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NOT FOR PUBLICATION WITHOUT THE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-2074-23
MARGARETE HYER,
Plaintiff-Appellant,
v.
VILLAGE OF RIDGEWOOD
BOARD OF EDUCATION, DR.
DANIEL FISHBEIN,1 ANGELO
DESIMONE, ANTHONY S.
ORSINI, GREG WU, STEVEN
TICHENOR, SODEXO, a/k/a
SODEXO USA, and/or SODEXO,
INC., GCA SERVICES GROUP
INC., a/k/a GCA EDUCATION
SERVICES INC., ARAMARK,
a/k/a ARAMARK SCHOOLS
FACILITIES, LLC, ARAMARK
SCHOOLS, INC., ARAMARK
EDUCATIONAL GROUP, LLC,
ARAMARK EDUCATIONAL
SERVICES, LLC, and/or
ARAMARK EDUCATIONAL
GROUP, INC.,
Defendants-Respondents.
_____________________________
1
Improperly plead as Daniel Fishbien.
Argued September 10, 2025 – Decided September 29, 2025
Before Judges Mayer, Gummer, and Jacobs.
On appeal from the Superior Court of New Jersey, Law
Division, Bergen County, Docket No. L-4141-20.
Scott Piekarsky argued the cause for appellant (Offit
Kurman PA, attorneys; Scott Piekarsky, on the briefs).
Gina M. Zippilli-Matero argued the cause for
respondent Village of Ridgewood Board of Education
as to the dismissal of Counts One and Five (Capehart &
Scatchard, PC, attorneys; Gina M. Zippilli-Matero, of
counsel and on the brief).
Patrick W. Brophy argued the cause for respondent
Aramark Management Services Limited Partnership
(McMahon, Martine & Gallagher, LLP, attorneys;
Patrick W. Brophy, on the brief). 2
Ruby Kumar-Thompson argued the cause for
respondent Village of Ridgewood Board of Education
as to Counts Two, Three and Four, and respondents
Angelo DeSimone, Gregory Wu, Anthony Orsino, Dr.
Daniel Fishbein and Steven Tichenor as to Counts One
and Five (Cleary Giacobbe Alfieri Jacobs, LLC,
attorneys; Ruby Kumar-Thompson, of counsel and on
the brief).
2
Plaintiff named the following Aramark entities as defendants: Aramark a/k/a
Aramark Schools Facilities, LLC; Aramark Schools, Inc.; Aramark Educational
Group, LLC; Aramark Educational Services, Inc.; and Aramark Educational
Services, LLC. Aramark Management Services Limited Partnership filed an
answer, indicating plaintiff had incorrectly sued it as those entities. For ease of
reading, we refer to the Aramark defendants as Aramark.
A-2074-23
2
Kerry L. Jones argued the cause for respondent Sodexo
(Goldberg Segalla LLP, attorneys; Kerry L. Jones, of
counsel and on the brief).
PER CURIAM
Plaintiff Margarete Hyer appeals from successive orders dismissing her
complaint with prejudice for failure to obey court orders and a subsequent order
denying her motion for reconsideration. Having considered the record and
applicable principles of law, we affirm.
I.
Plaintiff worked as an art teacher for the Ridgewood Board of Education
("BOE") from September 1998 to January 2020. During her tenure, she held
class in a basement art studio at Benjamin Franklin Middle School. Plaintiff
claimed "severe occupational asthma" due to unsafe working conditions, forcing
her into early retirement. Specifically, plaintiff alleged the classroom "was
continuously damp, dark, smelled musty, and had poor ventilation and
circulation." Those conditions, perpetuated by defendants' alleged failure to
remediate, manifested "visible black mold" and "active leaks inside and outside
of the school building in or near the [a]rt [c]lassroom," purportedly causing
plaintiff to become "extremely ill."
