LUIS S. CUEVAS Administrator Ad Prosequendum of the ESTATE OF LINDAWATI TAN, deceased, Plaintiffs,
v.
CHRYSLER CORPORATION, DAIMLER CHRYSLER CORPORATION, EDI M. BARRERA–GONZALEZ, JOSE LOPEZ, AND THE MIGHTY ONE TRUCKING COMPANY, Defendants,
and
VELOCITY EXPRESS, Defendant/Third–Party
Plaintiff–Appellant,
v.
NATIONAL CONTINENTAL INSURANCE COMPANY, Third–Party Defendant-
Respondent,
and
A CLASSIC PLAN, INC., Third–Party Defendant.
DOCKET NO. A–6253–09T1
Superior Court of New Jersey, Appellate Division.
Submitted: May 11, 2011—Decided:
Before Judges Cuff and Fisher.
On appeal from Superior Court of New Jersey, Law Division, Camden County, Docket No. L–2870–07.
Dempster & Haddix, attorneys for appellant Velocity Express (Catherine M. McCormick, on the brief).
Donohue Law Firm, P.C., attorneys for respondent National Continental Insurance Company (Robert Donohue, on the brief).
PER CURIAM
On August 24, 2005, defendant Edi M. Barrera–Gonzalez struck a car driven by Lindawati Tan, who died from the injuries sustained in the collision. Defendant Barrera–Gonzalez was driving a truck owned by defendant Jose Lopez, the sole proprietor of defendant The Mighty One Trucking Company (Mighty One). Lopez was hauling medical supplies as an independent contractor for defendant Velocity Express (Velocity).
Plaintiff Luis S. Cuevas, as administrator ad prosequendum of the estate of Tan, filed a complaint against Barrera–Gonzalez, Lopez, Mighty One, Velocity, and Chrysler Corporation and Daimler Chrysler Corporation (collectively Chrysler). In his June 1, 2007 complaint, Cuevas asserted strict liability and negligence claims against Chrysler and negligence claims against Barrera–Gonzalez, Lopez, Mighty One, and Velocity. On January 20, 2009, Velocity filed a third-party complaint against National Continental Insurance Company (NCIC) and A Classic Plan, Inc. (ACP). Velocity alleged that NCIC provided insurance for defendants Lopez and Mighty One and Barrera–Gonzalez; it sought reformation of the policy of insurance to provide the minimum levels of financial responsibility prescribed by federal law. Velocity alleged that ACP negligently obtained a policy of insurance for Lopez and Mighty One that did not conform to the minimum levels of financial security prescribed by federal law.
As the litigation progressed, Barrera–Gonzalez, Lopez, and Mighty One deposited the proceeds of their insurance policy with the court. Cuevas eventually settled his claims against the direct defendants, Velocity dismissed its claims against ACP, but the third-party complaint against NCIC remained unresolved. At the trial of the third-party complaint in June 2010, the trial judge granted third-party defendant NCIC’s motion in limine to exclude the expert report on which defendant/third-party plaintiff Velocity intended to rely to support its claims against NCIC. Having excluded the expert report, the judge granted NCIC’s motion for a directed verdict and dismissed the third-party complaint. Velocity appeals from the ruling excluding its expert report and from the order denying its motion for reconsideration. We affirm.
We have presented an expanded procedural history to place the discussion and disposition of Velocity’s third-party complaint against NCIC in context. Some further discussion of the procedural history is, however, in order.
On April 3, 2009, a judge extended discovery on the third-party action until June 15, 2009. On April 17, 2009, ACP moved for an extension of discovery and it was extended until August 15, 2009. An August 28, 2009 order denied Velocity’s motion to extend discovery another ninety days.
On September 14, 2009, approximately one month after the discovery end-date, Velocity provided to NCIC and ACP the expert report on which it intended to rely at trial. Velocity’s expert made no reference to NCIC in the substance of his report. Velocity did not file a certification of due diligence when it served the report. See R. 4:17–7.
Velocity then filed a bankruptcy petition seeking reorganization. See 11 U.S.C.A. §§ 1101 to 1174. On December 7, 2009, a bankruptcy judge lifted the automatic stay and permitted liquidation or settlement of the State law claims involving Velocity. On January 5, 2010, Velocity filed a motion to amend its third-party complaint to assert a negligence claim against NCIC, and the next day provided NCIC and ACP with a supplement to the expert report sent to them in September 2009. Velocity did not amend its answers to interrogatories or file a certification of due diligence with this supplemental report. R. 4:17–7. The supplemental report concluded that NCIC did not have the proper procedures in place for “the verification of underwriting information,” and if it had such procedures, it would have conducted a preliminary audit of Lopez’s operations and its insurance obligations.
