Thomas Mahalchick, Jr. v. Robert Wood Johnson University Hospital Rahway

• Court: New Jersey Superior Court Appellate Division
• Decided: November 15, 2024
• Docket: A-3356-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-3356-22

THOMAS MAHALCHICK, JR., both individually, as surviving beneficiary, and on behalf of the Estate of ROMAINE MAHALCHICK, and WILLIAM MAHALCHICK, individually as surviving beneficiary,

Plaintiffs-Appellants,

v.

ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL RAHWAY, ROBERT WOOD JOHNSON PHYSICIAN ENTERPRISE, MICHAEL CHEN, M.D., MICHAEL BERNSTEIN, M.D., ABHISHEK SHRIVASTAVA, M.D., KRISTEN ELEFTERHIOU, P.A., RINGLE BIJU, R.N., FARHAD KELIDDARI, M.D., ENVISION PHYSICIAN SERVICES, f/k/a EMERGENCY MEDICAL ASSOCIATES, ENVISION HEALTHCARE CORPORATION, EMCARE, INC., and VIRTUAL RADIOLOGIC CORPORATION, d/b/a VRAD, Defendants,

and

DANIEL WANG, M.D., HAROLD CHUNG-LOY, M.D., VINCENT MOSS, M.D., SCOTT S. CHAE, M.D., MICHAEL VOLPE, B.S.N., ROWENA CABRAL, R.N., ABIGAIL VERZERIS, B.S.N., ALEXANDER APOSTOL, R.N., and SURGICAL PRACTICES ASSOCIATES, P.A.,

Defendants-Respondents. _________________________________

Argued October 1, 2024 – Decided November 15, 2024

Before Judges Gilson, Bishop-Thompson, and Augostini.

On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-2121-18.

Daniel N. Epstein argued the cause for appellants (Epstein Ostrove, LLC, attorneys; Daniel N. Epstein, on the briefs).

Thomas J. Heavey argued the cause for respondents Harold Chung-Loy, M.D., Vincent Moss, M.D., and Surgical Practices Associates, P.A. (Grossman, Heavey & Halpin, PC, attorneys; Thomas J. Heavey, of counsel and on the brief; Brendan M. Ruckert, on the brief).

PER CURIAM

A-3356-22 2 In this medical malpractice case, plaintiffs Thomas Mahalchick, Jr. and

William Mahalchick, as surviving beneficiaries and on behalf of the estate of

their mother, Romaine Mahalchick, appeal from a judgment entered on May 25,

2023 in favor of defendant Harold Chung-Loy, M.D.

The issues on appeal involve whether the motion judge erred by denying

plaintiffs' motion to name a new expert witness, and by not reconsidering this

decision. Plaintiffs appeal two orders dated August 27, 2021, and November

12, 2021, memorializing these decisions, respectively. After our careful review

of the record and governing law, we affirm.

I.

We summarize the salient facts from the evidence adduced at trial and the

motion record. On June 12, 2016, Romaine Mahalchick, an eighty-one-year-old

woman with multiple comorbidities, was taken and admitted to the emergency

room at Robert Wood Johnson University Hospital with intense abdominal pain.

On the evening of June 12th, emergency room staff contacted the on-call

surgeon, Dr. Harold Chung-Loy, for a consultation regarding Ms. Mahalchick.

Staff relayed to Dr. Chung-Loy all information available at that time, including

her symptoms, lab test results and CAT scan report. No one requested that Dr.

Chung-Loy come into the hospital that evening. Dr. Chung-Loy had the

A-3356-22 3 impression that Ms. Mahalchick had colitis, with a set of possible causes for this

condition.

Ms. Mahalchick's condition worsened throughout the night, and by the

next morning, she was admitted to the Intensive Care Unit (ICU). Dr. Chung-

Loy examined Ms. Mahalchick the next day when he arrived at the hospital. He

noted that Ms. Mahalchick may have "ischemic colitis." 1 Initially, Dr. Chung-

Loy concluded that surgery would be too risky given Ms. Mahalchick's

condition that morning; however, as the day progressed, Dr. Chung-Loy decided

that surgical intervention was necessary. Ms. Mahalchick was prepared for

surgery, which occurred that evening. After surgery, Dr. Chung-Loy described

Ms. Mahalchick's colon as "discolored and grossly ischemic." Sadly, Ms.

