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McInroy v. Village Supermarket, Inc.

Superior Court of New Jersey, Law Division, Atlantic County

February 14, 2017

ANNE McINROY, Plaintiff,
v.
VILLAGE SUPERMARKET, INC. t/a ShopRite of Hammonton, NJ, Defendant.

          Decided: August 25, 2016

          John Bertman for plaintiff (Howell and Bertman, attorneys).

          Peter R. Errico for defendant, Village Super Market, Inc. (improperly impleaded as Village Supermarket, Inc. t/a ShopRite of Hammonton, New Jersey)(Wolff, Helies, Spaeth & Lucas, P.A., attorneys).

          SAVIO, J.S.C.

         Defendant, Village Super Market, Inc. t/a ShopRite of Hammonton, New Jersey, (ShopRite) brings this motion seeking to compel plaintiff to pay a fee to a physician retained by the defense to perform an Independent Medical Examination (IME). The fee is sought as a result of plaintiff's missing several appointments to attend the IME.[1]

         On August 10, 2015, plaintiff, Anne Mclnroy, a business invitee of ShopRite, filed suit alleging that ShopRite negligently allowed water to accumulate in one of the aisles of its supermarket, which created a slippery, dangerous condition to patrons shopping in the aisle. Plaintiff alleges that she slipped and fell as a result of the negligence and that she suffered personal injuries proximately caused by ShopRite's negligence.

         Defendant initially scheduled the IME in the Linwood office of an Orthopedic Surgeon, John A. Cristini, M.D. (Cristini). The examination was to occur on May 31, 2016. Plaintiff missed the first appointment with Cristini. Plaintiff, a resident of Hammonton, did not have a motor vehicle available to her to use to travel to Cristini's Linwood office for the physical examination. Plaintiff certifies that her attorney arranged for a taxicab to take her to Linwood to attend the May 31, 2016, appointment with Cristini. Plaintiff certifies that in May of 2016, she was under the care of Dr. Albert J. Belli, Jr., for treatment for Chronic Obstructive Pulmonary Disease (COPD). The COPD is unrelated to any claim for compensation in the litigation. Plaintiff attests that on the morning of May 31, 2016, she had a severe attack of COPD, and she was physically unable to appear in Cristini's office for the examination. The certification in opposition to the motion does not contain any suggestion that plaintiff communicated or attempted to communicate with Cristini's office staff to notify Cristini she was not able to keep the May 31, 2016, appointment. It appears that Cristini did not charge a cancellation fee for this first missed appointment.

         On June 16, 2016, approximately a month before the second appointment, defense counsel sent a letter to plaintiff's attorney advising him of the second scheduled IME. The appointment was scheduled to occur on July 12, 2016. Plaintiff's counsel does not suggest that the date or time or location of the IME was inconvenient or that the time period between the notice and the appointment was insufficient for the plaintiff to make arrangements to attend the second IME. On July 12, 2016, defense counsel was advised by Cristini's office that plaintiff did not appear for the second appointment. After the second appointment was missed, Cristini issued an invoice to defense counsel in the amount of $375 representing his fee for two missed appointments. On July 16, 2016, defense counsel's office rescheduled the IME for a third time for August 9, 2016. In plaintiff's opposition to the application before the court, plaintiff does not offer any explanation for missing the July 12, 2016, appointment.

          In defense counsel's letter of July 16, 2016, to plaintiff's counsel notifying plaintiff's counsel that the IME was scheduled to occur on August 9, 2016, plaintiff's counsel was advised of the date, time, and location of the IME. In addition, the following appears in the letter to plaintiff's counsel advising plaintiff's counsel of the third scheduled IME:

Please be advised of Dr. Cristini's cancellation policy. All cancellations must be made at least 2 weeks before the examination. If cancelled less than 14 business days prior, there will be a fee charged of $375.00. ALL CANCELLATIONS MUST BE DONE THROUGH OUR OFFICE. If plaintiff fails to cancel the examination or does not appear as scheduled, any fee charged by the doctor will be the responsibility of your client.
[(Bold print in original).]

         With respect to the circumstances surrounding the plaintiff's third missed appointment, plaintiff certifies that her daughter arranged to pick her up the night before the August 9, 2016, appointment to transport plaintiff to her daughter's house to stay overnight. Plaintiff's daughter's residence is in closer proximity to Cristini's Linwood office than plaintiff's home. The night before the appointment with Cristini, plaintiff became very ill because her daughter has pets, which affected her breathing. Plaintiff states that she was ill on date of the examinations and unable to travel. Apparently, plaintiff did not seek medical attention for her illness. Plaintiff's certification does not suggest that before she traveled to her daughter's home she did not know her daughter kept pets in the home nor is there any suggestion that the plaintiff was unaware of the potential for an adverse reaction to being in the same home as the pets. Plaintiff's certification does not indicate she attempted to notify Cristini's office that she was unable to keep the appointment.

         Plaintiff opposes the application to compel plaintiff to pay the IME missed appointment fee of $375 arguing that since the defendant selected Cristini to perform the IME, Cristini's no-show fee should be paid by defendant. Plaintiff's counsel contends that that the "Rules" provide that plaintiff should not be bound by Cristini's policy regarding the missing of a scheduled appointment. Finally, plaintiff certifies that her only source of income is Social Security Disability, and asks that she not be compelled to reimburse the $375 missed appointment fee because requiring plaintiff to pay the fee would create a financial hardship.

         In reply to the opposition, defense counsel suggests that plaintiff and plaintiff's counsel were aware of Cristini's missed appointment policy at the time the IME was scheduled and failed to object to Cristini's no-show policy. Defense counsel argues that whether plaintiff attended her IME was out of the control of defense ...


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