits of McHugh's Rule 4:50-1 motion.
In 2003, McHugh was an emergency room physician employed by Princeton Emergency Physicians, a medical group that had a contract to staff the emergency department at the Medical Center. On the morning of April 22, 2003, McHugh arrived at the Medical Center for his 8:00 a.m. shift.
At some point after McHugh began his shift, there was a back-up of the floor drain in the emergency department, which is located in the S-wing hallway. At the conclusion of his shift, at approximately 7:00 p.m., McHugh went to the doctor's lounge, which is also in the S-wing hallway, to retrieve his belongings and put away his lab coat. McHugh noticed yellow "wet floor" signs and a boom, an absorbent roll used to clean up spills, in the hallway within a few feet of the lounge door. Upon entering the doctor's lounge and turning on the light switch, McHugh slipped and fell.*fn1 McHugh testified that he slipped on a puddle of sewage, which he identified by its odor.
As a result of the fall, McHugh suffered tightened muscles, back pain, and an L5 pars fracture. According to McHugh, after undergoing pain treatment and surgery for his injuries, he still suffers from a great deal of pain and can only work reduced shifts and handle two-thirds of the work load of an average emergency room physician. Additionally, he is no longer able to do heavy yard work, household chores, or carry heavy items.
On April 15, 2005, McHugh filed a complaint against the Medical Center alleging that it was negligent in failing to maintain its premises in a safe condition.*fn2 McHugh's attorney served Uniform C and Uniform C2 Interrogatories on the Medical Center, which answered them on September 22, 2005. In its interrogatory answers, the Medical Center designated Frank Groman as a person with knowledge relevant to the case, and specifically identified Groman as "the hospital's plumber/pipe- fitter" who "cleared the floor drain back-up in the S-Wing hallway in the early afternoon of 4/22/03." Groman's address was listed as "c/o The Medical Center at Princeton."
McHugh's attorney deposed Groman on June 15, 2006. Groman testified that, on the day of McHugh's fall, he had snaked out the drains in the S-wing because he received a report that there had been a back-up. He stated that it was his job to clean up the "heavy stuff." He then placed cones and barricades around the drain outside the physician's lounge and called the environmental services department to assist with the remaining clean up. Groman further testified that "there was no sign of anything that had leaked through underneath the door" and that he distinctly recalled looking in the doctor's lounge to make "sure that the area was nice and clean and dry."
The case was originally listed for trial in November 2007. On October 26, 2007, McHugh's attorney served the Medical Center with a notice in lieu of subpoena seeking the production of Groman to testify at trial.
Following several adjournments, the case was called for trial on October 27, 2008, at which time a pretrial conference was held. During the conference, McHugh's attorney reminded the Medical Center's attorney about the outstanding notice for Groman's testimony, and was assured that Groman would be produced for testimony at trial if counsel so desired. As part of the pretrial exchange, McHugh served a witness list that identified Groman as a potential witness.
The actual trial took place on October 28, 29, and 30, 2008, before a jury. Just before the close of McHugh's case, his attorney read to the jury portions of the Medical Center's responses to requests for admissions and interrogatories. He also read a portion of Groman's deposition to the jury, but did not call him as a witness. ...