Mahalchick died the following day from "severe ischemic colitis and septic

shock."

On June 13, 2018, plaintiffs filed a complaint for wrongful death and

survival claims alleging medical malpractice. The complaint, later amended,

named the hospital and other medical providers which settled their claims with

plaintiffs.

1 Dr. Chung-Loy defined "ischemic colitis" as an "inflammation of the colon due to low [blood] flow."

A-3356-22 4 Plaintiffs' initial affidavit of merit (AOM), dated August 23, 2018, was

submitted by Paul E. Collier, M.D., specializing in both general and vascular

surgery. In December 2018, defendants Dr. Harold Chung-Loy and Dr. Vincent

Moss filed a motion to dismiss plaintiffs' complaint for failure to serve an

appropriate and timely AOM. Because Dr. Chung-Loy was a general surgeon

only, plaintiffs retained a new expert, David Mayer, M.D., specializing in

general surgery. Dr. Mayer submitted an AOM dated November 21, 2018, and

an expert report dated August 30, 2020.

Discovery ensued and was extended multiple times in this complex case.

In a case management order dated February 16, 2021, a discovery end date of

July 20, 2021 was set. The order stated that plaintiffs' experts' reports had been

completed and expert depositions were scheduled to be completed by June 15,

2021.

Dr. Mayer's deposition was taken on June 8, 2021. During his deposition,

the issues of Dr. Mayer's credentials and hospital privileges were addressed.

After his deposition, on July 6, 2021, defendants moved to bar Dr. Mayer as an

expert for lack of qualification. Plaintiffs filed opposition and a cross-motion

seeking time to obtain and serve a new expert report.

A-3356-22 5 While defendants' motion to bar Dr. Mayer and plaintiffs' cross motion to

obtain a new expert were pending, plaintiffs served a new expert report authored

by Stephen Ferzoco, M.D., dated July 29, 2021. Before the motion and cross-

motion were heard, the trial judge entered an order on August 9, 2021, extending

discovery by 120 days to November 17, 2021. The order provided for expert

depositions to be completed by October 17, 2021, and directed that at the next

case management conference on October 1, 2021, all expert depositions were to

be completed or scheduled.

On August 25, 2021, defendants withdrew their motion to bar Dr. Mayer

and requested the cross-motion be denied as moot. Even though plaintiffs

argued that Dr. Mayer was qualified to testify, they would not withdraw their

cross-motion.

Oral argument on plaintiffs' cross-motion occurred on August 27, 2021.

The motion judge denied plaintiffs' request to obtain a new expert. The judge's

reasoning for denying the relief was based upon the age of the case; multiple

discovery extensions had already been granted; the near completion of expert

depositions; and plaintiffs having an expert who had opined on the standard of

care. The judge concluded those facts militated against granting plaintiffs' relief

for a new expert at this late stage of an already aged case.

A-3356-22 6 Two additional case management conferences were held on October 1 and

October 12, 2021. In an order entered on November 17, 2021, by consent,

discovery was extended to December 30, 2021. Additionally, the order set forth

in detail the remaining dates for expert depositions and directed that the

depositions could not be adjourned without the judge's permission.

Plaintiffs filed a motion for reconsideration of the motion judge's denial

to name Dr. Ferzoco as their expert. At oral argument on November 12, 2021,

the motion judge found there had been no change in circumstances and denied

reconsideration.

Trial commenced in May 2023. The jury rendered a verdict in favor of

defendant Dr. Chung-Loy on May 25, 2023, and all claims against defendant

were dismissed. This appeal followed.

II.

On appeal, plaintiffs argue the motion judge abused his discretion in two

respects: first, by denying plaintiffs' request to name Dr. Ferzoco as their expert

witness; and second, by not reconsidering the prior denial given that discovery

had been extended to December 30, 2021, expert depositions had not been

completed, and no trial date had been scheduled. Plaintiffs contend that because

A-3356-22 7 of these errors a new trial is warranted. We are not persuaded that the motion

judge abused his discretion in either circumstance.

