January 26, 2011
HAYDEE FABIANA PAREJA, PLAINTIFF-APPELLANT, AND RAUL PAREJA, PLAINTIFF,
VICTOR HIROMOTO AND RAUL PAREJA, DEFENDANTS-RESPONDENTS.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 Rules of Court require, the judge concluded that plaintiff had presented nothing that would warrant reconsideration of the March 1, 2010 order of dismissal.
On appeal, plaintiff maintains that the judge abused his discretion by refusing to reopen discovery. Relying on Gonzalez v. Safe & Sound Security Corp., 185 N.J. 100 (2005), Kosmowski v. Atlantic City Medical Center, 175 N.J. 568 (2003), Brun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006), Handelman v. Handelman, 17 N.J. 1 (1954), and Tumarkin v. Friedman, 17 N.J. Super. 20 (App. Div. 1951), certif. denied, 9 N.J. 287 (1952), plaintiff argues:
Form should not predominate over substance, and the practice of law should not have to become divested of the human element, and sense of collegiality to be replaced by an unfeeling computer generated work place.
[F]undamental fairness trumps a dismissal and since the plaintiff's conduct, while not deserving of admiration, did not smack of gamesmanship, then the plaintiff should not be penalized with a dismissal of her action.
Thus, in both pre-Best Practices and even post-Best Practices Rules, the court should exercise its discretion in a reasonable manner [so that the] litigant [is] not . . . unfairly penalized . . . merely to blindly and narrowly adhere to Court Rules, especially when the very Court Rules themselves admit to exceptional circumstances and are tailored so that the interest of justice can be furthered.
On appeal, we owe considerable deference to a trial judge's refusal to permit amendments to interrogatory answers, to a denial of a request to reopen discovery, and to a refusal to remove the matter from the trial list. Bender, supra, 187 N.J. at 428. Absent an abuse of discretion, such decisions must be affirmed. Ibid.
In Bender, the Supreme Court was presented with an argument virtually identical to the one plaintiff advances here. The motion judge had denied the defendants' request to reopen discovery and to permit them to furnish the reports of three additional expert witnesses, id. at 418-19, reasoning there had already been "enough extensions" and the defendants had not acted with the diligence that the Rules of Court require, id. at 420. In urging reversal of the Law Division and the Appellate Division opinions, the defendants argued that the Rules of Court "are not designed to yield unjust results or to be applied mechanically" and the plaintiff "would have had at least two full months to depose the additional experts before trial" had the judge granted their request to reopen discovery. Id. at 425.
The Supreme Court began by discussing the purpose of the "substantial changes to our Rules of Court" that were adopted in September 2000. Id. at 426. The Court observed that prior to the September 2000 rule amendments, the 150-day deadline for completing discovery was "'rarely observed,'" and "'attorneys [were] routinely granted extensions [with] no enforced discovery end date'" Ibid. (quoting Notices to the Bar: Report of the Conference of Civil Presiding Judges on Standardization and Best Practices, 156 N.J.L.J. 80, 82 (April 5, 1999)). The Court noted that as a result of the widespread disregard of discovery end dates (DED), "protracted discovery frequently necessitate[d] the postponement of scheduled trial dates[.]" Ibid. (internal quotations and citation omitted).
The 2000 amendments established a two-prong approach to address those problems and to create "state-wide uniformity in the discovery process." Ibid. The rule amendments significantly lengthened the pretrial discovery period, but at the same time the new rules "render[ed] it substantially more difficult to obtain extensions and amendments once discovery has ended and a trial or arbitration date [has been] set." Ibid. Thus, the revised rules "represent a carefully orchestrated compromise intended to 'end the general expectation that a case [will] be reached for trial only after multiple adjournments'" Ibid. (quoting Pressler & Verniero, Current N.J. Court Rules, comment 4 on R. 1:1-2 (2011)).
Of relevance to this appeal, Rule 4:24-1(c) requires that requests to amend answers to interrogatories after the DED has passed be accompanied by a showing of exceptional circumstances:
The parties may consent to extend the time for discovery for an additional 60 days by stipulation filed with the court or by submission of a writing signed by one party and copied to all parties, representing that all parties have consented to the extension. A consensual extension of discovery must be sought prior to the expiration of the discovery period. . . . No extension of the discovery period may be permitted after an arbitration or trial date is fixed, unless exceptional circumstances are shown.
[R. 4:24-1(c) (emphasis added).]
Also pertinent is Rule 4:36-3(b), which specifies that requests for a second adjournment shall be made "as soon as the need is known," but no later than "the Wednesday preceding the Monday of the trial week":
An initial request for an adjournment for a reasonable period of time to accommodate a scheduling conflict or the unavailability of an attorney, a party, or a witness shall be granted if made timely in accordance with this rule. . . . The written adjournment request . . . shall also include a proposed trial date, agreed upon by all parties, to occur as soon as possible after the problem requiring the adjournment is resolved. If . . . a second [adjournment] request is made, the court shall determine the matter by conference call with all parties. Requests for adjournment shall be made as soon as the need is known but in no event, absent exceptional circumstances, shall such request be made later than the close of business on the Wednesday preceding the Monday of the trial week.
