SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION DOCKET NO. A-1486- 22 HELEN F. YATES, Administratrix Ad Prosequendum for the Estate of WILLIAM R. YATES, Plaintiff-Appellant,

v.PORT AUTHORITY TRANSHUDSON CORPORATION, Defendant-Respondent.

_________________________

Submitted February 14, 2024

– Decided August 22, 2024Before Judges Vernoia, Gummer and WalcottHenderson. On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L

- 03 29- 21. Thomas J. Joyce, III (Marc J. Bern & Partners, LLP) , attorney for appellant. Thomas R. Brophy (Port Authority Law Department), attorney for respondent.
PER CURIAM NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court.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 parti es in the case and its use in other cases is limite d. R. 1:36- 3.2 A- 1486

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Plaintiff Helen Yates as administratrix ad prosequ endum for the Estate of William R. Yates, her late husband, appeals from an order entered on December 6, 2022, granting summary judgment in favor of defe ndant Port Authority TransHudson Corporation (PATH). Plaintiff did not produ ce an expert report before the discovery deadline or a certificate of due dili gence pursuant to Rule 4:17 -7 when she provided in opposition to defendant's summ ary-judgment motion a report from an expert whom she had not named in her answers to interrogatories. The motion judge on the record barred the late repo rt and entered an order on December 6, 2022, granting defendant's summary-judg ment motion "subject to further rulings by [the Civil Division presiding ju dge] regarding reopening discovery." We affirm that order. The decedent worked for PATH from 1998 to 2016, fir st as a train car cleaner and then as a car repairman. In those roles, his responsibilities included cleaning, inspecting , and repairing and replacing floor tiles in the trai n cars and "gackey plates" located under the cars. He was als o a tobacco cigarette smoker He was diagnosed with lung cancer on July 4, 2018, and died on July 29, 2018. On January 25, 2021, plaintiff filed a complaint un der the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51 to 60, alleging that PATH had "failed to provide . . . [d]ecedent with a reas onably safe place to work as3 A- 1486

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required by the FELA" and failed to: "take any effe ctive action . . . to minimize or eliminate . . . [d]ecedent's exposure to diesel exhaust, asbestos and second hand smoke[,]" including, "to test its diesel locom otives" and employees; "make reasonable efforts to inspect or monitor the levels /amounts of exposure"; further "engage in follow up monitoring"; "properly remedia te known toxic substances including diesel exhaust, asbestos and second-hand smoke"; "warn . . . [d]ecedent of the risk of contracting c ancer" ; and provide decedent with protective equipment. Plaintiff claimed "defe ndant's negligence, in whole or in part, caused [ or ] contributed to the development of [d]ecedent's lu ng cancer and death." Following the filing of defendant's answer on March 28, 2021, the case was assigned a discovery end date of February 22, 2 022, pursuant to Rule 4:24

- 1(a). On July 1, 2021, PATH served its demand for production of documents and request for answers to interrogatories on plain tiff. In her interrogatory answers, plaintiff identified her "liability expert " as Hernando Rafael Perez, an
in dustrial hygienist, and indicated that he was expec ted to testify about "PATH's negligence and [d]ecedent's exposure to harmful tox ic substances." She also named "Dr. Newman," who would "opine that [p]lainti ff[']s exposure to diesel4 A- 1486

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fuel, asbestos and secondhand smoke caused or contr ibuted to his diagnosis of lung cancer." The reafter, discovery was extended by stipulation of t he parties and later by the court in an April 29, 20 22 order , and a new discovery end date of August 21, 2022, was set. In that same order, the court set other deadlines, requiring the depositions of all fact witnesses to be completed by May 19, 2022, pl aintiff 's expert reports to be served by June 19, 2022, and d efendant's expert reports to be served by July 19, 2022. The parties participated in mandatory arbitration o n September 21, 2022. Plaintiff did not produce an e xpert report before any of those deadlines. On October 21, 2022, defendant moved for summary ju dgment, arguing in pertinent part, defendant had not received any e xpert report from plaintiff and that "none of decedent's medical records reflect an opinion that the decedent's cancer was caused by chemical exposure at PATH and instead reflect that he was a smoker for forty years." Defendant argued th at because plaintiff had not produced an expert report linking decedent's allege d exposure to chemicals while working at P ATH to his diagnosis of lung cancer, plaintiff could no t establish causation

