Opinion
DOCKET NO. A-4721-14T2
01-27-2017
TERESA P. DOMINGUEZ-CONTRERAS, Plaintiff-Appellant, v. DAVID CLAIRE, Defendant, and ALLSTATE INSURANCE COMPANY, jointly, individually, severally, and in the alternative, Defendant-Respondent.
John A. Klamo argued the cause for appellant. Francis X. Ryan argued the cause for respondent (Green, Lundgren & Ryan, P.C., attorneys; Mr. Ryan, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R.1:36-3. Before Judges Messano and Guadagno. On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-4301-12. John A. Klamo argued the cause for appellant. Francis X. Ryan argued the cause for respondent (Green, Lundgren & Ryan, P.C., attorneys; Mr. Ryan, on the brief). PER CURIAM
Plaintiff Teresa P. Dominguez-Contreras appeals from a May 8, 2015 order denying her motion to vacate a March 9, 2015 order dismissing her complaint with prejudice. We affirm.
On October 5, 2010, plaintiff was driving her car in the parking lot of a Rite Aid pharmacy located in Camden as David Claire was backing out of a parking space in the same lot. Claire's vehicle struck plaintiff's vehicle on the front driver's side. Plaintiff estimated she was traveling at five miles per hour when the impact occurred.
Plaintiff did not seek immediate medical attention, but on February 18, 2011, she was examined by Lawrence Barr, an osteopathic orthopedic surgeon. Dr. Barr diagnosed plaintiff with post-traumatic bulging disks and thoracic and lumbosacral sprains. In his initial report, Dr. Barr noted that plaintiff also had clinical carpal tunnel syndrome (CTS), but did not suggest that her CTS was connected to the October 5 accident. Plaintiff underwent surgery by Dr. Barr for the CTS in March 2012.
On October 5, 2012, plaintiff filed a negligence complaint, naming Claire and his carrier, defendant Allstate Insurance Company. Allstate filed an answer, but Claire did not, and he is not a party to this appeal.
After the parties submitted to arbitration, defendant rejected a proposed award of $40,000 to plaintiff and requested a trial de novo.
Trial was then scheduled and postponed on seven different occasions before the parties appeared for trial on March 2, 2015. On that day, plaintiff's counsel told the judge that his expert, Dr. Barr, was not available but was scheduled for a de bene esse deposition on March 4, 2015. The judge noted that plaintiff's counsel had represented on December 15, 2014, that he intended to call Dr. Zweibaum as an expert, but that he was unavailable. The judge then set trial for January 26, 2015. On that day, the case was not reached because the judge was trying another matter. Plaintiff's counsel conceded that even if the case had been called, he would not have been ready, as Dr. Zweibaum was not available.
We were only provided with transcripts for March 2, 2015 and May 8, 2015. We rely on the judge's remarks from those transcripts that indicate trial had previously been scheduled for July 21, 2014, September 8, 2014, September 29, 2014, October 27, 2014, November 17, 2014, December 15, 2014, and January 26, 2015.
A de bene esse deposition is "one that is taken provisionally for use if the witness is unavailable at the time of trial." Graham v. Gielchinsky, 126 N.J. 361, 371 (1991). --------
Trial was next scheduled for March 2, 2015. On that day, plaintiff's counsel informed the judge that Dr. Zweibaum was still unavailable, but he would be using Dr. Barr as an expert instead.
The judge noted that plaintiff's counsel had the opportunity to schedule Dr. Barr for a deposition as far back as December 2014 when he learned of problems with Dr. Zweibaum's availability. Plaintiff's counsel admitted that he did not contact Dr. Barr until one week before the March 2 trial date. The judge then examined nine reports prepared by Dr. Barr and found that he treated plaintiff for CTS and gave no opinion on permanency, or even that plaintiff suffered any post-surgical diminished function. More significantly, Dr. Barr never related the CTS to plaintiff's accident.
The judge dismissed plaintiff's complaint noting that the case was scheduled for trial that day and had been adjourned on seven prior occasions. The judge had cautioned plaintiff's counsel on December 15, 2014, to either have his expert available to testify or to preserve his testimony through a de bene esse deposition. The judge also noted that plaintiff was now relying on a new expert who did not provide an opinion as to causation or permanency. The judge denied plaintiff's motion for reconsideration on May 8, 2015.
On appeal, plaintiff claims the judge abused his discretion in dismissing the case as defendant did not demonstrate prejudice from the delay, plaintiff was blameless for the unavailability of her expert witness, and there was no showing of deliberate and contumacious disregard of the court's authority by plaintiff's counsel.
Plaintiff relies upon Kosmowski v. Atlantic City Medical Center, 175 N.J. 568 (2003). In Kosmowski, the Court reversed the dismissal of the plaintiff's complaint, both because the plaintiff's attorney had learned only three days before trial that his witness would be out of state, and because the trial judge himself had expressed a willingness to reconsider the dismissal that had been based, at least in part, on the attorney's lack of candor concerning the witness's precise whereabouts. Id. at 574-75. Plaintiff's reliance on Kosmowski is unavailing. Plaintiff's counsel did not learn of Dr. Zweibaum's unavailability on the eve of trial, but was aware in December 2014 that his expert would be traveling between New Jersey and Florida. Counsel ignored the judge's direction to depose Dr. Zweibaum so trial could proceed on the adjourned date.
A request for an adjournment "is addressed to the trial judge's discretion." Id. at 575. An abuse of discretion occurs when the trial judge's decision was "made without rational explanation, inexplicably departed from established policies, or rested on an impermissible basis." United States v. Scurry, 193 N.J. 492, 504 (2008).
We discern no abuse of discretion here. Counsel's last-minute attempt to substitute Dr. Barr for Dr. Zweibaum was ineffectual. First, Dr. Barr was not available on the trial date, March 2, 2015, and was not even scheduled to be deposed until two days later. Moreover, Dr. Barr treated plaintiff for CTS and did not opine that the condition was permanent and provided no connection between plaintiff's CTS and the accident.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION