NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-1109-20
DOLORES YANEZ and DOLORES YANEZ o/b/o the estate of ANTONIO YANEZ (individually),
Plaintiffs-Appellants,
v.
PEDRO CORDERO, M.D., TRINITAS REGIONAL MEDICAL CENTER, SECURIAN FINANCIAL GROUP, INC., and MINNESOTA LIFE INSURANCE COMPANY, CUNA MUTUAL GROUP,
Defendants,
and
JEFFREY STIRLING, M.D.,
Defendant-Respondent. ______________________________
Argued March 16, 2022 – Decided April 4, 2022
Before Judges Vernoia and Firko. On appeal from the Superior Court of New Jersey, Law Division, Union County, L-3459-18.
Anthony R. Fiore, Jr., argued the cause for appellant (Gage Fiore, LLC, attorneys; Anthony R. Fiore, Jr., on the briefs).
Michael R. Ricciardulli argued the cause for respondent (Ruprecht Hart Ricciardulli & Sherman, LLP, attorneys; Michael R. Ricciardulli, of counsel and on the brief; Brion D. McGlinn, on the brief).
PER CURIAM
In this medical malpractice action, plaintiffs Dolores Yanez (Yanez) and
the Estate of Antonio Yanez (collectively "plaintiffs") appeal from orders
granting defendant Jeffrey Stirling, M.D. (Stirling) summary judgment on
statute of limitations grounds and denying plaintiffs' motion for reconsideration.
Plaintiffs argue the court erred by failing to: apply the discovery rule to find the
complaint was timely filed; conduct a hearing to determine the proper trigger
for the commencement of the limitations period; and find the complaint was
timely filed through application of the fictitious defendant rule, R. 4:26-4.
Unpersuaded, we affirm.
I.
In our review of the record before the trial court, we accept the facts and all
reasonable inferences therefrom in the light most favorable to plaintiffs because they
A-1109-20 2 are the parties against whom summary judgment was entered.1 Brill v. Guardian
Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Applying that standard, the summary
judgment record before the trial court established the following undisputed material
facts.
Yanez is decedent Antonio Yanez's (decedent) wife. Decedent was
admitted to Trinitas Regional Medical Center (Trinitas) on October 13, 2016,
for an interventional radiology procedure. According to Yanez, Pedro Cordero,
M.D., (Cordero) was decedent's vascular surgeon and decedent said Cordero
would perform the procedure at Trinitas.
Yanez was not with decedent when he was admitted to Trinitas because
she had to attend to an issue related to their son. Yanez went to Trinitas after
decedent was admitted, and she later testified she saw many doctors, nurses, and
hospital staff, but she did not know Stirling's identity. Yanez was in the
1 In accordance with Rule 4:46-2, we glean the facts from Stirling's statement of material facts supporting the summary judgement motion, plaintiffs' response to Stirling's statement of material facts, and plaintiffs' counterstatement of material facts submitted in opposition to the motion. Although we generally limit our de novo review of a summary judgment record to the facts set forth in statements submitted pursuant to Rule 4:46-2, we note that before the motion court and on appeal, the parties rely on facts set forth in Yanez's affidavits and in her deposition testimony. We do so as well because Sterling does not object to plaintiffs' reliance on such facts for purposes of our de novo review and because Stirling is entitled to summary judgment as a matter of law even if we accept Yanez's version of the facts as related in her testimony and affidavits. A-1109-20 3 operating room during decedent's surgery and she observed the procedure, but
she "did not know who the doctors or staff were." The surgical procedure was
performed in two parts. Yanez spoke with Stirling during a break after the first
part of the procedure and then again after the second part of the procedure. She
did not know his identity at that time. On the day following the surgery, October
14, 2016, decedent passed away while in Trinitas.
Yanez also spoke with Cordero following the surgical procedure, but he
did not indicate that another doctor performed the surgery. Within a week of
decedent's death, Yanez received medical records from Trinitas. The records
were later determined to be incomplete. The records did not identify who
performed the surgical procedure, and they did not include an operative report
identifying Stirling as the surgeon. According to Yanez, the records "all
identified . . . Cordero" as decedent's physician.
