Dismissal With Prejudice Too Harsh A Remedy For Expert’s Unavailability

 by:  Peter J. Gallagher (@pjsgallagher) (LinkedIn)

Gavel (pd)There is often tension between a court's need to effectively manage its docket and the overriding objective that a lawsuit be resolved on its merits and not because a party (or its counsel) misses a deadline. Courts establish deadlines. If they are ignored, can the court — as a sanction, and in the interest of managing its docket — dismiss the lawsuit with prejudice? According to the Appellate Division in a recent unpublished decision, Trezza v. Lambert-Wooley, the answer to this question is "no," unless the noncompliance was purposeful and no lesser remedy was available to the court. 

In Trezza,plaintiffs sued defendants for medical malpractice. Three years after the lawsuit was filed, the court set a peremptory trial date. This was rescheduled when the court did not reach the case on the trial date. The trial did not take place on the rescheduled date or a subsequent rescheduled date, both times because defendant's designated trial counsel was unavailable. Thereafter, the Presiding Judge issued a sua sponte order scheduling trial for approximately four months later and setting forth "specific and stringent terms as to the course and conduct of the case relative to trial." The order mandated that: (1) the trial date would not be adjourned to accommodate the parties' or counsels' personal or professional schedules; (2) counsel was required  to monitor the schedules of their parties, witnesses, and experts, and if one or more were not going to be available on the trial date, arrange for a de bene esse deposition ahead of trial; and (3) if designated trial counsel was not available on the trial date, alternate counsel would have to be found, whether or not from the same firm.

Five days before the scheduled trial date, plaintiff's counsel requested that the trial be carried for four days due to the unavailability of plaintiff's liability expert, which he only learned about a few days prior to the request. Defendants' counsel consented to the request. The judge assigned to the case considered the request but, in light of the Presiding Judge's order, determined that he did not have the authority to grant the adjournment. He sent the parties to the Presiding Judge, who denied the request and directed the parties to proceed to trial. "Predicated upon the terms of the order, the age of the case, and plaintiff's expert's unavailability, the judge [then] dismissed the complaint with prejudice." Plaintiffs appealed.

The Appellate Division reviewed the trial court's decision under an abuse of discretion standard. It began by citing to the New Jersey Supreme Court's observation that, when deciding whether to adjourn a case due to an expert's unavailability, a court "must focus on the tension between, on the one hand, the salutary principle that the sins of the advocate should not be visited on the blameless litigant, and, on the other, the court's strong interest that management of litigation, if it is to be effective, must lie ultimately  with the trial court and not counsel trying the case." But, the Appellate Division warned that a court must also be mindful of the "overriding objective" that cases be decided on the merits, "and not because litigants have failed to comply precisely with particular court schedules, unless such noncompliance was purposeful and no lesser remedy was available." On this final point, the Appellate Division observed that dismissing a case with prejudice because a party fails to comply with a court imposed deadline is "drastic punishment and should not be invoked except in those cases where the actions of a party show a deliberate and contumacious disregard of the court's authority," and when no lesser sanction will "erase the prejudice suffered by the non-delinquent party."

In Trezza, the Appellate Division held that plaintiffs' conduct did not reach this lofty standard, therefore dismissal with prejudice was not warranted. Notably, the Appellate Division observed that defendants would not have been prejudiced by the adjournment plaintiffs requested, and in fact had consented to plaintiffs' request. In addition, the Appellate Division held that, notwithstanding its ominous terms, the court was not "unequivocally bound" by the Presiding Judge's pretrial order. Like any other pretrial order, the presiding judge's order could have been "modified at any time to prevent manifest injustice." Accordingly, the Appellate Division reversed the trial court, holding that "the denial of the adjournment was inconsistent with the fundamental principles of justice and fairness that must guide all judicial decision." 

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s