Kristen Dondero v. Yaakov Abdelhak, M.D.
This text of Kristen Dondero v. Yaakov Abdelhak, M.D. (Kristen Dondero v. Yaakov Abdelhak, M.D.) is published on Counsel Stack Legal Research, covering New Jersey Superior Court Appellate Division primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3524-23
KRISTEN DONDERO,
Plaintiff-Appellant,
and
ANDREW DONDERO, her husband,
Plaintiff-Respondent,
v.
YAAKOV ABDELHAK, M.D., MATERNAL RESOURCES OBSTETRICS, PC, d/b/a MATERNAL RESOURCES, INTEGRATIVE OBSTETRICS, LLC, HMH HOSPITALS CORPORATION, d/b/a HACKENSACK UNIVERSITY MEDICAL CENTER, HACKENSACK MERIDIAN HEALTH, INC., HACKENSACK UNIVERSITY MEDICAL GROUP, PC, a/k/a HACKENSACK MERIDIAN HEALTH MEDICAL GROUP, a/k/a HMH MEDICAL GROUP MEDICAL and EMILY HOWELL, D.O.,
Defendants-Respondents. _________________________________
ERIN A. BEDELL,
Intervenor-Respondent. _________________________________
Argued March 6, 2025 – Decided March 13, 2025
Before Judges Mawla, Natali, and Walcott-Henderson.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3527-20.
Jonathan H. Lomurro argued the cause for appellant Kristen Dondero (Lomurro Munson, LLC, attorneys; Jonathan H. Lomurro and Christina Vassiliou Harvey, of counsel and on the briefs; Andrew Broome, on the briefs).
Christian C. LoPiano argued the cause for respondent Andrew Dondero (LoPiano Law Firm, attorneys; Christian C. LoPiano, of counsel and on the brief).
Justyn M. Coddington argued the cause for respondents Yaakov Abdelhak, M.D., Maternal Resources Obstetrics, PC, d/b/a Maternal Resources, and Integrative Obstetrics, LLC (Hall Booth Smith, PC, attorneys; Michael McBride, of counsel and on the brief; Justyn M. Coddington, on the brief).
Brian G. Stellar argued the cause for respondents HMH Hospitals Corporation, d/b/a Hackensack University Medical Center and Hackensack Meridian Health, Inc. (Connell Foley, LLP, attorneys; Brian G. Steller, of counsel and on the brief; Thomas D. Forrester, Jr., on the brief).
A-3524-23 2 Walter F. Kawalec, III, argued the cause for respondents Emily Howell, D.O., and Hackensack University Medical Group, PC, a/k/a Hackensack Meridian Health Medical Group, a/k/a HMH Medical Group (Marshall Dennehey, attorneys; Robert T. Evers and Walter F. Kawalec, III, on the brief).
Gregory J. Giordano argued the cause for respondent Erin A. Bedell (Lenox, Socey, Formidoni, Giordano, Lang, Carrigg & Casey, LLC, attorneys; Gregory J. Giordano, of counsel; Stephanie J. Viola, on the brief).
PER CURIAM
We granted plaintiffs Kristen Dondero and Andrew "Drew" Dondero
leave to appeal from a June 5, 2024 order quashing subpoenas they served, and
denying their application to file a second amended complaint. We affirm in part,
and reverse in part, for the reasons expressed in this opinion.
Plaintiffs filed a medical malpractice complaint after their baby died at
thirty-one weeks gestation. They sued the treating physician, defendant Yaakov
Abdelhak, M.D., and his employers Maternal Resources Obstetrics, P.C. (MRO)
and Integrative Obstetrics, LLC (IO); Hackensack University Medical Center
(HUMC) and its affiliates; and Emily Howell, D.O., Jilyan Decker, M.D., and
Michelle Kozlovsky, R.N., who were employed or affiliated with HUMC,
Hackensack Meridian Health, Inc., Hackensack University Medical Group, P.C.
A-3524-23 3 (HUMG), Rutgers Biomedical and Health Sciences, and Rutgers New Jersey
Medical School.1
In February 2018, Kristen 2 was diagnosed with an ovarian cyst. Two
weeks later she learned she was pregnant. On April 6, 2018, she experienced
vaginal bleeding and went to HUMC. She was diagnosed with partial placenta
previa. Subsequent ultrasounds revealed Kristen's pregnancy was progressing
within normal limits, but the cyst had grown.
On August 9, 2018, Kristen met with Dr. Abdelhak, who diagnosed her as
a high-risk pregnancy and directed her to HUMC to have the cyst drained. The
procedure occurred the following day and Kristen was discharged the same day.
On September 6, 2018, Kristen went to HUMC with early labor symptoms
and decreased fetal movement. She was placed on a fetal monitor and observed
by Drs. Howell and Decker. Kristen alleged Dr. Abdelhak came to the hospital
1 HMH Hospitals Corporation did business as HUMC and Hackensack Meridian Health, Inc. We refer to them collectively as "the Hospital defendants." The complaint also named HUMG, which later changed its name to Hackensack Meridian Health Medical Group-Specialty Care, P.C., and its affiliates, Meridian Health Medical Group and HMH Medical Group, whom we refer to collectively as "the Group defendants." 2 Because the parties share the same surname, we refer to them by first name where necessary. We intend no disrespect. A-3524-23 4 and conducted a vaginal examination. HUMC discharged her with preterm labor
precautions and directed her to follow-up with Dr. Abdelhak.
On September 8, 2018, Kristen returned to HUMC with abdominal pain
and decreased fetal movement. The fetal heart monitor showed no cardiac
activity, and an ultrasound confirmed loss of the baby. After inducing labor, Dr.
Abdelhak attempted a vaginal delivery of the baby, but had to internally re-
position the baby to effectuate the delivery.
After the delivery, Kristen remained in the operating room because she
suffered postpartum hemorrhaging. Following attempts to stop the bleeding,
surgeons performed a hysterectomy. Kristen received blood transfusions and
underwent additional surgeries while in an induced coma because the bleeding
continued. She remained hospitalized for several days, suffering from fevers,
abdominal pain, vaginal bleeding, blood clots, and hemorrhagic shock. Kristen
was discharged on September 24, 2018.
Kristen was re-hospitalized twice: first on October 13, 2018, due to
abdominal pain, vaginal bleeding, nausea, and vomiting; and again on April 26,
2019, for an umbilical hernia and gallbladder issues. Her attempts to preserve
her remaining eggs to have a child via surrogacy were unsuccessful.
A-3524-23 5 Plaintiffs' initial complaint was filed on June 17, 2020, and contained six
counts. Counts one through four alleged defendants were negligent in their care
of Kristen and their failure to properly inform her about her care as required by
the law, resulting in the death of their child and injuries to Kristen. Plaintiffs
claimed Dr. Abdelhak committed battery on Kristen and defendants' negligence
resulted in additional medical procedures, pain, and suffering. Kristen
preserved her claims against future defendants in count four of the complaint.
In count five, Drew alleged defendants' negligence caused him mental and
emotional distress. Drew alleged a loss of consortium in count six.
Dr. Abdelhak and MRO filed answers, separate defenses, and cross-claims
for contribution against the other named defendants. The Hospital and Group
defendants, Dr. Howell, and Kozlovsky, filed their answer, separate defenses,
and cross-claims for contribution against the other named defendants.
In November 2020, during the initial round of discovery, Dr. Abdelhak
and MRO answered form interrogatories. Dr. Abdelhak certified he "would
have discussed vaginal delivery [versus] a caesarian section during the course
of his treatment" of Kristen.
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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-3524-23
KRISTEN DONDERO,
Plaintiff-Appellant,
and
ANDREW DONDERO, her husband,
Plaintiff-Respondent,
v.
YAAKOV ABDELHAK, M.D., MATERNAL RESOURCES OBSTETRICS, PC, d/b/a MATERNAL RESOURCES, INTEGRATIVE OBSTETRICS, LLC, HMH HOSPITALS CORPORATION, d/b/a HACKENSACK UNIVERSITY MEDICAL CENTER, HACKENSACK MERIDIAN HEALTH, INC., HACKENSACK UNIVERSITY MEDICAL GROUP, PC, a/k/a HACKENSACK MERIDIAN HEALTH MEDICAL GROUP, a/k/a HMH MEDICAL GROUP MEDICAL and EMILY HOWELL, D.O.,
Defendants-Respondents. _________________________________
ERIN A. BEDELL,
Intervenor-Respondent. _________________________________
Argued March 6, 2025 – Decided March 13, 2025
Before Judges Mawla, Natali, and Walcott-Henderson.
