A Lawyers Due Diligence Saves the Day in a N.J. Car Accident Case

N.J. car accidentA N.J. Verbal Threshold Case

Norberto Cortes injured his neck in a New Jersey auto accident on November 7, 2006, and initiated a personal injury law suit against the owner and operator of the other vehicle involved in the collision. At trial, the parties disputed whether plaintiff’s cervical disc herniations were related to the November 7, 2006 car accident or were preexisting. Plaintiff appeals from a July 29, 2009 order granting defendant’s motion in limine barring admission of a February 15, 1997 MRI report served two weeks before the trial began.  The Appellate Division  was convinced that the interests of justice was not served by barring the report, and reversed and remanded the case for a new trial.

Houston we have a discovery problem

Plaintiff’s prior treating chiropractor for his 1994 N.J. car accident was unable to locate the MRI report until after the end date of discovery; despite several requests by plaintiff’s counsel. Plaintiff’s counsel immediately faxed the MRI report to defense counsel and amended answers to interrogatories under R. 4-17(7). According to the MRI report, there were no significant degenerative changes in plaintiff’s neck, and there was no evidence of disc herniations. This is great news for the plaintiff.

Pain and Suffering

In barring the MRI report, the judge stated:

[f]irst of all, we are clearly on the eve of trial. Second of all, there’s no preexisting charge being requested by plaintiff, nor is there one going to be given if requested by defense.”

The judge acknowledged that “due to nobody’s fault, nobody’s error, those [MRI] films are not available . . . this morning.” The judge denied plaintiff’s request for an adjournment, refused to stay his order, and allowed plaintiff’s counsel thirty minutes to file an interlocutory appeal.

Right a wrong

On appeal, plaintiff argues that the trial judge abused his discretion by excluding the report and denying his adjournment request. Under the circumstances, the Appeals Court agreed.

Certainly, it is true that a party has an obligation to amend interrogatory answers “not later than 20 days prior to the end of the discovery period . . . . ” R. 4:17-7. Plaintiff’s counsel clearly failed to serve the MRI report twenty days before the December 18, 2008 discovery end date. However, amendments may be allowed after the discovery period ends “if the party seeking the amendment certifies . . . 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. On July 23, 2009, plaintiff’s counsel provided a detailed certification explaining why the MRI report was not reasonably available or discoverable by the exercise of due diligence. He also asked for an adjournment so that “defendant’s medical experts [could] review the report and attempt to obtain the film[s] . . . and issue a supplemental opinion.”

The judge barred the report, in part because “no preexisting charge was requested by plaintiff.” Plaintiff’s theory, however, was that the November 7 accident caused his disc herniations, not that the accident aggravated a preexisting condition. Defendant contended at trial that plaintiff’s disc herniations were longstanding and related to degenerative conditions, but the MRI report contradicted those assertions.

The scope of appellate review of a judge’s evidentiary ruling is limited. “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.), certif. denied, 185 N.J. 296 (2005). Although the “Best Practices” rules were implemented to enhance the productivity and expedition of the civil litigation process, Vargas v. Camilo, 354 N.J.Super. 422, 425 n.1 (App. Div. 2002), certif. denied, 175 N.J. 546 (2003), “[t]hey were not designed to do away with substantial justice on the merits or to preclude rule relaxation when necessary to ‘secure a just determination.'” Tucci v. Tropicana Casino and Resort, Inc., 364 N.J.Super. 48, 53 (App. Div. 2003) (quoting Rule 1:1-2). Because Dr. Rossi twice advised counsel that the records in question were not in his possession, and did not learn otherwise until shortly before trial, the commitment of our courts to “secure . . . just determination[s], ” R. 1:1-2, required a reopening of discovery to fairly deal with the surfacing of the MRI report and films.

The Appellate Division anticipated that defendant may wish to reopen discovery to have the defense expert witnesses review the MRI report and films and issue supplemental opinions. If requested, discovery may be reopened for a limited time for that purpose.

Reversed and remanded for a new trial.


N.J. car accident lawyer

Ssssh....I'm thinking


Who is this judge? Didn’t he/she ever practice law before landing on the Bench? It drives me nuts when a judge chooses expediency over justice. Kudos to the Appellate Division for doing the right thing.  The lesson to be learned here for plaintiff’s attorneys is when faced with a discovery problem, you better act with due diligence to find a solution. I love the fact plaintiff’s lawyer immediately faxed the MRI report to his adversary, and amended his answers to interrogatories.

We must remember to include the certification of due diligence when amending interrogatories after the twenty (20) day deadline prior to trial. Oh, and I almost forgot. There is a living, breathing, person who has some rights here.  The trial judge’s decision to bar the MRI report essentially ended Mr. Cortes hope for a reasonable verdict. People seem to  get in the way of moving a case along.


About Lawrence "Larry" Berezin

I retired from the private practice of law after a 35-year legal career and fight parking tickets for people like you and me. I love sharing valuable information and beating NYC parking tickets for the driving community in NYC

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