"[W]e apply an abuse of discretion standard to decisions made by our trial

courts relating to matters of discovery." Pomerantz Paper Corp. v. New Cmty.

Corp., 207 N.J. 344, 371 (citing Bender v. Adelson, 187 N.J. 411, 428 (2006)).

Unless a trial court has abused its discretion or misapplied the law, "we generally

defer to a trial court's disposition of discovery . . . ." Ibid. (quoting Rivers v.

LSC P'ship, 378 N.J. Super. 68, 80 (App. Div. 2005)) (citing Payton v. N.J.

Turnpike Auth., 148 N.J. 524, 559 (1997)). Moreover, we generally "decline to

interfere with discretionary rulings involving discovery unless it appears that an

injustice has been done." Cunningham v. Rummel, 223 N.J. Super. 15, 19 (App.

Div. 1988).

An abuse of discretion is a ruling that "represents a manifest denial of

justice." In re Est. of Lash, 329 N.J. Super. 249, 262 (App. Div. 2000) (quoting

Cnty. of Essex v. Waldman, 244 N.J. Super. 647, 667 (App. Div. 1990)).

Moreover, an abuse of discretion is found when a decision is "made without a

rational explanation, inexplicably departed from established policies, or rested

on an impermissible basis." Flagg v. Essex Cnty. Prosecutor, 171 N.J. 561, 571

(2002) (quoting Achacoso-Sanchez v. Immigr. & Naturalization Serv., 779 F.2d

A-3356-22 8 1260, 1265 (7th Cir. 1985)). We will uphold the "findings undergirding the trial

court's decision if they are supported by adequate, substantial and credible

evidence on the record." Est. of Hanges v. Metro. Prop. & Cas. Ins. Co., 202

N.J. 369, 384 (2010) (quoting MacKinnon v. MacKinnon, 191 N.J. 240, 253-54

(2007)) (internal quotation marks removed).

Likewise, a decision on a motion for reconsideration of an interlocutory

discovery order is reviewed under the abuse of discretion standard. See Capital

Health Sys., Inc. v. Horizon Healthcare Servs., Inc., 230 N.J. 73, 79-80 (2017).

Under Rule 4:42-2, interlocutory orders are subject to revision "at any time

before the entry of final judgment in the sound discretion of the court in the

interest of justice." R. 4:42-2(b). Interlocutory orders, therefore, may be revised

"when it would be consonant with the interests of justice to do so," Ford v.

Weisman, 188 N.J. Super. 614, 619 (App. Div. 1983), and not solely when an

order is "palpably incorrect" or something new has occurred, Lawson v. Dewar,

468 N.J. Super. 128, 134-36 (App. Div. 2021).

A. The August 27, 2021 Order

Plaintiffs assert that by the time the motion judge ruled on their motion to

permit them to name a new expert on August 27, 2021, the trial judge had

already entered the August 9, 2021 order extending discovery to November 17,

A-3356-22 9 2021. Plaintiffs further contend that Rule 4:17-7 permits a party to amend its

answers to interrogatories, which include expert witnesses. Thus, plaintiffs

argue the motion judge erred in denying their motion in light of the August 9th

case management order and Rule 4:17-7. We are not persuaded by these

arguments.

"The right of a trial court to manage the orderly progression of cases

before it has been recognized as inherent in its function." Casino Reinvestment

Dev. Auth. v. Lustgarten, 332 N.J. Super. 472, 488-89 (App. Div. 2000). At the

time plaintiffs filed their cross-motion seeking to name a new expert on July 15,

2021, the controlling case management order dated February 16, 2021, noted

that plaintiffs' final expert reports had been completed and that the discovery

deadline was set for July 20, 2021. Plaintiffs served the new expert, Dr.

Ferzoco's report on July 30, 2021, after the discovery deadline and prior to any

extension being granted. As such, plaintiffs were out of time to have Dr.

Ferzoco included as an expert because discovery for identifying experts had

ended.

