Seoung Ouk Cho v. Trinitas Regional Medical ( 2015 )


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  •                  NOT FOR PUBLICATION WITHOUT THE
    APPROVAL OF THE APPELLATE DIVISION
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-5923-13T2
    SEOUNG OUK CHO, deceased,
    by his administrator,
    YUNJIN JO, YUNJIN JO,                    APPROVED FOR PUBLICATION
    YOUNG HO JO, and HANNAH CUI,
    December 30, 2015
    Plaintiffs-Appellants,
    APPELLATE DIVISION
    v.
    TRINITAS REGIONAL MEDICAL
    CENTER and NJ HEART,
    Defendants,
    and
    JOHN HAN SHAO, M.D., GARDEN
    STATE CARDIOVASCULAR SPECIALISTS,
    EDWARD G. WILLIAMS, M.D., and
    HYEUN PARK, M.D.,
    Defendants-Respondents.
    ________________________________________________________________
    Argued November 17, 2015 – Decided December 30, 2015
    Before    Judges     Fisher,     Espinosa      and
    Rothstadt.
    On appeal from Superior Court of New Jersey,
    Law Division, Union County, Docket No. L-
    104-11.
    Michael S. Kimm argued the cause for
    appellants (Kimm Law Firm, attorneys; Mr. Kimm
    and Sung H. Jang, on the briefs).
    Jason M. Altschul argued the cause for
    respondents John Han Shao, M.D. and Garden
    State Cardiovascular Specialists (Krompier &
    Tamn, L.L.C., attorneys; Richard J. Tamn, of
    counsel and on the brief; Mr. Altschul, on
    the brief).
    Brion D. McGlinn argued the cause for
    respondent Edward G. Williams, M.D. (Ruprecht
    Hart Weeks & Ricciardulli, LLP, attorneys;
    David Parker Weeks, of counsel and on the
    brief; Mr. McGlinn, on the brief).
    Gary L. Riveles argued the cause for
    respondent Hyeun Park, M.D. (Dughi, Hewit &
    Domalewski, attorneys; Mr. Riveles, on the
    brief).
    The opinion of the court was delivered by
    ESPINOSA, J.A.D.
    In    Klier   v.    Sordoni      Skanska        Construction     Co.,   
    337 N.J. Super. 76
     (App. Div. 2001), we held the plaintiffs were denied
    due process of law when a trial court sua sponte conducted a
    summary   procedure      on    the   day       of    trial   and   dismissed      their
    complaint.        This        medical      malpractice        case    presents       an
    unfortunately more common variation of the scenario in which a
    litigant's case is dismissed on the day of trial.                           Although
    labeled a "motion in limine," the motions filed by defendant
    Hyeun Park, M.D., on the day before jury selection sought the
    dismissal    of   the    complaint         in       its   entirety,    an   admitted
    violation of the rule governing summary judgment motions.                            We
    now hold that the trial court's consideration of these motions
    2                                 A-5923-13T2
    and dismissal of the complaint against Park deprived plaintiffs
    of their right to due process of law.
    I.
    Defendant Park was decedent Seoung Ouk Cho's primary care
    cardiologist.     On April 23, 2009, he examined Cho at NJ Heart
    and admitted him to Trinitas Regional Medical Center because Cho
    complained of chest pain and had an abnormal electrocardiogram
    (EKG).    Defendant      John     H.     Shao,   M.D.,        of    Garden      State
    Cardiovascular    Specialists,     performed     a    heart        catheterization
    and an angioplasty (stent).        On June 25, 2009, Shao performed a
    second stenting procedure at Trinitas.                On July 16, 2009, Cho
    complained to Park that he "was feeling a little bit worse."
    Park performed an EKG, which was normal, and referred Cho for a
    thallium stress test at Trinitas.
