VERONICA WILLIAMS VS. ATLANTICARE REGIONAL MEDICAL CENTER,Â(L-2228-09, ATLANTIC COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-4939-14T2
VERONICA WILLIAMS,
Plaintiff-Appellant,
v.
ATLANTICARE REGIONAL MEDICAL CENTER,
JAMES LOWE, M.D., JOSEPH ZERBO, D.O.,
SCOTT URBAN, D.O. and FRANCIS J.
SALVATORE, JR., M.D.,
Defendants,
and
JESSICA COSTABILE, D.O.,
Defendant-Respondent.
_________________________________
Argued March 21, 2017 – Decided May 11, 2017
Before Judges Ostrer and Vernoia.
On appeal from the Superior Court of New
Jersey, Law Division, Atlantic County, Docket
No. L-2228-09.
Richard J. Heleniak argued the cause for
appellant (Messa & Associates, P.C.,
attorneys; Mr. Heleniak, on the brief).
Joseph A. DiCroce argued the cause for
respondent (Mr. DiCroce, attorney; Janice B.
Venables, on the brief).
PER CURIAM
Plaintiff appeals Law Division orders granting summary
judgment to defendant Jessica Costabile denying plaintiff's motion
for reconsideration of the summary judgment order, and directing
that her counsel pay defendant Joseph Zerbo's expert witness
cancellation fees. Having considered the record in light of the
applicable law, we affirm the orders granting Costabile's motion
for summary judgment and denying plaintiff's motion for
reconsideration, and reverse the order directing plaintiff's
counsel to pay the fees.
I.
On June 19, 2007, plaintiff underwent spinal surgery
performed by Dr. Zerbo, an orthopedic surgeon, and Dr. James Lowe,
a neurosurgeon, under general anesthesia administered by Dr.
Costabile. During the surgery, plaintiff suffered a tear to her
pharynx that required subsequent surgical repair and resulted in
a failure of the spinal surgery.
On June 17, 2009, plaintiff filed a complaint alleging medical
malpractice against Zerbo, Lowe, other physicians, the hospital,
and various fictitious defendants.1 Costabile was not named as a
defendant, but plaintiff alleged that fictitiously-named John Doe
1The complaint named John Does 1 through 7 and Jane Does 1 through
7 as defendants.
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and Jane Doe defendants "intubated [plaintiff] and administered
general and tracheal anesthesia," caused injury to plaintiff's
pharynx, and "took no steps to treat the injury."
In February 2011, the court granted plaintiff's motion to
amend the complaint to add Costabile as a defendant. In March
2011, plaintiff filed an amended complaint alleging Costabile
negligently caused injury to plaintiff's pharynx during the
intubation of plaintiff and administration of anesthesia.
Costabile subsequently filed a motion for summary judgment
asserting that plaintiff's claim was barred by the two-year statute
of limitations, N.J.S.A. 2A:14-2, and claiming plaintiff failed
to provide an affidavit of merit in accordance with N.J.S.A.
2A:53A-26 to -29. The court rejected plaintiff's contention that
her claim was timely because it was asserted in the original
complaint against a fictitious defendant in accordance with Rule
4:26-4.
The court determined the claim was barred by the statute of
limitations because plaintiff's initial complaint alleged she was
injured as a result of the anesthesiologist's negligence, the
available hospital records identified Costabile as the
anesthesiologist, and plaintiff was not otherwise diligent in
attempting to learn Costabile's identity before the limitations
period expired. Because the court concluded plaintiff's claim was
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time-barred, it did not address Costabile's argument that she was
entitled to a dismissal because plaintiff failed to serve an
affidavit of merit. The court entered a February 17, 2012 order
granting Costabile's summary judgment motion.
Plaintiff moved for reconsideration. The court denied the
motion, finding plaintiff failed to demonstrate that the court's
summary judgment order was founded either on a palpably incorrect
or irrational basis, or that the court failed to consider or
appreciate the significance of probative competent evidence. The
court further determined the complaint should be dismissed as to
Costabile because plaintiff failed to serve an affidavit of merit.
On May 11, 2012, the court entered an order denying plaintiff's
reconsideration motion and granting Costabile summary judgment
based on plaintiff's failure to serve an affidavit of merit.
The trial against the remaining defendants was scheduled for
January 22, 2013, but was adjourned by the court until May 20,
2013. Six days before the trial was scheduled, plaintiff's counsel
requested an adjournment. The court granted the request and
scheduled a preemptory trial date of June 24, 2013. On June 18,
2013, plaintiff's counsel commenced jury selection in a different
matter in Camden County and requested an adjournment of the trial
in this case. The court denied the request. In response to an
emergent application filed by plaintiff, we granted a stay of the
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trial until June 26, 2013. The trial court then adjourned the
trial to a later date.