On August 9th, when the trial judge extended discovery to November 17,

2021, the extension was for the limited purpose of completing the expert

depositions, which were to be accomplished by October 17, 2021. The motion

A-3356-22 10 judge was rightly concerned about permitting a new expert into this three-year-

old complex case with multiple medical and legal professionals at that late stage

given the disruption and challenges it would create for the completion of the

remaining expert depositions.

Moreover, as the motion judge aptly noted, because defendants had

withdrawn their motion to bar Dr. Mayer's testimony, plaintiffs had an expert

whom they asserted was qualified to provide expert testimony in this case. Even

though plaintiffs were seeking to name a new expert to avoid issues with Dr.

Mayer's qualifications, they filed opposition to defendants' motion to bar Dr.

Mayer, arguing that he satisfied the requirements of the New Jersey Medical

Care Access and Responsibility and Patients First Act (PFA), N.J.S.A. 2A:53A-

41, as an expert in general surgery.

Plaintiffs' assertion that Rule 4:17-7 allowed them to amend their answers

to interrogatories, thereby naming a new expert is misplaced. Rule 4:17-7

permits a party to amend answers to interrogatories "[no] later than 20 days prior

to the end of the discovery period . . . . " R. 4:17-7. In this case, plaintiffs would

have had to amend their answers twenty days prior to July 20, 2021, the

controlling end date in the February 16, 2021 order.

A-3356-22 11 Moreover, Rule 4:17-7 allows for "[a]mendments . . . thereafter only if the

party seeking to amend certifies therein that the information requiring the

amendment was not reasonably available or discoverable by the exercise of due

diligence prior to the discovery end date." Ibid. Plaintiffs argue that Dr. Mayer's

qualification issues became known only during his deposition. However,

through the exercise of due diligence, these qualification issues could have been

discovered long before June 2021, when Dr. Mayer was deposed. In fact, Dr.

Mayer prepared an AOM for plaintiffs in 2018 and presumably, had provided

his resume to plaintiffs at that time.

Plaintiffs did not file a notice of motion to extend discovery. However,

even if the motion to name a new expert was considered a motion for an

extension of discovery under Rule 4:24-1, plaintiffs argue the motion judge

erred by failing to apply the "good cause" standard because no trial date had

been set. This argument fails as well.

In considering a motion to extend discovery under Rule 4:24-1, when no

trial date is scheduled, the court "shall enter an order extending discovery"

where "good cause is otherwise shown." R. 4:24-1(c). At the time of plaintiffs'

motion to name a new expert, no trial date had been scheduled. They contend

A-3356-22 12 good cause had been shown, and therefore, the motion judge erred in denying

their request.

"The term 'good cause shown' is flexible and its meaning is not fixed and

definite." Leitner v. Toms River Reg'l Schs., 392 N.J. Super. 80, 87 (App. Div.

2007) (citing Tholander v. Tholander, 34 N.J. Super. 150, 152 (Ch. Div. 1955)).

In determining whether good cause exists to extend a discovery end date, "there

are a number of factors which a trial court should consider . . . "

(1) the movant's reasons for the requested extension of discovery;

(2) the movant's diligence in earlier pursuing discovery;

(3) the type and nature of the case, including any unique factual issues which may give rise to discovery problems;

(4) any prejudice which would inure to the individual movant if an extension is denied;

(5) whether granting the application would be consistent with the goals and aims of "Best Practices";

(6) the age of the case and whether an arbitration date or trial date has been established;

(7) the type and extent of discovery that remains to be completed;

(8) any prejudice which may inure to the non-moving party if an extension is granted; and

A-3356-22 13 (9) what motions have been heard and decided by the court to date.

[Id. at 87-88.]

Plaintiffs contend these factors for assessing good cause had been

satisfied. We recognize that no motion to extend discovery had been filed.

Nonetheless, in denying plaintiffs' request to name a new expert, the motion

judge addressed many of these factors. We discern no abuse of discretion in the

motion judge's decision.

Plaintiffs' rationale for seeking to replace Dr. Mayer with Dr. Ferzoco was

to address defendants' qualification objections. However, as the motion judge

correctly noted, defendants had withdrawn their motion to bar Dr. Mayer's

testimony based on purported qualification objections.

