RUTH M. SANCHEZ VS. THE ESTATE OF MARCO B. FERNANDO, M.D. (L-0897-17, HUDSON COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-4350-18T4
RUTH M. SANCHEZ,
Plaintiff-Appellant/
Cross-Respondent,
v.
THE ESTATE OF MARCO B.
FERNANDO, M.D., MAMATHA
GOWDA, M.D., FENG TAO,
M.D., AMERICAN IMAGING OF
JERSEY CITY,
Defendants,
and
CHALAPATHY NARISETY, M.D.,
MELCHOR D. ROMERO, M.D.,
ZARINE F. PATEL. M.D., JODY M.
MELENDEZ, M.D., PAYAM TORREI,
M.D., JERSEY CITY MEDICAL
CENTER, RWJ BARNABAS HEALTH,
LIBERTY MEDICAL ASSOCIATES,
Defendants-Respondents/
Cross-Appellants,
and
JOHN V. CHOLANKERIL, M.D.,
Defendant-Respondent.
_______________________________
Argued September 22, 2020 – Decided October 19, 2020
Before Judges Gilson, Moynihan, and Gummer.
On appeal from Superior Court of New Jersey, Law
Division, Hudson County, Docket No. L-0897-17.
Timothy J. Foley argued the cause for appellant/cross-
respondent (Snyder Sarno D'Aniello Maceri & da Costa
LLC, attorneys; Timothy J. Foley, Paul M. da Costa and
Shelly L. Foley, on the briefs).
Sam Rosenberg argued the cause for respondents/cross-
appellants Chalapathy Narisety, M.D., Jersey City
Medical Center, RWJ Barnabas Health and Liberty
Medical Associates (Rosenberg Jacobs Heller &
Fleming, P.C. attorneys; Sam Rosenberg, of counsel;
Wayne E. Paulter and Fred J. Hughes, on the briefs).
Michael R. Ricciardulli argued the cause for
respondent/cross-appellant Melchor D. Romero, M.D.
(Ruprecht Hart Ricciardulli & Sherman, LLP,
attorneys; Michael R. Ricciardulli, of counsel and on
the briefs; Brion D. McGlinn, on the briefs).
William J. Buckley argued the cause for
respondent/cross-appellant Zarine Patel, M.D.
(Schenck, Price, Smith & King, LLP, attorneys;
William J. Buckley and Sandra Calvert Nathans, on the
briefs).
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Jennifer Suh argued the cause for respondents/cross-
appellants Jody M. Melendez, M.D. and Payam Torrei,
M.D. (Weber Gallagher Simpson Stapleton Fires &
Newby, LLP, attorneys, join in the briefs of cross-
appellants; Jennifer Suh on the brief).
Alan J. Baratz argued the cause for respondent (Weiner
Law Group LLP, attorneys; Alan J. Baratz, on the
brief).
PER CURIAM
Plaintiff Ruth M. Sanchez appeals a series of orders that culminated in the
dismissal of her medical-malpractice lawsuit with prejudice. Because those
rulings deprived her of a fair and just adjudication of the merits of her claims,
we reverse and reinstate plaintiff's complaint. Defendants argue that a judge
erred in reconsidering and vacating his prior decisions granting defendants'
statute-of-limitations-based summary-judgment motions. We reject that
argument and affirm the court's reconsideration decisions.
On March 3, 2017, plaintiff filed a complaint, claiming that she had been
injured by the misplacement of an inferior vena cava filter and by the failure of
several doctors to detect that misplacement and the injury it caused.
In an April 23, 2018 case management order, the court set an October 30,
2018 discovery end date. The parties were to complete party depositions by
May 30, 2018. They did not meet that deadline because of the unavailability of
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defendant Melchor D. Romero, M.D. Accordingly, plaintiff moved to extend
discovery. In a July 6, 2018 order, the then presiding judge of the civil division
granted the unopposed motion, ordering the parties to complete their depositions
by October 31, 2018, requiring plaintiff to serve her expert reports by December
31, 2018, setting an April 30, 2019 discovery end date, and scheduling a trial to
take place on June 10, 2019. She stated that "the dates herein are NOT subject
to change . . . THERE SHALL BE NO FURTHER CASE MANAGEMENT OF
THIS CASE," even though by her own order discovery would continue for
another nine and a half months.
On the same day that the court issued its July 6, 2018 order, defendant Dr.