Three months after decedent's death, in January 2017, plaintiffs' counsel
requested decedent's medical records from Trinitas. Counsel received medical
records in response to the request, but the records did not include an operative
report or any record indicating Stirling was decedent's surgeon. A representative
of plaintiffs' counsel's office was subsequently advised by the records
A-1109-20 4 department at Trinitas that it did not have an operative report for dec edent's
surgery.
Almost two years after decedent's death, on October 9, 2018, plaintiffs
filed a complaint asserting wrongful death medical malpractice, survivorship,
and tort claims against Cordero, Trinitas, and fictitiously named John Doe
defendants, including "physicians" who "provided medical care and treatment
to" decedent in Trinitas.
On June 5, 2019, Cordero provided answers to plaintiffs' interrogatories
stating he did not perform the surgical procedure and identifying Stirling as
decedent's surgeon. Plaintiffs moved for leave to file an amended complaint
adding Stirling as a defendant. Yanez claimed she was not aware Stirling
performed the October 13, 2016 surgical procedure until Cordero provided his
answers to interrogatories. The court granted plaintiffs' motion, and, on August
5, 2019, plaintiffs filed a second amended complaint naming Stirling as a
defendant and asserting the wrongful death medical malpractice, survivorship,
and tort claims against him for the first time. Stirling filed an answer to the
second amended complaint asserting in part that plaintiffs' claims were time-
barred under the applicable statutes of limitations.
A-1109-20 5 In February 2020, Trinitas supplied additional records to plaintif fs'
counsel. For the first time, the records included an operative report indicating
Stirling performed decedent's October 13, 2016 surgery.
Stirling moved for summary judgment, arguing plaintiffs' complaint
should be dismissed because it was filed against him outside the two-year
limitations period. More particularly, Stirling asserted the causes of action
asserted in the second amended complaint accrued on October 14, 2016—the
date of decedent's death—and the complaint against him was filed more than
two years later on August 5, 2019. Plaintiffs opposed the motion, arguing the
statute of limitations should be tolled under the discovery rule because Trinitas
did not supply complete medical records identifying Stirling as the surgeon and
they could not have reasonably ascertained they had a claim against Stirling until
he was identified as the surgeon in Cordero's June 2019 answers to
interrogatories. For the same reasons, plaintiffs also claimed the complaint
against Stirling was timely filed under the fictitious defendant rule, R. 4:26-4.
After hearing argument, the court granted Stirling's motion. In a written
statement of reasons, the court determined plaintiffs were not entitled to the
benefit of either the discovery rule or the fictitious defendant rule, R. 4:26-4,
because the medical records Yanez received within one week of decedent's death
A-1109-20 6 referred to Stirling as a physician who provided care and treatment to decedent
while he was in Trinitas. The court further noted Yanez observed Stirling
perform the surgical procedure, spoke to Stirling about the surgical procedure,
and knew he was not Cordero, with whom she was otherwise familiar when the
procedure was performed.
The court found plaintiffs failed to demonstrate they exercised the due
diligence required to ascertain Stirling's identity prior to the expiration of the
limitations period. The court reasoned that plaintiffs' failure did not support
tolling of the statute of limitations under the discovery rule, and, for the same
reasons, did not support their reliance on the fictitious defendant rule, R. 4:26-
4. The court also rejected plaintiffs' request for a Lopez2 hearing, finding the
evidence they proffered in support of their request for a hearing did not raise
any factual issues pertinent to the disposition of defendant's claim the complaint
should be dismissed on statute of limitations grounds.
Plaintiffs filed a motion for reconsideration, asserting the court erred by
denying their request for a Lopez hearing. The court denied the motion,
reaffirming its prior determination the evidence plaintiffs proffered in support
of their hearing request did not raise an issue of fact as to whether plaintiffs
2 Lopez v. Swyer, 62 N.J. 267 (1973). A-1109-20 7 exercised the due diligence required to identify Stirling as a defendant such that
plaintiffs might be entitled to a tolling of the statute of limitations under the
discovery rule or the benefit of the fictitious defendant rule, R. 4:26-4.
Plaintiffs appeal from the court's orders granting Stirling summary
judgment and denying their motion for reconsideration.
II.