A-2074-23
3
In July 2020, plaintiff filed a complaint and amended complaint against
defendants. Defendants BOE, Dr. Daniel Fishbein, Angelo DeSimone, Anthony
S. Orsini, Greg Wu and Steven Tichenor were named in counts one through five:
intentional failure to correct an unsafe work environment (count one); a
violation of the New Jersey Law Against Discrimination, N.J.S.A 10:5-1 to -50
("NJLAD") (count two); retaliation in violation of the NJLAD (count three),
violation of the Conscientious Employee Protection Act ("CEPA") (count four);
and intentional infliction of emotional distress ("IIED") (count five).
Defendants Sodexo, GCA Services Group Inc., and Aramark were named only
in count six (negligence).
As a Track Three case, the matter had 450 days of discovery. Over the
course of the next three years, the trial court entered seven orders extending
discovery. Most of those extensions were requested by plaintiff. We focus on
the orders and case management conferences leading to dismissal of the
complaint with prejudice.
On June 9, 2023, 1,052 days from filing of the amended complaint, the
court granted plaintiff's latest motion to extend discovery, setting October 15 as
the deadline to produce expert reports and November 25 as the discovery end
date. The order provided "that no further discovery extensions [would] be
A-2074-23
4
considered without a case management conference, which counsel may request
at any time." On July 20, counsel for the BOE notified the court that plaintiff
recently produced over 10,000 pages of documents and requested a case
management conference.
July 28, 2023 Case Management Conference
The court held a conference on July 28. BOE's counsel reported plaintiff
had submitted "large document productions several days before [her]
deposition," describing them as "five or six [d]ropboxes" exceeding "11,000
pages." Counsel further maintained that some of the documents produced were
incomplete, irrelevant, or not Bates-stamped as the court had required. The
judge questioned plaintiff's counsel regarding the delay in producing the
documents more than "a thousand days into the case." Plaintiff's counsel stated
plaintiff produced the documents in response to "multiple follow-up requests"
by defense counsel during her deposition. Defense counsel countered that the
document requests were for readily available information, such as names and
addresses of relevant witnesses — information plaintiff should have produced
months earlier.
The court issued an order that day setting a deadline of August 11 for
plaintiff to supplement her document production and provide, among other
A-2074-23
5
things, "HIPAA releases . . . for every care provider who [had] provided an index
of all Bates-stamped documents." The court precluded production of any
documents after that date, absent a motion for relief.
On August 15, the BOE advised the court that plaintiff had needlessly
reproduced documents. It also advised the court about receipt of HIPAA
authorizations for non-treating providers, medical reports from out-of-state
physicians not identified during previous depositions, dental receipts, and
reports of newly-claimed orthopedic injuries. The BOE subsequently moved
pursuant to Rule 4:23-2(b)(4) to dismiss the complaint for failure to comply with
the July 28, 2023 order. The BOE and the individual defendants 3 also moved to
dismiss the complaint for failure to obey a court order pursuant to Rule 4:23-
3(b)(3) and moved to bar the report of plaintiff's treating physician and medical
expert, Dr. Scott McMahon, pursuant to Rules 4:17-4(e) and 4:10-2(d) for
failure to provide associated discovery in the form of the doctor's treatment file
and the articles he had relied on in preparation of his report. Sodexo submitted
a letter in lieu of motion, joining in the BOE defendants' motions. Plaintiff
opposed the motions and cross-moved to extend the discovery end date.
3
One law firm represented the BOE as to the first and fifth counts. Another
law firm represented the individual defendants and the BOE on the remaining
counts.
A-2074-23
6
October 23, 2023 Hearing
On October 23, the judge first addressed the motion to bar Dr. McMahon's
report. Plaintiff's counsel revealed plaintiff had independently hired Dr.
McMahon, signing a separate retainer for the doctor's services. Although she
ruled the doctor's report admissible, the judge denied a request by plaintiff's
counsel that defendants first sign a retainer prepared by Dr. McMahon to pay
fees for his deposition appearance and as a condition of producing medical
records reviewed and reports issued in connection with his evaluation.
