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Estate of Alexandra Waczur and Halina Buchanan Individually and v. Robert Wood Johnson University Hospital and

May 23, 2011

ESTATE OF ALEXANDRA WACZUR AND HALINA BUCHANAN INDIVIDUALLY AND AS ADMINISTRATRIX OF THE ESTATE OF ALEXANDRA WACZUR, PLAINTIFFS-APPELLANTS,
v.
ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL AND
ST. LAWRENCE REHABILITATION CENTER, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-2401-08.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 9, 2011

Before Judges Lisa and Reisner.

Plaintiffs, the Estate of Alexandra Waczur and Halina Buchanan*fn1 , appeal from a series of trial court orders dated August 12, 2010, August 27, 2010, and September 22, 2010. The central issue on the appeal is whether the trial court erred in denying plaintiffs' motion to extend discovery. Because plaintiffs failed to establish good cause for a discovery extension, we affirm.

I

Plaintiffs filed a complaint on September 25, 2008, and an amended complaint on March 3, 2009, alleging that defendants, Robert Wood Johnson University Hospital (hospital) and St. Lawrence Rehabilitation Center (rehabilitation center)*fn2 , committed malpractice leading to the death of Alexandra Waczur. In brief summary, the complaint alleged that Waczur, who was then eighty years old, was admitted to the hospital in September 2006 with a hip fracture; that while she was in the hospital, she developed a pressure ulcer, which became worse after she was transferred to the rehabilitation center; that she was transferred back to the hospital for treatment of the ulcer; but the treatment was unsuccessful and she died.*fn3

By letter dated November 24, 2009, plaintiffs' attorney, Saul G. Gruber, requested a sixty-day extension of the February 17, 2010 discovery end date.*fn4 Gruber's letter stated that the deposition of a representative of the rehabilitation center was "presently scheduled" for January 22, 2010, and that depositions of the hospital's representatives were "in the process of being rescheduled." Discovery was extended to April 18, 2010. Notably, all of the deposition notices were signed by Gruber, and all correspondence from his adversaries was addressed to him. There is no dispute that the depositions were adjourned and not rescheduled.

On January 22, 2010, the court granted the hospital's unopposed motion for partial summary judgment as to several of plaintiffs' claims. Plaintiffs filed a motion for reconsideration, supported by a certification from Gruber dated February 15, 2010. That certification attested that Gruber had "been entrusted with the handling of the above captioned matter on behalf of Plaintiff(s)." Gruber also attested that the failure to file opposition to the motion was "due to a mistake," including his "office misread[ing] the motion," Gruber's having been on vacation, and his secretary's absence from the office due to an injury. In denying the motion, the judge unequivocally stated that "attorney mistake, or neglect or secretarial absence is not sufficient reason . . . for granting of a motion for reconsideration." Plaintiffs' counsel's firm was thus plainly on notice that the court would not deem attorney mistakes and neglect as acceptable excuses for failure to make required filings.

Thereafter, the rehabilitation center requested an additional discovery extension. By letter dated February 25, 2010, the rehabilitation center's attorney sent Gruber "a copy of the 'filed' Order dated February 19, 2010 [e]xtending [d]iscovery to June 17, 2010." A case management conference was initially scheduled for June 14, 2010, prior to the new discovery end date, but by letter dated May 27, 2010, Gruber confirmed that at his request the conference had been adjourned to June 28.

Although Gruber apparently knew by May 27 that he would need a further discovery extension, he did not file a timely motion. According to Gruber's later certification, he believed the conference was "to discuss the extension of discovery," however, at the June 28 conference the judge advised Gruber that if he wanted a further discovery extension he should file a motion. By motion dated July 19, 2010, two weeks after the conference and more than a month after the discovery end date, Gruber sought the extension.

In his certification, Gruber attested that although plaintiffs had retained several expert witnesses, those experts needed "additional information which must be gleaned from depositions" before they could "determine both liability and damages." He admitted that plaintiffs had taken no depositions, and still needed to take "multiple depositions," which he contended had now been scheduled for three consecutive days beginning on "September 28, 2010." Gruber had scheduled those depositions by sending the rehabilitation center's attorney a set of deposition notices, under a cover letter dated July 15, 2010.

Although his certification admitted that he was "the partner from the firm in charge of the file in this matter," Gruber blamed the failure to take any depositions on an unnamed associate, whom he claimed was responsible for "the bulk of the day-to-day scheduling." Gruber asserted that he "first learned that the discovery end date was forthcoming and no expert reports or discovery had been completed," when the rehabilitation center filed a motion to dismiss the complaint for failure to serve expert reports. He also represented that there had only been one prior discovery extension, and that if his request was granted he could file expert reports by the end of October.

In opposition to the motion, the rehabilitation center pointed out that there had already been two discovery extensions, and that the case management conference was scheduled at the hospital's request to discuss matters other than discovery. The center also argued that the decedent passed away four years earlier, in 2006, and that further delay would create ...


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