The types of occupational disease claims that I most commonly encounter in my practice involve the alleged development of orthopedic, neuropsychiatric, pulmonary, hearing loss, cardiovascular and/or psychiatric disabilities. In defending against these types of claims, the respondent must conduct extensive fact and medical record investigations. A typical investigation may include identification of potentially liable employers, specific dates of employment, identification of specific job sites, job duties, occurrence of prior accidents, insurance coverage and dates of the manifestation of disabilities. In one jurisdiction, I have observed an increase in the frequency of certain types of motions filed in connection with the discovery process.
In order to properly investigate the allegations of an occupational disease claim, the respondent typically demands that the petitioner provide answers to standard occupational disease interrogatories as well as all records of medical treatment and diagnostic studies. Sometimes the responses to these discovery requests become delinquent. If this occurs, a respondent may take action pursuant to N.J.A.C. 12:235-5.6 (i). This provision states in relevant part, “[i]f timely response to a discovery demand has not been provided under this rule and no motion for an extension has been made, the party entitled to the discovery may move, on notice, for an order dismissing the claim petition for lack of prosecution …” However, this provision does not specifically restrict the type of motion that can be filed. I currently appear before a judge who prefers that the respondent file a motion to compel production of discovery. When granting this motion, the judge will enter an order requiring compliance with a delinquent discovery request by a specific date.
In many instances, the allegations of an occupational disease claim are overly broad and vast. One judge actively encourages the respondents to utilize the filing of a motion requesting permission to serve special interrogatories upon the petitioner in accordance with N.J.A.C. 12:235-3.8(g). In order to justify granting this motion, the respondent must demonstrate “good cause shown.”
It is important to recognize the preferences of an assigned judge when filing certain types of motions in connection with the discovery process. It has become apparent that motion practice can vary from jurisdiction to jurisdiction.
By: Stephen Yuhas
