SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO . A

- 1109

- 20

DOLORES YANEZ and

DOLORES YANEZ o/b/o

the estate of ANTONIO

YANEZ (individually),

Plaintiff s

- Appellant s

,

v.

PEDRO CORDERO, M

. D

. , TRINITAS REGIONAL

MEDICAL CENTER,

SECURIAN FINANCIAL

GROUP, INC.

, and MINNESOTA

LIFE INSURANCE COMPANY,

CUNA MUTUAL GROUP,

Defendants,

and

JEFFREY STIRLING, M

. D.,

Defendant

- Respondent.

_______________ ___ ____________

Argued March 16, 2022

– Decided April 4

, 2022

Before Judges Vernoia and Firko.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

This opinion shall not " constitute precedent or be binding upon any court

. " A lthough 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

- 3.2 A

- 1109

- 20 On appeal from the Superior Court of New Jersey, Law

Division, Union County, L

- 3459

- 18.

An thony R. Fiore, Jr.

, argued the cause for appellant

(Gage Fiore

, LLC , attorneys; Anthony R. Fiore, Jr., on

the briefs).

Michael R. Ricciardulli argued the cause for respondent

(Ruprecht Hart Ricciardulli & Sherman, LLP,

attorneys; Michael R. Ricciardulli, of c ounsel and on

the brief; Brion D. McGlinn, on the brief).

PER CURIAM

In this medical malpractice action, plaintiff s Dolores Yanez ( Yanez ) and

the Estate of Antonio Yanez (collectively "plaintiffs") appeal from orders

granting defendant Jeffrey Stirling , M.D. (Stirling) summary judgment on

statute of limitations grounds and denying plaintiff s' motion for reconsideratio n

.

Plaintiff s argue the court erred by failing to : apply the discovery rule to find the

complaint was timely fil ed ; conduct a hearing to determine the proper trigger

for the commencement of the limitations period; and find the complaint was

timely filed through application of the fictitious defendant rule, R. 4:26

- 4.

Unpersuaded, we affirm.

I.

In our review of the record before the trial court, we accept the facts and all

reasonable inferences therefrom in the light most favorable to plaintiff s because they3 A

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are the parties a gainst whom summary judgment was entered. 1 Brill v. Guardian

Life Ins. Co. of Am. , 142 N.J. 520, 540 (1995). Applying that standard, the summary

judgment record before the trial court established the following undisputed material

facts.

Yanez is decedent Antonio Yanez' s (dec e dent) wife. Decedent was

admitted to Trinitas Regional Medical Cente r (Trinitas) on October 13, 2016

,

for an interventional radiology procedure. According to Yanez

, Pedro Cordero,

M.D., (Cordero) was decedent ' s vascular surgeon and decedent said Cordero

would perform the procedure at Trinitas.

Yanez was not with deceden t when he was admitted to Trinitas because

she had to attend to an issue related to their son. Yanez went to Trinitas after

decedent was admitted

, and she later testified she saw many doctors, nurses, and

hospital staff, but she did not know Stirling ' s identity. Yanez was in the

1 In accordance with Rule 4:46

- 2, we glean the facts from Stirling ' s statement of

material facts supporting the summary judgement motion, plaintiffs ' response to

Stirling ' s statement of material facts

, and plaintiffs' counterstatement of material

facts submitted in opposition to the motion. Although we generally limit our de

novo review of a summary judgment record to the facts set forth in statements

submitted pursuant to Rule 4:46

- 2, we note that before the motion court and on

appeal, the parties rely on facts set forth in Yanez ' s affidavits and in her

deposition testimony. We do so as well because Sterling does not object to

plaintiff s' reliance on such facts for purposes of our de novo review and because

Stirling is entitled to summary judgment as a matter of law even if we accept

Yanez's version of the facts as related in her testimony and affidavits.4 A

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operating room during decedent's surgery and she observed the procedure , but

she " did not know who the doctors or staff were. " The surgical procedure wa s

performed in two parts. Yanez spoke with Stirling during a break after the first

part of the procedure and then again after the second part of the procedure. She

did not know his identity at that time

. On the day following the surgery, October

14, 201 6, decedent passed away while in Trinitas

.

