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Failure to Include Certification of Due Diligence in Plaintiff Serving Late Expert Report Leads to Court Barring the Expert Report

Apr 4, 2022 - News by Timothy M. O’Donnell

Under New Jersey Court Rule 4:17-7, discovery amendments after the discovery end date are only permissible if the party seeking to amend certifies therein that the information requiring the amendment was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date. Utilizing this Court Rule, New Jersey associate Timothy O’Donnell recently prevailed on a motion to bar a Plaintiff’s late liability expert report due to Plaintiff’s failure to include a Certification of Due Diligence, even though the overall discovery end date had not passed.

In a premises liability claim, Plaintiff served the liability expert report of architect Frederick G. Bremer 8 days after the deadline imposed in a prior Court Order for Plaintiff to serve her expert reports, 33 days prior to the overall discovery end date. When serving the late report, Plaintiff’s counsel failed to include a Certification of Due Diligence as required by R. 4:17-7 with Mr. Bremer’s report. Mr. O’Donnell, representing the store where the incident occurred, then moved to bar Mr. Bremer’s report and to bar Mr. Bremer from testifying at trial due to the late service of the report and the lack of a Certification of Due Diligence. The Court granted Mr. O’Donnell’s motion, citing in its ruling Plaintiff’s failure to serve the report by the discovery deadline and Plaintiff’s failure to serve a Certification of Due Diligence.

Plaintiff filed a motion for reconsideration of the Order barring Mr. Bremer’s report and ability to testify at trial, arguing that the delay in producing the report was caused by personal issues Mr. Bremer was experiencing, that the report was still produced prior to the overall discovery end date, and that Defendant suffered no prejudice by Mr. Bremer’s report being served only 8 days after the deadline for Plaintiff’s expert reports to be served. However, the Court denied Plaintiff’s motion for reconsideration, again emphasizing Plaintiff’s failure to comply with R. 4:17-7, which requires a Certification of Due Diligence be included with any discovery amendments served after a Court imposed discovery deadline, not just after the overall discovery end date.

The Court’s rulings barring Mr. Bremer’s report highlight the need for strict compliance with New Jersey’s Court Rules requiring Certifications of Due Diligence in attempts to serve discovery after Court imposed deadlines and the significant consequences which can be imposed on counsel and parties who fail to comply.