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Potter v. Vega

May 21, 2008

KEVIN POTTER, PLAINTIFF-APPELLANT,
v.
JAMES S. VEGA, SHERRI L. VEGA, ALLSTATE INSURANCE COMPANY, JULIA DONALDSON, KETA WHITE, AND CONCENTRA, DEFENDANTS, AND HOWARD F. GEMBISKI AND SOUTH JERSEY GAS COMPANY, DEFENDANTS-RESPONDENTS.



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

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

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 Friedenthal's medical license had been revoked.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 ...


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