ASIA O'BRIEN VS. MOUNTAINSIDE HOSPITAL(L-0594-13, ESSEX COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-1794-15T3

ASIA O'BRIEN,

Plaintiff-Appellant,

v.

MOUNTAINSIDE HOSPITAL,

Defendant-Respondent,

and

DR. PENG, DR. R. DE MARSICO,
R. SCHEPIS, R.N., J. BENECH,
R.N., E. TOPOLENSKI, R.N.,
E. DARISH, R.N., B. ROSS,
C. BROWN, and V. YIRKA,

Defendants.
_________________________________

Argued March 16, 2017 – Decided October 16, 2017

Before Judges Espinosa and Suter.

On appeal from the Superior Court of New
Jersey, Law Division, Essex County, Docket No.
L-0594-13.

Brian M. Dratch argued the cause for appellant
(Franzblau Dratch, attorneys; Mr. Dratch on
the briefs).
 Anthony Cocca argued the cause for respondent
(Bubb, Grogan & Cocca, LLP, attorneys; Mr.
Cocca, of counsel and on the brief).

The opinion of the court was delivered by

SUTER, J.A.D.

Plaintiff Asia O'Brien appeals the November 10, 2015 summary

judgment order that dismissed with prejudice her litigation

against defendant Mountainside Hospital (Mountainside) and the

December 18, 2015 order that denied reconsideration. We affirm

both orders. The trial judge did not abuse her discretion in

denying plaintiff's second request for an adjournment of the

summary judgment motion, in granting that motion, which was

unopposed, in denying recusal when there was no evidence of bias

and in denying reconsideration.

In January 2013, plaintiff filed a medical malpractice

complaint against Mountainside, seeking damages because of a scar

on her face that she alleges occurred from a scratch sustained in

the hospital when she was a newborn. Mountainside filed for

summary judgment after discovery closed in January 2015. The

motion was denied without prejudice by the trial judge because the

presiding judge extended discovery until the end of July, entering

a scheduling order that required plaintiff to serve expert reports

by the end of April 2015. Plaintiff missed that deadline.

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 Plaintiff's expert report was served in June 2015. The one

page report by Dr. Carl DeFronzo (DeFronzo report), a Board

certified obstetrician and gynecologist, stated that hospital

records confirmed the presence of a "small scratch on [plaintiff's]

right cheek." Because there was no notation about treatment, he

opined "the incident was not handled properly and was a breach of

standard of care." "[A]n incident report should have been filed

immediately," and a "nurse supervisor should have been notified."

A doctor should have "discussed the appropriate course of action,"

and "[t]he proper follow up procedure should have included wound

care instructions for the parents as well as a follow up visit

with the physician for evaluation."

Subsequently, the trial judge denied without prejudice two

motions by Mountainside to dismiss the complaint, extended

discovery for thirty days to permit plaintiff to depose a nurse,

and prohibited plaintiff from serving additional expert reports.

The trial judge denied plaintiff's request that she recuse herself.

None of these orders are appealed.

On September 25, 2015, Mountainside again filed a motion for

summary judgment. There were no other defendants in the case by

that time. Although originally returnable on October 23, 2015,

the motion was adjourned at plaintiff's request to November 6, to

accord plaintiff time to respond. The motion alleged the DeFronzo

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report was not sufficient to support the malpractice claim against

the hospital.

Plaintiff served a supplemental report by Dr. DeFronzo

(supplemental report) on October 9, which opined that if "prompt

medical treatment" had been given to plaintiff as an infant "this

treatment would have greatly improved her outcome." The report

stated that "treatment intervention" could have included "ultra-

fine sutures," "Steri-strips" or "medical glue." The doctor

"inferred" from the size of the present scar that "the laceration

must have been wide."

On November 6, around noon, a call was placed to the trial

judge's chambers by a member of plaintiff's counsel's staff,

requesting an adjournment of the summary judgment motion because

the file "had fallen through the cracks." The trial court denied

this request. Plaintiff did not file opposition. On November 10,

2015, the trial court granted the unopposed summary judgment

motion, which dismissed the litigation with prejudice.

Plaintiff sought reconsideration of the November 10 order and

requested to vacate it. Her counsel complained the court did not

advise him the motion had been adjourned to November 6.

Apparently, an in limine motion had been filed by Mountainside

that raised the same issues because there had been a trial date

for October 23, so counsel believed the summary judgment motion

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was moot. He certified plaintiff had an expert with two reports

and was ready to proceed.

The trial court denied the reconsideration motion on December

18, 2015, because plaintiff had not submitted any opposition to

the summary judgment motion and thus, there was nothing to

reconsider. The trial court again denied the motion to recuse.

Plaintiff appeals both the November 10, 2015 order granting

summary judgment and the December 18, 2015 order that denied

reconsideration and recusal. Plaintiff alleges the court abused

its discretion in denying her request to adjourn the summary

judgment motion, when "the same motion had been opposed on a prior

occasion." Plaintiff appeals the summary judgment order because

the trial court did not detail her findings of fact or conclusions

of law in a written or oral opinion, citing to Rule 1:7-4.

