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Corina Parodi-Chipoco and Guillermo Chipoco, Her Husband, Per v. Robert J. Fuerstman

March 5, 2012

CORINA PARODI-CHIPOCO AND GUILLERMO CHIPOCO, HER HUSBAND, PER QUOD,*FN1 PLAINTIFFS-APPELLANTS,
v.
ROBERT J. FUERSTMAN, DPM, DEFENDANT-RESPONDENT, AND CLARA MAASS MEDICAL CENTER,*FN2 DEFENDANT.



On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1190-09.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued February 15, 2012

Before Judges Payne and Simonelli.

In this medical malpractice matter, plaintiff Corina Parodi-Chipoco appeals from three Law Division orders entered by Judge DeCastro: (1) the April 15, 2011 order, which granted the motion of defendant Robert J. Fuerstman D.P.M. to bar an amendment to plaintiff's interrogatory answers, bar an expert report plaintiff served after the discovery deadline and setting of a trial date, and bar the expert's trial testimony; (2) the second April 15, 2011 order, which granted summary judgment to defendant, and dismissed the complaint with prejudice; and (3) the May 13, 2011 order, which denied plaintiff's motions for reconsideration of the two April 15, 2011 orders. Plaintiff also appeals from two orders entered by Judge Bariso: (1) the April 15, 2011 order, which denied plaintiff's motion to re-open and extend discovery; and (2) the May 27, 2011 order, which denied plaintiff's motion for reconsideration of the April 15, 2011 order. For the reasons that follow, we affirm.

We detail the relevant procedural history that relates to the issues on appeal. Plaintiff filed a complaint on March 5, 2009, alleging that defendant, a podiatrist, deviated from the accepted standard of podiatric care in treating her right foot. The court assigned the matter to Track 3 with a four-hundred-and-fifty-day discovery period. Thereafter, Judge DeCastro entered five case management orders, which extended discovery several times, and ordered plaintiff to serve expert reports by dates certain, among other things. The last case management order, dated November 29, 2010, extended discovery to March 1, 2011, ordered plaintiff to serve her expert reports by December 15, 2010, and ordered the completion of all expert depositions by March 1, 2011, among other things.*fn3

On September 30, 2010, plaintiff served an expert report from Mark Herbst, M.D., a radiologist, and on October 15, 2010, she served an expert report from Jack B. Gorman, D.P.M., a podiatrist. Neither expert rendered an opinion on the applicable standard of care, defendant's deviation therefrom, or proximate cause. In fact, Dr. Herbst did not even mention defendant in his report, and Dr. Gorman ultimately concluded that the surgery defendant performed was within the accepted standard in podiatry.

Discovery ended on March 1, 2011. On March 3, 2011, the court scheduled the trial for May 16, 2011.*fn4 On March 17, 2011, plaintiff's counsel advised Judge DeCastro and defense counsel, without explanation, that Drs. Herbst and Gorman would no longer serve as plaintiff's experts.

Defendant filed a summary judgment motion, arguing, in part, that the complaint must be dismissed with prejudice because plaintiff had no expert evidence that defendant deviated from the accepted standard of podiatric care. On March 23, 2011, without leave of court, plaintiff's counsel served a new expert report from Howard S. Shapiro, D.P.M., and an unsigned certification of due diligence, which misrepresented that Dr. Shapiro's report "could not, within the exercise of due diligence, have been provided earlier as it stems from treatment that [p]laintiff underwent after the end of the discovery period." Dr. Shapiro never stated in his report that plaintiff received any further treatment after March 26, 2009, or that he obtained additional relevant information after the discovery deadline. In addition, unlike Dr. Gorman, Dr. Shapiro concluded that defendant deviated from the accepted standard of care by performing surgery instead of continuing conservative treatments, and performing the surgery "[in]correctly and removing entirely too much fascia."

Defendant filed a motion pursuant to Rule 4:17-7 to bar both plaintiff's proposed amendment to her interrogatory answers, and Dr. Shapiro's report and trial testimony. Plaintiff filed a cross-motion to re-open and extend discovery. In support thereof, plaintiff's counsel submitted a certification stating, without further explanation, that Dr. Herbst withdrew "for personal reasons[,]" and Dr. Gorman "requested that he be relieved of his duties as an expert in this case." Neither doctor submitted a certification confirming their withdrawals or their reasons for withdrawing. Nonetheless, plaintiff argued that her experts' sudden withdrawals at the last minute were beyond her control and constituted exceptional circumstances to grant her cross-motion.

In a written opinion and order dated April 15, 2011, Judge DeCastro granted defendant's motion to bar plaintiff's proposed amendment to her interrogatory answers and Dr. Shapiro's report and trial testimony. The judge concluded that discovery had exceeded seven hundred days, the discovery deadline had expired on March 1, 2011, plaintiff never moved to extend discovery prior to the discovery deadline, and plaintiff gave no explanation as to why her experts withdrew. The judge also concluded that the late submission of a "significantly different" expert report only a month before trial was an injustice and prejudiced defendant.

In a second written opinion and order dated April 15, 2011, Judge DeCastro granted defendant's summary judgment motion and dismissed the complaint with prejudice. The judge concluded that Dr. Gorman's report did not create a genuine issue of material fact as to defendant's liability because Dr. Gorman never stated that defendant deviated from the accepted standard of care, and he had agreed that the surgical procedure defendant performed was within the accepted standard of care in podiatry. In an April 15, 2011 order, Judge Bariso denied plaintiff's motion to re-open and extend discovery.

On April 26 and 27, 2011, plaintiff filed motions for reconsideration of Judge DeCastro's two April 15, 2011 orders. Again, plaintiff did not submit certifications from Drs. Herbst or Gorman. Instead, plaintiff's counsel submitted a certification reiterating, again without further explanation, that Dr. Herbst withdrew for personal reasons. Counsel also submitted a purported letter from Dr. Gorman, which stated that he withdrew for personal reasons. On May 4, 2011, plaintiff filed a motion for reconsideration of Judge Bariso's April 15, 2011 order.

In a May 13, 2011 written decision and order, Judge DeCastro denied plaintiff's motions for reconsideration. The judge concluded that plaintiff presented nothing new, and failed to demonstrate that the judge's decisions were palpably incorrect, lacked a rational basis, or that the judge failed to consider relevant facts or law. In a May 27, 2011 order, Judge Bariso denied plaintiff's motion to re-open and ...


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