Yanez also spoke with Cordero following the surgical procedure, but he

did not indicate that another doctor performed the surgery. Within a week of

decedent ' s death, Yanez received medical records from Trinitas

. The records

were later determined to be incomplete

. The records did not identify who

performed the surgical procedure , and they did not include an operative report

identifying Stirling as the surgeon

. According to Yanez , the records " all

identified

. . . Cordero " as decedent ' s physician

.

Three months after decedent's death, i n January 2017, plaintiff s' counsel

requested decedent ' s medical records from Trinitas. Counsel received medical

records in response to the request, but the records did not include an operative

report or any record indicating Stirling was decedent ' s surgeon. A representative

of plaintiff s' counsel ' s office was subsequently advised by the records5 A

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department at Trinitas that it did not have an operative report for dec edent ' s

surgery.

Almost two years after decedent ' s death , o n October 9, 2018, plaintiff s

filed a complaint asserting wrongful death medical malpractice

, survivorship

,

and tort claims against Cordero, Trinitas, and fictitiously named John Doe

defendants, including " physicians " who " provided medical care and treatment

to " decedent in Trinitas.

On June 5

, 2019, Cordero provided answers to plaintiffs' interrogatories

stating he did not perform the surgical procedure a nd id entif ying Stirling as

decedent's surgeon. P laintiff s moved for leave to file an amended complaint

adding Stirling as a defendant

. Yanez claimed she was not aware Stirling

performed the October 13, 2016 surgical procedure until Cordero provided his

a nswers to interrogatories. The court granted plaintiffs' motion

, and, on August

5, 2019, plaintiff s filed a second amended complaint naming Stirling as a

defendant and asserting the wrongful death medical malpractice

, survivorship

,

and tort claims against him for the first time

. Stirling filed an answer to the

second amended complaint asserting in part that plaintiff s' claims were time

barred under the applicable statute s of limitations.6 A

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In February 2020, Trinitas supplied additional records to plaintif f s'

counsel. For the first time, the records included an operative report indicating

Stirling performed decedent ' s October 13, 2016 surgery.

St i rling moved for summary judgment, arguing plaintiff s' complaint

should be dismissed because it was filed against him outside the two

- year

limitations period. More particularly, Stirling asserted the causes of action

asserted in the second amended complaint accrued on October 14, 2016

— the

date of decedent's death

— and the complaint against him was filed more than

two years later on August 5, 2019. Plaintiff s opposed the motion, arguing the

statute of limitations should be tolled under the discovery rule because Trinitas

did not supply complete medical records identifying Stirling as the surgeon and

they could not have reasonably ascertained they had a claim against Stirling until

he was identified as the surgeon in Cordero's June 2019 answers to

interrogatories. For the same reasons, plaintiffs also claimed t he complaint

against Stirling was timely filed under the fictitious defendant rule, R. 4:26

- 4.

After hearing argument, the court grant ed Stirling ' s motion. In a written

statement of reasons, the court determined plaintiff s w ere not entitled to the

benef it of either the discovery rule or the fictitious defendant rule, R. 4:26

- 4

,

because the medical records Yanez received within one week of decedent ' s death7 A

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referred to Stirling as a physician who provided care and treatment to decedent

while he was in Trin itas. The court further noted Yanez observed Stirling

perform the surgical procedure, spoke to Stirling about the surgical procedure

,

and knew he was not Cordero , with whom she was otherwise familiar when the

procedure was performed

.

