Pre Trial Motion in Davis Graeme Vs Continental Land Dev Elopers,| Trellis.Law

On October 07, 2021 a Trial was filed involving a dispute between Graeme Davis, and 1-10 Xyz Maintenance Corp, Abc Corp 1-5, Bob Boe 1-10, Continental Land Developers,L, John Doe 1-5, Landmark Companies,Llc, for Personal Injury in the District Court of Ocean County.

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Christen E. McCullough - ID #024222008
METHFESSEL & WERBEL, ESQS.
2025 Lincoln Highway, Suite 200
PO Box 3012
Edison, New Jersey 08818
(732) 248-4200
1(732) 248-2355
mccullough@methwerb.com
Attorneys for Continental Enterprise Apartments, LLC and Landmark
Companies, LLC
Our File No. 91240 CEM

GRAEME DAVIS SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: OCEAN COUNTY
Plaintiff, DOCKET NO.: OCN-L-2607-21

CONTINENTAL ENTERPRISE Civil Action
APARTMENTS, LLC, LANDMARK
COMPANIES, LLC, JOHN DOE 1-5,
ABC CORP. 1-5, XYZ MAINTENANCE
CORP. 1-10 AND/OR BOB BOE 1-10 Pre-Trial Exchange

Defendants

Pursuant to Best Practices, Defendant hereby submits the
following pre-trial statement.

I. DEFENDANT WITNESSES:

1. Property Manager, Continental Gardens, Murray Brenman, Ocean,
NJ
2. Maintenance Manager, Continental Gardens, Carlos Aponte,
Indian Trail, NC
3. Dr. Stephen Horowitz, Roseland, NJ
4. Megan DeLiberis, CPC, CPMA, Mount Laurel NJ

II. EXHIBITS:

D-1 Dr. Horowitz June 27, 2022 report

D-2 Dr. Horowitz February 6, 2023 report
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D-3 Incident report

D-4 December 26, 2019, video of premises where plaintiff fell
taken by Carlos Aponte

D-5 Defendants Answers to Interrogatories and attachments
thereto

D-6 Plaintiff answers to interrogatories and attachments thereto

D- All deposition transcripts.

III. DEPOSITION AND INTERROGATORY READINGS:

1. Various portions of Plaintiff’s answers to interrogatories and
depositions may be relied upon at time of trial for purposes of
impeachment based upon testimony.

IV. IN LIMINE MOTIONS:

1. Defendant moves to bar the medical bill in the amount of $48,
743.70 from being presented at trial. (See Motion in Limine
attached as Exhibit “A”).

2. Defendant moves to bar any reference to any party being covered
by insurance at the time of the accident, references to Insurance
and/or any references to any expert as being an insurance
company “doctor”. This would be prejudicial and substantially
outweigh any relevance.

It has long been held that “evidence showing that the Defendant is
insured creates a substantial likelihood of misuse.” Kotler v.
National R.R. Passenger, 402 N.J. Super. 372, 378 (App. Div. 2008)
quoting Eichel v. N.Y. Cent. R.R. Co., 375 U.S. 253, at 255 (1963).
The concern is that references to insurance coverage might distract
jurors from a fair evaluation of the evidence and may “motivate an
award of damages based on a jury’s perception of an insurer
having ‘deep pockets.’” Bardis v. First Trenton Ins. Co., 199 N.J.
265, 275 (2009). Similarly, N.J.R.E. 411 advises that whether a
person was insured is not admissible of that person’s negligence or
other wrongful conduct.

3. Defendant moves to bar testimopny and documentation of any lost
wages claimed as a result of the accident.
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Regarding lost wages, Plaintiff has never amended discovery to
include proof of lost wages.

Plaintiff has the burden of proving lost wages as well as producing
documents demanded by Defendants during the course of
discovery. Caldwell v. Haynes, 136 N.J. 422 (1994)

Every plaintiff bringing a lost wages claim has a burden of proving
their damages. See Caldwell v. Haynes, 136 N.J. 422 (1994). The
Court in Caldwell confirmed this and highlighted that often a
Plaintiff will avoid presenting all proofs in efforts to bolster their
claims.