Romero moved for summary judgment, arguing that the statute of limitations
barred plaintiff's claims. All but one of the other active defendants also moved
or cross-moved for summary judgment on the same grounds. The parties did
not conduct any discovery after defendants filed their motions. Plaintiff
opposed those motions. On September 21, 2018, a new presiding judge of the
civil division granted defendants' summary-judgment motions. Those orders
had the effect of dismissing with prejudice plaintiff's case as to all active
defendants except one.
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On December 24, 2018, the presiding judge granted plaintiff's motion for
reconsideration, vacating his orders granting defendants' summary-judgment
motions. He concluded that a genuine issue of fact as to plaintiff's knowledge
about her injury and what plaintiff had been told about the filter and her injury
precluded summary judgment. Defendants subsequently moved and cross-
moved for reconsideration of the December 24, 2018 order. The presiding judge
denied their motions in February 15, 2019 orders.
After the court issued the December 24, 2018 order, plaintiff's counsel
requested a case management conference. The court denied that request and
advised him to file a motion. With defendants' consent, plaintiff moved to
extend discovery. Plaintiff included in her motion a request to extend interim
discovery deadlines, including deadlines for completion of depositions and the
submission of expert reports. Defendant Zarine F. Patel, M.D., filed a cross-
motion to extend discovery, also seeking an extension of the interim deadlines.
On January 25, 2019, the presiding judge denied plaintiff's motion to
extend discovery in its entirety. The judge rejected, without explanation, the
argument that the September 21, 2018 summary-judgment decisions, the
December 24, 2018 reconsideration order, and the three-month dismissal period
between those decisions constituted extraordinary circumstances. He stated that
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the "requested discovery that has not been completed can be completed within
the discovery period," even though he had denied plaintiff's request to extend
the interim discovery deadlines, including the December 31, 2018 deadline for
plaintiff's submission of expert reports. The presiding judge also denied
defendant Patel's cross-motion to extend discovery.
A week later, defendants Chalapathy Narisety, M.D., Jersey City Medical
Center, RWJ Barnabas Health, and Liberty Medical Associates moved for
summary judgment, based solely on plaintiff's failure to produce expert reports
by the December 31, 2018 deadline and the presiding judge's refusal to extend
that deadline. The other active defendants moved or cross-moved for summary
judgment on the same basis. Plaintiff opposed those motions, cross-moved to
extend discovery, and moved for reconsideration of the court's January 25, 2019
order. Plaintiff argued that by denying plaintiff's motion to extend discovery,
the court had left in place the December 31, 2018 expert deadline, thereby
imposing on plaintiff an impossible-to-meet requirement that she produce her
expert reports seven days after the court had reinstated a case that had been
dismissed with prejudice as to all but one defendant for over three months.
On March 15, 2019, the presiding judge denied plaintiff's cross-motion to
extend discovery. In his opinion, he acknowledged plaintiff's argument that she
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was not able to serve her expert reports timely by the December 31, 2018
deadline because the parties had not conducted discovery during the three-month
dismissal period. He also noted that defendant Dr. Romero and a non-party
treating physician had not appeared for deposition. Nevertheless, he faulted
plaintiff for "not tak[ing] steps to file an expert report, even if it would be
incomplete and would later be supplemented" and for not taking "additional
steps to move forward the discovery," except to file the motion to extend
discovery, which the court had denied. Relying on one prong of Vitti v. Brown,
359 N.J. Super. 40, 51 (Law Div. 2003), the presiding judge found that plaintiff
had not met the extraordinary-circumstances standard for a discovery extension
because she had not established that "the delaying factors were 'clearly beyond
the control' of [her] attorney."
On March 15, 2019, the presiding judge also denied plaintiff's motion to
reconsider the court's January 25, 2019 order denying plaintiff's motion to
extend discovery. The presiding judge stated that the December 24, 2018
reconsideration order "[gave] the parties [four] months to have expert reports
and expert witness depositions completed before the discovery end date
expired," even though the court in the December 24, 2018 order had not
extended the December 31, 2018 deadline for plaintiff's submission of expert
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reports. He again faulted plaintiff, and not defendants, for failing to conduct
discovery. He relied on the prior presiding judge's July 6, 2018 order and her
statement that there would be no further case management of the case. Rejecting
plaintiff's request to extend the interim deadlines, the presiding judge stated that
the parties had until the April 30, 2019 discovery deadline to complete discovery
and that the trial remained scheduled for June 10, 2019.
On March 15, 2019, without hearing oral argument, a different judge
granted defendants' motions for summary judgment, dismissing plaintiff's
complaint with prejudice. Plaintiff moved for reconsideration of those orders,
faulting the court for not holding oral argument, for not setting forth its factual
findings or legal reasons for granting the motions, and for granting summary
judgment before the close of discovery. By the return date of plaintiff's motion,
plaintiff had served expert reports regarding all but one active defendant.
