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1. Keeler v. DeSanto, A-3189-04T2 DDS No. 23-2-2484 Judges Weissbard and Sabatino Jan. 3, 2006 Result: Summary judgment in favor of defendants is reversed. Facts/Background: This case arose out of an intersectional automobile accident on June 20, 2001, when plaintiff’s vehicle was struck by defendants’ vehicle, which had run a stop sign. The 65-year-old plaintiff went to a local hospital after the accident. Medical Testing and Treatment: Emergency Room: Plaintiff presented with complaints of injuries to her lower back, neck, shoulders and arms, was referred to her family doctor, and also saw a chiropractor. Chiropractor: Saw plaintiff for two years and diagnosed several conditions attributable to the subject accident, including acute and chronic radiculopathy at C7, right-sided carpal tunnel syndrome, and disc bulging at C4-5, L3-4 and L5-S1. Also noted that the collision aggravated plaintiff’s spinal stenosis at L3-L4. Radiology: MRI and EMG studies objectively confirmed the chiropractor’s diagnosis. Prior Injuries: 1969 spinal fusion and other unspecified accidents. Plaintiff ceased working in 1988. In July 1996, she injured her back, neck and right hand in another accident, and filed a lawsuit, recovering a modest settlement. Serious Impact on Plaintiff’s Life: not specified Polk analysis: main issue. Miscellaneous Issue(s): None Trial Court Determination(s): The trial judge faulted plaintiff for failing to locate her medical records from her prior accidents, so that she could present them to her current treating doctors for review, enabling them to compare her prior injuries with the injuries she sustained in the subject accident. Because no comparative analysis was included in the body of plaintiff’s expert’s report, the trial judge ruled that plaintiff had failed to comply with Polk v. Daconceicao and granted summary judgment to the defendants. Appellate Court Determination(s): Reversed. Noting that Polk was a pre-AICRA verbal threshold case that had been widely extended to cases litigated under AICRA’s lawsuit limitations option, the appellate panel here, as a matter of law, adopted the recent holding in Davidson v. Slater declaring that the Polk comparative analysis requirement was no longer applicable under AICRA. The panel did note that at least one other appellate panel in the case of Lucky v. Holland had reached the opposite conclusion, but, although the issue was not free from doubt, felt that Davidson was more faithful to the precepts for AICRA’s statutory construction expressed by the Supreme Court in DiProspero and Serrano. Since plaintiff’s failure to satisfy Polk was the sole basis for the dismissal of her claims, the judgment for defendants was reversed and the matter remanded for trial. Parenthetically, the appellate court did observe that some of plaintiff’s injuries, particularly her bulging cervical discs, appeared to be conditions that were not manifest from her prior accidents. Hence, even if Polk were to be applied to her case, the record suggested that no comparative analysis would be necessary for these new injuries. The court also expressed its doubt that a plaintiff must always furnish his or her doctor with all prior treatment records, as stressed by the trial judge. A doctor might be able to glean sufficient information about prior injuries from the patient’s oral history, or from a partial set of records that the patient might be able to locate, to assess the relevance, if any, of prior injuries on the patient’s present diagnosis and prognosis. The weight of the expert’s comparative opinions, of course, could be subject to impeachment at trial where the prior treatment records were incomplete, or not reviewed at all. 2. Della Pietro v. Kantra, A-2711-04T1 DDS No. 23-2-2506 Judges Axelrad and Miniman Jan. 5, 2006 Result: Summary judgment in favor of defendants is reversed. Facts/Background: This case arose out of a motor vehicle accident on June 22, 2002, which occurred when plaintiff’s motorcycle, while traveling in the far right lane used for right turns, was clipped by defendant’s vehicle as defendant attempted to make a right turn into a parking lot. Medical Testing and Treatment: Treating physician: While plaintiff suffered various injuries in the accident, the most significant was a boutonniere deformity of the left fourth finger with a 25 degree extension lag at the proximal interphalangeal (PIP) joint. Four months after the accident, the finger was still swollen, and the deformity present to the same degree. Plaintiff could not fully flex his finger into the palm of his hand. Based on the doctor’s clinical evaluation and treatment of plaintiff, X-rays, and objective findings, he certified that plaintiff had sustained a significant disfigurement of the left hand as a result of the subject accident. He also opined that the deformity was permanent, had not healed, and would not heal to function normally with further medical treatment. Radiology: X-rays were taken at the hospital and at plaintiff’s treating physician’s office. Prior Injuries: None. Serious Impact on Plaintiff’s Life: The finger deformity was readily noticeable. Plaintiff could not straighten his finger and suffered from persistent swelling, pain, stiffness, weakness and difficulty in making a fist. Polk analysis: no issue. Miscellaneous Issue(s): None Trial Court Determination(s): The trial judge granted summary judgment to the defendants, finding that plaintiff had failed to pierce the tort threshold under AICRA. Appellate Court Determination(s): Reversed. Citing DiProspero and Serrano, the appellate court concluded that plaintiff had presented objective clinical evidence of significant disfigurement and permanent injury sufficient to vault the tort threshold and proceed to trial. There was no requirement that he also prove that the injury had a serious impact on his life, or that the injury was serious, as the injuries set forth in AICRA were serious by definition. 3. Foglia v. Powell, Jr., A-4099-04T5 DDS No. 23-2-2507 Judges Stern and Sapp-Peterson Jan. 5, 2006 Result: Summary judgment in favor of defendants is reversed. Facts/Background: not specified. Medical Testing and Treatment: Treating orthopedist: Executed a physician’s certification of permanency, concluding that the accident had aggravated plaintiff’s underlying right shoulder inflammation and resulted in a complete tear of the rotator cuff, including the supraspinatus tendon. He also concluded that plaintiff suffered multilevel disc herniations, and that there was (unspecified) objective medical evidence of a permanent injury caused by the accident. Prior Injuries: No accidents, although plaintiff had suffered from polio. Serious Impact on Plaintiff’s Life: The plaintiff asserted that the increased effect of her injuries upon her subjectively, because of her pre-existing polio syndrome, satisfied the subjective prong of Oswin. Polk analysis: no issue. Miscellaneous Issue(s): None Trial Court Determination(s): The defendants moved for summary judgment, asserting that plaintiff’s physician’s certification was deficient; that plaintiff had not surmounted the serious impact prong of the verbal threshold test; and that plaintiff’s objective injuries were not caused by the accident, but by her pre-existing polio. The trial judge found that plaintiff had produced objective evidence of injury resulting from the accident in the rotator cuff tear. He concluded that the more difficult issue related to the impact of that injury upon her life, and found that her comparison of her lifestyles before and after the accident was rather vague. While he did not diminish her injuries, he found them insufficient to meet the serious impact prong of the verbal threshold test, and granted summary judgment to the defendants. Appellate Court Determination(s): The appellate court reversed, citing DiProspero and Serrano, which eliminated the serious impact prong of the verbal threshold test. The court also noted that this case was entitled to pipeline retroactivity, since the appeal had been lodged with the court. 4. Santana v. Nesto, A-4737-04T1 DDS No. 23-2-2508 Judges Rodriguez and Fisher Jan. 5, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on August 3, 2002, which occurred when plaintiff’s vehicle was struck by defendant’s vehicle. The plaintiff claimed injury to her neck, TMJ problems, right carpal tunnel syndrome, contusions of both knees, and a sprained right ankle. Medical Testing and Treatment: Treating physician: Plaintiff’s treating physician provided a certification which asserted that plaintiff sustained, as a result of the accident, post-traumatic cephalgia, cervical sprain and strain, disc bulge at C5-6, bilateral temporomandibular joint syndrome, right carpal tunnel syndrome, contusion of both knees and sprain of the right ankle. He also asserted that within a reasonable degree of medical probability, the injuries were permanent in that they had not healed to function normally and would not heal to function normally with further medical treatment. Radiology: MRI provided objective evidence of the cervical disc bulge. Prior Injuries: None Serious Impact on Plaintiff’s Life: Plaintiff is unable to: eat certain foods and dance in heels. Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Although the basis for the judge’s order was set forth only in a footnote, it appeared that he applied the James v. Torres interpretation of what was required under AICRA, including proof of both a qualifying injury and a serious lifestyle impact. He concluded that plaintiff had satisfied neither prong of the test, and granted summary judgment to the defendant. Appellate Court Determination(s): Reversed. In light of the Supreme Court’s decisions in DiProspero and Serrano, the trial judge’s conclusion that plaintiff’s life was not seriously affected could not support the order of summary judgment. With respect to plaintiff’s evidence of a qualifying injury, the appellate court disagreed with the trial judge and concluded that the treating physician’s certification sufficed as sufficient proof to defeat summary judgment. 5. Rotella v. Bitici, A-3307-04T5 DDS No. 23-2-2536 Judges Conley and Winkelstein Jan. 9, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on May 2, 2003, when plaintiff’s vehicle was struck by defendant’s car. Plaintiff claimed significant injuries to his neck and back. Medical Testing and Treatment: Medical record: Showed lumbar disc herniations at L4-5 and right L5 lumbar radiculopathy. Radiology: MRI examination performed two months post-accident confirmed the disc herniations. Prior Injuries: None Serious Impact on Plaintiff’s Life: details unspecified in opinion; however, plaintiff’s failure to show a serious impact was the basis for the judge’s grant of summary judgment to the defendant. Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): The judge concluded that plaintiff’s medical evidence was sufficient to create factual dispute as to whether he had sustained a qualifying injury as a result of the accident. He dismissed plaintiff’s complaint on the grounds that his injuries did not have a serious impact on his life. Appellate Court Determination(s): Reversed. Given the mandates of the Supreme Court in DiProspero and Serrano, the plaintiff’s complaint had to be reinstated because the judge had dismissed it solely because plaintiff had failed to show a serious impact on his life. Whether he proved by objective, credible medical evidence that he suffered a permanent injury was a question for the jury. 6. McElwee v. DelliSanti, A-3825-04T1 DDS No. 23-2-2537 Judges Fisher and Yannotti Jan. 9, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on Aug. 17, 2001. Medical Testing and Treatment: not detailed. Prior Injuries: Plaintiff was previously injured in two other accidents. One occurred in November of 1999, a year and eight months before the subject accident, and the other happened on January of 2001, six months before the subject accident. Serious Impact on Plaintiff’s Life: After the first of plaintiff’s accidents, he stated that the pain was so bad that he could no longer bowl, play cards or cook. After his second accident, he could no longer perform everyday activities such as household chores. He did not specify which activities were further limited after the third accident, merely indicating that he could no longer enjoy the activities that he once did. His doctor did state, however, that the third accident resulted in a 2.5% increase in the aggravation of plaintiff’s injuries. Physician’s certification: No issue Polk analysis: The trial judge was satisfied that plaintiff had met his burden under Polk. The panel noted plaintiff’s prior accidents, but also noted that the continuing viability of the Polk comparative analysis requirement under AICRA had been questioned, with mixed results. The panel concluded that remand for further proceedings was the best option. Miscellaneous Issue(s): None Trial Court Determination(s): The trial judge only briefly, and in a conclusory manner, determined that plaintiff had sufficiently distinguished his current injuries from the pre-existing ones through his medical evidence. The remainder of her opinion granting summary judgment to the defendant examined whether plaintiff had proved a serious impact on his life. The judge noted that after plaintiff’s first two accidents, his activities were substantially restricted. She also stressed that there was evidence of only a slight aggravation as a result of the third accident. This, she felt, was insufficient to meet the requirements of the verbal threshold. Accordingly, he granted summary judgment to the defendant. Appellate Court Determination(s): Reversed. In light of the abrogation of the former two-pronged verbal threshold model by DiProspero and Serrano, the summary judgment could not stand since it was based primarily on plaintiff’s inability to prove a serious impact on his life. With regard to plaintiff’s medical evidence, the panel noted the division among appellate panels concerning the continued viability of the Polk comparative analysis requirement under AICRA, and remanded the suit for further proceedings, without prejudice to the defendants’ right to again seek summary judgment in light of current applicable standards. The panel felt that the interests of justice would be better served if the question could be considered anew in the trial court, if the parties so chose, in light of the recent developments in the manner in which AICRA had been interpreted. 7. Fermin v. Ascencio, A-0542-04T5 DDS No. 23-2-2548 Judges Wecker and Fuentes Jan. 10, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on June 20, 2002, which occurred while the 52-year-old plaintiff was driving in bumper-to-bumper traffic on Interstate Route 80, and defendant struck her vehicle from behind. Plaintiff got out of her car to inspect her vehicle, but did not exchange information with the defendant. Medical Testing and Treatment: Chiropractor: Plaintiff presented five days after the accident, with complaints of lower back pain radiating down both legs, and numbness and tingling in her hands and fingers. Treated from June 25, 2002 through Dec. 17, 2002. Final diagnosis was lumbar disc herniation, lumbar subluxation complex, sciatic radiculitis and cervical sprain and strain. Orthopedic surgeon: Eight months post-accident, plaintiff consulted with this doctor, who diagnosed her as suffering from severe cervicothoracic and lumbosacral sprain and strain with a reactive anxiety syndrome. Radiology: MRI performed on Sept. 5, 2002 noted small disc herniations at L4-L5 and L5-S1, and mild dessication of the disc material. Prior Injuries: Chiropractor noted a past accident in plaintiff’s history, but plaintiff reported that she was asymptomatic prior to and at the time of the subject accident. Serious Impact on Plaintiff’s Life: not detailed, but the judge found that plaintiff had failed to establish that any injuries she sustained in the accident had a serious impact on her life. Physician’s certification: No issue Polk analysis: No issue, although plaintiff had a prior accident, because she was asymptomatic until the subject accident. Miscellaneous Issue(s): None Trial Court Determination(s): The judge held that plaintiff failed to establish, through objective medical evidence, that she sustained a permanent, serious injury, causally related to the automobile accident, and that such injury had a substantial impact on her life. Summary judgment was granted to defendant. Appellate Court Determination(s): Reversed. The panel agreed with the trial judge that there was no objective medical evidence that plaintiff’s injuries were serious and permanent. The chiropractor’s report was replete with generalized statements of what might happen to people who had experienced injuries such as those sustained by plaintiff. However, the report was notably devoid of clear language indicating that plaintiff’s specific injuries were irreversible, serious and proximately caused by the subject accident. The panel therefore remanded the matter to the trial court for a determination of whether a rational jury could find that the injuries proximately caused by this accident fell within the category of a “permanent injury,” as that term is used and applied by the Supreme Court in DiProspero and Serrano. 8. Ramirez v. Kibildis, A-1579-04T3 DDS No. 23-2-2623 Judges Kestin, Hoens and Coleman Jan. 18, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on April 1, 2002, when plaintiff’s vehicle was rear-ended by defendant’s vehicle as she approached an intersection. The 81-year-old plaintiff was transported to the emergency room. Medical Testing and Treatment: Emergency Room: Plaintiff presented with complaints of numbness in the back of her head and a feeling of pressure behind her eyes. A cervical X-ray revealed that she had narrowed disc spaces due to degeneration and evidence of muscle spasm. Chiropractor: Described plaintiff’s health prior to the subject accident as good, and commented that she had not suffered from any symptoms for which he had previously treated her. The chiropractor reported generally on the process by which normal degeneration is traumatically accelerated and opined that plaintiff’s cervical and lumbar injuries were permanent. Radiology: MRI study revealed that plaintiff had evidence of severe discogenic disease, and that she had both bulging discs and three disc herniations in her lumbar spine. Defense examination: Opined that all of plaintiff’s injuries were degenerative rather than traumatic in nature. Prior Injuries: None Serious Impact on Plaintiff’s Life: At the time of the accident, plaintiff worked as a greeter at Wal-Mart. She also engaged in a variety of household and other activities, all of which she was either forced to curtail or give up after she was injured. Current complaints: Pain in the side of her knees, neck pain, and problems with walking. Physician’s certification: No issue Polk analysis: Defense counsel attempted to raise this issue at oral argument on plaintiff’s appeal of the trial court’s grant of summary judgment to the defendant. Counsel argued that plaintiff had failed to provide a comparative analysis of her pre-existing degenerative disease with the injuries she sustained in the accident. Although the appellate panel noted the division in the courts as to the continued viability of the Polk comparative analysis requirement under AICRA, it concluded that it need not enter into that controversy because plaintiff was not making a claim of aggravation in this case. Moreover, although the trial judge mentioned the Polk analysis in general in his opinion, he did not decide the motion on that basis, as a result of which the panel did not have to consider it on appeal. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant. The judge applied the two-pronged verbal threshold test in effect at the time and found that plaintiff’s injuries were not as egregious as required by the statute, and hardly bespoke the type of “extraordinary conditions which would be reflective of [the] objective types of injuries envisioned by the statute.” Instead, he found that her complaints were typical of a person of the age in question, especially in light of the diagnosis expressed by the defense expert. Appellate Court Determination(s): Reversed. Because the trial judge’s reasoning rested squarely on the second of Oswin‘s two prongs, as it relied solely on the issue of whether plaintiff’s injuries were sufficiently serious to support recovery, reversal was mandated since this interpretation of the statute had since been abrogated by the Supreme Court in DiProspero and Serrano. 9. Brimmer v. Melendez, A-6282-03T5 DDS No. 23-2-2633 Judges Kestin, Hoens and Coleman Jan. 19, 2006 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose as a result of an automobile accident on October 24, 1999, which occurred when defendant failed to stop at a red light and struck the driver’s side of plaintiff’s vehicle, which then spun around and hit a nearby garage. According to plaintiff, she was wearing a seat belt at the time, but was still thrown about violently by the force of the collision and struck her head on the windshield. Medical Testing and Treatment: Emergency room: Plaintiff was treated and released. She claimed injuries to her neck and back, and a brain injury with resulting cognitive impairment. Pain Management Specialist: Plaintiff pursued a course of treatment related to her neck and back complaints that included extensive use of pain medications and injections administered by this doctor, who was also an anesthesiologist. When this conservative course of treatment failed to resolve her complaints, she was referred to a surgeon. Surgeon: performed a lumbar spinal surgery on plaintiff in November of 2003. Head condition: Plaintiff also was evaluated by a psychologist, who treated for her symptoms relating to her head injury. This physician diagnosed plaintiff as suffering from post-concussive syndrome with persistent cognitive symptomatology and her condition was described as falling within the mild to profound range for post-traumatic cognitive deficits. He attributed this diagnosis to the closed head injury plaintiff suffered in the accident. Prior Conditions: At the time of the subject accident, plaintiff was being treated for a variety of conditions that complicated the evaluation and treatment of her injuries. In 1990, she had undergone surgery on her cervical spine and had developed significant complaints of pain, including pain in her lower extremities. Prior to the accident in 1999, plaintiff had been diagnosed with reflex sympathetic dystrophy and fibromyalgia. An MRI taken in October of 1997 revealed disc degeneration at L4-L5 and a bulging disc at L5-S1. The same pain management specialist had been treating her for her complaints relating to many of these conditions prior to the subject accident. In addition, plaintiff had been receiving Social Security Disability payments and had been treated for a bipolar condition prior to the subject accident. After defendant moved for summary judgment ascribing all of plaintiff’s problems to aggravations of these prior conditions, and asserting that she had not provided the required comparative analysis of her pre- and post-accident residuals, the pain management specialist issued a report describing the significant difference in plaintiff’s ability to function before and after the accident. He described the severity of the deterioration in her level of functioning resulting from the accident, and concluded that the accident had caused her to deteriorate to the point where she was required to undergo spinal surgery. In addition, plaintiff produced a report from her surgeon describing the reasons for the spinal fusion surgery he had performed. Finally, plaintiff produced a report from her psychologist relating to his neuropsychological evaluation and describing the traumatic brain injury which plaintiff had sustained. Serious Impact on Plaintiff’s Life: not discussed. Physician’s certification: No issue Polk analysis: Main issue in the trial court, which dismissed plaintiff’s case for failure to produce a comparative analysis. Found inapplicable by the appellate panel, but, even if it was applicable, found to be satisfied. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment granted to defendant, the motion judge concluding that plaintiff’s proffered medical reports were not sufficient to meet the Polk standard. The judge found that the comparison provided by the pain management specialist included opinions about plaintiff’s level of functioning that she believed were inconsistent with certain notations in the doctor’s office chart. She therefore concluded that his opinion was an insufficient comparison for Polk purposes. The judge also rejected the report of the psychologist concerning plaintiff’s diminished cognitive functioning and attributing same to the closed head injury she sustained in the accident. The judge noted that plaintiff had not completed high school, and, in her view, this equated with a pre-existing intellectual impairment that the expert had not considered. Plaintiff moved unsuccessfully for reconsideration. Despite the production of additional, even more extensive comparative reports from her physicians as part of her continuing effort to comply with Polk, the judge was unimpressed. Appellate Court Determination(s): Reversed. Although plaintiff urged the appellate panel to hold that Polk no longer remained viable under AICRA, or alternatively that the trial judge had misinterpreted her proofs under Polk, the panel found it unnecessary to enter that growing controversy. Rather, its view of the record compelled it to conclude that this case did not involve the aggravation of a prior condition or injury, rendering Polk inapplicable. With respect to plaintiff’s closed head injury, the panel noted her long-standing diagnosis of bipolar disorder for which she had been treated before the subject accident. There was, however, nothing in the record that suggested that her post-accident diagnosis of a severe cognitive impairment by her neuropsychiatric expert was in any sense an aggravation of her bipolar disorder. There was also absolutely nothing to support the judge’s conclusion that plaintiff had a pre-existing cognitive impairment merely because she had not finished high school. Therefore, regardless of whether Polk remained viable or not, the panel concluded that there was nothing in the record to support the finding that plaintiff’s brain injury, sustained when her head hit the windshield in the accident, was merely an aggravation or exacerbation of a prior condition. Rather, the record reflected that it was an entirely different condition. As a result, the trial judge erred in her analysis as it related to the head injury. Although the decision with respect to the head injury would support reversal as to all issues, the panel continued to note that the judge’s analysis as to plaintiff’s orthopedic and neurological injuries was also flawed. To the extent that these injuries required a Polk analysis at all, the panel felt that the expert opinion supplied by the pain management specialist was sufficient in that regard. Since he had served as plaintiff’s treating physician throughout her lengthy course of treatment both prior and subsequent to the accident, he was well able to offer an opinion concerning the comparison of her condition before and after the events in question. While a jury might or might not agree with his assertions or his opinions, the comparative opinion he provided in his reports adequately met the Polk requirement. The judge’s decision to rely on her contrary view of notations in the doctor’s medical records, rather than to consider the opinions he expressed in his reports, was inappropriate under the circumstances. 10. Rodriguez v. Coach, USA, A-2610-04T5 DDS No. 31-2-2635 Judges Kestin, Hoens and Coleman Jan. 19, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: The plaintiff was injured on May 24, 2001, when, as she was trying to exit defendant’s bus, the door closed on her face. When the driver realized this, he stopped the bus and opened the door, at which time plaintiff fell backward into the bus, sustaining further injuries to her back and shoulder. Medical Testing and Treatment: Emergency Room: Treated and released. Internist: Dr. Schimler treated plaintiff for cervical and lumbar complaints and referred her for neurological and dental consultations. Neurologist: Dr. Komotar diagnosed plaintiff as suffering from head trauma, a cerebral concussion, bilateral TMJ syndrome and cervical and lumbar sprains; he also expressed concern that plaintiff might have sustained a disc herniation. Dental Specialist: Dr. Suarez, a specialist in oral-maxillo facial disorders, diagnosed plaintiff as suffering from a traumatically-induced TMJ condition with disc displacement. Dentist: Dr. Dubrowsky diagnosed plaintiff with myofascial pain syndrome, consistent with having been caused by the accident. Surgeon: Dr. Kulkarni, a board certified general surgeon, diagnosed plaintiff as suffering from traumatically induced bilateral TMJ contusions with residual synovitis; traumatically induced strain and sprain of the cervical spine, with bulging and herniated discs; and traumatically induced sprain and strain of the lumbar spine with degenerative changes and mild diffuse disc bulging. He opined that all of these injuries were caused by the accident on the bus, and were permanent in nature. Psychiatrist: Dr. Wong, a board certified psychiatrist and neurologist, concluded that plaintiff was suffering from right-sided cervical radiculopathy secondary to bulging and herniated cervical discs, together with post-traumatic lumbar syndrome due to bulging lumbar discs; a post-concussive disorder secondary to a closed head injury with permanent neurological impairment and a generalized anxiety disorder. Dr. Wong opined that these injuries were caused by the bus accident. Orthopedic surgeon: Dr. Esformes concluded that plaintiff suffered from a cerebral concussion, head trauma, bilateral TMJ syndrome, and cervical and lumbar sprain with a mild left shoulder injury. He noted evidence of a small, central subligamentous disc herniation at C5-6, and disc bulging in the lumbar spine. He found a causal relationship between all of these findings and the accident on the bus. Radiology: MRI examination of cervical and lumbar spines revealed mild degenerative changes, together with a number of bulging and herniated discs. Prior Injuries: Shortly before the close of discovery, defendant secured a copy of medical records maintained by plaintiff’s primary health care provider, which records had not previously been available to plaintiff. The records reflected a prior motor vehicle accident in 1997 in which plaintiff had sustained a neck injury, and also reflected a 1999 consultation regarding jaw pain. Defendant moved for summary judgment, arguing that none of plaintiff’s injuries were permanent, and that she had failed to produce a comparative analysis of her injuries before and after the accident as required by Polk v. Daconceicao. Serious Impact on Plaintiff’s Life: not detailed, but plaintiff’s failure to prove a serious impact constituted the basis for the trial judge’s dismissal of her suit. Physician’s certification: No issue Polk analysis: Raised by defendant in its motion for summary judgment, and discussed by the trial judge, but not a basis for his grant of summary judgment to the defense. Appellate panel found a comparative analysis unnecessary on the facts of this case. Miscellaneous Issue(s): None Trial Court Determination(s): The trial judge applied the two-part Oswin test and concluded that, although plaintiff did establish, through objective medical evidence, that the accident caused permanent injuries in satisfaction of the first prong, she failed to establish that the injuries that caused a serious impact on her life. He explicitly based his decision to grant summary judgment to the defendant on this lack of serious impact. The judge also, however, discussed the plaintiff’s failure to produce a comparative analysis of her pre- and post-accident injuries, since the issue had been raised by defendant. He noted that plaintiff had injured the same part of her body � her neck � in the prior accident in 1997, and therefore there should have been some testimony “as to which part of [her] injuries [was] attributable to which accident.” He made it clear, though, that he was not making any rulings on the Polk issue. Appellate Court Determination(s): Reversed. Because the judge grounded his decision on plaintiff’s inability to show a serious impact on her life, which requirement was abrogated in DiProspero and Serrano, the appellate panel reversed the grant of summary judgment to the defense. Although the panel did not see the need to “enter the fray” regarding the continued viability of Polk after AICRA, it nevertheless commented on the Polk issue in this case. First, it concluded that the trial judge’s comments did not represent a decision that a comparative analysis was required. At most, he merely noted the fact that the more recently-discovered medical records included an indication that plaintiff had a cervical complaint in 1997 that might have required a Polk analysis. Second, to the extent that plaintiff’s claims relating to the bus accident did not include a claim relating to her neck, a Polk analysis would have been irrelevant in any event. Similarly, the fact that one of plaintiff’s earlier records indicated a concern about a jaw problem was irrelevant, because the diagnostic test performed at that time found no evidence of fracture or dislocation of the mandible, and no other abnormalities. Regardless of the continuing viability of Polk, the appellate panel saw no reason to require any plaintiff to provide a comparative analysis when the prior incident or complaint did not result in a diagnosis of injury. Based on its review of the record, the appellate panel saw no ground on which to conclude that a Polk comparative analysis, if still required under AICRA, should have been necessary in this case. 11. Liptak v. Klopchin, A-0412-04T3 DDS No. 23-2-2673 Judges Wecker and Graves Jan. 24, 2006 Result: Summary judgment in favor of defendant is affirmed. Facts/Background: This case arose out of an automobile accident on Dec. 24, 2000. Medical Testing and Treatment: Emergency Room: Presented with complaints of pain in the neck, right shoulder, and right arm. Cervical X-rays were taken and plaintiff was discharged with a diagnosis of cervical strain. Physical therapist: About three weeks post-accident, plaintiff began treatment with Dr. Platz, still reporting pain in her neck, shoulder and arm, all on the right side. In a progress report dated about six weeks later, the doctor recorded that plaintiff reported some improvement in the neck, but that discomfort persisted with activity. Plaintiff had at least one cortisone injection. Medical doctor: After about eight weeks of physical therapy, plaintiff sought an evaluation by Dr. Basch, who reported that plaintiff was still complaining of severe neck pain, radiating to the right arm and shoulder blade. Her neck was quite stiff, and she held her head still. Tenderness was noted along the medial border of the right scapula, and there was a radiation of pain in the right arm. However, there was full range of motion in both shoulders, without evidence of impingement. Plaintiff stated that she had difficulty with activities and turning her head. Notably, plaintiff denied any prior injuries to her neck, although she had injured her neck in prior accident (see section below). The doctor diagnosed plaintiff as suffering from “cervical strain, chronic with radiculopathy right arm.” In a follow-up report dated around five weeks later, the doctor noted plaintiff’s continued complaints of severe neck pain, radiating into the arm. He reviewed the MRI findings of cervical stenosis and concluded that they were consistent with plaintiff’s symptoms and that her symptoms were causally related to the motor vehicle accident in December, 2000. However, as noted, he was unaware of the neck injuries plaintiff had sustained in her prior accident. Treating physician: Plaintiff began treatment with Dr. Koppel on Nov. 4, 2002. In an undated report, he noted that plaintiff had been complaining of right-sided neck pain radiating to her right upper arm since the subject accident. His report indicated that plaintiff had had “good relief from the therapies received but a degree of symptoms still exist[ed].” Based on his belief that plaintiff had been asymptomatic prior to the subject accident, Dr. Koppel concluded that her injuries had resulted from the subject accident. Radiology: Cervical X-rays taken at the hospital, but findings not set forth. Cervical MRI taken around six months post-accident showed mild to moderate cervical stenosis at C5-6 and C6-7 with some nerve root impingement. Prior Injuries: Plaintiff had also sustained injuries in a prior accident on May 30, 1997, when she was fifty years old. Her chief complaint was neck and back pain and stiffness. She was treated at St. Anthony’s hospital, where the records indicated that she experienced back pain, pain in her left shoulder, and mid-back pain radiating into her neck; she was unable to turn her head. The diagnosis was cervical sprain and strain. X-rays taken on the date of the 1997 accident revealed intact cervical vertebrae, with some narrowing of intervertebral spaces at C5-6 and C6-7, with some osteophytic changes, most prominent posteriorly. Additional osteophytic changes were noted at C3-4 and C4-5, and osteoarthritic changes were noted at C1-2. There was a straightening of the cervical spine, possibly secondary to muscle spasm. The impression was that plaintiff had no evidence of acute osseous injury. After the 1997 accident, plaintiff underwent physical therapy and her treatment records showed that she was still complaining of back pain approximately four months prior to the accident in this case. She also complained of pain in her right arm, radiating into her shoulders and fingers, less than two months prior to the subject accident. Serious Impact on Plaintiff’s Life: not detailed other than the notations in the medical reports that plaintiff’s neck pain and stiffness persisted during activity. Physician’s certification: Dr. Koppel issued a physician’s certification for plaintiff’s use in her lawsuit under AICRA. Within a reasonable degree of medical probability, the doctor opined that plaintiff had sustained permanent injuries in the subject accident that would have permanent residual sequelae for the balance of plaintiff’s lifetime. However, the certification failed to (1) set forth the results of any objective medical tests; (2) indicate the nature of plaintiff’s permanent injuries; or (3) state that plaintiff had sustained an injury to a body part or organ or both that had not healed to function normally and would not heal to function normally with further medical treatment. Moreover, his conclusion was based only on plaintiff’s assertion that she was asymptomatic before the accident, and not on objective medical evidence from that time. Polk analysis: Because of the prior accident, in which plaintiff had injured the same body part (her neck), the defendant moved for summary judgment on the grounds that plaintiff was unable to demonstrate a causal connection between the subject accident and her current complaints. Although this is a Polk issue, the comparative analysis requirement was not discussed. Plaintiff’s counsel attempted to argue that the two accidents involved different injuries, with the first accident primarily involving the shoulder and lower back, and not the neck. This was not borne out by the medical records from the prior accident, however. Miscellaneous Issue(s): None Trial Court Determination(s): Since plaintiff failed to establish through objective medical evidence that she sustained a permanent injury as a result of the subject automobile accident, summary judgment was granted to defendant. Although plaintiff’s expert opined that her injuries were caused by the subject accident, he was not made aware of, and did not have the benefit of the medical records from, her prior accident. His causation determination was based on his assumption that plaintiff was asymptomatic before the subject accident, but this was not borne out by the medical records from before the subject accident; his conclusion was based only on plaintiff’s subjective assertion that she had been asymptomatic. Therefore, Dr. Koppel’s certification was not based on objective clinical evidence and failed. Appellate Court Determination(s): Affirmed, substantially for the reasons articulated by the motion judge. The judge’s findings were found to be well-supported by the substantial credible evidence in the record, as set forth above. 12. Elitchko v. Toman, A-4535-04T3 DDS No. 23-2-2701 Judges Lintner and Gilroy Jan. 26, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on Nov. 8, 2002, when plaintiff’s vehicle, which was stopped in a line of traffic, was rear-ended by defendant’s vehicle. The plaintiff was taken to the emergency room from the scene of the accident. Medical Testing and Treatment: Emergency Room: Plaintiff presented with complaints of pain in her head, neck, back and right leg. First orthopedic surgeon: Five days post-accident, plaintiff saw Dr. Glastein, who made a clinical diagnosis of cervical and lumbar radiculopathy. After plaintiff underwent MRI testing (see below) the doctor causally connected the cervical herniation and lumbar disc bulges disclosed on the MRI reports to the subject accident. Second orthopedic surgeon: Plaintiff also saw Dr. Lombardi, who reviewed the MRI reports and diagnosed plaintiff as suffering from cervical whiplash, right cervical radiculopathy, a lumbar disc herniation at L5-S1, and a cervical disc herniation at C4-5. Dr. Lombardi recommended an EMG, with showed right-sided radiculopathy; the doctor then administered a cervical injection. He also recommended a myelogram, and stated that, if positive, he would recommend surgery. Finally, he causally related plaintiff’s injuries to the subject accident. Radiology: Ten days post-accident, an MRI examination of plaintiff’s cervical and lumbar spines was performed. The lumbar MRI disclosed minor disc bulging at L4-L5 and L5-S1. The cervical MRI disclosed mild cervical disc dessication with a tiny central ridge at C3-4, a small central/left paracentral herniation at C4-5, and small central ridge/discs at C5-6 and C6-7. The cervical MRI also showed no significant canal or foraminal stenosis or cord compression. An EMG was conducted and was positive for right-sided radiculopathy. There was no report produced in the record, but the EMG results were referred to by Dr. Lombardi. Plaintiff underwent a myelogram on Sept. 28, 2004, which showed, at C4-5, C5-6 and C6-7, disk osteophyte complexes and a central disc herniation, respectively, causing thecal sac flattening without significant neural foraminal narrowing. The radiologist described his findings as degenerative changes. This report, however, was not referenced by the motion judge or by counsel on appeal; accordingly, it was not ascribed any evidentiary significance by the appellate panel. Prior Injuries: Plaintiff was involved in two other accidents prior to the subject accident. On Nov. 5, 1994, she was in a car accident and suffered cervical and right shoulder sprain and strain, and other injuries, but denied receiving any treatment. On October 1, 1999, she slipped and fell and was diagnosed with dorsal and lumbosacral spine sprain and strain, and a herniation at L4-5 with radiculopathy. She was still experiencing lower back pain and right leg pain in the days prior to the subject accident. Plaintiff was also involved in another accident subsequent to the subject accident, in October of 2003. She suffered injuries to her neck, back, right arm and right leg, the same areas involved in the accident in question. In her deposition, she testified that the injuries she sustained in the subject accident were aggravated by the 2003 accident. Serious Impact on Plaintiff’s Life: not detailed, but motion judge found plaintiff’s failure to prove same fatal to her case. Physician’s certification: No issue Polk analysis: Plaintiff conceded that, because she had suffered a prior back injury in 1999, and still was experiencing residuals therefrom at the time of the subject accident, she had to produce a comparative analysis of her pre- and post-accident residuals, but had not done so. She contended, however, that she did not need a Polk analysis for her cervical injury, because even though she had sustained a mild sprain and strain in 1994, she never received any treatment for this injury and was symptom-free at the time of the subject accident. She also claimed she did not need a Polk analysis to differentiate the injury caused by the subject accident from the subsequent 2003 accident, notwithstanding that she contended aggravation of the prior injury. Miscellaneous Issue(s): None Trial Court Determination(s): Plaintiff claimed to have sustained a category six injury. However, because no EMG report was presented to the motion judge, he concluded that plaintiff had not produced sufficient objective evidence to confirm the diagnosis of cervical radiculopathy. Even though the MRI showed that she had a cervical herniation, there was insufficient objective evidence that the herniation had any affect on her spinal cord. Therefore, he determined that she had failed to establish through objective medical evidence that she sustained an injury in the accident fitting into one of the six threshold categories defined in the statute. He also found that plaintiff had failed to establish, subjectively, that any injury she had sustained in the accident had a serious impact on her life. Summary judgment was granted to defendant. Appellate Court Determination(s): Reversed. The court noted summarily that the motion judge’s conclusion regarding plaintiff’s failure to surmount the serious impact prong of the Oswin test could not be sustained in light of the Supreme Court’s rulings in DiProspero and Serrano. As to the judge’s conclusion that plaintiff had also failed to show permanent injury qualifying under the verbal threshold statute, further discussion was required. The appellate court concluded from the wording of the motion judge’s decision that, if he had been aware that there was an EMG report confirming radiculopathy, he would have reached a different conclusion about her qualifying injury. Viewing the evidence most favorably to plaintiff, the appellate court found that plaintiff had provided ample, credible medical evidence of a qualifying injury caused by the subject accident to survive the defendant’s summary judgment motion. With respect to the Polk controversy, this panel chose to “enter the fray,” and concurred with the Davidson court’s determination that “the Polk analysis is a court-engrafted requirement, not one obligated by AICRA, and should not be imposed by the court for the same reasons that the court is prohibited from imposing the subjective prong of Oswin.” The comparative analysis required by Polk was an element of causation. As in other personal injury cases, if there was a claim for aggravation of a pre-existing condition, some comparative analysis would be necessary to prove the aggravation at trial. However, the comparative analysis was not required to defeat a summary judgment motion. 