Generally, plaintiffs have the burden of proving
damages. See, e.g., Lane v. Oil Delivery, Inc.,
216 N.J. Super. 413, 420, 524 A.2d 405 (App.
Div. 1987) ("It is ... sufficient that the plaintiff
prove damages with such certainty as the nature
of the case may permit, laying a foundation
which will enable the trier of the facts to make a
fair and reasonable estimate."); Huddell v. Levin,
537 F.2d 726, 743 (3d Cir.1976) ("The plaintiff ...
bears the burden of proof and it is the
responsibility of the plaintiff to provide for the
jury some evidentiary and logical basis for
calculating or, at least, rationally estimating a
compensatory award."); Caputo v. United States,
157 F. Supp. 568, 569 (D.N.J. 1957) ("The
burden rests upon the plaintiff to prove ...
damages ... by the preponderance of the
evidence.").
However, in practice, plaintiffs often shun, and
defendants tend to assume the "permissive"
burden of presenting net-income evidence in
establishing lost wages. See Ruff, supra, 105
N.J. at 238, 519 A.2d 1384 ("[E]vidence of the
plaintiff's future tax liability may be introduced
by the defendant."); Tenore, supra, 67 N.J. at
484, 341 A.2d 613 (holding that in wrongful-
death case "fairness requires that defendant
have an opportunity to introduce evidence of
deceased's tax liability"); Nordstrom, supra, 19
Ohio St.L.J. at 212 (noting that defense
attorneys seek to introduce plaintiffs' tax
liabilities to reduce final awards). Plaintiffs
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have an incentive to withhold such evidence
to exaggerate their actual or real earnings.
Defendants seek to elicit such evidence because
they generally benefit when a jury excludes
income taxes from lost-wages awards. Randall
G. Vaughan, Note, Tax Issues of Personal Injury
and Wrongful Death Awards, 19 Tulsa L.J. 702,
709 (1984) ("Plaintiffs introduce gross earnings
evidence as the basis for calculation of damages
while defendants attempt to prove that the
actual `take home' salary would have been much
less because of tax liabilities.").
Caldwell v. Haynes, 136 N.J. 422, 436-437 (1994)
(emphasis added)

In this case, initial demands, informal demands, and written follow
up demands have gone ignored. Initial discovery responses indicated
proof of lost wages would be provided. However, plaintiff failed to
amend his answers to interrogatories to include the same.

Since Plaintiff has failed to present any of the above proofs they
should not be allowed to pursue any lost wages at trial.

4. Defendant moves to bar all medical expenses claimed for the
accident.

Regarding medical expenses, Plaintiff interrogatories claimed an
unspecified amount of expenses which have never been clarified.
Specifically, plainitff lists bills from each provider, but does not
delinate which bills were paid by plaintiff’s health insurance and
which bills are outstanding and the responsibility of the plaintiff.
In addition to failing to specify the amount of medical expenses
claimed, Plaintiff did not amend answers to interrogatories to
produce any proofs of the exact amount of medical expenses or the
pre-requisite proofs needed before a prima facie claim for medical
expenses can be made.

Beyond the normal requirements noted above, Plaintiff must also
satisfy the collateral source rule before demanding medical
expenses at trial. The collateral source rule, N.J.S.A. 2A:15-97,
requires that plaintiff divulge to the Court all other sources that
may have paid plaintiff’s medical expenses. The purpose of the
collateral source rule is that plaintiff has the obligation to mitigate
their damages and should not be entitled to recover for damages
that could have been satisfied through another source. See
N.J.S.A. 2A:15-97.
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In this matter, Plaintiff has health insurance coverage through
Aetna. Plaintiff’s answers to interrogatories indicate all bills were to
be paid by plaintiff’s health insurance and their would be an
ERISA lien. However, plaintiff failed to amend their answers to
interrogatories to serve proof of what was covered or denied by
plaintiff’s health insurance and what was outstanding or subject to
a lien. Plaintiff also has not presented any proof of medical
expenses mitigation.