    On   July    21,   2009,    defendant     Edward     G.    Williams,        M.D.,
    administered a stress test to Cho at Trinitas.                 Williams was not
    involved in scheduling the test, had never met Cho before and
    did not have any prior knowledge of Cho's medical history or
    current condition.      Williams terminated the stress test after
    approximately    six   minutes,        when   Cho's    EKG     changed       and    he
    indicated he was experiencing chest pain.               Williams immediately
    administered nitroglycerin spray; Cho's chest pain dissipated.
    3                                    A-5923-13T2
    Williams reached out for Shao.           He explained the results of
    the stress test to a covering physician, who admitted Cho to
    Trinitas, approximately one hour after Williams terminated the
    stress test.     Williams did not have any further interaction with
    Cho.    On July 23, 2009, while waiting for a scheduled cardiac
    catheterization, Cho suffered a fatal cardiac arrest.
    Plaintiffs      are   Cho's    siblings,      Yunjin       Jo     (Yunjin),1
    individually and in her capacity as administrator of his estate,
    and Young Ho Jo, and Cho's fiancée, Hannah Cui. Their complaint
    alleged    wrongful      death,    medical     negligence        and   breach     of
    contract for medical services.                As for the injury suffered,
    plaintiffs alleged they "lost their loved one; have suffered
    loss of society and consortium; and have lost other rights in
    relation to plaintiff Cho."               Their answers to interrogatories
    identified plaintiffs' claim for economic damages as follows:
    "Plaintiff-decedent has lost at least $50,000.00 per year for at
    least 32 years as plaintiff-decent [sic] would have owned and
    operated   his   own    business     at    least   until   age    70."     In    her
    deposition, Yunjin testified she incurred approximately $10,000
    in funeral expenses for Cho.              No documentation was provided to
    corroborate this expense or plaintiffs' claims that Cho had his
    1
    To avoid confusion, we refer to Cho's sister by her first
    name.
    4                                A-5923-13T2
    own    business,      earned      any    amount          of    income    or    provided      any
    financial support to any of the plaintiffs.
    Over    the    course      of    approximately            two    years,    defendants
    filed summary judgment motions that resulted in the dismissal of
    all of plaintiffs' complaint2 except for the claims against Park.
    In     November     2011,        the     claims         against        Trinitas      were
    dismissed on the ground that plaintiffs failed to comply with
    the Affidavit of Merit statute, N.J.S.A. 2A:53A-27 to -29.
    In March 2012, defendants Park, Garden State and Shao were
    granted partial summary judgment, dismissing Cui's claims with
    prejudice      on    the   ground       that,       as   Cho's    fiancée       she   was    not
    entitled to any recovery under the Wrongful Death Act, N.J.S.A.
    2A:31-1 to -6.        The trial court also granted summary judgment to
    Shao and Garden State based upon plaintiffs' failure to produce
    an    expert    report     that    identified            how    Shao    and    Garden    State
    deviated from the accepted standard of care.
    2
    In Points II, III, IV and V of their appeal, plaintiffs argue
    that the trial court erred in dismissing the claims against the
    other defendants, barring Frankenfeld's testimony, dismissing
    Cui's claims, and further argue that the trial court erred in
    failing to require defendants to produce records of payments
    they received from Cho for medical services.    After reviewing
    these arguments in light of the record and applicable legal
    principles, we conclude they lack sufficient merit to warrant
    discussion in a written opinion. R. 2:11-3(e)(1)(E).
    5                                     A-5923-13T2
    In July 2012, the claims against Williams were dismissed on
    the ground that plaintiffs failed to show his alleged negligence
    proximately caused Cho's death.
    In August 2013, the trial court granted Park's motion to
    exclude     the    testimony      of    plaintiffs'       economic    expert     on    the
    ground that his opinion constituted a net opinion.                            Plaintiffs
    filed a motion for leave to appeal this order, which was denied
    by this court.           Thereafter, plaintiffs filed a motion for leave
    to appeal with the Supreme Court, which denied the motion on
    December 18, 2013.
