On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-4788-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued January 11, 2011 - Decided Before Judges Payne and Baxter.
Plaintiff Haydee Fabiana Pareja*fn1 appeals from a March 1, 2010 Law Division order that denied her request for an adjournment of the trial for the purpose of securing a new expert witness and from an April 16, 2010 order that denied her motion for reconsideration. Nearly five months elapsed between the time plaintiff's counsel first learned his expert witness was no longer willing to testify, and the time he requested an adjournment of the trial date to secure a new expert. Under such circumstances, we reject plaintiff's argument that the judge abused his discretion by denying her adjournment request. We affirm the orders under review.
On June 26, 2006, plaintiff was a passenger in a car operated by her husband when their vehicle was struck by a car driven by defendant Victor Hiromoto. During the pretrial discovery period, plaintiff identified two physicians as potential expert witnesses, Dr. Ormand Wilkie and Dr. Rey Bello. Plaintiff provided copies of their reports to defendants, although she later notified them that she intended to call only
Bello as a witness at trial. After one extension, the discovery end date was set at August 7, 2009.
During the October 1, 2009 arbitration proceeding, see R. 4:21A-1(a)(1), one of the two defense attorneys told plaintiff's attorney that Dr. Wilkie had died, and that Dr. Bello "won't come to court and testify anymore." Defense counsel recommended that plaintiff move to reopen discovery so a new expert witness could be secured.
Although plaintiff's counsel later acknowledged he learned as early as October 1, 2009 that Bello was probably unwilling to testify on plaintiff's behalf, counsel did not contact Dr. Bello's office until the third week of December to make an inquiry. Counsel spoke to the officer manager who, according to plaintiff's counsel, told him Dr. Bello is "no longer practicing." When asked whether Dr. Bello would be willing to testify at the January 19, 2010 trial, the office manager promised to investigate the matter and report back to plaintiff's counsel. She never did.
Plaintiff's counsel sought an adjournment of the January 19, 2010 trial date because of a scheduled vacation. He never mentioned to the judge or to either defense attorney that he was not ready for trial because he needed to retain a new expert. The judge directed plaintiff's counsel to consult with opposing counsel to select a date on which all three lawyers, their clients, and their witnesses would be ready to try the case. Plaintiff and opposing counsel selected February 16, 2010 as the new trial date. When plaintiff's counsel submitted the agreed-upon trial date of February 16, 2010, he made no mention of the fact that he had no expert witnesses.
Not until the morning of trial on February 16, 2010 did plaintiff's counsel advise the judge or the defense attorneys that he needed an adjournment to obtain a new expert. He urged the court to adjourn the trial rather than dismiss the case, assuring the judge he would be able to secure a new expert within "another couple of months."
Both defendants objected to plaintiff's request for an adjournment. They told the judge during oral argument on February 16, 2010 that had plaintiff asked them to consent to a reopening of discovery in October, they would have willingly done so, but plaintiff's excessive delay and inattention to the file over such a long period of time caused them to oppose plaintiff's request to reopen discovery and adjourn the trial. They emphasized that if discovery were to be reopened after such a long delay, they would be forced to secure a new defense medical examination of plaintiff, and depose plaintiff's new expert.
Relying on the Supreme Court's opinion in Bender v. Adelson, 187 N.J. 411, 428 (2006), Judge Miller held that plaintiff failed to show the diligence or exceptional circumstances that would warrant an adjournment of the trial date or the reopening of discovery. The judge commented that he was unwilling "at this point in time" to reopen discovery to permit "you [plaintiff] to be where you were on October 1st." He added, "if this was October 1st, gladly we could do that, but it is not . . . ." As soon as the judge denied plaintiff's motion to reopen discovery, plaintiff advised the judge she was unable to proceed, whereupon the judge dismissed her complaint with prejudice. The judge signed a confirming order on March 1, 2010.
Plaintiff filed a reconsideration motion, which the court denied by order of April 16, 2010. In a written opinion accompanying the April 16, 2010 order, the judge observed, as he had when he issued the March 1, 2010 order, that plaintiff's counsel learned of the problem with Dr. Bello as early as October 1, 2009, but made no effort to address the problem by promptly seeking to reopen discovery, or by raising the issue with the judge and opposing counsel at the time of the first trial listing on January 19, 2010. Reasoning that neither plaintiff nor her attorney had acted with the diligence that the ...