In the case of Ostrowski v. Azzara, 111 N.J. 429 (1988), the Court,
when discussing mitigation of damages, stated “the doctrine
proceeds on the theory that a plaintiff who has suffered an injury
as a proximate result of a tort cannot recover for any portion of the
harm that by the exercise of ordinary care he could have avoided.”
The Court further stated, “This is consistent with our general view
that a defendant bears the burden of proving a causal link between
a plaintiff’s unreasonable conduct and the extent of
damages…Once that is established, it should be the defendant who
also has the burden of carving out that portion of the damages
attributable to the plaintiff.” See Ostrowski, supra. Ostrowski
dealt with a medical malpractice case where plaintiff’s actions
post-surgery, failing to follow the doctor’s instructions, was
deemed to be failure to mitigate her damages. However, Ostrowski
sets out the standard that conduct by a plaintiff should not allow
plaintiff to recover for damages that could have been avoided.

To the extent that the Court is inclined to allow medical expenses
based upon any limited proofs provided during discovery, the same
will be objected to as no experts have been named to testify to
whether the same are fair and reasonable. Nor has Defendant had
the opportunity to have the same reviewed and commented on by
their own expert.

Since Plaintiff has not complied with any of the above rules,
regulations, or case law to establish a medical expense claim, they
should not be allowed to pursue such at trial.

5. Defendant moves to bar Plaintiff from calling any expert from
discusing causation or permanency of injuries except by doctors
who have opined to the same in a written report. Defendant moves
to bar the testimony of any treating doctors who have not been
named as experts and/or not provided an expert report.

6. Defendant moves to bar reference to the 2-7-20 and 12-1-20 MRI
films by Dr. Berstein, unless the testifying doctor can prove there
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are qaulified to read the same and has read the same. See James
v. Ruiz, 440 N.J. Super. 45 (App. Div. 2015), as no party may
bootstrap in the opinion of a non-testifying doctor.

Plaintiff’s expert, Dr. Bernstein, may have personally reviewed the
films. However, based upon the language in his May 10, 2021
report, it is unclear whether he reviewed the films themselves or
simply parroted the opinion of the radiologist. The Defendant
requests that a 104 hearing be conducted to determine if he has
reviewed these films and is qualified to read them to the jury.

Our pre-trial practice is designed to eliminate the element of
surprise at trial by requiring a litigant to disclose the facts and
theories upon which a cause of action or defense is based. Saia v.
Bellizio, 103 N.J. Super. 465, 468, 247 A.2d 683 (App. Div.), aff'd,
53 N.J. 24, 247 A.2d 865 (1968). This basic principle is designed to
ensure that the outcome of litigation shall depend on its merits in
the light of all the available facts, rather than the last-minute
craftiness on the part of either party. Lang v. Morgan's Home
Equipment Corp., 6 N.J. 333, 338, 78 A.2d 705 (1951). To permit
last-minute changes in strategy would be "akin to trial by
ambush." Plaza 12 Associates v. Carteret Borough, 280 N.J. Super.
471, 477, 655 A.2d 961 (App. Div.1995).

As Justice Clifford aptly stated, “[o]ur rules of procedure are not
simply a minuet scored for lawyers to prance through on pain of
losing the dance contest should they trip.” Stone v. Old Bridge
Twp., 111 N.J. 110, 125 (1988) cited with approval by Ponden v.
Ponden, 374 N.J. Super. 1,11 (App. Div. 2004).”

The Court in McKenney v Jersey City Medical Center 167 N.J. 359
(2001) also stated that while our procedures for discovery are
designed to eliminate the element of surprise at trial by requiring a
litigant to disclose the facts upon which a cause of action or
defense is based. See Saia v. Bellizio, 103 N.J. Super. 465, 468,
247 A.2d 683 (App. Div.), aff'd, 53 N.J. 24, 247 A.2d 865 (1968) .
The search for truth in furtherance of justice is
paramount. Caparella v. Bennett, 85 N.J. Super. 567, 571,
205 A.2d 466 (App. Div.1964). This basic principle is designed to
ensure that the outcome of litigation shall depend on its merits in
the light of all of the available facts, rather than on the craftiness
of the parties or the guile of their counsel. Lang v. Morgan's Home
Equipment Corp., 6 N.J. 333, 338, 78 A.2d 705 (1951).
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V. EVIDENTIARY OR HEARSAY PROBLEMS:

1. None anticipated other than those noted above.

VI. PROPOSED JURY VOIR DIRE

1. Have you, a family member, or close friend, ever treated with a
podiatrist or orthopedic doctor for an ankle injury?

2. Are you or a family member involved in property management of
any kind?

VII. PROPOSED “MODEL” JURY CHARGES

Defendant objects to the jury charges submitted by plaintiff’s
counsel that were not taken from the model civil jury charges.