    In   sum,    as    of     August   2013,      summary      judgment     had    been
    granted dismissing the complaint against all defendants other
    than   Park.       All    claims       asserted     by    Cho's   fiancée     under    the
    Wrongful Death Act had been dismissed with prejudice.                                 As a
    result      of    the    order      barring       Frankenfeld's      expert     opinion,
    plaintiffs lacked expert testimony to support their claims that
    they suffered the loss of economic support from Cho.                                 As of
    December     18,    2013,      no      requests     for    appellate    review        were
    pending.
    II.
    The matter was listed for trial on Monday, March 31, 2014.
    This was the second trial date, coming four weeks after the
    first trial call before the presiding judge.                          Addressing the
    6                                 A-5923-13T2
    parties,    the   trial    judge    noted     neither    the    plaintiffs       nor
    defendant Park wanted to pick a jury that day and stated she
    understood the parties had "in limine motions" to be heard.                      She
    announced   a     jury    would   be   selected    "first       thing   Wednesday
    morning," followed by opening statements on Wednesday afternoon.
    She   directed    plaintiffs'      counsel    to   bring    all    exhibits      for
    marking before 9:00 a.m.            Park's counsel confirmed he had no
    issue with any of the exhibits.             The court reviewed the order of
    witnesses   and    that    the    defense    expert     would    testify    before
    plaintiffs' expert.
    When the trial judge turned to address defendant Park's
    motions, defense counsel was not prepared to argue any in limine
    motions.    He stated,
    Judge, I, I did point out in chambers
    that I may have a motion on Wednesday, and
    that is to dismiss.   I'm still mulling it
    over, because I don't know what damages are
    left in this case.
    As I said, the Complaint does not
    reference   a  survival   cause   of action.
    [N.J.S.A.] 2A:15-3 is not pled even remotely
    in the Complaint.     And as it relates to
    income loss, that's gone.     So, all that's
    left is companionship advice and Counsel.
    And that was not referenced [in] the Answers
    to Interrogatories. So, I have an Associate
    working on that for me right now.
    [(Emphasis added).]
    7                                  A-5923-13T2
    After further discussion, the trial judge stated she would
    like to "have some time to reflect on [the motion]" and asked to
    have      the    motion       filed    and     served       by     the     following         day.
    Plaintiffs'        counsel      was    not     asked       for   his     consent    to       this
    procedure        and    did    not    pose     an    objection.           The    court       then
    proceeded to address plaintiffs' in limine motions.
    Park's motion papers were filed on the following day, April
    1, 2013.        In a sixteen-page brief, Park argued that plaintiffs'
    wrongful death claim should be dismissed with prejudice because
    their proofs of economic loss were "too speculative to present
    to   a    jury,"       that   the     claim    for    punitive         damages    should      be
    dismissed with prejudice, and that plaintiffs should be barred
    from     presenting       any   evidence        of    pain       and   suffering        by    Cho
    because     no    survival      claim     had       been    pleaded.           Finally,      Park
    argued that if the requested relief were granted, no viable
    claim remained and the complaint should be dismissed in its
    entirety with prejudice.
    With    exhibits,      Park's        submission         was     260    pages     long.
    Although there were some citations to the record included in the
    brief, the moving papers did not include a statement of material
    facts or otherwise conform to the requirements of Rule 4:46-
    2(a).
    8                                     A-5923-13T2
    Plaintiffs' five-page opposition was filed and served by
    email    on    the   same     day,     within    hours    of     Park's   filing.
    Plaintiffs cited N.J.S.A. 2A:31-5, which authorizes the jury to
    award
    such damages as they shall deem fair and
    just   with   reference   to the   pecuniary
    injuries resulting from such death, together
    with the hospital, medical and funeral
    expenses incurred for the deceased, to the
    persons entitled to any intestate personal
    property of the decedent.
    [(Emphasis added).]
