A judge who dismissed a case after the plaintiff had his sole request for an adjournment denied, even though five previous defense requests for adjournments had been granted, acted within his discretion, a state appeals court ruled.
Superior Court Judge F.J. Fernandez-Vina’s decision was in line with rule changes that are designed “to establish firm and meaningful trial dates,” the Appellate Division said in Werthmann v. New Jersey Manufacturers Ins. Co., A-1444-11, on Oct. 5.
Melissa Werthmann was injured on July 18, 2006, when her car was struck by a car that fled the scene. She allegedly sustained permanent soft tissue and back injuries, and filed an uninsured motorist claim with her carrier, New Jersey Manufacturers Insurance Co.
An arbitrator awarded $27,500, but NJM rejected the award and demanded a trial. Werthmann filed a complaint in Camden County in 2009. After discovery, the case was sent to mandatory, nonbinding arbitration. NJM rejected the subsequent arbitration award of $35,000, and the case was put on the trial list.
On five separate occasions from April through October 2011, the lawyer for NJM, Robert Kaplan, asked for and received adjournments. On Oct. 11, Werthmann’s attorney, Henry Doner, received a call from Kaplan advising him of an Oct. 17 trial date. Doner had a conflict that day and sent his partner, Kevin Castro.
Fernandez-Vina said trial would begin on the 18th, the next day. That day, for the first time, Doner said he could not proceed because his expert, whom he needed to help vault the verbal threshold, was not available.
Fernandez-Vina denied the request and dismissed the case with prejudice, saying: “I see no choice here, it was listed for trial, it’s the sixth trial listing, it’s had a conference where the parties were told — or advised that there would be no money, there was a no pay case, or verbal threshold. So everyone was aware of it.”
Doner moved for reconsideration, arguing the dismissal was not meritorious and denied his client due process. He said he only had two hours to arrange for his expert to appear.
Fernandez-Vina rejected the notion that Doner only had two hours to get his expert to court, noting that Kaplan had told him a week earlier that the case was scheduled for trial.
“What plaintiff chose to do is he chose to be unprepared,” Fernandez-Vina said. “It was not the first trial listed in the matter.”
On appeal, Doner said Fernandez-Vina erred because there was no pending summary judgment motion, he acted sua sponte out of frustration over previous adjournments, there were lesser sanctions, the penalty was unduly harsh and unwarranted and the decision showed undue favoritism to the defense.
“We find these arguments to be unpersuasive,” said Judges Douglas Fasciale and Susan Maven.
Doner pointed out that this was his first request for an adjournment, as opposed to the defense’s previous five. The judges said Fernandez-Vina told him he was not entitled to a “free bite.”
“Likewise, we reject any inference that, under the facts of this case, there is an automatic entitlement to an adjournment,” the appeals judges said. “Such an inference would be inconsistent with the purposes of the significant rule changes enacted in 2000.
“As we have noted, the New Jersey Supreme Court implemented these changes ‘to establish uniformity in the trial courts throughout the State, to establish firm and meaningful trial dates, to restore the public’s faith in expeditious and efficient litigation and to control dilatory litigation tactics by providing trial courts with tools to manage litigation.’”
Fasciale and Maven said Doner could have followed R. 4:36-3(b), which says requests for adjournment should be made no later than the close of business on the Wednesday before the Monday of the trial week, or videotaped his expert’s testimony beforehand. They added that Fernandez-Vina was correctly concerned about the age of the case.
“The judge appropriately balanced the need to manage the processing of the case with plaintiff’s counsel’s failure to adequately and timely prepare his case for trial, or seek a timely adjournment in this aged case.
“Under all of the circumstances, we decline to disturb the judge’s exercise of discretion in ordering a dismissal with prejudice,” they said. “We conclude that any lesser sanction in this case would circumvent the purposes of the ‘Best Practices’ rule amendments.”
Doner, of Doner & Castro in Berlin, says he has not had a chance to discuss with Werthmann whether to appeal to the Supreme Court.
“I fully believed the case had not been subject to judicial conference for settlement,” he says, adding that there was no opportunity for the judge to become involved in settlement discussions after the second arbitration award.
“I’m quite disappointed in the Appellate Division’s rationale that best practices are more important that meritorious adjudication,” Doner says. “It’s a shame the court system is not as interested in the fairness of adjudicating cases but in clearing the docket.”
Kaplan, of the Mount Laurel office of Margolis Edelstein, declined to comment.