Plaintiffs Can’t Have What They Don’t (Timely) Ask For (NJ)

It was “too little, too late” for one New Jersey plaintiff who failed to timely and properly establish a claim for medical damages.  Luna v. Warnock, a case involving an unfortunate motorcycle versus motor vehicle accident, illustrates that mere production of medical expenses does not put a defendant on notice of a plaintiff’s claim for damages, and expert support of a damages claim produced outside of the discovery time frame is to be excluded at trial.

As is customary (and required under Uniform rules), plaintiff provided copies of all medical bills and expenses incurred as a result of his accident in the normal course of discovery.  In an interrogatory response, the plaintiff claimed only $1,200 in unreimbursed expenses.  What plaintiff did not provide within the proscribed discovery period was any information or expert report to inform the defendant that his over $50,000 in medical bills and expenses were unpaid.

Instead, with discovery closed and trial set to begin, plaintiff noticed a de bene esse deposition of his medical expert to take place the day after the first scheduled day of trial.  Plaintiff’s expert testified that the expenses incurred and produced in discovery were reasonable and appropriate.

Thereafter, the trial  was delayed and did not commence until ninety-six days following the expert testimony.  At the time of trial, defendant moved to preclude the expert’s testimony supporting plaintiff’s damages claim, arguing that he had received insufficient notice of the claim.  Plaintiff’s argument against defendant’s application was two-fold: first, he contended that by simply providing documentation identifying the expenses during the initial phase of discovery, defendant was notified of the damages claim and its amount; second, defendant failed to object to the expert’s testimony as to the damages within forty-five days of the deposition as required by court rule.  Defendant’s motion was granted and plaintiff was unable to present evidence of his medical damages.

The jury found the defendant liable and awarded the plaintiff $35,000 for a tibia/fibula fracture with intramedullary rodding – less than the amount of the medical bills.  On appeal, the appellate division was not persuaded by plaintiff’s arguments.  Specifically, the court rejected the plaintiff’s attempt to deflect his failure to identify the amount of his special damages in discovery by placing the burden on the defendant to object to his expert’s  de bene esse testimony.  The court found that, to find otherwise, would exonerate parties from the disclosure requirements of the court rules and enable them to disregard the discovery end date.   The plaintiff had ample opportunity to establish his damages but failed to do so in a timely manner.  In this opinion, the court signaled that rules governing the production and exchange of discovery are not for show, and that any party, who fails to produce discovery timely, will have to live with only the disclosures made.

Special thanks to Emily Kidder for her contribution.

For more information, contact Denise Fontana Ricci at dricci@wcmlaw.com.