REBECCA ASHE VS. NEWARK BETH ISRAEL MEDICAL CENTER (L-3013-15, ESSEX COUNTY AND STATEWIDE) ( 2019 )


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  •                                 NOT FOR PUBLICATION WITHOUT THE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.
    SUPERIOR COURT OF NEW JERSEY
    APPELLATE DIVISION
    DOCKET NO. A-2224-18T3
    REBECCA ASHE,
    Plaintiff-Appellant,
    v.
    NEWARK BETH ISRAEL
    MEDICAL CENTER,
    Defendant-Respondent.
    __________________________
    Argued December 4, 2019 – Decided December 23, 2019
    Before Judges Mayer and Enright.
    On appeal from the Superior Court of New Jersey, Law
    Division, Essex County, Docket No. L-3013-15.
    Eric G. Kahn argued the cause for appellant (Javerbaum
    Wurgaft Hicks Kahn Wikstrom & Sinins, attorneys;
    Eric G. Kahn, of counsel and on the brief).
    Eileen Bass Rudd argued the cause for respondent
    (Hardin, Kundla, McKeon & Poletto, PC, attorneys;
    Eileen Bass Rudd, on the brief).
    PER CURIAM
    Plaintiff Rebecca Ashe appeals from a December 14, 2018 order
    dismissing her complaint against defendant Newark Beth Israel Medical Center
    (hospital) with prejudice. We reverse and remand.
    Plaintiff alleged she suffered an injury during a blood draw performed by
    an employee of the hospital on May 7, 2013. There is no evidence in the record
    describing the nature of her injury.
    On May 2, 2015, plaintiff filed suit, alleging she suffered "permanent
    personal injuries" arising from the "careless and negligent" care provided by the
    hospital. The hospital was served with the complaint on November 1, 2016 and
    filed its answer about one month later.
    In March 2017, plaintiff requested the hospital identify the phlebotomist
    who drew her blood on May 7, 2013. Plaintiff also served deposition notices,
    requesting the hospital produce an individual with knowledge to ascertain the
    identity of the target phlebotomist. The hospital did not produce anyone for
    deposition and responded it was unable to identify the specific phlebotomist
    because the blood draw records were discarded pursuant to hospital policy.
    Almost two years after filing its answer, the hospital filed a motion to
    dismiss plaintiff's complaint pursuant to Rule 4:4-1 and Rule 4:37-2(a) based on
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    2
    the failure to serve the summons within fifteen days from the date of the Track
    Assignment Notice. The motion judge heard oral argument on October 19, 2018.
    The hospital argued plaintiff's failure to timely serve the summons
    "resulted in an inability to identify the person who drew the blood," causing
    prejudice. In opposition to the motion, plaintiff contended the blood draw
    records "could have been destroyed before the time [plaintiff] should have
    served the complaint and if – if that's the case, . . . then [the hospital] hasn't
    established prejudice."
    The judge concluded it was unclear when the blood draw records were
    destroyed, and whether the records were discarded in the normal course of
    business pursuant to a specific written policy. The judge indicated that if the
    hospital presented a "specific certification or policy that . . . would specifically
    tie a timeframe" regarding destruction of the records, he might have granted the
    motion. Absent such information, the judge denied the motion without prejudice
    and allowed the hospital to refile when it obtained information "specifically
    detailing the prejudice suffered . . . ."
    The hospital renewed its motion to dismiss on October 31, 2018. The
    renewed motion included a certification from Carol Carson, the hospital's
    Interim Administrative Director of the Department of Laboratories/Blood
    A-2224-18T3
    3
    Supervisor. According to the Carson certification, the blood draw logs were
    maintained by the hospital for a minimum of two years from the date of blood
    draw "as required by the College of American Pathologists (CAP) and the
    [hospital's] Department of Laboratories Record Retention Policy."          Carson
    further certified: (1) "due solely to [p]laintiff's delay in filing and serving her
    [c]omplaint, the hospital no longer retains the blood draw accession log from
    May 7, 2013"; (2) the hospital "cannot identify with certainty the exact date
    when the blood draw accession log containing information on [plaintiff's] May
    7, 2013 blood draw was disposed of . . ."; and (3) the hospital's disposal of the
    blood draw accession log, "depending on the storage needs of the individual
    department involved," would have been "at the earliest, in June of 2015 and prior
    to the end of the 2015 calendar year."
    Due to plaintiff's delay in serving the summons, Carson explained, "as the
    relevant blood draw accession log is no longer retained that would have
    contained the phlebotomist's initials, the hospital is unable to produce the
    phlebotomist for deposition . . . ."     Absent from the record on the renewed
    motion is a definitive date when the hospital discarded the blood draw log to
    ascertain the prejudice, if any, suffered from plaintiff's delay in service of the
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    4
    summons. Nor did the Carson certification state there was no person at the
    hospital with knowledge of phlebotomists in its employ in May 2013.
    The judge heard argument on the renewed motion on December 14, 2018.
    After reviewing the motion papers, the judge explained, "I still believe, the case
    law really turns on the prejudice issue. What is the prejudice? . . . Can it be
    cured? Are there less drastic remedies other than dismissal?" He concluded the
    issue of prejudice was case-specific, consistent with case law, and dismissal of
    the complaint should be reserved "for those situations where no less a sanction
    will erase the prejudice suffered by the non-delinquent party."
    Ultimately, the judge determined there was no less drastic remedy he
    could impose that would alleviate prejudice to the hospital.           The judge
    concluded plaintiff's failure to send a preservation of documents letter was a
    critical factor in dismissing the case because if the hospital had been on notice
    of plaintiff's pending litigation, the blood draw logs would have been retained.