Although agreeing that defendants were responsible to pay reasonable
compensation for Dr. McMahon's deposition appearance, the judge stated:
What possible authority is there to refuse to produce a
record -- medical records, a file that he has as a treating
doctor, or the documents he reviewed without the other
side paying his fees or a court order? Where does that
come from? You have an obligation. You're naming
this expert. You have to produce these documents.
You're in default. You, meaning the plaintiff, [are] in
default.
The judge further determined plaintiff had not provided defendants with
the necessary HIPAA authorizations required to obtain plaintiff's remaining
medical records. The judge gave plaintiff's counsel "a last chance . . . to bring
[him]self and [his] client into compliance with the [c]ourt's orders rapidly" by
producing the missing authorizations as well as the names and addresses of
A-2074-23
7
relevant witnesses.
In response to an assertion by defense counsel that plaintiff had not
provided dates for follow-up depositions on receipt of needed discovery, the
judge stated: "I'm going to give you dates and deadlines, and if they're not met,
the plaintiff's case is going to be dismissed with prejudice. We're not going to
keep doing this." Referencing personnel changes at plaintiff counsel's firm, the
judge reiterated:
I understand that your firm movements and things like
that have complicated it, but this is sort of a last chance,
okay? You've got to bring yourself and your client into
compliance with the [c]ourt's orders rapidly, or there
are going to be more permanent consequences
forthcoming.
In an order entered that day, the court, among other things, denied the
motion to bar the report and ordered that plaintiff provide signed pertinent
HIPAA forms, witness contact information, additional dates for plaintiff's
deposition, Bates-stamped copies and indexes of all documents, medical
literature relied on by Dr. McMahon to arrive at conclusions in his report , and
Dr. McMahon's entire medical treatment file, including hand-written interview
and treatment notes and medical records.
A-2074-23
8
November 27, 2023 Hearing
On November 27, the court conducted a follow-up hearing to address
those items it ordered on October 23. Defense counsel contended plaintiff
produced only "a handful of documents" and that counsel had "no idea what
they're for." Counsel added defendants received "a few new documents that are
referencing testing and everything, and [documents] that could have been
produced last year or even six months ago have not been [produced] and we
have no idea why." Counsel summarized, "we're just getting document dumps
after document dumps with different Bates numbers." "Ninety percent had been
produced six times. The same documents over and over, and over, and over
again." According to counsel, as a result of culling through voluminous
documents to "find out what is new . . . what hasn't been produced and what is
being inserted in here and hidden inside the documents," the BOE had "incurred
well over $170,000 to date reviewing and re-reviewing . . . over . . . 15,000
documents."
Concerning assigning of different Bates numbers for the same document
through multiple productions, plaintiff's counsel said, "[t]hat's possible because
of the rate that we're getting and the way we're getting [documents] from our
prior firm. It has not been smooth. I will agree to that. We're trying to do our
A-2074-23
9
best in order to . . . organize it and index it." In response, the judge observed,
"[Y]ou were really behind the eight ball here, [counsel]. I understand that. But
instead of dismissing the complaint a month ago, I said, well, you'll have a last
chance to clean it up." The judge continued, "So . . . difficulty getting
[documents] from the [former] firm is not a reason for their being disorganized,
or not properly indexed or Bates stamped." The judge further observed that
plaintiff had contributed to the failure to comply with previous orders by directly
retaining Dr. McMahon. The following colloquy ensued:
THE COURT: So then it's really problematic because
you can't even verify in any way that you're giving us
everything that you gave the doctor because you didn't
have it go through your office?
PLAINTIFF COUNSEL: Well, the doctor has to
produce everything that he has. And I will contact the
doctor today. Tell him I need the Lubitz material, the
Boyle material,[4] and the 200 it -- items, and that he's
required -- (indiscernible) that. You know --
(indiscernible).