Below is a list of proposed charges for this case.

1. 1.12 G. Burden of Proof
2. 1.12 H. Preponderance of Evidence Short Version
3. 1.12 K. Credibility Short Version
4. 1.12 M. False In One False in All
5. 1.12 N. Liability, Model Civil Charge the definition of negligence
(5.10 A.), general duty on highway (5.30A), duty to make
observations on highway (5.30 G.), proximate cause (6.10), and the
comparative negligence (7.10), comparative negligence (7.30; 7.31;
and 7.32)
6. 1.12 O. Damages, in general (8.10), pain, suffering, disability,
impairment and loss of enjoyment of life (8.11 E.); life expectancy
model civil charge (8.11 G.)
7. 1.12 P. No Prejudice, passion, bias or sympathy
8. 1.13 Expert testimony, and conflicting testimony (1.13 B.)

VIII. STIPULATIONS AND AGREEMENTS

None at this time.

VIIII. PROPOSED JURY VERDICT SHEET

To be provided.
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EXHIBIT A
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Counsel Associates, Cont’d
JOEL N. WERBEL> CHRISTINA M. ABREU+ ALLISON M. KOENKE>
JOHN METHFESSEL, JR.> ADAM M. CARMAN+^ KYLE A. LIVINGSTONE^
FREDRIC PAUL GALLIN*+^ SARAH K. DELAHANT+ ANTHONY J. MANCUSO>
METHFESSEL & WERBEL WILLIAM S. BLOOM>*
ERIC L. HARRISON*+
SHAJI M. EAPEN+
JAMES FOXEN^
CHRISTEN E. MCCULLOUGH^
KAJAL J. PATEL+
A Professional Corporation MATTHEW A. WERBEL> ANGELA M. GURRERA> ADAM M. SCHWARTZ+
LORI BROWN STERNBACK*+ GERALD KAPLAN> SARAH E. SHEPP+
I. BLAKELEY JOHNSTONE,III+* JARED P. KINGSLEY*+ STEVEN A. UNTERBURGER+
GINA M. STANZIALE> JOHN R. KNODEL*+ LEVI E. UPDYKE+^
PAUL J. ENDLER JR.> LESLIE A. KOCH=
JAMES P. CULLEN, JR.=^ CHARLES T. MCCOOK, JR.*> * Certified by the Supreme Court of
THOMAS O. MULVIHILL> MARC G. MUCCIOLO> New Jersey as a Civil Trial Attorney
RICHARD A. NELKE~ +Member of NY & NJ Bar
Of Counsel STEVEN K. PARNESS+ ^ Member of PA & NJ Bar
STEPHEN R. KATZMAN# RAINA M. PITTS^ ^Member of NY Bar only
ED THORNTON> AMANDA J. SAWYER^ >Member of NJ Bar only
JARED S. SCHURE> # Member of NJ & LA. Bar
Retired Member of NJ, PA & DC Bar
DON CROWLEY*+ JILLIAN T. CLARK> ~Member of NY, NJ & DC Bar
MARC DEMBLING*+ EDWARD D. DEMBLING> =Member of NY, NJ & MA Bar
(1944-2022) MICHAEL R. EATROFF>
ANGEL M. HIERREZUELO> Please reply to New Jersey
ANDREW S. KARLBON>
FRANK J. KEENAN+^
SCOTT KETTERER>
June 30, 2023

VIA ECOURTS FILING
Motions Clerk, Ocean County Superior Court
118 Washington Street
Room 121, PO Box 2191
Toms River, NJ 08754

RE: DAVIS, GRAEME VS. CONTINENTAL LAND DEVELOPERS
Our File No. : 91240 CEM
Docket No. : OCN-L-2607-21

Dear Sir/Madam:

Enclosed please find the following documents:

Notice of Motion in Limine (O+1 full copy)
Certification
Order
Certificate of Mailing

Respectfully submitted,

METHFESSEL & WERBEL, ESQS.

