PER CURIAM.
After defendant moved to dismiss the complaint in this verbal threshold case, plaintiffs sought to strike portions of their own experts' testimony and substitute a new chiropractic expert three days before trial. Plaintiffs appeal from the dismissal of their complaint and denial of their motions. We affirm.
Plaintiff Christine M. Davison
Prior to the accident, plaintiff was a patient of Kelly Best, D.C., and received treatment for headaches and lower back pain. She saw Dr. Best after the accident, on January 9, 2006, and complained of pain going down her right arm, among other issues. Plaintiff stopped seeing Dr. Best in September 2007. She began to treat with Matthew LaBarre, D.C., in October 2007, approximately one and one-half years after the accident, and continued to receive treatment from him.
Pursuant to the Automobile Insurance Cost Reduction Act (AICRA),
Plaintiff submitted answers to the form interrogatories for personal injury actions in September 2008.
Dr. LaBarre later provided plaintiff's counsel with a written report, dated July 2, 2009. Dr. LaBarre stated that plaintiff "suffered an injury to her cervical discs which is evident by the persistent radicular pain into her right arm and supported by the cervical MRI." Dr. LaBarre opined "within a reasonable degree of chiropractic/medical probability that the injuries. . . are permanent, and have not healed and will not heal to function normally with further medical treatment."
Following receipt of this report, plaintiff's counsel sent a letter to defense counsel, dated July 8, 2009, making a settlement offer, and enclosing a supplemental report from Dr. Best and the "email report of Dr. LaBarre." The letter also stated that Dr. Best's and Dr. LaBarre's curriculum vitae would "be produced soon."
Trial was originally scheduled for November 30, 2009, but was adjourned several times. Plaintiff decided to videotape the deposition testimony of her experts rather than present live testimony at trial. She requested and was granted adjournment of the trial to do so. Videotaped depositions of plaintiff's experts, Joel Swartz, M.D., and Kelly Best, D.C., were taken in April 2010.
In April 2010, plaintiff submitted a proposed exhibit list that included the July 2, 2009 report of Matthew LaBarre, D.C. She also submitted a proposed witness list which included Kelly Best, D.C., and Joel Swartz, M.D., but did not include Dr. LaBarre.
Dr. Best testified at her deposition that her examination of plaintiff revealed plaintiff "was positive in the neck area for injuries to that area, and in the middle and low back, as well." Plaintiff also had numbness in her right arm. Dr. Best initially attributed the numbness to a possible herniated disc, but the MRI revealed that it was a bulging disc. According to Dr. Best, the bulging disc diagnosis corresponds to the radiculopathy and pain in plaintiff's right arm. Additionally, the bulging at C5-6, as discovered by the December 2007 follow-up MRI, also caused the cervical radiculopathy going down plaintiff's right arm. Dr. Best testified that during her treatment of plaintiff, the radiculopathy in plaintiff's arm did not get any better, and that she believed plaintiff suffered a permanent injury.
Dr. Best had stopped treating plaintiff in September 2007. On cross examination, she admitted she had no knowledge of plaintiff's medical condition as of the time of the deposition in April 2010.
Dr. Best was also unaware of prior injuries suffered by plaintiff. It was revealed during cross examination that plaintiff was in a motor vehicle accident in 1999 and diagnosed with cervical sprain and strain. In July 2001, plaintiff notified her general practitioner that "she had neck pain, and had it for years, with that neck pain going into her right shoulder and arm[.]" Dr. Best admitted that the description plaintiff provided her general practitioner was consistent with a description of radiculopathy, and that she could not now state "within a reasonable degree of chiropractic probability that what [plaintiff is] complaining about. . . is directly related to the car accident in January 2006[.]"
On re-direct, Dr. Best clarified that, prior to the January 2006 accident, plaintiff complained of neck pain during only one visit and never complained of the radiculopathy-type pain described after the accident. During re-cross examination of Dr. Best, defendant's counsel raised additional parts of plaintiff's medical history, i.e., that she was sent for cervical x-rays in 2001 and 2004 "because of worsening and chronic neck pain from the motor vehicle accident several years" earlier; that in September 2005, plaintiff "complained to her general practitioner about worsening neck pain from the [1999] motor vehicle accident;" that she was diagnosed in 2005 with degenerative joint disease in her neck and referred to an orthopedic specialist; and that in October and November 2005, plaintiff's general practitioner made references in plaintiff's records to "arthritis and tenderness in the neck and the cervical spine[.]" Dr. Best had no knowledge of these facts. Faced with this history previously unknown to her, Dr. Best testified that she did not know if the permanency of the injury was connected to the January 2006 accident.
Dr. Swartz testified for plaintiff as an expert qualified to interpret plaintiff's April 2007 and December 2007 MRIs. Dr. Swartz testified that there was a mild bulging disc at C4-5 in the April 2007 exam, and that in the follow-up December 2007 exam, there was also a mild bulge at C5-6, but the change was not significant. On cross-examination, defendant's counsel asked Dr. Swartz, "Is there any indication in your findings . . . that would support a diagnosis of radiculopathy within a reasonable degree of medical probability?" Dr. Swartz answered in the negative, explaining, "there's no asymmetry and there's no compromise of the neural foramen so there's nothing consistent with radiculopathy."