We conduct a de novo review of an order granting summary judgment,
Globe Motor Co. v. Igdalev, 225 N.J. 469, 479 (2016), and apply the same
standard as the trial court, State v. Perini Corp., 221 N.J. 412, 425 (2015). In
considering a summary judgment motion, "both trial and appellate courts must
view the facts in the light most favorable to the non-moving part[ies], which in
this case [are] plaintiff[s]." Bauer v. Nesbitt, 198 N.J. 601, 604 n.1 (2009) (first
citing R. 4:46-2(c); and then citing Brill, 142 N.J. at 540). Summary judgment
is proper if the record demonstrates "no genuine issue as to any material fact
challenged and that the moving party is entitled to a judgment . . . as a matter of
law." Burnett v. Gloucester Cnty. Bd. of Chosen Freeholders, 409 N.J. Super.
219, 228 (App. Div. 2009) (quoting R. 4:46-2(c)). A court's determination of
"whether a cause of action is barred by a statute of limitations is a question of
law that we review de novo." Save Camden Pub. Schs. v. Camden City Bd. of
A-1109-20 8 Educ., 454 N.J. Super. 478, 487 (App. Div. 2018) (citing Catena v. Raytheon
Co., 447 N.J. Super. 43, 52 (App. Div. 2016)).
Plaintiffs' complaint against Stirling includes a wrongful death claim, a
survivorship claim, and claims for emotional distress and loss of services. There
a different statutes of limitations applicable to plaintiffs' claims. The wrongful
death claim is governed by the two-year statute of limitations in N.J.S.A. 2A:31-
3. See generally Presslaff v. Robins, 168 N.J. Super. 543, 546 (App. Div. 1979)
(explaining the limitations period for wrongful death claims). The survivorship
cause of action is governed by the two-year statute of limitations in N.J.S.A.
2A:15-3. See generally Warren v. Muenzen, 448 N.J. Super. 52, 64-69 (App.
Div. 2016) (explaining the accrual date for, and running of, the limitations
period for survivorship actions). Plaintiffs' remaining claims for emotional
distress and loss of decedent's services are governed by the two-year statute of
limitations in N.J.S.A. 2A:14-2.
Plaintiffs' complaint against Stirling was filed on August 5, 2019, almost
three years after decedent's October 14, 2016 death. They argue the court erred
by finding the claims against Stirling are time-barred because the limitations
A-1109-20 9 periods were tolled under the discovery rule. 3 More particularly, plaintiffs argue
the statute of limitations periods on their claims against Stirling did not begin to
run until they first learned in June 2019 that Stirling was decedent's surgeon.
They claim that since they filed their complaint against Stirling within two years
of first learning Stirling was decedent's surgeon, the complaint against him was
timely filed.
We first note the discovery rule is inapplicable to plaintiffs' wrongful death
cause of action because N.J.S.A. 2A:13-3 requires the filing of a cause of action
within two years of decedent's death. See Presslaff, 168 N.J. Super. at 546 (holding
the discovery rule does not apply to Wrongful Death Act claims). The motion court
therefore properly rejected plaintiffs' reliance on the discovery rule in granting
summary judgment on their wrongful death claim against Stirling because the
complaint against him was filed more than two years following decedent's death.4
Ibid.
3 In making their arguments on appeal, plaintiffs refer only to the two-year statute of limitations in N.J.S.A. 2A:14-2. As noted, however, their claims are governed by different statutes of limitations and, although each statute includes a two-year limitations period, it is necessary to distinguish them because they are not identical in all respects. 4 We recognize the motion court rejected plaintiffs' reliance on the discovery rule as to the wrongful death claim on grounds different than those upon which
A-1109-20 10 The discovery rule is applicable to plaintiffs' survivorship claim. See Warren,
448 N.J. Super at 64-69 (explaining the two-year limitations period in N.J.S.A.
2A:15-3, which governs the limitations period for survivorship actions, is two years
from the date of injury or its discovery consistent with N.J.S.A. 2A:14-2, as may be
extended by N.J.S.A. 2A:14-23.1). The discovery rule is also applicable to plaintiffs'
tort claims under N.J.S.A. 2A:14-2.
The common law discovery rule, first articulated in the medical malpractice
context in Fernandi v. Strully, 35 N.J. 434 (1961), is a rule of equity that defers a
cause of action's accrual date to the date the plaintiff knew or was chargeable with
knowing an injury has occurred and the injury is the fault of another. See Lopez, 62
N.J. at 273-74. It "was developed as a means of mitigating the harsh results which
flow from a rigid adherence to a strict rule of law." Heyert v. Taddese, 431 N.J.
