JULIE CARDOSO v. SHORE ORTHOPEDIC GROUP LANCE MARKBREITER (2013)

Plaintiff Julie Cardoso (Cardoso) appeals from a November 4, 2011 order granting summary judgment in favor of defendants Shore Orthopedic Group (SOG) and Lance Markbreiter, M.D. (Markbreiter).  In her complaint, Cardoso asserted claims of sexual harassment in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5–1 to –42, and the torts of battery and invasion of privacy.¹  After reviewing the record and applicable legal principles in light of the arguments advanced on appeal, we affirm.

On September 30, 2009, Cardoso had her first and only appointment with Markbreiter, a board certified orthopedic surgeon, at the SOG office in Lakewood, New Jersey, concerning pain she was experiencing in her lower back.   In an attachment to her January 11, 2010 complaint, Cardoso stated she felt “belittled, humiliated, depressed, taken advantage of, and degraded as a woman” due to the conduct of Markbreiter, which she described as follows:

Upon walking into the patient room, while I was passing through the hallway, I saw Dr. Lance Markbreiter.   Upon seeing me, he looked me up and down, from my toes to my face.   At that moment I felt uncomfortable and didn't realize he was the doctor I was seeing until he came into the examination room.

․

I entered the room where I would be examined ․ [and waited] for the doctor who was going to examine me with regard to my lower lumbar spine disk herniation.  [Markbreiter] came into the examination room alone with no medical assistant to perform the examination․  He then proceeded to touch me in the lower back area by my underwear line and asked me, why weren't my pant and underwear tags cut off?   He said, “Isn't that the style?”   That remark made me extremely uncomfortable and I felt as though he was not looking at the problem areas as he was paying more attention to my undergarments instead․

[Markbreiter] proceeded to talk about the MRI and drew a diagram of a person on the examination table paper (as if it were me) and drew a detailed image, a body and the spine.   He drew the figure as if she were pregnant, then he laughed and said, “That's not what you look like” and then changed the diagram.   Then he told me “a MRI is like taking a picture of your face, which is beautiful, and then zooming in to see all your imperfections.”   I was flabbergasted by his remark․

Then he suggested that I stop running.   He told me that if I have any pain I should take an anti-inflammatory drug to help with the pain and there is no need for a follow-up visit.   He said, “You are fine, nothing is wrong with you.”

Additionally, as Cardoso was about to exit the examination room, she mentioned she fell a lot on her tailbone while snowboarding as a teenager, and asked, “[C]ould that have anything to do with it?”   According to Cardoso,

[Markbreiter] then proceeded to rudely jam his index finger right on my rectum through my pants and said, “This is where your tailbone is located.”   I jumped because I wasn't expecting him to touch me.   He didn't even tell me he was going to touch me․  Then I hurried and walked out of the office to my car feeling utterly humiliated, disgusted, and angry.

That same day, Cardoso wrote a letter to the Board of Medical Examiners and the manager of SOG. In her letter, Cardoso said that during her examination, Marbreiter “made some comments and gestures that were inappropriate and unprofessional” and made her “feel uncomfortable and violated.”   In addition, Cardoso attended weekly psychotherapy sessions beginning in January 2010.

At his deposition on July 7, 2011, Markbreiter testified that while examining Cardoso, he noticed “a large tag that generally would be removed when you buy a pair of pants” and, as a courtesy mentioned, “[Y]ou know, by the way, you still have your tag on the back of your pants.”   Markbreiter testified he “[a]bsolutely did not see or mention anything regarding underwear.”   He also explained it was not protocol to have another person in the examining room unless the patient was required to fully undress.   With respect to Cardoso's snowboarding injuries, Markbreiter testified that the general public “doesn't understand where the tailbone is.”   According to Markbreiter, he said:

[L]et me take a look and see where it hurts you and see if you have any pain associated with your tailbone ․ I put my hands back on her [sacroiliac] joint and told her this is where your pain was ․ and then I simply told her I'm going to show you where your tailbone is and I moved the palm of my hands down and pressed generally on her tailbone and asked her if that hurt.   She said no.