Christen E. McCullough
mccullough@methwerb.com
Ext. 127
CEM:jrf/Encl.
Full copy of Motion in Limine

2025 Lincoln Highway  Suite 200  P.O. Box 3012  Edison, NJ 08818  (732) 248-4200  FAX (732) 248-2355
112 West 34th Street  17th Floor  New York, NY 10120  (212) 947-1999  FAX (212) 947-3332
One Liberty Place  1650 Market St., 36th Floor  Philadelphia, PA 19103  (215) 665-5622  FAX (215) 665-5623
101 Federal Street  Suite 1900  Boston, MA 02110  (617) 204-5630  FAX (617) 977-9398
www.njinslaw.com
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Methfessel & Werbel, Esqs.
Our File No. 91240 CEM
Page 2

cc: VIA EMAIL: cdozier@rosemariearnold.com
VIA EMAIL: epsaltos@rosemariearnold.com
VIA EMAIL: llittle@rosemariearnold.com
Crystal E. Dozier, Esq.
Law Offices of Rosemarie Arnold
1386 Palisade Avenue
Fort Lee, NJ 07024

VIA LREX – COURTESY COPY
Honorable Valter H. Must, J.S.C.
Ocean County Superior Court
118 Washington Street
Room 121, PO Box 2191
Toms River, NJ 08754
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GRAEME DAVIS SUPERIOR COURT OF NEW JERSEY
LAW DIVISION:OCEAN COUNTY
Plaintiff, DOCKET NO.: OCN-L-2607-21

V.
Civil Action
CONTINENTAL ENTERPRISE
APARTMENTS, LLC, LANDMARK
COMPANIES, LLC, JOHN DOE 1-5,
ABC CORP. 1-5, XYZ MAINTENANCE NOTICE OF MOTION IN LIMINE TO
CORP. 1-10 AND/OR BOB BOE 1-10 BAR THE LATE MEDICAL BILL
FROM ELITE SPECIALTY CARE
Defendants

TO: MOTIONS CLERK AND ALL COUNSEL OF RECORD

PLEASE TAKE NOTICE that the undersigned will apply to the above

named Court at Ocean County Superior Court Courthouse 118

Washington Street PO Box 2191Toms River, NJ 08754 at the time of

Trial, for an in limine order to bar the late medical bill from Elite Specialty

Care.

DATE OF:

Arbitration: 1/26/23 Mediation: NONE

Trial: 7/11/2023 Discovery End Date: 1/12/23
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Pursuant to R. 1:6-2(d) the undersigned requests oral argument if

opposition to the within motion is entered.

METHFESSEL & WERBEL, ESQS.
Attorneys for Continental Enterprise
Apartments, LLC and Landmark
Companies, LLC

By:__________________________
Christen E. McCullough
DATED: June 30, 2023
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GRAEME DAVIS SUPERIOR COURT OF NEW
JERSEY
Plaintiff, LAW DIVISION: OCEAN COUNTY
DOCKET NO.: OCN-L-2607-21
V.

CONTINENTAL ENTERPRISE Civil Action
APARTMENTS, LLC, LANDMARK
COMPANIES, LLC, JOHN DOE 1-5,
ABC CORP. 1-5, XYZ
MAINTENANCE CORP. 1-10 ORDER
AND/OR BOB BOE 1-10

Defendants

THIS MATTER having been brought before the Court on the Motion

of Methfessel & Werbel attorneys for defendant(s), Continental

Enterprise Apartments, LLC and Landmark Companies, LLC for an Order

barring plaintiff’s late amendment to include the bill from Elite Specialty

Care, and the Court having considered the matter and for good cause

shown;

IT IS on this day of 2023;

ORDERED that the Notice of Motion in Limine to bar the late

medical bill from Elite Specialty Care be and is hereby granted in favor
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of the defendant, Continental Enterprise Apartments, LLC and Landmark

Companies, LLC; and it is further

ORDERED that a copy of this Order shall be deemed served by the

uploading of this Order on eCourts.