On appeal from an interlocutory order of the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-3527-20.
Jonathan H. Lomurro argued the cause for appellant Kristen Dondero (Lomurro Munson, LLC, attorneys; Jonathan H. Lomurro and Christina Vassiliou Harvey, of counsel and on the briefs; Andrew Broome, on the briefs).
Christian C. LoPiano argued the cause for respondent Andrew Dondero (LoPiano Law Firm, attorneys; Christian C. LoPiano, of counsel and on the brief).
Justyn M. Coddington argued the cause for respondents Yaakov Abdelhak, M.D., Maternal Resources Obstetrics, PC, d/b/a Maternal Resources, and Integrative Obstetrics, LLC (Hall Booth Smith, PC, attorneys; Michael McBride, of counsel and on the brief; Justyn M. Coddington, on the brief).
Brian G. Stellar argued the cause for respondents HMH Hospitals Corporation, d/b/a Hackensack University Medical Center and Hackensack Meridian Health, Inc. (Connell Foley, LLP, attorneys; Brian G. Steller, of counsel and on the brief; Thomas D. Forrester, Jr., on the brief).
A-3524-23 2 Walter F. Kawalec, III, argued the cause for respondents Emily Howell, D.O., and Hackensack University Medical Group, PC, a/k/a Hackensack Meridian Health Medical Group, a/k/a HMH Medical Group (Marshall Dennehey, attorneys; Robert T. Evers and Walter F. Kawalec, III, on the brief).
Gregory J. Giordano argued the cause for respondent Erin A. Bedell (Lenox, Socey, Formidoni, Giordano, Lang, Carrigg & Casey, LLC, attorneys; Gregory J. Giordano, of counsel; Stephanie J. Viola, on the brief).
PER CURIAM
We granted plaintiffs Kristen Dondero and Andrew "Drew" Dondero
leave to appeal from a June 5, 2024 order quashing subpoenas they served, and
denying their application to file a second amended complaint. We affirm in part,
and reverse in part, for the reasons expressed in this opinion.
Plaintiffs filed a medical malpractice complaint after their baby died at
thirty-one weeks gestation. They sued the treating physician, defendant Yaakov
Abdelhak, M.D., and his employers Maternal Resources Obstetrics, P.C. (MRO)
and Integrative Obstetrics, LLC (IO); Hackensack University Medical Center
(HUMC) and its affiliates; and Emily Howell, D.O., Jilyan Decker, M.D., and
Michelle Kozlovsky, R.N., who were employed or affiliated with HUMC,
Hackensack Meridian Health, Inc., Hackensack University Medical Group, P.C.
A-3524-23 3 (HUMG), Rutgers Biomedical and Health Sciences, and Rutgers New Jersey
Medical School.1
In February 2018, Kristen 2 was diagnosed with an ovarian cyst. Two
weeks later she learned she was pregnant. On April 6, 2018, she experienced
vaginal bleeding and went to HUMC. She was diagnosed with partial placenta
previa. Subsequent ultrasounds revealed Kristen's pregnancy was progressing
within normal limits, but the cyst had grown.
On August 9, 2018, Kristen met with Dr. Abdelhak, who diagnosed her as
a high-risk pregnancy and directed her to HUMC to have the cyst drained. The
procedure occurred the following day and Kristen was discharged the same day.
On September 6, 2018, Kristen went to HUMC with early labor symptoms
and decreased fetal movement. She was placed on a fetal monitor and observed
by Drs. Howell and Decker. Kristen alleged Dr. Abdelhak came to the hospital
1 HMH Hospitals Corporation did business as HUMC and Hackensack Meridian Health, Inc. We refer to them collectively as "the Hospital defendants." The complaint also named HUMG, which later changed its name to Hackensack Meridian Health Medical Group-Specialty Care, P.C., and its affiliates, Meridian Health Medical Group and HMH Medical Group, whom we refer to collectively as "the Group defendants." 2 Because the parties share the same surname, we refer to them by first name where necessary. We intend no disrespect. A-3524-23 4 and conducted a vaginal examination. HUMC discharged her with preterm labor
precautions and directed her to follow-up with Dr. Abdelhak.
On September 8, 2018, Kristen returned to HUMC with abdominal pain
and decreased fetal movement. The fetal heart monitor showed no cardiac
activity, and an ultrasound confirmed loss of the baby. After inducing labor, Dr.
Abdelhak attempted a vaginal delivery of the baby, but had to internally re-
position the baby to effectuate the delivery.
After the delivery, Kristen remained in the operating room because she
suffered postpartum hemorrhaging. Following attempts to stop the bleeding,
surgeons performed a hysterectomy. Kristen received blood transfusions and
underwent additional surgeries while in an induced coma because the bleeding
continued. She remained hospitalized for several days, suffering from fevers,
abdominal pain, vaginal bleeding, blood clots, and hemorrhagic shock. Kristen
was discharged on September 24, 2018.
Kristen was re-hospitalized twice: first on October 13, 2018, due to
abdominal pain, vaginal bleeding, nausea, and vomiting; and again on April 26,
2019, for an umbilical hernia and gallbladder issues. Her attempts to preserve
her remaining eggs to have a child via surrogacy were unsuccessful.
A-3524-23 5 Plaintiffs' initial complaint was filed on June 17, 2020, and contained six
counts. Counts one through four alleged defendants were negligent in their care
of Kristen and their failure to properly inform her about her care as required by
the law, resulting in the death of their child and injuries to Kristen. Plaintiffs
claimed Dr. Abdelhak committed battery on Kristen and defendants' negligence
resulted in additional medical procedures, pain, and suffering. Kristen
preserved her claims against future defendants in count four of the complaint.
In count five, Drew alleged defendants' negligence caused him mental and
emotional distress. Drew alleged a loss of consortium in count six.
Dr. Abdelhak and MRO filed answers, separate defenses, and cross-claims
for contribution against the other named defendants. The Hospital and Group
defendants, Dr. Howell, and Kozlovsky, filed their answer, separate defenses,
and cross-claims for contribution against the other named defendants.
In November 2020, during the initial round of discovery, Dr. Abdelhak
and MRO answered form interrogatories. Dr. Abdelhak certified he "would
have discussed vaginal delivery [versus] a caesarian section during the course
of his treatment" of Kristen. He also certified there were no "known" reviews,
investigations, hearings, or reports regarding Kristen's treatment.
A-3524-23 6 In January 2021, plaintiffs served a request for supplemental
interrogatories on HUMC, requesting it identify or define what documents,
information, or communication it considered a part of the medical records; detail
any reviews, investigations, or reports prepared in connection with Kristen;
identify all personnel who provided care to her; and identify all types of software
used to store her records. Plaintiffs also served a notice to produce on HUMC,
requesting audit logs, swipe logs, communication records, heart monitor
recordings, applicable hospital department plans and policies from 2018,
electronic copies of Kristen's entire medical record, and electronic copies of all
billing and financial records.
In late January 2021, Dr. Abdelhak and MRO responded to the notice to
produce, stating all the information sought was included in Kristen's chart,
which had already been provided. In April 2021, plaintiffs moved to strike the
pleadings of the Hospital and Group defendants, and Dr. Howell for not
answering discovery.
In May 2021, plaintiffs served a notice to produce on all defendants,
requesting production of: any oral or written notes, recordings, or
correspondence regarding Kristen's treatment; any documents or reports relating
to incident reports, investigations, internal reviews, Patient Safety Act reviews,
A-3524-23 7 and morbidity and mortality (M&M) conferences;3 copies of all recorded
communications; and any privilege log detailing why specific documents were
withheld.
Dr. Howell answered the form interrogatories on May 20, 2021. She
certified she examined Kristen at HUMC on September 6, 2018, her "fetal
[status] was reassuring," and that Dr. Abdelhak also examined her on that date.
Upon discharge, Kristen was provided "pre-term labor precautions," including
to monitor fetal counts and return to the hospital if she experienced certain
symptoms. On September 8, 2018, Dr. Howell was asked to assist Dr. Abdelhak
"in the operating room after the patient was found to be in arm presentation [4]."
She said Dr. Abdelhak "effectuated the manual delivery after which, the patient
was noted to have hemorrhage," and she referenced her progress notes from
3 An M&M conference is a regular meeting in which healthcare professionals discuss complex or critical patient cases, particularly those involving complications, unexpected outcomes, or potential medical errors, to learn from these experiences, improve patient care and quality by identifying system-level issues, and prevent future occurrences. See Morbidity and mortality conference, Wikipedia, https://en.wikipedia.org/wiki/Morbidity_and_mortality_conference (last visited Mar. 4, 2025). 4 Arm presentation is where a baby's limb is the first part to emerge during childbirth. Neeta Timilsina et al., Fetus Papyraceous Disguised as Compound Presentation: A Case Report, 81 Annals of Med. & Surgery, Aug. 27, 2022, at 1. A-3524-23 8 September 9, 2018. Dr. Howell responded "none to my knowledge" as to
whether there were any reviews, investigations, meetings, or reports pertaining
to Kristen's care.
