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Tynan v. Vicinage 13 of the Superior Court of New Jersey5/31/2002
ery rules. Wilkins, supra, 217 N.J. Super. at 41-2; Maurio v. Mereck Construction Co., Inc., 162 N.J. Super. 566, 570 (App. Div. 1978). This reluctance is particularly appropriate in this case where the record reflects that Tynan played no role in any of the alleged discovery defects. Accordingly, we reverse the exclusion and suggest to the trial court that if it determines that Tynan's counsel has abused the discovery process, any sanction imposed should be tailored to the abuse.
In addition, we do not decide whether any particular report or the corresponding trial testimony might be appropriately rejected on some other legitimate basis. We note for example, that defendants assert that D'Arco's report is not the proper subject of expert testimony. Moreover, the body of the order reflects that Dr. Layman was the State's expert and not Tynan's, but the handwritten explanation regarding Dr. Layman at the bottom of the order was not completely reproduced in the appendix. Accordingly, we leave to the trial court whether to exclude the report or testimony of any particular expert in this matter.
In conclusion, we affirm the summary judgment dismissing counts three, four, five and six. We reverse the summary judgment dismissing counts one and two of plaintiff's complaint and remand for further proceedings not inconsistent with this decision.
Affirmed in part, reversed and remanded in part.
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