MARY SWANSON v. JERSEY SHORE PREMIUM OUTLETS L.L.C.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0

MARY SWANSON and KEITH SWANSON,

Plaintiffs-Appellants,

v.

JERSEY SHORE PREMIUM OUTLETS,

L.L.C.; SIMON PROPERTIES, L.L.C.;

SIMON PROPERTY GROUP, L.P.;

SIMON PROPERTY GROUP, INC.;

SIMON PROPERTY MANAGEMENT,

L.L.C.; WWRD US, L.L.C.;

WATERFORD CRYSTAL, INC.; MYDATT

SERVICES INC., d/b/a VALOR

SECURITY SERVICES; DECKERS

OUTDOOR CORPORATION;

JANE DOES NOS 1, Badge #1065;

JANE DOES NOS 2, Wore Black Clothes,

and JOHN DOES NOS. 1 AND 2,

Defendants-Respondents.

____________________________________

July 1, 2016

Argued June 7, 2016 Decided

Before Judges Hoffman and Whipple.

On appeal from Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-9412-12.

Michael Confusione argued the cause for appellants (Hegge & Confusione, L.L.C., attorneys; Mr. Confusione, on the brief).

Douglas V. Sanchez argued the cause for respondents Jersey Shore Premium Outlets, L.L.C.; Simon Properties, L.L.C.; Simon Property Group, L.P.; Simon Property Group, Inc.; Simon Property Management, L.L.C. and Mydatt Services Inc., d/b/a Valor Security Services (Cruser, Mitchell & Sanchez, L.L.C., attorneys; Mr. Sanchez, on the brief).

Kellianne Baranowsky (Withers Bergman, L.L.P) of the Connecticut and New York bars, admitted pro hac vice, argued the cause for respondents WWRD US, L.L.C.; Waterford Crystal, Inc.; Jane Does Nos. 1 Badge #1065; and Jane Does Nos. 2, Wore Black Clothes (Winne, Banta, Basralian & Kahn, P.C. and Ms. Baranowsky, attorneys; Lori A. Johnson and Ms. Baranowsky, on the brief).

Respondent Deckers Outdoor Corporation has not filed a brief.

PER CURIAM

Plaintiffs1 appeals from a January 31, 2014 order denying her motion for a protective order, as well as a February 6, 2015 order granting defendants' motion to dismiss plaintiff's complaint with prejudice. We affirm.

Plaintiff was shopping at the Waterford Wedgwood Royal Doulton Company Store at the Jersey Shore Premium Outlets in Tinton Falls on December 24, 2011. While plaintiff was at the store, an employee allegedly attempted to persuade plaintiff to buy certain luxury goods. Plaintiff alleges that, after she refused to do so, the employee called the mall's security office and "published false information" concerning plaintiff. Specifically, plaintiff alleges that the employee told mall security that plaintiff was drunk in public, disorderly, and disruptive. Mall security guards allegedly found plaintiff and followed her from store to store in the outlet mall over the course of the next two hours.

Plaintiff alleges that, after noticing the security guards were following her for an extended period of time, she became fearful for her safety and went to her car. After plaintiff started her car, an off-duty police officer pulled her over. He explained that he received reports that she was drunk in public. The officer conducted sobriety tests, which she passed. Plaintiff subsequently left the mall.

On December 17, 2012, plaintiff filed a nine count complaint against defendants, alleging permanent severe emotional pain and trauma, requiring medical treatment, therapy and medication. The complaint also alleged defamation, negligence, assault, and negligent hiring and supervision (among other claims).

The parties initiated the discovery process shortly thereafter. Plaintiff initially refused to provide defendants with authorizations for the release of her medical records pursuant to the Health Insurance Portability and Accountability Act (HIPAA), 29 U.S.C.A. 1181, and subsequently filed a motion for a protective order that would have required the trial judge to review all of her medical records in camera to determine which ones were relevant for defendants' review. The motion judge denied the application on January 31, 2014, because the motion judge determined "[p]laintiff has placed her mental and emotional health at issue by bringing this claim," and the documents were too important to conceal from defendants. The motion judge also rejected plaintiff's attempts to restrict access to her medical files via segregation and confidentiality agreements, concluding that privacy law and the Rules of Professional Conduct adequately protected plaintiff from the danger that her personal information would be revealed to the public.

Defendants attempted to depose plaintiff six times; none of those attempts were successful. Plaintiff unilaterally cancelled depositions scheduled for June 12, 2014 and August 12, 2014. One deposition was adjourned in observance of plaintiff's counsel's religious holiday. The deposition was rescheduled for two weeks thereafter, but was again adjourned because plaintiff was experiencing a negative reaction to new medication. Plaintiff subsequently submitted a motion to extend discovery on November 7, 2014. That same day, defendants Simon Properties and Mydatt submitted a cross-motion seeking to dismiss plaintiff's complaint for failure to provide discovery. After conducting a telephonic conference with the parties, the motion judge entered an order compelling plaintiff to submit to a deposition by mid-December 2014.