On April 26, 2019, the court heard oral argument on plaintiff's motion for
reconsideration. The judge conceded that he was "technically" required to hold
oral argument, but indicated that he had not had oral argument based on his view
that the summary-judgment motions depended on "what [the presiding judge]
would decide regarding the [m]otion . . . to extend discovery . . . ." Because of
the lack of oral argument, he granted the motion for reconsideration and allowed
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plaintiff's counsel to argue the summary-judgment motions. Even though
plaintiff had served her expert reports regarding all but one defendant before the
discovery end date, the judge again granted defendants' summary-judgment
motions. Referencing "the constraints of [the presiding judge's] scheduling," he
concluded that "I, as the [p]retrial [j]udge on a [m]otion like this, . . . cannot
permit a late service of an expert [r]eport [twenty] days before the . . . discovery
end date . . . . [n]ot if . . . the centrally controlled [j]udge is not going to allow
me to do it." After expressly basing his decision on the presiding judge's
repeated refusal to extend discovery, the motion judge indicated that if
defendants agreed to accept plaintiff's expert reports and if the parties agreed to
complete discovery before the June 10, 2019 trial date, "then I can play ball with
you people." Not surprisingly, defendants were unwilling to agree to complete
discovery before the trial, and the court issued orders again granting the
summary-judgment motions and dismissing plaintiff's complaint with
prejudice.1 Plaintiff's appeal and defendants' cross-appeals followed.
1
The court issued a separate order dismissing with prejudice the complaint as
to defendant Jody M. Melendez, M.D., because plaintiff had not provided an
expert report regarding Dr. Melendez. During oral argument on appeal, counsel
for plaintiff and Dr. Melendez stated that they would submit a stipulation of
dismissal as to Dr. Melendez. We accept that representation.
A-4350-18T4
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We begin by addressing the court's orders denying the motions to extend
discovery, the resulting summary-judgment orders, and the related
reconsideration orders. We review discovery orders under the abuse-of-
discretion standard, meaning that 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. 2005); see also Capital
Health Sys., Inc. v. Horizon Healthcare Servs., Inc., 230 N.J. 73, 79-80 (2017).
Our review of a reconsideration order is similarly limited. State v. Puryear, 441
N.J. Super. 280, 294 (App. Div. 2015); see also Cummings v. Bahr, 295 N.J.
Super. 374, 389 (App. Div. 1996).
We review a trial court's grant of summary judgment "de novo under the
same standard as the trial court." Templo Fuente De Vida Corp. v. Nat'l Union
Fire Ins. Co., 224 N.J. 189, 199 (2016). We apply the standards of Brill v.
Guardian Life Insurance Co. of America, 142 N.J. 520, 540 (1995), and Rule
4:46-2. The question is whether the evidence, when viewed in a light most
favorable to the non-moving party, raises genuinely disputed issues of fact
sufficient to warrant resolution by the trier of fact, or whether the evidence is so
one-sided that one party must prevail as a matter of law. Brill, 142 N.J. at 540.
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Because the court had set a trial date, plaintiff had to demonstrate
exceptional circumstances to merit an extension of discovery. See R. 4:24-1(c).
To demonstrate exceptional circumstances, she had to show:
(1) why discovery has not been completed within time
and counsel's diligence in pursuing discovery during
that time; (2) the additional discovery or disclosure
sought is essential; (3) an explanation for counsel's
failure to request an extension of the time for discovery
within the original time period; and (4) the
circumstances presented were clearly beyond the
control of the attorney and litigant seeking the
extension of time.
[Rivers, 378 N.J. Super. at 79.]
See also Castello v. Wohler, 446 N.J. Super 1, 25 (App. Div. 2016).
In his January 25, 2019 order denying plaintiff's motion to extend
discovery, the presiding judge did not address the Rivers factors, did not provide
the analysis required by Rule 4:24-1(c), and seems to have overlooked the fact
that he had reinstated the case after having granted summary judgment to all but
one of the defendants three months before. He failed to recognize the negative
impact that the three-month dismissal period had on plaintiff's ability to serve
expert reports by December 31, 2018, only seven days after his reconsideration
order. He denied plaintiff's unopposed request to move the interim deadlines,
leaving in place the already-passed December 31, 2018 deadline for plaintiff's
expert reports. But then he said that the outstanding discovery could be
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completed within the existing discovery period. With no court order requiring
them to conduct the remaining depositions or to accept plaintiff's expert reports,
defendants did not voluntarily complete discovery. Instead, like sharks smelling
blood in the water, 2 they quickly filed their motions for summary judgment
predicated entirely on plaintiff's failure to comply with the December 31, 2018
expert report deadline and on the court's refusal to move that deadline.