The court found plaintiff s failed to demonstrate they exercise d the due

diligence required to ascertain Stirling ' s identity prior to the expiration of the

limitations period . The court reasoned that plaintiff s' failure did not support

tolling of the st atu te of limi tations under the discovery rule, and, for the same

reasons, did not support their reliance on the fictitious defendant rule, R. 4:26

-

4

. The court also rejected plaintiff s' request for a Lopez 2 hearing, finding the

evidence they proffered in support of t heir request for a hearing did not raise

any fact ual issues pertinent to the disposition of defendant ' s claim the complaint

should be dismissed on statute of limitations grounds.

Plaintiff s filed a motion for reconsideration

, asserting the court erred by

d enying their request for a Lopez hearing. The court denied the motion,

reaffirming its prior determination th e evidence plaintiff s proffered in support

of their hearing request did not raise an issue of fact as to whether plaintiffs

2 Lopez v. Swyer

, 62 N.J. 267 (1973)

.8 A

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- 20

exercise d the due diligence required to identify Stirling as a defendant such that

plaintiffs might be entitled to a tolling of the statute of limitations under the

discovery rule or the benefit of th e fictitious defendant rule, R. 4: 26

- 4

.

Plaintiff s appeal from the court ' s orders granting Stirling summary

judgment and denying their motion for reconsideration.

II.

We conduct a de novo review of an order grantin g summary judgment

,

Globe Motor Co. v . Igdalev , 225 N.J. 469, 479 (2016), and apply the same

standard as the trial court, State v. Perini Corp. , 221 N.J. 412, 425 (2015). In

considering a summary judgment motion

, " both trial and appellate courts must

view the facts in the light most favorable to the non

- moving part [ies] , which in

this case [are] plaintiff [s]

. " Bauer v. Nesbitt , 198 N.J. 601, 604 n.1 (2009) (first

citing R. 4:46

- 2(c); and then citing Brill , 142 N.J. at 540). Summary judgment

is proper if the record demonstrates " no genuine issue as to any material fact

challenged and that the moving party is entitled to a judgment

. . . as a matter of

law

. " Burnett v. Gloucester Cnty. Bd. of Chosen Freeholders , 409 N.J. Super.

219, 228 (App. Div. 2009) (quoting R. 4:46

- 2(c)). A court ' s determination of

" whether a cause of action is barred by a statute of limitations is a question of

law that we review de novo. " Save Camden Pub. Schs. v. Camden City Bd. of9 A

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- 20

Educ.

, 454 N.J. Super. 478, 487 (Ap p. Div. 2018) (citing Catena v. Raytheon

Co.

, 447 N.J. Super. 43, 52 (App. Div. 2016)).

Plaintiff s' complaint against Stirling includes a wrongful death claim, a

survivorship claim, and claims for emotional distress and loss of services. The re

a different statutes of limitations applicable to plaintiffs' claims . The wrongful

death claim is governed by the two

- year statute of limitations in N.J.S.A. 2A:31

-

3. See generally Presslaff v. Robins , 168 N.J. Super. 543, 546 (App. Div. 1979)

(explaining the limitations period for wrongful death claims). The survivorship

cause of action is governed by the two

- year statute of limitations in N.J.S.A.

2A:15

- 3

. See generally Warren v. Muenzen , 448 N.J. Super. 52, 64

- 69 (App.

Div. 2016) (explaining the accrual date for, and running of

, the limitations

period for survivorship actions). P laintiff s' remaining claims for emotional

distress and loss of decedent ' s services are governed by the two

- year statute of

limitations in N.J.S.A. 2A:14

- 2.

Plaintiff s' complaint against Stirling was filed on August 5 , 2019, almost

three years after decedent ' s October 14, 2016 deat h. They argue the court erred

by finding the claims against Stirling are time

- barred because the limitations10 A

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periods were tolled under the discovery rule. 3 More particularly , plaintiff s argue

the statute of limitations periods on their claims against Stirling did not begin to

run until they first learned in June 2019 that Stirling was decedent ' s surgeon.

