Opinion
DOCKET NO. A-2741-13T1
06-12-2015
AMBER L. SCHROER, natural mother of EMMA ROSE SCHROER, deceased; AMBER L. SCHROER, individually; and BRYAN SCHROER, individually, Plaintiffs-Appellants, v. SHERILYN ANN BREDIN, M.D., EILEEN MULLIN, C.N.M., LADIES CHOICE OB/GYN, SHORE MEMORIAL HOSPITAL, Defendants, and CAROL LEE DALEY, R.N.C. and ANNA SIMONSEN, R.N., Defendants-Respondents.
Michael S. Berger argued the cause for appellants (Andres & Berger, P.C., attorneys; Mr. Berger, of counsel; Tommie Ann Gibney and Abraham Tran, on the brief). David J. Bishop argued the cause for respondent Carol Lee Daley, R.N.C. (Crammer, Bishop & O'Brien, attorneys; Mr. Bishop, on the brief). Gary L. Riveles argued the cause for respondent Anna Simonsen, R.N. (Dughi, Hewit & Domalewski, attorneys; Mr. Riveles, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges Lihotz, Espinosa and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-7372-10. Michael S. Berger argued the cause for appellants (Andres & Berger, P.C., attorneys; Mr. Berger, of counsel; Tommie Ann Gibney and Abraham Tran, on the brief). David J. Bishop argued the cause for respondent Carol Lee Daley, R.N.C. (Crammer, Bishop & O'Brien, attorneys; Mr. Bishop, on the brief). Gary L. Riveles argued the cause for respondent Anna Simonsen, R.N. (Dughi, Hewit & Domalewski, attorneys; Mr. Riveles, on the brief). PER CURIAM
In this medical malpractice action, we granted plaintiffs, Amber L. Schroer and Bryan Schroer, the surviving parents of the late Emma Rose Schroer, leave to appeal from the Law Division's September 6, 2013 interlocutory order barring plaintiffs' nursing expert's report and dismissing with prejudice plaintiffs' complaint against defendants Carol Lee Daley and Anna Simonsen, and from its January 10, 2014 order denying reconsideration. On appeal, plaintiffs argue that their expert's report should not have been barred as it was served during the discovery period, as previously extended by the court, and the order extending discovery did not place limitations on the scope of the discovery to be completed. Alternatively, plaintiffs argue that even though they did not file a separate motion requesting an extension for the purpose of submitting the expert report, such a motion would have been granted if the court had applied the proper standard. Defendants disagree and argue that the motion judge properly exercised his discretion because the expert's report was untimely, plaintiffs never established good cause and defendants would have been prejudiced if the late expert report had not been barred.
We have carefully considered the parties' arguments in light of the record and applicable legal principles. We reverse both orders.
In January 2009, Amber Schroer (plaintiff) was five months pregnant. She had been receiving prenatal care from defendants Sherilyn Bredin, M.D., an obstetrician, and Ellen Mullin, C.N.M., a certified nurse midwife, both employed by defendant Ladies Choice OB/GYN Group. On January 17, 2009, plaintiff presented at defendant Shore Memorial Hospital's (SMH) emergency department, complaining of cramping, back pain, nausea, and vomiting. She was sent to the obstetrics floor, where labor and delivery (L&D) nurse Simonsen, a registered nurse, performed an initial triage assessment. Subsequently, L&D charge nurse Daley, a certified registered nurse, spoke with Mullin and relayed to her the information in plaintiff's chart. Plaintiff was discharged with instructions to follow-up with Ladies Choice in two days if she did not feel better.
Plaintiff returned to SMH a week later and was diagnosed with appendicitis. She was transferred to Cooper University Hospital, where she was diagnosed with a ruptured appendix. Between January 27 and February 16, 2009, plaintiff underwent several surgeries. On February 3, 2009, after the second surgery, plaintiff went into pre-term labor and gave birth to a baby girl who died in the hospital.
Plaintiffs filed their complaint on December 8, 2010. The initial case management order, dated April 18, 2011, required affidavits of merit to be served and set a discovery end date of April 6, 2012. The order did not set forth a specific discovery schedule, but required a response to plaintiff's request for certain information related to the hospital's policies and procedures. In two subsequent orders, the court extended the discovery end date. The last order extended it to December 5, 2012 and directed that defendants' depositions were to be completed by June 30, 2012, and defendants were to respond to plaintiffs' request for more specific answers to interrogatories. In later orders, the court granted two motions filed by plaintiffs to extend the discovery end date, ultimately to May 5, 2013. Neither of those orders mentioned any limits on discovery or identified the discovery to be completed during the extended period.