Defendant filed a motion in limine in April 2010, seeking to dismiss plaintiff's complaint on the basis that plaintiff failed to satisfy the verbal threshold requirements of
Oral argument of the motions was scheduled for May 7, 2010, three days before the scheduled trial date of May 10, 2010. Prior to oral argument, the trial judge, Judge Peter A. Buchsbaum, provided counsel with a written memorandum of his preliminary decision on the motions, which included a preliminary ruling to dismiss plaintiff's complaint. Judge Buchsbaum memorialized the reason the motion to dismiss was being considered so close to the trial date.
In the preliminary memorandum decision, the court denied the majority of plaintiff's motion in limine with regard to Dr. Best's testimony, striking only portions relating to plaintiff's lower back complaints, which were not at issue in this case. The court also denied plaintiff's motion in limine with regard to Dr. Swartz's testimony.
The court next turned to defendant's motion to dismiss. The court found there was "no objective evidence of a permanent injury to a body part that will not function normally based on objective evidence." Pursuant to
Although the trial was scheduled, after many adjournments, for three days later, plaintiff's counsel stated during oral argument, "We may not have in fact all the expert testimony yet." An exchange between the judge and plaintiff's counsel ensued as follows:
During the course of oral argument, plaintiff's counsel stated he wanted to make a "basically informal motion . . . now to amend the witness list" to include Dr. LaBarre and drop Dr. Best. Plaintiff's counsel contended there was no prejudice to defendant because the defense had known about Dr. LaBarre but chose not to depose him. He stated further that the "only problem" was that Dr. LaBarre was on vacation, would not return until the middle of the next week, and therefore would not be available until then.
Defense counsel objected to the proposed substitution. He stated he had received an amended witness list from plaintiff's counsel that morning, that he had deposed the other experts because they were identified as witnesses and Dr. LaBarre was not. Further, he noted the case had been scheduled for the previous autumn and was adjourned at plaintiff's request so they could videotape their experts' testimony.
The court refused to allow the substitution of Dr. LaBarre as plaintiff's expert witness and entered judgment in accordance with his preliminary ruling, dismissing the case. Plaintiff presents the following issues in this appeal:
After carefully considering the record and briefs of counsel, we are satisfied that none of these arguments has merit.
We turn first to the court's denial of plaintiff's request to add a new expert witness three days before trial. Generally, we defer to a trial court's decision relating to matters of discovery, applying an abuse of discretion standard.
Plaintiff was required to identify the experts she would rely upon in answers to interrogatories. An amendment to those answers was governed by
Plaintiff did not make a timely motion to amend her answers to add Dr. LaBarre as a witness. Instead, her request was made by virtue of an informal, oral request three days before trial. No representation, let alone certification, was provided to the court that the information requiring this amendment "was not reasonably available or discoverable by the exercise of due diligence" in a timely manner.
The facts revealed in the record make it evident that such a certification could not have been produced. The deficiencies in the opinions of Dr. Best and Dr. Swartz that led plaintiff to attempt to rely upon a new expert were readily ascertainable to plaintiff in the exercise of reasonable diligence. Indeed, it was the information regarding plaintiff's prior accidents and injuries — known and withheld by plaintiff — that proved the undoing of Dr. Best's opinion when revealed to her by defense counsel at her deposition. There were, then, no legitimate problems here that caused the late revelation of a new expert. This case is therefore distinguishable from both
Moreover, plaintiff could have made a motion to add Dr. LaBarre as a witness well before any of plaintiff's experts were deposed. Dr. LaBarre treated plaintiff since October 2007 and supplied a written report to plaintiff's counsel in July 2009, in which he set forth the opinions that plaintiff hoped to rely upon. Therefore, plaintiff had the necessary report in hand ten months before the testimony of her designated experts was videotaped for use as evidence at trial. Instead, plaintiff chose to proceed with her designated experts. She did not attempt to identify Dr. LaBarre as an expert until after receiving the court's preliminary decision on the defense motion to dismiss her complaint, and did not ask to add him as a witness until engaged in colloquy with the court at oral argument, when it was apparent the motion would be granted.
That Dr. LaBarre had not been properly and timely identified was purely a function of plaintiff's choice. Plaintiff's counsel admitted to the court, "We chose not to put him on video." Plaintiff's brief also acknowledges that it was "
Plaintiff's strategic decision unfairly prejudiced defendant, rendering her unprepared to meet new evidence designed to satisfy the verbal threshold despite diligent trial preparation that included the depositions of experts plaintiff did identify. In a similar case where a plaintiff provided "late blooming evidence" that unfairly put the defendant on the defensive on the eve of trial, we rejected the notion that the defendant should have made the late effort to respond to the new evidence and stated:
Here, too, if the court had permitted the eleventh-hour shift in experts, gamesmanship would have prevailed and defendant would have been prejudiced. Under the circumstances, it was not an abuse of discretion for the court to deny plaintiff's motion to add a new expert witness.
We are satisfied that plaintiff's remaining arguments lack sufficient merit to warrant discussion in a written opinion,
Affirmed.