Plaintiff's counsel contacted one of the defendants' counsel on December 10, 2014 and advised that plaintiff had suffered an arm injury and was taking Percocet and other medications for pain. He advised that if plaintiff was not off these medications by the time of her deposition, he would object to the use of her deposition testimony because she was not competent to testify. On December 17, 2014, plaintiff's counsel advised that plaintiff had strep throat and was taking antibiotics, but was prepared to proceed the next day. During the deposition, however, plaintiff testified that she was weak and tired. When asked if she could testify truthfully, plaintiff testified "I think I can." Despite defense counsel's repeated attempts to have plaintiff answer "yes" or "no" to the question, plaintiff hesitated. After defense counsel explained that they needed a definitive answer, plaintiff responded, "I'd say no, then." Counsel contacted the court, which advised counsel to select a date far enough in the future such that plaintiff would be finished with her antibiotic regimen.2 The judge informed counsel that she was allowing them "to give this one more shot." The parties agreed to conduct the deposition on January 8, 2015. Moreover, the trial judge advised the parties

If there is any medical reason why the plaintiff says she cannot attend on the . . . 8th, I want defense counsel to provide me a list of the history of this case on what has occurred because of discovery not going forward because of medical reasons for the plaintiff and appropriate application can be made.

On January 8, 2015, plaintiff appeared for her deposition but explained she could not testify truthfully and accurately because she had suffered a mild concussion after falling and hitting her head, first on December 20, 2014, and again on January 2, 2015. Defense counsel had not been previously informed of these developments. She had also consumed a narcotic pain medication (Percocet) one hour prior to the deposition, as well as a sleep aide (Ambien) the night before. Plaintiff also advised that her injury could take up to five months to heal. When asked whether her injuries and symptoms would affect her ability to testify truthfully and accurately, plaintiff testified, "probably, yes." The deposition was suspended immediately thereafter.

The parties contacted the court and were advised to immediately appear before the motion judge, who considered the parties' positions, concluded that continuing the deposition would be fruitless, and indicated she would entertain motions to dismiss. Several defendants (including Waterford Wedgwood Royal Doulton Company, Simon Properties, and Mydatt) moved to dismiss plaintiff's complaint with prejudice.3 The trial court held a hearing on the motion on February 6, 2015, and dismissed the complaint with prejudice. This appeal followed.

Plaintiff first appeals the trial court's dismissal of her complaint. She asserts that the record does not demonstrate violations of Rules 4:23-2 or -4; that there was no judicial finding that she "failed to appear" as within the scope of the rule; and that the court's use of dismissal with prejudice amounted to an abuse of discretion. We disagree.

"[T]he standard of review for dismissal of a complaint with prejudice for discovery misconduct is whether the trial court abused its discretion[.]" Abtrax Pharms. v. Elkins-Sinn, Inc., 139 N.J. 499, 517 (1995) (citations omitted). A court abuses its discretion "when a decision is 'made without a rational explanation, inexplicably depart[s] from established policies, or rest[s] on an impermissible basis.'" Flagg v. Essex Cty. Prosecutor, 171 N.J. 561, 571 (2002) (quoting Achacoso-Sanchez v. INS, 779 F.2d 1260, 1265 (7th Cir. 1985)).

The dismissal of a complaint with prejudice is "not to be invoked except in those cases in which the order for discovery goes to the very foundation of the cause of action, or where the refusal to comply is deliberate and contumacious." Abtrax Pharms., supra, 139 N.J. at 514 (quoting Lang v. Morgan's Home Equip. Corp., 6 N.J. 333, 339 (1951)). As the dismissal of a complaint with prejudice is "the ultimate sanction, it will normally be ordered only when no lesser sanction will suffice to erase the prejudice suffered by the non-delinquent party, or when the litigant rather than the attorney was at fault." Zaccardi v. Becker, 88 N.J. 245, 253 (1982) (internal citations omitted).

We defer to the trial court's findings of fact "unless we are convinced that they are so manifestly unsupported by or inconsistent with the competent, relevant and reasonably credible evidence as to offend the interests of justice." Rova Farms Resort, Inc. v. Inv'rs Ins. Co. of Am., 65 N.J. 474, 484 (quoting Fagliarone v. Twp. of N. Bergen, 78 N.J. Super. 154, 155 (App. Div.), certif. denied, 40 N.J. 221 (1963)).

Rule 4:23-2(b) permits a trial court to dismiss a complaint with prejudice when the plaintiff "fails to obey an order to provide or permit discovery[.]" In this case, the trial judge made findings with respect to the prejudice suffered by defendants; namely, that "[p]laintiffs' conduct throughout the discovery process in this case has caused unnecessary delays [and] incurred significant costs for defendants. Every attempt to obtain discovery has been faced with opposition, or delay, or has been ignored." The court further found that "[d]efendants have been forced to spend tens of thousands of dollars in an effort to get plaintiffs to fulfill their own discovery obligations." Moreover, she determined "[t]here has been no indication that [plaintiff] will ever be ready for her deposition."

