Law Lessons from McInroy v. Village Supermarket, Inc., __ N.J. Super. __ (Law Div. 2017), Atlantic Cty. (Savio, J.S.C.) Docket No. L-1822-15, August 25, 2016:
Rule 4:19 provides:
In an action in which a claim is asserted by a party for personal injuries . . . the adverse party may require the party whose physical . . . condition is in controversy to submit to a physical . . . examination by a medical . . . expert by serving upon that party a notice stating with specificity when, where, and by whom the examination will be conducted and advising, to the extent practicable, as to the nature of the examination and any proposed tests. The time for the examination stated in the notice shall not be scheduled to take place prior to 45 days following the service of the notice, and a party who receives such notice and who seeks a protective order shall file a motion therefore, returnable within said 45-day period. The court may, on motion pursuant to R. 4:23-5, either compel the discovery or dismiss the pleading of a party who fails to submit to the examination, to timely move for a protective order, or to reschedule the date of and submit to the examination within a reasonable time following the originally scheduled date. A court order shall, however, be required for a reexamination by the adverse party’s expert if the examined party does not consent thereto.
Clearly, Rule 4:19 mandates forty-five days’ advance notice of the scheduled IME.
In New Jersey, “[A] trial court has the inherent discretionary power to impose sanctions for failure to make discovery, subject only to the requirement that they be just and reasonable in the circumstances.” Calabrese v. Trenton State Coll., 162 N.J. Super. 145, 151-52, (App. Div. 1978); Lang v. Morgan’s Home Equip. Corp., 6 N.J. 333, 339 (1951); Hirsch v. Gen. Motors Corp., 266 N.J. Super. 222, 260-261 (Law Div. 1993). The Appellate Division in Aetna Life and Casualty Company v. Imet Mason Contractors, 309 N.J. Super. 358, 365 (App. Div. 1998), stated:
“‘[s]ince dismissal 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.'” [Hirsch, supra. 266 N.J. Super. at 261], (quoting Johnson v. Mountainside Hosp., Respiratory Disease Assocs., 199 N.J. Super. 114, 119 (App. Div. 1985), certif. denied, 122 N.J. 188 (1990)). As . . .[the appellate court]. . . said in Johnson, when a plaintiff has violated a discovery rule or a court order, the paramount issue is whether a lesser sanction than dismissal would suffice to erase the prejudice by the non-delinquent party . . . . If a lesser sanction could erase the prejudice against the non-delinquent party, dismissal of the complaint with prejudice would not be appropriate and would therefore constitute an abuse of discretion.
Rule 4:19 does not specifically provide the court with authorization to compel the payment of missed appointment fees by a party who fails to appear for a scheduled IME, however, such a sanction is routinely enforced as a discovery sanction. Failure to appear for a properly noticed IME is a discovery violation. Under Rule 4:19, defendant is entitled to an order compelling the IME to take place and/or an order dismissing plaintiff’s complaint. Additionally, because the failure to appear for an IME is a discovery violation, it is within the court’s discretion to impose a sanction that will erase the prejudice to the non-delinquent party. The court may do so, so long as the sanction is “just and reasonable.” Hirsch supra, 266 N.J. Super. at 260-261.
The court has general discretion to impose discovery sanctions that are just and reasonable to make the non-delinquent party whole. Ibid.
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