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Richard Lipsky, M.D v. Robert A. Goldstone

December 9, 2011

RICHARD LIPSKY, M.D., PLAINTIFF-APPELLANT/ CROSS-RESPONDENT,
v.
ROBERT A. GOLDSTONE, M.D. AND ROBERT A. GOLDSTONE, M.D., P.A., DEFENDANTS-RESPONDENTS/ CROSS-APPELLANTS.



On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9362-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 30, 2011

Before Judges Fuentes, Nugent and Newman.

Plaintiff Richard Lipsky, M.D. brought suit against defendant, Robert Goldstone, M.D., alleging defamation arising out of disparaging remarks defendant allegedly made to one of plaintiff's patients during an independent medical examination (IME) in an unrelated personal injury suit. Following extensive motion practice, the trial court granted summary judgment in favor of defendant, finding that the litigation privilege provides absolute immunity for statements made during the IME. The court subsequently denied defendant's motion for frivolous litigation sanctions against plaintiff.

Plaintiff now appeals from the order dismissing his cause of action and previous orders denying his request to extend discovery and denying his motion to enforce litigant's rights and impose sanctions on defendant for discovery violations. Defendant cross-appeals the court's order denying his motion for frivolous litigation sanctions against plaintiff. We affirm in all respects.

I

Barbara Szczecina was involved in a car accident in which she suffered numerous physical injuries. She sought treatment for these injuries from a number of physicians, including plaintiff, who specializes in anesthesiology and pain management. Plaintiff began treating Szczecina in March 2005.

Szczecina filed a personal injury lawsuit seeking damages for the injuries she sustained in the accident. As part of pre- trial discovery requested by opposing party's counsel in that suit, Szczecina was required to submit to an IME on October 16, 2007, performed by defendant.

On December 20, 2007, plaintiff filed a complaint against defendant, alleging defendant made three statements to Szczecina during the IME that plaintiff considered to be defamatory. Specifically, plaintiff alleged defendant told Szczecina that:

(1) plaintiff was only treating Szczecina "in order to make money"; (2) the treatment rendered by plaintiff to Szczecina was "unnecessary"; and (3) plaintiff was a "quack." Plaintiff's theory of liability sounded in common law defamation and tortious interference with prospective economic advantage*fn1 against defendant, and sought punitive damages.

Defendant filed an answer raising "judicial immunity and/or a qualified privilege(s)" as one of several affirmative defenses. On October 16, 2009, defendant sent plaintiff a notice of demand for withdrawal of frivolous litigation pursuant to Rule 1:4-8, asserting that plaintiff's "action is barred in its entirety pursuant to the litigation privilege . . . ."

On that same date, defendant filed a notice of motion for summary judgment on the grounds of the applicability of the litigation privilege, of the non-defamatory nature of the statements, and that "the recipient [Szczecina] did not believe the alleged statements or change her opinion of [plaintiff] as a result of the alleged statements." The trial court denied the motion without prejudice because discovery was still ongoing.

The matter proceeded with the parties engaging in extensive motion practice concerning discovery issues. We will not describe the litany of motions filed by both sides seeking judicial oversight and sanctions in connection with the production of documents and the scheduling of depositions. Suffice it to say that the trial judge viewed the parties and their respective counsel as exhibiting a manifest dislike for one another. In the judge's own words, a "manifest animosity . . . has developed and enveloped here."

Defendant renewed his motion for summary judgment at the end of the discovery period. After considering the arguments of counsel, the court granted defendant's motion and dismissed plaintiff's complaint with prejudice. The court articulated its findings and explained its reasoning in a memorandum of opinion dated February 19, 2010. Addressing the underlying basis of plaintiff's cause of action, the court found the statements made by defendant were immune from liability under the litigation privilege.

After careful review of the briefs and certifications presented to the Court, it appears that there is no genuine issue of fact that would impact the Court's decision as a matter of law, as to the litigation privilege. Thus, the statements were made in the ...


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