    Plaintiffs noted that in addition to her contention that
    she anticipated financial support from Cho, Yunjin testified she
    paid approximately $10,000 in funeral expenses.                     They argued
    further that the complaint could be fairly read to allege a
    survival action because Cho's sister, brother and fiancée were
    named as individual parties.
    On    the     following     day,    the     trial    judge    expressed     her
    reluctance to consider the motion:
    I received an email yesterday; I would say
    mid to late morning . . . a purported motion
    in limine seeking to dismiss plaintiff's
    [sic] claim for punitive damages, wrongful
    death and preclude any reference to pain and
    suffering as a survival claim, as they have
    not been pled.
    Now, some Judges, and I've asked them,
    would not even consider your motion, because
    it's not a motion in limine.   I'm going to
    give you a chance to explain to me why I
    9                                A-5923-13T2
    should even consider this, since this is
    something that could have been made as a
    motion for summary judgment, as a motion to
    dismiss, at any time during the — how many
    years has this case been pending?
    After counsel responded that the matter had been pending
    for three years, the court continued:
    Three? Any time during those three
    years?   Why am I getting it; as we have
    already come to trial, as — you know, if it
    hadn't   been   for  your . . .  engagement
    yesterday. . . . [w]e would be engaged in
    trial.   I mean [the presiding judge] was
    less than pleased that I wasn't pulling a
    jury on Monday.     So, why, why should I
    consider this now? It's not really a motion
    in limine.
    When Park's counsel insisted "it is absolutely a motion in
    limine," the judge responded, "it's a motion in limine only
    because you brought it on the eve of trial."            The explanation
    Park's counsel gave for the delay in filing the motion was that
    there were several appeals to the Appellate Division and the
    Supreme Court, which deprived the trial court of jurisdiction.3
    After   hearing   oral   argument,   the   trial   judge   issued    a
    decision on the record, granting the motion and dismissing all
    claims with prejudice.    A motion for summary reconsideration was
    denied and this appeal followed.
    3
    As we have noted, the Supreme Court denied plaintiffs' motion
    for leave to appeal from the order barring the testimony of
    their economic expert in December 2013.      No other appellate
    activity was identified.
    10                             A-5923-13T2
    In   oral   argument     before       this   court,   Park's    counsel
    presented a different reason for the untimely filing of the
    motion to dismiss.      He stated the motion was filed "at the last
    minute" because the attorney who had filed Park's earlier motion
    to bar the testimony of the economic expert had left the law
    firm and trial counsel received the file to prepare for trial
    just prior to the weekend before trial.               Although he admitted
    that the filing of the motions violated the Rules of Court,
    counsel maintained he was entitled to file a motion to dismiss
    the   complaint   at   any   time,   even     at   trial.   Counsel    argued
    further that the order dismissing the complaint against Park
    should be affirmed because the complaint lacked merit.
    III.
    Our Rules of Court provide explicit requirements for the
    timing of summary judgment motions, what must be presented in
    support of and in opposition to such motions, and the standard
    for deciding them.     R. 4:46-1, -2.        There are, however, no rules
    that explicitly address motions in limine.
    The term "in limine" is taken from the Latin phrase, "at
    the outset."      Black's Law Dictionary 791 (9th ed. 2009).                The
    absence of any rule addressing what may properly be considered
    as a preliminary matter before trial commences has permitted the
    timing of the motion, rather than its subject matter, to pass
    11                              A-5923-13T2
    for a definition.           However, whether a motion is correctly termed
    a motion in limine is not dictated by the fact it is brought
    literally on the threshold of trial.                       Black's defines a motion
    in limine as "[a] pretrial request that certain inadmissible
    evidence not be referred to or offered at trial."                             Id. at 1109.4
    Thus, it is anticipated that, as a general rule, a motion in
    limine will not have a dispositive impact on a litigant's entire
    case.
