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Melissa Werthmann and Joseph Werthmann, H/W v. New Jersey Manufacturers Insurance Company


October 5, 2012


On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-6163-09.

Per curiam.


Submitted September 10, 2012

Before Judges Fasciale and Maven.

Plaintiffs Melissa and Joseph Werthmann appeal the dismissal with prejudice of their personal injury action.*fn1 We affirm.

This matter arises out of an automobile accident that occurred on July 18, 2006. Plaintiffs filed an uninsured motorist claim with their insurance carrier, defendant New Jersey Manufacturers Insurance Company. The matter proceeded to uninsured motorist arbitration, which resulted in an award against defendant. Defendant rejected the award and demanded a trial by jury. Plaintiff filed a complaint in Superior Court on December 9, 2009. Following discovery, the case was scheduled for mandatory, non-binding arbitration; the award was rejected by defendant and a trial de novo was requested.

The case was listed for trial on April 18, 2011, a settlement conference on May 31, 2011, and then relisted for trial on June 20, 2011, August 2, 2011, September 12, 2011, and October 3, 2011. Defendant's attorney concedes that on each of those trial dates he requested the case be placed on ready hold. On the next scheduled trial date, October 17, 2011, plaintiffs' attorney could not appear due to a conflict in his schedule but sent his law partner to answer the trial call. Trial did not begin, but the matter was conferenced with the judge. The parties were notified later that day to appear the following day to begin the trial. On October 18, 2011, plaintiffs' counsel informed the judge for the first time that he was not prepared to proceed due to his expert witnesses' unavailability. Particularly, counsel advised that the physiatrist's testimony regarding the results of an independent EMG was necessary to meet plaintiffs' burden of proof regarding objective evidence of permanent injury. The trial judge rejected plaintiffs' counsel's stated belief that he would now have an opportunity to secure the witnesses' de bene esse depositions. The judge noted that plaintiffs had notice that the case was going to be tried and stated:

I see no choice here, it was listed for trial, it's the sixth trial listing, it's had a conference where the parties were told - - or advised that there would be no money, there was a no pay case, or verbal threshold. So everyone was aware of it. The doctor should have been on notice or in the can before this.

The judge entered an order of dismissal with prejudice on the grounds that plaintiffs were not prepared to proceed.

Plaintiffs filed a motion for reconsideration and to vacate the dismissal. Counsel certified that on October 11, 2011, he received a telephone call from defendant's attorney advising him to appear on October 17, 2011. Counsel acknowledged that he "did not prepare to have plaintiffs' medical experts appear because the defendant's attorney again wrote the court requesting that he be [placed] on telephone standby because he had older cases listed for trial." Counsel averred that upon receiving confirmation to appear on October 18, he only had two hours to arrange for his medical experts to appear. Counsel argued that the dismissal with prejudice was contrary to Rule 4:37-2, was not meritorious, and denied his clients due process.

The judge denied the motion on November 18, 2011. In addition to incorporating his prior decision by reference, he explained his reasons, in part, as follows:

The court will only say the plaintiff's indication that he had only approximately two hours to arrange for medical experts to appear is a blatant misrepresentation. The case was listed for trial. What plaintiff chose to do is he chose to be unprepared.

He didn't believe he would be reached. He was fully aware of the [c]court's trial listing. It was not the first trial listed in the matter and then when called in for trial by the court tried to stonewall the court and profess that he was unprepared . . . .

The trial judge determined the plaintiff's certification to be inaccurate and misleading and denied the motion. This appeal followed.

Plaintiffs reiterate their arguments on appeal. They contend that the dismissal was improper as it was not on the merits and is contrary to Rule 4:37-2(d).*fn2 Specifically, plaintiff argues that there was no meritorious reason to dismiss with prejudice as they were not in disregard of discovery orders, and there was no pending motion for summary judgment. Rather, they claim that the trial judge dismissed the complaint, sua sponte, out of frustration due to numerous trial adjournments. Secondly, plaintiffs claim that the dismissal with prejudice was improper due to the trial court's failure to explore the availability of lesser sanctions, and, as a result, the judge's actions showed favoritism towards the defendant, and were unduly harsh and unwarranted. We find these arguments to be unpersuasive.

In Kosmowski v. Atlantic City Med. Ctr., 175 N.J. 568, 574-75 (2003), the Supreme Court addressed the factors a trial court must consider in its discretionary decision as to whether a case should be adjourned due to the unavailability of a plaintiff's expert:

[T]he court must focus on the tension between, on the one hand, the salutary principle that the sins of the advocate should not be visited on the blameless litigant, and . . . the court's strong interest that management of litigation, if it is to be effective, must lie ultimately with the trial court and not counsel trying the case.

[(Citations omitted).]

