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Zeskand v. Brooks

March 22, 2010

GERALDINE R. ZESKAND AND SAUL ZESKAND, PLAINTIFFS-APPELLANTS,
v.
MIDGE BROOKS, DEFENDANT, AND MICHAEL VINCENT DIMAIOLO, DEFENDANT-RESPONDENT.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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.

I.

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 ...


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