They claim that since they filed their complaint against Stirling within two years

of first learning Stirling was decedent ' s surgeon, the complaint against him was

timely filed.

We first note the discovery rule is inapplicable to plaintiff s' wrongful death

cause of action because N.J.S.A. 2A:13

- 3 requires the filing of a cause of action

within two years of decedent ' s death. See Presslaff , 168 N.J. Super. at 546 (holding

the discovery rule does not apply to Wrongful Death Act claims). The mo tion court

therefore properly rejected plaintiff s' reliance on the discovery rule in granting

summary judgment on their wrongful death claim against Stirling because the

complaint against him was filed more than two years following decedent ' s death

. 4

Ibi d.

3 In making their argument s on appeal, plaintiff s refer only to the two

- year

statute of limitations in N.J.S.A. 2A:14

- 2. As noted, however, their claims ar e

governed by different statutes of limitations and, although each statute includes

a two

- year limitations period, it is necessary to distinguish them because they

are not identical in all respects.

4 We recognize the motion court rejected plaintiff s ' reliance on the discovery

rule as to the wrongful death claim on grounds different than those upon which11 A

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The discovery rule is applicable to plaintiffs ' survivorship claim

. S ee Warren

,

448 N.J. Super at 64

- 69 (explaining the two

- year limitations period in N.J.S.A.

2A:15

- 3, which governs the limitations period for survivorship actions

, is two years

from the date of injury or its discovery consistent with N.J.S.A. 2A:14

- 2

, as may be

extended by N.J.S.A. 2A:14

- 23.1) . The discovery rule is also applicable to plaintiff s'

tort claims under N.J.S.A. 2A:14

- 2.

The common law discovery rule , first articulated in the medical malpractice

context in Fernandi v. Strully

, 35 N.J. 434 (1961) , is a rule of equity that defers a

cause of action ' s accrual date to the date the plaintiff knew or was chargeable with

knowing an injury has occurred and the injury is the fault of another. See Lopez

, 62

N.J. at 273

- 74 . It " was developed as a means of mitigating the harsh results which

flow from a rigid adherence to a strict rul e of law. " Heyert v. Taddese

, 431 N.J.

Super. 388, 435 (App. Div. 2013) (citing Lopez

, 62 N.J. at 273

- 74 ).

" Whether the discovery rule applies depends on ' whether the facts presented

would alert a reasonable person, exercising ordinary diligence that he or she was

injured due to the fault of another. '" Ben Elazar v. Macrietta Cleaners, Inc.

, 230 N.J.

we rely. Our difference with the court's reasoning is of no moment . We conduct

a de novo review of its summary judgment order, Globe Motor Co , 225 N.J. at

479

, and we review the order and not the court's reasoning

, Do

- Wop Corp. v.

City of Rahway , 168 N.J. 191, 199 (2001).12 A

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- 20

123, 134 (2017) (quoting Caravaggio v. D ' Agostini

, 166 N. J. 237, 246 (2001) ).

Under the discovery rule, t he running of the statute of limitations begins when the

plaintiff is aware "through the exercise of reasonable diligence, the facts that

form the basis for an actionable claim against an identifiable defendant." The

Palisades at Ft. Lee Condo. Ass'n, Inc. v. 100 Old Palisade, LLC

, 230 N.J. 427,

435 (2017) (citing Caravaggio

, 166 N.J. at 24 6 ). " The standard is basically an

objective one

– whether plaintiff ' knew or should have known ' of s ufficient facts to

start the statute of limitations running. " Elazar

, 230 N.J. at 134 (quoting Caravaggio

,

166 N.J. at 246). " [L]egal and medical certainty are not required for a claim to

accrue. " Kendall v. Hoffman

- La Roche, Inc.

, 209 N.J. 173, 193 ( 2012)

.