It is not disputed that plaintiffs had adhered to all discovery deadlines in

the case. However, they had access to Dr. Mayer's curriculum vitae (CV) since

2018, and this CV contained the same information regarding his background and

renewal of hospital privileges as raised by defendants during Dr. Mayer's

deposition. Plaintiffs offer no explanation as to why they could not have

discovered this issue in advance of the discovery deadline.

As the motion judge correctly noted, this complex medical malpractice

case was over three years old and involved many attorneys and medical

A-3356-22 14 professionals. The scheduling of the experts' depositions, together with the

attorneys' schedules, had created significant case management challenges.

Further, there had already been several discovery extensions during the

litigation. We discern no abuse of discretion in the motion judge's concern that

adding a new expert to the case would have a negative impact on the completion

of depositions, particularly since they were close to completion, thereby causing

further delays.

The motion judge properly balanced the prejudice to both sides in making

his decision. Dr. Mayer had not been barred from testifying; therefore, the

plaintiffs were not left without an expert. Considerable time and expense would

inure to both parties to accommodate the new expert, particularly since Dr.

Mayer had already been deposed.

Plaintiff relies upon our decisions in Tucci v. Tropicana Casino and

Resort, Inc., 364 N.J. Super. 48 (App. Div. 2003), and Castello v. Wohler, 446

N.J. Super. 1 (App. Div. 2016), to support their position that the motion judge

erred in prohibiting the change in experts. Both cases are factually

distinguishable.

In Tucci, the court dismissed plaintiffs' case with prejudice for failing to

serve its expert report timely. We held that the ultimate sanction of dismissal

A-3356-22 15 with prejudice was improvident particularly because there were legitimate

problems leading to the late submission through no fault of plaintiffs. Tucci,

364 N.J. Super. at 52-54.

In Castello, plaintiff's expert misrepresented his current status and

qualifications on his CV and in the AOM, and therefore, we concluded that the

judge properly barred the expert's testimony because the expert had retired and

did not meet the statutory requirements of the PFA. However, we concluded

that the dismissal of the complaint with prejudice was inappropriate, and an

extension of discovery was warranted under those circumstances. Here, as

defendants argue, the motion judge did not disqualify plaintiffs' expert nor

dismiss plaintiffs' case with prejudice.

Each case must, however, be decided on its own facts and circumstances.

See Bender, 187 N.J. at 428 (trial court's decision to bar expert testimony due to

late discovery was not deemed an abuse of discretion). We are satisfied that

even under the more liberal standard of Rule 4:42-2 and the "good cause"

standard under Rule 4:24-1, the motion judge did not abuse his discretion in

denying plaintiffs' relief.

B. The November 12, 2021 Order

A-3356-22 16 In November 2021, plaintiffs urged the motion judge to reconsider the

denial of their request to name a new expert, particularly because the trial judge

had extended the discovery deadline to December 30, 2021, and expert

depositions were expected to continue through the discovery deadline. Plaintiffs

argued there would be far greater prejudice to their case should the judge deny

their request, whereas any potential prejudice or cost to defendants could be

dealt with satisfactorily.

While no trial date had been scheduled, the motion judge anticipated trial

being scheduled in March or April 2022. Discovery had been extended for the

limited purpose of completing expert depositions, the scheduling of which

continued to plague the case. The motion judge appropriately emphasized the

age of the case, "the 1,220 days' worth of discovery" to date, and the need to

finish the expert depositions so trial could commence. Once again, the judge

noted the significant delay likely to result should he grant plaintiffs' request. We

discern no abuse of discretion in the motion judge's denial of reconsideration of

his prior ruling.

Plaintiffs argue that the motion judge's denial of their request to replace

their expert severely prejudiced their case and warrants a new trial. In short,

plaintiffs ask for the right to retry this case after a jury has rejected their claims.

A-3356-22 17 Plaintiffs provide no legal support for this extraordinary relief. Because we

discern no abuse of discretion by the motion judge in the discovery rulings, we

conclude plaintiffs have not established a basis for a new trial.

To the extent we have not addressed any of plaintiffs' remaining

contentions, it is because they lack sufficient merit to be discussed in a written

opinion. R. 2:11-3(e)(1)(E).

Affirmed.

A-3356-22 18