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


May 23, 2011


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

Per curiam.


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.


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 prejudice to defendants as "details and memories are bound to fade" with the passage of time.

By order dated August 12, 2010, the judge denied the motion. In an oral opinion placed on the record on that date, the judge considered that the case had already had 570 days of discovery, with two prior discovery extensions. Relying on Vitti v. Brown, 359 N.J. Super. 40 (Law Div. 2003), the court concluded that because the motion was filed after the discovery end date had expired, plaintiffs needed to show exceptional circumstances. He reasoned that

Certainly a supervising attorney, one who had authority over this associate, should have been [gauging] this case from the beginning. . . . [T]he fact that these rather routine discovery actions were not taken prior to this late date demonstrates . . . that counsel was not diligent during the discovery time period. Additionally, the Court finds that the moving party's counsel has not set forth sufficient reason for counsel's failure to request the extension prior to [the] discovery end date. And, finally, that the circumstances presented certainly were not beyond the control of the attorney. Under these circumstances, the motion to extend the discovery end date is denied.

On August 20, 2010, the case was scheduled for an October 25, 2010 trial date. However, on August 27 and September 22, 2010, the court granted defendants' unopposed summary judgment motions, based on plaintiffs' lack of expert reports.


We review the trial judge's decision to grant or deny a discovery extension for abuse of discretion. Bender v. Adelson, 187 N.J. 411, 428 (2006). In this case, we agree with plaintiff that the judge applied the wrong standard in considering the motion, but we agree with defendants that he reached the correct result.

Rule 4:24-1 governs discovery extensions:

The parties may consent to extend the time for discovery for an additional 60 days by stipulation. . . . A consensual extension of discovery must be sought prior to the expiration of the discovery period. If the parties do not agree or a longer extension is sought, a motion for relief shall be filed . . . and made returnable prior to the conclusion of the applicable discovery period. . . . [I]f good cause is . . . shown, the court shall enter an order extending discovery. . . . 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).]

In construing this rule, we have held that the "good cause" standard applies to an application for a discovery extension, so long as it is filed before the court has set a date for arbitration or trial. See Ponden v. Ponden, 374 N.J. Super. 1, 11 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005). "The 'good cause' standard applies to motions to extend discovery unless an arbitration or trial date is fixed." Tynes v. St. Peter's Univ. Med. Ctr., 408 N.J. Super. 159, 168 (App. Div.), certif. denied, 200 N.J. 502 (2009). The "exceptional circumstances" standard only applies if the application is filed after the court has scheduled an arbitration or a trial. Id. at 168-69. The different standard is attributable to the importance of trial date certainty, which is undermined by discovery extensions that would delay a scheduled trial or arbitration. See Ponden, supra, 374 N.J. Super. at 10; Leitner v. Toms River Reg'l Schs., 392 N.J. Super. 80, 90-91 (App. Div. 2007).

The trial court's reliance on Vitti v. Brown, 359 N.J. Super. 40 (Law Div. 2003), was misplaced. Vitti addressed a discovery extension motion filed "after the time for discovery had expired and the matter had been scheduled for arbitration." Id. at 42. To the extent that dicta in the opinion, id. at 45, suggests that the extraordinary circumstances standard applies even if an arbitration or trial date has not been scheduled, it has been superseded. See Tynes, supra, 408 N.J. Super. at 168-69. The trial court should have reviewed plaintiffs' motion for good cause.

Employing that standard, however, yields the same result reached by the trial court. In applying the good cause standard, a court must consider the following factors:

(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 [the Court Rules concerning civil practice];

(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 motions have been heard and decided by the court to date. [Tynes, supra, 408 N.J. Super. at 169-70 (quoting Leitner, supra, 392 N.J. Super. at 87-88).]

Considering these factors, we conclude there was no good cause to grant the motion. The "good cause" standard does not require wholesale abandonment of the court's ability to manage its caseload. As we observed in Tynes, supra, a late motion to take depositions can set off a cascade of delay in a case:

In addition to Lega's deposition, plaintiffs must finalize and serve their expert reports. Thereafter, defendants must complete and serve their expert reports. In addition, the parties must be afforded the opportunity to depose the experts. Thus, more than a brief period of time would be required to complete the additional discovery. [Id. at 172.]

Similarly, in this case, plaintiffs had taken no depositions at all and had filed no expert reports. Moreover, it is not even clear that they were going to be able to file expert reports, because their experts were unwilling to opine on the issue of malpractice until discovery was complete. Essentially, plaintiffs were seeking to start a process they should have finished months earlier. Cf. Ponden, supra, 374 N.J. Super. at 11-12 ("brief" discovery extension should have been permitted to permit plaintiff to file one new expert report).

Once plaintiffs took fact witness depositions, they would need to file expert reports, and defendants would need to depose those experts before filing reports from their experts, whom plaintiffs would no doubt also wish to depose. Further, although the case was not yet scheduled for trial when plaintiffs filed the July 19 discovery motion, it was obviously listed in the case management system as trial ready, because the Clerk's Office mailed out a trial notice on August 20.

Plaintiffs' reasons for requesting the extension were also inadequate. The parties had already obtained two extensions of discovery, which plaintiffs did not use to obtain the depositions they needed. See New Century Fin. Servs, Inc. v. Dennegar, 394 N.J. Super. 595, 600 (App. Div. 2007).

Plaintiffs' request for a third extension was based on the alleged negligence of a firm associate, whom the partner responsible for the case had completely failed to supervise. The partner's signature was on every piece of correspondence and pleading sent from his office in this case, and his adversaries addressed all their correspondence to him. However, even accepting that an associate was responsible for day to day handling of the case, the partner clearly knew before the discovery end date expired on June 17, 2010, that more discovery was needed.

According to his certification, the partner believed that a case management conference, set for June 14, had been scheduled to discuss discovery extension issues. He sent a letter in May asking for an adjournment of that conference. Nothing in his certification explains why he did not file a discovery extension motion, or send out deposition notices, at the same time he sent the May letter.

When counsel informally asked for a third discovery extension at the conference, it should have come as no surprise that the judge told him to file a motion. Given the court's unfavorable response to a previous motion citing "mistakes" by counsel, plaintiffs' attorney should have been on notice that greater diligence was required. As in Tynes, plaintiffs' reasons for seeking a discovery extension were unconvincing. Tynes, supra, 408 N.J. Super. at 174-75.

Because plaintiffs failed to show good cause, we find no abuse of the trial court's discretion in denying a third discovery extension.


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