A plaintiff seeking application of the discovery rule bears the burden of

showing " that a reasonable person in her [or his] circumstances would not have

been aware [,] within the prescribed statutory period [

, ] that she [or he] had been

injured by [th e] defendant[ ' ]s " conduct. Kendall

, 209 N.J. at 197

- 98

. Plaintiff s

failed to sustain that burden here.

Plaintiff s contend Yanez was unable to identify Stirling as a possible

tortfeasor because the incomplete Trinitas medical records she received during

the two

- year period following decedent's death did not reveal Stirling was

decedent's surgeon

. Plaintiffs argue Yanez first learn ed Stirling was the surgeon13 A

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in June 2019, when Cordero identified Stirling as the surgeon in his answers to

interrogatorie s

, and

, therefore, their c laims against Stirling did not accrue until

that time

.

Plaintiff s' argument ignores the medica l records provided by Trinitas

within one week of decedent's death identify Stirling four separate times as a

physician who provided care to decedent during the short time he was in the

hospital prior to his death. In a report dated October 13, 2016, the date of

decedent's surgery, Stirling is identified as decedent's "attending" physician.

Two other report s

, from th at same day

, are electronically signed by Stir ling and

include his assessments of post

- surgical changes in catheters and support

devices and other information concerning decedent's care and treatment.

The nurses' notes included in the Trinitas records also identify a "Dr.

Sterling" as a physician wh o provided care for decedent. The October 13, 2016

nurses' notes refer to "Dr. Sterling" twice

. The state Dr. Sterling was at

decedent's bedside and reviewed a CT scan, and they separately state Dr.

"Sterling" "advised [the] surgery [department] to transfuse [the] patient

regar[d]less." The record does not include evidence plaintiffs attempted to

identify the "Dr. Sterling" referred to in the nurses' notes or to determine if the

"Dr. Sterling" to which reference is made was the surg eon, the same individual14 A

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referenced elsewhere in the records as Stirling, or someone else who provided

care to decedent.

In any event, the Trinitas records establish that

, although plaintiffs were

not immediately provided an operative report identify ing Stirling as decedent's

surgeon, within one week of decedent's death plaintiffs had reason to know

Stirling was a physician

— an "attending physician"

— who provided care and

treatment to decedent. In addition, the nurses' notes clearly indicated that a Dr.

St erling provided care and treatment to decedent related to the surgical

procedure. In February 2017, Trinitas provided the medical records to plaintiff s'

counsel, and although the records lac k ed an operative report, they identified

Stirling as a physician who provided care and treatment to decedent

, and a

separate Dr. Sterling as physician who provided care and treatment to decedent,

during his tragical ly short hospital stay at Trinitas

. 5

5 We observe that plaintiff s' timely filed 2018 initial complaint, and 2019 second

a mended complaint which asserted claims against Stirling for the first time, do

not expressly allege malpractice during the performance of the surgical

procedure. The complaints more generally allege negligence in the care and

treatment of decedent during his October 13 and 14, 2016 admission to Trinitas.

Thus , the medical records plaintiff s received shortly after decedent's death and

their counsel received from Trinitas three months later indicate Stirling was

involved in the care and treatment of decedent the complaints alleged were

negligently provided. As such , within a week of decedent's death, plaintiff s had

medical records identifying Stirling as a provider of care and treatment the15 A

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Moreover, Yanez testified she wat ched decedent's surgery and spoke to

Stirling initially after the first part of the surgery and again after the second part

of the surgery. She did not know Stirling's name at that time

. However,

following the surgery she also spoke with Cordero, with wh om she was familiar

,

about the surgery. Thus, Yanez knew on the day of the surgery that the doctor

who performed the procedure, with who m she spoke twice

, was not Cordero

.

She also knew Cordero was not the surgeon because she watched the surgery

and spoke to the surgeon whose name was not known to her at the time.

