The plaintiff brought a motion under Rule 48.11(b) of the Rules of Civil Procedure to restore an action to the trial list after it had been struck for failure to submit a trial certification form.
The court applied the test governing restoration following administrative dismissal for delay, including whether the delay was intentional, whether it was inordinate and inexcusable, and whether the defendants suffered prejudice.
Although the delay of approximately 31 months was found to be inordinate and not reasonably explained, the plaintiff successfully rebutted the presumption of prejudice and the defendants failed to establish actual prejudice affecting the fairness of a trial.
The court held that the absence of certain radiological studies did not demonstrate a substantial risk that a fair trial was no longer possible.
The action was therefore restored to the trial list, but no costs were awarded.