THE COURT: If your client had those files to provide
to the doctor, why weren't they produced in discovery
before now? I mean, that's –
PLAINTIFF COUNSEL: I don't know.
4
Counsel here refers to medical records prepared by other doctors, among the
records plaintiff had not produced.
A-2074-23
10
THE COURT: Right. Because your client is not
cooperating. She's -- it may be the client more than you,
. . . but things are being dribbled out at -- perhaps with
some tactical calculations about whether they'll be
helpful or not. That's not the way it works.
Turning to the pending motions to dismiss, the court considered options
short of dismissal, reasoning:
And I'm suggesting that if I were not dismissing the
complaint, is there any way to give plaintiff yet another
chance to have the case survive in a way that would be
fair to the defendants? And the only way I can see
doing that is requiring plaintiff to reimburse the
defendants for those costs. And I don't think I -- even
at that, I don't know how -- how that -- if that would
really be fair at this point in the case.
....
[This case is] three years old. It's brought as a toxic tort
case. There's been a failure to comply with court
orders. I deferred this with sort of what I call the last
chance. I don't know, I guess I thought of that October
order as a last chance order. And that it's a month after
the deadline of that order, and there's still not
compliance with respect to documents certainly
concerning Dr. [McMahon].
Addressing plaintiff's counsel, the judge continued:
I think that your client selectively produced. She
decided to produce some stuff. Then she decided she
wanted to send things to an expert. She sent to an
expert things she hadn't sent to -- to you, things she
hadn't sent to the -- to the defendants. And it's not
acceptable. It's not tolerable. And it may be that
A-2074-23
11
dismissal is the sanction -- the appropriate sanction.
Dismissal with prejudice, at least of Counts One and
Five.
....
And -- and if -- if you had complied, if there was
complete compliance with the . . . October 23rd [order],
which was trying to get compliance with the July 28th
order, then I might be extending discovery. But I'm not.
I'm granting the Board's motion to dismiss Counts One
and Five.
The court explained it had dismissed counts one and five due to
"egregious" discovery breaches related to medical records and plaintiff's
personal injury claims. The court permitted the remaining CEPA and NJLAD
counts. Because those counts — two, three, and four — were applicable only to
BOE, the court dismissed from the case defendants Sodexo, Aramark, GCA, and
the individual school officials.
Finally, the judge extended the discovery end date on counts two, three,
and four to May 31, 2024. It also ordered the BOE to "submit to plaintiff within
one week of today's date any document requests related to the remaining claims
(NJLAD and CEPA) for which it requires specific identification, by Bates/index
number, of responsive documents (not limited to requests previously served )."
With assent of plaintiff's counsel regarding the time frame, the judge also
A-2074-23
12
ordered, "[p]laintiff shall respond within two weeks thereafter. All fact witness
depositions shall be completed by February 16, 2024."
Motion for Reconsideration
Plaintiff moved for reconsideration of the court's November 27 ruling, and
the BOE moved to dismiss the remaining counts for failure to obey the
November 27, 2023 order pursuant to Rule 4:23-2(b)(3), contending plaintiff
failed to properly respond to its document requests pertaining to the remaining
counts as ordered. The judge addressed both applications on February 22, 2024.
Regarding reconsideration, counsel contended plaintiff had shown
consistent, good-faith effort to comply with discovery orders coupled with "the
extenuating circumstances over the last approximately eight months" warranting
"an alternative to dismissal of the claims with prejudice[,] which is a little bit
more time." The alleged extenuating circumstances involved plaintiff's lead
counsel's health problems, since abated, and move from one law firm to the firm
that then represented plaintiff, as well as delays resulting from the transfer of
case documents that accompanied that change. Finally, counsel argued that the
court deprived plaintiff of due process by dismissing counts against Sodexo ,
GCA and Aramark without proper notice.
