Background
On May 28, 2022, Karen Passero was aboard defendant Louis Jacobelli’s twenty-foot fishing boat near Long Beach Island when a larger passing vessel created a wake. The wake struck the boat, and Karen—seated in the bow—was launched from her seat twice, landing on her back and fracturing her thoracic spine (T-11 burst fracture with retropulsion). She wore a back brace for three months, could not return to work as a hairdresser for five months, and experienced ongoing pain requiring consideration of spinal fusion surgery.
Plaintiffs sued for negligence and loss of consortium. At trial, Captain Hendrick Keijer testified as a marine expert that defendant violated the standard of care by failing to slow to a safe speed when encountering the wake and by permitting Karen to sit in the bow—an unsafe position. Lay witness testimony conflicted with defendant’s claim that he had slowed to one to two miles per hour. The jury found defendant fully liable, awarding Karen $500,000 in compensatory damages and Louis $292,000 for loss of consortium, totaling $954,120.53 with interest and attorney fees.
The Court’s Holding
The New Jersey Appellate Division vacated the damages award without prejudice and ordered a new trial on damages only, finding that the trial court misapplied its discretion by denying defendant a fair extension of discovery. Eleven days before trial, plaintiffs served Dr. Giordano’s supplemental expert report dated January 14, 2025—based on an examination conducted less than one month before trial—revealing that Karen had decided to undergo major spinal fusion surgery. This report materially changed the perceived severity and progression of Karen’s injury. Despite defendant’s request for a 180-day discovery extension, the trial court denied it, reasoning that defendant was not prejudiced because he had cross-examined Dr. Giordano at his de bene esse deposition (recorded February 4, 2025) and that plaintiffs had exercised due diligence.
The appellate court disagreed, holding that even though cross-examination occurred, it did not cure the prejudice from denying defendant a fair opportunity to obtain his own independent medical examination and develop responsive evidence. The court emphasized that discovery rules exist to “eliminate, as far as possible, concealment and surprise” and that extensions after the discovery deadline are permitted only upon showing of “exceptional circumstances”—which the court found plaintiffs had not established.
However, the court affirmed the liability portion of the verdict, finding sufficient evidence that defendant operated the boat negligently. It also disapproved (but did not reverse on) plaintiffs’ failure to provide reasonable advance notice of the demonstrative “storyboard” presented at Dr. Giordano’s deposition and referred that notice issue to the Civil Practice Committee for prospective consideration.
Key Takeaways
- Late-served expert evidence that materially changes the perceived severity of an injury can warrant reversal of a damages award, even if liability is sound, when the opposing party is denied a fair opportunity to respond through discovery extension.
- Procedural discovery deadlines serve critical fairness functions and cannot be circumvented merely because cross-examination occurred; a party denied extension must have a reasonable opportunity to conduct independent investigation.
- Failure to provide advance notice of demonstrative aids—particularly surprise exhibits first presented at a de bene esse deposition—violates discovery principles and may support reversal, even if the exhibit is ultimately permitted in redacted form.
- A trial court’s finding of “due diligence” can be clearly erroneous where a defendant fails to pursue discovery tools (such as an independent medical examination) and then claims no prejudice from late-served evidence materially changing the case.
Why It Matters
This decision reinforces that procedural fairness in civil litigation requires strict adherence to discovery deadlines and cannot be waived by cross-examination alone. Although the appellate court affirmed that defendant was negligent—an important holding for boating operators, establishing that captains must slow to a safe speed when encountering wakes and must not permit passengers to sit in high-risk bow positions—the court made clear that plaintiffs’ litigation tactics were unfair. The decision signals that trial courts must grant reasonable discovery extensions when late-served evidence materially alters the case, particularly medical evidence presented just weeks before trial that was knowable only through an examination scheduled close to trial.
For practitioners, the opinion illustrates the practical consequences of discovery abuse: even a verdict that survives liability scrutiny can be vacated on damages if procedural fairness is compromised. The court’s referral of the storyboard notice issue to the Civil Practice Committee suggests potential future rulemaking addressing demonstrative aids and discovery obligations in expert depositions.