Celia C. Fernandez v. Alexis Parcells, M.D.

• Court: New Jersey Superior Court Appellate Division
• Decided: May 6, 2026
• Docket: A-2949-24
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited . R. 1:36-3.

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-2949-24

CELIA C. FERNANDEZ and LUIS R. FERNANDEZ, her husband,

Plaintiffs-Appellants,

v.

ALEXIS PARCELLS, M.D., and SPIRO PLASTIC SURGERY, LLC,

Defendants-Respondents,

and

KARYNA NEYRA, M.D., NOHA GHUSSON, M.D., MARJUT KOKKOLA-KORPELA, M.D., INFECTIOUS DISEASE CENTER OF NEW JERSEY, LLC, ST. BARNABAS MEDICAL CENTER, and RWJ BARNABAS HEALTH, INC.,

Defendants. ________________________________

Argued April 27, 2026 – Decided May 6, 2026

Before Judges Sabatino, Natali and Bergman. On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6145-21.

Eric G. Kahn argued the cause for appellants (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, attorneys; Eric G. Kahn, of counsel and on the briefs; Annabelle M. Steinhacker, on the briefs).

Jack E. Potash argued the cause for respondents (Ronan, Tuzzio & Giannone, PC, attorneys; Rowena M. Durán, of counsel; Jack E. Potash, on the brief).

PER CURIAM

In this medical malpractice case, plaintiff appeals the trial court 's with-

prejudice dismissal of her claims against two doctors. The court ordered

dismissal because of plaintiff's then-counsel's late and abrupt service of an

expert report on the eve of a summary judgment motion hearing, five weeks after

the most recent case management order's interim deadline for serving such

reports had passed.

For the reasons explained in this opinion, we vacate the dismissal and

remand the matter to enable the case to be litigated on its merits. We do so

principally because (1) the court did not sufficiently address less severe

measures to respond to the circumstances, such as cost-shifting, in lieu of

dismissal, and (2) the court erroneously deprived plaintiff of requested oral

argument on her motion for reconsideration, in violation of Rule 1:6-2(d).

A-2949-24 2 Since the parties are well familiar with the background of this case that

led to the present appeal, we need not state the facts and procedural history

comprehensively. The following summary will suffice.

In August 2021, plaintiff Celia C. Fernandez and her husband Luis R.

Fernandez1 filed a medical negligence complaint in the Law Division against

four physicians and several entities. The claims concern plaintiff's development

of a skin condition following breast reconstruction surgery.

The plastic surgeon who treated her after the surgery, Alexis Parcells,

M.D. ("Dr. Parcells") and that surgeon's employer, Spiro Plastic Surgery, LLC

("Spiro") were named as defendants in that complaint along with three (now

dismissed) infectious disease specialists and several medical care centers.

Given the multiplicity of doctors involved in the case, discovery was

lengthy. It was particularly difficult to schedule the depositions for some

doctors. Discovery was extended four times; three of these extensions were in

response to summary judgment motions because plaintiff did not yet have an

expert report.

1 The husband is named as a co-plaintiff purely on a claim of loss of consortium. For simplicity, we use the term "plaintiff" hereafter to refer to Celia C. Fernandez individually, unless the context indicates otherwise. We also note that any medical information described in this opinion is mentioned out of necessity. R. 1:38-1A. A-2949-24 3 On November 22, 2024, in response to the third summary judgment

motion and an opposing motion to extend discovery from plaintiff, the trial court

issued a case management order that extended discovery for the fourth time to a

Discovery End Date ("DED") of May 30, 2025. The case management order

specified that plaintiff had until February 15, 2025, to serve an expert report.

The order recited that: "No further extensions shall be granted."

The final infectious disease doctor was deposed on December 16, 2024.

When the court-ordered deadline of February 15, 2025, for plaintiff's expert

report occurred, plaintiff did not serve one. Nor did plaintiff notify any party

that an expert had been secured or that a report was forthcoming. 2

On February 28, 2025, all named defendants filed a motion for summary

judgment with a return date of March 28, 2025. Plaintiff did not respond to this

dispositive motion until roughly 6:30 p.m. on March 27, the night before the

motion argument. Along with a four-page letter to the court, plaintiff attached

an eight-page belated expert report of a plastic surgeon from California. The

report opined that only Dr. Parcells and her company Spiro had breached the

standards of care and exonerated the remaining defendants. Plaintiff

2 Plaintiff had utilized a different medical expert for the required post -answer Affidavit of Merit. A-2949-24 4 accordingly advised that she consented to all other co-defendants, aside from

Dr. Parcells and Spiro, being dismissed from the case.

