On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0931-09.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 13, 2012
Before Judges Sapp-Peterson and St. John.
Plaintiff Carlys Alexander appeals from a January 21, 2011 order of the Law Division granting summary judgment for defendants Mid-Eastern Transportation, Inc., MK&K Leasing, Inc., and Anthony Darnell Williams.
On appeal, plaintiff challenges the exclusion of the expert report of Barry L. Brunstein, of Transport Safety Consultants Nationwide, arguing Brunstein provided an admissible opinion regarding the cause of the accident. Plaintiff also contends that expert testimony was not required. We find plaintiff's arguments unpersuasive.
Following our review of the arguments advanced on appeal, in light of the record and applicable law, we affirm.
The following facts are derived from the record before the motion judge. On June 22, 2007, defendant Anthony Darnell Williams was driving a tractor trailer in Alabama, accompanied by plaintiff, who was a passenger. The tractor trailer was owned by defendant MK&K Leasing, Inc. and operated by Mid-Eastern Transportation, Inc., Williams' employer. A tractor tire blew out causing the vehicle to veer off the highway which resulted in an accident and injury to plaintiff.
In Alexander's certification, he asserted that just before the accident, he estimated the speed of the vehicle at seventy-seven miles per hour, in a seventy mile per hour zone. He also contended that immediately after the accident, Williams told him that he was aware of a defective plug in the blown out tire and that he should not have been driving on that tire.
Defendants contend that there is no evidence linking the speed of the truck as a factor in the blowout. Defendants also posit that there is no evidence that a plugged tire is inherently defective. They assert that Alexander failed to inspect the tire, obtain an expert opinion with regard to the specific elements of the causal connection between the blowout and the accident, and depose any Mid-Eastern employee or the responding police officer. Defendants further argue that Alexander failed to provide any evidence that demonstrates defendants were negligent in failing to properly maintain, repair, service, inspect, and monitor the truck.
In a comprehensive oral opinion, Judge Paul Innes first addressed plaintiff's contention that the court should have extended the discovery end-date and that discovery was incomplete. The judge noted that on July 23, 2010, he denied Alexander's motion to extend discovery. The judge further noted that under Rule 4:46-2, "a claim of incomplete discovery will not defeat summary judgment where the party opposing the motion has sought discovery within the time prescribed by the Rule." The judge further stated that, "plaintiff's assertion that summary judgment should be denied based on defendants failure to appear for a deposition and outstanding discovery is rejected."
Previously, on December 17, 2010, the judge advised the parties that Alexander had failed to provide an appropriate expert report which opines that a plugged tire is unsafe.
Alexander served a supplemental expert report at 4:00 p.m., the day before the return date. The judge stated that after reviewing the supplemental report, "I find that the report itself is a net opinion." The judge further determined that, "plaintiff had full opportunity to conduct discovery with regard to the owner of the tractor trailer, had full opportunity to conduct an inspection of ...