On June 8, 2021, the trial court dismissed Kozlovsky from the case
because she was not involved in Kristen's treatment. On June 17, 2021, the trial
court denied without prejudice plaintiffs' motion to strike the Hospital and
Group defendants' answers. The court ordered answers to the outstanding
discovery within thirty days, and cautioned there would be sanctions if plaintiffs
had to file another motion to obtain this discovery.
On July 20, 2021, HUMG answered plaintiffs' form interrogatories,
without providing substantive answers. This response was certified by Larry
Reznik, HUMG's Director of Practice Operations.
The same day the Hospital defendants answered plaintiffs' interrogatories
by generally referring to exchanged discovery, including Kristen's medical
records, as containing all relevant information. This response was certified by
Sharon Rakas, a paralegal for Hackensack Meridian Health, Inc.
HUMC also answered plaintiffs' supplemental interrogatories, and
certified "there was no review performed" relating to Kristen's treatment. It
declined to disclose what medical records software it used at the time because
A-3524-23 9 the request was overly broad and irrelevant. Rakas certified this response as
well.
On August 6, 2021, the trial court ordered Dr. Abdelhak to provide more
specific responses to plaintiffs' interrogatories. On October 22, 2021, the court
entered an order compelling the Hospital and Group defendants and Dr. Howell
to answer plaintiffs' notices to produce.
On November 5, 2021, HUMC answered plaintiffs' January 11 and May
11, 2021, notices to produce. HUMC also referred to the medical records
already submitted and stated it had already provided fetal monitoring strips. It
regarded any reviews or internal investigations as privileged and not subject to
disclosure. Although it considered the request for all communications vague
and overbroad, this information had already been submitted with the medical
records. HUMC objected to providing audit logs, swipe logs, hospital bylaws,
or the policies and procedures of certain departments, but represented it was in
the process of locating the applicable 2018 hospital policies and procedures.
On December 2, 2021, Kristen's attorney corresponded with counsel for
the Hospital and Group defendants and Dr. Howell, identifying what he
perceived as deficiencies in their discovery responses. On December 3, 2021,
the trial court issued an order compelling Dr. Abdelhak's deposition.
A-3524-23 10 On January 10, 2022, plaintiffs deposed Dr. Abdelhak. He testified he
had a post-operative visit with Kristen on October 6, 2018, but did not recall the
details. Dr. Abdelhak said there were weekly "grand rounds" meetings,5
comprised of department heads, attending physicians, residents, and students.
His attorney objected to disclosure of what was discussed during those meetings.
In March 2022, the parties stipulated to the dismissal of Dr. Decker and
Rutgers New Jersey Medical School and Rutgers Biomedical and Health
Sciences from the case. On March 23, 2022, the trial court directed the Hospital
and Group defendants and Dr. Howell to provide more specific answers and
responses to plaintiffs' interrogatories and notices to produce dated January 11
and May 11, 2021. HUMG provided more specific answers to plaintiffs'
interrogatories, including a list of providers and witnesses who treated Kristen
at HUMC. Reznik certified these responses.
On May 6, 2022, Dr. Abdelhak served a notice to produce on the Hospital
and Group defendants relating to the fetal autopsy. HUMC responded to this
request five days later by providing a pathology report but otherwise stated the
5 Like M&Ms, grand rounds meetings "are a methodology of medical education and inpatient care, consisting of presenting the medical problems and treatment of a particular patient to an audience consisting of doctors, pharmacists, residents, and medical students." Grand rounds, Wikipedia, https://en.wikipedia.org/wiki/Grand_rounds (last visited Mar. 4, 2025). A-3524-23 11 request should be directed to Rutgers New Jersey Medical School, where the
autopsy occurred.
On May 13, 2022, the trial court struck the Hospital and Group defendants
and Dr. Howell's answers without prejudice for not complying with discovery.
The court's order advised their pleadings would be stricken with prejudice if
they failed to provide the missing discovery within sixty days.
On May 25, 2022, HUMC answered plaintiffs' supplemental
interrogatories. These responses included a list of medical providers who
treated Kristen during her admissions on September 6 and 8, 2018. HUMC also
identified the various software systems used to store electronic data. It claimed
the reviews, investigations, and reports were privileged and confidential, and no
review was performed in this case. Both responses were certified by Rakas.
On June 5, 2022, the Hospital and Group defendants and Dr. Howell
answered plaintiffs' May 11, 2021, notice to produce. In addition to objecting
on grounds of overbreadth and privilege, they responded plaintiffs had already
received notes regarding Kristen's treatment by way of the HUMC medical
records. They were "not in possession of any documentation" responsive to any
internal review or investigation of Kristen's care and had no other
A-3524-23 12 communications about her treatment other than the non-privileged information
already provided.
On June 8, 2022, the Hospital defendants responded to plaintiffs'
supplemental interrogatories and certified there was no internal investigation,
review, or hearings regarding Kristen's care. On June 10, 2022, HUMC
submitted more specific responses to plaintiffs' January 11, 2021, notice to
produce. It provided audit logs for August 9 and September 6, 2018, and noted
plaintiffs already had the logs for September 8, 2018. HUMC certified there
were no swipe logs available and any communications relating to Kristen's care
were already provided. The 2018 bylaws were not available, and its policies
and procedures were proprietary information it could not produce absent a
protective order.
On June 24, 2022, the trial court granted the Hospital and Group
defendants' request for a protective order, prohibiting the use of the hospital's
"credentialing files" and its policies and procedures outside the litigation. In
turn, on June 28, 2022, the Hospital and Group defendants and Dr. Howell
provided plaintiffs with a CD redacted pursuant to the Patient Safety Act
containing the outstanding audit trail with privilege log.
A-3524-23 13 On July 6, 2022, plaintiffs served a request for supplemental
interrogatories and notice to produce on all defendants. On July 22, 2022, the
trial court entered an order: denying the Hospital and Group defendants' motion
to reinstate their answer; directing defendants to provide additional information
as requested in plaintiffs' interrogatories; and directing counsel to "engage in a
good faith effort to resolve" the additional discovery disputes relating to the
audit trail and other electronic data.
On September 12, 2022, HUMG answered plaintiffs' interrogatories,
certified by Reznik. The responses stated Dr. Howell treated Kristen on
September 6, 8, and 9, 2018, and referred to Dr. Howell's December 29, 2021
deposition, and HUMC's medical records. HUMG provided the same list of
treatment providers submitted by HUMC in its response to the uniform
interrogatories.
On September 19, 2022, HUMC answered plaintiffs' interrogatories,
providing limited substantive information. HUMC certified there was a review
regarding Kristen's care. Rakas certified the interrogatory answers.
The parties subsequently filed several motions, which are not a part of the
appellate record, that a different judge decided on November 3, 2022. That order
denied plaintiffs' request to: amend their complaint; add a count for fraudulent
A-3524-23 14 concealment; hold the Hospital and Group defendants in contempt; and dismiss
their answer. The motion judge also denied the Hospital and Group defendants'
motions for a protective order and to reinstate their answer. He directed:
defendants to produce certain discovery, including "Best Practice Advisories[,]"
"In-Basket" correspondence, and access audits; all parties to retain technical
experts to opine about the procedures and timeframe to produce the additional
discovery requests; defendants to comply with plaintiffs' additional discovery
requests; and the parties to produce Rakas and Reznik for deposition.
On November 16, 2022, Erin A. Bedell, Esq. withdrew as counsel for the
Group defendants and Dr. Howell. Marshall Dennehey, P.C. assumed
representation of those defendants. Bedell continued to represent the Hospital
defendants.
On November 15, 2022, plaintiffs deposed Rakas. She testified her
answers to the interrogatories on behalf of the Hospital defendants were
assembled by Maureen Mahoney, Esq., in-house counsel for the hospital. Rakas
said her July 20, 2021, responses to interrogatories were based on information
from "in-house counsel and defense counsel," and her own review of the medical
records. She did not know who manipulated the baby in utero or who delivered
the baby.
A-3524-23 15 Rakas testified counsel compiled the list of names of the witnesses
involved in Kristen's case and noted they were also listed in her medical records.