13. Knochowski v. Dell, A-4107-04T5 DDS No. 23-2-2702 Judges Weissbard and Winkelstein Jan. 26, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on Feb. 16, 2001, when plaintiff’s vehicle, forced off the road by defendant’s vehicle, struck a utility pole before coming to an abrupt stop. The 43-year-old plaintiff was dazed, but did not lose consciousness. He experienced an immediate onset of mild neck and lower back pain, but decided not to go to the emergency room. Medical Testing and Treatment: Chiropractor: As plaintiff’s symptoms became progressively worse, he went to Dr. Cassidy five days after the accident, complaining of pain in his back, neck, right knee, hip and both hands. His back and neck pain also manifested radicular symptoms – shooting pains and numbness � in both his arms and his legs. He also complained of headaches, dizziness, depression, nervousness, cold hands and feet, rapid heartbeat, and ringing in both ears. Dr. Cassidy read the radiology reports, noted muscle spasms, and opined that plaintiff had sustained significant structural and neurological permanent and life-altering injuries to his cervical spine as a direct result of the subject accident. Second physician: Plaintiff was examined by Dr. Lipnack, D.O., on April 10, 2001, continuing to complain of back pain radiating into his right leg, numbness and tingling in his right arm, and a burning pain in his left arm. He also complained of neck pain radiating into both arms and numbness and tingling in his right shoulder. The doctor’s neurological examination revealed a weakness in plaintiff’s right arm. A sensory examination showed decreased pinprick and light touch in his right hand distribution, C6, 7 and 8, and his right leg distribution at L4-L5. Dr. Lipnack opined that plaintiff’s medical disabilities were directly and causally related to the subject accident. Third physician: Plaintiff also saw a Dr. Palmer, who reviewed plaintiff’s medical records, examined plaintiff, and concluded that he had suffered permanent injuries, particularly to his left elbow. Radiology: EMG examination on May 22, 2001 revealed a C5-6 radiculopathy on the right. An MRI examination on June 11, 2001 revealed a disc bulge at C5-6. Prior Injuries: When plaintiff was a teenager, he fractured his left elbow. In 1976, he sustained mild neck and lower back injuries in a motor vehicle accident. He fractured his hand and/or wrist in 1990, falling on ice, and had it surgically repaired. He also had right knee surgery in 1997. The motion judge referred to plaintiff as having had fifteen fractures throughout his lifetime related to his condition of osteogenesis; he also referred to valvular disease. Notwithstanding this significant history, plaintiff told his chiropractor that, as of the date of the accident, he had been pain-free and enjoying excellent spinal health. Serious Impact on Plaintiff’s Life: Plaintiff complained that his right knee pain and swelling interfered with his ability to walk, stand, and climb stairs. Physician’s certification: No issue Polk analysis: Because of plaintiff’s extensive history of prior injuries, the judge found the doctors’ failure to provide a comparative analysis under Polk to be fatal to plaintiff’s case. The appellate panel disagreed, agreeing with the Davidson panel that Polk was no longer viable under AICRA, and, even if it was, it was not applicable to this case. Miscellaneous Issue(s): None Trial Court Determination(s): The judge granted summary judgment to the defendant, placing great weight on plaintiff’s extensive medical history of prior injuries. The judge acknowledged the MRI that revealed disc bulges, the EMG that revealed radiculopathy, and the plaintiff’s doctors’ opinions that these injuries were permanent and caused by the accident. Accordingly, he found that plaintiff had demonstrated permanency to the extent necessary to survive a summary judgment motion. As to causation, however, the judge felt that the plaintiff had not shown a causal nexus between his injuries and the accident. He felt that both Dr. Cassidy and Dr. Lipnack had opined as to causation without giving a basis for their opinions. Dr. Cassidy’s conclusion as to causation was based largely on plaintiff’s subjective statement that he had previously enjoyed excellent spinal health. Dr. Palmer’s conclusion that the left elbow injury was caused by the accident was based on the fact that plaintiff had not displayed “his present mild ulnar axonopathy” before the subject accident. Because of plaintiff’s extensive history of prior injuries, the judge found the doctors’ failure to provide their reasoning regarding causation, and their failure to provide a comparative analysis under Polk, to be fatal to plaintiff’s case. Appellate Court Determination(s): Reversed. The appellate panel cited the following as sufficient evidence for plaintiff to survive the summary judgment motion: (1) Dr. Lipnack’s clinical impression that plaintiff suffered from permanent C5-6 radiculopathy on his right side, confirmed by objective testing, and his opinion that the condition was the result of the subject automobile accident; and (2) Dr. Cassidy’s finding of permanent, life-altering disability as a result of the accident. As to the Polk issue, this appellate panel agreed with the Davidson panel that Polk was no longer viable under AICRA, and, even if it was, the panel concluded that it was not applicable to this case, as plaintiff was not claiming an aggravation to a prior injury. Rather, he was seeking compensation for entirely new injuries, his cervical injuries resulting in radiculopathy, that were directly caused by the subject accident. For purposes of summary judgment, the panel concluded that plaintiff’s proofs supported that claim. 14. Hoffman v. Smith, A-2111-04T1 DDS No. 23-2-2743 Judges Conley and Lihotz Jan. 30, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile collision which occurred on Sept. 15, 2001, when defendant’s vehicle made a left turn in front of plaintiff’s vehicle, crossing into her path of travel. The 60-year-old plaintiff began experiencing symptoms several days after the accident, and sought medical attention. Medical Testing and Treatment: Chiropractor: Plaintiff’s first visit to Dr. Doyle was on Sept. 21, 2001. He reported muscle spasms in her cervical, thoracic and lumbar spine. Lumbar range of motion was restricted to 75 percent of normal, and plaintiff complained of radiating pain down her right leg. Cervical range of motion was restricted to 70 percent of normal; and there was a positive right and left shoulder depression test. Muscle stretch reflexes for the arms were +2 bilaterally. The chiropractor took X-rays (see below) and diagnosed plaintiff as suffering from acute traumatic cervical and lumbar sprain and strain, with paraspinal muscle spasms, and left traumatic cephalgia. The plaintiff treated with the chiropractor for three years. She underwent a course of spinal manipulations to improve the normal kinetic movement of her spine. The chiropractor also administered electrical muscle stimulation to help decrease muscle spasms. Plaintiff was given orthopedic pillows and instructed to do cryotherapy at home to help reduce localized edema. Dr. Doyle opined that plaintiff’s injuries were causally related to the subject automobile accident. He felt that she had responded appropriately to treatment with a decrease in symptomatology and pain, and an increase in spinal function. However, the instability of her lumbar spine and right sacroiliac joint continued to cause her numerous exacerbations from nontraumatic incidents as routine as cooking dinner. Accordingly, the doctor opined that plaintiff’s injuries were permanent, and would continue to affect her activities of daily living. He issued a physician’s certification, as required by AICRA, in connection with plaintiff’s lawsuit. Second physician: The chiropractor referred plaintiff to Dr. Brody for an evaluation on April 16, 2002. He diagnosed plaintiff with chronic cervical and lumbosacral sprain and strain, myofascitis, lumbosacral radiculopathy, right sacroiliitis, exacerbated depression, and tension headaches. He recommended continued chiropractic care, along with additional tests and treatment including an EMG and nerve conduction study of her legs, a TENS unit, steroid injections for the right sacroiliac (SI) joint, as well as to the cervical and lumbosacral paraspinal muscles, high voltage electrogalvanic stimulation, and deep muscle massage to the neck and back, ultrasound to the right SI joint, myofascial release techniques, physical therapy, counseling for support and to learn relaxation techniques, the use of a lumbar seat and cervical pillow, whirlpool therapy, and the use of exercise, stretching and instruction on neck and back conservation and proper body mechanics. There was no evidence in the record that the EMG, nerve conduction study or other testing recommended by Dr. Brody was performed. Third physician: Another opinion was sought from Dr. Barr, D.O., on Nov. 19, 2002. His review of plaintiff’s X-rays showed advanced degenerative disc disease at L5-S1. The lumbosacral spine had midline tenderness throughout and restriction to 70-75% of normal in forward flexion, extension, side bending and rotation. He concluded that plaintiff had sustained post-traumatic lumbosacral sprain and strain with superimposed degenerative disc disease at L5-S1, with right lower radicular symptoms as a result of the accident. He recommended continuation of plaintiff’s chiropractic regime, use of nonsteroidal anti-inflammatory medications, and an MRI study of plaintiff’s lumbar spine. Fourth physician: Another physician, Dr. Kahn, from the same orthopedic group as Dr. Barr, examined plaintiff on April 15, 2003. He found midline tenderness in the lumbar spine; right paravertebral muscle tenderness; right sacroiliac joint tenderness; and mild protective spasm on the right. “The patient lacked two inches of toe touch.” The doctor’s impressions were: chronic post-traumatic lumbosacral sprain and strain; aggravation of pre-existing degenerative disease; chronic pain syndrome; chronic myofascitis; and chronic lumbar facet syndrome. He concluded that plaintiff would have permanent residuals as a result of the subject automobile accident. Radiology: X-rays taken in the chiropractor’s office showed multiple levels of vertebral misalignment. There were degenerative changes in the cervical spine at C5 and C6. Lumbar spine sectional views revealed degenerative changes at L5. An MRI study performed on May 8, 2003, verified mild bulging annuli at L4-5, L3-4, and L2-3, best demonstrated on sagittal, T2 weighted sequences, and mild to moderate degenerative, mid to lower lumbar spinal stenosis. Prior Injuries: Plaintiff apparently reported to Dr. Barr that she had sustained a prior work-related injury to her left arm, and sprained her lower back “many years ago.” During discovery, it was also revealed that she had been treated on Apr. 23, 1998 for right menisci tears after a fall, and, in December 1996 saw a Dr. Soloway for severe right hip and leg pain. Dr. Soloway also provided an emergency consultation on March 16, 2001, six months before the subject accident, because plaintiff was experiencing severe lower back pain. The doctor apparently suggested injections for relief, but plaintiff refused. The doctor’s impression at that time was left pre-sacral bursitis. A follow-up office note dated March 21, 2001, stated that X-rays showed severe facet arthritis, from which the doctor concluded that plaintiff had spinal stenosis and/or combined arthropathy from facet arthritis. Serious Impact on Plaintiff’s Life: Plaintiff reported exacerbations of her symptoms even on routine activity, such as standing and cooking dinner. Physician’s certification: No issue Polk analysis: One of the main reasons given for the trial judge’s grant of summary judgment to the defendant was plaintiff’s failure to provide a comparative analysis of pre- and post-accident residuals as required by Polk. The appellate panel found Polk inapplicable to this case. Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment was granted to defendant because plaintiff’s experts did not provide a comparative analysis of plaintiff’s pre-existing lower back condition with the back injury sustained in the subject accident, and further, because the proofs regarding plaintiff’s soft tissue injuries failed to show an objective, permanent injury under AICRA. As to the Polk issue, the judge focused on Dr. Soloway’s report six months before the subject accident, dealing with his “emergent” examination of plaintiff for severe lower back pain. Because of the severity of the pain, and the doctor’s characterization of the visit as “emergent,” the judge indicated that this had been a significant event with significant symptomatology, not just “some muscle spasm or ache or pain of no moment.” Under the circumstances, where plaintiff had degenerative problems, and was suffering from severe symptoms in her back so near in time to the subject accident, where her back was also injured, the judge felt that the Polk analysis was necessary. He opined that this was the classic situation where a pre-existing condition was aggravated. Additionally, as to plaintiff’s failure to otherwise show permanent injury by objective evidence, while the judge noted the presence of muscle spasm, he also cited the numerous references throughout the medical reports to sprain and strain, which were not injuries of the type contemplated to be actionable under the verbal threshold law. With respect to the objective testing, the judge noted the MRI findings, but stressed that the conditions revealed were largely aggravations of plaintiff’s pre-existing degenerative disease. He also noted the disc bulge, but stressed that there was no impinging on the thecal sac, nor was there a positive EMG test. Appellate Court Determination(s): Reversed. The appellate panel found Polk inapposite to this case. Since summary judgment was granted principally on plaintiff’s “fatal” failure to satisfy the comparative analysis requirement, reversal was required. This panel agreed with the Davidson court’s holding that the Polk comparative analysis requirement did not have continuing viability under AICRA. While the plaintiff’s doctors’ reports did not specifically contain a comparison of her prior medical conditions and her current injuries, this issue, as well as the factual disputes about the nature and extent of her injuries resulting from the accident, was best left for the jury’s determination. The panel also concluded that the medical evidence before the trial judge was sufficient to create at least an arguable factual issue as to whether plaintiff had sustained a permanent injury in the accident, and held that such an issue should not have been resolved by summary judgment. The panel specifically quoted the physician’s certification submitted by Dr. Doyle, plaintiff’s treating chiropractor, confirming that the injuries plaintiff had sustained were directly caused by the accident and were permanent. The panel cited the following as accepted, objective, credible, medical evidence of injury: (1) the findings of muscle spasm in the right lumbar area, persisting two years after the accident; (2) radiological diagnostics, including the MRI, documenting three bulging discs; and (3) range of motion limitations recorded in the reports of four doctors. All this, coupled with the facts stated in plaintiff’s deposition testimony, sufficiently showed the panel that the subject automobile accident caused injury to her back, and that the injury was permanent as defined in the statute because her discs had not healed to function normally and would not heal to function normally. 15. Herrera v. Smith, A-2634-04T1 DDS No. 23-2-2816 Judges Fall and Miniman Feb. 6, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on Dec. 2, 2002. Plaintiff testified that, because she is short, she had to sit close to the steering wheel. As a result, upon impact with defendant’s vehicle, she struck and injured her knee on the interior of her automobile. Medical Testing and Treatment: Chiropractor: Plaintiff went to a chiropractor the day following the accident, complaining of various soft tissue injuries, as well as pain in the right knee. Orthopedic surgeon: About one month post-accident, plaintiff came under the care of Dr. Vizzone, D.O., who ordered an MRI of her knee (see below). Thereafter, plaintiff was given an epidural injection, but when this did not provide any lasting relief, she underwent arthroscopic surgery on Feb. 21, 2003. The surgeon found an osteochondral defect at the articular surface of the patella and performed thermochrondroplasty, bringing the lesion to a more stable articular surface. In addition, he found a large medial patella plica that he resected with a shaver. Dr. Vizzone also removed the synovial membrane at the intercondylar notch and the lateral compartment. Dr. Vizzone diagnosed plaintiff as suffering from traumatic internal derangement of the right knee, traumatic osteochondral defects, traumatic medial patellar plica and hypertrophic synovitis. He opined that these injuries to plaintiff’s knee were caused by the subject motor vehicle accident, and were permanent. He also noted that plaintiff would require future orthopedic care, and that further surgical intervention was likely in the future. Her permanent residual sequelae could not be resolved with further medical treatment and plaintiff would have them for the rest of her life. Radiology: MRI examination revealed joint effusion and a tear of the posterior horn of the medial meniscus. This impression ultimately was proven incorrect during surgery. Prior Injuries: None. Serious Impact on Plaintiff’s Life: Plaintiff, a nurse at a Veterans Administration hospital, testified at her deposition that the pain and swelling in her right knee waxed and waned. On days when she was on her feet constantly, her knee would get very swollen, and her pain level increased significantly. Plaintiff wore a knee brace, took Advil daily, and could not kneel on her right knee. She also apparently testified that she was no longer able to go dancing twice a month. Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): The appellate panel concluded that the motion judge erred in making a bare conclusion that plaintiff’s injuries did not have a serious impact on her life, indicating that the defendant’s summary judgment motion was unopposed. In fact, opposition had been filed, albeit late. However, the motion was adjourned two weeks, which cured the late filing of the opposition; the opposition should have been considered. A lesser sanction than a refusal to consider papers on a dispositive motion would have sufficed, if any sanction was even merited, which the record here did not support. Trial Court Determination(s): Plaintiff failed to establish through objective medical evidence that the accident resulted in injuries that caused a serious impact on her life. The judge concluded that plaintiff’s knee was functioning normally and her life had not been substantially affected. He highlighted the fact that plaintiff could no longer go dancing twice a week, stating that it was insufficient to vault the verbal threshold. Summary judgment was granted to defendant. Appellate Court Determination(s): Reversed. Because of DiProspero and Serrano‘s abrogation of the serious impact requirement, the appellate court quickly disposed of that aspect of the trial judge’s decision. With respect to plaintiff’s proofs of a qualifying injury, the appellate court concluded that plaintiff had presented sufficient objective clinical evidence of a permanent injury to require a trial by jury. Once there was a surgical removal of articular cartilage in the knee, the knee itself could never again be normal. The evidence as to whether the knee was functioning normally, despite the surgical alteration, was in dispute. Such a dispute of material fact required a jury trial. 16. Taylor v. Kajouras, A-0399-04T5 DDS No. 23-2-2817 Judges Wecker and Graves Feb. 6, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on Dec. 23, 1999, when defendant struck plaintiff’s vehicle as it was stopped at a toll booth on the Garden State Parkway. The accident occurred at a very low speed, but plaintiff reported having wrenched his neck and left arm. Medical Testing and Treatment: Treating physician: Dr. Friedman’s findings included herniated cervical disc with severe spondylosis causing indentation of the cord and neural foraminal narrowing, C6-7 greater than C5-6 with left C6 and C7 radiculopathy. He noted that plaintiff had a long history of difficulty with his neck, and long-standing nerve root irritation, but that the more recent MRIs showed greater impairment, and plaintiff’s complaints were much more severe, after the subject accident. Plaintiff had had minimal complaints before the subject accident, and had not received any treatment for injuries sustained in the 1993 accident for quite some time. Complicating plaintiff’s problems was the fact that he also had Charcot-Marie-Tooth disease, a hereditary condition; hereditary peroneal atrophy, pescavus of his foot and atrophy of the leg with weakness in the leg. He had difficulty in dorsi-flexion. In plaintiff’s lower back, the doctor noted spasm and tenderness, restricted motion, pain, and weakness radiating down both legs. The doctor’s diagnosis was sprain and strain of the lower back with evidence of left sciatic nerve irritation, polyneuropathy of the lower leg due to Charcot-Marie-Tooth disease. He noted that symptoms of plaintiff’s restless leg syndrome, occurring after the 1993 accident, had decreased over time. Within a reasonable degree of medical probability, the doctor attributed all of plaintiff’s current difficulties to the subject automobile accident. He opined that there was permanency in the neck with neurological irritation causing radiculopathy, and concluded that the plaintiff’s pre-accident cervical condition (due to degeneration, hereditary conditions, and the prior accident) was aggravated in the subject accident. He based this opinion on his comparison of the pre-accident and post-accident objective medical testing, including MRIs, EMGs and the plaintiff’s medical records. There had been no diagnosis of a herniated cervical disc previously, with radiculopathy. It was also noted that plaintiff had not been advised to seek surgical intervention before the subject accident, as he had been after the subject accident (see below). Again, Dr. Friedman doctor noted plaintiff’s increased pain and symptomatology after the subject accident, and opined that his injuries were permanent and could not be healed without some aspect of residual injury being present for the balance of the patient’s lifetime. Surgeon: The plaintiff apparently saw a Dr. Pelosi with respect to his continuing neck problems. The doctor recommended that plaintiff undergo surgical intervention in the form of an anterior cervical discectomy and fusion and stabilization at C5-6 and C6-7 with an iliac bone graft with a titanium plate and stabilization. Radiology: MRI and EMG examinations, referred to by treating physician. Prior Injuries: Plaintiff had been involved in a prior accident on July 3, 1993, and was diagnosed thereafter with restless leg syndrome. There was also evidence of injury to his cervical spine, which was an area also allegedly injured in the subject accident. Serious Impact on Plaintiff’s Life: Not detailed. Physician’s certification: No issue. Polk analysis: Main issue. Miscellaneous Issue(s): None. Trial Court Determination(s): The motion judge granted summary judgment to defendant on two grounds: (1) plaintiff’s failure to satisfy the subjective, serious impact prong of the verbal threshold test; and (2) plaintiff’s failure to provide a medical expert’s comparative analysis of his pre- and post-accident injuries, as required by Polk v. Daconceicao. Appellate Court Determination(s): Reversed. While the court noted that it was understandable that the motion judge should have followed the then-applicable holding of James v. Torres, which continued the two-pronged Oswin test after the enactment of AICRA, it was clear that, after the Supreme Court cases of DiProspero and Serrano, James was no longer the law and the serious impact prong of the former test had been abrogated. The appellate court therefore addressed the judge’s alternative ground for the dismissal of plaintiff’s case, his failure to meet the requirement of Polk. The court discussed the controversy among the various panels as to the continuing viability of Polk under AICRA, citing the cases of Davidson v. Slater, Hardison v. King, and Lucky v. Holland. The court highlighted Judge Lefelt’s opinion in Hardison, which stated that the Hardison panel did not necessarily agree with Davidson that, after AICRA, DiProspero and Serrano, comparative evidence would never be required in a nonaggravation case. Rather, the Hardison panel felt that the need for a plaintiff to oppose summary judgment with comparative evidence when aggravation was not being claimed should not depend on any automatic application of Polk. Instead, the necessity for a comparative analysis should depend on whether the factual construct presented by the moving papers called into question whether any reasonable jury could find that plaintiff incurred a permanent injury resulting from the subject automobile accident. In short, the evidence would be necessary to prove causation. Notwithstanding this discussion, the appellate court in this case felt that it need not determine the extent to which Polk actually remained the law with respect to a plaintiff’s burden to withstand summary judgment, as it concluded that Dr. Friedman’s report clearly satisfied the comparative analysis requirement of Polk, in any event. The court made it clear that it was not suggesting the outcome of a jury trial, noting that there remained substantial issues of proximate cause; nonetheless, plaintiff was entitled to go forward with his action. 