In September 2013, the court granted Zerbo's motion for
summary judgment based on plaintiff's failure to serve an affidavit
of merit. Ten months later, in July 2014, Zerbo filed a motion
requesting that plaintiff pay expert witness cancellation fees
that were owed to Dr. Scott A. Rushton, M.D., Zerbo's expert
witness in the field of orthopaedic surgery. Zerbo asserted that
under his agreement with Rushton, he was obligated to pay a $4000
fee for each of the late cancellations of Rushton's scheduled
appearances at the adjourned May 2013 and June 2013 trial dates.
Zerbo claimed the trial adjournments were at plaintiff's request
and were due to her counsel's actions, and thus she should pay the
cancellation fees due Rushton.
The court heard argument on Zerbo's motion and determined
that Rushton was entitled to reimbursement from plaintiff's
counsel in a sum not to exceed $4000 for any loss of income
resulting from the cancellation of his appearance at the June 2013
trial, which was adjourned solely due to plaintiff's counsel's
unavailability. The court entered an October 8, 2014 order
directing that Rushton submit a certification detailing any
claimed lost income resulting from the cancellation of the June
2013 trial. The court subsequently reviewed a certification from
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Rushton, and on December 15, 2014, entered an order directing that
plaintiff's counsel pay Rushton's medical practice $4000 "in
reimbursement for the fee paid to [] Rushton."
In 2015, the case proceeded to trial before a jury against
Lowe only.2 The jury returned a no-cause verdict. Plaintiff
appealed.
II.
On appeal, plaintiff makes the following arguments:
POINT I
The Trial Court Erred in Sanctioning
Plaintiff's Counsel and Compelling Payment of
Defendant Zerbo's Expert Cancellation Fees
Because the Adjournment of the June 24, 2013,
Trial Listing Was [] for Good Cause and a Just
Excuse.
POINT II
The Trial Court Erred in Granting Summary
Judgment on Behalf of Dr. Costabile For
Failing to File the Complaint Within the
Applicable Statute of Limitations When
Plaintiff Included Fictitious Parties Within
The Complaint and The Court Permitted
Plaintiff's Motion to Amend the Complaint
Pursuant to [R.] 4:26-4 Upon Discovery of Dr.
Costabile's Identity and Role in The Surgery.
We first consider plaintiff's contention the court erred by
directing that her counsel pay Zerbo's expert, Rushton, for lost
income resulting from the adjournment of the June 2013 trial.
2The claims against the other defendants were dismissed at various
times prior to trial.
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Plaintiff argues the adjournment of the trial was necessitated by
his participation in the Camden County jury trial, and that
imposition of a sanction constituted an abuse of discretion.3
The court determined that plaintiff's counsel should pay
Rushton because counsel was aware of the June 2013 preemptory
trial date in this matter, but began the Camden County trial
without advising the court there about the preemptory trial date
in this matter. We review a trial court's imposition of a sanction
for an abuse of discretion. Cf. Gonzalez v. Safe & Sound Sec.
Corp., 185 N.J. 100, 115 (2005).
In pertinent part, Rule 1:2-4(a) provides that "[i]f without
just excuse or because of failure to give reasonable attention to
the matter" a party requests an adjournment of a trial, the court
may order that the party making the request pay the "reasonable
expenses" of the "aggrieved party." The record shows plaintiff's
counsel was actively engaged in a jury trial in Camden County,
made a timely request for an adjournment of the June 2013 trial
date in accordance with Rule 4:36-3(b), and his participation in
3We suppressed Zerbo's brief in this matter as nonconforming and,
as such, he has presented no argument in opposition to plaintiff's
contentions. In any event, Zerbo's putative brief did not include
any substantive arguments but relied solely on the reasoning of
the motion court.
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the Camden County matter necessitated an adjournment of the
commencement of the trial in this case.
To be sure, plaintiff's counsel should have communicated with
the Camden County court and the trial court in this case about the
potential scheduling conflict between the two matters. The record,
however, also shows that plaintiff's counsel had been engaged in
settlement negotiations in the Camden County matter, believed it
was going to be resolved and would not interfere with the
commencement of the trial here, and immediately requested the
adjournment in this case when the settlement negotiations failed
and jury selection began in Camden. The court was reasonably
concerned with plaintiff's counsel lack of communication
concerning the potential scheduling conflict, but we are not
convinced the record supports a determination that plaintiff's
adjournment request was without "just excuse" and was the result
of a "failure to give reasonable attention to [this] matter." R.
1:2-4(a). We are therefore constrained to reverse the court's
orders directing that plaintiff's counsel reimburse Rushton for
any purported loss of income due to the trial adjournment.
We next address plaintiff's argument that the court erred by
granting Costabile's motion for summary judgment. In the first
instance, we affirm the court's award of summary judgment based
on its determination that plaintiff failed to serve an affidavit
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of merit as required under N.J.S.A. 2A:53A-26 to -29. The court's
finding that plaintiff failed to serve an affidavit of merit from
a physician licensed in Costabile's area of practice,
anesthesiology, is supported by the record.
