                                NOT FOR PUBLICATION WITHOUT THE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-2224-18T3


REBECCA ASHE,

          Plaintiff-Appellant,

v.

NEWARK BETH ISRAEL
MEDICAL CENTER,

     Defendant-Respondent.
__________________________

                    Argued December 4, 2019 – Decided December 23, 2019

                    Before Judges Mayer and Enright.

                    On appeal from the Superior Court of New Jersey, Law
                    Division, Essex County, Docket No. L-3013-15.

                    Eric G. Kahn argued the cause for appellant (Javerbaum
                    Wurgaft Hicks Kahn Wikstrom & Sinins, attorneys;
                    Eric G. Kahn, of counsel and on the brief).

                    Eileen Bass Rudd argued the cause for respondent
                    (Hardin, Kundla, McKeon & Poletto, PC, attorneys;
                    Eileen Bass Rudd, on the brief).

PER CURIAM
      Plaintiff Rebecca Ashe appeals from a December 14, 2018 order

dismissing her complaint against defendant Newark Beth Israel Medical Center

(hospital) with prejudice. We reverse and remand.

      Plaintiff alleged she suffered an injury during a blood draw performed by

an employee of the hospital on May 7, 2013. There is no evidence in the record

describing the nature of her injury.

      On May 2, 2015, plaintiff filed suit, alleging she suffered "permanent

personal injuries" arising from the "careless and negligent" care provided by the

hospital. The hospital was served with the complaint on November 1, 2016 and

filed its answer about one month later.

      In March 2017, plaintiff requested the hospital identify the phlebotomist

who drew her blood on May 7, 2013. Plaintiff also served deposition notices,

requesting the hospital produce an individual with knowledge to ascertain the

identity of the target phlebotomist. The hospital did not produce anyone for

deposition and responded it was unable to identify the specific phlebotomist

because the blood draw records were discarded pursuant to hospital policy.

      Almost two years after filing its answer, the hospital filed a motion to

dismiss plaintiff's complaint pursuant to Rule 4:4-1 and Rule 4:37-2(a) based on




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                                          2
the failure to serve the summons within fifteen days from the date of the Track

Assignment Notice. The motion judge heard oral argument on October 19, 2018.

      The hospital argued plaintiff's failure to timely serve the summons

"resulted in an inability to identify the person who drew the blood," causing

prejudice. In opposition to the motion, plaintiff contended the blood draw

records "could have been destroyed before the time [plaintiff] should have

served the complaint and if – if that's the case, . . . then [the hospital] hasn't

established prejudice."

      The judge concluded it was unclear when the blood draw records were

destroyed, and whether the records were discarded in the normal course of

business pursuant to a specific written policy. The judge indicated that if the

hospital presented a "specific certification or policy that . . . would specifically

tie a timeframe" regarding destruction of the records, he might have granted the

motion. Absent such information, the judge denied the motion without prejudice

and allowed the hospital to refile when it obtained information "specifically

detailing the prejudice suffered . . . ."

      The hospital renewed its motion to dismiss on October 31, 2018. The

renewed motion included a certification from Carol Carson, the hospital's

Interim Administrative Director of the Department of Laboratories/Blood


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                                            3
Supervisor. According to the Carson certification, the blood draw logs were

maintained by the hospital for a minimum of two years from the date of blood

draw "as required by the College of American Pathologists (CAP) and the

[hospital's] Department of Laboratories Record Retention Policy."          Carson

further certified: (1) "due solely to [p]laintiff's delay in filing and serving her

[c]omplaint, the hospital no longer retains the blood draw accession log from

May 7, 2013"; (2) the hospital "cannot identify with certainty the exact date

when the blood draw accession log containing information on [plaintiff's] May

7, 2013 blood draw was disposed of . . ."; and (3) the hospital's disposal of the

blood draw accession log, "depending on the storage needs of the individual

department involved," would have been "at the earliest, in June of 2015 and prior

to the end of the 2015 calendar year."

      Due to plaintiff's delay in serving the summons, Carson explained, "as the

relevant blood draw accession log is no longer retained that would have

contained the phlebotomist's initials, the hospital is unable to produce the

phlebotomist for deposition . . . ."     Absent from the record on the renewed

motion is a definitive date when the hospital discarded the blood draw log to

ascertain the prejudice, if any, suffered from plaintiff's delay in service of the




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                                         4
summons. Nor did the Carson certification state there was no person at the

hospital with knowledge of phlebotomists in its employ in May 2013.

      The judge heard argument on the renewed motion on December 14, 2018.

After reviewing the motion papers, the judge explained, "I still believe, the case

law really turns on the prejudice issue. What is the prejudice? . . . Can it be

cured? Are there less drastic remedies other than dismissal?" He concluded the

issue of prejudice was case-specific, consistent with case law, and dismissal of

the complaint should be reserved "for those situations where no less a sanction

will erase the prejudice suffered by the non-delinquent party."

      Ultimately, the judge determined there was no less drastic remedy he

could impose that would alleviate prejudice to the hospital.           The judge

concluded plaintiff's failure to send a preservation of documents letter was a

critical factor in dismissing the case because if the hospital had been on notice

of plaintiff's pending litigation, the blood draw logs would have been retained.

