On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1329-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Baxter and Alvarez.
Plaintiff Alethea Vaughn appeals from the denial of her motion for reconsideration of a July 17, 2009 order barring the use of an expert report she produced as an amendment to interrogatories six days prior to the discovery end date. We affirm.
Plaintiff filed suit against defendants Peter N. Massa and Broadway Bus Company (Broadway) for personal injuries suffered when, as alleged in her complaint, she was struck by a Broadway-owned bus operated by Massa while seated on a motor scooter in the City of Bayonne. At the time, plaintiff was working as a "traffic officer." She alleges Massa was negligent and proximately caused her to suffer injuries to her back and right knee.
Defendants filed their answer out of time on June 19, 2008. Plaintiff's attorney agreed to vacate the default on the condition that defendants would grant plaintiff an additional sixty days for the submission of a "tort threshold certification of treating physician" if necessary. Plaintiff forwarded her answers to interrogatories to defendants on December 11, 2008. She listed her treating physician, Dr. John A. Faccone, as her proposed expert witness. The parties stipulated to a discovery end date of June 18, 2009.
On June 12, 2009, six days before the discovery end date, plaintiff mailed an April 20, 2009 expert report authored by Dr. Stuart Dubowitch as an amendment to her answers to interrogatories. In that report Dr. Dubowitch opined that plaintiff's injuries were "severe and permanent," that she would experience "ongoing problems in the future," and that she would continue to require medical care indefinitely. The letter forwarding the report indicated that Dr. Dubowitch was the "expert physician who may testify at the time of trial," and that the absence of a response by defense counsel within ten days would constitute acceptance of the amendment to plaintiff's interrogatory answers. Plaintiff's counsel included neither a copy of Dr. Dubowitch's credentials nor a certification stating that the report "was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date" as required by Rule 4:17-7. Plaintiff asserts that Dr. Dubowitch is the sole expert to be presented during trial and that his report is the only report as to causation, although it merely indicated in passing that the injuries were "sustained in an accident."
On June 17, 2009, defendants filed a motion to bar the amendment to interrogatories premised on plaintiff's failure to comply with Rule 4:17-7, which provides:
Except as otherwise provided by [Rule] 4:17-4(e), 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, as fixed by the track assignment or subsequent order. 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. In the absence of said certification, the late amendment shall be disregarded by the court and adverse parties. Any challenge to the certification of due diligence will be deemed waived unless brought by way of motion on notice filed and served within 20 days after service of the amendment. Objections made thereafter shall not be entertained by the court. All amendments to answers to interrogatories shall be binding on the party submitting them. A certification of the amendments shall be furnished promptly to any other party so requesting.
Plaintiff's opposition to the motion was filed on July 9, 2009. On that same date, both parties were sent a notice advising of the date of mandatory, non-binding arbitration. The motion was decided on the papers on July 17, 2009.*fn1 Defendant's motion was granted and plaintiffs were precluded from use of the report in arbitration and at trial. Additionally, the order prohibited "any and all reference, reliance upon, or testimony arising from or associated with Dr. Stuart Dubowitch."
In reaching her decision, the first motion judge relied heavily on the timeline, and the fact that while the report was dated April 20, 2009, two months before the discovery end date of June 18, 2009, it was not sent to defendants until June 12, 2009. The court also noted that the late submission "deprived movant of [the] ability to timely move for [an extension] of [discovery]" and that plaintiff did not request an extension of the discovery end date. The court stated that no explanation was provided for the late filing, arbitration was scheduled for August 27, 2009, and that exceptional circumstances were not established. The court further opined that defendants would be severely prejudiced if the expert was not barred.
On August 13, 2009, plaintiff filed for reconsideration before a second motion judge, the first having retired. For the first time, plaintiff's counsel certified that the report was produced so late in the process because he "failed to include in [his] diary a second entry for the submission of [the] expert report pursuant to Rule 4:17-7." The certification went on to state that he did not realize the error ...