                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-4813-15T4


RHONDA FULLER,

        Plaintiff-Appellant,

v.

BAYER CORP, BAYER HEALTHCARE,
LLC, INTENDIS INC., BAYER AG, TEVA
PHARMACEUTICALS INDUSTRIES, LTD.,
TEVA PHARMACEUTICALS LLC f/k/a
BARR PHARMACEUTICALS INC. and BARR
LABORATORIES, INC.,

        Defendants,

and

BAYER HEALTHCARE PHARMACEUTICALS,
INC. and BAYER SCHERING PHARMA AG,

     Defendants-Respondents.
_________________________________________

              Submitted November 6, 2017 – Decided June 18, 2018

              Before Judges Accurso and O'Connor.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No.
              L-3654-13.

              DeHeer Bureau Advocato, attorneys for
              appellant (Andrew K. DeHeer, of counsel and
              on the brief).
          Drinker Biddle & Reath LLP, and Kaspar J.
          Stoffelmayr (Bartlit Beck Herman Palenchar &
          Scott LLP) of the Illinois bar, admitted pro
          hac vice, attorneys for respondents (Susan
          M. Sharko, Jennifer LaMont, and Kaspar J.
          Stoffelmayr, on the brief).

PER CURIAM

     Plaintiff Rhonda Fuller appeals from an order denying her

motion for reconsideration of an order dismissing her complaint

against defendants Bayer Healthcare Pharmaceuticals, Inc., and

Bayer Pharma with prejudice.1   After reviewing the record and

applicable legal principles, we affirm.

                                 I

     Defendants marketed two oral contraceptive drugs, Yaz and

Yasmin.   The record informs that, in 2002, plaintiff used Yaz

and Yasmin and subsequently developed gallstones, necessitating

the removal of her gallbladder in 2003.   In April 2007, she was

again prescribed these two drugs and, in February 2008, was

diagnosed and treated for a venal thromboembolism.   In 2013,

plaintiff filed a complaint against defendants alleging the use

of these two drugs caused her to develop blood clots and "gall

bladder disease."



1
   Other defendants remain in this matter but, for simplicity,
the use of the term "defendants" in this opinion refers solely
to Bayer Healthcare Pharmaceuticals, Inc., and Bayer Pharma AG.
                                2
                                                          A-4813-15T4
    During the litigation numerous case management orders were

entered governing all parties involved in the multicounty

litigation known as the "Yaz/Yasmin/Ocella Product Liability

Litigation," which included the within matter.     One case

management order (CMO), specifically CMO #7, required plaintiff

to provide a "Plaintiff Fact Sheet" and signed authorizations to

enable defendants to obtain her medical records.    Plaintiff did

not comply with this order and on March 15, 2015, the court

entered CMO #47, which dismissed her complaint without

prejudice.

    On August 3, 2015, the court entered CMO #52, which

compelled plaintiff to submit by December 3, 2015 an updated and

complete Plaintiff Fact Sheet, as well as an expert's report on

causation for each alleged injury.   The expert's report had to

comply with Rule 4:17-4(e).   The order also provided that if

plaintiff did not comply with the order, defendants were

permitted to file a motion to dismiss the complaint within sixty

days after the subject discovery became delinquent.    If

plaintiff failed to file a response to defendants' dismissal

motion within fourteen days, the complaint would be dismissed

with prejudice.

    In November 2015, plaintiff moved to reinstate her

complaint, which had been dismissed since the entry of the March
                                3
                                                              A-4813-15T4
15, 2015 order.     She did not produce a Plaintiff Fact Sheet

until oral argument.    The court reinstated the complaint on two

conditions.   One was she had to fully comply with the terms of

CMO #52 by February 1, 2016.     The other was that, if by December

31, 2015 defendants advised plaintiff of any deficiencies in the

Plaintiff Fact Sheet, she had to cure such deficiencies by

January 21, 2016.

    The court's decision, memorialized in an order dated

December 18, 2015, also provided plaintiff had to serve all

documents upon defense counsel by email.     The order expressly

set forth the defense attorney's name and email address in the

order.

    On December 31, 2015, defendants forwarded a letter to

plaintiff advising her of deficiencies they found in the

Plaintiff Fact Sheet.    Defendants informed plaintiff they

planned to move for the dismissal of her complaint if such

deficiencies were not cured by January 21, 2016.    When plaintiff

did not serve defendants with an expert's report by February 1,

2016, they filed a motion to dismiss the complaint.     Plaintiff




                                  4
                                                           A-4813-15T4
did not oppose the motion and, on February 26, 2016, the court

entered an order dismissing her complaint with prejudice.2

     Plaintiff moved for reconsideration of the February 26,

2016 order.    The court considered plaintiff's position despite

the fact she had not opposed the original motion.    We do not

have a copy of plaintiff's motion papers but, during oral

argument, she claimed she served an expert's report in

accordance with CMO #52.    However, she conceded she did not

serve defense counsel.    She explained that, at some point in the

past, she sent the report to a law firm in Kansas City that

represents defendants' interests and with which plaintiff

previously communicated about settlement.    She also stated that

what she served was an x-ray report.

