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Potter v. Vega


May 21, 2008


On appeal from Superior Court of New Jersey, Law Division, Cumberland County, Docket No. L-1040-05.

Per curiam.


Argued April 16, 2008

Before Judges Lihotz and Simonelli.

Plaintiff appeals from the Law Division order dismissing his complaint, with prejudice. The motion judge determined plaintiff's failure to comply with an order requiring him to participate in a rescheduled independent medical examination (IME), requested by defendants, was tactical and designed to thwart appropriate discovery. Thus, plaintiff's willful disregard of the court's order warranted dismissal of his claims. We affirm the dismissal of all claims arising from plaintiff's alleged personal injuries, but reverse the dismissal of the limited property damage claim against Allstate Insurance (Allstate).

Defendant James Vega, while driving a vehicle owned by defendant Sherri L. Vega, rear-ended plaintiff's vehicle on Sharp Street in Millville. On that day, defendant South Jersey Gas Company (SJGC) engaged a work crew to perform repairs on Sharp Street proximate to the accident. Defendant Howard Gembiski (Gembiski) experienced "car trouble" and had pulled his vehicle to the shoulder of the road in an area prohibiting stopping. Plaintiff's Special Civil Part complaint alleged negligence against the Vegas, Gembiski, and SJGC and breach of contract against Allstate Insurance (Allstate) and its two named employees.

SJGC and Gembiski challenged the permanency of plaintiff's alleged injuries and jointly requested an IME. Plaintiff failed to attend the first scheduled IME asserting a conflicting court appearance in another matter. The exam was again scheduled for February 7, 2007 at 9:45 a.m. at the Hammonton office of Roy Friedenthal, M.D.

On February 7, 2007, plaintiff arrived at Dr. Friedenthal's office, accompanied by his mother and daughter. Without notice to any party or obtaining an order from the court, plaintiff entered the office armed with a video camera. He intended to record the exam because he mistakenly believed Dr. Friedenthal's medical license had been revoked. The record includes the DVD recording of the interactions between plaintiff, Dr. Friedenthal, and his staff. Dr. Friedenthal unsuccessfully sought plaintiff's cooperation and told plaintiff to leave the office. Plaintiff asserted Dr. Friedenthal "verbally assaulted and defamed him," and the office staff was discourteous.

Defendants filed a motion to dismiss. After a hearing, the motion judge entered an order, which included provisions: (i) requiring plaintiff to submit to an IME with Dr. Friedenthal; (ii) permitted videotaping of the IME by a professional videographer service at plaintiff's expense; and (iii) mandating plaintiff pay $150 to SJGC for the aborted February 7 IME appointment. Also, the judge warned plaintiff that if the rescheduled IME did not take place, plaintiff risked dismissal of his complaint.

Following the court appearance, plaintiff wrote to defense counsel expressing his intent to file, within ten days, criminal and civil charges against Dr. Friedenthal for his actions on February 7, 2007. Plaintiff also filed a motion to strike SJGC's answer asserting its failure to provide requested documents.

The IME was rescheduled with Dr. Friedenthal for March 27, 2007. Plaintiff arrived with a videographer. The DVD recording of the events that transpired is part of the record. Plaintiff presented his medical documents to the receptionist, which included statement typed onto the authorization form:

PLEASE TAKE NOTICE THAT due to an incident that occurred on 2-7-07, concerning the above mentioned medical practice, Dr. Roy B. Friedenthal, and his staff, kindly note that a lawsuit will shortly be filed in the Superior Court of New Jersey . . . seeking redress for healthcare fraud, defamation, assault and other legal and ethical wrongs which occurred on the above stated date. Be guided accordingly.

Dr. Friedenthal certified he "felt threatened" and was unwilling to proceed with the IME.

Gembiski and SJGC renewed their requests to dismiss plaintiff's complaint pursuant to Rules 4:23-2(b)(3) and 4:37-2(a). Following review of all submissions, including the DVD recordings of the two visits to Dr. Friedenthal's office, the court dismissed plaintiff's complaint, with prejudice, "as to all claims and as to all parties" stating:

The allegation of Mr. Potter that in some way he was assaulted is incomprehensible, bizarre, or tactical. What Dr. Friedenthal did was come out, try and shake hands, try to deal with the situation. Nobody shouted at anybody, but if anybody raised their voice, it was Mr. Potter and not Dr. Friedenthal. Mr. Potter's statement that he was being assaulted is without an iota of truth. Anybody in today's times with tapes available, nobody could reach the conclusion in any fashion that Dr. Friedenthal in any way assaulted him. Dr. Friedenthal dealt with a difficult situation, an unusual situation . . . . [I]t's the very video tape that Mr. Potter relies upon that sinks Mr. Potter.

It is clear that you [plaintiff] were making a tactical decision to frustrate defendants from having this IME conducted by this particular doctor, the doctor they had every right to choose. You questioned his credentials. You were wrong. You made an absolutely false claim that he assaulted you. You then show up for the IME notifying the doctor that he's going to be sued . . . and it is clear that you did not want this doctor to examine you, for whatever reason . . . . All you had to do was allow [him] to conduct the IME, just like hundreds of other plaintiffs coming before this court do . . . .