Plaintiff appealed the court's December 15, 2014 order
granting summary judgment to Costabile based on plaintiff's
failure to serve an affidavit of merit, but plaintiff's brief on
appeal does not argue that entry of the order constituted error.
An issue not briefed on appeal is deemed waived. Jefferson Loan
Co. v. Session, 397 N.J. Super. 520, 525 n.4 (App. Div. 2008);
Zavodnick v. Leven, 340 N.J. Super. 94, 103 (App. Div. 2001). We
are therefore satisfied plaintiff waived her right to challenge
the order granting summary judgment based on the failure to serve
the affidavit of merit.
We are also convinced the court correctly granted summary
judgment on the separate, but equally dispositive, basis that
plaintiff's claim against Costabile is barred by the statute of
limitations, N.J.S.A. 2A:14-2. Plaintiff contends her complaint
against Costabile was timely because Costabile's identity was
unknown, and plaintiff therefore properly asserted her claim
against a fictitiously-named defendant in accordance with Rule
4:26-4. The court rejected plaintiff's argument, finding she
failed to act diligently to discover Costabile's identity prior
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to the expiration of the limitations period, and naming a
fictitious defendant did not provide refuge from the statute of
limitations bar to her claim. We agree.
Rule 4:26-4 provides that "if the defendant's true name is
unknown to the plaintiff, process may issue against the defendant
under a fictitious name, stating it to be fictitious and adding
an appropriate description sufficient for identification." The
Rule "address[es] the situation in which a plaintiff is aware of
a cause of action against a defendant but does not know that
defendant's identity." Worthy v. Kennedy Health System, 446 N.J.
Super. 71, 88 (App. Div.) (quoting Gallagher v. Burdette-Tomlin
Med. Hosp., 318 N.J. Super. 485, 492 (App. Div. 1999), aff'd, 163
N.J. 38 (2000)), certif. denied, 228 N.J. 24 (2016). Rule 4:26-4
"render[s] timely the complaint filed by a diligent plaintiff, who
is aware of a cause of action against an identified defendant but
does not know the defendant's name," ibid. (quoting Greczyn v.
Colgate-Palmolive, 183 N.J. 5, 11 (2005)), because "[w]hen the
plaintiff discovers the party's name, 'amendment of the complaint
may relate back [to] allow an action otherwise time-barred,'"
ibid. (quoting Brown v. Kennedy Mem'l Hosp.-Univ. Med. Ctr., 312
N.J. Super. 579, 587 (App. Div.), certif. denied, 156 N.J. 426,
(1998)).
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"[I]dentification of a defendant by a fictitious name . . .
may be used only if a defendant's true name cannot be ascertained
by the exercise of due diligence prior to filing the complaint."
Id. at 88-89 (quoting Claypotch v. Heller, Inc., 360 N.J. Super.
472, 479-80 (App. Div. 2003)). A plaintiff must proceed with due
diligence in ascertaining the fictitiously identified defendant's
true name. Ibid.; Johnston v. Muhlenberg Reg'l Med. Ctr., 326 N.J.
Super. 203, 208 (App. Div. 1999).
In Matynska v. Fried, 175 N.J. 51, 53 (2002), the Court
determined that the plaintiff did not "cross the due diligence
threshold" under Rule 4:26-4 where the physician's name appeared
twice in the plaintiff's medical records and even "a cursory look
at the telephone book or a call to . . . the hospital" would have
yielded the identity of the fictitiously named defendant. The
Court concluded that the plaintiff "had an obligation to
investigate all potentially responsible parties in a timely manner
but did not do so." Ibid.
In all significant respects, the circumstances here are
identical to those presented in Matynska. The record shows
plaintiff obtained her hospital medical records during the
limitations period and they identified Costabile as the
anesthesiologist. Moreover, as the motion judge aptly observed,
plaintiff could have simply contacted the hospital to determine
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the identity of the anesthesiologist, but failed to do so. The
record is also otherwise bereft of any evidence showing plaintiff
acted diligently to determine the identity of Costabile during the
limitations period. See Claypotch, supra, 360 N.J. Super. at 479-
80 (holding Rule 4:26-4 permits use of a fictitious name "only if
a defendant's true name cannot be ascertained by the exercise of
due diligence prior to filing the complaint"). The court correctly
concluded plaintiff did not satisfy the "due diligence threshold"
of Rule 4:26-4. Matynska, supra, 175 N.J. at 53. Therefore,
plaintiff's claim against Costabile is barred by the statute of
limitations.
We reject plaintiff's reliance on Viviano v. CBS, Inc., 101
N.J. 538, 556 (1986), where the Court relaxed the requirements of
Rule 4:26-4 "[u]nder the singular circumstances of [the] case."
The Court in Viviano was satisfied the plaintiff acted with
sufficient diligence to obtain the benefit of Rule 4:26-4, but
relaxed the application of the Rule solely because the delay in
identifying and naming the defendant was due to the "adverse
party['s] fail[ure] to comply with the rules of discovery." Ibid.
There are no similar circumstances presented here.
Affirmed in part. Reversed in part.
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