– an essential element in any negligence suit

– and summary judgment was warranted.5 A- 1486

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On November 10, 2022

— nearly five months after the court-ordered deadline for plaintiff's expert reports

— plaintiff attached a report from Mark Levin, M.D., as an exhibit to her brief in opposition to defendant's summaryjudgment motion. In his report, Dr. Levin referenc ed and relied on "Dr. Hernando Perez's industrial hygiene report," though that report was never produced. On November 30, 2022, the court set a tr ial date of February 14,
2023. On December 1, 2022, plaintiff moved to extend disc overy. In her brief
in support of the motion, plaintiff argued "defendant has intentionally and deliberately failed to properly answer [p]laintiff' s Interrogatories and Request for Production of Documents." In plaintiff’s counsel's certification in support of the motion, he certified that "[p]laintiff needs more time to obt ain her liability expert report from Dr. Hernando Perez who is [p] laintiff’s industrial hygiene expert." Counsel made that assertion despite Dr. L evin' s purported reliance on "Dr. Perez’s Industrial hygiene report" in his November 10, 2022 report. On December 6, 2022 , the court entered summary judgment in defendant's favor, in part finding plaintiff could not sustain her burden of proving defendant's alleged negligence in the absence of a ti mely-served report from her liability expert. The court further explained that plaintiff could make an6 A- 1486

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application to the civil presiding judge for an ext ension of time to supply the report. The judge entered an order that included the follow ing language:
1. Motion is GRANTED (subject to further rulings by [the presiding judge] regarding reopening discovery).
2. The [c]ourt makes no finding as to whether [p]laintiff’s expert opinion is a net opinion.
3. Defendant may refile that motion in the future, if necessary, if further discovery is permitted. On January 6, 2023, the presiding j udge denied plaintiff's first motion to extend discovery, finding:

[Rule] 4:24 -1(c) requires a proposed form of [o]rder for a discovery extension [a nd] shall describe the proposed discovery to be completed and set forth the propose d dates of completion. This rule is over [twenty- two] years old. This [p ]roposed form of [ o] rder violates that rule. Any further requests to extend discovery mus t be made by formal motion. On January 20, 2023, plaintiff appealed from the Decemb er 6, 2022 order granting summary judgment in favor of defendant. O n February 7, 2023, while plaintiff's appeal was pending, plaintiff filed in the Law Division a second motion to extend discovery, arguing that she could show "exceptional circumstances" as required under Rule 4:24 -1(c) and that discovery remained7 A- 1486

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incomplete because "defendant's counsel blatantly r efused to provide any meaningful discovery [with] regard to [decedent's] exposure to asbestos while working for PATH from 1998 to 2016" and the co-work ers plaintiff had intended to call as witnesses to corroborate decedent's expo sure to asbestos at PATH have all since retired and "had signed agreements . . . that they would not testify against [defendant] in any FELA litigation." The court denied plaintiff's motion without prejudi ce and without reaching the merits of the motion as plaintiff had failed to provide courtesy copies to the

court. 1 No other discovery motions were filed, and plaintif f did not appeal from the orders denying the motions to extend discovery. On appeal, plaintiff raises the f ollowing argument s for our consideration:
I. THE TRIAL COURT ABUSED ITS DISCRETION BY EXCLUDING THE EXPERT REPORT OF MARK LEVIN, M.D. II. THE TRIAL COURT ERRED IN RULING AS A MATTER OF LAW THAT THERE WERE NO GENUINE ISSUES OF MATERIAL FACT. In her notice of appeal, plaintiff indicated she wa s appealing from the December 6, 2022 summary-judgment order. She did not referen ce the discovery orders in

1 Rule 1:6 -4 provides that, upon filing a motion, "a copy of all motion papers shall also be simultaneously submitted to the judge ."8 A- 1486

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her notice of appeal or case information statement, did not submit amended notices of appeal to include those orders in her ap peal, and did not file separate notices of appeal from those orders.
I. We review a grant of summary judgment de novo , Gilbert v. Stewart, 247 N.J. 421, 442 (2021), applying "the same standard a s the trial court," State v. Perini Corp., 221 N.J. 412, 425 (2015). Summary ju dgment is proper if the record demonstrates "no genuine issue as to any mat erial 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)). Applying this standard, we are not persuaded the court erred in granting defendant's motion for summary judgment based on th e absence of a timely expert report establishing causation. As argued by defendant, "[p]laintiff's late amendment to her interrogatories and late service o f her expert report violated every provision of R[ule] 4:17-7." We agree