Given those circumstances, we reject plaintiffs ' claim they are entitled to

the benefit of the discovery rule because Yanez could not have known Cordero

was not the surgeon until he answered interrogatories in June 2019

, identifying

Stirling as the surgeon. Yanez's testimony confirms she knew Cordero was not

the surgeon because he was familiar to h er and she observed a different doctor,

whose name she did not know, perform the surgery, and she to the surgeon

twice

— once during and once after the procedure.

timely filed initial complaint alleged was negligently provided, but plaintiff s did

not name Stirling as a defendant until almost three years after first receiving the

records. Additionally, and as noted, the nurses' notes also referred to a Dr.

Sterling as having provided care and treatment to decedent and there is no

evi dence in the record plaintiffs made any effort to determine the identity of that

doctor or to determine, as is likely, that the Dr. Sterling referred to in the nurses'

notes is actually Sterling.16 A

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Yanez admitted she did not know the name of the surgeon, and the medical

records provided by Trinitas to plaintiff s and their counsel long before the

statute of limitations expired in October 2018 did not identify the surgeon. T he

records were not misleading. The y did not incorrectly identify the surgeon or

indicate Cordero was the surgeon. Yet, despite the lack of any identification of

the surgeon in the medical records , the references to Stirling and doctors other

than Cordero in the records, 6 Yanez 's observation of a doctor performing the

surgery who she knew was not Cordero, and Yanez 's admitted inability to

identify the surgeon by name , plaintiff s do not present any evidence of any direct

effort to ascertain the surgeon's identity prior to the exp iration of the two

- year

statute of limitations.

Plaintiff s argue their counsel requested an operative report from Trinitas

and was advised one did not exist, only to later obtain during discovery an

operative report identifying Stirling as the surgeon. Plaintiff s' reliance on the

requests for the operative report, and the late delivery of it to their counsel, does

not explain or excuse the lack of any other effort to ascertain the identity of the

surgeon who perform ed the procedure prior to the expiration of the limitation s

6 The medical records identify other physicians who provide d care and treatment

to decedent on October 13 and 14, 2016 , including "Dr. Sterling."17 A

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period. Again, Yanez testified she not know the identity of the surgeon whose

malpractice plaintiffs allege caused, or contributed to cause

, decedent's death

.

The absence of an operative report providing the surgeon's ident ity should have

provided an impetus to diligently look elsewhere so the surgeon could be

identified and timely named as a defendant.

The discovery rule delays the accrual of a cause of action " until the injured

party discovers, or by an exercise of reasonable diligence and intelligence

should have discovered that he may have a basis for an actionable claim." R.L.

v. Voytac , 199 N.J. 285, 299 (2009) (quoting Lopez , 62 N.J. at 272). Where "a

plaintiff knows of an injury and that the injury it due to the fault of another, he

or she has a duty to act." Caravaggio

, 166 N.J. at 249

- 50.

Here, there i s no evidence plaintiff s acted diligently to ascertain Stirling's

name prior to the expiration of the limitations periods in the statutes of

limitations appli cable to their claims

. A s the motion court aptly observed

,

Yanez could have easily asked Cordero for the surgeon's name either on the day

of surgery or during a follow up inquiry prior to the expiration of the limitations

period. As our Supreme Court has explained,

When a plaintiff knows or has reason to know that he

has a cause of action against an identifiable defendant

and voluntarily sleeps on his rights so long as to permit

the customary period of limitations to expire, the18 A

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- 20 p ertinent considerations of individual justice as well as

the broader considerations of repose, coincide to bar his

action.

[ Kendall

, 209 N.J. at 191 (quoting Farrell v. Votator

Div. of Chemetron Corp.

, 62 N.J. 111, 115 (1973) ).]

For those reasons, we are convinced the motion court correctly concluded that

in the absence of any evidence of a diligent effort to identify Stirling, the

discovery rule did not delay the accrual of plaintiff s' survivorship and tort claims

such as to render the Aug ust 2019 complaint against Stirling timely.

