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Zeskand v. Brooks


March 22, 2010


On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-8054-05.

Per curiam.


Submitted March 8, 2010

Before Judges Baxter and Alvarez.

Plaintiffs Geraldine R. Zeskand and Saul Zeskand, husband and wife, appeal from a June 19, 2009 Law Division order that denied their motion to vacate an earlier dismissal of their complaint with prejudice. They also appeal from a February 20, 2009 order that barred them from presenting two new experts after the discovery end date (DED) had passed. We affirm.


On December 26, 2004, the Zeskand vehicle was struck by a vehicle operated by defendant Midge Brooks when Brooks lost control of her vehicle because of the icy conditions on the roadway. A second vehicle, operated by defendant Michael DiMaiolo, did not strike either plaintiffs' or Brooks's vehicle but was traveling more closely behind the Zeskand vehicle than was prudent in light of the prevailing conditions; however, because the DiMaiolo vehicle did not impact either of the other two vehicles, the judge granted DiMaiolo's motion for summary judgment.*fn1 Plaintiffs appealed. Concluding that there were genuine issues of material fact, we reversed the grant of summary judgment and remanded for trial on the issue of DiMaiolo's negligence. Zeskand v. Brooks, No. A-0186-07 (App. Div. May 2, 2008). On June 9, 2008, approximately one month after the remand, the court conducted a case management conference, which resulted in the entry of an order establishing September 8, 2008, ninety days hence, as the DED.

On September 15, 2008, one week after the DED had passed, a second case management conference was conducted, which resulted in Judge Hurley establishing a trial date of December 8, 2008. The order entered as a result of that conference specified that the testimony of any expert unavailable for trial should be videotaped. The order also specified that "[t]here will be no adjournments to trial based upon unavailability of experts." Notably, at neither the June 9, 2008 nor the September 15, 2008 case management conference did plaintiffs mention any problems concerning the availability of their medical experts, nor did they advise the judge that either of their experts had become unavailable or had withdrawn.

On September 26, 2008, eighteen days after discovery had ended, plaintiffs filed a motion to: bifurcate the trial on the issues of damages and liability; grant plaintiffs leave to obtain replacement experts for Dr. William Cunningham and Dr. Darlene Osipuk; and adjourn the trial date. In a certification by their attorney in support of the motion, counsel maintained that "two of plaintiffs' expert doctors have refused to testify at trial." Counsel asserted that Cunningham, who was Saul Zeskand's "main treating doctor," had retired "and advises he has heart problems and refuses to testify at the trial, and also refuses to be deposed." According to counsel, Cunningham had "closed his office and changed his telephone number." Counsel did not specify in his certification when he first learned that Cunningham had retired or that he was refusing to cooperate. Nor did counsel provide any documents or other proofs concerning Cunningham's unavailability.

The same certification also explained that "Geraldine Zeskand's longstanding psychiatrist, Dr. Darlene Osipuk, has also refused to testify at trial, and is also refusing to be deposed on plaintiff's behalf." Counsel provided no reasons for such withdrawal. As with Cunningham, counsel failed to reveal when he first learned of these ostensible problems with Osipuk and failed to provide any correspondence or other documents concerning Osipuk's withdrawal from the case. Because Cunningham and Osipuk were allegedly unavailable, plaintiffs' motion sought a revision of the case management order, a reopening of the discovery period, and an extension of the trial date.

In a supplemental certification of counsel dated October 21, 2008, counsel sought to provide additional detail concerning his effort to locate new experts. After observing that Cunningham and Osipuk were treating physicians, and not retained experts, counsel commented that even if he attempted to "force[]" Cunningham and Osipuk to testify under subpoena, "they could only be asked factual questions and not their opinion as to permanency and future problems, as that is the province of experts and [Cunningham and Osipuk] would only be deposed for their factual information, not as experts at trial." Counsel also explained that he had identified two physicians who were willing to provide expert testimony on plaintiffs' behalf, one of whom, William Head, M.D., "usually testifies as a defense expert." The other was Dr. Peter Crain, who was available to evaluate Geraldine Zeskand on November 10, 2008. At the time counsel submitted his supplemental October 21, 2008 certification, he had not yet obtained reports from either Head or Crain.

