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Pagan v. Moore

August 11, 2010

GLADYS PAGAN, PLAINTIFF-APPELLANT,
v.
MICHAEL KENNETH MOORE, ALLSTATE INSURANCE COMPANY, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-1769-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued June 7, 2010

Before Judges Yannotti and Chambers.

Plaintiff Gladys Pagan appeals from orders entered by the trial court on November 10, 2009, which granted a motion by defendant Michael Kenneth Moore (Moore) to bar plaintiff from presenting any testimony or report from her proposed expert witness, Bryan J. Massoud, M.D. (Dr. Massoud), and denied plaintiff's motion for permission to introduce Dr. Massoud's videotaped deposition testimony into evidence at the time of trial. For the reasons that follow, we reverse.

I.

This appeal arises from the following facts. Plaintiff filed a complaint in the Law Division, in which she alleged that she was involved in a motor vehicle accident on June 25, 2005, and, as a result, sustained personal injuries. Plaintiff asserted that her vehicle was struck in the rear by a vehicle that was owned and operated by Moore. Plaintiff claimed that Moore had operated his vehicle negligently and she sustained injuries as a proximate cause of his negligence.*fn1

On or about January 31, 2008, plaintiff filed answers to the Form A Uniform Interrogatories, supplemental interrogatories and a notice to produce documents. Question twenty-three of the Form A interrogatories asked that plaintiff name her proposed expert witnesses and provide the expert's reports. In response to this question, plaintiff stated, "[a]ll treating physicians and staff named in these answers and attached documents." However, Dr. Massoud was not named as a treating doctor in the documents attached to the answers, nor did plaintiff furnish defendant with an expert report from Dr. Massoud.

Plaintiff was deposed on December 10, 2008. She testified that several months earlier, she had surgery to address an injury sustained in the accident. She incorrectly stated that a Dr. Leu had performed the procedure. In March 2009, defendant requested copies of all of the records pertaining to the surgery. Plaintiff did not provide those records. Discovery in the case ended on May 14, 2009.

The matter was submitted to arbitration on May 21, 2009, pursuant to Rule 4:21A-1(a)(1). Plaintiff's attorney attached a copy of Dr. Massoud's two-page report to the arbitration statement dated May 20, 2009, which he submitted on plaintiff's behalf. Dr. Massoud's report was dated February 23, 2009.

In his report, Dr. Massoud noted that in October 2008, plaintiff underwent a bilateral, posterolateral endoscopic discectomy and annuloplasty at the L5-S1 level of the spine. Among other conditions, Dr. Massoud diagnosed cervical and lumbar strain syndrome, annular bulges, left lumbar radiculopathy, and exacerbation of plaintiff's pre-existing, asymptomatic cervical spondylosis. Dr. Massoud additionally stated that plaintiff was a candidate for another cervical endoscopic discectomy and annuloplasty at the C2-C3 and C5-C6 levels of the spine.

Dr. Massoud opined that, within a reasonable degree of medical certainty, plaintiff's diagnoses, need for surgical intervention and further medical care, decreased quality of life, and functional abilities were the direct causal result of the June 25, 2005, motor vehicle accident. The doctor further opined that plaintiff's condition was permanent in nature.

The case was initially scheduled for trial on October 19, 2009. On July 30, 2009, plaintiff's counsel advised defense counsel that he intended to conduct a videotaped deposition of Dr. Massoud on October 1, 2009. Before participating in the deposition, defendant's attorney stated on the record that she would object to the presentation of Dr. Massoud's testimony at trial because plaintiff failed to name the doctor as her expert or furnish his report and treatment records prior to the discovery end date. It appears that the treatment records were provided at the deposition and defendant's attorney was given an opportunity to review them before deposing Dr. Massoud.

At defendant's request, the court adjourned the trial date to November 30, 2009. On October 13, 2009, plaintiff filed a motion seeking leave to present Dr. Massoud's videotaped deposition as evidence at trial. Defendant thereafter filed a cross-motion to preclude ...


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