     Plaintiff also argued that when defendants did not receive

her expert's report by February 1, 2016, they were required

under Rule 1:6-2(c) to contact her and advise the report was

overdue.    She contended defendants were precluded from filing a

motion to dismiss her complaint until they complied with Rule

1:6-2(c).




2
   Defendants' brief contends plaintiff filed a response to their
dismissal motion on March 7, 2016, after the February 26, 2016
order was entered.

                                 5
                                                          A-4813-15T4
    The court pointed out the December 18, 2015 order directed

her to comply with CMO #52 by February 1, 2016, which included

serving her expert's report by the latter date, and under the

circumstances defendants did not have an obligation to

communicate with her concerning her failure to comply with

either order before filing a motion for dismissal.   Defendants

asserted they never received an expert's report from plaintiff,

and noted plaintiff did not attach a copy of the alleged report

to her motion papers.

    The court suspended oral argument and directed plaintiff to

forward the expert's report to its chambers by facsimile.

Plaintiff transmitted an undated, unsigned, five-page document

that did not reveal or indicate in any way who wrote it or to

whom it was addressed.   The first page of what the court

received is not on letterhead; in fact it is not clear the first

page of what was faxed to the court is in fact the first page of

the document.

    The first three pages of the document cite studies and

discuss some of negative side-effects of Yasmin and Yaz.     The

last two pages address plaintiff's medical history and set forth

the author's opinions.   The report states "[t]here are several

factors attributing to the increased risk and likelihood of


                                6
                                                            A-4813-15T4
[venous thromboembolism] in this Client[,]" and one of those

risks is the use of these two drugs.

    The report claimed the Food and Drug Administration (FDA)

and other monitoring agencies "considered a previous formulation

to increase the risk of venous thromboembolism by 2 to 3

compared to other drugs in the category. . . .   The client has

been already taking the higher dosages, which was alerted by the

FDA to have an even increased [sic] for venous thromboembolism

after their review."

    However, the document further states that, according to the

FDA, "no specific pharmacodynamic studies were conducted with

Yasmin" and, although Yaz is known to activate the coagulation

profile, the potency and duration of use necessary to cause such

effect is unknown.   In addition, the report comments there were

other risk factors present in the "client" that are associated

with venous thromboembolism and unrelated to the use of the

subject drugs.

    The report concludes, "[i]t is therefore believed that from

the information in the medical [l]iterature, the drug Yasmin is

quite a potent coagulation system activator . . . therefore

highly contributed [to] the development of VTE in this client."

    The court found plaintiff's obligations under the terms of

the orders were clear, and that she failed to show why she was
                                7
                                                           A-4813-15T4
unable to abide by them.   More important, the court found the

expert's report defective in various respects, including the

fact the report was silent on who wrote the report and when.3

Therefore, the court denied plaintiff's motion for

reconsideration, entering an order on May 25, 2016.

                                II

     On appeal, plaintiff asserts the following arguments:

          POINT I: DID THE TRIAL COURT ABUSE ITS
          DISCRETION AND OVERREACH BY VIOLATING R.
          4:37-2(a) AND R. 4:23-2(b) WHEN IT
          IMMEDIATELY DISMISSED THE PLAINTIFF'S CASE
          IN CHIEF WITH PREJUDICE FOR FAILURE TO
          PROVIDE DISCOVERY WHEN THE MANDATED
          PROCEDURE IS TO INITIALLY UTILIZE THE
          INTERMEDIATE STEP OF DISMISSAL WITHOUT
          PREJUDICE?

          POINT II: DOES A TRIAL COURT ABUSE ITS
          DISCRETION AND COMMIT REVERSIBLE ERROR WHEN
          IT MAKES A SUA SPONTE DETERMINATION
          CONCERNING THE QUALITY AND SUFFICIENCY OF AN
          EXPERT'S REPORT WITHOUT HOLDING A FORMAL
          HEARING?

          POINT III: DID THE TRIAL COURT ERR IN
          FAILING TO REQUIRE IN ITS DISCOVERY ORDER
          THAT COUNSEL INITIALLY "MEET AND CONFER"
          BEFORE PROCEEDING TO FILE MOTION PAPERS AS
          MANDATED BY R. 1:6-2(c)?