Those records included hospital records, radiology scans, and portions of an
audit log showing who accessed a particular medical record and when. Although
pathology scans would typically be included, the hospital did not have them at
the time. Plaintiffs requested fetal monitory system audit trails, but Rakas said
there were none. Rakas also spoke with Kristen's medical providers about her
case, but did not recall who, and said the communications were brief. She
testified there were no documents she knowingly withheld.
Rakas obtained the information for her responses from the following
sources: the risk management department and its head, Patricia Santaniello,
regarding any internal reviews or investigations and internal communications;
the information technology (IT) department for electronic medical records and
audit trails; the security department for access logs; the IT and labor and delivery
department for the heart monitoring information for Kristen and the baby; the
medical staff office for hospital bylaws; and labor and delivery personnel for
their policies and procedures. Santaniello was the source for her response that
there were no investigations or reviews regarding Kristen's case.
A-3524-23 16 On November 28, 2022, plaintiffs deposed Reznik. He testified he was
employed by Hackensack Meridian Health and served as the Vice President of
Physician Contracts for Physician Service Division. Reznik did not speak to
any HUMG employees and only conferred with Rakas in preparing the
interrogatory responses. The responses were pre-populated, and he checked
them off and signed them. He had no personal knowledge of the information
contained in the responses, engaged in no independent investigation or rev iew
of medical records, did not confirm the truthfulness of the responses, and
assumed Rakas or her department had "access to all the pertinent documentation
needed to answer" the interrogatories.
Plaintiffs moved to amend their complaint, compel discovery, and hold
defendants in contempt. On January 12, 2023, counsel for the Hospital and
Group defendants sent plaintiffs' lawyer a letter advising they had the following
documents in their possession: OB/GYN Department email dated September
20, 2018, with corresponding privilege log; OBGYN Department Internal
Review M&M, with corresponding privilege Log; and a OneLink6 Summary.
6 OneLink is an application, that can "create one single 'smart link[,]' which redirects users to the app or website that is native to their platform. The OneLink process also allows analytics and tracks where each . . . user[] came from and was directed to." OneLink, Business of Apps,
A-3524-23 17 These documents totaled fifty pages and included the coversheet and sign -in
sheet for the M&M meeting held on September 21, 2018, at which Dr. Howell
served as the preceptor, which was also attended by Dr. Abdelhak.
The Hospital and Group defendants subsequently moved for
reconsideration of the November 3, 2022 order compelling discovery. The
parties appeared in court on January 13, 2023. Plaintiffs' counsel argued the
recent discovery responses contradicted defendant's prior claims that there were
no reviews regarding Kristen's treatment. Counsel alleged defendants had
withheld discovery for years, their behavior was tantamount to criminal conduct,
and questioned to what extent defense counsel participated in suppressing this
information.
Bedell, who at the time was still representing the Hospital defendants,
denied any intentional wrongdoing. She learned of the new information on
December 22, 2022, and disclosed it within a month thereafter. The Hospital
defendants were doing their best to locate and provide discovery.
https://www.businessofapps.com/marketplace/onelink/ (last visited Mar. 4, 2025). A-3524-23 18 The motion judge expressed concern about the discovery dispute. He
directed the Hospital and Group defendants to comply with the outstanding
discovery requests relating to best practice advisories and audit trails.
Plaintiffs requested updated discovery from all defendants, including:
how and by whom counsel first became aware of the reviews and what
documents they were provided; the names of all attorneys and personnel who
participated in investigating and responding to discovery requests; the dates and
circumstances of how each party became aware of the "new" information
regarding the review; the actual sources of information for each defendants'
discovery responses; and information relating to Reznik and Rakas' au thority to
sign off on the discovery responses. On January 16, 2023, Bedell stated she
"became aware of the existence of a potential review on December 7, 2022, and
received the documents provided in the amendment on December 22, 2022."
On February 10, 2023, the motion judge entered an order granting
plaintiffs leave to file an amended complaint to include a count for fraudulent
concealment against Drs. Abdelhak and Howell, and the Hospital defendants.
He denied plaintiffs' request to add a fraudulent concealment count against the
Group defendants because they had limited involvement in Kristen's treatment
and were only involved in billing. The judge denied plaintiffs' requests to hold
A-3524-23 19 defendants in contempt and enter default judgment against them. He directed
defendants to comply with discovery.
On February 7, 2023, plaintiffs served 105 "Fraudulent Concealment
Interrogatories" on the Hospital and Group defendants seeking: detailed
information about who cared for Kristen during her admissions; a timeline of
her care and the internal review of her care; details regarding preservation of
records relating to Kristen's care; and information about who oversaw specific
discovery determinations. The Hospital defendants responded, and regarding
the Patient Safety Act review, stated the information was privileged and referred
to their March 9, 2023 answers to interrogatories and privilege log. The Hospital
defendants also asserted privilege regarding the information sought about
Kristen pursuant to the Health Care Quality and Improvement Act. They
referred to their January 12, 2023 answers to interrogatories , and the privilege
log regarding whether they: took any "professional review action" regarding
Kristen's treatment; held an M&M conference regarding her care; or engaged in
email correspondence about her treatment in September 2018.
On February 15, 2023, plaintiffs filed their first amended complaint,
adding a seventh count alleging the Hospital defendants and Drs. Abdelhak and
Howell "negligently and/or intentionally concealed, withheld, altered, or
A-3524-23 20 destroyed evidence relevant to the present litigation and the services provided
to [p]laintiffs." They alleged these defendants did not comply with their
discovery responsibilities and failed to: provide the full audit trails, Best
Practice Advisory Alerts, or In-Basket messages; identify or provide emails,
M&M conference, OneLink, Patient Safety Act, Self-Critical Analysis, Health
Care Quality Improvement, Peer Review and Improvement Act of 1982, and
Utilization Review Committee documents; "identify or provide the identity of
numerous individuals with knowledge of the subject matter of the present
matter"; "identify the sources of information" when responding to discovery
requests; and provide the complete audit trails related to Kristen's treatment at
HUMC. Plaintiffs alleged the "withheld information is critical to the litigation
. . . to demonstrate knowledge, access, question witnesses, question defendants,
and identify involved person(s)."
On February 17, 2023, the judge compelled Mahoney's deposition and
denied defendants' cross-motion for a protective order of that deposition. On
March 6, 2023, HUMG responded to plaintiffs' July 6, 2022 notice to produce,
which sought information about the contractual relationship between HUMG
and various individuals and companies.
A-3524-23 21 On March 20, 2023, plaintiffs deposed Santaniello. She was unaware of
any reviews conducted by HUMC regarding Kristen's care. Santaniello testified
that when a patient is hurt at HUMC, both the risk management team and the
"Quality and Patient Safety Department" would be notified, either via telephone
or through a "OneLink" report. She was aware there was a OneLink report
regarding Kristen, but as far as she could tell, there was no new information
added to the report after the fact.
Santaniello testified if a case was characterized as in "[a]nticipation of
litigation," then the risk management team would report it to HUMC's insurance
and legal department. A case would be flagged as a compensable event
depending on its severity, namely, whether it involved the failure to follow
policies and procedures, if the "standard of care was not met," or if "there were
variations on the care and process." Citing litigation privilege, Santaniello
declined to state whether Kristen's case was identified as in anticipation of
litigation case. At another point, she testified although her department had not
initially flagged the case, within a few months after Kristen's hospitalization it
had anticipated litigation on this case.
Santaniello stated the Quality and Safety Patient Department generally
conducted its own review of cases and notified her if there was a deviation in
A-3524-23 22 standard of care. She requested a review for Kristen's case, but it was not done.
The "Patient Safety Committee" also reviewed cases to determine whether they
required reporting under the Patient Safety Act, as required by the Department
of Health. Santaniello was part of this reviewing committee and testified it did
not review Kristen's case.
A separate committee conducted M&M reviews to determine whether the
department had met the standards of care for a particular case. As far as
Santaniello knew, the committee maintained no notes or minutes of their
meetings. She was not always notified of M&M reviews and did not know if
one occurred for Kristen.
Mahoney's deposition took place on March 21, 2023. She testified that if
a case involved litigation, HUMG would retain outside counsel for itself and its
physicians. When she was reviewing discovery requests in the summer of 2022,
a doctor informed her "that he thought there had been some sort of review [on
Kristen's case] and that was new information." Mahoney asked Rakas to follow
up with the obstetrics department. In the fall 2022, she confirmed there was a
quality review and an M&M review regarding Kristen's care. Consequently, the
Hospital defendants amended their answers to interrogatories and notified
plaintiffs of the newly discovered materials.