    Even    when    a    limited        issue      is   presented,      "[o]ur     courts
    generally      disfavor       in    limine      rulings     on      evidence   questions,"
    because       the     trial        provides      a     superior       context      for    the
    consideration of such issues.                   State v. Cordero, 
    438 N.J. Super. 472
    ,    484-85      (App.     Div.    2014),         certif.     denied,    
    221 N.J. 287
    (2015).       Although a trial judge "retains the discretion, in
    appropriate cases, to rule on the admissibility of evidence pre-
    trial," 
    id. at 484
    , we have cautioned that "[r]equests for such
    rulings    should      be     granted       only      sparingly."          
    Ibid.
        (quoting
    Bellardini v. Krikorian, 
    222 N.J. Super. 457
    , 464 (App. Div.
    1988); see also Biunno, Weissbard & Zegas, Current N.J. Rules of
    Evidence,      comment        1      on     N.J.R.E.       105      (2015).        This     is
    particularly        true      when        the   "motion        in    limine"      seeks   the
    4
    Arguably, defendant's motion to exclude evidence of Cho's pain
    and suffering because no survival claim had been pleaded, would
    fall within this description.
    12                                  A-5923-13T2
    exclusion of an expert's testimony, an objective that has the
    concomitant effect of rendering a plaintiff's claim futile.                            See
    Bellardini, 
    supra,
     
    222 N.J. Super. at 463-64
    .
    The fact that this misuse of the motion in limine occurs
    sufficiently       often    to    win   our    notice,      despite     our    repeated
    cautions     against       such    practice,       leads     us    to   conclude       it
    necessary to state clearly what a motion in limine is not.                             It
    is not a summary judgment motion that happens to be filed on the
    eve   of   trial.       When      granting     a   motion    will     result    in     the
    dismissal     of    a   plaintiff's      case      or    the      suppression     of    a
    defendant's defenses, the motion is subject to Rule 4:46, the
    rule that governs summary judgment motions.
    Rule   4:46-1     states,      "[a]ll    motions      for    summary     judgment
    shall be returnable no later than 30 days before the scheduled
    trial date, unless the court otherwise orders for good cause
    shown."      In our view, the "unless otherwise ordered" language
    contemplates scheduling by the court, prior to trial, either sua
    sponte or upon a showing of good cause by the movant.                          However,
    even if the good-cause standard applies here,5 defendant failed
    5
    Although we need not reach this issue on the facts before us,
    it would not be unreasonable to infer that defendant's request
    to have his untimely motion entertained at trial should be
    subject to an "extraordinary circumstances" standard.        See
    Klier, 
    supra,
     
    337 N.J. Super. at 85
     (suggesting a summary
    (continued)
    13                                   A-5923-13T2
    to make a sufficient showing to justify consideration of his
    untimely motion.
    Using    language     similar     to   Rule   4:46-1,      Rule    4:24-2
    identifies   motions    that   must   be   made   returnable    before      the
    expiration of the discovery period "unless on notice and motion,
    for good cause shown, the court otherwise permits."               In Carbis
    Sales, Inc. v. Eisenberg, 
    397 N.J. Super. 64
    , 80-82 (App. Div.
    2007) (emphasis added), we found the trial court did not abuse
    its discretion in denying a motion made at trial, and "grossly
    out of time," to compel discovery of a document where the moving
    party had knowledge of the document, failed to file a timely
    motion and offered no explanation for such failure.
    Here, too, the documents relied upon by Park to support his
    motions were available for review long before the time in which
    to file a summary judgment motion expired.            Defendant's stated
    reason that the court had lacked jurisdiction to entertain the
    motion fails to establish good cause in light of the fact that
    appellate proceedings concluded more than three months before
    the trial date and did not preclude the filing of a timely
    motion.   Similarly, the unexceptional departure of an associate
    falls short of establishing good cause.
    (continued)
    dismissal at trial may be an appropriate exercise of discretion
    when the situation is "truly emergent" or "extraordinary").