By order of October 24, 2008, Judge Hurley denied plaintiffs' motion to bifurcate and to replace the experts who would be called at trial. The judge did, however, adjourn the December 8, 2008 trial date, with a new date to be issued thereafter.

Without filing a motion for reconsideration or taking any other action to address the denial of their motion to substitute new experts, on December 31, 2008, plaintiffs served DiMaiolo with reports of their new experts, Head and Crain. Plaintiffs also notified DiMaiolo that they intended to call the two physicians as experts at trial. Within days, DiMaiolo filed a motion to bar the testimony of Head and Crain, as well as any other expert not previously named prior to the expiration of the DED. Plaintiffs cross-moved to allow the new experts to testify.

By order of February 20, 2009, Judge Hurley denied plaintiffs' motion to amend their answers to interrogatories by naming Drs. Crain and Head as experts. In a statement of reasons appended to the order, the judge explained that the trial had already been adjourned several times "and plaintiffs' similar motion was denied on October 24, 2008, at which time this court suggested, in its order, that plaintiffs subpoena [their] doctor[s] for de bene esse deposition. Plaintiffs failed to do so even though given time to do so (trial was then adjourned)."

The judge also noted that he had previously extended the trial date to afford plaintiffs the opportunity to videotape their experts, but that plaintiffs had not done so. In the interim, on January 21, 2009, the assignment judge denied plaintiffs' motion for bifurcation of the liability and damages portions of the trial.

Trial was scheduled for March 2, 2009. On the morning of trial, plaintiffs notified the judge that they were unable to proceed as the court had barred their expert witnesses. Judge Francis signed the order that plaintiffs had prepared in anticipation of the dismissal of their complaint.*fn2

Eight days later, on March 10, 2009, plaintiffs filed a motion seeking reconsideration of the March 2, 2009 order of dismissal. They also sought reconsideration of Judge Hurley's February 20, 2009 order barring their new experts. The judge denied the motions, ruling that issues of discovery were now moot in light of the March 2, 2009 order of dismissal. Nonetheless, on May 4, 2009, plaintiffs filed another motion seeking reconsideration of the March 2, 2009 order of dismissal. Plaintiffs again asserted that forcing Cunningham and Osipuk to appear for depositions would have been fruitless as plaintiffs could not have obtained opinion testimony from them on the issue of permanency, which was required to vault the verbal threshold, see N.J.S.A. 39:6A-8(a). Plaintiffs also explained that Cunningham's refusal to testify was understandable in view of his heart condition, as was Osipuk's, who had never previously been involved in litigation matters and was unwilling to subject herself to "rigorous cross-examination." By order of June 19, 2009, Judge Hurley declined to vacate or reconsider either the March 2, 2009 order of dismissal or the February 20, 2009 order barring plaintiffs' new experts.

On appeal, plaintiffs raise the following claims:




Although parties may consent to extend the time for discovery for an additional sixty days, no such consensual extension of discovery may be sought after the expiration of the discovery period. R. 4:24-1(c). Thus, because plaintiffs made no effort during the ninety-day discovery period to seek defendant's consent to an extension, their only option was the filing of a motion to extend the DED. However, by filing their motion to extend discovery after the DED had already passed, plaintiffs were confronted with the "exceptional circumstances" requirement of Rule 4:24-1(c). In particular, Rule 4:24-1(c) provides that "[n]o extension of the discovery period may be permitted after an arbitration or trial date is fixed, unless exceptional circumstances are shown."

By the time plaintiffs filed their September 26, 2008 motion to permit them to name new experts, the September 8, 2008 DED had already passed, and a trial date of December 8, 2008 had already been established. Thus, because the discovery period had concluded and a trial date had been set, the judge was obliged to deny their motion to extend discovery unless they established "exceptional circumstances." Ibid.

Also of relevance to this appeal are the provisions of Rule 4:17-7, which specifies that untimely requests to amend answers to interrogatories must be accompanied by a showing of due diligence. The Rule provides that: if a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than 20 days prior to the end of the discovery period . . . . Amendments may be allowed thereafter only if the party seeking to amend certifies therein 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 (emphasis added).]

Thus, once a party names an expert in his or her answers to interrogatories, he may not amend such answers by naming a new expert unless he certifies that the circumstances requiring the amendment were not known to him "by the exercise of due diligence prior to the discovery end date." Ibid.

