NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-5923-13T2
SEOUNG OUK CHO, deceased, by his administrator, YUNJIN JO, YUNJIN JO, APPROVED FOR PUBLICATION YOUNG HO JO, and HANNAH CUI, December 30, 2015 Plaintiffs-Appellants, APPELLATE DIVISION v.
TRINITAS REGIONAL MEDICAL CENTER and NJ HEART,
Defendants,
and
JOHN HAN SHAO, M.D., GARDEN STATE CARDIOVASCULAR SPECIALISTS, EDWARD G. WILLIAMS, M.D., and HYEUN PARK, M.D.,
Defendants-Respondents. ________________________________________________________________
Argued November 17, 2015 – Decided December 30, 2015
Before Judges Fisher, Espinosa and Rothstadt.
On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L- 104-11.
Michael S. Kimm argued the cause for appellants (Kimm Law Firm, attorneys; Mr. Kimm and Sung H. Jang, on the briefs).
Jason M. Altschul argued the cause for respondents John Han Shao, M.D. and Garden State Cardiovascular Specialists (Krompier & Tamn, L.L.C., attorneys; Richard J. Tamn, of counsel and on the brief; Mr. Altschul, on the brief).
Brion D. McGlinn argued the cause for respondent Edward G. Williams, M.D. (Ruprecht Hart Weeks & Ricciardulli, LLP, attorneys; David Parker Weeks, of counsel and on the brief; Mr. McGlinn, on the brief).
Gary L. Riveles argued the cause for respondent Hyeun Park, M.D. (Dughi, Hewit & Domalewski, attorneys; Mr. Riveles, on the brief).
The opinion of the court was delivered by
ESPINOSA, J.A.D.
In Klier v. Sordoni Skanska Construction Co., 337 N.J.
Super. 76 (App. Div. 2001), we held the plaintiffs were denied
due process of law when a trial court sua sponte conducted a
summary procedure on the day of trial and dismissed their
complaint. This medical malpractice case presents an
unfortunately more common variation of the scenario in which a
litigant's case is dismissed on the day of trial. Although
labeled a "motion in limine," the motions filed by defendant
Hyeun Park, M.D., on the day before jury selection sought the
dismissal of the complaint in its entirety, an admitted
violation of the rule governing summary judgment motions. We
now hold that the trial court's consideration of these motions
2 A-5923-13T2 and dismissal of the complaint against Park deprived plaintiffs
of their right to due process of law.
I.
Defendant Park was decedent Seoung Ouk Cho's primary care
cardiologist. On April 23, 2009, he examined Cho at NJ Heart
and admitted him to Trinitas Regional Medical Center because Cho
complained of chest pain and had an abnormal electrocardiogram
(EKG). Defendant John H. Shao, M.D., of Garden State
Cardiovascular Specialists, performed a heart catheterization
and an angioplasty (stent). On June 25, 2009, Shao performed a
second stenting procedure at Trinitas. On July 16, 2009, Cho
complained to Park that he "was feeling a little bit worse."
Park performed an EKG, which was normal, and referred Cho for a
thallium stress test at Trinitas.
On July 21, 2009, defendant Edward G. Williams, M.D.,
administered a stress test to Cho at Trinitas. Williams was not
involved in scheduling the test, had never met Cho before and
did not have any prior knowledge of Cho's medical history or
current condition. Williams terminated the stress test after
approximately six minutes, when Cho's EKG changed and he
indicated he was experiencing chest pain. Williams immediately
administered nitroglycerin spray; Cho's chest pain dissipated.
3 A-5923-13T2 Williams reached out for Shao. He explained the results of
the stress test to a covering physician, who admitted Cho to
Trinitas, approximately one hour after Williams terminated the
stress test. Williams did not have any further interaction with
Cho. On July 23, 2009, while waiting for a scheduled cardiac
catheterization, Cho suffered a fatal cardiac arrest.
Plaintiffs are Cho's siblings, Yunjin Jo (Yunjin),1
individually and in her capacity as administrator of his estate,
and Young Ho Jo, and Cho's fiancée, Hannah Cui. Their complaint
alleged wrongful death, medical negligence and breach of
contract for medical services. As for the injury suffered,
plaintiffs alleged they "lost their loved one; have suffered
loss of society and consortium; and have lost other rights in
relation to plaintiff Cho." Their answers to interrogatories
identified plaintiffs' claim for economic damages as follows:
"Plaintiff-decedent has lost at least $50,000.00 per year for at
least 32 years as plaintiff-decent [sic] would have owned and
operated his own business at least until age 70." In her
deposition, Yunjin testified she incurred approximately $10,000
in funeral expenses for Cho. No documentation was provided to
corroborate this expense or plaintiffs' claims that Cho had his
1 To avoid confusion, we refer to Cho's sister by her first name.
4 A-5923-13T2 own business, earned any amount of income or provided any
financial support to any of the plaintiffs.
