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Tom L. Molnar, Executor For the Estate of Alex S. Molnar v. Llmd Associates


April 8, 2011


On appeal from the Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-1432-07.

Per curiam.


Argued March 2, 2011

Before Judges Sapp-Peterson and Simonelli.

In this malpractice action, plaintiff Tom Molnar appeals from three Law Division orders: (1) the February 18, 2010 order granting summary judgment to defendant LLMD Associates, LLC d/b/a Water's Edge Health Care & Rehabilitation Center (Water's Edge) and dismissing the complaint with prejudice; (2) the February 24, 2010 order denying his motion to extend discovery; and (3) the April 23, 2010 order denying his motion for reconsideration of the February 18 and 24, 2010 orders. We affirm.

Plaintiff, through counsel, filed a complaint on June 8, 2007, alleging that negligent treatment of his father at Waters Edge from June to September 2005 ultimately resulted in the man's untimely death. Defendant filed an answer on August 10, 2007. The matter was assigned to Track III, which has a 450-day discovery period. During the next two years, counsel continued representing plaintiff and the parties exchanged written discovery and conducted depositions. On plaintiff's motion,*fn1 the court entered an order on April 3, 2009, extending discovery to August 7, 2009.

On April 14, 2009, plaintiff's counsel filed a motion to be relieved. On May 1, 2009, the court entered an order granting the motion and ordering plaintiff to notify the court of his new counsel no later than May 31, 2009. Plaintiff did not comply with the May 31, 2009 order, nor did he pursue further discovery or serve an expert report.

After the expiration of the August 7, 2009 discovery end date, defendants filed a summary judgment motion based on plaintiff's failure to serve an expert report. In response, plaintiff filed a pro se motion to extend discovery seeking additional time because of his alleged difficulty retaining new counsel. In order to accommodate plaintiff, Judge Hurd entered two orders: one on September 3, 2009, extending discovery to January 4, 2010, and the second on September 10, 2009, denying defendants' summary judgment motion without prejudice.

Plaintiff did not pursue discovery or serve an expert report during the second extension period. After expiration of the second discovery end date, defendants filed a summary judgment motion based on plaintiff's failure to serve an expert report. The motion was returnable before Judge Hurd on February 5, 2010. Plaintiff did not oppose the motion; instead, he filed another pro se motion to extend discovery, returnable before Judge Innes on February 5, 2010.

Judge Innes notified the parties that he would carry plaintiff's motion to, and conduct a case management conference on, February 8, 2010. Judge Hurd subsequently adjourned defendants' summary judgment motion pending disposition of the motion to extend discovery.

Plaintiff failed to appear at the case management conference. As a result, Judge Innes denied plaintiff's motion to extend discovery concluding he had "ample and adequate notice" of the conference but failed to appear, and "[t]his case has been the subject of other problems with regard to compliance by the plaintiff." On February 24, 2010, the judge entered an order memorializing his decision.

In the meantime, Judge Hurd entered an order on February 18, 2010, granting defendant's unopposed summary judgment motion and dismissing the complaint with prejudice. The judge concluded, in part, that plaintiff failed to provide expert evidence setting forth the appropriate standard of care or deviation, and there was "no indication . . . that plaintiff intends to present the testimony of an expert at anytime soon."

Plaintiff filed a pro se motion for reconsideration of the denial of his motion to extend discovery. Judge Hurd entered an order on March 8, 2010,*fn2 denying the motion and concluding that other than plaintiff's recounting of the number of firms who have declined to represent him in this matter, there is little more in plaintiff's papers, other than repeated assertions that plaintiff has been a victim of defense counsel's continual and intentional deception.

Judge Innes, no doubt, took into account all that was contained in both parties' papers prior to deciding the motion. Assuming that this is the information that plaintiff intended to present on the papers, it would have been substantially the same as what was already submitted with the papers.

Therefore, Judge Innes' decision did, likely, take into account most of the information again presented here by defendant. As such, plaintiff fails to assert any additional facts or evidence that would constitute grounds for the [c]court to reconsider its denial of a motion for extending discovery. And, there's no indication that the decision of Judge Innes was palpably incorrect. So, I will deny the motion.

Plaintiff then filed a second pro se motion for reconsideration of the denial of his motion to extend discovery, and also sought reconsideration of the grant of summary judgment. Prior to the disposition of the motions, plaintiff retained new counsel, who entered an appearance on April 1, 2010. Counsel did not argue that the court's prior decisions were palpably unreasonable or irrationally based, and he presented nothing new for the court's consideration. Rather, counsel argued that the basis on which the court granted summary judgment----the lack of an expert report----"is largely procedural, not substantive, and was due in large part to plaintiff's lack of legal knowledge as a pro se litigant." Counsel also argued there was good cause to extend discovery, and plaintiff should be permitted an additional ninety days to complete discovery.