17. Palmer v. Kovacs, A-0956-04T5 and A-1257-04T5 DDS No. 23-2-2818 Judges Skillman, Axelrad and Sabatino Feb. 6, 2006 Result: Judge’s pretrial grant of summary judgment in favor of defendant is affirmed. Matter remanded for reconsideration of judge’s denial of defendant’s motion for remittitur of the judgment. Facts/Background: This case arose out of an intersectional automobile accident on April 10, 2000, when plaintiff’s vehicle collided with defendant’s vehicle. The accident involved sufficient force to activate the air bag in plaintiff’s vehicle. The 23-year-old plaintiff thereafter went to the emergency room. Medical Testing and Treatment: Emergency Room: Plaintiff presented with complaints of pain in her neck and left arm and hand. A cervical X-ray was performed, which showed no fractures, but did reveal a straightening of the normal cervical lordosis, consistent with muscle spasm. That evening plaintiff experienced lower back pain radiating into her thigh and severe headaches with a stiff neck that woke her up during the night. First chiropractor: About two months post-accident, plaintiff sought treatment from Dr. Dandrea, complaining of sharp pains that traveled up and down her back, and of other symptoms. Second chiropractor: Four months post-accident, plaintiff transferred to Dr. Sanford. Her complaints improved somewhat under his care, but her neck and back problems persisted. In a report issued in June of 2001, the doctor noted that plaintiff continued to have significant limitations in her neck and back, and cited persistent cervical and lumbar spasms throughout the course of her treatment, with a nearly 40 percent loss of cervical extension and lumbar extension and flexion. Orthopedic surgeon: Dr. Dennis examined plaintiff on Feb. 26, 2002 at her counsel’s request. His examination of plaintiff’s lumbar spine, two years post-accident, still showed mild muscle spasm palpated through her sweater, and limited forward motion and backward extension. He also found approximately 80 percent range of motion of, and moderate tenderness in, her lumbar spine. The doctor’s examination of plaintiff’s cervical spine revealed restriction in the extremes with forward flexion possible to only 60 degrees, and backward extension to 15 degrees. Lateral bending was limited to 10 degrees right and 15 degrees left. Other findings included: a positive compression test; fibrosis or tightness of the paraspinal muscles in both the neck and the back; tenderness in the middle of the cervical spine, particularly as the muscles attached to the occiput; persistent and significant tenderness and multiple trigger points about the trapezius; and a limited ability to shrug shoulders. The orthopedic surgeon’s final diagnoses were: (1) hyperflexion and hyperextension injury to the cervical and lumbar spine; (2) cervicobrachial syndrome; (3) brachial neuralgia; (4) transient lumbosacral neuritis and radiculitis; (5) lumbosacral muscle spasm resulting in mild fibrosis and limitation of motion; (6) disc bulges at C3-4, C4-5 and C5-6; and (7) disc bulge at L4-5 with spondylosis at L5-S1. The doctor concluded that the objective medical evidence provided by the MRI confirmed that the subject accident had caused the bulging discs at two levels of the cervical spine, which were not present previously, and that these were causing plaintiff’s current, active and persistent complaints, which he believed would continue on a permanent basis. Defense examination: Dr. Bosniak examined the plaintiff for the defense on Apr. 8, 2002, recording her persistent complaints of numbing or shooting pains in her lower back; once or twice-weekly temporary sharp shooting pain radiating from the lower back into the backs of her thighs (most frequently when she changed from a seated to a standing position); daily neck pain accompanied by stiffness and soreness (awakening each morning with a stiff neck); and headaches every other day, for which she took over-the-counter pain relievers once or twice daily. The doctor’s evaluation of plaintiff’s neck and back documented no limitation of motion in the lumbar area and limited lateral flexion and left lateral rotation in the cervical area. He concluded that there was no objective physical residua consistent with any significant soft tissue, muscular or neurologic abnormality that he could specifically attribute to the subject automobile accident, and that nothing precluded plaintiff from the normal performance of her daily occupation or from the pursuit of a variety of recreational activities. In a supplemental report dated Aug. 4, 2002, Dr. Bosniak reviewed the earlier MRI studies of plaintiff’s cervical and lumbar spine. He opined that the changes noted on the cervical study, with the exception of the partial reversal of cervical lordosis, were minimal in nature and not traumatically induced. He did note, however, that a tiny midline protrusion indented the thecal sac, but stressed that it did not approach the cervical cord. His report further acknowledged that the lumbar MRI study had shown a very mild disc bulge at L4-5, but noted that there was no protrusion or herniation. On the whole, the doctor’s view was that plaintiff’s cervical and lumbar disc bulges were insignificant. Radiology: In addition to the X-ray taken at emergency room, plaintiff underwent various diagnostic tests that objectively revealed abnormalities in her neck and lower back. A cervical MRI performed on Sept. 7, 2000, disclosed a small disc bulge at C3-4 and disc bulges with central canal stenosis at C4-5 and C5-6, the latter being referenced as “small.” A lumbar MRI on March 6, 2001, revealed a mild disc bulge at L4-5, and posterior element spondylosis at L5-S1 with bilateral facet joint hypertrophy. Prior Injuries: Plaintiff had at least two prior motor vehicle accidents, and was also involved in another accident following the subject collision, although none of these accidents led her to seek medical treatment. Serious Impact on Plaintiff’s Life: Plaintiff only missed two days from work after the accident. However, she complained of persistent pain including: numbing or shooting pains in her lower back; once or twice-weekly temporary sharp shooting pain radiating from the lower back into the backs of her thighs (most frequently when she changed from a seated to a standing position); daily neck pain accompanied by stiffness and soreness (awakening each morning with a stiff neck); and headaches every other day, for which she took over-the-counter pain relievers once or twice daily. These symptoms continued for years, and affected her sleep, causing her to awaken every two or three hours each night with pain or discomfort. Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): Because the trial judge, in denying defendant’s remittitur motion, offered no reasons in support of his conclusion that the $460,000 verdict did not amount to a miscarriage of justice, the appellate panel remanded for a statement of reasons, after receipt of which the panel indicated that it would comprehensively address the other issues raised by the parties with respect to the judge’s calculation of the judgment. Trial Court Determination(s): Before the jury trial, the defendant moved for summary judgment, contending that plaintiff met neither prong of the verbal threshold test, but focusing primarily on the plaintiff’s failure to prove a serious impact on her life. The defendant cited the fact that plaintiff had not missed much time from her job, and that her medical treatment was not of long duration. The trial judge denied the motion, finding that genuine issues of material fact warranting a jury trial were presented in the objective proofs showing permanent injury, and the competing interpretations of plaintiff’s injuries by the doctors retained by each side. Defendant thereafter stipulated to liability, and the case proceeded to a four-day, damages-only jury trial. The jury awarded plaintiff $460,000 in damages, all noneconomic in nature. The trial judge increased that sum to $549,695 to encompass prejudgment interest, fees, costs and additional interest pursuant to the offer of judgment rule. The defendant moved unsuccessfully for a new trial or for remittitur, and then appealed not only the denial of that motion and the judge’s calculation of the interest in the judgment, but also the judge’s denial of her pretrial summary judgment motion. Plaintiff also filed an appeal as to the calculation of the judgment, and the appeals were consolidated. Appellate Court Determination(s): Affirmed as to the judge’s denial of defendant’s summary judgment motion. Defendant conceded that the trial court’s denial of her motion could not be disturbed with respect to the serious impact analysis in light of the subsequent rulings in DiProspero and Serrano. Nevertheless, she urged that the motion should have been granted because plaintiff’s objective medical evidence of injury did not satisfy AICRA’s permanent injury requirement. The appellate court disagreed, concluding that plaintiff’s evidence raised genuine issues of material fact on the issues of permanency and causation that required denial of defendant’s motion. As to permanency, the indicia that plaintiff had suffered a permanent injury were not confined to range of motion limitations that were based only on the patient’s subjective pain responses, but were further reflected in the multiple disc bulges shown on the MRI studies and borne out by the persistence of spasm more than two years post-accident. These objective factors were coupled with plaintiff’s continued subjective complaints, including her assertion that she would awaken every two or three hours each night with pain or discomfort. The appellate court found that causation was also an appropriate issue for trial. Although recognizing that degenerative, nontraumatic changes in the spine are often part of the normal aging process, the plaintiff here was only in her early twenties. With respect to her prior and subsequent accidents, the court noted that plaintiff had never sought medical attention for any injuries received in those accidents, and therefore a jury question was presented and the jury was properly asked to assess the cause or causes of plaintiff’s neck and back problems. 18. Murphy v. Mason, A-4925-04T5 DDS No. 23-2-2832 Judges Fisher and Yannotti Feb. 7, 2006 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose out of an automobile accident on June 28, 2000. Medical Testing and Treatment: Treating physician: Although details of treatment are not revealed, the opinion revealed that the plaintiff’s expert detected spasms during a physical examination, and interpreted an EMG as revealing lumbar radiculopathy. He also opined that plaintiff’s injuries were permanent. Radiology: EMG of lumbar spine revealed radiculopathy. Prior Injuries: None Serious Impact on Plaintiff’s Life: not detailed. Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): The judge held that plaintiff’s alleged injuries were insufficiently serious to permit her claim to surmount the verbal threshold. Summary judgment was granted to the defendant. Appellate Court Determination(s): Reversed. The panel noted that, although the trial judge may have accurately analyzed plaintiff’s claim based upon the law that existed at the time the motion was heard, the Supreme Court’s subsequent decision in Juarez v. J.A. Salerno & Sons, Inc. unequivocally declared that the critical question was whether plaintiff had alleged one of the types of injuries described in the statute, such as permanent injury, and that the existence of this injury was supported by objective, credible medical evidence. The statute, as so interpreted, did not permit a court to dismiss a claim based upon a finding that such an injury was not serious. Accordingly, the trial judge’s grant of summary judgment on that basis was reversed. 19. Kirstein v. Kim, A-6462-04T3 DDS No. 23-2-2883 Judges Fisher and Yannotti Feb. 10, 2006 Result: Summary judgment in favor of defendant is affirmed. Facts/Background: This case arose out of a motor vehicle accident on Feb. 24, 2002, which occurred when the motorcycle on which plaintiff was riding collided with defendants’ vehicle. The plaintiff was taken by ambulance to the emergency room. Medical Testing and Treatment: Emergency Room: X-rays were taken, and a CT-scan of plaintiff’s brain was performed, but no abnormalities were observed. The final diagnostic reports stated that plaintiff’s right hip, right shoulder, left hand and chest were normal. There was no evidence of left femoral fracture. However, one report noted a “subtle lucency” in the left superior pubic ramus” which might represent a “subtle fracture.” Orthopedist: Plaintiff was examined on March 18, 2002 at an orthopedic group, at which time paraspinal spasm in the cervical spine was noted. There was no significant restriction of plaintiff’s range of motion. His arms were found to be “unremarkable bilaterally,” and appeared “neurovascularly intact.” He had normal function of his hands, wrists, elbows and shoulders. His legs showed some tenderness over the greater trochanteric region; there was no restriction of the range of motion of the hip. The knee, ankle and foot were “completely unremarkable” and both legs were found to be “neurovascularly intact.” Chiropractor: Plaintiff treated with Dr. Blecher, who had also treated him after a prior motor vehicle accident. The doctor noted that plaintiff’s pain was different and more severe after the subject accident. Plaintiff told the doctor that he had had no physical problems or handicaps before the subject accident. He was working and functioning without restrictions or limitations until the collision. Thereafter, however, he complained of constant neck, low back, right hip and leg pain. In his final examination on Oct. 9, 2002, Dr. Blecher found tenderness and spasm on palpation of the cervical, thoracic and lumbar regions of the spine. There were limitations to the ranges of motion in the cervical and lumbosacral spine. Dr. Blecher stated that a cervical MRI showed disc bulges at multiple levels. His final diagnosis was: joint dysfunction of the cervical spine; cervico-thoracic myofascitis; lumbosacral myofascitis; and disc damage to the cervical spine. Based on the limitations in functional capabilities reported by the plaintiff, along with the longevity of the symptomatology, it was Dr. Blecher’s opinion that, within a reasonable degree of medical probability, plaintiff had sustained a significant limitation of use and impaired function in his neck. He could use his neck, but only in a limited manner due to the recurring pain upon routine activities. The doctor rooted his opinion in the “significant objective findings” and subjective findings pertinent to plaintiff, such as pain restrictions in ordinary and routine activities, limitation of motion of the neck, the MRI, neurological examination and pain as demonstrated by musculoskeletal testing. He also opined that the plaintiff’s complaints were consistent with the type of trauma suffered by plaintiff in the subject accident, and were therefore caused by the accident. Radiology: In addition to the X-rays and CT-scan performed at the hospital, a cervical MRI was performed after the subject accident, revealing “minimal” disc bulges: “small diffuse disc bulges” at C3-4, and C5-6, and a “tiny diffuse bulge” at C4-5. The MRI report stated that the bulges were not the cause of any significant spinal canal or neural foraminal stenosis. In addition, there was no evidence of disc bulges or spinal/neural stenosis at the other levels of the cervical spine. The results of this MRI were compared to an MRI study performed at the time of plaintiff’s prior accident (see below), and the doctor interpreting the reports stated that the April 2002 MRI showed “no significant change” from the June 2001 study. Prior Injuries: Plaintiff was involved in a prior motor vehicle accident on Apr. 19, 2001, in which he claimed to have injured his neck, back, jaw and shoulder. He was treated by the same chiropractor, who provided a report dated Aug. 23, 2001, stating that plaintiff presented with complaints of headaches and pain in his neck, right shoulder, lower back and left knee. The report noted findings of tenderness of the spine at the cervical, lumbar and lumbosacral regions, indicative of damage to plaintiff’s ligaments. The report also noted muscle spasm in the cervical and lumbar musculature, as well as in the trapezius muscles. These pathologies resulted in restricted ranges of motion in plaintiff’s cervical and thoracolumbar spine. MRI’s of plaintiff’s cervical and lumbar spine and left knee were performed on June 20, 2001. The cervical MRI revealed a reversal of the cervical lordosis; broad-based disc bulges with no central canal, subarticular or foraminal stenosis at C2-3, C3-4, C4-5, C5-6 and C6-7; and no significant disc bulge or herniation at C7-T1. The lumbar MRI showed disc bulging at L2-3 to L5-S1, no evidence of spinal canal or neural foraminal stenosis, but narrowing of the left subarticular zone at L4-5. The MRI of the left knee showed abnormal signal in the posterior horn of the medial meniscus consistent with degenerative change. However, there was no evidence of articular surface tear of the menisci and no evidence of collateral or cruciate ligament tear. An EMG and nerve conduction study was performed on Aug. 13, 2001. The report of that test showed the presence of left C6-7 and right C-5 radiculopathy. Serious Impact on Plaintiff’s Life: Not detailed, except plaintiff’s subjective statement to his chiropractor that, before the subject accident, he was able to work and function well, but that, after the accident, he had difficulties with routine activities. Physician’s certification: No issue Polk analysis: The trial judge cited this as the main issue, and dismissed plaintiff’s complaint based on his failure to present a Polk comparative analysis of the injuries sustained in the 2001 and 2002 accidents. The appellate panel affirmed the dismissal of the complaint, but for a lack of showing of causation rather than through a strict application of Polk. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge granted summary judgment to the defendant because plaintiff had failed to provide a comparative analysis between the injuries sustained in the 2001 accident and those sustained in the subject accident in 2002. The judge highlighted the fact that plaintiff’s treating chiropractor had noted that plaintiff suffered permanent injuries in the earlier accident, as evidenced by disc bulges at multiple levels of the cervical and lumbar spine. These injuries were confirmed by MRI studies, an EMG and a nerve conduction study all performed in 2001. Since plaintiff injured the same parts of his body in the subject accident, the judge felt that a Polk comparative analysis was required. Without it, plaintiff’s case could not proceed. Appellate Court Determination(s): Affirmed. While the appellate court noted the recent developments in the verbal threshold law under AICRA, and the recent disagreements among various panels as to whether the Polk requirement remained viable, the court found it unnecessary to express a view on that issue. The court was convinced that, even if such an analysis was not required, the motion judge properly granted summary judgment in this case because plaintiff did not present sufficient objective credible evidence to raise a genuine issue of material fact as to whether he sustained a permanent injury in the 2002 accident. The appellate court noted that, in his report, plaintiff’s chiropractor had opined that plaintiff sustained permanent injuries in the 2002 accident, which he diagnosed as joint dysfunction of the cervical spine, cervico-thoracic and lumbosacral myofascitis, and disc damage to the cervical spine. However, the MRI study performed after the prior accident showed disc bulges at virtually all levels of the cervical spine, and the cervical MRI study performed after the subject accident showed “no significant change.” The objective testing, therefore, showed that plaintiff’s cervical injuries were sustained in the first accident, and did not provide objective evidence of a permanent injury related to the second accident. Furthermore, the chiropractor pointed to other evidence which he said supported his opinion that plaintiff sustained a permanent injury in the subject accident. He observed spasm in the neck, which would be an objective indicator of injury; however, the observation was only made several months after the accident, which is not the sort of persistent spasm that has been required in verbal threshold case law. Moreover, Dr. Blecher’s report relied heavily on plaintiff’s complaints of pain and the limitations on his range of motion. The complaints were subjective and the range of motion tests were also based on plaintiff’s subjective pain response. As such, this evidence was not the sort of objective evidence required to vault the threshold. 