Your actions cannot be countenanced by this Court. I believe that they are so wrong that the only appropriate sanction is to dismiss your case in its entirety, including the personal injury claims and any other property damage claims because your conduct is so wrongful in this matter and so tactical that the only appropriate sanction is the dismissal of this case in its entirety . . . . [T]here is absolutely nothing done wrong by Dr. Friedenthal. But you proceed at your own risk on that basis.

On appeal, plaintiff argues defense counsel terminated the rescheduled IME, therefore, the court erred in finding plaintiff's actions were contumacious; SJGC failed to respond to discovery making its motion to dismiss defective; the court's order could not extend to dismiss claims against defendants who were not party to the motion, thus, the action against Allstate and the Vegas must be reinstated; and the motion judge erred in dismissing plaintiff's property damage claim.

During argument, plaintiff presented additional challenges, which were neither presented to the trial court nor presented in his merits brief. Specifically, he objected to the defendants' request for an IME and the situs of the exam. We decline to address these concerns, which were not raised below and do not interpose important matters of public concern. Alan J. Cornblatt, P.A. v. Barow, 153 N.J. 218, 247 (1998). We review the trial court's conclusion to dismiss plaintiff's complaint.

"If discovery rules are to be effective, courts must be prepared to impose appropriate sanctions for violations of the rules." Abtrax Pharm., Inc. v. Elkins-Sinn, Inc., 139 N.J. 499, 512 (1995). "A trial court has inherent discretionary power to impose sanctions for failure to make discovery, subject only to the requirement that they be just and reasonable in the circumstances." Calabrese v. Trenton State College, 162 N.J. Super. 145, 151-52 (App. Div. 1978), aff'd, 82 N.J. 321 (1980). Thus, in our review of an order for "dismissal of a complaint with prejudice for discovery misconduct," we determine "whether the trial court abused its discretion, a standard that cautions appellate courts not to interfere unless an injustice appears to have been done." Abtrax, supra, 139 N.J. at 517.

A trial court is armed with coercive powers to ensure the fairness of legal proceedings including "an array of available remedies to enforce compliance with . . . one of its orders." Gonzalez v. Safe and Sound Sec. Corp., 185 N.J. 100, 115 (2005). Rule 1:2-4(a) allows the dismissal of a plaintiff's complaint for failure to appear at "any other proceeding scheduled by the court." Rule 4:23-2(b)(3) permits dismissal of an action for a party's failure "to obey an order to provide or permit discovery[.]" Similarly, Rule 4:37-2(a) allows the dismissal of any claim against a defendant for a party's failure to comply with an order of court.

In assessing the appropriate sanction for the violation of a court order, the judge must balance a number of factors including, "whether the plaintiff acted willfully and whether the defendant suffered harm, and if so, to what degree." Gonzalez, supra, 185 N.J. at 115. "Because the dismissal of a plaintiff's cause of action with prejudice is a drastic remedy, it should be invoked sparingly, such as when the plaintiff's violation of a rule or order evinces 'a deliberate and contumacious disregard of the court's authority.'" Ibid. (quoting Kosmowski v. Atl. City Med. Ctr., 175 N.J. 568, 575 (2003)).

Applying these principles to the facts at hand, we agree with the motion judge that plaintiff's willful conduct impaired defendants' ability to present their defenses to his claims. Following the February 7, 2007 aborted IME, plaintiff contemplated the initiation of both criminal and civil actions against Dr. Friedenthal. Notwithstanding plaintiff's belief that he was wronged and his course for redress warranted legal action, he declined to raise his concerns or the possible conflict at the motion hearing. Plaintiff remained mute even though the court ordered the examination by Dr. Friedenthal and warned plaintiff that his failure to appear could result in dismissal. The following day, plaintiff revealed his intention to pursue legal redress in a letter to counsel. He never notified the court. Plaintiff did not file suit within ten days as he stated. When the IME proceeded as scheduled, plaintiff reasserted his threat of litigation directly to Dr. Friedenthal accompanied by the warning: "Be guided accordingly." Plaintiff was well aware of the judge's instructions when scheduling the IME. Rather than comply, he flagrantly frustrated the IME exam in pursuit of his own unclear objectives. Plaintiff's defiance of the order is amply demonstrated by the DVD recordings, which belie his contentions. His conduct was without justification and, objectively, can be characterized as designed to prejudice SJGC's and Gembiski's right to present a defense.

"[W]hen the plaintiff's disregard of a court order impairs 'the defendant's ability to present a defense on the merits,' the defendant will be deemed to have suffered irreparable prejudice." Gonzalez, supra, 185 N.J. 116 (quoting State v. One 1986 Subaru, 120 N.J. 310, 315 (1990)). We find no abuse of discretion in the motion judge's conclusion to dismiss all claims asserted by plaintiff against all defendants regarding damages stemming from his alleged personal injuries.

However, we agree with plaintiff that the claim asserted against Allstate for "additional hidden damage to his automobile," stated as $2,760.98 in paragraph 37 of his complaint, should not have been dismissed. The justification warranting dismissal of the other claims is inapplicable to this claim. We discern no prejudice to Allstate flowing from plaintiff's prior actions with respect to this finite claim. Procedurally, Allstate has not responded to plaintiff's complaint. Assuming proper service of process, plaintiff could proceed to request a default and default judgment on this single issue. We reverse only that portion of the judgment of dismissal to allow this narrow issue to proceed and remand this matter to the trial court.

Any arguments raised by plaintiff that have not specifically been addressed and disposed of were lacking in sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Affirmed in part and reversed and remanded in part.


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