      The trial judge stated,

                  I know counsel argues that [the hospital was]
            probably prejudiced because [the blood draw logs]
            probably were destroyed, but we don't know
            specifically. I don't know how they could do anything
            else. Because we have the certification that the records
            were destroyed in that time period and would not have
            been but for the lengthy passage of time from filing to
            service.

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                                        5
                   The earliest, according to the certification, would
            have been destroyed June of '15. Certainly[,] by the
            end of the calendar year they were, and they just simply
            had no notice of this . . . lawsuit. And there's nothing
            plaintiff submits that [the blood draw logs] were
            destroyed after the hospital received a summons and
            complaint.

      In granting the hospital's motion, the judge failed to address statements

made by the hospital's counsel during oral argument. Counsel for the hospital

stated, for the first time, that "there were two [phlebotomists] working at the

time" of plaintiff's injury. The judge did not question why it would have been

difficult for the hospital to identify the individual who drew plaintiff's blood if

there were only two phlebotomists employed on that date.1 Nor did the judge

question the statement by the hospital's counsel that there was an "unwritten

policy that [defendant] wouldn't dispose of [the logs] on the two-year deadline

period," depending on "the needs of the lab . . . in holding on to such

information."

      On appeal, plaintiff argues the hospital failed to present specific and

demonstrable prejudice due to the delay in serving the summons and therefore

dismissal of her complaint was erroneous. In addition, plaintiff contends she


1
  In its merits brief, the hospital now asserts there were fourteen phlebotomists
in its employ on May 7, 2013.
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                                        6
received new information during counsel's argument on the hospital's renewed

motion and therefore had no opportunity to pursue the information to identify

the target phlebotomist.

      We review an order of dismissal based upon Rule 4:4-1 and Rule 4:37-

2(a) for abuse of discretion. Woodward-Clyde Consultants v. Chem & Pollution

Scis., Inc., 105 N.J. 464, 475 (1987). A trial court abuses its discretion when

the "'decision [was] made without a rational explanation, inexplicably departed

from established policies, or rested on an impermissible basis.'" United States

v. Scurry, 193 N.J. 492, 504 (2008) (alteration in original) (quoting Flagg v.

Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002)).

      Here, the hospital submitted a narrowly focused certification, stating the

blood draw records were likely destroyed and the destruction date was unknown.

The certification contained no information regarding the number of

phlebotomists employed by the hospital in May 2013. If, as the hospital's

attorney stated during argument before the motion judge, there were only two

phlebotomists employed by the hospital at the time of plaintiff's injury, then the

blood draw records may not have been necessary to identify the target

phlebotomist. During discovery, plaintiff sought information from the hospital

as to the identity of the phlebotomist who drew her blood. Whether there were


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                                        7
two, or even fourteen, phlebotomists employed by the hospital on the date of

plaintiff's injury, the proffered certification does not indicate the blood draw

records were the only source of information to identify the phlebotomist.

      Also absent from the record is any explanation by the hospital how the

delay in service of the summons prejudiced its ability to maintain a defense to

plaintiff's action. See Crispin v. Volkswagenwerk, A.G., 96 N.J. 336, 345-346

(1984). The hospital bears the burden of showing prejudice occurring in the

relevant time period. Moschou v. DeRosa, 192 N.J. Super. 463, 466-67 (App.

Div. 1984) (requiring dismissal where defendant's disposal of records after

expiration of the statute of limitations prejudiced his case). "[D]elay alone does

not serve to create substantial prejudice." Mitchell v. Charles P. Procini D.D.S.,

P.A., 331 N.J. Super. 445, 454 (App. Div. 2000). "[I]t is the lack of availability

of information which results from the delay that is, for the most part,

determinative of the issue of substantial prejudice." Ibid.

      "[D]ismissal is reserved for those situations where 'no lesser sanction will

erase the prejudice suffered by the non-delinquent party.'" Olds v. Donnelly, 150

N.J. 424, 438-39 (1997) (quoting Crispin, 96 N.J. at 345). The key factor in a

dismissal decision is a showing of "specific or demonstrable prejudice" upon a

defendant due to a delay between the filing and serving of the complaint.


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                                        8
McLaughlin v. Bassing, 51 N.J. 410 (1968), adopting Judge (later Justice)

Sullivan's dissent in McLaughlin v. Bassing, 100 N.J. Super. 67 (App. Div.

1967). "Ordinarily, in the absence of demonstrable prejudice to the defendant,

a complaint should not be dismissed because of untimely issuance of a

summons." State v. One 1986 Subaru, 120 N.J. 310, 315 (1990).

      Here, the hospital stated it suffered prejudice but the Carson certification

failed to explain the exact nature of the prejudice.         Nor did the hospital's

certification indicate why it could not produce a person with knowledge

regarding the identity of the target phlebotomist. The hospital may have other

means of identifying the phlebotomist who drew plaintiff's blood. Given the

relatively small number of phlebotomists employed by the hospital in May 2013,

payroll records, security information, human resource forms, or similar

information   may    be   available   to    pinpoint   the    target   phlebotomist

notwithstanding the claimed destruction of the blood draw records.

      On this record, we are satisfied the hospital did not establish the delay in

service of the summons caused it to suffer specific or demonstrable prejudice.

As a result, the dismissal of plaintiff's complaint with prejudice was an abuse of

discretion.

      Reversed and remanded. We do not retain jurisdiction.


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                                        9
