In this appeal, the court considered the trial judge's handling of a plaintiff's mid-trial request for a twenty-four-hour adjournment or a mistrial when plaintiff's medical witness unexpectedly failed to appear to testify. The judge denied plaintiff's request for any form of relief and granted defendant's motion for involuntary dismissal pursuant to Rule 4:37-2(b), resulting in the dismissal of plaintiff's personal injury complaint with prejudice
The court holds that the judge's denial of an adjournment or a mistrial under the circumstances constituted a mistaken exercise of discretion. Because plaintiff's claim was completely dependent upon the non-appearing witness's testimony and plaintiff's inability to produce the witness was not the result of inexcusable neglect or willful failure, the court determines that the judge should have afforded some measure of relief to prevent the irretrievable loss of the claim and infringement of plaintiff's substantial rights. Accordingly, the court reverses the dismissal order and remands for a new trial.