Although the judge did not specifically find that plaintiff's failure to comply was "deliberate and contumacious," this can be inferred from various incidents that occurred during the protracted attempts at discovery, such as consuming a narcotic within an hour of a scheduled deposition and then indicating an inability to testify accurately and truthfully.4 Although dismissal with prejudice "is a drastic remedy," Gonzalez v. Safe & Sound Sec. Corp., 185 N.J. 100, 115 (2005), it is appropriate "in those cases in which the order for discovery goes to the very foundation of the cause of action, or where the refusal to comply is deliberate and contumacious." Abtrax Pharms., supra, 139 N.J. at 514 (quoting Lang, supra, 6 N.J. at 339). Here, the plaintiff's deposition testimony was essential to the allegations and damages asserted and the trial judge's determination was "supported by adequate, substantial, and credible evidence" on the record. Id. at 517.

Defendants in a civil matter have the right to full disclosure of all material facts. "A litigant who willfully violates that bedrock principle should not assume that the right to an adjudication on the merits of its claims will survive so blatant an infraction." Abtrax Pharms., supra, 139 N.J. at 521. In this case, plaintiff had an unfair advantage, because of her familiarity with all the facts (and documents) that had never been disclosed to defendants during the two years this matter had been pending. The trial judge specifically found that virtually all discovery-related improprieties were the fault of plaintiff herself, not plaintiff's counsel. See Zaccardi, supra, 88 N.J. at 253 (explaining that the fault of a litigant, rather than counsel, is an appropriate consideration when deciding whether to dismiss a complaint with prejudice).

We reject plaintiff's argument that an evidentiary hearing should have been held to resolve whether she was "feigning or concocting medical conditions." Here, a sufficient record was developed before the trial court to obviate the need for an evidentiary hearing. Discovery had been court-managed for a significant period of time, and the motion judge held many case management conferences. The motion judge considered multiple certifications outlining defendants' frustrated efforts to complete discovery submitted in support of motions to dismiss, as well as transcripts from the attempted depositions.

We also conclude that the trial judge correctly denied plaintiff's motion for a protective order during discovery. We generally review a trial court's ruling on discovery matters for an abuse of discretion. Payton v. N.J. Tpk. Auth., 148 N.J. 524, 559 (1997). However, "deference is inappropriate if the court's determination in drafting its order is based on a mistaken understanding of the applicable law." Ibid. (citing Alk Assocs., Inc. v. Multimodal Applied Sys., Inc., 276 N.J. Super. 310, 314-15 (App. Div. 1997).

In determining whether to enter a protective order and what, if any, limitations to put on discovery, the trial court must balance between considerations supporting disclosure and those supporting the need for confidentiality of the records sought. In re Liquidation of Integrity Ins. Co., 165 N.J. 75, 92 (2000). Plaintiff argues that she established good cause for a protective order because defendants should not have "unfettered access" to all of her health records, and that in-camera review would have balanced defendants' rights to discovery with plaintiff's privacy interests.

The documents at issue here are personal and confidential, but the nature of the documents does not preclude discovery without a protective order. Plaintiff placed her mental health directly at issue when she alleged "severe emotional pain and trauma requiring extensive medical treatment and therapy" in her complaint. The entire matter rests on whether plaintiff's mental health worsened following the alleged underlying incident, because plaintiff alleges she already had certain mental health problems prior to the alleged underlying incident.

Moreover, defendants' access was not "unfettered", as defense counsel are bound by and guided by the Rules of Professional Conduct and privacy laws. Plaintiff's reliance on Arena v. Saphier, supra, and Smith v. Am. Home Prods. Corp., 372 N.J. Super. 105 (Law Div. 2003), for the proposition that she was entitled to a protective order are inapposite. Neither case addresses a circumstance wherein a plaintiff's mental health is the central issue to be determined.

Affirmed.

1 Plaintiffs, Mary and Keith Swanson took part in this appeal. We nevertheless refer exclusively to Mary Swanson as plaintiff because this appeal primarily concerns events involving her and not Keith Swanson.

2 During this telephone conference with the trial judge, plaintiff objected to the videotaped deposition going forward because she had not received the requisite ten day notice for videotaping under the Court Rules, but withdrew the objection as moot after it was agreed the matter would be rescheduled.

3 On January 29, 2015 plaintiff's trial counsel moved by way of Order to Show Cause without notice to his clients to be relieved as counsel asserting an inability to go forward because his relationship with them was irretrievably broken. That application was carried until February 6, 2015 and ultimately denied.

4 This behavior was compounded by plaintiff's initial reluctance and noncompliance in providing her full medical records; this in a case where plaintiff seeks compensatory damages for an alleged psychiatric injury. See Arena v. Saphier, 201 N.J. Super. 79, 89 (App. Div. 1985) ("In all fairness, a patient should not be permitted to establish a claim while simultaneously foreclosing inquiry into relevant matters."). Moreover, In November 2014, the court ordered plaintiff to serve longstanding discovery responses in advance of her deposition in December.