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Posta v. Chung-Loy12/18/1997
The opinion of the court was delivered by
WALLACE, JR., J.A.D.
Plaintiff John Posta appeals from the involuntary dismissal of his medical malpractice action against defendants, Harold E. Chung-Loy, M.D., David M. Rosenheck, M.D., Marc M. Wolfman, M.D., and the John F. Kennedy Medical Center. Prior to trial, the Judge granted summary judgment in favor of defendants on the issues of negligence, common knowledge, and res ipsa loquitur because plaintiff had failed to produce any expert opinion on causation. At trial, the Judge dismissed plaintiff's case on the issue of informed consent for failure to prove proximate cause. On appeal, plaintiff challenges as error: (1) the trial court's case management order dated March 18, 1996, (2) the grant of summary judgment to defendants on the issues of res ipsa loquitur and common knowledge, (3) involuntary dismissal on the issue of informed consent at trial, and (4) denial of his motions for reconsideration. In addition, plaintiff claims that the trial court erred by denying his numerous motions for a mistrial. We affirm.
I
Plaintiff filed a medical malpractice complaint against defendants contending that they deviated from accepted standards of care in treating him. The complaint alleged negligence, gross negligence, outrageous conduct, and failure to obtain informed consent, resulting in serious and permanent injury. During discovery, plaintiff responded to portions of interrogatories by stating that written reports of his expert would be supplied. Thereafter, defendants made various motions and the motion Judge entered several orders compelling the production of plaintiff's expert reports, but no such reports were produced. On July 8, 1994, the motion Judge ordered plaintiff to provide an expert liability report within ninety days or be barred from introducing expert testimony at the time of trial. Plaintiff failed to submit a report by the determined deadline.
On December 2, 1994, the motion Judge granted Dr. Chung-Loy's motion for partial summary judgment against plaintiff on the issues of res ipsa loquitur and common knowledge. The Judge further ordered the exclusion of plaintiff's expert testimony on the issue of liability, and noted that informed consent was the sole issue to be tried.
On October 27, 1995, the Judge entered an order compelling plaintiff to provide fully responsive and more specific answers to various interrogatories submitted by Dr. Chung-Loy. In February 1996, the Judge, following a case management conference, ordered that Dr. Chung-Loy appear for deposition and that discovery be completed within thirty days of January 29, 1996.
On March 18, 1996, the Judge entered another case management order directing that: (1) defendant's expert, Dr. James Chandler, appear for deposition; (2) plaintiff submit on or before April 8, 1996, any expert report responding only to Chandler's report, or be barred from thereafter serving a responsive report; (3) plaintiff's expert be produced for deposition between April 8 and 15, 1996, or be deposed during trial; (4) trial begin on April 15, 1996; and (5) videotaped depositions be taken of any witness unavailable for trial. Again, plaintiff failed to submit an expert's report.
Dr. Chung-Loy's counsel requested that plaintiff pay $583.10 for Chandler's deposition taken by plaintiff on March 7, 1996. Plaintiff refused to pay or respond to the request.
Trial commenced on April 30, 1996. Defendants David M. Rosenheck, M.D., Marc M. Wolfman, M.D., and John F. Kennedy Medical Center did not appear and were not represented at trial because they were not involved in the informed consent issue.
Th
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