RICHARD LIPSKY, M.D v. ROBERT A. GOLDSTONE M.D.

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3523-09T2

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.

____________________________________

December 9, 2011

Argued March 30, 2011 - Decided

Before Judges Fuentes, Nugent and Newman.

On appeal from Superior Court of New Jersey,

Law Division, Bergen County, Docket No.

L-9362-07.

Thomas Kamvosoulis argued the cause for

appellant/cross-respondent (Brach Eichler, L.L.C.,

attorneys; Charles X. Gormally, of counsel;

Mr. Kamvosoulis and Mr. Gormally, on the briefs).

Jerald J. Howarth argued the cause for

respondents/cross-appellants (Howarth & Associates,

L.L.C., attorneys; Mr. Howarth and Purnima D.

Ramlakhan, on the briefs).

PER CURIAM

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 advantage1 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 context of an Independent Medical Examination by a defense expert.

While purportedly, the issues alleged by the plaintiff are a function of defamation and/or slander per se allegations, the statements made by defendant . . . were made in the course of a defense Independent Medical Examination (IME) of Ms. Szczecina.

Whether the litigation privilege, and absolute immunity, applies, is a function of the two (2) prong test for absolute immunity, and four (4) elements . . . . Were the utterances, to wit: "quack[,"] "unnecessary" treatment, and "in order to make money[,"] (1) made in the course of a judicial proceeding, and (2) have some relation to the judicial proceeding. See Rainier's Dairies v. Raritan Valley Farms, 19 N.J. 552, 558 (1988)[;] Devivo v. Ascher, 228 N.J. Super. 453, 457 (App. Div. 1988).

. . . .

While the plaintiff's contentions have facial allure, they lack substance when examined in the cold light of the litigation privilege and attendant caselaw. The determination of whether the litigation privilege applies is a question of law. See Williams v. Kenney, 379 N.J. Super. 118, 134 (App. Div. 2005)[. T]he Court held [in] Williams, supra, at 134, citing Hawkins v. Harris, 141 N.J. 207, 216 (1995), as follows:

"The privilege applies to 'any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action' . . . ."

The motion judge found defendant met all four of the Hawkins factors and was thus entitled to immunity. As a threshold matter, the IME constituted a "judicial or quasi-judicial proceeding." The second factor applied because defendant "was an agent for a party and the statements ensued in the course of an IME of a party witness . . . ." The third factor applied because defendant made the alleged defamatory statements in the context of giving his expert opinion on issues directly related to achieving the object of the litigation from the perspective of the defending tortfeasor. Finally, the court found that, while defendant's statements were "not politically correct," they were "opinions of the expert as [a] result of his medical findings and evaluations of Ms. Szczecina" and therefore had "some connection or logical relation to the action . . . ."

After prevailing on summary judgment, defendant filed a motion pursuant to N.J.S.A. 2A:15-59.1 and Rule 1:4-8 seeking attorney's fees and costs, asserting that plaintiff's cause of action had been frivolous. The court denied the motion finding that the complaint was not filed in "bad faith solely for the purpose of harassment, delays, or malicious injury in violation of N.J.S.A. 2A:15-59.1(b)(1)." The court noted that "[s]anctions are not warranted where the Plaintiff has a reasonably good faith [belief] in the merits of his position." The court therefore "refuse[d] to exercise its discretion and order sanctions against the factual construct presented."

II

On appeal, plaintiff argues that the particular statements in question cannot be cloaked in absolute immunity under the privilege because they were a "random, ad hominem attack[] upon [a] third-part[y] . . . tangential to the underlying litigation." Plaintiff argues that the statements were irrelevant to the underlying litigation because they related only to his honesty or credibility, and, citing Williams, supra, 379 N.J. Super. at 135, the context in which the statements were made did not provide an adequate "safeguard against abuse."

The trial court must grant summary judgment if "the pleadings, depositions, answers to interrogatories and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). Because the trial court decided these questions by way of summary judgment, we review the ruling de novo. Dugan Constr. Co. v. N.J. Turnpike Auth., 398 N.J. Super. 229, 238 (App. Div.), certif. denied, 196 N.J. 346 (2008).