____________________________
J.S.C.

( ) Opposed
( ) Unopposed
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GRAEME DAVIS SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: OCEAN COUNTY
Plaintiff, DOCKET NO.: OCN-L-2607-21

V.
Civil Action
CONTINENTAL ENTERPRISE
APARTMENTS, LLC, LANDMARK
COMPANIES, LLC, JOHN DOE 1-5,
ABC CORP. 1-5, XYZ MAINTENANCE CERTIFICATION
CORP. 1-10 AND/OR BOB BOE 1-10

Defendants

I, Christen E. McCullough, of full age, duly certify as follows:

1. I am an attorney at law in the State of New Jersey, associated

with the law firm of Methfessel & Werbel, attorneys for the defendant(s),

Continental Enterprise Apartments, LLC and Landmark Companies, LLC,

and in such capacity, I am fully familiar with the facts of the within matter.

2. The attachments annexed to this defendant’s Motion in Limine

are true, accurate, and authentic.

3. This matter arises out of a slip and fall that occurred on the

premises owned by the Defendant on December 26, 2019.
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4. The Complaint in this matter was filed on October 7, 2021.

(See Complaint attached hereto as Exhibit “A”)

5. On January 24, 2022, plaintiff served answers to

interrogatories. In response to Interrogatory #13 requiring that plaintiff

“itemize in complete detail any and all moneys expended or expenses

incurred for hospitals, doctors, nurses, diagnostic tests or health care

providers, x-rays, medicines, care and appliances and state the name and

address of each payee and the amount paid and owed each payee”,

plaintiff certified:

Hudson Regional Hospital $ 131,416.25

Health Village Imaging (2/7/20) $ 1,130.00

Health Village Imaging (12/1/20) $ 1,130.00

Dr. Stephen A. Bernstein $ 1,530.00

Shore Orthopaedic Group, LLC $ 500.00

Affiliated Foot & Ankle Center, LLC $ 1,327.75

Synergy Orthopedics $ 29.00

ProCare Rehabilitation $ 10,015.00

American Family Care Urgent Care $ 175.00

TOTAL MEDICAL EXPENSES TO DATE $ 147,253.00

All of my medical bills are being paid by my health insurance.

My health insurance has a lien on the proceeds of settlement

of judgement for reimbursement of all payments. Therefore,
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I herby demand medical payment under the Defendants’

policy provisions.

(See, relevant page of plaintiff’s Answers to Interrogatories

attached as Exhibit “B”)

6. Discovery in this matter concluded on January 12, 2023.

7. Mandatory non-binding arbitration in this matter took place

on January 26, 2023.

8. At arbitration, for first time, plaintiff’s counsel notified the

defendant that there was an outstanding bill from Dr. Bernstein. It was

not attached to plaintiff’s arbitration statement. (See, relevant page of

plaintiff’s arbitration statement addressing plaintiff’s medical expenses

attached hereto as Exhibit “C”)

9. Although there was no bill attached, plaintiff’s arbitration

statement indicated there was a $48,743.70 bill for the surgery by Dr.

Bernstein and $46,080.31 was outstanding. This was despite plaintiff’s

representation throughout discovery that all bills were paid by plaintiff’s

health insurance carrier and there was a lien. (See, Exhibit “C”)

10. At no time during discovery did plaintiff amend his answers

to interrogatories to include Dr. Bernstein’s bill. Nor did Plaintiff indicate

Dr. Bernstein’s bill was not covered by plaintiff’s health insurance or was

outstanding.
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11. As indicated in the Defendant’s arbitration statement, prior to

arbitration the Defendant was never made aware that all of plaintiffs

medical bills were not either paid by MedPay or plaintiff’s health insurance

carrier during discovery. (See relevant page of Defendant’s arbitration

statement attached hereto as Exhibit “D”)

12. Following arbitration on January 26, 2023, I received an email

from plaintiff’s counsel with a late amendment to plaintiff’s answers to

interrogatories attaching the purported bill from Elite Specialty Care. (See

plaintiff’s late amendment attached hereto as Exhibit “E”) This was the

first time this bill was sent to the defense.

13. The service dates on the bill are February 2, 2021 to May 27,

2021. The “Statement Date” is May 31, 2022. (See, Exhibit “E”)

14. In addition, the bill does not show an outstanding balance;

rather, the bill indicates plaintiff’s balance is $0. Id.