Where, as here, a trial judge has denied a motion to extend discovery, we will not disturb that decision on appeal absent an abuse of discretion. Bender v. Adelson, 187 N.J. 411, 428 (2006). As the Court observed in Bender, Rule 4:24-1(c) was designed to "render it substantially more difficult [for a party] to obtain extensions and amendments once discovery has ended and a trial or arbitration date is set." Id. at 426. "The revised rules represent a carefully orchestrated compromise intended to" establish trial date certainty. Ibid. The Court observed that in the six years that had elapsed since the Best Practices Rules were enacted, significant progress had been made in achieving the "desired effect[s]" of the amendment to Rule 4:24-1(c). Id. at 428.

We turn to Point I, in which plaintiffs argue that it is unfair to punish them for any transgressions of their lawyer. They argue that, at most, a one-month delay of trial would have been necessary for defendant to depose Head and Crain and that the judge's refusal to extend the DED and permit such a short extension was an abuse of discretion. We recognize that in the exercise of judicial discretion, "justice is the polestar and our procedures must ever be moulded and applied with that in mind." N.J. Highway Auth. v. Renner, 18 N.J. 485, 495 (1955). The Rules of Practice are not ends in themselves, but "a means of serving the ends of justice." Viviano v. CBS, Inc., 101 N.J. 538, 550-51 (1986). However, rules and proper court procedures serve significant goals. As the Court observed in State v. Mitchell, 126 N.J. 565, 578-79 (1992), "'liberality in procedure has limits. The design and an essential function of rules of practice is to establish a certain order and sequence in the conduct of litigation. . . . [While] [t]he rules will not be allowed to become booby traps . . .[,] they were written and meant to be applied.'" (quoting Morris Schnitzer, Civil Practice and Procedure, 5 Rutgers L. Rev. 295, 295-96 (1950)).

We do not quarrel with the general proposition that an expert's unavailability and withdrawal from a case can, under certain circumstances, satisfy the "exceptional circumstances" required by Rule 4:24-1(c) when a plaintiff seeks to extend the DED after a trial date has been set. The problem here, however, is that nothing presented by plaintiffs, either before the Law Division or before us on appeal, does anything to provide the details necessary to support a claim of "exceptional circumstances." Neither plaintiffs nor their attorney have ever specified, despite numerous motion filings in the Law Division, when they first became aware that Cunningham and Osipuk had become unavailable.

Plaintiffs attended two case management conferences, one on June 9, 2008 and the other on September 15, 2008. At no time did plaintiffs even mention the difficulties they were experiencing with their experts. By the time the DED expired on September 8, 2008, more than four months had elapsed since our May 2, 2008 remand. In the exercise of due diligence, plaintiffs could have discovered, at some time before the DED expired on September 8, 2008, that their experts were unavailable. The filing of a motion to extend discovery on September 26, 2008, which by then was subject to the "exceptional circumstances" requirement of Rule 4:24-1(c), also is not compatible with the "due diligence" requirement of Rule 4:17-7.

We have been presented with no reason why plaintiffs could not have discovered between May 2, 2008, when the remand occurred, and September 8, 2008, when the discovery period ended, that their experts had withdrawn. Plaintiffs' failure to explain when they first learned their experts were unavailable fully justifies Judge Hurley's conclusion that plaintiffs had not presented the "exceptional circumstances" required by Rule 4:24-1(c).

We have no doubt that if Drs. Cunningham and Osipuk did not decide to withdraw until the DED had already passed, Judge Hurley would have granted plaintiffs' motion to extend the DED and would have afforded plaintiffs the opportunity to name Drs. Head and Crain as their new experts. Such a late notification would have demonstrated that even with the exercise of due diligence, plaintiffs would have been unable to discover their experts' unavailability before the expiration of the discovery period. See R. 4:17-7. No doubt Judge Hurley recognized that plaintiffs bore the burden of establishing any such late notification by their experts, and plaintiffs had not satisfied that evidentiary burden.

Under those circumstances, Judge Hurley's decision barring plaintiffs' motion to name new experts was not an abuse of his discretion. If a party waits until the discovery period has ended, or has nearly ended, before first contacting his treating physicians to confirm their availability for trial, that party has no cause for complaint when a judge concludes that such inattention to the Rules of Practice is incompatible with a showing of "exceptional circumstances," R. 4:24-1(c), or "due diligence," R. 4:17-7.


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