In his March 15, 2019 opinion denying plaintiff's cross-motion to extend
discovery, the presiding judge referenced only the fourth Rivers prong; did not
address the impact the three-month dismissal period had on the case; faulted
plaintiff, and not defendants, for the parties' failure to conduct discovery since
he reinstated the case; and failed to recognize the reality that without a court
order requiring them to complete depositions and expert discovery, defendants
would have no incentive to do so. Instead, he focused on the months that
followed the court's December 24, 2018 order and faulted plaintiff for not
moving forward discovery, even though plaintiff had moved to extend
discovery, a motion the court denied. With that mistaken focus, the presiding
judge failed to appreciate the practical effect of the court's decisions: no
2
We intend no disrespect to counsel with this simile. We understand that they
were acting in the interest of their clients based on the deadlines left in place by
the court.
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discovery would take place after the grant of summary judgment, plaintiff could
not complete depositions and produce expert reports in the seven days between
the December 24, 2018 reconsideration order and the December 31, 2018 expert
deadline, and defendants would not conduct discovery without an order
extending discovery. The presiding judge apparently expected plaintiff, even
though defendants' depositions had not been completed, to go ahead and issue
her expert reports, ignoring the fact no court order permitted her to do so.
In his March 15, 2019 order denying plaintiff's motion for reconsideration
of his January 25, 2019 order, the presiding judge again faulted only plaintiff
for not completing discovery, failing again to recognize defendants' role in the
parties' failure to complete discovery. He inaccurately stated that his December
24, 2018 reconsideration order "[gave] the parties [four] months to have expert
reports and expert witness depositions completed before the discovery end date
expired." In fact, in his December 24, 2018 order, the presiding judge did not
mention the pending discovery deadlines and did not move the looming
December 31, 2018 deadline for plaintiff's expert reports, an omission that was
magnified when the court declined to conduct a case management conference
and denied plaintiff's motion to extend discovery.
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The presiding judge's repeated refusal to extend discovery had draconian
consequences. Feeling bound by his presiding judge's orders, the motion judge
granted defendants' summary-judgment motions and dismissed plaintiff's
complaint with prejudice – the ultimate sanction. He did so without citing any
law, without making any factual findings, and without giving any consideration
to plaintiff's expert reports or whether they created a genuine issue of material
fact. He effectively barred plaintiff's expert reports. Cf. Tucci v. Tropicana,
364 N.J. Super. 48, 52 (App. Div. 2003) (noting courts' reluctance to bar late
expert reports that are critical to a claim submitted by counsel not guilty of
misconduct). He based his decision on plaintiff's failure to produce expert
reports by the December 31, 2018 deadline and the orders denying the requests
to extend that deadline. By relying solely on his presiding judge's decisions not
to extend discovery, the motion judge did not satisfy his obligations under Rule
1:7-4 or 4:46-2(c).
We hold that the presiding judge and motion judge abused their discretion
with these rulings. The effect of their rulings deprived plaintiff of a fair and just
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adjudication of her case on the merits. Accordingly, we reverse those orders
and remand the case. 3
Plaintiff was entitled to an extension of discovery. She met each of the
four Rivers prongs establishing exceptional circumstances. Discovery had not
been completed because the case had been dismissed with prejudice nearly in its
entirety for over three months; the additional discovery, including completion
of fact and party witness depositions and expert discovery, was essential;
plaintiff filed her motion to extend discovery within the discovery period; and
the circumstances presented – the three-month dismissal period – were beyond
the control of plaintiff and her attorney.
Instead of denying the discovery-extension motions, thereby leaving in
place deadlines that already had passed and could not be met and paving the way
for defendants' summary-judgment motions, the court had other options. See
3
Defendant John V. Cholankeril, M.D., asks that we separately affirm the
court's decisions as to him because he did not move for summary judgment in
the summer of 2018 and the case as to him was not dismissed in the September
21, 2018 orders. He asserts that plaintiff could have continued discovery as to
him during the three-month dismissal period. We are persuaded by plaintiff's
arguments regarding the practical impediments to continuing a largely dismissed
case, especially when the outstanding discovery involved a dismissed party, and
note that Dr. Cholankeril did not oppose plaintiff's January 9, 2019 motion to
extend discovery. Accordingly, we are not inclined to treat him differently than
the other defendants.