Meanwhile, ACP had filed a motion to dismiss the third-party complaint for failure to provide discovery in November 2009, that could not be heard until the automatic stay was lifted. Once the stay was lifted, Judge Fernandez–Vina denied this motion without prejudice on January 8, 2010, but extended the discovery end-date until February 15, 2010, and further ordered that “[a]ll discovery by [Velocity] shall be provided by January 31, 2010.”
Trial commenced on Velocity’s third-party complaint against NCIC on June 16, 2010. At that time, Judge Fernandez–Vina granted the NCIC motion to exclude the supplemental expert report provided to it on January 6, 2010, based on the prior order closing discovery on August 15, 2009, and thereafter granted the NCIC motion for a directed verdict. After locating the January 8, 2010 order extending discovery until February 15, 2010, Velocity filed a motion for reconsideration. Judge Fernandez–Vina denied the motion, reasoning that the January order and the extended discovery deadline applied only to ACP. The judge stated:
[I]s the reasonable interpretation of this order that I extended discovery to allow the party receiving your delinquent answers [i.e. ACP] to follow-up with information, or is it that I extended discovery as to all parties in the case, even those that were not noticed in the motion and were not here to object because it didn’t apply to them?
The judge continued:
In the interest of fairness and justice and an overabundance of caution … the [c]ourt denied the motion to dismiss that claim against that party without prejudice and allowed the discovery by the delinquent party to be provided by January 31, 2010.
The judge also rejected the contention that once discovery is extended for one party, it is extended for all parties. He considered that interpretation “an inappropriate and tortured interpretation of th[e] order….” Moreover, the failure by Velocity to provide an affidavit of due diligence and the failure to obtain an expert opinion directly relating to NCIC until early January 2010 were critical flaws in the case.
On appeal, Velocity argues that the trial judge erred when he granted the motion to exclude Velocity’s expert report and granted a directed verdict in favor of NCIC. It further contends that its motion for reconsideration should have been granted.
The disposition of this appeal hinges on an interpretation of the January 8, 2010 order denying ACP’s motion to dismiss and extending discovery for several weeks. Velocity contends the handwritten paragraph extending the discovery end-date pertains to both ACP and NCIC. As such, Velocity argues the trial court erred in granting NCIC’s motion in limine and in denying Velocity’s motion for reconsideration. NCIC contends the order did not extend the discovery end-date as to it, and argues the judge was correct to grant the motion in limine and deny Velocity’s motion for reconsideration.
Rule 4:17–7 provides:
[I]f a party who has furnished answers to interrogatories thereafter obtains information that renders such answers incomplete or inaccurate, amended answers shall be served not later than 20 days prior to the end of the discovery period, as fixed by the track assignment or subsequent order.
The party seeking to serve that discovery beyond the deadline must certify “that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date.” Ibid. If the party does not provide such a certification, “the late amendment shall be disregarded by the court and adverse parties.” Ibid.
The decision to exclude evidence is a sanction left within the sound discretion of the trial court. Mason v. Sportsman’s Pub, 305 N.J.Super. 482, 493 (App.Div.1997). Three factors
which would “strongly urge” the trial judge, in the exercise of his discretion, to suspend the imposition of sanctions, are (1) the absence of a design to mislead, (2) absence of the element of surprise if the evidence is admitted, and (3) absence of prejudice which would result from the admission of the evidence.
[ Westphal v. Guarino, 163 N.J.Super. 139, 146 (App.Div.), aff’d, 78 N.J. 308 (1978).]
Furthermore, “[t]he typical liberality with which late amendments to interrogatories had been tolerated was substantially affected by the 2000 rule amendments, then known as the Best Practice rules, which demanded stricter compliance with the discovery time frames than theretofore.” Pressler & Verniero, Current N.J. Court Rules, comment 1.1 to R. 4:17–7 (2011). The decision to exclude evidence must stand unless it is “so wide of the mark that a manifest denial of justice resulted.” Ratner v. Gen. Motors Corp., 241 N.J.Super. 197, 202 (App.Div.1990); accord In re Commitment of G.D., 358 N.J.Super. 310, 316 (App.Div.2003).
Here, Velocity served two expert reports. The report served in September 2009 addressed only ACP. NCIC did not receive the supplemental expert report addressing Velocity’s claims against it until January 6, 2010. Velocity did not amend its answers to interrogatories and did not serve a certification of due diligence. Based on a discovery end-date of August 15, 2009, Velocity unquestionably failed to adhere to the schedule announced in Rule 4:17–7 and the orders entered in this matter. Additionally, as Judge Fernandez–Vina noted all the information the Velocity expert reviewed was available prior to August 15, 2009, so it had no excuse for the delay. Moreover, because Velocity never served a certification of due diligence, NCIC was under no obligation to object to the supplemental expert report since the court rules instruct that the “late amendment shall be disregarded” by both the court and the opposing party. R. 4:17–7. NCIC was not required to file a motion to strike this belated report. As such, we reject Velocity’s contention that NCIC has engaged in gamesmanship by waiting to file a motion in limine at trial.