Plaintiffs contend that the dismissal of the complaint pursuant to Rule 4:37-2(d) was improper because it was not on the merits. The Rule provides that "[u]nless the order of dismissal otherwise specifies, a dismissal under R. 4:37-2(b) or

(c) and any dismissal not specifically provided by R. 4:37, other than a dismissal for lack of jurisdiction, operates as an adjudication on the merits." R. 4:37-2(d). Plaintiffs' counsel conceded that he would have been unable to satisfy the verbal threshold without the testimony of the physiatrist who performed the EMG. As such, the dismissal was clearly based on plaintiff's failure to establish an essential element and was therefore on the merits.

Plaintiff further claims a denial of due process as no summary judgment motion was pending, and plaintiff had no notice of the potential for dismissal.*fn3 We reject that argument.

Here, the first five trial dates were adjourned at the request of defense counsel, and plaintiffs' counsel asserts this was his first request seeking additional time. While counsel does not reference or argue the applicability of Rule 4:36, the trial judge noted that plaintiff is not entitled to "a free bite."

Likewise, we reject any inference that, under the facts of this case, there is an automatic entitlement to an adjournment. Such an inference would be inconsistent with the purposes of the significant rule changes enacted in 2000, of which Rule 4:36 was a part. As we have noted, the New Jersey Supreme Court implemented those changes "to establish uniformity in the trial courts throughout the State, to establish firm and meaningful trial dates, 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 v. Toms River Reg'l Schs., 392 N.J. Super. 80, 91 (App. Div. 2007)(emphasis added).

In explaining his unpreparedness for trial, counsel stated:

We were ready, willing, and able to attend for the possibility of, you know, negotiations but for whatever reason the prior listings did not occur and there may have been one occasion where I was listed for trial in another county as well, . . . but nevertheless it was my belief that after yesterday's conference that there would be an opportunity for us to put the doctors in the can.

Counsel received notice on Tuesday, October 11, 2011 to appear at trial on October 17. In order to seek additional time to conduct de bene esse depositions, counsel could have requested an adjournment pursuant to Rule 4:36-3(b), which states that "requests for adjournment should be made as soon as the need is known but in no event, absent exceptional circumstances, shall such request be made later than the close of business on the Wednesday preceding the Monday of the trial week." The record does not reveal that counsel made a timely motion for adjournment. Furthermore, we conclude that no exceptional circumstances have been shown to support granting the adjournment request made on the day of trial.

After being advised that the case was not going to settle, and after numerous trial dates were scheduled, plaintiffs had the opportunity to take their witnesses' depositions. Rule 4:14-9 allows for videotaped depositions of a treating physician or expert witness. The videotaped depositions may be used at trial in accordance with Rule 4:16-1 in lieu of testimony, whether or not such witness is available to testify at trial.

R. 4:14-9(e). We conclude that plaintiffs' failure to secure their witnesses' depositions supports the dismissal of the complaint.

Next, plaintiffs claim that the court erred by failing to explore lesser sanctions thereby rendering the dismissal with prejudice unduly harsh and prejudicial to his clients. Clearly, whether the denial of an adjournment results in significant prejudice to one side or the other must be an essential element of the judge's discretionary calculus. The court was not only concerned about the age of the case, but also the impact on the parties, and the uncertain admissibility of the plaintiffs' proffered expert. The court stated,

Without the physiatrist -- would the physiatrist -- I think I would have to probably hear the testimony. I'm not saying it's in or out because EMGs have their own problems under the case law for verbal threshold. I'm sure Mr. Kaplan and you are both aware of those cases regarding that. But certainly -- but without him we're just militating to a directed verdict. It would be a waste of resources, yours, Mr. Kaplan's, the [c]court's to pick a jury, engage in the jury selection process, opening statements, your client's testimony to then at that point and listen to them put on a --whoever the other -- your treating physician is, and then render a directed verdict.

I point out to you because you indicated to me in chambers that that case was -- I said it was a 2009 docket number and it had been filed quite some time ago.

So we've had -- this is the sixth trial listing on a 2009 case. The complaint was filed December 9, 2009. So if you're unable to proceed I see no choice on the [c]court's part but to dismiss the complaint with prejudice at this point.

The trial judge clearly considered the opportunities plaintiff had to prepare the case for trial. The judge appropriately balanced the need to manage the processing of the case with plaintiffs' counsel's failure to adequately and timely prepare his case for trial, or seek a timely adjournment in this aged case.

While we recognize that the dismissal with prejudice as the ultimate sanction should be imposed only sparingly, Zaccardi v. Becker, 88 N.J. 245, 253 (1982), the motion for reconsideration offered no satisfactory explanation for the failure to be prepared for trial or exceptional circumstances for granting an adjournment. R. 4:36-3(b). Under all of the circumstances, we decline to disturb the judge's exercise of discretion in ordering a dismissal with prejudice. We conclude that any lesser sanction in this case would circumvent the purposes of the "Best Practices" rule amendments.


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