Pursuant to N.J.S.A. 2A:53A-27, the Affidavit of Merit statute, a malpractice plaintiff must file an affidavit from another professional in the same field certifying that defendant's treatment or skill fell outside accepted professional standards.
Plaintiffs eventually submitted an affidavit of merit from Dr. Anthony Quartell, M.D., who is a board certified obstetrician/gynecologist. On April 29, 2011, when defendant Daley filed her answer, she objected to his affidavit of merit, stating, "he is not qualified to author an affidavit of merit as to Shore Memorial Hospital or as to Carol Lee Daley, R.N.C." Despite being confronted by that objection, the parties never requested, and the court never scheduled, a Ferreira conference as required in professional negligence actions.
See Ferreira v. Rancocas Orthopedic Assocs., 178 N.J. 144 (2003) in which the Supreme Court "mandated the holding of a special case management conference in professional malpractice cases . . . to address any affidavit of merit problems." Pressler & Verniero, Current N.J. Court Rules, cmt. 3.2 on R. 4:5B-2 (2015).
In October 2012, plaintiffs served defendants with Quartell's expert report in which he opined that "the midwife and nurses who cared for [plaintiff] on January 17 were all guilty of violating accepted standards of good obstetrical care." He stated defendants failed to perform a proper abdominal exam and only did "an 'evaluation' which was below the standard of care." Quartell also noted that Daley and Simonsen neglected to convey to the midwife that no abdominal exam was performed. Defendants subsequently served plaintiffs with their expert reports refuting Quartell's opinions.
It is not clear from the record when defendants' experts' reports were served. Both defense experts' reports pre-date Dr. Quartell's October 5, 2012 report. However, Daley's brief indicates they were served after defendants were in receipt of Dr. Quartell's report.
Defendants deposed Quartell on March 7, 2013. He testified that he did not know whether Simonsen or Daley or any other L&D nurse at SMH was credentialed to perform abdominal examinations. When asked to describe circumstances in which a nurse could perform the exam, the doctor responded:
In my circumstance I don't think I've ever taken care of a patient without a resident in close to 40 years. The nurses on Labor and Delivery at Saint Barnabas are — I don't know that any one of them is — I've [n]ever asked them to do such an evaluation. In our triage unit, . . . we have a nurse practitioner and a nurse midwife. They would do that. . . . So I don't know whether she was qualified to do that.
After establishing that a L&D nurse cannot prescribe or diagnose, the following exchange took place:
Q. Okay. Do you know if a regular L&D nurse who is not a nurse practitioner, does not have a master's degree and is not a nurse midwife has the credentials to perform a complete or standard, in your terms, abdominal exam?
A. I do not know.
. . . .
Q. Would you agree with me that if she did not have those credentials or abilities at this hospital your criticism of Nurse Simonsen would disappear?Quartell gave similar testimony about Daley.
A. Basically, except that she would have had to say to the OB provider on the phone I didn't do an abdominal exam because I'm not privileged to do that. I don't know how to do that. I'm not qualified to do that.
On April 8, 2013, plaintiffs filed a third motion to extend the discovery end date to August 3, 2013. In his supporting certification, counsel made no mention of any need to obtain a new expert. He only stated that expert reports had been exchanged, Quartell and another plaintiffs' expert had been deposed, and he listed the schedule for the completion of defendants' experts' depositions. Defendants did not oppose the motion. On May 3, 2013, the trial court granted plaintiffs' motion and extended the discovery end date to August 3, 2013. The order did not describe the discovery to be completed.
Prior to the discovery extension, on April 9, 2013, Simonsen filed a motion for summary judgment, arguing that Quartell could not establish the standard of care for a L&D nurse. Despite the filing of that motion, discovery continued. The same day, plaintiffs' counsel deposed defense expert Dr. William Flynn, M.D. and on April 25, 2013, he deposed defense expert Dr. Richard L. Luciani, M.D.
On May 7, 2013, plaintiffs served defendants with the expert report of Caron W. Jones, R.N., which was dated April 29, 2013. Her report contained opinions similar to Quartell's regarding defendants' breach of their duty of care owed to plaintiff. At the time the report was served, the court had not yet set a trial or arbitration date.