    The trial judge stated,
    I know counsel argues that [the hospital was]
    probably prejudiced because [the blood draw logs]
    probably were destroyed, but we don't know
    specifically. I don't know how they could do anything
    else. Because we have the certification that the records
    were destroyed in that time period and would not have
    been but for the lengthy passage of time from filing to
    service.
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    5
    The earliest, according to the certification, would
    have been destroyed June of '15. Certainly[,] by the
    end of the calendar year they were, and they just simply
    had no notice of this . . . lawsuit. And there's nothing
    plaintiff submits that [the blood draw logs] were
    destroyed after the hospital received a summons and
    complaint.
    In granting the hospital's motion, the judge failed to address statements
    made by the hospital's counsel during oral argument. Counsel for the hospital
    stated, for the first time, that "there were two [phlebotomists] working at the
    time" of plaintiff's injury. The judge did not question why it would have been
    difficult for the hospital to identify the individual who drew plaintiff's blood if
    there were only two phlebotomists employed on that date.1 Nor did the judge
    question the statement by the hospital's counsel that there was an "unwritten
    policy that [defendant] wouldn't dispose of [the logs] on the two-year deadline
    period," depending on "the needs of the lab . . . in holding on to such
    information."
    On appeal, plaintiff argues the hospital failed to present specific and
    demonstrable prejudice due to the delay in serving the summons and therefore
    dismissal of her complaint was erroneous. In addition, plaintiff contends she
    1
    In its merits brief, the hospital now asserts there were fourteen phlebotomists
    in its employ on May 7, 2013.
    A-2224-18T3
    6
    received new information during counsel's argument on the hospital's renewed
    motion and therefore had no opportunity to pursue the information to identify
    the target phlebotomist.
    We review an order of dismissal based upon Rule 4:4-1 and Rule 4:37-
    2(a) for abuse of discretion. Woodward-Clyde Consultants v. Chem & Pollution
    Scis., Inc., 
    105 N.J. 464
    , 475 (1987). A trial court abuses its discretion when
    the "'decision [was] made without a rational explanation, inexplicably departed
    from established policies, or rested on an impermissible basis.'" United States
    v. Scurry, 
    193 N.J. 492
    , 504 (2008) (alteration in original) (quoting Flagg v.
    Essex Cty. Prosecutor, 
    171 N.J. 561
    , 571 (2002)).
    Here, the hospital submitted a narrowly focused certification, stating the
    blood draw records were likely destroyed and the destruction date was unknown.
    The certification contained no information regarding the number of
    phlebotomists employed by the hospital in May 2013. If, as the hospital's
    attorney stated during argument before the motion judge, there were only two
    phlebotomists employed by the hospital at the time of plaintiff's injury, then the
    blood draw records may not have been necessary to identify the target
    phlebotomist. During discovery, plaintiff sought information from the hospital
    as to the identity of the phlebotomist who drew her blood. Whether there were
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    two, or even fourteen, phlebotomists employed by the hospital on the date of
    plaintiff's injury, the proffered certification does not indicate the blood draw
    records were the only source of information to identify the phlebotomist.
    Also absent from the record is any explanation by the hospital how the
    delay in service of the summons prejudiced its ability to maintain a defense to
    plaintiff's action. See Crispin v. Volkswagenwerk, A.G., 
    96 N.J. 336
    , 345-346
    (1984). The hospital bears the burden of showing prejudice occurring in the
    relevant time period. Moschou v. DeRosa, 
    192 N.J. Super. 463
    , 466-67 (App.
    Div. 1984) (requiring dismissal where defendant's disposal of records after
    expiration of the statute of limitations prejudiced his case). "[D]elay alone does
    not serve to create substantial prejudice." Mitchell v. Charles P. Procini D.D.S.,
    P.A., 
    331 N.J. Super. 445
    , 454 (App. Div. 2000). "[I]t is the lack of availability
    of information which results from the delay that is, for the most part,
    determinative of the issue of substantial prejudice." 
    Ibid. "[D]ismissal is reserved
    for those situations where 'no lesser sanction will
    erase the prejudice suffered by the non-delinquent party.'" Olds v. Donnelly, 
    150 N.J. 424
    , 438-39 (1997) (quoting 
    Crispin, 96 N.J. at 345
    ). The key factor in a
    dismissal decision is a showing of "specific or demonstrable prejudice" upon a
    defendant due to a delay between the filing and serving of the complaint.
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    8
    McLaughlin v. Bassing, 
    51 N.J. 410
    (1968), adopting Judge (later Justice)
    Sullivan's dissent in McLaughlin v. Bassing, 
    100 N.J. Super. 67
    (App. Div.
    1967). "Ordinarily, in the absence of demonstrable prejudice to the defendant,
    a complaint should not be dismissed because of untimely issuance of a
    summons." State v. One 1986 Subaru, 
    120 N.J. 310
    , 315 (1990).
    Here, the hospital stated it suffered prejudice but the Carson certification
    failed to explain the exact nature of the prejudice.         Nor did the hospital's
    certification indicate why it could not produce a person with knowledge
    regarding the identity of the target phlebotomist. The hospital may have other
    means of identifying the phlebotomist who drew plaintiff's blood. Given the
    relatively small number of phlebotomists employed by the hospital in May 2013,
    payroll records, security information, human resource forms, or similar
    information   may    be   available   to    pinpoint   the    target   phlebotomist
    notwithstanding the claimed destruction of the blood draw records.
    On this record, we are satisfied the hospital did not establish the delay in
    service of the summons caused it to suffer specific or demonstrable prejudice.
    As a result, the dismissal of plaintiff's complaint with prejudice was an abuse of
    discretion.
    Reversed and remanded. We do not retain jurisdiction.
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