PEDRO A. HERNANDEZ and NILDA NEGRON (HERNANDEZ), Plaintiffs-Respondents,
NORTH JERSEY NEUROSURGICAL ASSOCIATES, WILLIAM L. KLEMPNER, M.D., HAMILTON C. GOULART, M.D., DUNCAN B. CARPENTER, M.D., TAREK A. ALSHAFIE, M.D., Defendants, and GANEPOLA A. GANEPOLA, M.D., Defendant-Appellant.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 4, 2013
On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1826-08.
Gary L. Riveles argued the cause for appellant (Dughi, Hewit & Domalewski, attorneys; Mr. Riveles, on the brief).
Christian R. Mastondrea argued the cause for respondents (Eichen Crutchlow Zaslow & McElroy, attorneys; Mr. Mastondrea, on the brief).
Before Judges Graves, Ashrafi and Espinosa.
In this medical malpractice case, the trial court entered default against defendant Ganepola A. Ganepola, M.D., because his designated trial attorney was not available to begin trial on the seventh scheduled trial date. We granted defendant leave to appeal, Rule 2:2-4, from the trial court's interlocutory order of July 30, 2012, denying his motion to vacate the default. We must consider a provision of Rule 4:25-4 that permits a trial court to "disregard" trial attorney designation and to proceed to trial in the absence of a party's designated trial attorney.
We are cognizant of the trial court's plight in managing effectively its calendar of older civil cases. Nevertheless, we reverse and remand this case for trial because there was insufficient notice to counsel that the seventh trial date was inflexible and would not be subject to the availability of counsel.
Rule 4:25-4 permits a party in a civil case to specify a named attorney as the party's designated trial counsel. The rule states in part:
Counsel shall, either in the first pleading or in a writing filed no later than ten days after the expiration of the discovery period, notify the court that designated counsel is to try the case, and set forth the name specifically. If there has been no such notification to the court, the right to designate trial counsel shall be deemed waived. . . . If the name of trial counsel is not specifically set forth, the court and opposing counsel shall have the right to expect any partner or associate to proceed with the trial of the case, when reached on the calendar.
Although the rule does not explicitly say so, designation of trial counsel provides valid ground for an adjournment of a scheduled trial date because the named attorney has a superseding commitment in another court. See Harmon Cove II Condo Ass'n, Inc. v. Hartz Mountain Indus., 258 N.J.Super. 519 (App. Div. 1992). In fact, in Harmon Cove, a panel of this court implied that the trial court had no choice but to adjourn a trial where the designated trial attorney was committed to another trial. Id. at 522-23.
The Supreme Court adopted the trial counsel designation rule in 1964. R.R. 4:29-3A (1966) (rule "to be effective September 9, 1964"). The rule's purpose was to protect attorneys and their clients from being compelled by trial courts to substitute a partner or an associate for an unavailable attorney and to proceed to trial even if the partner or associate was unfamiliar with the file or inexperienced in the area of practice. Cf. Heinz v. Atl. Stages, Inc., 113 N.J.L. 321, 322-24, 325 (E. & A. 1934) ("If a fixed rule were adopted, that whenever counsel had conflicting trial engagements, a continuance should be granted, it would render possible such delays as would interfere with the administration of justice."). While the rule solved one problem, it created another by causing many adjournments of trial dates and unacceptable aging of civil cases.
In 1985, the Supreme Court's Civil Case Management and Procedures Committee proposed amendments to remedy dissatisfaction with the rule. See Civil Case Management and Procedures Report at 18, reproduced in 115 N.J.L.J. 349 (Mar. 28, 1985) (referring to abuses of the rule and proposing amendments, including a limitation of fifty cases in which any attorney could be designated trial counsel). The proposed amendments were rejected by the Supreme Court. See Supreme Court Response to Civil Case Management and Procedures Committee Report, 116 N.J.L.J. 505, 522 (Oct. 17, 1985) (referring to objections to the proposed amendments and favoring a case-by-case or attorney-by-attorney quelling of abuses).
Delays persisted in the courts in scheduling certain types of cases, especially medical malpractice trials. Two years after our strict reading of the rule in Harmon Cove, supra, 258 N.J.Super. 519, the Supreme Court relaxed its application to older cases. By the Court's order dated October 24, 1994, trial courts were authorized to waive the designation of a trial attorney in cases that were more than three years old and delayed by the unavailability of designated trial counsel. See Report of the Supreme Court Committee on Civil Practice, 151 N.J.L.J. 689, 696 (Feb. 16, 1998).
In 1998, similar provisions were adopted as a formal amendment of the rule. The 1998 amendment added the following language ...