Two days later, Daley filed a motion for summary judgment, also arguing Quartell could not testify as to the standard of care for a L&D nurse. Daley also claimed Jones' report was time-barred. On May 14, 2013, Simonsen filed a cross-motion seeking to bar Jones' report and testimony. Three days later, Daley also filed a separate motion to bar Jones' report and testimony. Daley argued the court granted the extension of discovery for good cause only for the purpose of completing expert depositions, which was plaintiffs' sole reason for requesting the extension, and did not permit the service of new expert reports.
On August 9, 2013, the court considered oral argument on defendants' motions for summary judgment and motions to bar Jones' report. The court found that Quartell was not able "to establish a standard of care to which a jury could reasonably assess whether these two nurses did or did not fall within that category." The court also barred Jones' report, stating that plaintiff failed to set forth in the order that the extension request was to permit another expert report. Therefore, the court would not consider the report in deciding whether to grant defendants' motions. The motion judge stated that if the defense had been informed that plaintiffs planned to submit another report, "there wouldn't have been so much silence on the other side. There would have been strong objection . . . ." However, the court did not find plaintiffs willfully withheld their intention to serve a new expert report, as the court maintained the "highest respect for" plaintiffs' counsel but found the non-specific discovery extension request was unopposed as it "lulled [defendants] into a false security."
This finding is not challenged on appeal.
Since barring Jones' report left "no evidence in the case . . . as to the standard of care as to both L&D nurses," the court granted summary judgment in favor of defendants Daley and Simonsen. The court memorialized its decision in its September 6, 2013 order.
The court subsequently denied plaintiffs' motion for reconsideration on January 10, 2014, stating it found that:
(1) there was no good cause for a discovery extension to serve an additional expert report after defendants had served their expert report; (2) the Order extending discovery to August 3, 2013 did not include an extension of discovery for the purposes of permitting Plaintiff to serve an additional expert report since Plaintiff's counsel had certified that expert reports were exchanged and that the extension was necessary in order to complete expert depositions; and (3) defendants would be significantly prejudiced by having to defend against a new expert report from a nurse after the defense had already served their expert reports and after defendant's experts had already been deposed relying upon the well-established chronology of medical negligence matters.The court found plaintiffs' arguments as to good cause were considered when the court decided the motions on August 8, 2013, and plaintiffs failed to present any evidence warranting reconsideration.
We granted plaintiffs' motion for leave to appeal.
On appeal, plaintiffs argue the motion judge abused his discretion in barring Jones' report because it was served twelve weeks before the discovery end date set forth in the court's May 3, 2013 order. Their argument rests on the assertion that the court's order extending discovery until August 3, 2013, did not limit discovery to conducting expert depositions. Plaintiffs also maintain that even if the Jones report was not permitted under that particular order, the court failed to apply the correct standard in deciding whether to extend discovery to permit the report to be served. They argue that since no trial or arbitration date had been set, only the "good cause shown" standard applied. They further argue that any errors in the service of the report were purely procedural; thus, plaintiffs should not be denied the opportunity to have their case heard on the merits. Lastly, plaintiffs claim that any harm to defendants could be rectified with an extension of the discovery period for the benefit of defendants.
Because the motion judge granted summary judgment based on its barring of plaintiff's nursing expert, we address that decision first. We review a trial court's decisions regarding discovery and sanctions for an abuse of discretion. "In general, we apply an abuse of discretion standard to decisions made by our trial courts relating to matters of discovery." Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011) (citing Bender v. Adelson, 187 N.J. 411, 428 (2006)). We "generally defer to a trial court's disposition of discovery matters unless the court has abused its discretion or its determination is based on a mistaken understanding of the applicable law." Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div.), certif. denied, 185 N.J. 296 (2005). Ordinarily, therefore, we will "decline to interfere with discretionary rulings involving discovery unless it appears that an injustice has been done." Cunningham v. Rummel, 223 N.J. Super. 15, 19 (App. Div. 1988). "As it relates to extensions of time for discovery, appellate courts, . . . have likewise generally applied a deferential standard in reviewing the decisions of trial courts." Pomerantz Paper Corp., supra, 207 N.J. at 371.