3
   Plaintiff did not advise who authored the report during oral
argument.

                                8
                                                         A-4813-15T4
      We address the latter point first.   Plaintiff contends Rule

1:6-2(c)4 required defendants to contact her when her expert's

report was not served by February 1, 2016, and to advise the

report was overdue.

      A trial court's decision concerning a discovery matter is

reviewed under the abuse of discretion standard.    Pomerantz

Paper Corp. v. New Cmty. Corp., 207 N.J. 344, 371 (2011).       Here,

CMO #52 provided that, if plaintiff's expert's report was not

served by the time provided in that order,5 defendants were

permitted to file a motion to dismiss the complaint with


4
    Rule 1:6-2(c) states in pertinent part:

           Every motion in a civil case . . . involving
           any aspect of pretrial discovery . . . shall
           be listed for disposition only if
           accompanied by a certification stating that
           the attorney for the moving party has either
           (1) personally conferred orally or has made
           a specifically described good faith attempt
           to confer orally with the attorney for the
           opposing party in order to resolve the
           issues raised by the motion by agreement or
           consent order and that such effort at
           resolution has been unsuccessful, or (2)
           advised the attorney for the opposing party
           by letter, after the default has occurred,
           that continued non-compliance with a
           discovery obligation will result in an
           appropriate motion being made without
           further attempt to resolve the matter.
5
   As previously stated, the December 18, 2015 order extended the
deadline by when plaintiff expert's report was due to February
1, 2016.
                                9
                                                           A-4813-15T4
prejudice.   Defendants were not additionally required to contact

plaintiff pursuant to Rule 1:6-2(c) before filing their motion

to dismiss the complaint.

    Second, plaintiff did not file any opposition to

defendants' motion to dismiss her complaint.     Third, Rule 4:23-2

(b)(3) provides in relevant part:

         (b) If a party fails to obey an order to
         provide or permit discovery . . . the court
         in which the action is pending may make such
         orders in regard to the failure as are just,
         and among others the following:

              . . . .

               (3) An order . . . dismissing the
               action or proceeding or any part
               thereof with or without prejudice.
               . . .

    When plaintiff did not submit her expert's report in

compliance with CMO #52 and the December 18, 2015 order,

defendants moved to dismiss the complaint.     The court granted

that unopposed motion and entered an order on February 26, 2016,

dismissing the complaint with prejudice.     The entry of the

latter order was in accordance with Rule 4:23-2(b)(3).

Defendants were not required to abide by Rule 1:6-2(c) before

filing their dismissal motion.

    We are keenly aware the dismissal of plaintiff's complaint

with prejudice is the ultimate sanction, and is a remedy that

                                 10
                                                           A-4813-15T4
may be imposed only sparingly.     Zaccardi v. Becker, 88 N.J. 245,

253 (1982).    We perused the record to determine if a less severe

sanction would suffice, but did not succeed.     The critical fact

here is plaintiff did not serve defendants with an expert's

report that can be deemed acceptable, and the record reflects

she still has not done so.

    Nowhere in the report does the author's name appear, and

the report is unsigned.    The author's qualifications are not

revealed.     It is not known if the document the plaintiff labeled

as her expert's report is intended to be such by its author.

There is no indication when the report was drafted.     The report

does not even include a beginning or ending page.

    An expert's report with these kinds of deficiencies cannot

be tolerated.    We do not suggest plaintiff's attorney engaged in

any inappropriate conduct, but we cannot help but observe that

the form and content of the report are such that anyone could

have drafted it.     It is not beyond the capability of many to

extract information from the various scientific treatises cited

in the report and cobble together the kind of opinions set forth

therein.    Providing a signed and dated expert's report revealing

the author's identity at least provides a modicum of

authenticity.


                                  11
                                                           A-4813-15T4
    Although in her brief before us plaintiff provides the name

of the purported author of her expert's report, it is not known

when the author's name was divulged to defendants.   Moreover,

there is no indication the author has claimed the subject report

as his own.   The content of the report remains the same; it is

devoid of any indication of who wrote the report and when it was

drafted.

    The deficiencies in plaintiff's expert's report are

sufficient to have justified the court's decision to deny

plaintiff's motion for reconsideration.   We discern no abuse of

discretion.

    As for plaintiff's remaining arguments, we addressed the

applicability of Rule 4:23-2(b); the rest are without sufficient

merit to warrant discussion in a written opinion.    See R. 2:11-

3(e)(1)(E).

    Affirmed.




                                12
                                                          A-4813-15T4
