On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-963-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Cuff and Fuentes.
Plaintiff Mei Na Lam was involved in an automobile accident on April 16, 2006. Following the accident, she sought medical care, and on February 5, 2008, filed a complaint seeking damages for the injuries sustained in the accident. Plaintiff appeals from an October 4, 2010 order dismissing her complaint.
On appeal, plaintiff argues that Judge Codey should have allowed plaintiff to reopen discovery and permit her to be evaluated by the orthopedist retained by her. She further argues that the trial judge mistakenly exercised his discretion when he denied plaintiff's motion to vacate the June 25, 2010 order setting forth the terms by which she could substitute her medical expert.
Having examined the record in its entirety, we discern that the conditions imposed by Judge Codey to guide substitution of plaintiff's medical expert in his June 25, 2010 order and the trial judge's refusal to vacate that order cannot be considered mistaken exercises of discretion, and the arguments presented by plaintiff do not require discussion in a written opinion. R. 2:11-3(e)(1)(E). We add the following brief comments.
Plaintiff filed her complaint on February 5, 2008. The discovery end date was April 10, 2009; the matter was scheduled for arbitration on May 7, 2009, which was adjourned until September 18, 2009. Plaintiff did not submit a report from the treating or examining physician because plaintiff was still under treatment. Plaintiff did not move to extend discovery before the end date, see Rule 4:24-1(c). Rather, on November 10, 2009, plaintiff served amended answers to interrogatories with a report from Dr. Jay Komerath, an internist. Defendant moved to bar Dr. Komerath's report and testimony; the motion was denied.
Trial was re-scheduled for February 22, 2010, and rescheduled three times. According to plaintiff, she inquired about Dr. Komerath's availability sometime before June 7, 2010, the fifth scheduled trial date, and only at that time learned the doctor refused to testify at trial. On June 15, 2010, plaintiff moved to reopen and extend discovery. In response to this motion, Judge Codey entered the June 25, 2010 order that permitted plaintiff to substitute a new expert but under certain conditions, including use of a physician with similar and not better credentials. In his order, Judge Codey provided "that exceptional circumstances do not exist to warrant allowing the plaintiff at this stage of the proceedings to obtain new experts with better professional credentials than Dr. Komerath." This is a reasonable condition.
In addition, when this matter proceeded to trial on September 22, 2010, plaintiff's motion for an adjournment had been previously denied by Judge Vichness. Plaintiff presented no other reasons to adjourn the trial or to vacate the June 25, 2010 order than previously presented. We, therefore, conclude that Judge Lombardi, the trial judge did not mistakenly exercise the discretion reposed in him.
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