. "FELA plaintiffs must prove the traditional common law elements of negligence: duty, breach, foreseeability, and causa tion." Stevens v. N.J. Transit Rail Operations, 356 N.J. Super. 311, 319 (App. Div . 2003) (citing Aparicio v.9 A- 1486

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Norfolk and Western R.R. Co., 84 F.3d 803, 810 (6th Cir. 1996)). "FELA's language on causation . . . 'is as broad as could b e framed.'" CSX Transp., Inc. v. McBride, 564 U.S. 685, 691 (2011) (quoting Urie v. Thompson, 337 U.S. 163, 181 (1949)). However, that broad language does not eliminate a plaintiff's obligation to prove causation or strip from a trial judge his or her role as "the gatekeeper of expert witness testimony." In re Acc utane Litig., 234 N.J. 340, 389 (2018); see also

. Stevens, 356 N.J. Super. at 319. We begin our review by acknowledging the broad disc retion of courts to establish discovery deadlines. See Pomerantz Paper C orp. v. New Cmty. Corp. , 207 N.J. 344, 371 (2011) ( quoting Rivers v. LSC P'ship, 378 N.J. Super. 68, 80 (App. Div. 2005)) (" '[w]e generally defer to a trial court's dispositio n of discovery matters unless the court has abused its d iscretion[,] or its determination is based on a mistaken understanding of the applicable law.' ")

. In addition, the "admission or exclusion of expert tes timony is committed to the sound discretion of the trial court." State v. Cot to, 471 N.J. Super. 489, 531 (App. Div. 2022) (quoting Townsend v. Pierre, 221 N .J. 36, 52 (2015)), certif. denied, 252 N.J. 166 (2022). In the absence of "'a clear abuse of discretion[,]'" we "'will not interfere with the exercise of that discretio n.'" State v. McGuigan ,10 A- 1486

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478 N.J. Super. 284, 306 (App. Div. 2024) (quoting Nicholas v Hackensack Univ. Med. Ctr., 456 N.J. Super. 110, 117 (App. Div . 2018)).
He re, plaintiff failed to provide any expert reports by the June 19, 2022 deadline set in the court's April 29, 2022 discover y order, and before the discovery end date. Instead, she submitted an unti mely expert report

— from a previously unnamed expert

— three months after the close of discovery in her opposition to defendant's motion for summary judgment. We also note that in granting the motion for summar y judgment, the judge did not prevent plaintiff from moving to reopen dis covery but expressly stated entry of its order granting summary judgment was su bject to the presiding judge's determination regarding reopen ing discovery. Plaintiff's subsequent motions, however, were denie d; thus, plaintiff could

not supplement the record with an expert's opinion on causation , an essential element in any negligence action. Stevens, 356 N.J. Super. at 319 . Plaintiff did not appeal from the orders denying her discovery mo tions. Moreover, Rule 4:23 -5(b) provides: "[t]he court at trial may exclude the testimony of a treating physician or of any other e xpert whose report is not furnished pursuant to [Rule] 4:17 -4(a) to the party demanding the same." R. 4:23 -5(b). Under Rule 4:17 -7, amendments to interrogatory responses "shall be11 A- 1486

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served not later than [twenty] days prior to the en d of the discovery period" and "may be allowed thereafter only if the party seekin g to amend certifies therein that the information requiring the amendment was no t reasonably available or discoverable by the exercise of due diligence prior to the discovery end date." Absent a certification of due diligence, "the late amendment shall be disregarded by the court and adverse parties." R. 4:17 -7. A valid certification of due diligence must provide a "precise explanation that details the cause of delay and what actions were taken during the elapsed time." Bender v. Adelson, 187 N.J. 411, 429 (2006). Plaintiff's untimely submission of her expert repor t

— as an exhibit to her opposition to defendant's summary-ju dgment motion without a certificate of due diligence, did not conform to R ule 4:17

– 7

. Plaintiff's reliance on cases that predate the 2000 Best Practices rule amendments, requiring "stricter compliance with the discovery time frames than theretofore," see Pressler & Verniero, Current N.J. Court Rules, cmt. 1.1 on R. 4:17 -7 (2024), is misplaced. As stated by the Bender C ourt:

. . . Prior to the amendment of the rules, parties to litigation were expected to complete discovery with in 150 days of service of the complaint. . . . However , that deadline was "rarely observed," and "attorneys [wer e] routinely granted extensions [with] no enforced discovery end date."