Applying the reconsideration standard, Judge Hurd entered an order on April 23, 2010, denying the motion to reconsider the grant of summary judgment concluding the matter originated over two-and-one-half years ago, and the basis on which summary judgment was granted "remains unchanged in that plaintiff did not provide expert evidence to establish the breach of care." The judge also denied plaintiff's motion to reconsider the denial of the motion to extend discovery concluding that the [c]court indulged plaintiff's request for extensions in discovery three times, specifically to allow him to seek new counsel. Plaintiff's current moving papers seem to completely ignore the fact that plaintiff's failure to secure new counsel was . . . a failure to comply with not one, but two prior orders by the [c]court. On the return date of this motion, in fact, one year's time total will have elapsed since the [c]court entered its first order, both directing plaintiff to find new counsel and extending him additional time to do so. In all that time plaintiff made no effort at all to pursue discovery from the defendant, no matter that he was proceeding pro se and attempting to secure new counsel.

The fact remains that plaintiff has failed to assert any additional facts or evidence that could not have been, and indeed were not already presented in support of [his] earlier motions. The arguments in plaintiff's new [motion] papers still rely on facts regarding plaintiff's lack of legal [know-how] and unsuccessful attempts to secure new counsel.

This appeal followed.

On appeal, plaintiff contends that Judges Innes and Hurd abused their discretion by denying his motion to extend discovery and granting summary judgment, and Judge Hurd abused his discretion in denying reconsideration. We disagree.

This court "generally defer[s] 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).

Plaintiff's motion to extend discovery beyond the second extension is governed by Rule 4:24-1(c). Because no arbitration or trial date had been set, the standard is good cause, not exceptional circumstances. Tynes v. St. Peter's Univ. Med. Ctr., 408 N.J. Super. 159, 168 (App. Div.) certif. denied, 200 N.J. 502 (2009). Leitner v. Toms River Reg'l Schs., 392 N.J. Super. 80 (App. Div. 2007) sets forth the factors that guide the trial court's exercise of discretion in determining good cause:

[F]or an extension of discovery in the absence of a fixed arbitration or trial date, there are a number of factors which a trial court should consider. The include, but are not limited to, the following:

(1) the movant's reasons for the requested extension of discovery;

(2) the movant's diligence in earlier pursuing discovery;

(3) the type and nature of the case, including any unique factual issues which may give rise to discovery problems;

(4) any prejudice which would inure to the individual movant if an extension is denied;

(5) whether granting the application would be consistent with the goals and aims of "Best Practices";

(6) the age of the case and whether an arbitration date or trial date has been established;

(7) the type and extent of discovery that remains to be completed;

(8) any prejudice which may inure to the non-moving party if an extension is granted; and

(9) what motion have been heard and decided by the court to date. [Id. at 87-77; see also Tynes, supra, 408 N.J. Super. at 169-70.]

Considering these factors, we cannot conclude that the denial of a third extension was an abuse of discretion. The reason for the requested extension----plaintiff's difficulty obtaining new counsel----did not absolve him of the duty to comply with the Rules of Court, the discovery end dates established by court orders, and to pursue discovery and serve an expert report. See In re Estate of Schifftner, 385 N.J. Super. 37, 44 (App. Div.), certif. denied, 188 N.J. 356 (2006); Venner v. Allstate, 306 N.J. Super. 106, 110 (App. Div. 1997

There also was a lack of diligence by plaintiff. Plaintiff pursued no discovery whatsoever during the two extensions, and did not retain an expert or serve an expert report despite possessing an affidavit of merit. In fact, as of the date of oral argument of this appeal, plaintiff still had not retained an expert. Also, in violation of Rule 4:24-1(c), the motion before Judge Innes to extend discovery a third time was returnable after the expiration of the discovery period and, more importantly, after defendant had already moved for summary judgment a second time.

Plaintiff does not claim there are unique factual issues which may give rise to discovery problems, and there is no dispute that the granting of a third extension is inconsistent with the goals and aims of Best Practices to "restore the public's faith in expeditious and efficient litigation and to control dilatory litigation tactics by providing the trial courts with tools to manage litigation." Leitner, supra, 392 N.J. Super. at 91.

Further, this case is very old. The incident forming the basis of plaintiff's malpractice claim occurred nearly five years before Judge Hurd denied reconsideration, and the case was nearly three years old at that time. This extraordinary lapse of time is prejudicial to defendant, as memories fade over time and a number of defendant's employees have left Waters Edge.

As for the discovery that remains to be completed, plaintiff has yet to retain an expert or serve an expert report; defendant has not been afforded the opportunity to serve an expert report; and depositions of defendant's employees who possess knowledge of the incident and the experts must occur. Clearly, more than ninety days is necessary to complete this discovery.

Finally, the court twice extended discovery in order to afford plaintiff more time to retain new counsel and complete discovery. In total, the court gave plaintiff over 850 days to complete discovery.

As for of summary judgment, we conclude it was properly granted. It is well-established that dismissal is proper where, as here, the plaintiff failed to produce expert evidence establishing a duty of care, a breach of that duty, and resulting damages. Gardner v. Pawliw, 150 N.J. 359, 375 (1997); Sanzari v. Rosenfeld, 34 N.J. 128, 134-35 (1961); Rosenberg v. Tavorath, 352 N.J. Super. 385, 399 (App. Div. 2002).


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