A-3524-23 23 Mahoney believed there was a "preliminary Patient Safety committee
review" of Kristen's case, but said there was no full review or investigation. She
also learned about this review in the fall 2022 and believed this information was
contained in the privilege log.
On May 15, 2023, plaintiffs re-deposed Dr. Abdelhak. He testified grand
rounds were HUMC's Department of OB/GYN's weekly educational meeting,
during which a speaker presented. Oftentimes, the grand rounds included an
M&M review, which was a "presentation of a case that had complications ." He
was present for the grand rounds in 2018, which included an M&M review of
Kristen's case. Dr. Abdelhak did not comment during this M&M meeting.
Dr. Abdelhak did not believe the M&M discussions were recorded or
documented. He did not recall any conversations about withholding the M&M
information from plaintiffs. When he certified in his interrogatories that no
reviews had occurred, he "understood the question to mean was there any[thing]
out of the norm, anything that was specific for [Kristen's] case." He did not
consider the grand rounds presentation related to internal review, but instead an
"educational case." Likewise, the emails about the grand rounds were not
documentation about the M&M, because they were limited to scheduling. Dr.
Abdelhak had "[n]o memory" of other emails about the M&M. He asked his
A-3524-23 24 staff to search for any emails relating to Kristen's treatment, but did not review
anything and did not know if there were any found. The doctor was unaware of
any other internal reviews, investigations, or meetings regarding Kristen's care.
On April 6, 2023, Connell Foley LLP substituted as counsel for the
Hospital defendants, replacing Bedell. That day, Drew's counsel issued a notice
for Bedell's deposition.
On April 17, 2023, the motion judge entered an order addressing various
discovery motions filed by the parties. He ordered: the deposition of Mark
Parrish, the Hospital defendants' Director of Clinical Information; the re -
deposition of Dr. Abdelhak; and an explanation from the Hospital defendants
detailing the reasoning behind their privilege log.
On April 19, 2023, the parties appeared in court to address motions filed
by the Hospital and Group defendants to seal their employees' depositions.
Kristen's counsel sought leave to file a motion to amend the complaint to add
more specificity to the fraudulent concealment claims and add a count for legal
fraud. On April 28, 2023, the motion judge denied the motion to seal the
depositions of Mahoney, Santaniello, and Rakas. He granted plaintiffs leave to
move to amend the complaint. Pursuant to the April 17, 2023 order, the Hospital
A-3524-23 25 defendants outlined their objections to plaintiffs' notice to produce an audit trail,
and submitted the privileged information for an in camera review.
On May 24, 2023, plaintiffs moved to file a second amended complaint,
to include a more detailed count seven against the Hospital defendants,
Abdelhak, and Howell, and an eighth count for "legal fraud" against the Hospital
and Group defendants, MRO, Drs. Abdelhak and Howell, Reznik, and Rakas.
The proposed second amended complaint alleged discovery disproved
defendants sworn assertions "that there were no reviews, investigations, and
hearings held regarding Kristen." Discovery revealed defendants engaged in
"[m]ultiple reviews" about what transpired with Kristen and the baby. This
included when Kristen was still hospitalized, namely by: the "Quality
Dep[artment]" during monitoring of Kristen's medical record during her August
and September 2018 admissions, and following her discharge; the risk
department in its review of her records during her September 2018 admission;
by Drs. Abdelhak and Howell and others at the September 21, 2018 M&M
review of Kristen's care; and the Hospital defendants' legal department during a
review of Kristen's medical records in September 2018.
Plaintiffs claimed defendants failed to preserve internal communications
relating to Kristen's care. They also claimed there were modifications to
A-3524-23 26 Kristen's medical records between 2020 and 2023, after the litigation
commenced. Defendants' late disclosures of witnesses who previously had not
been identified and the passage of time risked the spoliation of evidence held by
these potential witnesses.
On June 13, 2023, Drew served subpoenas for Bedell's deposition and the
production of documents. Bedell moved to quash the subpoenas. The Hospital
defendants also moved to quash them, or alternatively, for a protective order
barring the production of documents and Bedell's deposition.
On July 18, 2023, HUMG answered plaintiffs' request for admissions. Its
responses did not include many substantive disclosures.
On September 12, 2023, with consent of the parties, the judge appointed
a special discovery adjudicator (SDA) "for the purpose of addressing and
making recommendations to the court" about: identified pre-trial discovery
disputes, which had yet to be resolved; plaintiffs' application to depose Bedell;
and future pre-trial discovery disputes. The SDA was authorized to "make
findings of fact and conclusions of law with respect to the matters presented by
the parties," and "report the same to the [c]ourt as soon as practicable." The
parties were given fourteen days from the SDA's report to object or otherwise
the judge would deem the recommendations "adopted in full." The motion judge
A-3524-23 27 would review the SDA's findings of fact and rulings on questions of law de novo.
The SDA's rulings on procedural matters would be subject to an abuse of
discretion review standard. The initial appearance before the SDA occurred on
September 28, 2023, to address a schedule for the exchange and review of
certain evidence and scheduling of depositions of all individuals with knowledge
of Kristen's care.
On October 27, 2023, the Hospital defendants submitted supplemental
responses to plaintiffs' notice to produce, certified by Rakas. They again
asserted any documents relating to internal reviews or investigations were
privileged, and otherwise referred to previously submitted discovery responses
and privilege logs. The digital information sought was likewise privileged but
had been disclosed with Kristen's HUMC medical records and the audit trail
produced on March 14, 2023.
The discovery response also attached two certifications from Parrish, who
certified that "In-Basket Messages are a certain type of record that serve as a
communication tool for clinicians and staff and are not a substitute for
documentation in a patient's record." He stated these messages were routinely
purged every sixty days, and there were "no retrievable In-Basket messages"
relating to this matter. Parrish also estimated plaintiffs' request for Best Practice
A-3524-23 28 Advisories would take approximately thirteen hours to produce and would
"place a significant burden on [the hospital] and directly impact [his] ability to
perform vital functions for [the hospital]."
On October 31, 2023, the SDA entered an initial order outlining the agreed
upon discovery at the parties' conference with her. On November 14, 2023, the
Hospital defendants produced autopsy photographs of the baby, as directed in
the SDA's order. The Hospital defendants produced additional responses to
form and supplemental interrogatories on December 19, 2023.
On December 18, 2023, the SDA issued an oral decision denying Kristen's
motion to amend the complaint to add a legal fraud claim. The SDA
characterized plaintiffs' allegations of fraud as encompassing "discovery
disputes, including relevance and privilege issues," which was legally
insufficient to sustain this cause of action. Allowing fraud claims against Rakas
and Reznik merely for their certifications or deposition testimony would enable
a litigant to assert fraud every time an individual testified falsely or
incompletely. The SDA reasoned the better recourse was to seek sanctions or
try to undermine the adverse party's credibility at trial.
The SDA found plaintiffs could not sustain a fraud claim against the
Group defendants because the motion judge had previously precluded a
A-3524-23 29 fraudulent concealment claim against them and plaintiffs had not made any new
allegations against the Group defendants. The Group defendants had a different,
more limited role in Kristen's care and were not in possession of any of the
documents in dispute. The SDA denied the fraud claim against the Group
defendants for the same reasons the motion judge had denied the fraudulent
concealment claim against them.
The SDA concluded the information sought from Bedell was not relevant
to the fraudulent concealment claim because the missing evidence had been
produced through a less obtrusive means and the attorney-client and work
product privileges protected Bedell's communications with her former clients.
She quashed the subpoenas issued to Bedell and granted Bedell's and the
Hospital defendants' motion for a protective order.
Plaintiffs objected to the SDA's rulings. In January 2024, they moved to
file a new, second amended complaint, adding: a more detailed count seven for
fraudulent concealment and spoliation of evidence against the Hospital
defendants, and Drs. Abdelhak and Howell; a new count eight for fraudulent
concealment and spoliation against MRO, IO, Rakas, Reznik, and Mahoney; a
ninth count for legal fraud against the Hospital and Group defendants, MRO,
IO, Drs. Abdelhak and Howell, Rakas, Reznik, and Mahoney; and a tenth count
A-3524-23 30 for conspiracy against the Hospital and Group defendants, Rakas, Reznik, and
Mahoney. In addition to the facts and procedural history previously contained
in plaintiffs' proposed second amended complaint, they alleged defendants
engaged in subsequent legal misrepresentations involving their discovery
violations.