20. Knight v. Bogerty, A-3374-04T2 DDS No. 23-2-2913 Judges Axelrad and Sabatino Feb. 14, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on Nov. 4, 2001. The 30-something-year-old plaintiff was a passenger in a vehicle that was stopped in traffic, and was struck from the rear by defendant’s vehicle. The impact caused plaintiff’s vehicle to collide with a third vehicle that was in front of it. Medical Testing and Treatment: Emergency room: On the day following the accident, plaintiff went to the emergency room and was initially treated for an injury to his left ankle. Soon thereafter, he began to experience lower back pain that radiated into his right leg, and numbness and paresthesias in the dorsum of the right foot and right first toe. Orthopedist: Nine days post-accident, plaintiff was evaluated by Dr. Barrett, who diagnosed left ankle sprain, thoracic and lumbar strain, and a degenerative right hip. Chiropractor: Two days later, plaintiff began chiropractic treatment with Dr. Olivieri, complaining of lower back pain radiating into his right thigh, left hip pain, headaches, neck pain, midback pain and left ankle pain. The doctor found decreased range of motion in plaintiff’s cervical, thoracic, and lumbar regions, with spasm and fixation. Plaintiff pursued a treatment plan that included spinal X-rays, manipulation, therapeutic exercise, and electric muscle stimulation three times a week. The chiropractor’s reports of re-examination in March and June, 2002, noted that plaintiff was still having complaints of pain � significant in the lower back and leg after prolonged sitting, standing, bending, twisting and lifting. Plaintiff received two epidural block injections, one on March 1, 2002, and the other on June 11, 2002. He also received a nerve root block on July 30, 2002; however, despite these invasive measures, plaintiff’s pain persisted. Dr. Olivieri issued a physician’s certification pursuant to AICRA for plaintiff’s lawsuit. Orthopedic surgeon: Plaintiff also treated with Dr. Zerbo. On Jan. 11, 2002, the doctor reported to the chiropractor that Dr. Margate’s reading of plaintiff’s MRI (see below) had been incorrect, in that he had missed a herniated lumbar disc at L4-5 on the right. The surgeon opined that the subject automobile accident had caused lumbar sprain and strain with lumbar radiculopathy and underlying lumbar disc disease with lumbar disc herniation at L4-5. On May 8, 2002, Dr. Zerbo noted that plaintiff had undergone a second epidural block and was waiting for a third. He noted that plaintiff continued to work, but was suffering back pain on a regular basis. Plaintiff was last seen by the surgeon on Aug. 12, 2002 for back pain and intermittent leg pain, which had been treated with cortisone shots. Neurologist: On Aug. 5, 2002 plaintiff consulted Dr. Glass, presenting with low back pain, right lumbosacral radiculopathy and bulging disc annuli at L2-3 and L5-S1. On Dec. 4, 2002, Dr. Glass issued an AICRA physician’s certification that plaintiff had suffered a permanent injury as a result of the subject motor vehicle accident. On Apr. 16, 2003, Dr. Glass issued a narrative report indicating that plaintiff suffered from post-traumatic low back pain with right lumbosacral radiculopathy. He noted that the initial MRI of plaintiff’s lumbosacral spine revealed discogenic bulges at L2-3 and L4-5, and that a follow up MRI revealed bulging disc annuli and multilevel spondylosis with resultant multilevel lumbar spinal stenosis, compounded by epidural lipomatosis. Based upon these abnormalities, the doctor identified plaintiff as a candidate for surgery, specifically decompressive lumbar laminectomy, which he said plaintiff was considering. The prognosis was “quite guarded.” Dr. Glass attributed plaintiff’s symptomatology to the subject accident. After defendant’s motion for summary judgment was granted, Dr. Glass re-evaluated plaintiff at plaintiff’s counsel’s request, and issued a supplemental report. He noted that plaintiff was continuing to suffer unremitting lower back pain with right lower extremity radiation. His diagnostic impression remained “post-traumatic low back pain with right lumbosacral radiculopathy.” While Dr. Glass opined that he did not believe the findings on the MRI were degenerative in nature, he noted the reports of the degenerative aspects of plaintiff’s medical tests, and opined that many patients of plaintiff’s age (36) with similar degenerative findings could potentially be asymptomatic, as was plaintiff before the accident; however, plaintiff was rendered symptomatic immediately following the subject accident. Therefore, the doctor concluded that, within a reasonable degree of medical probability, the accident caused plaintiff’s symptomatology. Since it had been three years since the accident, the doctor stated that he believed plaintiff would continue to suffer, that his injuries were permanent, and that they would not heal with further medical treatment. Pain management specialist: Although plaintiff’s treatment is not detailed, he did see Dr. Singh, who also issued an AICRA physician’s certification on plaintiff’s behalf. Defense examination: Dr. Weiand, an orthopedist, examined plaintiff for the defense and, not surprisingly, his findings differed from those of plaintiff’s doctors. He opined that the abnormal lumbar MRI findings were pre-existing and reflected degenerative changes unrelated to the motor vehicle accident. Radiology: On Dec. 21, 2001, a lumbar MRI examination was performed. The radiologist, Dr. Margate, reported to the chiropractor that plaintiff’s disc spaces showed a loss of signal at L2-3, and L4-5 due to desiccation. There was associated disc bulging at those same levels, both slightly indenting the thecal sac. A second lumbar MRI was performed on June 7, 2002. Dr. Margate reported that it still showed desiccated and bulging discs at L2-3 and L4-5; and that there was no change compared to the prior MRI. A third MRI was performed of plaintiff’s lumbar spine on Feb. 22, 2003. The radiologist, Dr. Patel, found constitutional spinal stenosis compounded by proliferation of epidural fat. More significant spinal stenosis secondary to “disc/osteophyte complex” at the L2-3 and L4-5 levels. Prior Injuries: None, but the defense physician found that plaintiff’s medical tests revealed degenerative changes. Serious Impact on Plaintiff’s Life: not detailed except to note that, at the time of the accident, plaintiff was employed as a cook, and continued to work, although in pain. Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): Detailed discussion of the term “guarded prognosis” and what it meant to plaintiff’s proofs of permanency. Trial Court Determination(s): The motion judge reviewed plaintiff’s medical evidence, but concluded that he had not offered any objective credible medical proof that indicated that plaintiff’s injuries were permanent in nature. He cited Dr.Glass’s prognosis of “quite guarded” and noted that this did not equate to a finding of permanence. Thus, the judge concluded that plaintiff had not satisfied the first prong of the Oswin test. He also found that plaintiff had proved neither that his injuries were serious, nor that they had had a serious impact on his life as required by Oswin’s second prong. Summary judgment granted to defendant. Based upon a re-evaluation and supplemental report by Dr. Glass, plaintiff moved for reconsideration. The motion judge denied this application, concluding that any information used by Dr. Glass to form his supplemental opinion had been available before the filing of the initial motion. Appellate Court Determination(s): Reversed. Citing DiProspero and Serrano, the appellate panel quickly dispatched the motion judge’s conclusions that plaintiff’s injuries were neither serious nor had a serious impact on his life, and considered only whether the record showed the presence of a genuine issue of material fact as to whether plaintiff suffered a permanent injury resulting from the accident. The panel felt that the motion judge had viewed the record on the permanent injury issue too narrowly, unduly seizing upon the “guarded prognosis” phraseology in Dr. Glass’s report, while overlooking additional proofs in the record indicative of permanency. While “guarded prognosis” was not a synonym for a permanent condition, it likewise did not necessarily equate to a temporary condition, for the term envisioned that the patient might well have persisting complaints that should be medically monitored. The panel reviewed the reported case law, which was not uniform in holding that a plaintiff whose physicians have described his or her post-accident injury status as “guarded” cannot surmount the verbal threshold. The judges concluded that the term was not dispositive either way in creating a triable issue of permanency. Instead, where such an indefinite phrase was used by a plaintiff’s doctor, they held that the motion judge should look at the remainder of the medical record to assess whether genuine questions of permanent existed. In this case, the appellate panel concluded that the record was replete with indicia, beyond the “quite guarded” long-term prognosis expressed by Dr. Glass, that plaintiff’s post-accident injuries would not heal to function normally. Despite invasive epidural blocks and a nerve root block, plaintiff continued to have significant lower back pain and continued to seek medical assistance for his condition more than seventeen months after the accident. His objective signs of injury persisted, including recurrent lumbar spasm detected by Dr. Glass in August 2002, and multiple disc bulges shown on the most recent MRI studies, one of which had indented the thecal sac. Moreover, the doctors had suggested, and plaintiff was considering, lumbar surgery. Finally, the panel noted that plaintiff had timely submitted three physician’s certification of permanency which, while not in and of themselves sufficient to withstand a verbal threshold summary judgment motion, did supply useful clarification that plaintiff’s physicians believed that his injuries were indeed permanent when read in conjunction with the neurologist’s narrative report highlighting plaintiff’s objective abnormalities and unremitting symptoms. The panel felt no need to address the substance of Dr. Glass’s supplemental certification, as it felt the original record contained sufficient evidence of permanency to allow plaintiff’s case to proceed. 21. Pereira v. Roberts, A-4574-04T3 DDS No. 23-2-2914 Judges Stern, Grall and Miniman Feb. 14, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of two automobile accidents on Jan. 7, 2002, and October 17, 2002. Medical Testing and Treatment: Chiropractor: Following the January 2002 accident, plaintiff treated initially with a chiropractor, who ordered MRI examinations and also discussed results of BAER and EMG examinations ordered by plaintiff’s neurologist (see below). The chiropractor continued to treat plaintiff until and following the October 2002 accident, and found new signs and symptoms. After reviewing the objective testing, he stated in his report that, compared to the earlier studies, plaintiff’s carpal tunnel syndrome had worsened. Neurologist: Plaintiff saw Dr. Haidri on May 16, 2002, and she advised him that she had been under medical care for the neck, back and right knee injuries she sustained in her 1997 accident. She stated that her residual neck, left arm and low back pain had been aggravated markedly by the January 2002 accident. Dr. Haidri’s physical examination revealed positive Tinel’s signs over the median nerve at both wrists. He ordered BAER and EMG examinations of both arms and the right leg, which apparently revealed findings compatible with bilateral carpal tunnel syndrome. Plaintiff was still treating with the neurologist at the time of the October 2002 accident, and continued to treat with him thereafter. He also noted new signs and symptoms after the second accident. On March 18, 2003, Dr. Haidri examined plaintiff and found decreased grip strength in both hands, as well as decreased pinprick in median distribution of the right hand and ulnar distribution of the left hand. Tinel’s sign was positive over the median nerve at both wrists and there was tenderness over both ulnar nerves at the elbow. Dr. Haidri again ordered BAER and EMG tests of both arms and now the left leg, rather than the right. He continued to find the presence of lumbar paravertebral muscle spasm on June 6, 2003, and June 17, 2003, when these tests were performed. The NCV revealed a mild left lower lumbar radiculopathy at L5 and also confirmed bilateral carpal tunnel syndrome and revealed left ulnar neuropathy at the elbow. In his final report dated Aug. 21, 2003, the doctor diagnosed “post-concussion syndrome; post-traumatic headaches, dizziness, tinnitus, hearing loss, and neurosis; chronic cervical, dorsal and lumbar sprain; bilateral carpal tunnel syndrome; left ulnar neuropathy at the elbow, mild left lower lumbar L5 radiculopathy; degenerative disc disease at T12-L1; and bilateral facet hypertrophy at L4-5 and L5-S1.” He ascribed all of plaintiff’s symptoms and his diagnoses to the accident of October 2002, but noted that plaintiff had pre-existing symptoms, including bilateral carpal tunnel syndrome, from the January 2002 accident, which were aggravated by the second accident. He noted that new findings were the left ulnar neuropathy and the L5 radiculopathy. Finally, Dr. Haidri opined that all of plaintiff’s injuries were permanent. Radiology: Lumbar MRI examination on Feb. 4, 2002, revealed degenerative disc changes at T12-L1 and bilateral facet hypertrophy at L4-5 and L5-S1. Cervical MRI on March 25, 2002, revealed slight posterior spondylitic ridging at C4-5 and straightening of the cervical spine. Neurologist ordered BAER and EMG examinations of both arms and the right leg after the January 2002 accident, and while the results were not in the record, the tests were discussed by the chiropractor in his report, who indicated that revealed positive findings compatible with bilateral carpal tunnel syndrome. After the October 2002 accident, Dr. Haidri again ordered BAER and EMG tests of both arms and now the left leg, rather than the right. He continued to find the presence of lumbar paravertebral muscle spasm on June 6, 2003, and June 17, 2003, when these tests were performed. The NCV revealed a mild left lower lumbar radiculopathy at L5 and also confirmed bilateral carpal tunnel syndrome and revealed left ulnar neuropathy at the elbow. Prior Injuries: Plaintiff was involved in an accident in 1997 in which she injured her neck, back, and right knee. MRI’s performed on May 3, 1997, revealed mild bulging of the annuli at C4-5 and C5-6, and at the right posterior aspect of C6-7 with straightening of the cervical curvature. There were also bulging annuli at T8-9, L4-5 and L5-S1. None of the bulging annuli compressed the spinal cord, the dura, or any nerve roots. The record did not disclose any other objective evidence of injury from this accident. Serious Impact on Plaintiff’s Life: not discussed. Physician’s certification: No issue Polk analysis: One of two main issues. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge found that plaintiff failed to present objective medical evidence of permanent injury caused by both 2002 accidents, and also failed to provide a comparative analysis of the residuals from her 1997 accident and the injuries suffered in the accidents at issue, as required by Polk. Summary judgment was granted to defendant. Appellate Court Determination(s): Reversed. The appellate panel concluded that plaintiff presented sufficient objective clinical evidence to survive a summary judgment motion, as well as adequate evidence of an aggravation of pre-existing injuries under Polk. The panel could not understand the basis of the trial court’s conclusion that there was no objective medical evidence, and cited the multiple MRI studies on which plaintiff’s experts relied in opining that her pre-existing condition was worsened by the 2002 accidents. Carpal tunnel syndrome, a new injury insofar as the 1997 accident was concerned, was corroborated by nerve conduction studies performed after the January 2002 accident, and was worse after the October 2002 accident. Palpable muscle spasms were noted on Jan. 10, 2002, and thereafter, which corroborated the corresponding limitations in plaintiff’s range of motion. There were multiple positive orthopedic tests, which are objective clinical evidence on which physicians rely because they do not depend solely on the patient’s subjective response. In addition, plaintiff submitted the opinion of her treating physicians that she had suffered permanent injuries as a result of both 2002 accidents and Dr. Haidri so certified. The panel noted that this was all that was required to pass a case over the AICRA threshold to a jury trial. Next, addressing whether plaintiff was required to submit a Polk comparative analysis in order to avoid summary judgment, the panel discussed the developing case law on this disputed issue, pointing out the Davidson court holding that the comparative analysis was an element of causation for trial, and not necessary to survive a summary judgment motion. Also, in Hardison v. King, the appellate court had held that Polk should never have been extended to cases where the plaintiff did not claim an aggravation of a pre-existing injury or condition. The plaintiff here claimed that some of her injuries from the 1997 accident were aggravated by the January 2002 accident, and also that she had sustained new injuries in that accident. She also claimed that some injuries from the 1997 accident and the January 2002 accident were aggravated by the October 2002 accident, and that she also sustained new injuries in the October 2002 accident. Her neurologist relied on the results of neurological testing in concluding that she had suffered a new carpal tunnel injury in the January 2002 accident which was aggravated by the October 2002 accident. The appellate panel held that no more proof than that was required by Polk. In light of Davidson and Hardison, plaintiff was no longer required to provide any comparison where she did not claim an aggravation. With respect to aggravations other than carpal tunnel syndrome, plaintiff was required to prove her claims at trial through expert opinion based on objective medical evidence. Otherwise, the issue of whether a pre-existing condition was aggravated was a straight causation issue under case law. 22. Meaney v. Wichrowski, A-2427-04T3 DDS No. 23-2-2955 Judges Conley and Weissbard Feb. 17, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on May 11, 2001. Medical Testing and Treatment: Complaints: Plaintiff complained to his doctor of lower back, neck, left shoulder and left arm pain. His doctor, Dr. Ponzio, noted that plaintiff’s prior lower back condition had been exacerbated by the subject accident. Radiology: An MRI examination of plaintiff’s lumbar spine taken after the accident on June 27, 2001, showed no significant change from the MRI taken two months before the subject accident (see below). Prior Injuries: Plaintiff had been diagnosed with injuries to his lumbar spine, degenerative disease and L5-S1 herniated nucleus pulposus with multiple bulges and radiculopathy. An MRI performed on March 14, 2001, two months before the subject accident, confirmed these conditions. Serious Impact on Plaintiff’s Life: Work History and Impact: At the time of the accident, plaintiff was a priest. He was on light duty for six weeks post-accident, and then returned to his normal duties, albeit with pain. Plaintiff is unable to: do house repairs for his parishioners as he used to do. Plaintiff claims difficulty with: performing communion, visiting hospitals and nursing homes, and riding his bicycle as much as he did before. Physician’s certification: No issue Polk analysis: One of the two major reasons the motion judge granted summary judgment to the defendant was plaintiff’s failure to provide a comparative analysis, as required by Polk. The appellate panel found the Polk requirement no longer survived after DiProspero and Serrano, at least with respect to what a plaintiff was required to show to survive summary judgment. Miscellaneous Issue(s): None Trial Court Determination(s): Although plaintiff’s doctor alleged that plaintiff’s lumbar condition had been exacerbated by the subject accident, the judge noted that the post-accident MRI showed no significant change in his lumbar spine. He found plaintiff’s failure to provide a comparative analysis of his pre-and post-accident residuals, through objective medical evidence, fatal to his claim. The doctor’s claim without the objective evidence was insufficient. Additionally, the motion judge found that plaintiff had not proved a serious impact on his life as a result of the injuries he sustained in the accident. Appellate Court Determination(s): Reversed. The panel concluded that neither of the grounds articulated by the motion judge could support summary judgment. First, the serious impact requirement was eliminated by the Supreme Court in DiProspero v. Penn. Second, the appellate court had recently concluded that the Polk requirement for a comparative analysis in cases where a plaintiff had sustained similar prior injuries likewise does not survive. A comparative analysis of present and former injuries remained part of the causation analysis to be presented at trial, not to withstand a motion for summary judgment. 23. Stefano v. Szalay, A-4549-04T5 DDS No. 23-2-2956 Judges Hoens and Seltzer Feb. 17, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on Nov. 21, 2001. Medical Testing and Treatment: not detailed. Serious Impact on Plaintiff’s Life: not detailed, but the trial judge found that plaintiff’s proofs did not show that the accident had resulted in injuries which had a significant impact on his life. Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Plaintiff failed to establish through objective medical evidence that the accident resulted in injuries that caused a serious impact on his life. Summary judgment granted to defendant. Appellate Court Determination(s): Reversed. Because the complaint was dismissed for plaintiff’s failure to provide proofs that were no longer required after DiProspero and Serrano, the dismissal had to be reversed and the matter remanded to the trial court. The defendants, attempting to have the summary judgment stand because plaintiff had failed to show, by objective medical evidence, a permanent injury within a reasonable degree of medical probability, argued that the trial judge did not address plaintiff’s proofs in this regard. Defendants sought to have the appellate panel exercise its original jurisdiction to evaluate plaintiff’s medical proofs. The panel declined to do so, however. Although the trial judge’s focus had been on the subjective prong of the prior verbal threshold test, the panel felt that she had, in fact, considered plaintiff’s evidence of permanent injury in her preliminary opinion, where she reviewed the conflicting evidence respecting plaintiff’s injuries and concluded that plaintiff’s proofs were sufficient to withstand the motion insofar as the first prong of the verbal threshold test. On a motion for reconsideration, she repeated her view that the “first prong was met.” On remand, however, the panel noted that defendants were free to ask the judge for clarification, by was of a reconsideration motion, of her determination on this issue. 