15. It is clear from the dates of the surgery and Statement Date

on the bill, plaintiff’s counsel was in possession of the bill, or could have

been through due diligence, especially since Dr. Bernstein is plaintiff’s

expert, since at least May 31, 2022 and long before the discovery end date

and the arbitration.

16. Plaintiff provided a “due diligence certification” but did not

provide any explanation as to why she did not turn over the May 2022 bill
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in excess of $48,000 until after discovery concluded and the arbitration

had taken place. (See Exhibit “E”)

17. During discovery, the defendant requested records from Elite

Specialty Care. The bill in dispute was not included in those records. (See,

Dr. Bernstein’s records attached as Exhibit “F”)

18. On March 20, 2023 there was a settlement conference in this

matter. At that time, defense counsel told plaintiff’s counsel and the Court

that we still had never received a bill indicating plaintiff had an

outstanding balance of over $46,000 for the surgery.

19. Following the settlement conference, on March 21, 2023,

plaintiff’s counsel sent an email resending the same bill that showed

plaintiff had a $0 balance owed- specifically at the top of the bill it says

“Pay this Amount $0”. (See, March 21, 2023 email attached hereto as

Exhibit “G”)

20. Over the next several weeks, emails were exchanged wherein

defense counsel requested a bill that actually shows that plaintiff has a

balance due. In addition, at that point plaintiff was still maintaining there

was an ERISA lien per her March 22, 2023 email. (See March 20, 2023-

April 5, 2023 email chain attached as Exhibit “H”)

21. As evidenced in the attached emails, defense counsel

repeatedly requested the breakdown/proof of the lien and proof of out of

pockets and was willing to consider these bills for the purposes of
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settlement. Instead, defense counsel received copies of the same bill

indicating there was a $0 balance multiple times. (See email chain

attached as Exhibit “H”)

22. On April 19, 2023 the defendant’s insurance adjuster received

the same bill again from plaintiff’s counsel. This time the bill contained a

handwritten note that the “patient balance” was $46, 080.13. This bill was

dated March 22, 2023. This was the first time plaintiff produced any proof

that there was an outstanding balance owed by plaintiff. (See email and

bill attached hereto as Exhibit “I”)

23. To this day, plaintiff has not offered any explanation or

certification as to why the bill with the handwritten note was not

previously served despite diligent efforts. Nor has she provided any

explanation as to where this bill was during discovery, why it wasn’t

served during discovery or why it is dated March 22, 2023.

24. 16. Pursuant to NJ Court Rule 4:17-7, if a party who has

furnished answers to interrogatories thereafter obtains information that

renders such answers incomplete or inaccurate, amended answers shall

be served not later than 20 days prior to the end of the discovery period,

as fixed by the track assignment or subsequent order. Amendments may

be allowed thereafter only 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
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discovery end date. In the absence of said certification, the late

amendment shall be disregarded by the court and adverse parties.

25. Defendants were not made aware plaintiff was claiming there

was a $46,081.13 outstanding bill until after discovery expired at the

arbitration.

26. Following arbitration, plaintiff amended his Answers to

Interrogatories to include a billing statement from Elite Specialty Care

dated May 31, 2022. However, the statement did not indicate the balance

was owed by the plaintiff.

27. For the first time on April 19, 2023, the plaintiff provided a

bill on which there is a handwritten note that indicates plaintiff is

responsible for the balance of the bill. Up to this point, plaintiff had not

served any bills that indicated he was personally responsible for the

balance of the bill.

28. As a result of the foregoing, the Defendants were deprived the

opportunity during the discovery period to review, investigate, or dispute

the bill, retain an expert as to the usual, customary and reasonableness

of the bill and depose Dr. Bernstein regarding the initial late bill and the

modified bill served with the handwritten balance.

29. This late amendment is particularly prejudicial to the

Defendant in this case because the Defendant maintains the surgery was

not related to this incident or medically necessary. As such, the defendant
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certainly would have had the bill evaluated by an expert and investigated

why the bill was not paid by plaintiff’s health insurance.

30. It is respectfully requested that the Court bar plaintiff’s late

amendment to include the $46,080.13 medical bill from Elite Specialty

Care and any and all modified version(s) of the bill from being presented

to the jury at time of trial.