Plaintiff contends the expert reports are not net opinions because

they "accurately delineate the standard of care, a deviation in

that standard and proximate cause."

The decision whether to adjourn a motion is one left to the

sound discretion of the court. Kosmowski v. Atl. City Med. Ctr.,

175 N.J. 568, 575 (2003); see also Bartell v. Razzano, 119 N.J.

Super. 243, 247 (1972); State v. Hayes, 205 N.J. 522, 537 (2011).

Our review is limited to determining whether the trial court abused

its discretion in denying the request. State v. Shalom Money St.,

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LLC, 432 N.J. Super. 1, 7 (2013). An abuse of discretion "arises

when a decision is 'made without a rational explanation,

inexplicably departed from established policies, or rested on an

impermissible basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J.

561, 571, (2002) (quoting Achacoso-Sanchez v. Immigration &

Naturalization Serv., 779 F.2d 1260, 1265 (7th Cir. 1985)).

Here, there was no abuse of discretion in denying the request

to adjourn the summary judgment motion. The trial court already

had granted one adjournment. The second request, made orally on

the return date of the motion, did not indicate that notice was

given to the other side or adequately explain the need for an

adjournment. There already had been multiple motions for summary

judgment in the case, discovery was closed, and further requests

to extend discovery denied. The case had multiple trial listings.

If counsel were unaware of the initial adjournment, as contended,

that did not explain why opposition had not been filed.

The trial court granted summary judgment in favor of

Mountainside on November 10, 2015, dismissing the complaint. We

review a trial court's orders granting or denying summary judgment

under the same standard employed by the motion judge. Globe Motor

Co. v. Igdaley, 225 N.J. 469, 479 (2016); see also, Templo Fuente

De Vida Corp. v. Nat'l Union Fire Ins. Co., 224 N.J. 189, 199

(2016). The question is whether the evidence, when viewed in a

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light most favorable to the non-moving party, raises genuinely

disputed issues of fact sufficient to warrant resolution by the

trier of fact, or whether the evidence is so one-sided that one

party must prevail as a matter of law. See Brill v. Guardian Life

Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Here, the trial court did not issue a written or oral decision

in support of the summary judgment order because the motion was

unopposed. Rule 1:7-4(a) provides that a trial judge "shall, by

an opinion or memorandum decision, either written or oral, find

the facts and state [his or her] conclusions of law thereon in all

actions tried without a jury . . . ." "The Rule requires specific

findings of fact and conclusions of law . . . ." Pressler &

Verniero, Current N.J. Court Rules, comment 1 on R. 1:7-4 (2017).

We agree with plaintiff that the trial court should have

explained its decision on the record or issued a statement of

reasons even though the summary judgment motion was unopposed.

Based on the unopposed nature of the motion and our standard of

review, however, we discern no error by the trial court in granting

summary judgment.

The first expert report simply did not address the standard

of care that was required, the deviation from that standard, or

that the deviation proximately caused plaintiff's injuries. See

Gonzales v. Silver, 407 N.J. Super. 576, 586 (App. Div. 2009)

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(describing the required elements of a medical malpractice case).

Instead, the expert was critical of the hospital's record keeping,

never suggesting how that proximately related to plaintiff's

injury.

In October 2015, plaintiff served a supplemental report. This

was well after the trial date was set and discovery concluded, and

was served without an order granting permission. See R. 4:24-

1(c); R. 4:24-2. It would not have been proper to consider the

supplemental expert report under these circumstances. Plaintiff

filed no opposition to the summary judgment motion, stating simply

that she had an expert who issued two reports and she attached

them. We discern no error by the trial court in granting summary

judgment on this unopposed motion.

The trial court denied plaintiff's motion to reconsider or

to vacate the November 10 summary judgment order. Reconsideration

is appropriate only where "1) the [c]ourt has expressed its

decision based upon a palpably incorrect or irrational basis, or

2) it is obvious that the [c]ourt either did not consider, or

failed to appreciate the significance of probative, competent

evidence." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div.

1990). Reconsideration may also be granted where "a litigant

wishes to bring new or additional information to the [c]ourt's

attention which it could not have provided on the first

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application." Ibid. Plaintiff never opposed the summary judgment

motion or obtained permission to serve the supplemental report,

giving the court no basis for reconsideration.

Plaintiff contends the trial judge erred in not recusing

herself from the case. "[T]he key question that must be answered

when a claim is made challenging a judge's impartiality is,

'[w]ould a reasonable, fully informed person have doubts about the

judge's impartiality?'" P.M. v. N.P., 441 N.J. Super. 127, 145

(App. Div. 2015)(alteration in original)(quoting DeNike v. Cupo,

196 N.J. 502, 517 (2008)). We have reviewed the entire record and

find no evidence of bias in the court's rulings, which in fact

gave significant latitude to plaintiff. Disagreement with the

court's decision is not a basis to request recusal. See State v.

Marshall, 148 N.J. 89, 186 (1997) (stating that "bias is not

established by the fact that a litigant is disappointed in a

court's ruling on an issue.").

Affirmed.

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