RUTH M. SANCHEZ VS. THE ESTATE OF MARCO B. FERNANDO,…

                                NOT FOR PUBLICATION WITHOUT THE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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                                   2
            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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                                       3
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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                                        4
      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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                                       5
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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                                       6
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


                                                                       A-4350-18T4
                                       7
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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                                         8
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.
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                                          9
      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

.


                                                                             A-4350-18T4
                                        10
      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

                                                                         A-4350-18T4
                                       11
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.
                                                                           A-4350-18T4
                                        12
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.




                                                                         A-4350-18T4
                                       13
      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




                                                                            A-4350-18T4
                                        14
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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                                        15

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




                                                                          A-4350-18T4
                                        16
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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                                       17
      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


                                                                         A-4350-18T4
                                       18
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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