Plaintiff also contends her initial complaint, which was filed within two

years of the alleged malpractice and decedent's death, should be deemed timely

as to Stirling under the fictitious defendant rule, R. 4:26

- 4. In pertinent part, the

Rule provides:

In any action

. . . if the defendant ' s true name is

unknown to the plaintiff, process may issue against the

defendant under a fictitious name, stating it to be

fictitious and adding an appropriate description

sufficient for identification. Plaintiff shall on motion,

prior to judgment, amend the complaint to state

defendant ' s true name [.]

[ R. 4:26

- 4.]

The Rule allows "a plaintiff who institutes a timely action against a

fictious defendant to amend the complaint after the expiration of the statute of

limitations to identify the true defendant." Viviano v. CBS, Inc.

, 101 N.J. 538,19 A

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548 (1986). When the p rocedure available under the Rule is "properly utilized,

'an amended complaint identifying the defendant by its true name relates back

to the time of the filing of the original complaint. ' " Baez v. Paulo

, 453 N.J.

Super. 422, 437 (App. Div. 2018) (emphasi s in original) (quoting Viviano

, 101

N.J. at 548).

The fictitious party rule "may only be used by a plaintiff 'if a defendant's

true name cannot be ascertained by the exercise of due diligence prior to filing

the complaint.'" Id. at 438 (quoting Claypotch v. Heller, Inc.

, 360 N.J. Super.

472, 479

- 80 (App. Div. 2003 ) ). As we explained in Baez

, a plaintiff "must

demonstrate two phases of due diligence in order to gain the tolling benefits of

the rule." I d

. at 439. A plaintiff mus t first demonstrate they "exercise[d] due

diligence in endeavoring to identify the responsible defendant[] before filing the

original complaint naming John Doe parties." Ibid. A plaintiff must also

demonstrate they "act[ed] with due diligence in taking p rompt steps to substitute

the defendant's true name, after become aware of that defendant's identity." Ibid.

Here, for the reasons we have explained, plaintiffs have not demonstrated

they exercised due diligence in endeavoring to identify Stirling prior to the filing

of the initial complaint. Again, the record lacks evidence plaintiffs made any

effort to ascertain Stirling's name prior to the filing of the complaint even though20 A

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Yanez knew Cordero did not perform the surgical procedure, Yanez knew a

doctor other than Cordero performed the procedure, and Stirling was mentioned

four different times in the medical records that were first provided to Yanez one

week after decedent's death and pr ovided three months later to plaintiffs'

counsel.

Plaintiffs simply present no evidence they exercised due diligence to

ascertain the identity of the surgeon who performed the procedure prior to the

filing of the initial complaint. They stand in the sam e shoes as the plaintiff in

Matynska v. Fried , who asserted a medical malpractice claim

, following a

surgical procedure

, against various identified doctors and nurses, as well as

fictitiously named defendant doctors. 175 N.J. 51, 52 (2002). One of the do ctors

who treated the plaintiff following the surgery was identified twice in the

medical records as having provided care to the plaintiff, but the doctor was not

named as a defendant in the original complaint. Ibid.

The Supreme Court affirmed the tria l court's denial of the plaintiff's

motion to amend the complaint to substitute the unnamed doctor as one of the

fictitiously named defendants under Rule 4:26

- 4. Id. at 53. The Court explained

the plaintiff's "efforts to discover the role of all parties complicit in her injury

were wholly inadequate at least insofar as" that doctor was concerned. Ibid.21 A

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The Court noted the hospital records included the doctor's name and indicated

the doctor provided care to the plaintiff. Ibid. The Court also observed that a

review of a telephone book, a call to another doctor, or a call to the hospital

would have revealed the doctor's status and therefore would have alerted

plaintiff of the doctor's role in providing the care at issue. Ibid.

The Court concluded the plaintiff was not entitled to the benefit of the

fictitious party rule, R. 4:26

- 4. Ibid. The Court reasoned the plaintiff did not

"cross the due diligence threshold" because she failed "to investigate all

potentially responsible parties in a timely mann er," and she did not fulfill her

"primary obligation to investigate" the role of the defendant, whose name

appeared in the medical records. Ibid.