24. Couch v. Poole, A-6976-03T1 DDS No. 23-2-3017 Judges Parrillo and Gilroy Feb. 24, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on June 2, 2001, when plaintiff’s vehicle was rear-ended by defendant’s vehicle. The 44-year-old plaintiff was transported to the emergency room. Medical Testing and Treatment: Emergency Room: Plaintiff presented with complaints of pain in his neck and shoulders. He was discharged with a diagnosis of cervical strain. Family physician: Three days after the accident, plaintiff went to his family physician, Dr. Choi, complaining of the same pains as he did in the emergency room. Plaintiff remained under Dr. Choi’s care for several months, during which time his pain and soreness actually increased, and he developed a sensitivity to touch and a tingling sensation in his upper and middle back. Orthopedic surgeon: On Aug. 20, 2001, Dr. Marchetto examined plaintiff and found extreme hypersensitivity over both shoulders and plaintiff’s upper back. He referred plaintiff to a physiatrist for an evaluation and possible EMG and nerve conduction studies. Physiatrist: After his initial examination of plaintiff, Dr. Murphy recommended a cervical MRI to rule out disc disease, stenosis and spondylosis, as well as an EMG of the cervical spine and upper extremities to rule out radiculopathy (see below). Treating physician: Plaintiff began seeing Dr. Tassone on June 10, 2002, and remained under her care until 2004. The doctor’s initial impression was that plaintiff suffered from upper back pain with sensitivity throughout the dorsal spine, and had a history of cervical sprain and shoulder pain. He had developed a chronic pain-like syndrome associated with nerve sensitivity of the cutaneous fibers of the shoulder muscle regions. She prescribed several pain medications, referred plaintiff for further EMG and MRI tests, and recommended that he see a neurologist. On June 17, 2003, Dr. Tassone executed an AICRA physician’s certification in which she opined that plaintiff had suffered a permanent injury to his dorsal spine (primarily in the thoracic area) that had not healed to function normally, and would not heal to function normally with further medical treatment. Although the certification only referenced her clinical findings, it was clear from her treating records that she had seen and considered the MRI and EMG examination reports. Neurologist: Plaintiff was examined by Dr. DeAntonio on June 26, 2003. The doctor described the examination as “abnormal” after finding that plaintiff had “an extreme reaction to light touch and to pin at the lateral aspect of [his] back on both sides and running from about C8 down to about L5.” The neurologist diagnosed plaintiff with neuralgia, cervical radiculopathy and disc disease and rotator cuff tear. Chiropractor: Plaintiff was still receiving chiropractic treatment at the time of the subject accident for injuries sustained in a prior fall (see below). His chiropractor, Dr. Stefanou, opined that the shoulder injuries had increased significantly after the subject car accident. He opined that plaintiff suffered tendinosis with partial tears of the tendons in both shoulders, and that the injuries were causally related to the June 2, 2001, accident. Radiology: On June 29, 2001, plaintiff underwent an MRI examination of both shoulders. The report disclosed tendinosis in both shoulders, and focal partial tears at the cortical zones of the supraspinatus tendons bilaterally, together with possible partial tears of the right infraspinatous tendon and the left anterior glenoid labrum. The cervical MRI recommended by the physiatrist was conducted on Oct. 9, 2001, and revealed several bulging discs at C5-6 and C6-7, with underlying osteoarthritis and spondolytic ridging. There was no evidence of acute disc herniation. On Nov. 2, 2001, plaintiff underwent an EMG, which was interpreted as an abnormal study consistent with bilateral C6-7 nerve root irritation, more prominent on the left of a moderate severity sub-acute in nature. Plaintiff underwent a second EMG and an MRI of the thoracic and lumbar spine while under the care of Dr. Tassone. The EMG was positive, disclosing some mild delays in the sensory studies to the left hand in the median ulnar distribution. The spinal MRI’s disclosed degenerative changes in both the thoracic and lumbar areas. Prior Injuries: On March 17, 2000, plaintiff fell and sustained injuries to his neck, back and shoulders, for which he was still receiving chiropractic treatment at the time of the subject accident. His chiropractor, Dr. Stefanou, opined that the shoulder injuries had increased significantly after the car accident. He opined that plaintiff suffered tendinosis with partial tears of the tendons in both shoulders, and that these injuries were causally related to the June 2, 2001, accident. Serious Impact on Plaintiff’s Life: not detailed, although the motion judge found that plaintiff had failed to make the required showing. Physician’s certification: No issue Polk analysis: Not addressed by the motion judge, but raised by the defendant on plaintiff’s appeal. The appellate panel found that plaintiff’s proofs sufficed to meet the Polk requirement. Miscellaneous Issue(s): None Trial Court Determination(s): Applying the two-pronged Oswin test, the motion judge found that plaintiff had failed to demonstrate, by objective medical evidence, that he sustained a qualifying injury as defined in the verbal threshold statute, and, subjectively, that the injury had a serious impact on his life. Summary judgment was granted to defendant. Appellate Court Determination(s): Reversed. The panel noted the abrogation of the serious impact requirement under DiProspero and Serrano, and proceeded to analyze plaintiff’s proofs of a qualifying injury. Finding them sufficient on the issue to withstand defendant’s summary judgment motion, the panel reversed the grant of summary judgment and remanded plaintiff’s case for trial. The panel cited the June 29, 2001, MRIs of both shoulders, which disclosed partial tendon tears, and noted Dr. Stefanou’s opinion that these injuries were causally related to the automobile accident, and were permanent in nature. EMG studies were abnormal, and Dr. Murphy diagnosed bulging discs at C6-7. Lastly, Dr. Tassone had diagnosed plaintiff with a chronic pain-like syndrome associated with nerve sensitivity of the cutaneous fibers of the shoulder muscle regions, which lasted from the time of the accident through March, 2004. She also certified that this condition was permanent. The panel finally addressed defendant’s alternative argument that, even if plaintiff were found to have presented objective medical evidence of a qualifying injury under AICRA, his appeal should nevertheless be denied because he did not come forward with a proper Polk comparative analysis to distinguish the injuries suffered in the subject automobile accident from the injuries suffered in his fall in March of 2000. Defendant argued that the analysis presented by Dr. Stefanou was inadequate because it was not premised on the type of objective medical proofs required by Polk. The appellate panel recognized the divergence of opinion among different appellate panels concerning the continuing viability of the Polk requirement after AICRA. In this case, however, the panel felt that it did not need to reach the issue, because it determined that Dr. Stefanou’s report satisfied the comparative analysis requirement of Polk. The chiropractor had treated plaintiff for the injuries he sustained in the slip and fall in March of 2000, and had examined plaintiff on March 19, 2004, well after the subject automobile accident. He had compared the medical records from his prior treatment of plaintiff for the slip and fall, which treatment had only lasted a couple of months, to plaintiff’s records of treatment and residuals from the subject automobile accident. After making the comparative study, he opined that plaintiff’s current trauma was more serious than the first, which only affected the right shoulder, but now included the added feature of the left shoulder. He also stated that these new injuries most certainly affected plaintiff’s functional capabilities, and were chronic and permanent in nature. The appellate panel was satisfied that this report was sufficient to meet plaintiff’s burden to withstand defendant’s summary judgment motion. 25. Bethea-Rogers v. Mycoff, A-0574-05T3 DDS No. 23-2-3018 Judges Stern, Fall and Grall Feb. 24, 2006 Result: Order vacating summary judgment in favor of defendant and reinstating plaintiff’s complaint is affirmed. Facts/Background: not detailed. Medical Testing and Treatment: not detailed, but trial judge’s opinion seems to indicate that he felt plaintiff’s proofs in this regard were sufficient to be presented to a jury. Serious Impact on Plaintiff’s Life: not detailed, although plaintiff’s failure to prove a serious impact on her life was the basis for the trial judge’s dismissal of her complaint. Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): Procedural issue as to whether plaintiff was entitled to relief from judgment in light of DiProspero and Serrano, notwithstanding that she had not filed a timely appeal or motion for reconsideration after dismissal of her case, and it was therefore not in the “pipeline” for retroactive application of the DiProspero and Serrano decisions. Trial Court Determination(s): Summary judgment was granted to defendant based on plaintiff’s failure to prove a serious impact on her life. Although DiProspero and Serrano were decided just seventeen days after the trial court’s oral decision in this case on May 27, 2005, and three days before defendant mailed the order to plaintiff’s counsel, plaintiff did not file a motion for reconsideration within 20 days after the order was served, as required by R. 4:49-2, nor did she file a notice of appeal within 45 days of the entry of the order. However, on July 19, 2005, plaintiff filed a notice of motion for reconsideration in light of DiProspero and Serrano. At oral argument on the motion, plaintiff’s counsel acknowledged that the motion was not timely, and therefore the case was not subject to “pipeline retroactivity” as defined by Beltran v. DeLima. However, plaintiff’s counsel asserted that his mistake was in couching the motion as one for reconsideration, as it was more properly a motion for relief from judgment pursuant to R. 4:50-1. The trial judge noted that plaintiff’s counsel should have filed a direct appeal, but after weighing all the circumstances, he felt that plaintiff’s claims should be re-examined in light of DiProspero and Serrano, and exercised his discretion to reopen the judgment pursuant to R. 4:50-1. Appellate Court Determination(s): Affirmed. The appellate panel noted that plaintiff could have filed a direct appeal from the grant of summary judgment when DiProspero and Serrano were decided. Moreover, if she had sought to file an appeal nunc pro tunc within 75 days after the judgment, it would have undoubtedly been granted in light of the intervening precedent. Hence, if she had filed a direct appeal, the case would have been in the pipeline for retroactive application of DiProspero and Serrano. The appellate panel did not feel it necessary to revisit at length the jurisprudence with respect to R. 4:50-1 motions. The panel felt it sufficient to hold that it found no abuse of discretion by the motion judge in granting such relief and vacating the judgment under the unique circumstances presented, where the application for relief was made within one month of receipt of the judgment and approximately a month after DiProspero and Serrano were decided. The panel found it significant that the motion was filed within the time a direct appeal � which would have required reversal, since the basis for the trial judge’s grant of summary judgment to the defendant was plaintiff’s failure to meet the now-abrogated “serious impact” prong of the verbal threshold test � could have been successfully filed. Therefore, the panel felt that this case could be treated as if it were in the pipeline when the motion to vacate the judgment was filed. Reinstatement of plaintiff’s complaint was appropriate. 26. Piascik v. Marr, A-2270-04T1 DDS No. 23-2-3031A Judges Lintner and Parrillo Feb. 27, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on Sept. 6, 2002, when plaintiff’s vehicle was rear-ended by a Chevy Trail Blazer driven by defendant Marr, in the course of her employment as an associate veterinarian with defendant Midatlantic Equine Medical Center. The 50-year-old plaintiff claimed injury to her neck and lower back in the accident. Medical Testing and Treatment: Orthopedist: After the accident, plaintiff sought treatment with Dr. Collalto, and was still under his care at the time of the appeal. Her treatment at first included intensive physical therapy; however, because the severe back pain persisted, she underwent right L4, L5 facet injections with flouroscopy on Aug. 21, 2003, and on Jan. 29, 2004. While the steroid injections provided some relief to plaintiff’s lower back, the orthopedist opined that, within a reasonable degree of medical probability, plaintiff would require surgical intervention in the future, and quite possibly a lumbar fusion. Based on the diagnostic testing (see below) and his physical examination of plaintiff, the orthopedist opined that plaintiff’s lower back and cervical injuries were permanent and the result of the subject motor vehicle accident. Radiology: A lumbar MRI examination was performed on March 24, 2003. It revealed degenerative changes, as well as a disc bulge at L4-5 with partial effacement of the anterior epidural fat and encroachment of the neuroforamen. Prior Injuries: While the MRI showed degenerative changes in plaintiff’s lumbar spine, she had never injured her back before, had no previous history of problems with her spine, and was asymptomatic prior to the subject accident. Serious Impact on Plaintiff’s Life: not detailed. Physician’s certification: No issue Polk analysis: Plaintiff’s proofs found deficient by the motion judge, but sufficient by the Appellate Division. Miscellaneous Issue(s): Plaintiff argued that defendants were not entitled to the verbal threshold defense because their vehicle was not an “automobile” as defined by N.J.S.A. 39:6A-2. The motion judge rejected this contention, noting that the vehicle was used for passenger transportation and, while its interior was longer than a sedan’s, it had one or more seats, which could be readily lifted out or folded to facilitate light trucking. It had no separate luggage compartment, and often had an adjustable rear window and a tailgate. As such the judge found that the Chevy Trailblazer sports utility vehicle was a station wagon-type vehicle, rather than a vehicle with a pickup body, a delivery sedan, a van, or a panel truck. The verbal threshold defense was therefore available to the defendants. The Appellate Division ultimately agreed with the motion judge’s analysis of this preliminary issue. Trial Court Determination(s): The motion judge granted summary judgment to the defendant, concluding that plaintiff had failed to establish a permanent injury by objective evidence. He found that a single bulging disc in isolation was not sufficient objective, credible medical evidence of a permanent injury. The judge also noted that, since plaintiff’s orthopedist had suggested that plaintiff’s degenerative condition was likely aggravated by the subject accident, her failure to provide a comparative analysis, as required by Polk, also required dismissal of her complaint. Appellate Court Determination(s): Reversed, the appellate panel disagreeing both with the motion judge’s finding of no evidence of a qualifying injury and his determination of the need for a Polk analysis. As to the proofs of qualifying injury, the panel was satisfied that the objective medical evidence in this case, including the MRI test and the physician’s physical examinations and resulting findings, raised a genuine issue of material fact as to whether the subject automobile accident caused injuries to plaintiff’s lower back and neck which had not healed to function normally and would not heal to function normally. As for the comparative analysis issue, this panel adhered to the Davidson holding that the Polk requirement had no continuing viability in the context of a verbal threshold summary judgment motion after AICRA. However, even if Polk did remain viable, the appellate panel concluded that no comparative analysis was necessary in this case. According to the undisputed medical evidence, whatever the nature and extent of plaintiff’s pre-existing condition, her symptoms had been functionally quiescent until the accident; she had had no episodes of pain or other problems until then. Under these circumstances, the panel concluded that no comparative analysis was necessary, as plaintiff’s proofs, without more, met “the desideratum of an objectively-based medical opinion that the disability [was] fairly attributable to the injury suffered in the accident” at issue, sufficient at least to withstand defendants’ motion for summary judgment. Of course, causation then became a question of fact for the jury to decide. 27. Jaslinski v. Diallo, A-2702-04T1 DDS No. 23-2-3123 Judges Fisher and Humphreys March 7, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on April 1, 2000, when the 80-year-old plaintiff’s vehicle was struck by defendant’s vehicle. He claimed injury to his lower back and damage to his left arm, as well as various cuts, contusions and abrasions. Medical Testing and Treatment: Emergency Room: Plaintiff presented on the day of the accident, but there are no details provided of his visit. Treating physician: Three days later plaintiff sought treatment with his family physician, Dr. Pirog, who had treated him for years. The doctor acknowledged that, prior to the subject accident, plaintiff had a pre-existing bulging disc, degenerative disc disease and spondylosis. However, despite plaintiff’s pre-existing condition, the doctor noted that he had been very active prior to the accident and his symptoms were mild. In a report dated Sept. 21, 2000, Dr. Pirog opined that the subject accident had certainly aggravated plaintiff’s bulging disc. He indicated that his findings were based on plaintiff’s subjective complaints of increased levels of pain. There was, however, no discussion of plaintiff’s prior medical records or any other objective findings. In addition to the bulging disc and pain, the doctor also noted findings of limitation of motion and spasm; however, the spasm was not reported again beyond the initial Sept. 2000 report. The doctor stated in a 2004 report that plaintiff continued to suffer from his previous injuries as mentioned in earlier reports. In a report dated Dec. 9, 2004, plaintiff’s expert opined that 80 percent of plaintiff’s present complaints were brought about by the subject accident and 20 percent by a subsequent accident on Nov. 24, 2003. The doctor issued a physician’s certification for plaintiff’s lawsuit, stating that he sustained the following injuries in the accident: chronic back syndrome; radiculopathy into lower extremities; and aggravation of previously asymptomatic bulging discs at L2-3, L3-4 and L4-5, with spinal stenosis; aggravation of DJD and spondylosis. He opined that these injuries were permanent and that his findings were based on objective clinical evidence, including X-rays and an MRI examination. Radiology: On June 9, 2000, plaintiff underwent an MRI examination which revealed minimal disc bulge without significant central or foraminal stenosis at T11-12; no evidence of herniation at T12-L1 and L1-2; broad-based disc bulge at L2-3, L3-4 and L4-5; no evidence of disc herniation at L5-S1; and partially sacralized transitional vertebra at L5. Prior and subsequent injuries: Plaintiff had been injured as a result of three prior accidents in 1978, 1986 and 1992. After the 1978 accident, Dr. Pirog testified that plaintiff complained of “hurting all over” on examination, but his primary injuries were to the neck and right foreleg. After the 1986 accident, Dr. Pirog noted that plaintiff had point tenderness of the neck, limitation of motion to the left and some pain in the lower back. After the 1992 accident, plaintiff’s complaints related mainly to his neck, and not his lower back. He was put in cervical traction. In October of 1997, Dr. Pirog testified that he examined plaintiff, who was complaining of back pain in general. At that time, the doctor attributed plaintiff’s back pain to arthritis. Plaintiff again complained of back pain in January of 1998, which the doctor attributed to either a prostate problem or arthritis. The doctor testified at his deposition that, by the time of the subject accident in 2000, plaintiff’s back “wasn’t bothering him much.” Plaintiff was also injured in a subsequent automobile accident on Nov. 24, 2003. In a report dated Dec. 9, 2004, Dr. Pirog opined that 80 percent of plaintiff’s present complaints were brought about by the subject accident, and 20 percent by the Nov. 24, 2003, accident. Serious Impact on Plaintiff’s Life: not detailed. Physician’s certification: No issue Polk analysis: Major issue. Miscellaneous Issue(s): None Trial Court Determination(s): The trial judge granted summary judgment to the defendant, concluding that plaintiff had failed to vault the verbal threshold, specifically noting his failure to provide an adequate Polk comparative analysis. She determined that the opinion of plaintiff’s expert � that 80 percent of plaintiff’s present complaints were brought about by the subject accident and 20 percent by the Nov. 24, 2003 accident � was a net opinion that could not defeat defendant’s summary judgment motion because the expert provided no explanation for this allocation except plaintiff’s subjective complaints, and made no reference to plaintiff’s earlier accidents and degenerative condition. Appellate Court Determination(s): Reversed, the panel concluding that plaintiff’s proofs demonstrated a permanent injury, and that, if Polk still remained viable after AICRA, he sufficiently distinguished the injuries in question from other prior injuries and pre-existing conditions. The panel also held that plaintiff’s expert’s analysis of the impact caused by the subsequent accident was not a net opinion. The panel noted that the Supreme Court’s recent construction of the verbal threshold statute demonstrated that it was not permissible, when applying the standards governing summary judgment, for trial courts to adopt a view of permanency that differed from those expressed by the medical experts. In addition, whether the trial court believed that such an injury was not serious or did not have a serious impact was also irrelevant. The fact that a plaintiff’s medical expert had sworn to the permanency of his injuries was sufficient to rebut, for summary judgment purposes, the defendant’s contention that plaintiff failed to allege an injury of the type delineated in the statute. With respect to the Polk issue, the appellate panel noted the dispute among the appellate courts with respect to the continued viability of Polk in the wake of DiProspero and Serrano. The panel here found that it did not need to enter the controversy, particularly since the Supreme Court appeared poised to soon decide that issue in Davidson. Moreover, the panel’s view on the controversy would not matter in this case. If Polk were found to have no continuing viability, then the summary judgment granted on that basis would have to be reversed. If Polk were found to still apply, then the panel concluded that plaintiff’s proofs were sufficient to meet its requirements. The appellate panel noted the significance of the passage of time between plaintiff’s prior three accidents and the subject accident. The most recent of the prior accidents was eight years before the subject accident. The panel also noted that, in the present matter, plaintiff complained of and sought damage for injuries to his lower back. A review of plaintiff’s past medical history demonstrated that lower back problems were not a chief concern; rather, plaintiff sustained mostly neck injuries in the prior accidents. Even if Polk were still viable, the panel noted that it did not require a plaintiff to provide a comparison of pre-existing injuries to bodily areas not in question with those bodily areas affected by the subject accident. Although plaintiff had complained of back pain to his doctor in the past, those complaints were deemed attributable to arthritis or prostate problems. Considering the proofs in the light most favorable to plaintiff for summary judgment purposes, the panel found that a sufficient comparative analysis under the circumstances was presented by Dr. Pirog’s opinion that plaintiff had been asymptomatic with respect to his back at the time of the subject automobile accident. Thus, even if Polk remained viable, the summary judgment could not stand. As to the trial judge’s conclusion that Dr. Pirog’s opinion allocating percentages of plaintiff’s residuals, 80 percent to the subject accident and 20 percent to the subsequent accident, was a net opinion, the appellate panel rejected this conclusion. An opinion was not net if the expert gave the “why and the wherefore” and not simply a conclusion without foundation. Although the doctor’s Dec. 2004 report could be criticized for its brevity, the report did reference his prior reports, asserted that the opinions were based upon the doctor’s past and present examinations of plaintiff, and, thus, incorporated the “why and wherefore” of his conclusions. 