At the outset we note, generally, discovery extensions should be liberally granted where no trial or arbitration date has been fixed and there would be no prejudice to the other party. Leitner v. Toms River Reg'l Sch., 392 N.J. Super. 80, 91-92 (App. Div. 2007); Ponden v. Ponden, 374 N.J. Super. 1, 9-11 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005). Furthermore, "any rule may be relaxed or dispensed with by the court in which the action is pending if adherence to it would result in an injustice." R. 1:1-2(a). However, "discovery rules were designed to eliminate, as far as possible, concealment and surprise in the trial of lawsuits to the end that judgments rest upon real merits of the causes and not upon the skill and maneuvering of counsel." Abtrax Pharm. v. Elkins-Sinn, 139 N.J. 499, 512 (1995) (citations and internal quotation marks omitted). Thus, for the rules of discovery to have effect and meaning, courts must be prepared to enforce them. Ibid.
It is undisputed that plaintiffs failed to comply with the rule's requirements regarding extensions of the discovery period in civil actions by not providing the court with a proposed form of order identifying the discovery to be completed and a schedule for same. See R. 4:24-1(c) ("Any proposed form of extension order shall describe the discovery to be completed, set forth proposed dates for completion, and state whether the adverse parties consent.") (emphasis added); see also Pressler & Verniero, supra, at cmt. 3 on R. 4:24-1(c) (2015) ("if there has not yet been notice of an arbitration or trial date, grant of the extension requires only good cause shown, but the extension order must specify the date by which discovery must be completed and the nature of the additional discovery being allowed").
It is equally without dispute that plaintiffs' motion seeking an extension of discovery did not mention the extension was necessary for the purpose of naming a new expert to replace Quartell on the issue of the nurses' standard of care. Had plaintiffs raised the need to replace Quartell based on his unexpected deposition testimony, the trial court would have at least had an opportunity to decide if plaintiffs were entitled to obtain a new expert. See e.g., Ponden, supra, 374 N.J. Super. at 11-12 ("[I]n the absence of a scheduled trial date and in light of the fact that the prior expert had rendered only a net opinion that would undoubtedly prove fatal to plaintiff's claim, we are satisfied that the trial judge mistakenly exercised his discretion by denying a brief extension of discovery in order to allow plaintiff to submit a new expert report.").
By not filing a proper motion to extend discovery for the purpose of naming a new expert, plaintiffs prevented the court from undertaking the required "good cause" analysis. Tynes v. St. Peter's Univ. Med. Ctr., 408 N.J. Super. 159, 168-69 (App. Div.), certif. denied, 200 N.J. 502 (2009) (specifying that where no arbitration or trial date has been set, the good cause standard applies even where the discovery end date has been previously extended). Since "'good cause shown' is flexible," the "provisions of R. 4:24-1(c) . . . allow a trial judge to review each matter's unique factual situation." Leitner, supra, 392 N.J. Super. at 87, 92.
In evaluating whether good cause exists, a court should consider the following non-exhaustive list of factors:
(1) the movant's reasons for the requested extension of discovery;
(2) the movant's diligence in earlier pursuing discovery;
(3) the type and nature of the case, including any unique factual issues which may give rise to discovery problems;
(4) any prejudice which would inure to the individual movant if an extension is denied;Thus, regardless, if the applicable standard is "good cause" or "exceptional circumstances," an application must address "why discovery has not been completed" and "counsel's diligence in pursuing discovery." Bender, supra, 187 N.J. at 429 (citations and internal quotation marks omitted).
(5) whether granting the application would be consistent with the goals and aims of "Best Practices";
(6) the age of the case and whether an arbitration date or trial date has been established;
(7) the type and extent of discovery that remains to be completed;
(8) any prejudice which may inure to the non-moving party if an extension is granted; and
(9) what motions have been heard and decided by the court to date.
[Tynes, supra, 408 N.J. Super. at 169-70 (quoting Leitner, supra, 392 N.J. Super. at 87-88).]
However, despite a party's failure to follow procedural rules governing a request to file a new expert report, we have
been particularly indulgent in not barring a late expert's report where the report was critical to the claim or defense, the late report was submitted well before trial, the defaulting counsel was not guilty of any willful misconduct or design to mislead, any potential prejudice to the adverse party
could be remediated, and the client was entirely innocent."We have done so despite our recognition of the importance of adherence to our rules in the appropriate circumstances, where relaxation was not warranted. Id. at 53. As we observed:
[Tucci v. Tropicana Casino & Resort, Inc., 364 N.J. Super. 48, 52 (App. Div. 2003).]