A-2074-23
13
The judge engaged in colloquy with plaintiff's counsel regarding the
applicable standard for a motion for reconsideration, noting that the interest of
justice standard applied. The judge found the moving papers "devoid of any
persuasive discussion . . . over the interest of justice. They really recite
disagreement with the [c]ourt's decision," amounting to no more than a
repetition of arguments that were already made. Finally, in denying the motion
for reconsideration, the court noted that it did not "lightly dismiss the claims
with prejudice," but did so only "after at least four months of considering the
issues raised and giving plaintiff opportunity," mindful of plaintiff attorney's
health issues.
Regarding due process, the court noted that defendant Sodexo had joined
the motion by letter and defendant Aramark orally joined the motion, which put
plaintiff's attorney on sufficient notice of their position. Next, the court cited
Doe v. Poritz, 142 N.J. 1, 106 (1995), for the proposition that due process
requires an opportunity to be heard at a meaningful time and in a meaningful
manner. The court concluded plaintiff had been afforded that right. The court
issued an order on February 22, 2024, denying plaintiff's reconsideration
motion.
A-2074-23
14
Dismissal of Remaining Counts
In furtherance of its motion to dismiss the remaining counts, the BOE
maintained plaintiff had not complied with the November 27 order for discovery
by failing to respond in a timely manner to the interrogatories, instead producing
"another 4,000 plus-page production that was mislabeled, not organized, and
[was not] referred to in [plaintiff's] answers to . . . interrogatories." Plaintiff
maintained there was "a bona fide dispute" regarding the responsiveness of the
documents provided and that the purpose of the court rules is to elicit responses,
not punish a litigant. Counsel further contended that where "there's an
opportunity to fashion another remedy that gives the parties an opportunity to
resolve the case on the merits rather than on a procedural dismissal . . . that
would be favored."
In her analysis, the judge explained at length why plaintiff's responses
were deficient and why it was necessary to dismiss the complaint in its entirety.
If this were, as they say . . . their first rodeo, if
this were the first time we were looking at defendants'
request for discovery or the plaintiff's . . . CEPA and
LAD claims, and the first time that plaintiff was
responding, the [c]ourt might be persuaded by
plaintiff's counsel's argument to . . . consider some
remedies short of dismissal. But there's a limit, right?
There's a point at which the [c]ourt says that defendants
have probably been saying for quite some time which
is enough is enough. And these were the only claims
A-2074-23
15
remaining. The requirement to index the produced
documents and identify what discovery responses they
pertained to, related to, and where they, . . . added to
the claims was something that was -- has been
outstanding for quite some time. As I indicated earlier
at a conference on November 27th, after plaintiff has
already suffered the dismissal of all the other claims,
we mapped out a discovery schedule understanding that
the [c]ourt expected compliance with its orders and
plaintiff's action just since November 27th, right, a
failure to provide any responses within the time frame
agreed to, the amount of time requested by plaintiff
with an understanding of what was going to be
required, [5] a failure to provide all of the information
even by the extended time that plaintiff said it needed,
that the [c]ourt didn't grant, that the [c]ourt is not going
to spend another time and require the defendants to
continue spending fees to get plaintiff to do what it's a
plaintiff's job to do when a plaintiff brings a lawsuit.
Citing plaintiff's consistent "failure to comply with court orders and
failure to pursue her case properly," the court granted the motion to dismiss and
entered an order on February 22, 2024, dismissing the complaint in its entirety
with prejudice.
II.
"[T]he standard of review for dismissal of a complaint with prejudice for
discovery misconduct is whether the trial court abused its discretion." Abtrax
5
Here, the court referenced the two-week period contained in its November 27
order, as assented to by plaintiff's counsel.
A-2074-23
16
Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995). A court abuses its
discretion when its "'decision is made without a rational explanation,
inexplicably departed from established policies, or rested on an impermissible
basis.'" State v. Chavies, 247 N.J. 245, 257 (2021) (quoting State v. R.Y., 242
N.J. 48, 65 (2020)). "The rule applies when the court's decision represents a
clear abuse of discretion based on plainly incorrect reasoning or failure to
consider evidence or a good reason for the court to reconsider new information."