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Castello, 446 N.J. Super. at 26 (recognizing strong preference that courts use
lesser sanctions instead of the ultimate sanction of dismissal with prejudice ).
Defendants argue that plaintiff could have and should have served expert
reports long before the court-ordered deadline of December 31, 2018. To adopt
defendants' argument that plaintiff's case remain dismissed with prejudice
because plaintiff did not serve her expert reports months before she was required
to serve them, we would have to be willing to impose retroactively on plaintiff
an earlier deadline never actually set by the trial court. That we are not willing
to do.
We are sensitive to the trial court's desire and obligation to move cases
expeditiously. See R. 1:33-6(b) ("the Presiding Judge of each functional unit
within the vicinage shall be responsible for the expeditious processing to
disposition of all matters filed within that unit"); see also Castello, 446 N.J.
Super. at 25. The Rules of Court are designed to achieve, among other goals,
trial-date certainty. Leitner v. Toms River Reg'l Schs., 392 N.J. Super. 80, 91
(App. Div. 2007). But justice and fairness never should be the price paid for
achieving that goal. Our system of justice favors the fair disposition of cases on
their merits. See Viviano v. CBS, Inc., 101 N.J. 538, 547 (1986). The desire
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for expedience should never supplant the interests of justice. See State v.
Cullen, 428 N.J. Super. 107, 113 (App. Div. 2012).
We now turn to defendant's appeal of the court's reconsideration order
vacating defendants' statute-of-limitations-based summary judgments and the
orders denying reconsideration of that order.
A medical-negligence cause of action "generally accrues on the date that
the alleged negligent act or omission occurred." Baird v. Am. Med. Optics, 155
N.J. 54, 65 (1998). The discovery rule may apply to delay accrual until "the
injured party discovers, or by an exercise of reasonable diligence and
intelligence should have discovered that he may have a basis for an actionable
claim." Lopez v. Swyer, 62 N.J. 267, 272 (1973). Thus, the discovery rule can
prevent the statute of limitations from running "when injured parties reasonably
are unaware that they have been injured, or, although aware of an injury, do not
know that the injury is attributable to the fault of another." Baird, 155 N.J. at
66. "Critical to the running of the statute is the injured party's awareness of the
injury and the fault of another." Ibid. See also Caravaggio v. D'Agostini, 166
N.J. 237, 246 (2001) (focusing on "whether the facts presented would alert a
reasonable person, exercising ordinary diligence, that he or she was injured due
to the fault of another").
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Generally, statute-of-limitations issues "will not be resolved on affidavits
or depositions since demeanor may be an important factor where credibility is
significant." Lopez, 62 N.J. at 275. Unless credibility determinations are not
involved, a trial court should conduct an evidentiary hearing outside the
presence of the jury. Ibid.; see also The Palisades at Fort Lee Condo. Ass'n, Inc.
v. 100 Old Palisade, LLC, 230 N.J. 427, 452 (2017) (remanding case to trial
court to conduct a Lopez hearing to examine evidence presented and "in its
discretion, take testimony from relevant witnesses").
Defendants based their statute-of-limitations arguments on the testimony
of defendant Dr. Narisety and unsworn statements of a non-party treating
physician. Plaintiff testified that she was not told about the filter misplacement
until 2015 and was not told that her medical complaints and pain were caused
by the filter misplacement. In initially granting the summary-judgment motions
based on his factual conclusion that defendant Dr. Narisety had told plaintiff
about the filter misplacement, the presiding judge failed to view the competent
evidence "in the light most favorable to the non-moving party," Brill, 142 N.J.
at 540. He also did not address whether plaintiff knew or should have known
that her injuries were caused by the misplaced filter or that defendants were at
fault in causing her injuries. And, in choosing to believe the doctors' statements
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and not plaintiff's, he made significant credibility determinations without
conducting a Lopez hearing. In vacating his summary-judgment decisions, the
presiding judge correctly recognized that summary judgment was not
appropriate when disputed issues of fact existed and could not be granted based
on the record before him. Accordingly, we affirm that decision and the denial
of defendants' motions for reconsideration.
In sum, we reverse the January 25, 2019 and March 15, 2019 orders
denying plaintiff's motion and cross-motion to extend discovery and motion for
reconsideration and the March 15, 2019 and April 26, 2019 orders granting
defendants' summary-judgment motions. We affirm the December 24, 2018
order granting plaintiff's motion for reconsideration and the February 15, 2019
orders denying defendants' motions and cross-motion for reconsideration. We
remand the case to the trial court to complete discovery and resume litigation.
We do not retain jurisdiction.
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