On January 25, 2024, Drew moved to enforce litigant's rights and compel
Bedell to appear for deposition and produce the documents he subpoenaed. In
the interim, there was a flurry of legal activity before the motion judge, our
court, the Supreme Court, and the Bergen Vicinage Presiding Judge of the Civil
Part, which we need not detail here. After these matters were addressed, the
motion judge adjudicated plaintiffs' motions regarding the proposed second
amended complaint and compelling discovery on June 5, 2024.
The judge credited the SDA's findings that none of the parties were
recalcitrant and that there was "significant progress" in the production of
discovery. He also accepted the SDA's finding there was no indication of the
spoliation of evidence.
Regarding the motion to amend, the judge acknowledged the Hospital
defendants' "initial lack of responsiveness," which is in part why he permitted
plaintiffs to add a fraudulent concealment count to the February 2023 complaint.
A-3524-23 31 However, he now viewed "this battle through a different lens," based on the
"current facts and circumstances" and found a lack of direct evidence the
Hospital defendants continued to be non-responsive to discovery, provided
inaccurate information, or conspired to deny them full access to discovery.
Instead, the judge attributed the ongoing delays to plaintiffs' litigiousness.
Although plaintiffs noted there was a missing pathology slide, there was
no indication it was intentionally destroyed or withheld, or any evidence the
slide was critical to Kristen's case. Plaintiffs failed to present "a scintilla of
evidence" that any inaccuracy in discovery was "due to some conspiracy about
[the Hospital defendants] and . . . Bedell to defraud . . . [p]laintiffs." The judge
concluded that allowing a claim for fraud based on inaccuracies in discovery
would lead to "legal chaos" and was contrary to the objective of our discovery
rules. Even though the judge had initially permitted plaintiffs to amend their
complaint to assert fraudulent concealment, the facts presently before him
showed "each element may now be called into question in light of compliance,
review, guidance, and direction of the [SDA] and production of significant
discovery."
A-3524-23 32 Because there was no direct evidence of impropriety, the judge concluded
the privilege claims applied and quashed the Bedell subpoenas and entered a
protective order. He denied the motion to file the second amended complaint.
I.
On appeal, plaintiffs argue the motion judge abrogated his responsibility
to review the facts and the law de novo, and instead deferred to the SDA's
findings in denying the motion to amend and quashing the Bedell subpoenas.
They claim the judge did not review the motion to amend liberally and instead
focused on what evidence plaintiffs had to prove fraudulent concealment, fraud,
and conspiracy.
Plaintiffs assert the decision to quash the Bedell subpoenas was based on
a misapplication of the facts and law. Bedell's testimony was relevant to the
fraudulent concealment claim, and rather than quashing the subpoena altogether,
the more appropriate course would have been to allow Bedell's deposition and
let defense counsel object based on privilege on a question-by-question basis.
Drew points out Bedell's deposition was permissible under the crime-fraud
exception. We address these arguments in turn.
A-3524-23 33 II.
Pursuant to Rule 4:41-3, an order appointing an SDA may "specify or limit
the . . . adjudicator's powers" as the trial court directs. However, "[s]ubject to
such specifications and limitations, the [SDA] . . . shall exercise the power to
regulate all proceedings in every hearing, to pass upon the admissibility of the
evidence and to do all acts necessary or proper for the efficient performance of
the duties directed by the order." Ibid. This includes requiring "the production
of testimonial and documentary evidence upon all matters within the scope of
the reference" and examining the parties and any witnesses under oath. Ibid.
Rule 4:41-5(a) states the SDA must submit a report with any findings of
fact and conclusions of law as required by the order of appointment. In non -
jury actions, the trial court "shall accept the [SDA's] findings of fact unless
contrary to the weight of evidence." R. 4:41-5(b). The court "may adopt the
report, modify or reject it in whole or in part, receive further evidence, or
recommit it with instructions." Ibid. In a jury action, the SDA's findings "are
admissible as evidence of the matters found," and may be introduced to the jury,
"subject to the ruling of the court upon objections to the report or the evidence."
R. 4:41-5(c).
A-3524-23 34 On appeal, we review an SDA's findings and conclusions of law under the
"ordinary standards of review, considering them in the same manner as we
would the findings and conclusions of a judge sitting as a finder of fact." State
v. Chun, 194 N.J. 54, 93 (2008). "We 'accept[] the fact findings of a special
[adjudicator] to the extent they are supported by "substantial credible evidence
in the record."'" Little v. Kia Motors Am., Inc., 242 N.J. 557, 593 (2020)
(alteration in original) (quoting State v. Cassidy, 235 N.J. 482, 491 (2018)).
However, we "owe no particular deference to the legal conclusions" of the SDA.
Chun, 194 N.J. at 93 (citing Manalapan Realty, L.P. v. Twp. Comm. of
Manalapan, 140 N.J. 366, 378 (1995)).
In performing a de novo review, a reviewing court "owe[s] no deference
to the interpretative analysis" of the original reviewing body, "except as [it] may
be persuaded by the reasoning of those courts." Morgan v. Sanford Brown Inst.,
225 N.J. 289, 303 (2016) (citing Atalese v. U.S. Legal Servs. Grp., L.P., 219
N.J. 430, 445-46 (2014)). Therefore, even in a de novo review, our courts may
"agree with and adopt the [s]pecial [adjudicator's] finding." State v. Olenowski,
255 N.J. 529, 587 (2023).
At the outset, we note the motion judge considered plaintiffs' May 2023
motion to amend the complaint as a discovery dispute to be resolved by the SDA.
A-3524-23 35 Notwithstanding the fact the motion to amend the complaint arose from the
parties' discovery issues, the order appointing the SDA did not authorize the
SDA to decide motions to amend the pleadings. This motion should have been
resolved by the motion judge in the first instance.
Regardless, this was harmless error because the SDA addressed the
proposed May 2023 second amended complaint. The judge addressed the new,
proposed January 2024 version of the second amended complaint, which
included different causes of action for fraudulent concealment and legal fraud,
and an additional claim of conspiracy. Although the judge spoke approvingly
of the SDA's role and her findings related to this motion, his findings
demonstrate he engaged in an independent review of the evidence, and the
parties' objections and legal arguments. We are satisfied the judge conducted a
de novo review.
III.
"We review a trial court's decision to grant or deny a motion to amend the
complaint for abuse of discretion." Grillo v. State, 469 N.J. Super. 267, 275
(App. Div. 2021) (quoting Port Liberte II Condo. Ass'n, Inc. v. New Liberty
Residential Urb. Renewal Co., 435 N.J. Super. 51, 62 (App. Div. 2014)). "An
abuse of discretion 'arises when a decision is made without a rational
A-3524-23 36 explanation, inexplicably departed from established policies, or rested on an
impermissible basis.'" Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440
N.J. Super. 378, 382 (App. Div. 2015) (quoting Flagg v. Essex Cnty. Prosecutor,
171 N.J. 561, 571 (2002)).
"Rule 4:9-1 requires that motions for leave to amend be granted liberally."
Kernan v. One Washington Park Urb. Renewal Assocs., 154 N.J. 437, 456
(1998) (citing Pressler & Verniero, Current N.J. Court Rules, cmt. on R. 4:9-1
(1998)). This is the case "even if the ultimate merits of the amendment are
uncertain." G&W, Inc. v. Borough of E. Rutherford, 280 N.J. Super. 507, 516
(App. Div. 1995) (citing City Check Cashing v. Nat'l State Bank, 244 N.J. Super.
304, 308-09 (App. Div. 1990)). A court must treat all the allegations in the
pleadings as true. Webb v. Witt, 379 N.J. Super. 18, 28 (App. Div. 2005).
"While motions for leave to amend pleadings are to be liberally granted,
they nonetheless are best left to the sound discretion of the trial court in light of
the factual situation existing at the time each motion is made." Fisher v. Yates,
270 N.J. Super. 458, 467 (App. Div. 1994) (citing R. 4:9-1). "That exercise of
discretion requires a two-step process: whether the non-moving party will be
prejudiced, and whether granting the amendment would nonetheless be futile."
Notte v. Merchs. Mut. Ins. Co., 185 N.J. 490, 501 (2006). A court may deny the
A-3524-23 37 application if "the newly asserted claim is not sustainable as a matter of law [,]"
as "there is no point to permitting the filing of an amended pleading when a
subsequent motion to dismiss must be granted." Ibid. (quoting Interchange State
Bank v. Rinaldi, 303 N.J. Super. 239, 256 (App. Div. 1997)). It may also
consider "the reason for the late filing," whether an amendment would "cause
undue delay of the trial," or whether it would "constitute an effort to avoid
another applicable rule of law." Bldg. Materials Corp. of Am. v. Allstate Ins.