Velocity relies on Brun v. Cardoso, 390 N.J.Super. 409 (App.Div.2006), for the proposition that the court should have allowed NCIC time to serve a responsive expert report. In Brun, the trial judge made an in limine ruling that before a chiropractor could testify to MRI findings, “a radiologist who was qualified to interpret MRIs would have to be called.” Id. at 415. Responding to this ruling, the plaintiff met with the owner of the imaging center where the original MRI was performed, only to learn that the doctor who had performed the MRI no longer worked there. Ibid. Counsel instead secured the testimony of the owner who stated during voir dire that he only agreed in part with the original interpretation of the MRI. Ibid. The defendant objected to the testimony, but the judge permitted the owner to testify and reserved decision on the objection. Id. at 415–16. Later, the trial judge dismissed the case with prejudice and denied the plaintiff’s motion for a new trial. Id. at 418.
This court agreed that the trial could not “fairly proceed under these circumstances.” Ibid. However, we disagreed with the trial court’s decision to grant a dismissal with prejudice. Id. at 419. Rather, we remanded the case for a new trial. Id. at 421. We did so because the reason for the short notice was “unique, unforeseen and largely unforeseeable.” Id. at 420. Here, Velocity has yet to offer a reason why its first expert report was served one month beyond the discovery end-date, much less a reason why the supplemental report was served months later.
In fact, this case is analogous to Montiel v. Ingersoll, 347 N.J.Super. 246 (Law Div.2001), a post-Best Practices case. There, the trial judge granted the plaintiff’s motion to exclude the testimony of the defendant’s expert for failure to identify the expert within time. Id. at 247. The court noted the expert was identified by amendment to an interrogatory on the day discovery ended, and the expert’s report was served well after the discovery period. Id. at 251. Furthermore, the defendant did not provide a proper certification of due diligence as required by the rules. Ibid. Thus, the court barred the expert’s testimony at trial. Id. at 255.
In light of Velocity’s failure to comply with the rules of court, the strictness with which the rules are to be applied, and the ensuing prejudice to NCIC, we affirm the order granting the NCIC motion to strike Velocity’s expert report. Judge Fernandez–Vina’s decision was not “so wide of the mark that a manifest denial of justice resulted.” Ratner, supra, 241 N.J.Super. at 202.
We also affirm the denial of the motion for reconsideration. Rule 4:49–2 provides: “[A] motion for rehearing or reconsideration seeking to alter or amend a judgment or order shall be served not later than 20 days after service of the judgment or order upon all parties by the party obtaining it.” The comments to the rule note that this remedy is applicable “only when the court’s decision is based on plainly incorrect reasoning or when the court failed to consider evidence or there is good reason for it to reconsider new information.” Pressler & Verniero, supra, comment 2 on R. 4:49–2. Reconsideration is a matter within the sound discretion of the court. Cummings v. Bahr, 295 N.J.Super. 374, 384 (App.Div.1996); D’Atria v. D’Atria, 242 N.J.Super. 392, 401 (Ch. Div.1990).
Velocity argues the language of the January 8, 2010 order unambiguously extended discovery for all parties, and the trial judge erred when he limited the clear language in the order. Velocity interprets the order to replace the August 15, 2009 end-date with a new February 15, 2010 end-date for all parties to the third-party action. We disagree.
Velocity could not have reasonably relied on the language in the January 8, 2010 order in planning its discovery and trial strategies because it provided the supplemental expert report two days prior to the issuance of the order. Moreover, it is unreasonable to conclude that the January 8, 2010 order extended discovery as to ACP, as well as NCIC, because NCIC was not involved in the motion filed by ACP to dismiss the third-party complaint against it for failure to provide discovery. The order directs ACP’s attorney to mail a copy of it to Velocity only. There is no mention of NCIC in the order. If Judge Fernandez–Vina wished to extend the discovery end-date with respect to NCIC as well as ACP, he could have done so by amending the order ACP submitted with language indicating such.
Finally, we defer to the trial judge’s interpretation of his own order. Judge Fernandez–Vina entered several orders in this case. The plain language of the order does not allow the interpretation advanced by Velocity.
Here, the plain language of the order means nothing outside of the context of the order itself. The order indicates that ACP brought the motion to dismiss against Velocity, ACP’s counsel should mail a copy of the order to Velocity, and the “delinquent party” must provide the discovery sought by January 31, 2010. Read in its entirety, the plain language of the order does not warrant the conclusion that Velocity was permitted to serve NCIC with additional discovery.
We, therefore, affirm the June 30, 2010 order striking the expert report and entering a directed verdict in favor of NCIC, as well as the July 23, 2010 order denying the motion for reconsideration. Judge Fernandez–Vina did not abuse his discretion in denying the motion because his initial decision was not based on “plainly incorrect reasoning,” he did not fail to consider evidence, and there was not a good reason for him to reconsider new information.
Affirmed.