I hereby certify that the foregoing statements made by me are true.

I am aware that if any of the foregoing statements made by me are willfully

false, I am subject to punishment by law.

METHFESSEL & WERBEL, ESQS.
Attorneys for Continental Enterprise
Apartments, LLC and Landmark
Companies, LLC

By:__________________________
Christen E. McCullough
DATED: June 30, 2023
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Our File No. 91240

CERTIFICATE OF MAILING

The undersigned hereby certifies as follows:

1. I am employed by the law firm of Methfessel & Werbel.

2. On June 30, 2023 the undersigned prepared and forwarded
copies of the within Motion to the following parties:

Motions Clerk, Ocean County Superior Court
118 Washington Street
Room 121, PO Box 2191
Toms River, NJ 08754

Crystal E. Dozier, Esq.
Law Offices of Rosemarie Arnold
1386 Palisade Avenue
Fort Lee, NJ 07024
Attorneys for: Graeme Davis

Honorable Valter H. Must, J.S.C.
Ocean County Superior Court
118 Washington Street
Room 121, PO Box 2191
Toms River, NJ 08754

3. I certify that the foregoing statements made by me are true.
I am aware that if any of the foregoing statements made by me are
willfully false, I am subject to punishment.

_____________________________
Jessica R. Ford
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EXHIBIT A
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LAW OFFICES ROSEMARIE ARNOLD
1386 Palisade Avenue
Fort Lee, New Jersey 07024
(201) 461-1111
Attorneys for Plaintiff
Attorney ID No.: 034241986
Filing Attorney ID No.: 049522013
Our File No.: 217578

GRAEME DAVIS, SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: OCEAN COUNTY
Plaintiff(s),
DOCKET NO.:
vs.
CIVIL ACTION
CONTINENTAL LAND DEVELOPERS
LLC, LANDMARK COMPANIES, LLC,
JOHN DOE 1-5, ABC CORP 1-5, XYZ COMPLAINT AND JURY DEMAND
MAINTENANCE CORP 1-10 and/or BOB
BOE 1-10

Defendants.

Plaintiff(s), GRAEME DAVIS, residing at 2312 Willow Drive, Asbury Park, New Jersey,

by way of Complaint against Defendants, say(s):

FIRST COUNT

1. On or about December 26, 2019, Plaintiff, GRAEME DAVIS, was a business

invitee lawfully upon the premises known as Continental Gardens, located at 23 Willow Drive,

Asbury Park, Ocean Township, New Jersey.

2. At all relevant times herein, Defendants, CONTINENTAL LAND DEVELOPERS

LLC, LANDMARK COMPANIES, LLC, JOHN DOE 1-5, and/or ABC CORP 1-5 (the last two
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being fictitious designations), owned, operated, maintained, managed and/or controlled the subject

premises located at 23 Willow Drive, Asbury Park, Ocean Township, New Jersey.

3. At all relevant times herein, Defendants owed a duty to Plaintiff and persons such

as Plaintiff to own, operate, inspect, maintain, supervise, manage and/or control its premises

without carelessness and/or negligence and to keep its premises in a safe and proper condition,

free and clear of any and all hazardous and/or dangerous conditions and disrepairs which would

endanger the safety of Plaintiff or persons such as Plaintiff.

4. The Defendants breached their duty of care to Plaintiff by negligently and/or carelessly

allowing the premises to be improperly and/or dangerously maintained and/or caused and/or

allowed the premises to remain in an unsafe and/or dangerous condition, which condition caused

the Plaintiff to become injured.

5. At all relevant times herein, Defendants caused and/or created and/or had actual

notice of said hazardous and/or dangerous condition and/or by reasonable inspection thereof,

would have and should have discovered the hazardous and/or dangerous condition existing.

6. At all relevant times herein, Defendants owed a duty to Plaintiff and persons such

as Plaintiff to warn of any and all hazardous and/or dangerous conditions existing on the premises.

7. At all relevant times herein, Defendants breached their duty to Plaintiff by fa

Case Info

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Valter H Must Track Judge’s New Case

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Document Filed Date

July 05, 2023

Case Filing Date

October 07, 2021

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Trial: Davis Graeme Vs Continental Land Dev Elopers,

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