Plaintiff Renee Ransdell was involved in an automobile accident with defendant Shari Waldron in January 2018. At the time of this accident, plaintiff had an automobile insurance policy which subjected her to the limitation on lawsuit threshold, requiring her to prove a permanent injury to recover damages for her noneconomic loss (i.e., her pain and suffering). The issue in Ransdell v. Waldron, 2024 N.J. Super. Unpub. LEXIS 2677 (App. Div. Oct. 30, 2024) was whether plaintiff’s claim was barred due to her failure to submit a timely certification of permanency and expert report to establish a permanent injury under the pertinent auto insurance statute, N.J.S.A. 39:6A-8(a).
Plaintiff contended that she suffered a head injury, leading to a hearing loss, as well as spinal injuries from this accident. Discovery in this case closed in September 2021. Plaintiff failed to provide any expert reports or expert opinions that her injuries were permanent and causally related to the accident during the discovery period.
The matter was arbitrated in March 2022, but plaintiff timely filed for a trial de novo and a trial was set for November 2022. Before trial, the defendant filed a motion for summary judgment, which was to be heard on September 23, 2022. Plaintiff requested consent to carry the motion until November 18, 2022, and the trial until February 13, 2023. The defense counsel did consent, upon the proviso that it was to give plaintiff an opportunity to respond to the motion, and not to provide plaintiff with the opportunity to provide new and additional discovery.
Nevertheless, plaintiff attached to her opposition to the motion for summary judgment, an “affirmation” by Dr. Rahul Sood, stating that he was one of her treating physicians. She also attached notes from an October 18, 2022, visit with him. The treatment portion of this report provided an opinion that her symptoms were causally related to this automobile accident with a reasonable degree of medical probability. He also stated that her prognosis was guarded. Further, plaintiff submitted a certification of permanency provided by Dr. Sood.
The trial court granted the motion for summary judgment, ruling that plaintiff failed to meet her burden under the statute. The court noted that plaintiff’s failure to produce a timely certification of permanency was not fatal to her claim. However, plaintiff did not timely provide any medical expert report or narrative report as required under the court rules. Further, the trial court noted that plaintiff failed to move the court to reopen discovery and failed to attach a certification of due diligence to the belated certification of permanency.
This appeal followed. Plaintiff argued that the certification of permanency from her treating doctor did comply with the New Jersey statute, N.J.S.A. 39:6A-8(a). Further, plaintiff argued that the case should be remanded so her new attorney could remedy the errors of her prior counsel.
The Appellate Division noted that the trial courts have broad discretion to establish discovery deadlines. Generally, the Appellate Division will defer to a trial court’s disposition of discovery unless it finds that the trial court has abused its discretion. The admission or exclusion of expert testimony is “committed to the sound discretion of the trial court.”
The Court noted that under New Jersey auto insurance law (referred as AICRA), if the plaintiff has selected the limitation on lawsuit threshold option, a claim for a non-economic loss is only permitted where the injured party has suffered a bodily injury which results “in a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement. . . .” It requires that the plaintiff file a certification by a physician attesting “under the penalty of perjury that the injury satisfies one of the threshold categories.”
Further, this law requires a plaintiff to provide within sixty days of the answer (to the complaint) a certification from a physician, stating that the plaintiff’s injury is permanent and is based on and refers to objective clinical evidence. The focus on objective evidence is to prevent lawsuits based only upon a plaintiff’s subjective reports from proceeding. Further, the Court noted that a court can grant no more than one additional period, not to exceed sixty days, to file the certification. If the plaintiff fails to timely file a certification, plaintiff would be subject to “an array of sanctions that include reimbursing the defendant with reasonable attorney’s expenses or dismissal of the complaint.” The court is to “choose a response that is proportionate to the procedural stimulus after considering the facts.”
In applying the standard in this case, the Appellate Division was not persuaded that the trial court made a mistake in granting defendant’s motion for summary judgment. It noted that the plaintiff had failed to provide any expert reports by the end of the discovery period, before the arbitration was held, before defendant filed a motion for summary judgment, before the initial return date of the motion or before the initial trial date that had been scheduled. Rather, she submitted an untimely expert report from a previously unnamed expert over one year after the end of discovery in opposition to defendant’s motion for summary judgment.
The Appellate Division further noted that under the court rules, specifically
R. 4:23-5(b), a court may exclude the testimony of a treating physician whose report is not furnished pursuant to the court rules when it is demanded. Rule 4:17-7 requires that amendments to Answers to Interrogatories must be served no later than twenty days prior to the end of the discovery period and “may be allowed thereafter only if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date.” Without a certification of due diligence, any late amendment must be disregarded by the court and adverse parties.
In considering these rules, the Appellate Division found that plaintiff’s untimely submission of her expert report, as an exhibit to her opposition to defendant’s summary judgment motion without a certificate of due diligence or a motion to open discovery, did not comply with the pertinent court rule (R. 4:17-7). The Court agreed with the trial court that “the uncontroverted sequence of events indicates dismissal was the appropriate remedy.” This certification of permanency was only sought by the plaintiff’s former counsel in response to the motion for summary judgment, well after the discovery end date. Plaintiff failed to file a motion for good cause to extend the time for filing as permitted by the statute.
Hence, the Appellate Division agreed that under the circumstances and considering the substantial prejudice to defendant, “the trial court was well within its discretion to disregard the certification of permanency and consider it outside the scope of the record upon which summary judgment could be granted.” Therefore, the Appellate Division affirmed the trial court’s decision in granting summary judgment and dismissing the complaint.