Applying an abuse of discretion standard to the trial court's refusal
to reopen discovery and refusal to remove the case from the trial
list, we conclude that plaintiff failed to show the "exceptional
circumstances" that Rule 4:24-1(c) requires. We therefore see no
reason to disturb the trial judge's exercise of discretion. The record
demonstrates that plaintiff learned on October 1, 2009 of Dr. Bello's
refusal to testify, and made no effort to obtain a new expert until
after the judge dismissed her complaint with prejudice.*fn2
In the nearly five months that elapsed between the October 1,
2009 arbitration, when plaintiff first learned that Dr. Bello would
not serve as her expert, and the trial date of February 16, 2010,
plaintiff did nothing to attempt to address the problem caused by
Bello's withdrawal. To make matters worse, at the time plaintiff's
attorney requested an adjournment of the
January 19, 2010 trial date because of his vacation schedule, he never
mentioned that he needed time to secure a new expert, and in fact
agreed that he would be fully prepared to proceed on the new trial
date of February 16, 2010.
Unquestionably, had plaintiff moved to reopen discovery shortly after learning of Bello's withdrawal, the judge would have reopened discovery to permit her to obtain a new expert. Indeed, Rule 4:24-1(c) would have required the granting of such relief because "exceptional circumstances" were shown. However, with the passage of nearly five months, what would have been "exceptional circumstances" if acted upon promptly, deteriorated instead into an inattention to the file. Plaintiff offered no explanation of why in the nearly five months between October 1, 2009 and February 16, 2010 she had made no effort to reopen discovery or to retain a new expert. Instead, plaintiff simply urged the court to "refrain from imposing the prejudice of a dismissal."
As in Bender, where the delinquent parties "offer[ed] no substantively adequate explanation" for their delay in seeking to reopen discovery and provide a new expert report, and where they provided no "explanation that detail[ed] the cause of delay and what actions were taken during the elapsed time[,]" Bender, supra, 187 N.J. at 429, denial of a request to reopen discovery is the proper result. Ibid. Notably, in Bender, the Court cited with approval the Law Division's observation in O'Donnell v. Ahmed, 363 N.J. Super. 44, 51 (Law Div. 2003), that "merely advising the court in conclusory terms that the attorney and client have hectic schedules does not qualify [under Rule 4:24-1(c)]" as exceptional circumstances (brackets in the original). Ibid. We see no distinction between the present appeal and the circumstances in Bender, and therefore perceive no meritorious basis upon which to reach a different result.
Plaintiff's reliance on the five cases noted earlier is unavailing. In Kosmowski, supra, 175 N.J. at 574-75, the Court reversed the dismissal of the plaintiff's complaint, both because the plaintiff's attorney had learned only three days before trial that his witness would be out of state, and because the trial judge himself had expressed a willingness to reconsider the dismissal that had been based, at least in part, on the attorney's lack of candor concerning the witness's precise whereabouts. This, however, is not such a case because the notice of Bello's refusal to testify was not a mere three days before trial, but was instead nearly five months earlier.
Gonzalez, supra, 185 N.J. at 110-11, is also distinguishable because it addressed the sanction of dismissal of the plaintiff's case, not in the context of a delay in notifying the court of a problem with experts, but instead in the entirely unrelated context of the plaintiff's refusal to testify. Brun, supra, 390 N.J. Super. at 420, too, is inapposite, because there the plaintiff did not learn of one expert's absence until three days before trial.
The opinions in Handelman, supra, 17 N.J. at 10, and Tumarkin, supra, 17 N.J. Super. at 26, which were rendered nearly sixty years ago, are not persuasive because their reasoning and results cannot be squared with the rule amendments of September 2000. We thus reject plaintiff's arguments arising from these five opinions.
Plaintiff also urges us not to punish her for the conduct of her lawyer and maintains that the appropriate remedy would be the imposition of sanctions rather than the dismissal of her cause of action. We agree with plaintiff's argument that generally speaking, "the sins of the advocate should not be visited on the blameless litigant." Kosmowski, supra, 175 N.J. at 574 (quoting Aujero v. Cirelli, 110 N.J. 566, 573 (1988)). Nonetheless, that principle must be balanced against the trial judge's "strong interest" in the "management of litigation." Ibid. Trial judges are vested, in appropriate circumstances, with the ultimate authority of dismissal, even if the "blameless litigant" loses his or her day in court. Ibid.
The sanction of dismissal with prejudice is, however, to be used "sparingly." Id. at 575. Here, we are satisfied not only that there were no "exceptional circumstances" justifying the reopening of discovery, but also that the facts were so extreme as to leave the judge with no alternative to dismissal.
In determining whether dismissal of a plaintiff's complaint with prejudice is the appropriate remedy in circumstances where the plaintiff has no expert on the day of the first trial listing, the court must consider whether "the actions of the party show a deliberate and contumacious disregard of the court's authority," ibid. (quoting Allegro v. Afton Vill. Corp.,
9 N.J. 156, 160-61 (1952)), and whether any "lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party." Ibid. Here, the dismissal with prejudice occurred not on the first trial listing, but the second, and the showing of a "contumacious disregard" is therefore not required. Considering all of the circumstances, especially the attorney's agreement that he would be ready to proceed on February 16, 2010, the dismissal with prejudice was not an abuse of discretion.
Because plaintiff's reconsideration motion presented no new facts and raised no legal arguments other than those that were presented earlier, the judge correctly denied plaintiff's motion for reconsideration. See R. 4:49-2.