Super. 388, 435 (App. Div. 2013) (citing Lopez, 62 N.J. at 273-74).
"Whether the discovery rule applies depends on 'whether the facts presented
would alert a reasonable person, exercising ordinary diligence that he or she was
injured due to the fault of another.'" Ben Elazar v. Macrietta Cleaners, Inc., 230 N.J.
we rely. Our difference with the court's reasoning is of no moment. We conduct a de novo review of its summary judgment order, Globe Motor Co, 225 N.J. at 479, and we review the order and not the court's reasoning, Do-Wop Corp. v. City of Rahway, 168 N.J. 191, 199 (2001). A-1109-20 11 123, 134 (2017) (quoting Caravaggio v. D'Agostini, 166 N.J. 237, 246 (2001)).
Under the discovery rule, the running of the statute of limitations begins when the
plaintiff is aware "through the exercise of reasonable diligence, the facts that
form the basis for an actionable claim against an identifiable defendant." The
Palisades at Ft. Lee Condo. Ass'n, Inc. v. 100 Old Palisade, LLC, 230 N.J. 427,
435 (2017) (citing Caravaggio, 166 N.J. at 246). "The standard is basically an
objective one – whether plaintiff 'knew or should have known' of sufficient facts to
start the statute of limitations running." Elazar, 230 N.J. at 134 (quoting Caravaggio,
166 N.J. at 246). "[L]egal and medical certainty are not required for a claim to
accrue." Kendall v. Hoffman-La Roche, Inc., 209 N.J. 173, 193 (2012).
A plaintiff seeking application of the discovery rule bears the burden of
showing "that a reasonable person in her [or his] circumstances would not have
been aware[,] within the prescribed statutory period[,] that she [or he] had been
injured by [the] defendant[']s" conduct. Kendall, 209 N.J. at 197-98. Plaintiffs
failed to sustain that burden here.
Plaintiffs contend Yanez was unable to identify Stirling as a possible
tortfeasor because the incomplete Trinitas medical records she received during
the two-year period following decedent's death did not reveal Stirling was
decedent's surgeon. Plaintiffs argue Yanez first learned Stirling was the surgeon
A-1109-20 12 in June 2019, when Cordero identified Stirling as the surgeon in his answers to
interrogatories, and, therefore, their claims against Stirling did not accrue until
that time.
Plaintiffs' argument ignores the medical records provided by Trinitas
within one week of decedent's death identify Stirling four separate times as a
physician who provided care to decedent during the short time he was in the
hospital prior to his death. In a report dated October 13, 2016, the date of
decedent's surgery, Stirling is identified as decedent's "attending" physician.
Two other reports, from that same day, are electronically signed by Stirling and
include his assessments of post-surgical changes in catheters and support
devices and other information concerning decedent's care and treatment.
The nurses' notes included in the Trinitas records also identify a "Dr.
Sterling" as a physician who provided care for decedent. The October 13, 2016
nurses' notes refer to "Dr. Sterling" twice. The state Dr. Sterling was at
decedent's bedside and reviewed a CT scan, and they separately state Dr.
"Sterling" "advised [the] surgery [department] to transfuse [the] patient
regar[d]less." The record does not include evidence plaintiffs attempted to
identify the "Dr. Sterling" referred to in the nurses' notes or to determine if the
"Dr. Sterling" to which reference is made was the surgeon, the same individual
A-1109-20 13 referenced elsewhere in the records as Stirling, or someone else who provided
care to decedent.
In any event, the Trinitas records establish that, although plaintiffs were
not immediately provided an operative report identifying Stirling as decedent's
surgeon, within one week of decedent's death plaintiffs had reason to know
Stirling was a physician—an "attending physician"—who provided care and
treatment to decedent. In addition, the nurses' notes clearly indicated that a Dr.