Following oral argument on November 4, 2011, the trial court granted defendants' motion for summary judgment.   In an oral decision, the court found “a jury could not reasonably infer sexual harassment or that [Markbreiter's] conduct constituted a battery or invasion of privacy.”   Utilizing the totality of the circumstances standard articulated in Lehmann v. Toys ‘R’ Us, 132 N.J. 587, 612 (1993), the court found Markbreiter's conduct did not “constitute a prima facie case of a violation of [LAD] and/or sexual harassment, nor ․ the tort of battery or invasion of privacy,” because the conduct concerned a physician-patient relationship, and a “reasonable man, woman, or patient would have an understanding or even an expectation that the physician will conduct a physical examination and touch parts of the anatomy consistent with the purpose and scope of that visit.”

On appeal, Cardoso argues the trial court erred in dismissing her complaint and granting summary judgment to defendants.   We do not agree.

Summary judgment is appropriate where the pleadings and evidence “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).  As stated by the Court:

[A] determination whether there exists a “genuine issue” of material fact that precludes summary judgment requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.   The “judge's function is not himself [or herself] to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.”

[Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (alteration in original) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2511, 91 L. Ed.2d 202, 212 (1986)).]

When reviewing an order granting summary judgment, we utilize the same standard as the trial court.  Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J.Super. 162, 167 (App.Div.), certif. denied, 154 N.J. 608 (1998).   We first determine “ ‘whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.’ ”  Brill, supra, 142 N.J. at 536 (quoting Liberty Lobby, supra, 477 U.S. at 251–52, 106 S.Ct. at 2512, 91 L. Ed.2d at 214).   If there is no genuine issue of material fact, we must then decide whether the trial court's application of the law was correct.  Walker v. Atl. Chrysler Plymouth, Inc., 216 N.J.Super. 255, 258 (App.Div.1987).

Cardoso argues that a jury should determine whether Markbreiter's conduct constituted sexual harassment in a place of public accommodation;  namely, his medical office, in violation of the LAD. In a non-workplace setting, “the standard for demonstrating a prima facie claim of discrimination based on acts of sexual harassment remains as was expressed originally in Lehmann.”   Godfrey v. Princeton Theological Seminary, 196 N.J. 178, 196 (2008).   A plaintiff must demonstrate “the conduct ‘was ․ severe or pervasive enough to make a ․ reasonable woman believe that ․ [the] environment is hostile or abusive.’ ”  Ibid. (quoting Lehmann, supra, 132 N.J. at 603–04 (emphasis omitted)).  “Whether conduct is ‘severe or pervasive’ requires an assessment of the totality of the relevant circumstances.”  Ibid. (quoting Taylor v. Metzger, 152 N.J. 490, 506 (1998)).   That determination involves an examination of “ ‘the frequency of all the discriminatory conduct,’ ” “ ‘its severity,’ ” and “ ‘whether it is physically threatening or humiliating, or a mere offensive utterance.’ ”  Ibid. (quoting Green v. Jersey City Bd. of Educ., 177 N.J. 434, 447 (2003)).

In this case, the trial court found a jury “could not reasonably infer [Cardoso] was subject to sexual harassment from [her] assertion that the physician looked at her in a certain way, and/or made comments about her underwear tag, and/or comments about an MRI, and/or a drawing of an anatomical figure.   It would be pure speculation.”   We agree that the conduct alleged by Cardoso is insufficient to meet the “severe and pervasive” test of Lehmann.

With regard to Cardoso's battery and invasion of privacy claims, the trial court concluded that in the context of a doctor's appointment, a reasonable patient would expect the doctor to conduct a physical examination consistent with the patient's complaints.   Therefore, the court found that Markbreiter did “not need to secure consent.   The consent is implied.  [Cardoso] was fully clothed and had not left the examining room when she asked [Markbreiter] if her back pain had anything to do with her falling on her tailbone snowboarding as a teenager.”

We agree.   A reasonable jury could not find Markbreiter's conduct constituted a battery.   See Murphy v. Implicito, 392 N.J.Super. 245, 259 (App.Div.2007) (“A claim against a doctor based on principles of battery is often restricted to cases in which a physician has not obtained any consent or has exceeded the scope of consent.”)   Similarly, a reasonable jury could not find Markbreiter's conduct constituted an invasion of privacy.   See Leang v. Jersey City Bd. of Educ., 198 N.J. 557, 588 (2009) (imposing liability on one who “intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns ․ if the intrusion would be highly offensive to a reasonable person”).

Affirmed.

FOOTNOTES

FN1. Cardoso initially asserted a claim of intentional and/or negligent infliction of emotional distress, but it was voluntarily dismissed..  FN1. Cardoso initially asserted a claim of intentional and/or negligent infliction of emotional distress, but it was voluntarily dismissed.

PER CURIAM