28. Oliver v. Roberts, A-6083-04T1 DDS No. 23-2-3141 Judges Coburn, Collester and Lisa Feb. 14, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on Jan. 23, 2001. After the collision, plaintiff told the police that he did not need medical assistance. Medical Testing and Treatment: Family physician: Eight days post-accident, plaintiff sought treatment from Dr. Patoshnick, complaining of persistent neck pain radiating from his left shoulder, hand tingling and numbness, insomnia, flashbacks, and left mandibular pain. The doctor diagnosed various injuries and opined that plaintiff needed a cervical MRI to rule out a disc herniation and/or traumatic syrinx, and an EMG/NCS of the leg to rule out generalized peripheral neuropathy. However, she also noted that plaintiff refused, and the tests were “not authorized by the insurance company.” Treating physician (1): About a year and a half post-accident, on June 28, 2002, plaintiff sought treatment for lower back pain from Dr. Oliver, who had treated him following one of his prior accidents in 1995 (see below). The doctor ordered an MRI (see below). Treating physician (2): Dr. Parikh treated plaintiff with a series of three epidural block injections during Sept. and Oct. of 2002. Orthopedic surgeon: Plaintiff sought treatment from Dr. Kantha in January of 2003. After reviewing the MRI from 2002 and examining plaintiff, the doctor concluded that plaintiff had herniated discs in his back and other lumbar injuries, and that he suffered from cervical sprain and radiculopathy. He proposed an “endoscopic lumbar discectomy and thermodiscoplasty with laser and Ellman bipolar radiofrequency probe at L3-4, L4-5 and L5-S1.” The operation was performed on Feb. 28, 2003. During follow up visits with Dr. Kantha, plaintiff complained of continued right-sided neck pain and pain radiating down his right arm. Following an MRI’s revelation of two cervical disc herniations (see below), the doctor administered epidural and facet joint injections in May, 2003, and, in late August, 2003, he performed another endoscopic cervical discectomy. The post-operative diagnosis was: cervical disc herniations at the C3-4, C4-5 and C5-6 levels; traumatic cervical sprain; and cervical radiculopathy. Plaintiff was still treating with Dr. Kantha when the motion for summary judgment was filed. As to causation, Dr. Kantha initially opined that plaintiff’s lumbar and cervical disc herniations were due entirely to the subject accident. However, shortly before the summary judgment hearing, plaintiff’s attorney was able to obtain older medical records from Drs. Oliver and Kazan and the 1995 MRI (see below). After his review of these materials, Dr. Kantha concluded that 50 percent of plaintiff’s current cervical condition was attributable to the subject accident, and 50 percent to the pre-existing condition, which had apparently been previously asymptomatic. With respect to the lumbar injuries, the doctor concluded that 80 percent of the current condition was due to the subject automobile accident, and 20 percent to the pre-existing condition, previously asymptomatic. Radiology: An MRI of the lumbar spine was performed around June of 2002, and indicated a large disc herniation at L3-4 which, along with degenerative facet disease and ligamentum flavum hypertrophy, resulted in moderate to severe central stenosis; small disc herniations at L4-5 and L5-S1; moderate to severe neural foraminal narrowing bilaterally at L5-S1 secondary to degenerative facet disease and disc bulge; and moderate to severe right-sided neural foraminal narrowing at L4-5 secondary to the disc bulge and degenerative facet disease. An MRI of the cervical spine was conducted on May 6, 2003, revealing disc herniations at C3-4 and C4-5 with pressure being exerted on the ventral aspect of the spinal cord and related findings. Prior Injuries: In either 1972 or 1973, plaintiff was involved in an automobile accident that resulted in injuries to his neck, left shoulder, left elbow, left knee, and jaw. He was given emergency medical treatment at a hospital and a couple of months of physical therapy. He sued and settled that case for about $8,000. In the mid-1980′s, plaintiff injured his back at work. He was given emergency medical treatment at a hospital, received chiropractic treatment for about three months, and was out of work for six months. In or around 1995, plaintiff was involved in a motor vehicle accident and injured his neck and back. He could not recall his treating physician, but did remember that he sued for his injuries and the case was settled for several thousand dollars. His current attorney was not able to obtain medical records for any of these accidents. On Feb. 4, 1995, plaintiff was involved in another motor vehicle accident, injuring his neck, right shoulder, both knees, right forearm and low back. He described the pain as “constant and severe.” Records were available for this accident. Dr. Kazan, plaintiff’s chiropractor, said that the lumbar spine appeared flattened secondary to muscle spasm. Plaintiff received physical therapy for eight months, filed suit, and settled for about $11,000. In a report dated March 28, 1996, Dr. Kazan concluded that plaintiff continued to suffer from cervical and lumbar injuries, specifically disc injuries at C3-4, C4-5, and C5-6. He directly attributed the injuries to the Feb. 4, 1995 accident. The doctor opined that, based on his experience, there was a high medical probability that plaintiff would suffer similar relapses in the future which might necessitate additional treatment. The doctor’s conclusions were based, in part, on an MRI performed on Apr. 7, 1995, which revealed, at C3-4, a prominent central protrusion of disc material causing a slight indentation on the anterior portion of the cervical cord, and suggesting either a prominent disc bulge or central disc herniation. At the C4-5 level there was posterior protrusion of both hard and soft discs, with a similar finding seen at the C5-6 level, presumably a combination of disc bulging and posterior bony degeneration ridging. Plaintiff also received treatment from a Dr. Oliver for this accident who, in turn, received reports from a Dr. Berger, an orthopedist, indicating that plaintiff had suffered from cervical and lumbosacral strains, as well as injuries to his left shoulder and knee. Serious Impact on Plaintiff’s Life: not detailed, although judge found plaintiff’s proofs deficient in this regard. Physician’s certification: No issue, except as to the timeliness of plaintiff’s presentation of the comparative analysis (see “Miscellaneous Issue” below). Polk analysis: Main reason for dismissal, as discussed by the trial judge, was plaintiff’s failure to provide a comparative analysis in light of his numerous prior accidents and injuries. The appellate panel disagreed and concluded that plaintiff’s proofs did satisfy Polk. Miscellaneous Issue(s): Defendant argued, for the first time on appeal, that plaintiff should not have been permitted to submit the comparative analysis of MRI’s through his physician’s certification on the day of the argument of the summary judgment motion, contending that this was inconsistent with best practices. At argument of the motion, defense counsel argued that his doctor should have had the opportunity to review all of the prior medical records, but he did not ask the court for extra time to accomplish this. Nor did he ever actually object, at the time, to the last-minute provision of the 1995 MRI and the expert’s comparative analysis. The appellate panel noted that it was not obliged to consider an issue not raised below, but, in any event, found that the judge’s decision to consider the plaintiff’s expert’s comparative analysis, despite its last minute delivery, fell well within his discretion. Trial Court Determination(s): The trial judge granted defendant’s summary judgment motion because: (1) plaintiff failed to provide a comparative analysis of the injuries he sustained in the subject accident with injuries he had sustained in his prior accidents; and (2) plaintiff failed to prove that his injuries had a serious impact on his life. With respect to the comparative analysis requirement, the judge found plaintiff’s proofs deficient because his physicians were unable to make the required analysis in light of the fact that many of the previous medical records were unavailable. While he felt that the resulting dismissal because of the unavailability of the records might be unfair to plaintiff, regretfully, he granted defendant’s motion for summary judgment, concluding that it would also be unfair to defendant to put him in a position where he had no way to defend himself. Appellate Court Determination(s): Reversed. Because of DiProspero and Serrano, the appellate panel rejected the trial judge’s reliance on plaintiff’s failure to prove a serious impact on his life as a basis for granting summary judgment to defendant. With respect to the trial judge’s comparative analysis discussion, the appellate panel held that the trial judge assumed incorrectly that Polk required that an expert must have all of a plaintiff’s medical records relating to prior accidents. Rather, the panel found that Polk required only that the expert make a comparative analysis of plaintiff’s residuals prior to the accident with the injuries he suffered in the accident. While this analysis should include an evaluation of prior medical records, some of those were, in fact, produced here: prior residuals relating to plaintiff’s cervical spine were clearly established by the 1995 MRI. Since plaintiff’s doctor compared the older MRI with the one taken post-accident, the comparison fully satisfied the Polk requirement as to plaintiff’s cervical injuries. Since he was entitled to go forward with respect to his cervical injuries, he was also entitled to “sue for non-economic loss causally related to all injuries sustained in [the subject] automobile accident.” Since plaintiff satisfied Polk, the panel felt no need to enter the controversy regarding whether Polk was still the law after AICRA. 29. Huggins v. Rollick, A-5126-04T5 DDS No. 23-2-3187 Judges Conley and Winkelstein March 13, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on July 2, 2001, when the 45-year-old plaintiff’s vehicle was rear-ended by defendant’s vehicle while stopped at a red traffic signal. Medical Testing and Treatment: Chiropractor: Plaintiff was initially treated by Dr. Gecys, who performed manipulative treatment, and applied electrical stimulation and heat. Orthopedist: On Aug. 28, 2001, plaintiff saw Dr. Gleimer. By that time, almost two months post-accident, her condition had improved, but she continued to be symptomatic. The doctor noted that plaintiff’s lumbar spine showed moderate spasm and tenderness; and straight leg raising was positive for sciatic pain to the left leg. The doctor’s impression was that she was suffering from post-traumatic lumbar sprain and strain with myofascitis. His recommendation was that plaintiff undergo an MRI of the lumbar spine. Radiology: On Oct. 19, 2001, an EMG was performed by Dr. Lee, which revealed lumbosacral radiculopathy bilaterally at L5-S1, as well as cervical radiculopathy bilaterally at C5-6. On Oct. 25, 2001, plaintiff saw a Dr. Ho for electrodiagnostic examinations of both lower extremities and her lumbosacral paraspinal muscles. She complained to the doctor that, since the accident, she had been experiencing increased low back pain. The EMG test revealed “involvement injury of the bilateral L5 and the S1 nerve roots, of mild to moderate severity.” The examination also revealed “underlying, mild, chronic reinnervation changes” in plaintiff’s bilateral L4 nerve roots. Dr. Ho considered the EMG findings abnormal and consistent with lumbosacral radiculopathy. He concluded that, due to the permanent nature of the severity of plaintiff’s multiple nerve root injuries, the prognosis for full recovery was guarded. He also associated the abnormal EMG findings with the subject automobile accident. Plaintiff continued to experience lower back pain, and, on Jan. 24, 2002, she was treated by Dr. Lee, who was an associate of Dr. Ho. Dr. Lee found that plaintiff had a visible twitch response from her muscle regions. That response continued through examinations and treatments on Jan. 31, 2002, and Feb. 22, 2002. Physician’s certification: Plaintiff submitted a certification of permanency from Dr. Moliken, who certified, to a reasonable degree of medical probability, that plaintiff sustained permanent injuries to her back, which had not healed to function normally and would not heal to function normally with further medical treatment. He grounded his opinion on the Oct. 19, 2001, EMG performed by Dr. Lee, which revealed lumbosacral radiculopathy bilaterally at L5-S1, as well as cervical radiculopathy bilaterally at C5-6. Prior Injuries: None Serious Impact on Plaintiff’s Life: not detailed, although the motion judge found that plaintiff had failed to prove a substantial impact on her life as a result of the injuries sustained in the accident. Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment was granted to the defendant. The motion judge noted the positive EMG findings of bilateral radiculopathy, both upper and lower, but held that these did not, in and of themselves, indicate a permanent injury, particularly where the plaintiff, in her clinical responses, did not point to that type of pain, but said that her pain was localized to the lumbar area. The judge also found that the positive test results did not equate to a permanent injury, as required under the verbal threshold. Further, the judge noted that plaintiff had not been treated for at least three years. The judge also found that plaintiff had failed to show a substantial impact on her life, where her medical reports contained no indication that any physician had prohibited her from doing any of the things that she now claimed she couldn’t do. Appellate Court Determination(s): Reversed. The panel did not dwell on the serious impact issue, as it was now no longer viable under DiProspero and Serrano. As to whether plaintiff had demonstrated that her injuries satisfied one of the six statutorily-defined threshold categories under AICRA, the panel concluded that plaintiff had sufficiently shown, by objective medical evidence, that she suffered a permanent injury by reason of the subject automobile accident; therefore, she was able to submit her claims for pain and suffering to a jury. The panel highlighted the EMG tests, Dr. Ho’s findings, and Dr. Moliken’s certification of permanency, all as sufficient to vault plaintiff’s case over the verbal threshold for purposes of summary judgment. The EMG testing had revealed nerve root involvement and radiculopathy. Dr. Ho opined that plaintiff’s injuries were permanent and causally related to the automobile accident. Dr. Moliken certified that the injuries to plaintiff’s back were permanent and had not healed to function normally. He also based his opinion upon clinical objective findings as provided by the EMG studies. Therefore, plaintiff produced sufficient evidence to survive summary judgment. 30. Austin v. DiGregorio, A-4419-04T5 DDS No. 23-2-3188 Judges Cuff and Parrillo March 13, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on October 29, 2001, when plaintiff’s vehicle was involved in a three-car chain collision. Plaintiff’s car was the first in line, stopped at an intersection, when defendant’s vehicle rear-ended the middle car, which was pushed into plaintiff’s car. Medical Testing and Treatment: Family physician: On the day following the accident, the 54-year-old plaintiff went to see his family doctor, complaining of neck and back stiffness with pain radiating down his right leg. The doctor referred plaintiff to Dr. Biggiani for treatment. Treating physician: Dr. Biggiani’s physical examination of plaintiff revealed spasm and decreased range of motion in the lumbar spine. Plaintiff treated with Dr. Biggiani for five months. Based on the results of a lumbar MRI (see below), the doctor diagnosed plaintiff with chronic lumbar sprain and strain with associated lumbar disc syndrome, and a disc herniation at L4-5 with foraminal encroachment/stenosis on the right side. Neurologist: Plaintiff consulted with Dr. Banas on Jan. 2, 2002, and Feb. 6, 2002. The examination revealed continuing muscle spasms and tenderness at the cervical and lumbar paravertebral regions. Orthopedic surgeon: Plaintiff was also seen by Dr. Goldstein, who performed an EMG (see below). He found that the diagnostic finding of clinically active right L4-5 radiculopathy correlated with plaintiff’s clinically active disc herniation at the same location, which the doctor attributed to the subject automobile accident. Although plaintiff had pre-existing degenerative disease, the doctor noted that he had been asymptomatic prior to the accident, and was thereafter made symptomatic with the probable addition of the L4-5 right subligamentous disc herniation, which was clinically active at the time. Radiology: On Dec. 26, 2001, plaintiff underwent an MRI examination of the lumbar spine, which revealed degenerative arthritis and disc disease from L2 down through L5-S1; broad-based bulging of the L2-3 and L4-5 discs; and a suggestion of a right lateral subligamentous herniation at L4-5, causing right foraminal stenosis. Dr. Goldstein performed an EMG on Nov. 3, 2003, which was positive for a clinically active right L4-5 radiculopathy. Prior Injuries: Although plaintiff had pre-existing degenerative disease of the lumbar spine, prior to the subject accident, he was asymptomatic and had no cervical, lumbar or radicular complaints, injuries or treatment. Serious Impact on Plaintiff’s Life: not detailed. Physician’s certification: The defendant raised the issue of the sufficiency of Dr. Goldstein’s physician’s certification for the first time on appeal. While the appellate panel stated that it was precluded from considering the issue because it was not raised below, it also mentioned that, in any event, it considered the argument to be without merit. Polk analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment was granted to defendant, the motion judge concluding that plaintiff’s proofs did not establish an objective permanent and serious injury. Despite the objective evidence of a clinically active lumbar disc herniation consistent with radiculopathy, the judge nevertheless concluded that plaintiff’s injury was essentially soft tissue, appropriate for conservative treatment � including a basically lifelong program of home exercises and stretching � and not the serious or permanent injury contemplated by the verbal threshold. While the judge noted that the herniated disc did give plaintiff radiating pain from time to time, which the doctors referred to as radiculitis, the judge took that to mean that it was only a temporary inflammation that could resolve from time to time, rather than a permanent type of nerve damage. Appellate Court Determination(s): Reversed. The appellate panel was satisfied that plaintiff’s objective clinical evidence, including the reports of Drs. Goldstein, Banas and Biggiani, the diagnostic testing, and the physicians’ physical examinations and resulting findings all combined to raise a genuine issue of material fact as to whether the subject automobile accident caused injuries to plaintiff’s lower back which had not healed to function normally and would not heal to function normally with further medical treatment. In their physical examinations of plaintiff, both Drs. Biggiani and Banas found post-traumatic muscle spasm which, if causally related to the accident, has long been held to constitute objective evidence of permanent injury sufficient to meet the verbal threshold. Moreover, the EMG revealed an active right L4-5 radiculopathy at the precise level of the lumbar disc pathology shown on the MRI. In Dr. Goldstein’s opinion, plaintiff’s pre-existing but asymptomatic degenerative lumbar disease was rendered permanently symptomatic post-accident, with the probable addition of an L4-5 right subligamentous disc herniation. Clearly, the panel stated, a radiculopathy and herniated disc were the type of injuries that had been held to satisfy the limitation on lawsuit threshold under AICRA. Therefore, plaintiff’s proofs were sufficient to withstand defendant’s summary judgment motion. 31. Lugo v. Mazor, A-3335-04T2 DDS No. 23-2-3222 Judges Weissbard and Winkelstein March 15, 2006 Result: Summary judgment in favor of defendant is reversed and the matter remanded for reconsideration. Facts/Background: This case arose out of an automobile accident on Nov. 14, 2001, when plaintiff was a passenger in an automobile involved in a collision with defendant’s car. Medical Testing and Treatment: not detailed. Prior Injuries: Plaintiff was involved in an earlier accident on Dec. 23, 2000. Serious Impact on Plaintiff’s Life: not detailed. Physician’s certification: No issue Polk analysis: The plaintiff’s failure to provide a comparative analysis was one of the major reasons for the dismissal of her complaint. Miscellaneous Issue(s): Absence of transcript of judge’s oral decision made appellate review impossible, resulting in remand. Trial Court Determination(s): The trial judge rendered an oral opinion granting summary judgment to the defendant, but there was no transcript of the decision. Apparently, plaintiff’s failure to provide a comparative analysis of her current residuals with those from her prior accident was one of the main reasons. Plaintiff moved for reconsideration, attempting to remedy the Polk deficiency by providing medical reports not previously provided in discovery. The judge denied the motion, noting that both additional medical reports had been available, or could have been available, before the end of discovery and that there were no new circumstances to cause him to reconsider the motion. Appellate Court Determination(s): Reversed and remanded. The appellate panel gleaned, primarily from the case information statements, that the trial judge ruled, at least in part, that plaintiff had failed to provide a comparative analysis, as required by Polk v. Daconceicao. However, the absence of a transcript containing findings of fact and conclusions of law prevented the panel from exercising its appellate review function. The judges declined to exercise their original jurisdiction to decide the matter based on the parties’ briefs, particularly since there had been developments in the case law on the Polk issue since the judge’s decision. The cases of Davidson v. Slater and Lucky v. Holland were cited. While the appellate judges recognized that the trial judge had rejected plaintiff’s attempt to cure the Polk deficiency with a late report, they stated that, given the need to have this matter reconsidered, they saw no reason why all the relevant reports should not be considered on remand. The panel did not make a determination that the judge improperly exercised his discretion in denying the reconsideration motion, but simply recognized the impracticality of adhering to that ruling a year later. On remand, the panel held that the judge should reconsider defendant’s motion in light of Davidson and all of plaintiff’s medical proofs, and make new findings. The panel also noted that Davidson was scheduled to be reviewed by the Supreme Court. In the event that it was overruled, the panel instructed the trial judge to conduct a Polk analysis. 