Sterling provided care and treatment to decedent related to the surgical
procedure. In February 2017, Trinitas provided the medical records to plaintiffs'
counsel, and although the records lacked an operative report, they identified
Stirling as a physician who provided care and treatment to decedent, and a
separate Dr. Sterling as physician who provided care and treatment to decedent,
during his tragically short hospital stay at Trinitas.5
5 We observe that plaintiffs' timely filed 2018 initial complaint, and 2019 second amended complaint which asserted claims against Stirling for the first time, do not expressly allege malpractice during the performance of the surgical procedure. The complaints more generally allege negligence in the care and treatment of decedent during his October 13 and 14, 2016 admission to Trinitas. Thus, the medical records plaintiffs received shortly after decedent's death and their counsel received from Trinitas three months later indicate Stirling was involved in the care and treatment of decedent the complaints alleged were negligently provided. As such, within a week of decedent's death, plaintiffs had medical records identifying Stirling as a provider of care and treatment the
A-1109-20 14 Moreover, Yanez testified she watched decedent's surgery and spoke to
Stirling initially after the first part of the surgery and again after the second part
of the surgery. She did not know Stirling's name at that time. However,
following the surgery she also spoke with Cordero, with whom she was familiar,
about the surgery. Thus, Yanez knew on the day of the surgery that the doctor
who performed the procedure, with whom she spoke twice, was not Cordero.
She also knew Cordero was not the surgeon because she watched the surgery
and spoke to the surgeon whose name was not known to her at the time.
Given those circumstances, we reject plaintiffs' claim they are entitled to
the benefit of the discovery rule because Yanez could not have known Cordero
was not the surgeon until he answered interrogatories in June 2019, identifying
Stirling as the surgeon. Yanez's testimony confirms she knew Cordero was not
the surgeon because he was familiar to her and she observed a different doctor,
whose name she did not know, perform the surgery, and she to the surgeon
twice—once during and once after the procedure.
timely filed initial complaint alleged was negligently provided, but plaintiffs did not name Stirling as a defendant until almost three years after first receiving the records. Additionally, and as noted, the nurses' notes also referred to a Dr. Sterling as having provided care and treatment to decedent and there is no evidence in the record plaintiffs made any effort to determine the identity of that doctor or to determine, as is likely, that the Dr. Sterling referred to in the nurses' notes is actually Sterling. A-1109-20 15 Yanez admitted she did not know the name of the surgeon, and the medical
records provided by Trinitas to plaintiffs and their counsel long before the
statute of limitations expired in October 2018 did not identify the surgeon. The
records were not misleading. They did not incorrectly identify the surgeon or
indicate Cordero was the surgeon. Yet, despite the lack of any identification of
the surgeon in the medical records, the references to Stirling and doctors other
than Cordero in the records, 6 Yanez's observation of a doctor performing the
surgery who she knew was not Cordero, and Yanez's admitted inability to
identify the surgeon by name, plaintiffs do not present any evidence of any direct
effort to ascertain the surgeon's identity prior to the expiration of the two-year
statute of limitations.
Plaintiffs argue their counsel requested an operative report from Trinitas
and was advised one did not exist, only to later obtain during discovery an
operative report identifying Stirling as the surgeon. Plaintiffs' reliance on the
requests for the operative report, and the late delivery of it to their counsel, does
not explain or excuse the lack of any other effort to ascertain the identity of the
surgeon who performed the procedure prior to the expiration of the limitations
6 The medical records identify other physicians who provided care and treatment to decedent on October 13 and 14, 2016, including "Dr. Sterling." A-1109-20 16 period. Again, Yanez testified she not know the identity of the surgeon whose
malpractice plaintiffs allege caused, or contributed to cause, decedent's death.
The absence of an operative report providing the surgeon's identity should have
provided an impetus to diligently look elsewhere so the surgeon could be
identified and timely named as a defendant.
The discovery rule delays the accrual of a cause of action "until the injured
party discovers, or by an exercise of reasonable diligence and intelligence
should have discovered that he may have a basis for an actionable claim." R.L.
v. Voytac, 199 N.J. 285, 299 (2009) (quoting Lopez, 62 N.J. at 272). Where "a
plaintiff knows of an injury and that the injury it due to the fault of another, he
or she has a duty to act." Caravaggio, 166 N.J. at 249-50.