    14                              A-5923-13T2
    We also find no basis for the application of Rule 1:1-2,
    which generally permits the relaxation of a rule "if adherence
    to    it    would    result      in    an    injustice."          "Rule   1:1-2    is   the
    exception, rather than the norm," Romagnola v. Gillespie, Inc.,
    
    194 N.J. 596
    , 604 (2008) (quoting State v. Williams, 
    184 N.J. 432
    ,       442     (2005)),      and    "should         be    sparingly   resorted      to,
    particularly when a reasonable interpretation of the complex of
    directly applicable rules meets the problem at hand."                             Pressler
    and Verniero, Current N.J. Court Rules, comment 2 on R. 1:1-2
    (2016); Romagnola, 
    supra,
     
    194 N.J. at 604
    ; Bender v. Adelson,
    
    187 N.J. 411
    ,    431   (2006).           The    "problem   at    hand"    is   the
    appropriate timing of dispositive motions.                        Rule 4:46 meets that
    problem, recognizing the "obvious" desirability of deciding such
    motions          prior    to    trial       and    establishing       requirements       to
    accomplish that goal.             Pressler & Verniero, supra, comment on R.
    4:46-1.
    It is, therefore, clear that the Rules of Court offer no
    legitimate path for the consideration of defendant's motions on
    the    day       before   jury    selection.             We   therefore   turn     to   the
    question whether the dismissal of the complaint based upon these
    motions deprived plaintiffs of due process of law.
    15                                  A-5923-13T2
    IV.
    "Fundamentally, due process requires an opportunity to be
    heard at a meaningful time and in a meaningful manner."                          Doe v.
    Poritz, 
    142 N.J. 1
    , 106 (1995); see Pelullo v. State, Comm'n of
    Investigation,     
    294 N.J. Super. 336
    ,    345    (App.     Div.     1996),
    certif. denied, 
    149 N.J. 35
     (1997).                   "[W]hile the concepts of
    'judicial     administration'       and    fairness      are      not    necessarily
    incompatible, the desire to facilitate judicial administration
    must take a back seat to our primary goal which is to adjudicate
    cases fairly and impartially."            Klier, 
    supra,
     
    337 N.J. Super. at 83
    .   "Our rules of court must be 'construed to secure a just
    determination,         simplicity         in     procedure,            fairness       in
    administration and the elimination of unjustifiable expense and
    delay.'"    
    Ibid.
     (quoting R. 1:1-2).
    The summary judgment rules have been amended over the years
    to ensure those goals are realized.              Prior to the amendment that
    became effective January 1986, the timing of summary judgment
    motions was subject to Rule 1:6-3.               Pressler & Verniero, supra,
    History    and   Analysis   of   Rule      Amendments        to   R.    4:46-1    (Gann
    Online     Edition).      The    impetus       for    the     amendment     was      the
    recognition it was "patently unfair to apply the time frames of
    R. 1:6-3(a), which give the respondent only 8 days in which to
    file and serve the response" when the movant was free from any
    16                                   A-5923-13T2
    time constraints.        Pressler & Verniero, supra, comment on R.
    4:46-1 (emphasis added).           To remedy this, the amendment afforded
    the respondent "approximately three weeks for response."                      Ibid.
    The    amendment     also    required         summary   judgment    motions        be
    "returnable no later than 30 days before trial" to implement the
    goal of resolving dispositive motions prior to trial.                         Ibid.
    Trial judges were encouraged to decide summary judgment motions
    on a more timely basis by providing that adjournment requests be
    "liberally granted" if the "disposition is not [communicated] at
    least 10 days prior to the scheduled trial date."                   Ibid.      This
    change was made "[i]n recognition of counsel's need to know the
    disposition of the summary judgment motion in sufficient time to
    prepare for trial if the motion is denied or only partially
    granted."    Ibid.
