The opinion
NOT FOR PUBLICATION WITHOUT THE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-0393-23
JEAN-PHILIPPE DIERO,
Plaintiff-Appellant,
v.
ERIC S. KIM (Driver and owner
of car), SELENA SOTO (Driver
of car), DANIEL C. SOTO (In his
capacity as owner of the car), 1
Defendants-Respondents.
____________________________
Submitted January 14, 2025 – Decided January 23, 2025
Before Judges Smith, Chase and Vanek.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-1178-22.
Rotimi A. Owoh, attorney for appellant.
Law Office of Michael G. David, attorneys for
respondent Eric Kim (Michal A. Brown, on the brief).
1
Improperly pled below as Eric Kim, Selena Seto and Daniel C. Seto.
Gerolamo, McNulty, Divis, Lewbart & Fox, attorneys
for respondents Selena Soto and Daniel C. Soto (John
A. Dougherty, on the brief).
PER CURIAM
Plaintiff Jean-Phillipe Diero appeals from the orders dismissing his
personal injury claim for failure to comply with the treating physician
permanency certification requirements of N.J.S.A. 39:6A-8(a). We affirm.
I.
On November 2, 2021, a three-car accident occurred between plaintiff,
defendant Selena Seto, and defendant Eric Kim. Kim was traveling southbound
on Clarksville Road while Seto was traveling northbound. Plaintiff attempted a
left turn from Everett Road onto Clarksville Road and entered the northbound
lane of traffic resulting in a collision with Seto. Seto's vehicle was pushed into
oncoming traffic and struck Kim's vehicle. The vehicle operated by Selena Seto
was owned by Daniel Seto.
In July 2022, plaintiff filed a complaint for personal injuries and property
damage arising out of the accident. Kim immediately served plaintiffs with a
Demand for Form A Interrogatories, Supplemental Interrogatories, a Notice to
Produce and Requests for Admissions. At the beginning of August, Kim filed
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an answer containing a demand for answers to interrogatories, a demand for
production of documents, and a notice in lieu of subpoena.
In November 2022, the Setos filed a motion to dismiss plaintiff's
complaint without prejudice for failure to produce a certificate of permanency
and estimates of damages to plaintiff's vehicle. Kim also filed a motion to
dismiss. Plaintiff filed a cross motion to compel discovery from defendants.
While the motion to dismiss was still pending, the Setos filed a motion to compel
plaintiff's discovery responses. In May 2023, the court heard the motions and
entered an order compelling plaintiff to produce a certificate of permanency on
or before June 7, 2023, as well as provide property damage estimates. The court
partially granted plaintiff's motion.
When plaintiff failed to comply with the May order, all defendants moved
for a second time to dismiss plaintiff's complaint without prejudice. The motion
was granted in June 2023. After sixty days expired with no production of the
certificate of permanency nor damage estimates, both defendants moved to
dismiss plaintiff's complaint with prejudice.
On October 5, 2023, following a hearing, the court dismissed the matter
with prejudice for failure to comply with the May 2023 order, failure to provide
a Physician's Certification of Permanency as required by N.J.S.A. 39:6A-8(a),
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failure to provide property damage estimates, and failure to produce plaintiff at
a deposition. The court noted that its May order had not been complied with as
of the date of the hearing, which was fifteen months after the lawsuit was filed.2
This appeal follows.
II.
"[T]he standard of review for dismissal of a complaint with prejudice for
discovery misconduct is whether the trial court abused its discretion, a standard
that cautions appellate courts not to interfere unless [an injustice has been]
done." Abtrax Pharms, Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995) (citing
Allegro v. Afton Village Corp., 9 N.J. 156, 158, 161 (1952)). Further, our court
has "recognize[d] that 'there is a natural tendency on the part of reviewing
courts, properly employing the benefit of hindsight, to be heavily influenced by
the severity of outright dismissal as a sanction for failure to comply with a
discovery order.'" Id. at 517-18 (quoting Nat'l Hockey League v. Metro. Hockey
Club, Inc., 427 U.S. 639, 642 (1976)). Dismissal is not an abuse of discretion
where the trial court, "find[s] deliberate and contumacious conduct and [ ]
2
After plaintiff appealed, he filed a motion for a temporary remand, attaching
a certificate of permanency dated November 2023. His motion was denied by
this court.
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conclud[es] that the extreme sanction of dismissal was appropriate . . . ." Id. at
520.
III.
Plaintiff contends on appeal that dismissing the lawsuit with prejudice was
unfair since he was attempting to obtain the certificate of permanency. Plaintiff
further argues that he "cannot force his medical care providers to issue a
certificate of permanency." Plaintiff also posits that a certificate of permanency
was not necessary for economic claims and the trial court erred by not stating
its reasons for dismissing his economic claims. We are not persuaded.
The Automobile Insurance Cost Reduction Act (AICRA) permits claims
for non-economic loss only where the injured party "has sustained a bodily
injury which results in . . . a permanent injury within a reasonable degree of
medical probability, other than scarring or disfigurement." N.J.S.A. 39:6A-8(a).