Here, there is no evidence plaintiffs acted diligently to ascertain Stirling's
name prior to the expiration of the limitations periods in the statutes of
limitations applicable to their claims. As the motion court aptly observed,
Yanez could have easily asked Cordero for the surgeon's name either on the day
of surgery or during a follow up inquiry prior to the expiration of the limitations
period. As our Supreme Court has explained,
When a plaintiff knows or has reason to know that he has a cause of action against an identifiable defendant and voluntarily sleeps on his rights so long as to permit the customary period of limitations to expire, the
A-1109-20 17 pertinent considerations of individual justice as well as the broader considerations of repose, coincide to bar his action.
[Kendall, 209 N.J. at 191 (quoting Farrell v. Votator Div. of Chemetron Corp., 62 N.J. 111, 115 (1973)).]
For those reasons, we are convinced the motion court correctly concluded that
in the absence of any evidence of a diligent effort to identify Stirling, the
discovery rule did not delay the accrual of plaintiffs' survivorship and tort claims
such as to render the August 2019 complaint against Stirling timely.
Plaintiff also contends her initial complaint, which was filed within two
years of the alleged malpractice and decedent's death, should be deemed timely
as to Stirling under the fictitious defendant rule, R. 4:26-4. In pertinent part, the
Rule provides:
In any action . . . if the defendant's true name is unknown to the plaintiff, process may issue against the defendant under a fictitious name, stating it to be fictitious and adding an appropriate description sufficient for identification. Plaintiff shall on motion, prior to judgment, amend the complaint to state defendant's true name[.]
[R. 4:26-4.]
The Rule allows "a plaintiff who institutes a timely action against a
fictious defendant to amend the complaint after the expiration of the statute of
limitations to identify the true defendant." Viviano v. CBS, Inc., 101 N.J. 538,
A-1109-20 18 548 (1986). When the procedure available under the Rule is "properly utilized,
'an amended complaint identifying the defendant by its true name relates back
to the time of the filing of the original complaint.'" Baez v. Paulo, 453 N.J.
Super. 422, 437 (App. Div. 2018) (emphasis in original) (quoting Viviano, 101
N.J. at 548).
The fictitious party rule "may only be used by a plaintiff 'if a defendant's
true name cannot be ascertained by the exercise of due diligence prior to filing
the complaint.'" Id. at 438 (quoting Claypotch v. Heller, Inc., 360 N.J. Super.
472, 479-80 (App. Div. 2003)). As we explained in Baez, a plaintiff "must
demonstrate two phases of due diligence in order to gain the tolling benefits of
the rule." Id. at 439. A plaintiff must first demonstrate they "exercise[d] due
diligence in endeavoring to identify the responsible defendant[] before filing the
original complaint naming John Doe parties." Ibid. A plaintiff must also
demonstrate they "act[ed] with due diligence in taking prompt steps to substitute
the defendant's true name, after become aware of that defendant's identity." Ibid.
Here, for the reasons we have explained, plaintiffs have not demonstrated
they exercised due diligence in endeavoring to identify Stirling prior to the filing
of the initial complaint. Again, the record lacks evidence plaintiffs made any
effort to ascertain Stirling's name prior to the filing of the complaint even though
A-1109-20 19 Yanez knew Cordero did not perform the surgical procedure, Yanez knew a
doctor other than Cordero performed the procedure, and Stirling was mentioned
four different times in the medical records that were first provided to Yanez one
week after decedent's death and provided three months later to plaintiffs'
counsel.
Plaintiffs simply present no evidence they exercised due diligence to
ascertain the identity of the surgeon who performed the procedure prior to the
filing of the initial complaint. They stand in the same shoes as the plaintiff in
Matynska v. Fried, who asserted a medical malpractice claim, following a
surgical procedure, against various identified doctors and nurses, as well as
fictitiously named defendant doctors. 175 N.J. 51, 52 (2002). One of the doctors
who treated the plaintiff following the surgery was identified twice in the
medical records as having provided care to the plaintiff, but the doctor was not
named as a defendant in the original complaint. Ibid.
The Supreme Court affirmed the trial court's denial of the plaintiff's
motion to amend the complaint to substitute the unnamed doctor as one of the
fictitiously named defendants under Rule 4:26-4. Id. at 53. The Court explained
the plaintiff's "efforts to discover the role of all parties complicit in her injury
were wholly inadequate at least insofar as" that doctor was concerned. Ibid.
