In the recent decision of Werthmann v. New Jersey Manufacturers Insurance Company, the Appellate Court upheld the dismissal of plaintiff’s complaint with prejudice based upon plaintiff’s failure to secure a medical expert for trial.
Werthmann was injured in a motor vehicle accident and filed an uninsured motorist claim against her insurer, New Jersey Manufacturers Insurance Company. The matter was listed for trial on six different occasions before finally being rescheduled for October 17, 2011. On that date, the judge ordered the parties to return the following day to begin trial. On October 18, 2011, the plaintiff’s counsel informed the judge for the first time that he was not prepared to proceed due to his expert witness’ unavailability. Particularly, counsel advised that the physiatrist’s testimony regarding the results of an independent EMG was necessary to meet plaintiff’s burden of proof regarding objective evidence of a permanent injury. The judge in turn dismissed the plaintiff’s complaint with prejudice on the grounds that the plaintiff was not prepared to proceed at trial.
The Appellate Court upheld the trial judge’s decision, noting that any lesser sanction in this case would circumvent the purposes of the “Best Practices” rule amendments in New Jersey.
Thanks to Heather Aquino for her contribution to this post.