To overcome this limitation on lawsuits, or verbal threshold, "the injury [must]
be proven by objective credible [medical] evidence." Serrano v. Serrano, 183
N.J. 508, 514 (2005).
AICRA requires a plaintiff to provide, within sixty days of the answer to
the complaint, "a certification from the licensed treating physician or a board -
certified licensed physician to whom the plaintiff was referred by the treating
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physician" which states the plaintiff's injury is permanent and is "based on and
refer[s] to objective clinical evidence . . . ." N.J.S.A. 39:6A-8(a). This focus on
objective evidence prevents lawsuits based only on a plaintiff's subjective
reports from proceeding. "Those rigorous standards . . . were intended to ensure
that only honest and reliable medical evidence and testing procedures would be
introduced to prove that an injury meets the threshold." DiProspero v. Penn,
183 N.J. 477, 489 (2005). The law permits a court to "grant no more than one
additional period not to exceed [sixty] days to file the certification pursuant to
this subsection upon a finding of good cause." N.J.S.A. 39:6A-8(a).
"[A] plaintiff who fails to file a timely certification is subject to an array
of sanctions that include reimbursing the defendant with reasonable attorney's
expenses or dismissal of the complaint." DiProspero, 183 N.J. at 489. In
determining the appropriate remedy for a failure to file a timely certification,
courts make a discretionary determination "to choose a response that is
proportionate to the procedural stimulus" after considering "the facts, includin g
the willfulness of the violation, the ability of plaintiff to produce the
certification, the proximity of trial, and prejudice to the adversary . . . ."
Casinelli v. Manglapus, 181 N.J. 354, 365 (2004).
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While motions to dismiss with prejudice are rarely granted, "a party
invites this extreme sanction by deliberately pursuing a course that thwarts
persistent efforts to obtain the necessary facts." Abtrax Pharm., Inc., 139 N.J.
at 515. Failure to comply with discovery deadlines "represents one of the
paramount causes for trial delay" and such "[a]n unreasonable delay in bringing
a matter to trial is one of the foremost causes of injustice." Crews v. Garmoney,
141 N.J. Super. 93, 95-96 (App. Div. 1976). "Rule 4:23–5(a)(1) applies to
demands for interrogatories (R. 4:17), demands for documents (R. 4:18–1), and
demands for medical examinations (R. 4:19)." Kwiatkowski v. Gruber, 390 N.J.
Super. 235, 236 (App. Div. 2007).
If a delinquent party fails to cure its discovery defalcations and thereby
restore a complaint that was dismissed without prejudice under Rule 4:23-
5(a)(1), then the aggrieved party may move to the second and final step of the
process. That is, "if the delinquent party does not cure the discovery
delinquency, 'the party entitled to the discovery may, after the expiration of
[sixty] days from the date of the order, move on notice for an order of dismissal
. . . with prejudice.'" Sullivan v. Coverings & Installation, Inc., 403 N.J. Super.
86, 93 (App. Div. 2008) (omission in original) (quoting R. 4:23-5(a)(2)).
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In terms of the required discovery, the court found that the Seto defendants
were not delinquent. Moreover, the court determined the certification of
permanency was due in May 2022 and, "[t]he Court in the exercise of great
indulgence allowed extensions of that timeframe and ultimately resulted in the
May 3rd orders, requiring that putting the plaintiff on notice that this had to be
provided by June 7th, 2023." The court listed plaintiff's infractions as it made
findings:
A failure to respond to document requests, which
includes the certification of permanency. Damages
estimate as well as the failure to produce the plaintiff at
deposition. The bottom line is that there's been no
exceptional circumstances set forth to explain why. I
mean there's been explanations, but not justification.
Nothing that this Court finds to be exceptional
circumstances as to why a certification of permanency
has not been provided. Basically, the argument is it
can't be provided or it can't be provided at this juncture.
It has to be provided in [plaintiff]'s suit. And it's not
been provided despite numerous extensions and
continued non-compliance with this Court's order of
May 3rd. The grounds are even augmented, especially
for the Kim[] defendants because they have additional
discovery dealing with discovery that still has not been
provided.
We recognize that dismissal of a complaint is a harsh remedy, yet the
policy considerations driving the enforcement of AICRA and its minimal
requirement of a treating doctor certification support the conclusions reached by
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the motion court. On various occasions, the court attempted to have plaintiff
comply with both the statutorily mandated certification and other discovery
requests. Here, not only did plaintiff fail to obtain a certificate of permanency
as required, but he also failed to comply with the other discovery deadlines
imposed on him. Despite this failure to comply with the statutory time
limitations of N.J.S.A. 39:6A-8(a), plaintiff's case was not dismissed until after
he obtained over a year of additional time to comply. Under these
circumstances, the trial court was well within its discretion to dismiss the matter
with prejudice.
To the extent we have not specifically addressed any other contentions
raised by defendants, they lack sufficient merit to warrant discussion in this
opinion. R. 2:11-3(e)(1)(E).
Affirmed.
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