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Cortes v. Kitabayashi


November 4, 2010


On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3441-07.

Per curiam.


Submitted: October 20, 2010

Before Judges Fisher and Fasciale.

Plaintiff, Norberto Cortes, received a verdict of no cause of action in this verbal threshold case. At trial the parties disputed whether plaintiff's cervical disc herniations were related to a November 7, 2006 car accident or were pre-existing. Plaintiff appeals from a July 29, 2009 order granting defendant's motion in limine barring admission of a February 15, 1997 MRI report served two weeks before the trial began.*fn1 We are convinced that the interests of justice were not served by barring the report and reverse and remand for a new trial.

Both counsel attempted to obtain medical records from Dr. Victor Rossi, a chiropractor who treated plaintiff for injuries sustained in a 1994 accident. Before the summer of 2007, Dr. Rossi told plaintiff's counsel twice that no such records existed. Defendant's counsel then subpoenaed the same records from Dr. Rossi and, on November 5, 2008, also learned that the records were unavailable. On December 9, 2008, defendant's counsel notified plaintiff's counsel that "Dr. Rossi's office has advised that they are not in possession of old records from 1994 regarding plaintiff."

In preparing for trial, plaintiff's counsel notified Dr. Rossi that he would call him as an expert witness. As a result, Dr. Rossi conducted one more search for the medical records and, two weeks before the scheduled trial date, Dr. Rossi informed plaintiff's counsel that he located the MRI report. According to the report, there were no significant degenerative changes in plaintiff's neck, and there was no evidence of disc herniations.

Plaintiff's counsel immediately faxed the report to defense counsel and amended plaintiff's interrogatory answers pursuant to Rule 4:17-7.

Defense counsel contended that the report was served beyond a December 18, 2008 discovery end date, that plaintiff's counsel failed to explain why the report was not timely served, and that defendant would be prejudiced if plaintiff were permitted to use the report at trial. Plaintiff's counsel argued that the MRI report was not available through the exercise of due diligence and that plaintiff would be prejudiced if the judge excluded the report. He requested a short adjournment to obtain the MRI films and allow defendant an opportunity to respond to the new evidence. Plaintiff's counsel offered to have Dr. Rossi explain under oath why he was unable to locate the report sooner, but the judge ignored that offer.

In barring the MRI report, the judge stated "[f]irst of all, we are clearly on the eve of trial. Second of all, there's no pre-existing charge being requested by plaintiff, nor is there one going to be given if requested by defense." The judge acknowledged that "due to nobody's fault, nobody's error, those [MRI] films are not available... this morning." The judge denied plaintiff's request for an adjournment, refused to stay his order, and allowed plaintiff's counsel thirty minutes to file an interlocutory appeal.*fn2

On appeal, plaintiff argues that the trial judge abused his discretion by excluding the report and denying his adjournment request. Under the circumstances, we agree.

Certainly, it is true that a party has an obligation to amend interrogatory answers "not later than 20 days prior to the end of the discovery period.... " R. 4:17-7. Here, plaintiff's counsel clearly failed to serve the MRI report twenty days before the December 18, 2008 discovery end date. However, amendments may be allowed after the discovery period ends "if the party seeking the amendment certifies... that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date." Ibid. On July 23, 2009, plaintiff's counsel provided a detailed certification explaining why the MRI report was not reasonably available or discoverable by the exercise of due diligence. He also asked for an adjournment so that "defendant's medical experts [could] review the report and attempt to obtain the film[s]... and issue a supplemental opinion."

The judge barred the report, in part because "no pre-existing charge was requested by plaintiff." Plaintiff's theory, however, was that the November 7 accident caused his disc herniations, not that the accident aggravated a pre-existing condition. Defendant contended at trial that plaintiff's disc herniations were longstanding and related to degenerative conditions, but the MRI report contradicted those assertions.

The scope of our review of a judge's evidentiary ruling is limited. "We generally defer to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005). Although the "Best Practices" rules were implemented to enhance the productivity and expedition of the civil litigation process, Vargas v. Camilo, 354 N.J. Super. 422, 425 n.1 (App. Div. 2002), certif. denied, 175 N.J. 546 (2003), "[t]hey were not designed to do away with substantial justice on the merits or to preclude rule relaxation when necessary to 'secure a just determination.'" Tucci v. Tropicana Casino and Resort, Inc., 364 N.J. Super. 48, 53 (App. Div. 2003) (quoting Rule 1:1-2). Because Dr. Rossi twice advised counsel that the records in question were not in his possession, and did not learn otherwise until shortly before trial, the commitment of our courts to "secure... just determination[s]," R. 1:1-2, required a reopening of discovery to fairly deal with the surfacing of the MRI report and films.

We anticipate that defendant may wish to reopen discovery to have the defense expert witnesses review the MRI report and films and issue supplemental opinions. If requested, discovery may be reopened for a limited time for that purpose.

Reversed and remanded for a new trial. We do not retain jurisdiction.

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