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Kosmowski v. Atlantic City Medical Center3/19/2003
Argued January 21, 2003
The sole issue raised in this medical malpractice-- wrongful death case is whether the complaint should have been dismissed because of the unavailability of plaintiffs' medical expert. We conclude that under the unique facts of this case, the trial court should reassess its discretionary ruling.
I.
The complaint in this action was filed on September 1, 1995. A second amended complaint alleges that Drew J. Kosmowski, now deceased, was admitted to defendant Atlantic City Medical Center and came under the care of the individual defendants. That complaint alleges negligence in diagnosing and treating the decedent while a patient at defendant hospital on and after September 6, 1993. That complaint also alleges that Drew J. Kosmowski died as the result of defendants' negligence. All defendants deny negligence.
Discovery was conducted over a period of time. Dr. Aiden J. Doyle, a board certified neurosurgeon selected as plaintiffs' expert, was deposed on June 4, 1999. On September 9, 1999, the trial judge notified counsel that he had been assigned to "case manage and move to trial all professional malpractice cases in the Monmouth Vicinage." In that same letter, the trial judge advised the attorneys that the present case had been scheduled to be tried before him on July 10, 2000, thereby providing a nine-month advance notice. Finally, the judge informed the attorneys that " his is a specially assigned preemptory trial date which will not be adjourned for any reason." A case management conference was conducted on September 10, 1999, at which the judge established dates for the completion of discovery, April 10, 2000 being the outer limit.
On January 21, 2000, Richard Simon, Esquire, counsel for plaintiffs, requested that the July 10, 2000, trial date be adjourned to September 2000 because the discovery schedule was running two months late. The trial judge denied the request in a letter dated January 27, 2000. That letter explained that the trial date of July 10, 2000, had "been set preemptorily and will not be canceled or carried for any reason. The next available trial date is in the year 2002 and there is no reason to carry this 6 year old matter any longer." In response to the letter, plaintiffs' counsel wrote the trial judge a letter dated February 14, 2000, pressing his request to adjourn the trial, only this time stating an entirely different reason for the request which was to attend his "family's scheduled reunion, in Tennessee in July, 2000, to celebrate my maternal grandmother's 90th birthday." The judge responded in a reply letter dated February 22, 2000, again denying the requested adjournment. The judge stated: "It is my suggestion that you get someone else to try this case in July or explain in detail to your client why the case went off and why it is being delayed until December" because the next available date in the system was not until December 4, 2000. Plaintiffs' counsel was unable to arrange with his adversaries to try the case on December 4.
Eventually, the trial judge rescheduled the trial for February 5, 2001. In a letter dated April 17, 2000, counsel for plaintiffs informed the trial judge that "all counsel of record, as well as the plaintiffs have agreed to proceed with the trial in the within matter on February 5, 2001." On April 19, 2000, the trial judge notified all counsel that the trial had been rescheduled for February 5, 2001, at 11:30 a.m. On January 22, 2001, counsel for one of the defendants requested an adjournment because the attorney scheduled to try the case had left the firm representing that defendant. The trial judge denied that request in a letter dated January 26, 2001. After den
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