A-1109-20 20 The Court noted the hospital records included the doctor's name and indicated
the doctor provided care to the plaintiff. Ibid. The Court also observed that a
review of a telephone book, a call to another doctor, or a call to the hospital
would have revealed the doctor's status and therefore would have alerted
plaintiff of the doctor's role in providing the care at issue. Ibid.
The Court concluded the plaintiff was not entitled to the benefit of the
fictitious party rule, R. 4:26-4. Ibid. The Court reasoned the plaintiff did not
"cross the due diligence threshold" because she failed "to investigate all
potentially responsible parties in a timely manner," and she did not fulfill her
"primary obligation to investigate" the role of the defendant, whose name
appeared in the medical records. Ibid.
The same is true here. Stirling's name appeared four times in the medical
records provided within a week of decedent's death. In one instance, Dr. Stirling
is identified in the records as decedent's "attending physician." Yet, plaintiffs
took no action to ascertain his precise role in providing care to decedent—or to
determine if he was the surgeon whose identity Yanez admitted was not known
to her—at any time prior to the filing of the initial complaint. We therefore
conclude, as the Court did in Matynska, that plaintiffs' failure to demonstrate
due diligence to ascertain the identity of the surgeon, and Stirling's role in the
A-1109-20 21 care and treatment of decedent based on his name appearing the medical records,
requires rejection of plaintiffs' reliance on Rule 4:26-4.
We also find no merit in plaintiffs' argument the court erred by denying
their request for a Lopez hearing to determine the accrual date of their causes of
action under the discovery rule. A Lopez hearing provides an opportunity for
the "equitable claims of opposing parties [to] be identified, evaluated and
weighed" by the trial court before determining the date upon which a plaintiff
became aware of the facts giving rise to the cause of action. Lopez, 62 N.J. at
274. "The burden of proof will rest upon the party claiming the indulgence of
the rule." Id. at 276.
"A plaintiff who invokes the discovery rule is not always entitled to a
hearing. 'A Lopez hearing is only required when the facts concerning the date
of the discovery are in dispute.'" J.P. v. Smith, 444 N.J. Super. 507, 528 (App.
Div. 2016) (quoting Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 336 n.6
(2010)). Where "the record . . . unquestionably establishes [a] plaintiff's
awareness of the essential facts, no formal hearing [is] necessary to resolve the
discovery rule issue." Lapka v. Porter Hayden Co., 162 N.J. 545, 558 (2000).
Plaintiffs' claim they are entitled to a Lopez hearing is founded on their
intention to present four witnesses (Yanez, plaintiffs' malpractice expert Dr.
A-1109-20 22 Benjamin Jackson, plaintiffs' counsel, and Valdary Campos, a Trinitas
employee). The court reviewed the proffered testimony of Yanez, Dr. Jackson,
and plaintiffs' counsel, and concluded the proffer did not offer any facts
pertinent to the delay in plaintiffs' identification of Stirling that did not exist in
the summary judgment record. Moreover, plaintiffs do not proffer any putative
evidence Campos might provide at a hearing that would support plaintiffs'
reliance on the discovery rule. The court also found the summary judgment
record established all the facts upon which plaintiffs relied in support their
discovery rule argument, and plaintiff failed to demonstrate the proffered
testimony was pertinent to determination of the accrual date of the asserted
causes of action.
Based on our careful review of the record, we discern no abuse of
discretion in the court's assessment of the proffered testimony and determination
a Lopez hearing was unnecessary. See Lopez, 62 N.J. at 275 (explaining a trial
court's decision to conduct a hearing on the accrual date of a cause of action
under the discovery rule is reviewed for an abuse of discretion). Plaintiffs fail
to make any showing the court's decision was made without a rational
explanation, inexplicably departed from established policies, or rested on an
impermissible basis. Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440
A-1109-20 23 N.J. Super. 378, 382 (App. Div. 2015) (explaining the abuse-of-discretion
standard of review of trial court decisions). We therefore affirm the court's
denial of plaintiffs' request for a Lopez hearing. For the same reasons, we affirm
the court's denial of plaintiffs' motion for reconsideration of the order denying
their request for the Lopez hearing.
Plaintiffs' remaining arguments that we have not directly addressed are
without sufficient merit to warrant discussion in a written opinion. R. 2:11-
3(e)(1)(E).
Affirmed.
A-1109-20 24