Pressler & Verniero, Current N.J. Court Rules, cmt. 2 on R. 4:49-2 (2022). We
will uphold a trial court's discovery sanction "unless an injustice appears to have
been done." Abtrax Pharm., 139 N.J. at 517. Legal questions are reviewed de
novo. Zahl v. Eastland, 465 N.J. Super. 79, 92 (App. Div. 2020).
Plaintiff maintains the trial court abused its discretion in dismissing the
complaint for two reasons. First, plaintiff contends the court's dismissal of the
complaint with prejudice as to all defendants violated plaintiff's due process
rights of notice and hearing. According to plaintiff, the court "sua sponte and
without basis, dismissed the [a]mended [c]omplaint with prejudice as against
every [d]efendant-[r]espondent" and "disregarded plaintiff's right to due
process." Second, plaintiff contends that dismissal of the complaint was not
warranted because dismissal for failure to make discovery is "the last and least
A-2074-23
17
favorable option." According to plaintiff, the trial court could have extended
discovery instead of dismissing the complaint with prejudice.
In response, defendants maintain dismissal was appropriate because
plaintiff was provided adequate notice and a meaningful opportunity to be heard
at the November 27 hearing. Moreover, defendants contend plaintiff
deliberately and deceptively withheld discovery despite multiple discovery
extensions.
Due Process
As recognized by the trial court, "the minimum requirements of due
process of law are notice and an opportunity to be heard. The opportunity to be
heard contemplated by the concept of due process means an opportunity to be
heard at a meaningful time and in a meaningful manner." Klier v. Sordoni
Skanska Constr. Co., 337 N.J. Super. 76, 84 (App. Div. 2001) (citing Doe, 142
N.J. at 106). Where, as here, plaintiff's refusal to comply with a discovery order
was recurrent, "deliberate[,] and contumacious," Lang v. Morgan's Home Equip.
Corp., 6 N.J. 333, 339 (1951), and plaintiff's attorney was provided with
"sufficient advance notice" of defendants' applications for dismissal and "a
meaningful opportunity to respond," dismissal of the complaint with prejudice
is appropriate and comports with due process. Klier, 337 N.J. Super. at 84.
A-2074-23
18
Our review of the record plainly shows evidence of plaintiff's delayed
production of discoverable information, reproduction of thousands of unindexed
documents, some of which were not responsive, and the continuous and
deliberate withholding of discoverable documents in violation of court orders
and at the expense of defendants. In all, the court entered seven orders extending
discovery, affording plaintiff more than ample time to comply with the court's
discovery orders and end dates. However, plaintiff unjustifiably violated those
orders in particular by producing incomplete responses, non-responsive
answers, or delayed responses. Plaintiff was on notice of the consequence of
her non-compliance. We cite again the court's clear admonition of October 23:
"I'm going to give you dates and deadlines, and if they're not met, the plaintiff's
case is going to be dismissed with prejudice. We're not going to keep doing
this."
The court's orders to dismiss with prejudice on November 27 and February
22 consistently applied an eminently fair approach, extending plaintiff
additional time to comply with discovery and allowing counsel full opportunity
to be heard before imposing dismissal with prejudice. In considering plaintiff's
motion for reconsideration, the court correctly applied the interest-of-justice
standard in support of its findings and conclusion of law. Lawson v. Dewar, 468
A-2074-23
19
N.J. Super. 128, 134 (App. Div. 2021) (holding that motions for reconsideration
are subject to the Rule 4:42-2 "interest of justice" standard where an order
disposes of "fewer than all the claims as to all the parties," rendering it
interlocutory; whereas the Rule 4:49-2 "palpably incorrect or irrational analysis"
standard applies only to final orders disposing of all claims). The reasons
articulated for the judge's with-prejudice dismissal, quoted extensively above,
met the interest-of-justice standard.