Our Supreme Court has recognized that the litigation privilege creates a shield against what otherwise may be actionable defamatory statements. "Although defamatory, a statement will not be actionable if it is subject to an absolute or qualified privilege. A statement made in the course of judicial, administrative, or legislative proceedings is absolutely privileged and wholly immune from liability." Erickson v. March & McLennan Co., 117 N.J. 539, 563 (1990) (citation omitted). This absolute privilege applies to "any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action." Hawkins, supra, 141 N.J. at 216 (citation omitted).

The purpose of the litigation privilege is "to encourage open channels of communication and the presentation of evidence in judicial proceedings." Id. at 216-17 (internal quotation marks and citation omitted). As such, "[t]he litigation privilege is not limited to statements made in a courtroom during a trial," but instead "extends to all statements or communications in connection with the judicial proceeding." Id. at 216 (internal quotation marks and citation omitted).

The litigation privilege applies here because the IME was conducted in the normal course of discovery in the underlying litigation, thus satisfying the first prong under Hawkins (made in judicial or quasi-judicial proceedings). Indeed, in Hawkins the litigation privilege was found to apply to statements made during pre-trial investigation by private investigators acting on behalf of an insurance company in a personal injury lawsuit. Id. at 211. An IME is indisputably a part of the pre-trial investigation.

The second Hawkins prong (that the statement was made "by litigants or other participants authorized by law") has also been met here. In conducting the IME at the request of the defense counsel in the underlying personal injury litigation, defendant was acting as counsel's agent, thus cloaking him with the protection of the privilege. See id. at 219 ("The privilege protects an attorney's agents and employees in what they do at the attorney's request.")

The third Hawkins prong (that the statement be made "to achieve the objects of the litigation") has been met because, as the trial court found, defendant's medical evaluation of the claimant was intended to achieve the object of defending the tortfeasor. It cannot be seriously questioned that defendant's alleged statement that the treatment rendered by plaintiff was "unnecessary" meets the third prong standard as it speaks directly to the object of the litigation - that is, the level of injury sustained by Szczecina and her medical costs incurred thereby.

The other two statements - that plaintiff is a "quack" and was only treating Szczecina "in order to make money" relate to plaintiff's qualifications and ability to provide a medically sound assessment of Szczecina's injuries. "An absolute privilege may be extended to statements made in the course of judicial proceedings even if the words are written or spoken maliciously, without any justification or excuse, and from personal ill will or anger against the party defamed." DeVivo v. Ascher, 228 N.J. Super. 453, 457 (App. Div. 1988), certif. denied, 114 N.J. 482 (1989). Defendant meets the fourth and final Hawkins prong (that the statements "have some connection or logical relation to the action") because the statements are logically related to the goal of defending the tortfeasor from damages.

To properly set forth an opinion for use in litigation, a party's medical expert must be free to address the treatment an opposing party has received without fear that any such statements will expose him or her to subsequent defamation litigation. Although defendant's comments can be fairly characterized as facially unprofessional and gratuitously mean spirited, to preclude the application of the litigation privilege here would impede, rather than further, the goals of free expression and dissemination of information that the privilege is designed to advance.

As noted by our State's Supreme Court, the immunity afforded by the litigation privilege "is predicated on the need for unfettered expression critical to advancing the underlying government interest at stake in [the judicial setting]." Erickson, supra, 117 N.J. at 563. In light of this mandate favoring the applicability of the litigation privilege, we affirm the decision of the trial court applying the privilege in the present matter and granting summary judgment in favor of defendant.

III

We next address defendant's cross-appeal seeking to reverse the trial court's denial of his motion seeking sanctions against plaintiff for frivolous litigation under N.J.S.A. 2A:15-59.1 and Rule 1:4-8. Defendant argues that plaintiff "could not have had a 'reasonable good faith belief' in the merits of his position [asserting defamation and slander per se] in light of the established jurisprudence on the litigation privilege." Defendant emphasizes that plaintiff chose to go forward and aggressively litigate these untenable claims despite being put on notice early on in the case of defendant's entitlement to the litigation privilege.

Plaintiff argues that his opposition to the applicability of the litigation privilege in this context was a legally plausible position. The trial court agreed with plaintiff's argument and exercised its discretionary authority to deny defendant's application. We discern no legal basis to interfere with the court's decision.