Co., 424 N.J. Super. 448, 485 (App. Div. 2012) (citations omitted).
A.
"A misrepresentation amounting to actual legal fraud consists of a
material representation of a presently existing or past fact, made with knowledge
of its falsity and with the intention that the other party rely thereon, resulting in
reliance by that party to his detriment." Suarez v. E. Int'l Coll., 428 N.J. Super.
10, 28 (App. Div. 2012) (quoting Jewish Ctr. of Sussex Cnty. v. Whale, 86 N.J.
619, 624 (1981)). "[C]lear and convincing proof" is required to support
amendment of a complaint to add a claim of fraud. Fox v. Mercedes-Benz Credit
Corp., 281 N.J. Super. 476, 484 (App. Div. 1995).
There is little authority on whether the withholding of discovery
constitutes a cause of action for fraud. In Fox, the plaintiff sought to amend his
A-3524-23 38 complaint to include a cause of action for fraud based on "the intentional aspect
of withholding discovery." Ibid. We affirmed the denial of the motion to
amend, not because a discovery dispute cannot support a fraud claim, but there
was insufficient evidence to support the cause of action. Ibid.
Viviano v. CBS, Inc., 251 N.J. Super. 113, 122-23 (App. Div. 1991), also
involved causes of action including for fraudulent misrepresentation, fraudulent
concealment, and conspiracy based on the defendants' late production of
evidence. However, that case did not address the legal fraud claim and focused
only on the viability of the plaintiff's fraudulent concealment claim. Id. at 122.
In Jadlowski v. Owens-Corning Fiberglas Corp., 283 N.J. Super. 199, 217
(App. Div. 1995), we commented briefly on the defendant's misrepresentation
of evidence in the punitive damages phase of a toxic tort litigation. We held
"[o]ne way to prove plaintiff's claim of fraud was to show that the corporation
indeed had contrary information six years before the interrogatory answers were
rendered." Ibid. However, our discussion entailed whether the discovery
violations supported a greater punitive damages amount; not whether it
supported a fraud claim. Ibid.
Here, plaintiffs' fraud allegations were that defendants engaged in a
concerted effort to withhold information from them, frustrating their efforts to
A-3524-23 39 pursue the malpractice claim. The missing information included: who had
treated Kristen during her two hospital visits; what her scans showed during the
first visit; who delivered the baby; who ruptured Kristen's uterus, whether
defendants engaged in internal communications regarding her care after the fact;
and whether those communications included any information on these points.
Having considered the record, we conclude the motion judge properly
denied the motion to amend to include a fraud claim. The judge correctly found
the claim was not sustainable as a matter of law. Notte, 185 N.J. at 501. There
was no showing defendants knew of the falsity of their representations to
plaintiffs when they produced or failed to produce discovery. Therefore, this
claim would be futile because it lacked an essential element.
B.
We reach a different conclusion regarding the fraudulent concealment
claim. The motion judge did not review the elements of fraudulent concealment.
Instead, he commented that while some of the elements may have been present,
they were now all "called into question." He also found plaintiffs were not
damaged because the discovery they sought was ultimately produced. We part
ways with these findings.
A-3524-23 40 While the elements of fraudulent concealment and legal fraud overlap,
fraudulent concealment is a cause of action specifically premised on the
withholding of evidence. Rosenblit v. Zimmerman, 166 N.J. 391, 406-07
(2001); Viviano, 251 N.J. Super. at 129-30. To prevail on a fraudulent
concealment claim, a plaintiff must demonstrate:
(1) That defendant in the fraudulent concealment action had a legal obligation to disclose evidence in connection with an existing or pending litigation;
(2) That the evidence was material to the litigation;
(3) That plaintiff could not reasonably have obtained access to the evidence from another source;
(4) That defendant intentionally withheld, altered or destroyed the evidence with purpose to disrupt the litigation;
(5) That plaintiff was damaged in the underlying action by having to rely on an evidential record that did not contain the evidence defendant concealed.
[Rosenblit, 166 N.J. at 406-07.]
If these elements exist, then a plaintiff may "invoke[]" a fraudulent concealment
claim "as a remedy for spoliation." Id. at 407.
In Rosenblit, our Supreme Court addressed fraudulent concealment in the
context of spoliation; "the hiding or destroying of litigation evidence, generally
by an adverse party." Id. at 400-01 (citing Bart S. Wilhoit, Cmt, Spoliation of
A-3524-23 41 Evidence: The Viability of Four Emerging Torts, 46 UCLA L. Rev. 631, 633
(1998)). The Court held that included among other remedies for spoliation, was
permitting amendment of the complaint, or filing a separate cause of action, for
fraudulent concealment. Id. at 401-03.
As we noted, plaintiffs had already been permitted to amend their
complaint to include a fraudulent concealment claim against Drs. Abdelhak and
Howell and the Hospital defendants. We discern no prejudice to permitting them
to amend to include MRO, IO, Rakas, and Mahoney, all of whom are affiliated
with those original defendants.
Plaintiffs pled sufficient facts to support the first three factors for a
fraudulent concealment claim. Indeed, there is no dispute defendants had an
obligation to answer discovery. There is no credible dispute the information
plaintiffs sought was material and defendants were the only source from which
to obtain it.
As for the fourth factor, although defendants' intentions regarding why
they withheld the information may ultimately be proven to be for innocent or
valid business purposes, we must at the pleadings stage view plaintiffs' claims
with liberality and take them as true. The strongest support for this factor of the
fraudulent concealment claim is defendants' denials that there were any reviews
A-3524-23 42 involving Kristen's care only to have the Hospital defendants' subsequent
discovery disclose there was an M&M review. There is no dispute both Drs.
Abdelhak and Howell were present at the M&M review, and other employees of
both MRO and HUMC were present or notified about the meeting. Dr. Abdelhak
claimed he did not consider the M&M an internal review since it was part of a
more routine grand rounds meeting; the other defendants have not explained this
omission.
Mahoney later stated there was some form of "quality review" and a
"preliminary Patient Safety Committee review" regarding Kristen's treatment,
although Santaniello denied either of those reviews occurred. To compound
this, while Mahoney learned of the M&M review in the Summer of 2022, in
subsequent discovery responses—HUMC's September 2022 answers to
interrogatories and Rakas's November 2022 deposition—the Hospital
defendants continued to deny that any such review had occurred. Aside from
the failure to disclose the M&M, plaintiffs' second amended complaint alleged
the OneLink records they received listed numerous witnesses who previously
had not been disclosed by defendants.
Whether these facts evidence innocence in the form of poor record
keeping and faulty memories or intentionality is a factual dispute, which cannot
A-3524-23 43 be determined at this juncture. It is enough for us to conclude the allegations
are sufficient and that, if proven true, they would support the fourth factor of
plaintiffs' claim of fraudulent concealment.
The fifth fraudulent concealment factor was also sufficiently pled because
the withholding of the aforementioned information damaged plaintiffs' ability to
proceed with their case. We juxtapose two cases to demonstrate the point.
In Viviano, the plaintiff suffered a workplace injury related to defective
machinery and filed suit against her employer and the manufacturer of the
machinery. 251 N.J. Super. at 118-19. Her suit against her employer was
dismissed, and while her personal injury products liability suit against the
manufacturer was still pending, she discovered her employer possessed a
memorandum identifying the defect that had caused her injury. Id. at 118-19.
She then filed a separate suit against her employer and the other defendants for
fraudulent concealment. Id. at 118-21. While she ultimately settled the products
liability personal injury lawsuit against the machine manufacturer, she
maintained her fraudulent concealment suit, arguing her employer's late
disclosure of evidence delayed her eventual settlement with the manufacturer.
Ibid. She was successful in this suit, and the jury awarded her damages,
including for lost interest from the delayed settlement. Id. at 129-30.
A-3524-23 44 In contrast, in Rosenblit, 166 N.J. at 411, the Court determined the
plaintiff could not sustain a separate action for fraudulent concealment because
while the defendant attempted to alter or withhold her medical records, plaintiff
had obtained the unaltered records prior to trial. Therefore, neither an adverse
inference nor a fraudulent concealment charge was appropriate; rather, the
plaintiff could present "evidence of [the doctor's] misdeeds" to the jury. Ibid.
The central consideration of these rulings was how the withheld evidence
impacts a plaintiff's case. Here, that defendants ultimately located and produced
some evidence should not bar plaintiffs' ability to claim fraudulent concealment.
Plaintiffs' allegation that the years' long delay in disclosure damaged them,
including the potential loss of witnesses or fading witness memory, excessive
litigation costs, and emotional stress is plausible. Plaintiffs should have been
permitted to amend their complaint to include a count for fraudulent
concealment.