At oral argument on the motion on March 28, 2025, the trial court

questioned why plaintiffs had not moved to extend discovery or notify the

parties of the forthcoming expert report. The attorney who was then

representing plaintiff apologized, attributing the delay to the expert's busy

schedule as a practicing surgeon and the "thousands" of pages of deposition

transcripts and other documents that the expert had needed to review. Defense

counsel argued in response that, under the circumstances, it would be unfair to

her clients to allow the untimely expert report to be considered.

In an oral ruling that same day after the parties had concluded their

arguments, the trial court elected not to consider the late report and granted

summary judgment to Dr. Parcells and Spiro. In essence, the court found that

the abrupt and untimely service of the expert report was intolerable, and that it

was appropriate to impose the remedy of a dismissal of plaintiff's claims with

prejudice.

Plaintiff3 timely moved for reconsideration, with a supporting certification

and attachments explaining the circumstances in greater detail. In that

3 By this point a different attorney from plaintiff's law firm had taken over. A-2949-24 5 submission, plaintiff's successor counsel advised that plaintiff was amenable to

less drastic measures, such as granting defendants additional discovery time to

depose plaintiff's expert, and cost-shifting. Plaintiff requested oral argument on

the motion as of right, pursuant to Rule 1:6-2(d). Dr. Parcells and Spiro opposed

the reconsideration motion but also requested oral argument.

In an order dated May 9, 2025, the court denied reconsideration without

allowing oral argument. The order read as follows:

This Court has considered the moving papers and the opposition submitted: this matter was previously heard for oral argument and counsel fully and completely argued their positions: nothing presented in this motion raises any additional reasons to reconsider this Court's prior decision nor does it raise any matters or controlling decisions that this Court overlooked or in which it had erred. See Rules of Court 4:42-2 and 4:49- 2.

On appeal, plaintiff argues: (1) the expert report, despite its late

production, should have been considered as substantive opposition to summary

judgment; (2) oral argument should have been granted as of right on the

reconsideration motion; and (3) the opinion provided in plaintiff's expert report,

precluded the grant of summary judgment, as the report raises genuine issues of

material fact on the merits of the case. Defendants counter that the trial court

A-2949-24 6 did not misapply its discretion in disallowing the late report and in granting them

summary judgment.

In considering these arguments, we are mindful of several important

principles. Trial courts are entrusted with an enormous and difficult

responsibility in overseeing the orderly and efficient exchange of pretrial

discovery, so that cases can be ready for substantive motion practice and trial.

Trial courts have considerable discretion in such case-management functions.

"[A]ppellate courts 'generally defer to a trial court's disposition of discovery

matters unless the court has abused its discretion or its determination is based

on a mistaken understanding of the applicable law.'" State v. Brown, 236 N.J.

497, 521 (2019) (quoting Pomerantz Paper Corp. v. New Cmty. Corp., 207 N.J.

344, 371 (2011) (quoting Rivers v. LSC P'Ship, 378 N.J. Super. 68, 80 (App.

Div. 2005))).

In complex matters such as this medical malpractice case, trial courts

commonly issue periodic case management orders that specify interim deadlines

for document production, fact witness depositions, expert reports, expert

depositions, and so forth, culminating with a DED. In determining whether the

DED should be extended, our rules are more stringent when the case has already

been assigned an arbitration or trial date. See R. 4:24-1(c) (requiring

A-2949-24 7 "exceptional circumstances" to extend discovery when such dates have been

established; otherwise requiring only "good cause" for an extension); Leitner v.

Toms River Reg. Schools, 392 N.J. Super. 80, 87 (App. Div. 2007) (defining

"good cause"); Rivers, 378 N.J. Super. at 79 (defining "exceptional

circumstances"). Notably here, the case did not yet have such a designated date

when the court rejected plaintiff's expert report and it declined to extend the

interim deadline for such reports.

Furthermore, we recognize that when parties fail to comply with their

discovery obligations, the Rules authorize a wide range of possible remedies and

sanctions for such noncompliance. Specifically, Rule 4:23-2(b) enumerates

various alternative sanctions for failing to comply with discovery obligations as

follows:

(1) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;

(2) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting the introduction of designated matters in evidence;

(3) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof,

A-2949-24 8 or rendering a judgment by default against the disobedient party;

(4) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination.

In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order to pay the reasonable expenses, including attorney's fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.

See, e.g., Oliviero v. Porter Hayden Co., 241 N.J. Super. 381, 385 (App. Div.

1990) (upholding an order requiring a party to pay reasonable attorney's fees for

an aborted first trial, after the party had misidentified a key witness in answering

interrogatories.); see also Marino v. Abex Corp., 471 N.J. Super. 263, 271 (App.