Over the course of approximately two years, defendants
filed summary judgment motions that resulted in the dismissal of
all of plaintiffs' complaint2 except for the claims against Park.
In November 2011, the claims against Trinitas were
dismissed on the ground that plaintiffs failed to comply with
the Affidavit of Merit statute, N.J.S.A. 2A:53A-27 to -29.
In March 2012, defendants Park, Garden State and Shao were
granted partial summary judgment, dismissing Cui's claims with
prejudice on the ground that, as Cho's fiancée she was not
entitled to any recovery under the Wrongful Death Act, N.J.S.A.
2A:31-1 to -6. The trial court also granted summary judgment to
Shao and Garden State based upon plaintiffs' failure to produce
an expert report that identified how Shao and Garden State
deviated from the accepted standard of care.
2 In Points II, III, IV and V of their appeal, plaintiffs argue that the trial court erred in dismissing the claims against the other defendants, barring Frankenfeld's testimony, dismissing Cui's claims, and further argue that the trial court erred in failing to require defendants to produce records of payments they received from Cho for medical services. After reviewing these arguments in light of the record and applicable legal principles, we conclude they lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
5 A-5923-13T2 In July 2012, the claims against Williams were dismissed on
the ground that plaintiffs failed to show his alleged negligence
proximately caused Cho's death.
In August 2013, the trial court granted Park's motion to
exclude the testimony of plaintiffs' economic expert on the
ground that his opinion constituted a net opinion. Plaintiffs
filed a motion for leave to appeal this order, which was denied
by this court. Thereafter, plaintiffs filed a motion for leave
to appeal with the Supreme Court, which denied the motion on
December 18, 2013.
In sum, as of August 2013, summary judgment had been
granted dismissing the complaint against all defendants other
than Park. All claims asserted by Cho's fiancée under the
Wrongful Death Act had been dismissed with prejudice. As a
result of the order barring Frankenfeld's expert opinion,
plaintiffs lacked expert testimony to support their claims that
they suffered the loss of economic support from Cho. As of
December 18, 2013, no requests for appellate review were
pending.
II.
The matter was listed for trial on Monday, March 31, 2014.
This was the second trial date, coming four weeks after the
first trial call before the presiding judge. Addressing the
6 A-5923-13T2 parties, the trial judge noted neither the plaintiffs nor
defendant Park wanted to pick a jury that day and stated she
understood the parties had "in limine motions" to be heard. She
announced a jury would be selected "first thing Wednesday
morning," followed by opening statements on Wednesday afternoon.
She directed plaintiffs' counsel to bring all exhibits for
marking before 9:00 a.m. Park's counsel confirmed he had no
issue with any of the exhibits. The court reviewed the order of
witnesses and that the defense expert would testify before
plaintiffs' expert.
When the trial judge turned to address defendant Park's
motions, defense counsel was not prepared to argue any in limine
motions. He stated,
Judge, I, I did point out in chambers that I may have a motion on Wednesday, and that is to dismiss. I'm still mulling it over, because I don't know what damages are left in this case.
As I said, the Complaint does not reference a survival cause of action. [N.J.S.A.] 2A:15-3 is not pled even remotely in the Complaint. And as it relates to income loss, that's gone. So, all that's left is companionship advice and Counsel. And that was not referenced [in] the Answers to Interrogatories. So, I have an Associate working on that for me right now.
[(Emphasis added).]
7 A-5923-13T2 After further discussion, the trial judge stated she would
like to "have some time to reflect on [the motion]" and asked to
have the motion filed and served by the following day.
Plaintiffs' counsel was not asked for his consent to this
procedure and did not pose an objection. The court then
proceeded to address plaintiffs' in limine motions.
Park's motion papers were filed on the following day, April
1, 2013. In a sixteen-page brief, Park argued that plaintiffs'
wrongful death claim should be dismissed with prejudice because
their proofs of economic loss were "too speculative to present
to a jury," that the claim for punitive damages should be
dismissed with prejudice, and that plaintiffs should be barred
from presenting any evidence of pain and suffering by Cho
because no survival claim had been pleaded. Finally, Park
argued that if the requested relief were granted, no viable
claim remained and the complaint should be dismissed in its
entirety with prejudice.
With exhibits, Park's submission was 260 pages long.
Although there were some citations to the record included in the
brief, the moving papers did not include a statement of material
facts or otherwise conform to the requirements of Rule 4:46-
2(a).