As we noted, the motion judge initially permitted plaintiffs to assert
claims of fraudulent concealment against Drs. Howell and Abdelhak, and the
Hospital defendants, but not HUMG given its limited involvement in Kristen's
treatment. Reznik certified the interrogatories on behalf of HUMG.
A-3524-23 45 The proposed January 2024 second amended complaint did not seek to
add the Group defendants to the fraudulent concealment claim. Moreover,
plaintiffs' allegations of withheld evidence do not implicate the Group
defendants. There is no suggestion the Group defendants knew or should have
known of the internal reviews or otherwise withheld evidence. No evidence
exists that Reznik, as an agent for the Group defendants, engaged in the acts of
fraudulent concealment alleged against the other defendants. It follows that
because Reznik's involvement in this litigation was limited to HUMG's
responses and HUMG has not been added as a defendant to the fraudulent
concealment claim, the fraudulent concealment claim does not apply to Reznik
as well because it would be futile.
Conversely, the fraudulent concealment claim applies to MRO and IO, as
Dr. Abdelhak's employer. MRO and IO were privy to at least the M&M, because
Dr. Abdelhak was present for that meeting, as were other physicians employed
by these entities.
The fraudulent concealment claim also applies to Rakas and Mahoney, as
the Hospital defendant's agents who responded to the interrogatories . The
record shows these defendants knew of the internal reviews and potentially
withheld this information from plaintiffs. Rakas and Mahoney were directly
A-3524-23 46 involved in discovery exchanges in which the existence of internal reviews and
investigations were misrepresented, including after the Hospital defendants
learned that such internal reviews had happened.
For these reasons, we reverse the order barring plaintiffs from amending
their complaint to assert additional facts regarding their existing count seven
against Drs. Abdelhak and Howell, and the Hospital. We also reverse the ruling
barring the addition of an eighth count for fraudulent concealment against MRO,
IO, Rakas, and Mahoney.
C.
Our Supreme court has defined civil conspiracy as
a combination of two or more persons acting in concert to commit an unlawful act, or to commit a lawful act by unlawful means, the principal element of which is an agreement between the parties to inflict a wrong against or injury upon another, and an overt act that results in damage[s].
[Banco Popular N. Am. v. Gandi, 184 N.J. 161, 177 (2005) (quoting Morgan v. Union Cnty. Bd. of Chosen Freeholders, 268 N.J. Super. 337, 364 (App. Div. 1993)).]
The cause of action is premised on an "underlying wrong which, absent the
conspiracy, would give a right of action." Id. at 177-78.
A-3524-23 47 Plaintiffs alleged defendants, in concert, agreed to withhold evidence
relating to Kristen's treatment. The record does not support the claim that either
the Group defendants and their employees, or Drs. Abdelhak and Howell and
their employers acted in concert vis-à-vis each other, or the Hospital defendants
and their employees. For these reasons, the motion judge correctly concluded a
conspiracy claim could not be asserted against the Group defendants or their
employees, or Drs. Abdelhak and Howell, MRO, and IO.
However, the motion judge should have permitted plaintiffs to amend to
include a count for conspiracy against the Hospital defendants, Mahoney, and
Rakas. These defendants knew of the internal reviews and potentially withheld
this information from plaintiffs. Rakas and Mahoney were directly involved in
furnishing discovery related to whether there were internal reviews and
investigations. They could have conspired with the Hospital defendants to
withhold this information. Viewing plaintiffs' allegations through a liberal lens,
this was not a futile claim.
D.
To summarize, plaintiffs shall be permitted to amend their complaint to
assert fraudulent concealment claims against the Hospital defendants, Drs.
Abdelhak and Howell; MRO and IO; Rakas; and Mahoney. They shall also be
A-3524-23 48 permitted to amend to include conspiracy claims against the Hospital
defendants, Rakas, and Mahoney. The fraud claim against all defendants shall
remain dismissed.
IV.
Finally, we address the propriety of the Bedell subpoenas. We conclude
they were properly quashed.
Rule 4:10-2(a) states "[p]arties may obtain discovery regarding any
matter, not privileged, which is relevant to the subject matter involved in the
pending action." However, to obtain discovery of materials "prepared in
anticipation of litigation," the party seeking discovery must show that they have
a "substantial need of the materials in the preparation of the case and [are] unable
without undue hardship to obtain the substantial equivalent of the materials by
other means." R. 4:10-2(c).
"Rule 4:10-3 provides the means by which a person, including a party's
attorney who objects to a deposition, can obtain protection against improper
intrusion into the adversarial process by an improvidently issued deposition
subpoena." Kerr v. Able Sanitary & Env't Servs., Inc., 295 N.J. Super. 147, 155
(App. Div. 1996). The party opposing the subpoena may apply for a protective
order. R. 4:10-3.
A-3524-23 49 Although the burden is on the movant to show good cause for the
protective order, "in situations involving a request to depose an opposing party's
attorney, there are good reasons for shifting the burden to the proponent of the
deposition to demonstrate the propriety and need for the deposition." Kerr, 295
N.J. at 155-56. The proponent must thus demonstrate the "propriety and need
for the deposition outweigh the possible disruptive or burdensome effects that
the prospective deposition will have on the underlying litigation." Id. at 158.
In assessing the propriety and need for the deposition, courts should consider:
(1) the relative quality of the information purportedly in the attorney's knowledge, and the extent to which the proponent of the deposition can demonstrate the attorney possesses such information; (2) the availability of the information from other sources that are less intrusive into the adversarial process, i.e., the extent to which all other reasonable alternatives have been pursued to no avail; (3) the extent to which the deposition may invade work product immunity or attorney-client privilege; and (4) the possible harm to the party's representational rights by its attorney if called upon to give deposition testimony, i.e., the extent to which the deposition will affect attorney preparation or participation on behalf of the client. Consideration of these or any other relevant factors, either singly or in combination, will determine in a particular case whether the party seeking the deposition of opposing counsel has overcome the presumptive "good cause" for the protective order. If such showing is not made, a protective order should issue.
[Id. at 159.]
A-3524-23 50 A trial court's ruling on what is discoverable is entitled to deference.
Payton v. N.J. Tpk. Auth., 148 N.J. 524, 559 (1997). We will not reverse unless
it "abused its discretion or its determination is based on a mistaken
understanding of the applicable law." Platkin v. Smith & Wesson Sales Co.,
Inc., 474 N.J. Super. 476, 489 (App. Div. 2023) (citing In re Subpoena Duces
Tecum on Custodian of Recs., 214 N.J. 147, 163 (2013)).
The motion judge did not abuse his discretion. Plaintiffs did not
demonstrate Bedell was in possession of information relevant to their fraudulent
concealment claims and there were no other, less intrusive sources from which
to obtain this information. Bedell represented she had no knowledge of the
internal reviews and investigations until December 2023, and that she promptly
disclosed it to counsel in January 2024. There is no suggestion her
representation was false.
Plaintiffs had a less intrusive source for the information, namely,
Mahoney and Rakas. Plaintiffs deposed Mahoney and Rakas in March 2023,
after learning of the internal reviews, and nothing in those depositions pointed
to Bedell's involvement in, or her first-hand knowledge of, the alleged
fraudulent concealment or conspiracy to warrant intrusion into the attorney-
client relationship or overcoming the presumption for a protective order.
A-3524-23 51 N.J.R.E. 504(2)(a) states the attorney-client privilege "shall not extend . . .
to a communication in the course of legal service or obtained in aid of the
commission of a crime or a fraud." "The party seeking to overcome the privilege
and obtain access to the communication must make a prima facie showing of
fraud or crime, and the prima facie showing must be made by evidence other
than the contested communication itself." Ocean Spray Cranberries, Inc. v. Holt
Cargo Sys., Inc., 345 N.J. Super. 515, 523 (Law Div. 2000).
Although we reversed the motion judge's ruling as to the fraudulent
concealment regarding the Hospital defendants, there is no evidence Bedell
assisted the Hospital or Group defendants in perpetrating this alleged conduct to
warrant the invocation of the crime-fraud exception. For these reasons, we
reject Drew's argument this was grounds to permit the Bedell subpoenas to
proceed.
Affirmed in part and reversed in part. We do not retain jurisdiction.
A-3524-23 52
Related
Cite This Page — Counsel Stack
Kristen Dondero v. Yaakov Abdelhak, M.D., Counsel Stack Legal Research, https://law.counselstack.com/opinion/kristen-dondero-v-yaakov-abdelhak-md-njsuperctappdiv-2025.