Div. 2022) (affirming an order sanctioning a party that violated rules on

corporate depositions to pay the opposing party's attorney fees and costs and

precluding that party from advancing certain defenses).

Another cardinal principle is that, when it is possible within the bounds

of fairness, our court system prefers that cases be adjudicated on their merits

rather than on procedural grounds. "Cases should be won or lost on their merits

and not because litigants have failed to comply precisely with particular court

schedules, unless such noncompliance was purposeful and no lesser remedy was

A-2949-24 9 available." Irani v. K-Mart Corp., 281 N.J. Super. 383, 387 (App. Div. 1995)

(quoting Connors v. Sexton Studios, Inc., 270 N.J. Super. 390, 395 (App. Div.

1994)). This is particularly true when "there has been no showing of prejudice

to defendants that would outweigh the strong preference for adjudication on the

merits rather than final disposition for procedural reasons." Mayfield v. Cmty.

Med. Assocs., P.A., 335 N.J. Super. 198, 207 (App. Div. 2000). "[I]n the

absence of demonstrable prejudice to the other party, it is neither necessary nor

proper to visit the sins of the attorney on his blameless client." Jansson v.

Farleigh Dickinson Univ., 198 N.J. Super. 190, 196 (App. Div. 1985)

(superseded by statute on other grounds) (reversing a dismissal when the first

attorney for plaintiffs failed to serve answered interrogatories and a new

attorney attempted to vacate the dismissal four years later).

We also must be mindful in this reconsideration context that Rule 1:6-

2(d), as it is presently 4 codified, prescribes that, with the exception of motions

involving pretrial discovery or calendaring, oral argument ordinarily shall be

granted to movants who request it as of right. That principle generally extends

4 We are aware the Civil Practice Committee has recommended to the Supreme Court that the rule be revised to afford trial judges discretion to deny such oral argument requests on reconsideration motions when argument is not likely to be helpful or illuminating. 2026 Sup. Ct. Civ. Prac. Comm. Rep. 1-3. A-2949-24 10 to motions for reconsideration, with very limited exceptions noted in case law.

See Raspantini v. Arocho, 364 N.J. Super. 528, 532 (App. Div. 2003).

Having considered the present case in light of these principles, we

respectfully conclude the trial court erred in rejecting plaintiff's late expert

report and in refusing to consider it as substantive opposition to defendants'

summary judgment motions. We emphatically agree with the trial court that the

late service of the expert report on the night before the summary judgment return

date was unfair, as well as discourteous to the court and opposing counsel. Even

so, the trial court did not sufficiently address why one or more less drastic

measures authorized under Rule 4:23-2(b) would not serve the interests of

justice. The court erred in depriving plaintiff of a disposition on the merits of

her claims against the two remaining defendants.

In reaching this determination, we are mindful that there were

approximately five weeks left before the DED would expire on May 30. The

court could have granted defendants an extension of time to take the plaintiff's

expert's deposition and, if needed, procure a competing defense expert report.

The court also could have required plaintiff to pay reasonable counsel fees and

A-2949-24 11 other costs necessitated by the late submission. 5 As we noted, there was no trial

date looming, and it does not appear likely that the court would have assigned

this complex case out for a jury trial very soon after the DED ran. Nor do we

discern any significant prejudice to defendants that would be caused by delaying

the completion of discovery a few more months.

We have considered the case law cited by defendants in opposition to the

appeal, and none of those cases persuade us to adopt a different course of action.

For instance, the case of Tynes v. St. Peter's Univ. Med. Ctr., 408 N.J. Super.

159, 170 (App. Div. 2009), chiefly relied upon by defendants, is not comparable

to the situation before us because in that case, the plaintiff's counsel actively

misled the court and opposing counsel about when he learned the status of a key

witness. No such lack of candor is present here, despite the abrupt and

inconsiderate conduct that occurred.

To be sure, given the difficulties that plaintiff's expert may have had in

wading through thousands of pages of materials that were not completed until

the cusp of the year-end holiday season, plaintiff's former counsel should have

alerted the court and opposing counsel that the expert needed more time. But

5 We parenthetically note that nothing in this opinion precludes defendants from seeking from the trial court on remand a sum for reasonable appellate counsel fees. A-2949-24 12 the consequence of dismissal with prejudice was excessive. The court further

erred when it denied oral argument on the motion for reconsideration, which

could have provided a context for a fulsome exploration of lesser sanctions.

The court's orders dated March 28, 2025 and May 9, 2025 are

consequently vacated. The matter is remanded for oral argument and further

proceedings and the consideration of alternative measures and sanctions. We

do not retain jurisdiction.

A-2949-24 13