. . . .12 A- 1486

- 22 The Best Practices project resulted in rules that established a two-prong approach to ameliorate thos e problems and create state-wide uniformity in the discovery process. . . . [A]lthough the amended rul es still permit extensions to discovery and amendments to interrogatories, they render it substantially more difficult to obtain extensions and amendments once discovery has ended and a trial or arbitration date is set. . . . The revised rules represent a carefully orchestrated compromise intended to "end[ ] the general expectation that a case [will] be reached f or trial only after multiple adjournments." [187 N.J. at 426 (internal citations omitted).] Plaintiff's reliance on Salazar v. MKGC + Design, 4 58 N.J. Super. 551 (App. Div. 2019), and Hall v. Zuckerman, 202 N.J. S uper. 455 (App. Div. 1985), is also misplaced. Plaintiff relies on those cases to support her argument that dismissal of her complaint was too harsh a penalty for her admittedly late submission of her expert report. But Salazar and Hall involved discovery sanctions the court had issued, not an order granti ng a party's summaryjudgment motion. In Salazar, the defendants moved for discovery sanctions purportedly under Rule 4:23 -5; the plaintiffs cross-moved to extend discovery with the consent of all parties. 458 N.J. Super. at 555. Ignoring the flaws in the defendants' motion and the defendants' own discover y failures, the court denied the cross-motion and granted the motion, sanctionin g the plaintiffs by barring13 A- 1486

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them introducing at trial any evidence of damages n ot produced during discovery. Ibid. At trial, the court granted the defendants' motion for involuntary dismissal "based on the absence of any damage proofs." Id. at 556. In Hall, the court at trial limited the testimony of the expe rts the defendants had disclosed during discovery because they had not pro vided written reports, resulting in a judgment on damages we reversed due to "trial errors in evidential rulings." 202 N.J. Super. at 458-59. Plaintiff's complaint wasn't dismissed as the resul t of a discovery sanction. It was dismissed when the court granted defendant's summary-judgment motion. In response to that motion, plaintiff did not cross -move to extend discovery. With no leave to do so, plaintiff submitted in resp onse to the motion a late report from an expert witness she hadn't even named in dis covery. Those circumstances are very different from the facts and procedural histories underlying Salazar and Hall. Under the circumstanc es of this case, we discern no error in the court's consideration of the summar y-judgment motion before it or in its grant of the motion in favor of defendant in the absence of a validlyand timely-submitted expert report establishing cau sation, an essential element of her claim against defendant.14 A- 1486

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Plaintiff attributes the delay in serving the exper t report to defendant's failure to "properly answer [her] Interrogatories a nd Request for Production of Documents," arguing that defendant did not come bef ore the court with "clean hands." However, at no time did plaintiff move to compel discovery from defendant. Instead, the record shows that plaintif f's counsel communicated via email about the need to supplement discovery, and d efense counsel provided three supplemental answers to interrogatories. Pla intiff's suggestion that her expert report was untimely because of defendant's a ctions is also unsupported by the record, and had plaintiff provided the requi site certificate of due diligenc e along with her motion to extend discovery, the cour t would have had a clearer picture of the attendant circumstances. Without a certi ficate of due diligence or any "precise explanation that details the cause of delay and what actions were taken . . . proving due diligence," Bender, 187 N.J . at 429, plaintiff's argument the court erred by not accepting the late expert report is unavailing. Plaintiff failed to comply with the deadlines set f orth in the April 29, 2022 order, which extended the discovery period and set a new discovery end date

. After the discovery end date, defendant moved for s ummary judgment. Without cross-moving to extend discovery or for leave to su bmit late an expert report and without a Rule 4:17 -7 certification, plaintiff submitted in opposition to the15 A- 1486

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motion a report from an expert witness she had not previously named in discovery. No rule of court or caselaw permits the procedure plaintiff followed in this case. In deciding the summary-judgment mot ion, the motion judge correctly declined to consider the late report from an undisclosed expert plaintiff had no authority to submit. Having failed to submit timely an expert report in accordance with the April 29, 2022 order and applicable Rules of Court , plaintiff was unable to establish a prima facie case for negligence and acc ordingly, summary judgment was appropriate. Affirmed.