The same is true here. Stirling's name appeared four times in the medical

records provided within a week of decedent's death. In one instance

, Dr. Stirling

is identified in the records as decedent's "attending physician." Yet, plaintiffs

took no action to ascertain his precise role in providing care to decedent

— or to

determine if he was the surgeon whose iden tity Yanez admitted was not known

to her

— at any time prior to the filing of the initial complaint. We therefore

conclude, as the Court did in Matynska , that plaintiffs' failure to demonstrate

due diligence to ascertain the identity of the surgeon, and Stirling's role in the22 A

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care and treatment of decedent based on his name appearing the medical records,

requires rejection of plaintiffs' reliance on Rule 4:26

- 4.

We also find no merit in plaintiffs' argument the court erred by denyi ng

their request for a Lopez hearing to determine the accrual date of their causes of

action under the discovery rule

. A Lopez hearing provides an opportunity for

the "equitable claims of opposing parties [to] be identified, evaluated and

weighed" by the trial court before determining the date upon which a plaintiff

became aware of the facts giving rise to the cause of action. Lopez , 62 N.J. at

27 4 . "The burden of proof will rest upon the party claiming the indulgence of

the rule." Id. at 276.

"A pla intiff who invokes the discovery rule is not always entitled to a

hearing. 'A Lopez hearing is only required when the facts concerning the date

of the discovery are in dispute.'" J.P. v. Smith , 444 N.J. Super. 507, 528 (App.

Div. 2016) (quoting Henry v. N.J. Dep't of Human Servs. , 204 N.J. 320, 336 n.6

(2010)). W here "the record

. . . unquestionably establishes [a] plaintiff's

awareness of the essential facts, no formal hearing [is] necessary to resolve the

discovery rule issue." Lapka v. Porter Hayden Co. , 162 N.J. 545, 558 (2000).

Plaintiffs' claim they are entitled to a Lopez hearing is founded on their

intention to present four witnesses (Yanez, plaintiffs' malpractice expert Dr.23 A

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Benjamin Jackson, plaintiffs' counsel, and Valdary Campos, a Trinitas

employee). The court reviewed the proffered testimony of Yanez, Dr. Jackson,

and plaintiffs' counsel , and concluded the proffer did not offer any facts

pertinent to the delay in plainti ffs' identification of Stirling that did not exist in

the summary judgment record. Moreover, plaintiffs do not proffer any putative

evidence Campos might provide at a hearing that would support plaintiffs'

reliance on the discovery rule. The court also f ound the summary judgment

record established all the facts upon which plaintiffs relied in support their

discovery rule argument

, and plaintiff failed to demonstrate the proffered

testimony was pertinent to determination of the accrual date of the asserted

causes of action.

Based on our careful review of the record, w e discern no abuse of

discretion in the court's assessment of the proffered testimony and determination

a Lopez hearing was unnecessary. See Lopez , 62 N.J. at 275 (explaining a trial

court's decision to conduct a hearing on the accrual date of a cause of action

under the discovery rule is reviewed for an abuse of discretion). Plaintiffs fail

to make any showing the court's decision was made without a rational

explanation, inexplicably depart ed from established policies, or rested on an

impermissible basis. Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment , 44024 A

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N.J. Super. 378, 382 (App. Div. 2015) (explaining the abuse

- of

- discretion

standard of review of trial court decisions). We therefore affirm the court's

denial of plaintiffs' request for a Lopez hearing. For the same reasons, we affirm

the court's denial of plaintiffs' motion for reconsideration of the order denying

their request for the Lopez hearing.

Plaintiff s' remaining arguments that we have not directly addressed are

without sufficient merit to warrant discussion in a written opinion. R. 2:11

-

3(e)(1)(E).

Affirmed.