    "Due process is not a fixed concept . . . but a flexible
    one that depends on the particular circumstances."                  Doe, 
    supra,
    142 N.J. at 106
    .         Therefore, we do not hold that the summary
    judgment rules establish rigid requirements that must be met in
    every case for due process demands to be satisfied.                     Still, the
    time    requirements     for      the   filing    and   decision    of     summary
    judgment    motions    provide      a   useful     background     for    assessing
    whether     plaintiffs      had    an   opportunity     to   be    heard      at    a
    meaningful time and in a meaningful manner.
    17                                A-5923-13T2
    In this case, the timing requirements of Rule 4:46-1 were
    violated in every respect.            Notice of the motion came not thirty
    days before the trial date, but after the second trial date.
    Plaintiffs had less than one day to file their response.                           This
    was not only substantially less than the three weeks afforded
    them by Rule 4:46-1; it was even less than the "patently unfair"
    eight-day    period       in   effect     prior    to    the    rule's      amendment.
    Finally, the decision here was rendered the day before jury
    selection, presumably after plaintiffs had expended some effort
    and   expense      to   prepare     for   trial,   rather      than   the    ten   days
    before trial anticipated by the rule.6
    In Klier, the trial court afforded plaintiffs' attorney two
    days to produce his expert's report and argue against a motion
    for dismissal.          
    337 N.J. Super. at 84
    .          Observing the "obvious"
    purpose of the summary judgment rules was "to afford the party
    against     whom    relief     is    sought     notice    of    the    application,
    together with a meaningful opportunity to respond," we concluded
    that two days was insufficient to cure the deficiencies in the
    6
    The movant also failed to comply with the requirements of Rule
    4:46-2(a), which are intended "to focus the parties' attention
    on the areas of actual dispute" and "significantly facilitate
    the court's review." Pressler and Verniero, supra, comment 1 on
    R. 4:46-2. This failure put both the trial judge and plaintiffs
    at an unnecessary disadvantage.
    18                                 A-5923-13T2
    plaintiffs' opportunity to respond.                      Id. at 84-85.      Accordingly,
    we held the plaintiffs had been deprived due process of law.
    We reach the same conclusion here.                          Further, we utterly
    reject    the    argument      that    the     dismissal       should      be     affirmed,
    despite    the    violation       of     summary          judgment       rules,     because
    plaintiffs suffered no prejudice in the dismissal of claims that
    lacked merit.      The right to due process of law is not limited to
    worthy causes.         However, we note that, because we conclude that
    these motions should not have been considered by the court, we
    express no opinion as to the merits of the motions.
    We are not insensitive to the pressures upon the court and
    litigants that may make it appear reasonable to disregard the
    requirements      of    the    rules     and       sound    the    death       knell    to    a
    litigant's case on the day of trial.                          Lawyers burdened with
    heavy    caseloads      may    lack    the        heightened       focus    to     identify
    dispositive      issues       earlier.         A    litigant       may    be    unable       or
    unwilling to acknowledge weaknesses in his or her case.                                 Trial
    judges may be sorely tempted to spare jurors the task of hearing
    a cause that appears to lack merit and turn to the demands of an
    unyielding      calendar.         Still,           our    commitment       to     the    fair
    administration of justice demands that we protect a litigant's
    right to proceed to trial when he or she has not been afforded
    the     opportunity      to     respond      to      dispositive         motions        at    a
    19                                    A-5923-13T2
    meaningful time and in a meaningful manner.                We therefore hold
    that, absent extraordinary circumstances or the opposing party's
    consent,    the   consideration   of      an    untimely   summary   judgment
    motion at trial and resulting dismissal of a complaint deprives
    a plaintiff of due process of law.
    The     order    dismissing      plaintiffs'       complaint     against
    defendant    Park   is   reversed.         We    remand    the   matter    for
    restoration to the trial calendar and leave further management
    of the case to the discretion of the trial court.
    20                              A-5923-13T2