In assessing whether the trial court abused its discretion in dismissing the
complaint with prejudice, we consider also Rule 4:23-2(b)(3). If a party fails to
provide court-ordered discovery, the court may issue "such orders in regard to
the failure as are just," including striking the pleading or dismissing the action
"with or without prejudice." R. 4:23-2(b)(3).
Dismissal with prejudice is appropriate when: (1) "the actions of the party
show a deliberate and contumacious disregard of the court's authority,"
Kosmowski v. Atl. City Med. Ctr., 175 N.J. 568, 575 (2003); (2) the delay in
discovery impairs the non-delinquent party's ability to "present a defense on the
merits;" State v. One 1986 Subaru, 120 N.J. 310, 315 (1990); (3) "no lesser
sanction will suffice to erase the prejudice suffered by the non-delinquent party,
or when the litigant rather than the attorney was at fault," Abtrax, 139 N.J. at
A-2074-23
20
514; or (4) "where the order for discovery goes to the very foundation of the
cause of action," Lang, 6 N.J. at 339.
Although a judge has broad discretion in formulating sanctions under Rule
4:23-2, any sanction imposed must be "just and reasonable." Conrad v. Robbi,
341 N.J. Super. 424, 441 (App. Div. 2001). Dismissal of a claim for failure to
comply with discovery is the "last and least favorable option." Il Grande v.
DiBenedetto, 366 N.J. Super. 597, 624 (App. Div. 2004). A party must
demonstrate prejudice as a result of the delay in prosecuting a matter to warrant
dismissal. See Moschou v. DeRosa, 192 N.J. Super. 463, 466-67 (App. Div.
1984). "[I]t is the lack of availability of information which results from the
delay that is, for the most part, determinative of the issue of substantial
prejudice." Mitchell v. Charles P. Procini, D.D.S., P.A., 331 N.J. Super. 445,
454 (App. Div. 2000).
Our review of the record shows that plaintiff in fact consistently and
deliberately failed to comply with discovery. That repeated failure caused
defendants undue prejudice, forcing them to incur unreasonable legal expenses
and substantially impeding their ability to defend against the allegations. By
example, plaintiff submitted medical records to Dr. McMahon but refused to
produce those records to defendants without payment. As noted by the court in
A-2074-23
21
rendering its decision, plaintiff also failed to supplement her claims of unsafe
work conditions, which went to the "foundation" of the bodily injury and
negligence claims (counts one, five, and six). See Lang, 6 N.J. at 339. Plaintiff
additionally failed to produce, in response to defendant's last requests, evidence
of retaliation or discrimination, which went to the "foundation" of the NJLAD
and CEPA claims (counts two, three, and four). Ibid.
The trial court considered lesser sanctions, including shifting costs. The
court rejected cost-shifting, reasonably considering the age of the case and
plaintiff's consistent pattern of failing to comply, even after issuance of repeated
allowances and a final warning. On this record, we are fully satisfied the
sanction of dismissal was justified.
The Supreme Court has observed:
A litigant that deliberately obstructs full discovery
corrupts one of the fundamental precepts of our trial
practice – the assumption by the litigations and the
court that all parties have made full disclosure of all
relevant evidence in compliance with the discovery
rules. A litigant who willfully violates this bedrock
principle should not assume that the right to an
adjudication on the merits of its claims will survive so
blatant an infraction.
[Abtrax, 139 N.J. at 521.]
In sum, the court correctly found defendants were prejudiced because,
A-2074-23
22
notwithstanding clear admonitions by the court, plaintiff's excessive delays and
noncompliant document productions forced defendants to unnecessarily expend
significant time and resources sorting through persistently incomplete and
untimely discovery. This hampered defendants' ability to prepare for key
proceedings and gave plaintiff an incurably unfair tactical advantage.
Affirmed.
A-2074-23
23