8 A-5923-13T2 Plaintiffs' five-page opposition was filed and served by
email on the same day, within hours of Park's filing.
Plaintiffs cited N.J.S.A. 2A:31-5, which authorizes the jury to
award
such damages as they shall deem fair and just with reference to the pecuniary injuries resulting from such death, together with the hospital, medical and funeral expenses incurred for the deceased, to the persons entitled to any intestate personal property of the decedent.
Plaintiffs noted that in addition to her contention that
she anticipated financial support from Cho, Yunjin testified she
paid approximately $10,000 in funeral expenses. They argued
further that the complaint could be fairly read to allege a
survival action because Cho's sister, brother and fiancée were
named as individual parties.
On the following day, the trial judge expressed her
reluctance to consider the motion:
I received an email yesterday; I would say mid to late morning . . . a purported motion in limine seeking to dismiss plaintiff's [sic] claim for punitive damages, wrongful death and preclude any reference to pain and suffering as a survival claim, as they have not been pled.
Now, some Judges, and I've asked them, would not even consider your motion, because it's not a motion in limine. I'm going to give you a chance to explain to me why I
9 A-5923-13T2 should even consider this, since this is something that could have been made as a motion for summary judgment, as a motion to dismiss, at any time during the — how many years has this case been pending?
After counsel responded that the matter had been pending
for three years, the court continued:
Three? Any time during those three years? Why am I getting it; as we have already come to trial, as — you know, if it hadn't been for your . . . engagement yesterday. . . . [w]e would be engaged in trial. I mean [the presiding judge] was less than pleased that I wasn't pulling a jury on Monday. So, why, why should I consider this now? It's not really a motion in limine.
When Park's counsel insisted "it is absolutely a motion in
limine," the judge responded, "it's a motion in limine only
because you brought it on the eve of trial." The explanation
Park's counsel gave for the delay in filing the motion was that
there were several appeals to the Appellate Division and the
Supreme Court, which deprived the trial court of jurisdiction.3
After hearing oral argument, the trial judge issued a
decision on the record, granting the motion and dismissing all
claims with prejudice. A motion for summary reconsideration was
denied and this appeal followed.
3 As we have noted, the Supreme Court denied plaintiffs' motion for leave to appeal from the order barring the testimony of their economic expert in December 2013. No other appellate activity was identified.
10 A-5923-13T2 In oral argument before this court, Park's counsel
presented a different reason for the untimely filing of the
motion to dismiss. He stated the motion was filed "at the last
minute" because the attorney who had filed Park's earlier motion
to bar the testimony of the economic expert had left the law
firm and trial counsel received the file to prepare for trial
just prior to the weekend before trial. Although he admitted
that the filing of the motions violated the Rules of Court,
counsel maintained he was entitled to file a motion to dismiss
the complaint at any time, even at trial. Counsel argued
further that the order dismissing the complaint against Park
should be affirmed because the complaint lacked merit.
III.
Our Rules of Court provide explicit requirements for the
timing of summary judgment motions, what must be presented in
support of and in opposition to such motions, and the standard
for deciding them. R. 4:46-1, -2. There are, however, no rules
that explicitly address motions in limine.
The term "in limine" is taken from the Latin phrase, "at
the outset." Black's Law Dictionary 791 (9th ed. 2009). The
absence of any rule addressing what may properly be considered
as a preliminary matter before trial commences has permitted the
timing of the motion, rather than its subject matter, to pass
11 A-5923-13T2 for a definition. However, whether a motion is correctly termed
a motion in limine is not dictated by the fact it is brought
literally on the threshold of trial. Black's defines a motion
in limine as "[a] pretrial request that certain inadmissible
evidence not be referred to or offered at trial." Id. at 1109.4
Thus, it is anticipated that, as a general rule, a motion in
limine will not have a dispositive impact on a litigant's entire
case.
Even when a limited issue is presented, "[o]ur courts
generally disfavor in limine rulings on evidence questions,"
because the trial provides a superior context for the
consideration of such issues. State v. Cordero, 438 N.J. Super.
472, 484-85 (App. Div. 2014), certif. denied, 221 N.J. 287
(2015). Although a trial judge "retains the discretion, in
appropriate cases, to rule on the admissibility of evidence pre-
trial," id. at 484, we have cautioned that "[r]equests for such
rulings should be granted only sparingly." Ibid. (quoting
Bellardini v. Krikorian, 222 N.J. Super. 457, 464 (App. Div.