The Best Practices rules were "designed to improve the efficiency and expedition of the civil litigation process and to restore state-wide uniformity in implementing and enforcing discovery and trial practices." Vargas v. Camilo, 354 N.J. Super. 422, 425, n.1 (App. Div. 2002), certif. denied, 175 N.J. 546 (2003). They were not designed to do away with substantial justice on the merits or to preclude rule relaxation when necessary to "secure a just determination." R. 1:1-2. While we agree that the Best Practices rules were intended to counteract an unfortunate and increasingly dilatory, casual and desultory approach by some members of the bar to their litigation responsibilities, the fulfillment of that function does not mandate dismissal of this action with prejudice.See also Ponden, supra, 374 N.J. Super. at 8-9 (recognizing that "'Best Practices' . . . were intended and designed to improve not only the efficiency but also the expedition of civil proceedings, . . . by ratcheting down on the needless delays in the completion of discovery . . . [while still] adher[ing] to our recent decision in Tucci that the 'Best Practices' rule amendments 'were not designed to do away with substantial justice on the merits.'" (quoting Tucci, supra, 364 N.J. Super. at 53)).
[Ibid. (Emphasis added).]
Our review of the record leads us to conclude, as did the motion judge, plaintiffs counsel's failure to mention the need for a new expert was not the result of any nefarious conduct or a "dilatory, casual and desultory approach" to discovery in this matter. Cf. Tynes, supra, 408 N.J. Super. at 174-75 (Affirming the denial of a motion where the "matter ha[d] been pending for a considerable period of time, discovery ha[d] been extended several times and plaintiffs failed to offer convincing reasons for their failure to complete discovery by the prescribed discovery end date"); see also Bender, supra, 187 N.J. at 428-29 (affirming barring of defendants' attempt to add new experts, after scheduling of trial date, without explaining delay and what actions were taken during the discovery period). Rather, it was the result of counsel's incorrect belief that because discovery was extended without any limits or description of the discovery to be completed during the extended period, plaintiffs were free to serve a new expert report soon after being confronted with their first expert's deposition testimony which contradicted his report. At the time, there was no trial date or arbitration date scheduled, which required strict adherence to Best Practices. As a result, there was time for extending discovery, deposing plaintiffs' new expert, obtaining responsive reports and having defense experts deposed, if necessary. To the extent that additional discovery resulted in duplicative costs to defendants, the court could have devised an appropriate sanction to impose on plaintiffs for defendants having to deal with the situation created by plaintiffs' original expert.
Had the report been served later than twenty days prior to the discovery end date, as extended, counsel would have been obligated to serve an affidavit of due diligence, explaining the need for the new report and why it could not be provided sooner, R. 4:17-7, similar to the information he should have included in the motion to extend discovery.
Under these circumstances, we conclude our finding in Tucci is equally applicable to this case. In Tucci we stated:
In dismissing the complaint with prejudice because of the late report and denying the motion for reconsideration, the judge noted plaintiffs' failure to seek relief from the . . . deadline or otherwise to move for extension of the discovery-end date and relied as well on defendants' assertion that the expert report had opened up new areas of inquiry that had to be explored. Our review of the record satisfies us, however, that the judge's perceptions provided an insufficient basis for the ultimate sanction of dismissal with prejudice, that it failed to take into account other countervailing considerations, and that the dismissal with
prejudice constituted a mistaken exercise of discretion.
[Tucci, supra, 364 N.J. Super. at 51.]
Here, the motion judge's concern focused on plaintiffs' counsel's "lulling" defendants into a sense of security and the prejudice the delay and expense of allowing a new expert in the case would cause. However, those concerns could have been addressed by imposing other sanctions and for the first time, entering a discovery order that described in detail the discovery to be completed, fixed dates for each discovery event's completion, and scheduled a trial date. Dismissal with prejudice was not warranted.
We caution trial courts that they can avoid the problem created in this case by refusing to sign orders that fail to comply with the Rule's mandate and force counsel to submit orders delineating the discovery to be completed within precise time periods.
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Reversed and remanded for further proceedings consistent with this opinion. The trial court may consider the imposition of costs incurred by defendant based upon plaintiffs' failure to comply with the rules. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION