THE HARTFORD INSURANCE GROUP VS. DOUGLAS MESSINEO, ESQ. (L-1797-16, PASSAIC 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NOT FOR PUBLICATION WITHOUT THE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
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3520-17T1

THE HARTFORD INSURANCE
GROUP,

Plaintiff-Respondent,

v.

DOUGLAS MESSINEO, ESQUIRE,
and MESSINEO and MESSINEO,

Defendants-Respondents,

and

NANCY WILLIAMS,

Defendant-Appellant.
_______________________________

Submitted February 27, 2019 – Decided May 29, 2019

Before Judges Accurso and Moynihan.

On appeal from Superior Court of New Jersey, Law
Division, Passaic County, Docket No. L-1797-16.

Rothenberg Rubenstein Berliner & Shinrod, LLC,
attorneys for appellant (Alan K. Berliner, on the brief).
 Kunz Law, attorneys for respondent The Hartford
Insurance Group (David R. Kunz and Leslie S. Britt, on
the brief).

Marks O'Neill O'Brien Doherty & Kelly, attorneys for
respondents Douglas Messineo and Messineo and
Messineo (Sean X. Kelly and Christian M. Scheuerman,
on the brief).

PER CURIAM

Defendant Nancy Williams appeals from an order denying her motion to

reopen discovery and from that part of an order granting summary judgment to

defendant Douglas Messineo and his law firm, defendant Messineo and

Messineo (collectively: Messineo). Considering defendant's arguments as to

both orders under discrete standards of review, we affirm.

Plaintiff The Hartford Insurance Group filed a complaint against Williams

and Messineo to recover its workers' compensation lien after Messineo paid their

client, Williams, the settlement proceeds from a medical malpractice claim

related to a prescription overdose Williams suffered while hospitalized for a

work-related leg injury. Williams filed crossclaims for contribution,

indemnification and legal malpractice against Messineo.

The initial discovery end date (DED) of May 11, 2017 was twice extended,

initially to October 11, 2017 when the trial court granted Messineo's motion to

change the discovery track, R. 4:5A, and then to December 30, 2017.

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Defendants' expert's reports were due on November 30, 2017 per the last DED

order. Although she previously filed an affidavit of merit, Williams did not

serve her expert's report by the DED deadline. Messineo moved for summary

judgment on January 18, 2018. Williams moved to reopen discovery on

February 14, 2018. The trial court denied Williams' motion to reopen discovery,

finding "[e]xceptional circumstances [were] not demonstrated" and questioned

"why after 533 days of discovery and a pending trial date of [April 23, 2018],

discovery [was] incomplete."

Because a trial date was set, Williams was required to show exceptional

circumstances in order to extend the DED. R. 4:24-1(c). In Rivers v. LSC

Partnership, 378 N.J. Super. 68, 79 (App. Div. 2005), we recognized four "Vitti1

factors" in holding:

In order to extend discovery based upon "exceptional
circumstances," the moving party must satisfy four
inquiries: (1) why discovery has not been completed
within time and counsel's diligence in pursuing
discovery during that time; (2) the additional discovery
or disclosure sought is essential; (3) an explanation for
counsel's failure to request an extension of the time for
discovery within the original time period; and (4) the
circumstances presented were clearly beyond the
control of the attorney and litigant seeking the
extension of time.

1
The factors were announced in Vitti v. Brown, 359 N.J. Super. 40, 51 (Law
Div. 2003).
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 In his February 14, 2018 certification submitted in support of the motion

to reopen discovery, Williams's counsel stated:

I have been struggling with some serious medical issues
recently. They include, but are not limited to,
inflammation around my heart, inflammation around
my lungs, a stroke, multiple hospitalizations, multiple
surgical procedures and countless doctor visits. Suffice
it to say, it has been a challenge keeping up with work
load. I recently discovered that my legal expert
retained in the case . . . has not provided his report
because he did not have the deposition transcript of
[Douglas] Messineo. The transcript of Mr. Messineo
was never sent to me because the court reporter in
attendance did not list my firm as involved in the case
and/or did not list my request for a copy of the
transcript (because I could not attend the deposition due
to my medical issues). I have now received the
transcript and it is in the hands of [the expert]. His
report should be available shortly. [2]

Williams contends the trial court did not read the certification and that

exceptional circumstances were demonstrated by the "medical crisis outlined in

[his] certification." Hartford also contends the court erred in failing to find

exceptional circumstances.

"We generally defer to a trial court's disposition of discovery matters

unless the court has abused its discretion or its determination is based on a

mistaken understanding of the applicable law." Rivers, 378 N.J. Super. at 80

2
The report is dated February 16, 2018.
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(citing Payton v. N.J. Tpk. Auth., 148 N.J. 524, 559 (1997)). The "abuse of

discretion" standard "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)).

We agree with the trial court that Williams failed to show exceptional

circumstances. We recognize Williams's counsel may have had serious medical

issues but his certification offers no details that relate to the Vitti factors.

Counsel's certification provides no details about the timing of his medical

condition. Nor does it relate his condition to the failure to obtain a transcript or

provide coverage for his practice. Although Williams contends in her merits

brief that counsel did not realize that he was not provided a copy of the

deposition transcript "because of the serious medical issues [counsel

experienced] during September, October, November of 2017," those specifics

were not provided to the trial court in support of the motion to reopen discovery.

We will not consider facts not presented to the trial court. Nieder v. Royal

Indem. Ins. Co., 62 N.J. 229, 234 (1973).

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 Further, the record supports that counsel was responsive to inquiries about

the case in August and September 2017. We note counsel sent an email to

Messineo's attorney on August 3, 2017 by which he adjourned Williams's

scheduled August 8 deposition, citing that he "just was released from the

hospital after a [six-]day stay for surgery. In addition, the [Bates-]stamped

records received today are voluminous." Counsel requested that Williams's

deposition be rescheduled for "sometime in September" at his Newark office.

In their opposition to Williams's motion to reopen discovery, Messineo stated

that Williams was deposed on September 13, 2017 and that the deposition

transcript confirms she was represented by an attorney from her counsel's firm.

Douglas Messineo was deposed one week later. Williams's counsel advised

Messineo's counsel on September 19 that he would not be attending; there is no

evidence he requested an adjournment of that deposition, that someone from his

office could not cover the deposition as had occurred at Williams's deposition

or that counsel requested a transcript of same before the DED.

Nor does Williams explain why Douglas Messineo's deposition transcript

was essential. Williams argues the trial court, in granting summary judgment,

commented that "the expert opinion that is filed in this case that's untimely has

that information" – about "what the standard of care is and the nature of the duty

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and the breach of the duty" – "in it that might have allowed the case to withstand

summary judgment." But that does not illustrate what information from the

deposition was crucial to the preparation of the expert's report. Nor did

Williams's counsel "establish that he . . . ma[d]e effective use of the time

permitted under the [R]ules," between his return to the office in August 2017

and the end of discovery at the end of December 2017, as is required of an

attorney requesting a discovery extension. Rivers, 378 N.J. Super. at 79

(quoting Vitti, 359 Super. at 51). If "the 'delay rests squarely on plaintiff's

counsel's failure to . . . pursue discovery in a timely manner,' and the Vitti factors

are not present, there are no exceptional circumstances to warrant an extension."

Ibid. (quoting Huszar v. Greate Bay Hotel & Casino, Inc., 375 N.J. Super. 463,

473-74 (App. Div. 2005)).

In short, Williams has satisfied none of the Vitti factors. Adopting more

of the Vitti decision, we recognized that, under Best Practices, see R. 4:5A,

"applications to extend the time for discovery should be the exception and not

the rule." Rivers, 378 N.J. Super. at 78 (quoting Vitti, 359 N.J. Super. at 45).

Given our standard of review, we discern no abuse of discretion in the denial of

Williams's motion to reopen discovery.

In granting Messineo's summary judgment motion, the trial court ruled:

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 there's no question that without an expert witness on
this legal malpractice claim the case can't be sustained.
In looking at the nature of what the claim is there's no
way this would fall into the common knowledge
exception that would allow for the . . . professional
negligence claim to go forward without an expert.

Williams concedes in her merits brief, "without [the expert's] report, [the

trial court] was compelled to grant the motion for summary judgment." Hartford

makes the same concession in its merits brief.

"[I]n nearly all malpractice cases, plaintiff need[s] to produce an expert

regarding deviation from the appropriate standard." Garcia v. Kozlov, 179 N.J.

343, 362 (2004) (citing Brach, Eichler, Rosenberg, Silver, Bernstein, Hammer

& Gladstone, PC v. Ezekwo, 345 N.J. Super. 1, 12 (App. Div. 2001)); see also

N.J.S.A. 2A:53A-27. "As 'the duties a lawyer owes to his client are not known

by the average juror,' expert testimony must necessarily set forth that duty and

explain the breach." Buchanan v. Leonard, 428 N.J. Super. 277, 288 (App. Div.

2012) (quoting Carbis Sales, Inc. v. Eisenberg, 397 N.J. Super. 64, 78 (App.

Div. 2007)). Where the standard of care that should guide an attorney in the

situation presented would not be readily apparent to persons of average

intelligence and ordinary experience, the assistance of an expert opinion is

required. See id. at 289. A plaintiff's failure to produce expert testimony in

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legal malpractice claims is often fatal. See Innes v. Marzano-Lesnevich, 435

N.J. Super. 198, 214 (App. Div. 2014), aff'd as modified, 224 N.J. 584 (2016).

In that we have already concluded that Williams's motion to reopen

discovery was properly denied, the record supports that without the late-

tendered expert report there existed "no genuine issue as to any material fact

challenged and that the moving party is entitled to a judgment or order as a

matter of law." R. 4:46-2(c); Henry v. N.J. Dep't of Human Servs., 204 N.J.

320, 329-30 (2010); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540

(1995). While we pay no particular deference to the trial court's determination

of any questions of law, Manalapan Realty, LP v. Twp. Comm. of Manalapan,

140 N.J. 366, 378 (1995), and review de novo the trial court's summary judgment

decision based upon our independent review of the motion record, applying the

same standard as the trial court, Townsend v. Pierre, 221 N.J. 36, 59 (2015);

Brill, 142 N.J. at 539-40, we fully agree that summary judgment was warranted.

Affirmed.

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