1988); see also Biunno, Weissbard & Zegas, Current N.J. Rules of
Evidence, comment 1 on N.J.R.E. 105 (2015). This is
particularly true when the "motion in limine" seeks the
4 Arguably, defendant's motion to exclude evidence of Cho's pain and suffering because no survival claim had been pleaded, would fall within this description.
12 A-5923-13T2 exclusion of an expert's testimony, an objective that has the
concomitant effect of rendering a plaintiff's claim futile. See
Bellardini, supra, 222 N.J. Super. at 463-64.
The fact that this misuse of the motion in limine occurs
sufficiently often to win our notice, despite our repeated
cautions against such practice, leads us to conclude it
necessary to state clearly what a motion in limine is not. It
is not a summary judgment motion that happens to be filed on the
eve of trial. When granting a motion will result in the
dismissal of a plaintiff's case or the suppression of a
defendant's defenses, the motion is subject to Rule 4:46, the
rule that governs summary judgment motions.
Rule 4:46-1 states, "[a]ll motions for summary judgment
shall be returnable no later than 30 days before the scheduled
trial date, unless the court otherwise orders for good cause
shown." In our view, the "unless otherwise ordered" language
contemplates scheduling by the court, prior to trial, either sua
sponte or upon a showing of good cause by the movant. However,
even if the good-cause standard applies here,5 defendant failed
5 Although we need not reach this issue on the facts before us, it would not be unreasonable to infer that defendant's request to have his untimely motion entertained at trial should be subject to an "extraordinary circumstances" standard. See Klier, supra, 337 N.J. Super. at 85 (suggesting a summary (continued)
13 A-5923-13T2 to make a sufficient showing to justify consideration of his
untimely motion.
Using language similar to Rule 4:46-1, Rule 4:24-2
identifies motions that must be made returnable before the
expiration of the discovery period "unless on notice and motion,
for good cause shown, the court otherwise permits." In Carbis
Sales, Inc. v. Eisenberg, 397 N.J. Super. 64, 80-82 (App. Div.
2007) (emphasis added), we found the trial court did not abuse
its discretion in denying a motion made at trial, and "grossly
out of time," to compel discovery of a document where the moving
party had knowledge of the document, failed to file a timely
motion and offered no explanation for such failure.
Here, too, the documents relied upon by Park to support his
motions were available for review long before the time in which
to file a summary judgment motion expired. Defendant's stated
reason that the court had lacked jurisdiction to entertain the
motion fails to establish good cause in light of the fact that
appellate proceedings concluded more than three months before
the trial date and did not preclude the filing of a timely
motion. Similarly, the unexceptional departure of an associate
falls short of establishing good cause.
(continued) dismissal at trial may be an appropriate exercise of discretion when the situation is "truly emergent" or "extraordinary").
14 A-5923-13T2 We also find no basis for the application of Rule 1:1-2,
which generally permits the relaxation of a rule "if adherence
to it would result in an injustice." "Rule 1:1-2 is the
exception, rather than the norm," Romagnola v. Gillespie, Inc.,
194 N.J. 596, 604 (2008) (quoting State v. Williams, 184 N.J.
432, 442 (2005)), and "should be sparingly resorted to,
particularly when a reasonable interpretation of the complex of
directly applicable rules meets the problem at hand." Pressler
and Verniero, Current N.J. Court Rules, comment 2 on R. 1:1-2
(2016); Romagnola, supra, 194 N.J. at 604; Bender v. Adelson,
187 N.J. 411, 431 (2006). The "problem at hand" is the
appropriate timing of dispositive motions. Rule 4:46 meets that
problem, recognizing the "obvious" desirability of deciding such
motions prior to trial and establishing requirements to
accomplish that goal. Pressler & Verniero, supra, comment on R.
4:46-1.
It is, therefore, clear that the Rules of Court offer no
legitimate path for the consideration of defendant's motions on
the day before jury selection. We therefore turn to the
question whether the dismissal of the complaint based upon these
motions deprived plaintiffs of due process of law.
15 A-5923-13T2 IV.
"Fundamentally, due process requires an opportunity to be
heard at a meaningful time and in a meaningful manner." Doe v.
Poritz, 142 N.J. 1, 106 (1995); see Pelullo v. State, Comm'n of
Investigation, 294 N.J. Super. 336, 345 (App. Div. 1996),
certif. denied, 149 N.J. 35 (1997). "[W]hile the concepts of
'judicial administration' and fairness are not necessarily
incompatible, the desire to facilitate judicial administration
must take a back seat to our primary goal which is to adjudicate
cases fairly and impartially." Klier, supra, 337 N.J. Super. at
83. "Our rules of court must be 'construed to secure a just
determination, simplicity in procedure, fairness in
administration and the elimination of unjustifiable expense and
delay.'" Ibid. (quoting R. 1:1-2).