Defendant urges us to apply a de novo standard of review, arguing that the trial court's ruling was predicated on its interpretation of N.J.S.A. 2A:15-59.1. We reject this argument. The decision to grant attorneys' fees lies within the discretion of the trial judge and is therefore reviewed under an abuse of discretion standard. Packard-Bamberger & Co. v. Collier, 167 N.J. 427, 443-44 (2001). Such an abuse "is demonstrated if the discretionary act was not premised upon consideration of all relevant factors, was based upon consideration of irrelevant or inappropriate factors, or amounts to a clear error in judgment." Masone v. Levine, 382 N.J. Super. 181, 193 (App. Div. 2005).

N.J.S.A. 2A:15-59.1 provides, in relevant part:

a. (1) A party who prevails in a civil action, either as plaintiff or defendant, against any other party may be awarded all reasonable litigation costs and reasonable attorney fees, if the judge finds at any time during the proceedings or upon judgment that a complaint, counterclaim, cross-claim or defense of the nonprevailing person was frivolous.

. . . .

b. In order to find that a complaint, counterclaim, cross-claim or defense of the nonprevailing party was frivolous, the judge shall find on the basis of the pleadings, discovery, or the evidence presented that either:

(1) The complaint, counterclaim, cross-claim or defense was commenced, used or continued in bad faith, solely for the purpose of harassment, delay or malicious injury; or

(2) The nonprevailing party knew, or should have known, that the complaint, counterclaim, cross-claim or defense was without any reasonable basis in law or equity and could not be supported by a good faith argument for an extension, modification or reversal of existing law.

[See also McDaniel v. Man Wai Lee, 419 N.J. Super. 482, 498-99 (App. Div. 2011).]

Similarly, Rule 1:4-8 states:

(a) Effect of Signing, Filing or Advocating a Paper. The signature of an attorney or pro se party constitutes a certificate that the signatory has read the pleading, written motion or other paper. By signing, filing or advocating a pleading, written motion, or other paper, an attorney or pro se party certifies that to the best of his or her knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) the paper is not being presented for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation;

(2) the claims, defenses, and other legal contentions therein are warranted by existing law or by a non-frivolous argument for the extension, modification, or reversal of existing law or the establishment of new law;

(3) the factual allegations have evidentiary support or, as to specifically identified allegations, they are either likely to have evidentiary support or they will be withdrawn or corrected if reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support; and

(4) the denials of factual allegations are warranted on the evidence or, as to specifically identified denials, they are reasonably based on a lack of information or belief or they will be withdrawn or corrected if a reasonable opportunity for further investigation or discovery indicates insufficient evidentiary support.

Here, the trial court found that plaintiff did not act in bad faith in pursuing his theory of slander per se, and further found that plaintiff presented a good faith, non-frivolous argument for the inapplicability of the litigation privilege under the facts presented. Though defendant's argument in favor of the litigation privilege ultimately prevailed, the trial court emphasized that fact, in and of itself, is not indicative that plaintiff's position was so without merit as to warrant the imposition of sanctions.

We recognize that in Gooch v. Choice Entertaining Corp., 355 N.J. Super. 14, 20 (App. Div. 2002), we held that pursuing a defamation claim in the face of absolute immunity warrants the imposition of sanctions under N.J.S.A. 2A:15-59.1. The salient facts in Gooch, however, presented a clear cut application of the litigation privilege. The alleged defamatory statements were made by parties and witnesses in discovery motions and depositions. Id. at 19-20. Here, the privilege was invoked by a physician retained to conduct an IME by a defendant in a personal injury case. These facts presented a heretofore unexplored application of the privilege. Plaintiff was entitled to probe the limits of the privilege, by advancing a plausible argument in favor of a narrower application. We discern no legal basis to conclude this approach was frivolous.

IV

Finally, we reject plaintiff's arguments attacking the trial court's various discovery rulings, including the court's denial of plaintiff's motion seeking the imposition of sanctions for defendant's failure to comply with court-ordered discovery. These arguments lack sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

We affirm the various orders of the trial court under review here in all respects, and reject the arguments raised by the parties on direct and cross-appeal.

1 Plaintiff filed a stipulation of dismissal with prejudice with regard to the claim of tortious interference with prospective economic advantage on June 17, 2009. Thus, that claim is not part of this appeal.