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Ewa Fik-Rymarkiewicz v. University of Medicine and Dentistry of New Jersey

February 26, 2013


On appeal from the Superior Court of New Jersey, Law Division, Camden County, Docket No. L-6849-06.

The opinion of the court was delivered by: Fasciale, J.A.D.



Argued January 22, 2013

Before Judges Parrillo, Fasciale and Maven.

Decided February 7, 2013

The opinion of the court was delivered by FASCIALE, J.A.D.

Plaintiff Ewa Fik-Rymarkiewicz, Ph.D., a molecular biologist, appeals from a June 10, 2011 order dismissing her complaint with prejudice, and a July 22, 2011 order denying reconsideration.*fn1 We are thoroughly satisfied that plaintiff demonstrated contumacious behavior, ignored court orders, and obstructed discovery of information that is directly relevant to her primary emotional distress claim. We conclude, therefore, that the judge did not abuse her discretion, and affirm the dismissal.

In October 2006, plaintiff filed a complaint against her former employer, defendant University of Medicine and Dentistry of New Jersey (UMDNJ), and supervisors Rameshwar Sharma, Ph.D., and Dr. Duda. She alleged employment discrimination, hostile work environment, and retaliation in violation of the New Jersey Law Against Discrimination (the LAD), N.J.S.A. 10:5-1 to -49.*fn2

Plaintiff alleged the following facts in her complaint, most of which defendants disputed.

In 2000, UMDNJ employed plaintiff as a post-doctoral fellow, and she received positive evaluations for approximately five years. In January 2005, plaintiff notified Drs. Sharma and Duda that she was pregnant and they began to harass and discriminate against her. For example, in April 2005, plaintiff discovered that Drs. Sharma and Duda published an article without recognizing her work effort, and when plaintiff questioned them about the article, Drs. Sharma and Duda threatened to terminate her if she complained publicly; and, in May 2005, Dr. Duda criticized plaintiff's work as being too slow, and pressured her that work-related stress could cause a premature birth.

After giving birth, plaintiff remained home pursuant to UMDNJ's medical leave policy. When she returned to work in October 2005, Dr. Sharma allegedly told her that "[y]ou cannot be a mommy and a scientist at the same time." In October 2005, plaintiff suffered from anxiety, depression, and marital problems. In January 2006, plaintiff filed an internal discrimination complaint with UMDNJ's Office of Affirmative Action/EEO, and in September 2006, UMDNJ terminated her. She found new employment five months later. Plaintiff sought compensatory and punitive damages for her emotional distress, and asserted a lost wage claim.*fn3


Defense counsel deposed plaintiff on four separate days between August 2008 and April 2010. At her first deposition, plaintiff appeared with a folder that she had not produced in discovery containing notes that she had made "after every accusation" by Drs. Sharma and Duda, and she attempted to consult those notes during the proceeding. After an off-the-record conversation with her counsel, plaintiff produced the notes and the deposition continued, but the proceeding was interrupted by other off-the-record consultations between plaintiff and her counsel.*fn4 The parties were unable to complete the deposition.

In March 2009, plaintiff appeared for her second deposition and expressed an unwillingness to answer questions and provide discovery. For example, regarding her immigration status, she testified that she applied for a green card as an independent researcher, but refused to give to defense counsel the name of her immigration attorney. Plaintiff's counsel stated, "I'm leaving the ultimate decision as to whether she's going to provide the information up to her. I've explained the risks and ramifications of her not responding to your question." Defense counsel then informed plaintiff that he could move to dismiss the case if she failed to answer his questions.

Plaintiff's third deposition occurred in February 2010. At this deposition, plaintiff again refused to provide the name of her immigration attorney, refused to answer other questions, and attempted to control the proceeding. Plaintiff announced that she would "answer only questions which are related to the time I was working for Dr. Sharma and UMDNJ." For example,

Q: Who do you work for now?

A: I'll not answer the question [because it is] not related [to my employment] with UMDNJ. . . .

Q; [To plaintiff's counsel:] are you instructing your client not to answer this question?

A: [From plaintiff's counsel:] It's up to her.

Q: What is your annual salary with your present employer?

A: I'll not answer that question.

A: And I will not answer any other questions which are not related to . . . [UMDNJ]. And that's final.

Q: [Y]ou will not answer my questions about what current benefits you have in your present job?

A: I don't think it's related to the case. [(Emphasis added).]

During the deposition, defense counsel advised plaintiff to answer the questions unless otherwise instructed by her counsel, and repeated his warning that he would move to dismiss her complaint if she refused to cooperate. Then the questions turned to plaintiff's tax records, defendant's notice to produce, and her continued unwillingness to provide discovery.

Q: Did you bring copies of your tax returns today?

A: No.

Q: You were asked [at your second deposition] to bring tax returns for the years 2004 to 2007. Did you produce those tax returns in this case?

A: [N]o. . . . I will not provide [to] you my tax returns.

The questions next switched to plaintiff's curriculum vitae and her refusal to provide ...

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