The summary judgment rules have been amended over the years
to ensure those goals are realized. Prior to the amendment that
became effective January 1986, the timing of summary judgment
motions was subject to Rule 1:6-3. Pressler & Verniero, supra,
History and Analysis of Rule Amendments to R. 4:46-1 (Gann
Online Edition). The impetus for the amendment was the
recognition it was "patently unfair to apply the time frames of
R. 1:6-3(a), which give the respondent only 8 days in which to
file and serve the response" when the movant was free from any
16 A-5923-13T2 time constraints. Pressler & Verniero, supra, comment on R.
4:46-1 (emphasis added). To remedy this, the amendment afforded
the respondent "approximately three weeks for response." Ibid.
The amendment also required summary judgment motions be
"returnable no later than 30 days before trial" to implement the
goal of resolving dispositive motions prior to trial. Ibid.
Trial judges were encouraged to decide summary judgment motions
on a more timely basis by providing that adjournment requests be
"liberally granted" if the "disposition is not [communicated] at
least 10 days prior to the scheduled trial date." Ibid. This
change was made "[i]n recognition of counsel's need to know the
disposition of the summary judgment motion in sufficient time to
prepare for trial if the motion is denied or only partially
granted." Ibid.
"Due process is not a fixed concept . . . but a flexible
one that depends on the particular circumstances." Doe, supra,
142 N.J. at 106. Therefore, we do not hold that the summary
judgment rules establish rigid requirements that must be met in
every case for due process demands to be satisfied. Still, the
time requirements for the filing and decision of summary
judgment motions provide a useful background for assessing
whether plaintiffs had an opportunity to be heard at a
meaningful time and in a meaningful manner.
17 A-5923-13T2 In this case, the timing requirements of Rule 4:46-1 were
violated in every respect. Notice of the motion came not thirty
days before the trial date, but after the second trial date.
Plaintiffs had less than one day to file their response. This
was not only substantially less than the three weeks afforded
them by Rule 4:46-1; it was even less than the "patently unfair"
eight-day period in effect prior to the rule's amendment.
Finally, the decision here was rendered the day before jury
selection, presumably after plaintiffs had expended some effort
and expense to prepare for trial, rather than the ten days
before trial anticipated by the rule.6
In Klier, the trial court afforded plaintiffs' attorney two
days to produce his expert's report and argue against a motion
for dismissal. 337 N.J. Super. at 84. Observing the "obvious"
purpose of the summary judgment rules was "to afford the party
against whom relief is sought notice of the application,
together with a meaningful opportunity to respond," we concluded
that two days was insufficient to cure the deficiencies in the
6 The movant also failed to comply with the requirements of Rule 4:46-2(a), which are intended "to focus the parties' attention on the areas of actual dispute" and "significantly facilitate the court's review." Pressler and Verniero, supra, comment 1 on R. 4:46-2. This failure put both the trial judge and plaintiffs at an unnecessary disadvantage.
18 A-5923-13T2 plaintiffs' opportunity to respond. Id. at 84-85. Accordingly,
we held the plaintiffs had been deprived due process of law.
We reach the same conclusion here. Further, we utterly
reject the argument that the dismissal should be affirmed,
despite the violation of summary judgment rules, because
plaintiffs suffered no prejudice in the dismissal of claims that
lacked merit. The right to due process of law is not limited to
worthy causes. However, we note that, because we conclude that
these motions should not have been considered by the court, we
express no opinion as to the merits of the motions.
We are not insensitive to the pressures upon the court and
litigants that may make it appear reasonable to disregard the
requirements of the rules and sound the death knell to a
litigant's case on the day of trial. Lawyers burdened with
heavy caseloads may lack the heightened focus to identify
dispositive issues earlier. A litigant may be unable or
unwilling to acknowledge weaknesses in his or her case. Trial
judges may be sorely tempted to spare jurors the task of hearing
a cause that appears to lack merit and turn to the demands of an
unyielding calendar. Still, our commitment to the fair
administration of justice demands that we protect a litigant's
right to proceed to trial when he or she has not been afforded
the opportunity to respond to dispositive motions at a
19 A-5923-13T2 meaningful time and in a meaningful manner. We therefore hold
that, absent extraordinary circumstances or the opposing party's
consent, the consideration of an untimely summary judgment
motion at trial and resulting dismissal of a complaint deprives
a plaintiff of due process of law.
The order dismissing plaintiffs' complaint against
defendant Park is reversed. We remand the matter for
restoration to the trial calendar and leave further management
of the case to the discretion of the trial court.
20 A-5923-13T2