32. Fair v. Robinson III, A-4238-04T2 DDS No. 23-2-3223 Judges Conley and Winkelstein March 15, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on Nov. 5, 2001. Plaintiff was taken to the emergency room, apparently complaining of injuries to her neck, right hand, and right shoulder. Medical Testing and Treatment: Emergency Room: Plaintiff was taken to the emergency room, but no details of her visit are recorded in the opinion. Chiropractor: Two days post-accident, plaintiff went to see Dr. Vernon. She treated with him for approximately six months. Treating physicians: Plaintiff treated with a Dr. Carr from Dec. 4, 2001, to Jan. 8, 2002. She also treated with a Dr. Ponzio from Feb. 13, 2002, to May 1, 2002. He diagnosed tenderness in the paraspinal muscles, tendonitis of the right thumb, which apparently cleared up, a bulge in the cervical discs, and a right shoulder impingement. One of these physicians was apparently a neurologist, but it is unclear which one. Physician’s certification: One of plaintiff’s physicians issued a physician’s certification of permanency, but it is unclear which one. The author of the certification opined that, as a result of the subject accident, plaintiff sustained, among other injuries, a flexion deformity in the right fifth DIP joint, bulging discs at C3-4 and C6-7, and a traumatic syrinx in the spinal cord at C6-7. The doctor further opined that the injuries were permanent. Radiology: At some unspecified point during her treatment, X-rays were taken of plaintiff’s right hand, which the trial judge reported were normal, but the appellate panel reported as revealing a flexion deformity in her fifth DIP joint. A cervical MRI examination revealed disc bulges at C3-4 and C6-7. An MRI of the right shoulder showed tendonitis, but no fracture. Prior Injuries: Plaintiff apparently had a prior accident on March 24, 2001, some eight months before the subject accident, but the details of her injuries and treatment were not specified, other than a mention that she was treated by a Dr. Patel for back pain. Serious Impact on Plaintiff’s Life: plaintiff apparently listed twenty-one things that she could no longer do after the accident, but they are not detailed in the opinion. Physician’s certification: No issue Polk analysis: one of two reasons trial judge dismissed plaintiff’s complaint was her failure to provide a Polk comparative analysis. The appellate panel concluded that such an analysis was no longer necessary. Miscellaneous Issue(s): None Trial Court Determination(s): The judge reviewed plaintiff’s medical history and the parties’ positions. With respect to plaintiff’s right hand, the judge did not feel that plaintiff’s chiropractor, who mentioned the injury, expressed an opinion that the injury had come from this accident. He also felt that plaintiff’s neurologist “[said] the same thing.” Thus, the judge felt that plaintiff’s right hand claim was not involved in this lawsuit. “As to the rest,” the judge found the only objective evidence to be the MRI showing the cervical disc bulges, and noted the doctor’s opinion that the disc bulges came from the subject accident because there had never been evidence of disc bulges before. Yet there was no Polk analysis, which the judge thought was required. The judge also noted that there was apparently no indication that the bulging cervical discs impinged on the thecal sac. He also found that there were “no clinical findings correlating any impingement.” Presumably, the lack of such evidence convinced him that plaintiff had not sustained a serious and permanent injury. The judge noted that plaintiff had not been treated in almost three years by the time of the motion. When he coupled that with the minimal objective findings, the absence of a Polk analysis, the type of injuries alleged, even with plaintiff’s subjective complaints, he did not think she met the verbal threshold. Appellate Court Determination(s): Reversed. Although the appellate panel stated that the trial judge’s findings and conclusions barely satisfied R. 1:7-4(a), it discerned that summary judgment had been granted to the defendant because the trial judge thought plaintiff’s proofs were insufficient to satisfy the Polk comparative analysis requirement and also because they failed to satisfy the serious injury prong of the Oswin test. In light of DiProspero and Serrano, the appellate panel noted that the trial judge’s determination with respect to plaintiff’s inability to prove a serious impact on her life was no longer sustainable. With respect to the comparative analysis requirement, the panel followed Davidson and concluded that Polk no longer applied in the context of a summary judgment motion where, as here, plaintiff submitted a doctor’s certification of permanency which asserted, within a reasonable degree of medical probability, that plaintiff sustained permanent injury as a result of the subject automobile accident. Because of the dearth of findings, the panel found it entirely unclear whether the trial judge had found that the first Oswin prong, which did survive DiProspero and Serrano, was satisfied or not. The panel held, however, that if the judge felt plaintiff’s proofs were insufficient, he was wrong. The panel cited, as sufficient objective evidence of permanent injury, plaintiff’s doctor’s certification of permanency opining that, as a result of the subject accident, plaintiff sustained, among other injuries, a flexion deformity in the right fifth DIP joint, bulging discs at C3-4 and C6-7, and a traumatic syrinx in the spinal cord at C6-7. The doctor further opined that the injuries were permanent. Indeed, an MRI of plaintiff’s cervical spine showed bulging discs and an X-ray of her right hand revealed a flexion deformity in her fifth DIP joint. Those results, viewed in the context of a summary judgment motion, constituted sufficient objective evidence of permanent injury sufficient to overcome the verbal threshold. 33. Hanvey v. Turner, A-4500-04T1 DDS No. 23-2-3224 Judges Parrillo and Holston Jr. March 15, 2006 Result: Summary judgment in favor of defendant is affirmed. Facts/Background: This case arose out of an automobile accident on Dec. 21, 2001, which occurred when defendant made a left turn from a parking place and side-swiped plaintiff’s vehicle, which was proceeding straight on the roadway. Medical Testing and Treatment: Orthopedic surgeon: About two months post-accident, plaintiff presented to Dr. Johnson with complaints of right knee pain along the medial joint line. The doctor noted that tenderness was increased by hyperflexion. His initial clinical impression was that plaintiff had a medial meniscus tear causally related to the accident. Although aware that plaintiff had a prior automobile accident just three months before the subject accident, the doctor did not detect any evidence of a “significant pre-existing condition.” At the initial visit, plaintiff was fitted with a brace and underwent conservative care, including a recommendation to modify his activities. The doctor also recommended an MRI and discussed with plaintiff the need for possible surgical treatment in the future. On subsequent visits, plaintiff complained of continued pain along the medial aspect of his knee. As a result, an MRI examination was performed, which revealed a complex tear of the posterior horn of the medial meniscus. On Sept. 18, 2002, plaintiff underwent arthroscopic surgery to repair the tear and synovectomies � excisions of the synovial membrane lining the joint capsule. Post-operative treatment included aspiration of a post-operative joint effusion, physical therapy, home exercises and altered activity, including work activity. By Dec. 4, 2002, plaintiff’s recovery had progressed such that Dr. Johnson’s clinical examination of him evidenced improved range of motion, decreased tenderness and swelling, and “symmetric push off.” Plaintiff was advised that he could return to work. At a follow-up evaluation on Aug. 13, 2003, the last in a series of evaluations before plaintiff sustained a work injury (see below), the doctor reported that plaintiff had returned to full work activity and had resumed most of his daily activities. Examination showed no marked tenderness; well-preserved range of motion; and muscle bulk had been obtained. The doctor opined that plaintiff had reached a plateau, needed no further surgical treatment, and could continue his full work duty and home-based exercise program. When plaintiff was seen again by Dr. Johnson on Sept. 8, 2004, he reported that he had injured his back at work on Sept. 11, 2003. The doctor issued a new diagnosis of lumbar radiculopathy and disc herniations at L4-5 and L5-S1, confirmed by MRI. Subsequent to his back injury, plaintiff complained of recurring pain and cracking involving his knee, due to altered gait caused by the back pain. A physical examination showed quad atrophy of one inch and crepitus with patella compression during knee flexion and mild medial joint line tenderness. The doctor’s impression was that plaintiff had predominant patellofemoral disease due to his lumbar radiculopathy. Therefore, he downgraded plaintiff’s prognosis with respect to his knee from good to fair. In a report dated Nov. 2, 2004, he indicated that it would be difficult for him to comment fully on permanency, due to inadequate evaluations and treatment. On Jan. 31, 2005, the doctor updated his diagnosis and prognosis as a result of his evaluations of plaintiff on Nov. 2, 2004, and Jan. 17, 2005. He noted that the November clinical evaluation showed evidence of quad atrophy, although decreased from the previous evaluation; decreased velocity of gait; and no specific tenderness over the medial joint line, but some tenderness to the quad tendon insertion at the superior pole of the patella. An MRI revealed abnormal signal involving the posterior horn of the medial meniscus, which Dr. Johnson attributed to a post-surgical change. All the other MRI findings were normal. The doctor’s impression at this time was that plaintiff’s predominant complaints were patellofemoral, rather than meniscus or ligamentous. He recommended physical therapy, and said plaintiff could continue working. The doctor downgraded plaintiff’s response to treatment from satisfactory to fair. Although he stated that plaintiff had a significant increase in his knee problems subsequent to his back injury, he did not opine in either his Nov. 2004 or Jan. 2005 reports that the injury to plaintiff’s knee, proximately caused by the subject automobile accident, was a permanent injury as defined by the verbal threshold statute. Plaintiff submitted a physician’s certification in connection with his lawsuit, on which Dr. Johnson hand wrote “right medial meniscus tear;” however the balance of the certification simply parroted the language of the statute defining a permanent injury. It contained no explanation for his conclusions. Radiology: An MRI examination of the right knee was performed on Aug. 22, 2002, which showed a complex tear of the posterior horn of the medial meniscus. All other findings were normal. A lumbar MRI was performed on Sept. 4, 2003, after plaintiff reported a work-related injury approximately a year earlier. It revealed disc herniations at L4-5 and L5-S1. An MRI of the knee taken around November of 2004 revealed abnormal signal involving the posterior horn of the medial meniscus, which Dr. Johnson attributed to a post-surgical change. All the other MRI findings were normal. Prior Injury: Plaintiff had a prior automobile accident just three months before the subject accident, on Sept. 9, 2001, in which he sustained a twisting injury with blunt contact involving the anterior medial aspect of his right knee, resulting in pain involving the knee. Subsequent injury: Plaintiff injured his back in a work-related accident on Sept. 11, 2003, while rearranging boxes in his employer’s delivery van. The doctor diagnosed lumbar radiculopathy and two lumbar disc herniations (see above). Serious Impact on Plaintiff’s Life: not detailed, except that plaintiff appeared to have been out of work for a length of time, possibly due to his surgery and recovery therefrom. The motion judge partially based the grant of summary judgment to the defendant on plaintiff’s failure to prove that the injury he sustained in the accident had a serious impact on his life. Physician’s certification: Plaintiff submitted a physician’s certification in connection with his lawsuit, on which Dr. Johnson hand wrote “right medial meniscus tear,” however the balance of the certification simply parroted the language of the statute defining a permanent injury. It contained no explanation for his conclusion and was trumped, the Appellate Division found, by his detailed letter reports referenced above. Polk analysis: One of two reasons the motion judge gave for dismissal of plaintiff’s complaint was his failure to present a comparative analysis. The Appellate Division found that Polk need not be discussed, because plaintiff’s objective medical evidence of permanent injury was insufficient in any event, requiring dismissal of his case. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge granted summary judgment to defendant partially on the basis that the decrease in the intensity and frequency of plaintiff’s activities, which were important to his life, failed to pierce the verbal threshold “serious impact” requirement. He also found that Dr. Johnson’s reports failed to contain the comparative analysis required by Polk, given the existence of the injury to plaintiff’s knee in a previous automobile accident, and the aggravation of his knee condition by the subsequent work-related injury to his lower back. Appellate Court Determination(s): Affirmed, but for different reasons than those expressed by the trial judge. In light of DiProspero and Serrano, the plaintiff’s failure to prove a serious impact on his life no longer mattered under AICRA. As to the comparative analysis issue, even assuming the continued viability of Polk after AICRA, the appellate court felt that it need not decide whether Dr. Johnson’s reports provided a sufficient comparative analysis in this case, because plaintiff had failed to prove a permanent injury, requiring dismissal of his complaint. The court noted that the Supreme Court in Serrano determined that, to satisfy the sixth category in the verbal threshold statute under AICRA, a plaintiff was required to make a prima facie showing, through objective, credible medical evidence, that he had suffered a permanent injury within a reasonable degree of medical probability. An injury was considered permanent when the body part, or organ, or both, had not healed to function normally, and would not heal to function normally with further medical treatment. The appellate panel was convinced that plaintiff’s documentation, including his MRI studies of August 2002 and January 2005, and the medical treatment notes and evaluation letters of Dr. Johnson, did not show by objective, credible medical evidence that the tear to his right medial meniscus, proximately caused by the subject automobile accident, constituted a permanent injury as defined by AICRA. The panel’s careful review of the record failed to disclose an opinion by the doctor that, within a reasonable degree of medical probability, plaintiff’s knee had not healed to function normally, and would not heal to function normally with further medical treatment. 34. Hernandez v. Perez, A-5830-04T3 DDS No. 23-2-3265 Judges Parrillo and Gilroy March 20, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on Dec. 8, 2001, when plaintiff’s vehicle was rear-ended by defendant’s vehicle. The 47-year-old plaintiff went to the emergency room. Medical Testing and Treatment: Emergency Room: Plaintiff went to the emergency room, complaining of injury to her lower back, but no details of treatment were provided. Chiropractor: Plaintiff treated with Dr. Gross for eight months, during which time numerous objective tests were performed with positive results (see below). Dr. Gross opined that plaintiff’s injuries were permanent and causally related to the subject automobile accident. Radiology: An MRI examination of plaintiff’s lumbar spine disclosed a bulging disc at L5-S1, with straightening of the lumbar lordotic curve, suggestive of muscle spasm. An EMG/NCV of the lower extemities revealed a left-sided L5-S1 radiculopathy. Prior Injuries: Plaintiff was involved in an earlier accident in 1998 or 1999, when she was a passenger on a bus that slid on ice. As a result, she treated with a chiropractor for a few months for a mid-back condition. According to plaintiff, however, the symptoms resolved in a couple of months and she was experiencing no pain at the time of the subject accident. Dr. Gross confirmed that the symptoms plaintiff experienced after the subject accident had not been present, in whole or in part, prior to the subject collision. Serious Impact on Plaintiff’s Life: not detailed. Physician’s certification: No issue Polk analysis: One of the reasons given by the motion judge for dismissal of plaintiff’s complaint was her failure to provide a comparative analysis. The appellate panel concluded that no such analysis was necessary. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge granted summary judgment to defendant, holding that plaintiff’s proofs neither established an objective permanent injury nor provided a Polk comparative analysis, which he deemed necessary because of plaintiff’s prior accident. Appellate Court Determination(s): Reversed and remanded for trial, the appellate panel disagreeing with the motion judge on both issues. The appellate panel was satisfied that the objective medical evidence produced by plaintiff, including the MRI test and EMB/NCV evaluation, along with the physician’s physical examinations and resulting findings, raised a genuine issue of material fact as to whether the subject automobile accident caused injuries to plaintiff’s lower back which had “not healed to function normally and would not heal to function normally.” With respect to the comparative analysis issue, the panel followed Davidson’s holding that Polk had no continuing viability in the context of a verbal threshold summary judgment motion after AICRA. However, in any event, the panel was further satisfied that no such analysis was required in this case. According to the undisputed medical evidence, whatever the nature and extent of her pre-existing condition, plaintiff’s physical condition had been functionally quiescent until the subject accident. She had had no episodes of pain or other problems until then. Under these circumstances, no comparative analysis was necessary as plaintiff’s proofs, without more, met the “desideratum of an objectively-based medical opinion that the disability [was] fairly attributable to the injury suffered in the accident” at issue, sufficient at least to withstand defendant’s motion for summary judgment. Of course, the panel noted that causation remained a question of fact for the jury to decide. 35. Cordasco v. Eddy, A-3079-04T1 DDS No. 23-2-3266 Judges Lisa and Reisner March 20, 2006 Result: Summary judgment in favor of defendant is affirmed. Facts/Background: This case arose out of an automobile accident on March 24, 2001. Medical Testing and Treatment: Emergency Room: Plaintiff presented with complaints of pain in her left shoulder, arm and knee. Orthopedic surgeon (1): On Apr. 9, 2001, plaintiff went to Dr. Boiardo, complaining of neck pain and pain in her left shoulder, knee and foot. Although objective testing was ordered (see below), no details were provided of any treatment. The doctor issued a report on Jan. 28, 2003 that plaintiff had suffered a “permanent disability” in the accident. He based his opinion on the first MRI’s revelation of “rotator cuff tendonopathy” and impingement, but gave no further explanation. He also stated that the accident had caused an exacerbation of plaintiff’s pre-existing cervical disc herniation, as well as an injury to her left knee and shoulder, but did not attribute permanency to any specific injury. Instead, the report merely recited, in conclusory fashion, that, as a direct result of the injury, plaintiff would realize a permanent disability. In the same vein, Dr. Boiardo also issued a physician’s certification of permanency for plaintiff’s lawsuit, providing no additional explanations for his conclusions, but merely referring back to his report. Orthopedic surgeon (2): Three years after the subject accident, on March 19, 2004, plaintiff was examined by a second orthopedic surgeon, Dr. Tiger. He did not review any imaging studies, but nonetheless opined that plaintiff had permanent injuries. His report referred to a tear in plaintiff’s meniscus, although the MRI did not reveal a tear. He also referred to “impingement syndrome” in plaintiff’s shoulder, although the most recent MRI (which he did not review) showed none. Further, although he discussed possible treatments for her knee and shoulder problems, he did not opine that plaintiff’s knee and shoulder had not healed to function normally and would not heal to function normally with further medical treatment. He also stated that plaintiff suffered from “chronic cervical strain syndrome with chronic myofascitis” without explaining this medical jargon or explaining why those conditions were either permanent or prevented normal body function. Radiology: An MRI examination of the shoulder performed on April 12, 2001, showed mild soft tissue injury to the rotator cuff, but no tearing. A follow up MRI was performed on June 20, 2001, with normal results. An MRI of the left knee on April 12, 2001 showed no tearing of the meniscus or any other part of the knee; it did reveal “degenerative changes” in the posterior horn of the medial meniscus. A nerve conduction study performed almost two years after the accident, on Jan. 9, 2003, was normal except for “mild” nerve root irritability at C6, where plaintiff had a herniated disc that pre-existed the subject automobile accident. Prior Injuries: Plaintiff had a herniated cervical disc at C6 that pre-existed the subject automobile accident. She also admitted in her deposition that she had also previously injured her left knee some seven years earlier, and that Dr. Boiardo had treated her for this injury. Serious Impact on Plaintiff’s Life: not detailed. Physician’s certification: The appellate panel noted the deficiencies in Dr. Boiardo’s certification of permanency, which merely recited, in conclusory fashion, that plaintiff suffered permanent injuries in the accident, without explaining which body part or parts were permanently injured, or why they would not heal to function normally, even after medical treatment. Polk analysis: One of the reasons given by the motion judge for granting summary judgment to the defendant was plaintiff’s failure to provide a comparative analysis to support her claim that the subject accident had aggravated her pre-existing neck injury. In light of the fact that neither of plaintiff’s physicians had reviewed records of the prior injury, their bare conclusions of aggravation could not stand, and the appellate panel also found plaintiff’s proofs deficient in this regard. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge concluded that plaintiff failed to prove that she had sustained permanent injuries in the accident. Further, he found that plaintiff did not satisfy the requirements of Polk v. Daconceicao by producing adequate proof to support her claim that the accident aggravated the pre-existing herniated disc in her neck. Summary judgment was granted to defendant. Appellate Court Determination(s): Affirmed. The appellate panel concluded that the opinions of both of plaintiff’s experts were insufficient to support a finding that plaintiff had suffered permanent injuries to her knee or shoulder, because they were not supported by objective medical evidence. In fact, the doctors’ reports were contrary to the results of the objective tests, which showed no torn meniscus, torn rotator cuff, or rotator cuff impingment. Dr. Boiardo’s Jan. 29, 2003 report, which opined that plaintiff had suffered a permanent disability, was supposedly based on the first MRI’s showing of “rotator cuff tendonopathy” and impingement, but the panel pointed out that the second MRI was normal and specifically indicated that there was no impingement, and that the tendons were normal. Moreover, the doctor never explained what “tendonopathy” was, or why it constituted a permanent injury. Although Dr. Boiardo’s report opined that the accident had caused an exacerbation of plaintiff’s pre-existing cervical herniated disc, an injury to her left knee and shoulder, the report did not attribute permanency to any specific injury, but merely recited in conclusory fashion that the injury caused permanent disability. The panel found this vague and general statement was insufficient to establish that plaintiff suffered an injury to a specific body part and that that body part had not healed to function normally and would not heal to function normally with further medical treatment. Additionally, Dr. Boiardo did not indicate that he had reviewed or considered any records concerning plaintiff’s admittedly pre-existing herniated cervical disc to support his conclusion that the symptoms he observed were due to the accident and not the pre-existing injury. Moreover, although plaintiff admitted in her deposition that she had also previously injured her left knee some seven years earlier, and that Dr. Boiardo had treated her for this injury, his report made no mention of this prior injury and did not explain how he concluded that her current knee problems were caused by the subject accident and not the prior injury. The appellate panel found similar faults with Dr. Tiger’s report, since he relied on medical facts that objective testing revealed did not exist. He did not review any imaging studies, but nonetheless opined that plaintiff had permanent injuries. His report referred to a tear in plaintiff’s meniscus, although the MRI did not reveal a tear. He also referred to “impingement syndrome” in plaintiff’s shoulder, although the most recent MRI (which he did not review) showed none. Further, although he discussed possible treatments for her knee and shoulder problems, he did not opine that plaintiff’s knee and shoulder had not healed to function normally and would not heal to function normally with further medical treatment. He also stated that plaintiff suffered from “chronic cervical strain syndrome with chronic myofascitis” without explaining this medical jargon or explaining why those conditions were either permanent or prevented normal body function. The panel also concluded that, to the extent both doctors’ reports concluded that the subject accident aggravated plaintiff’s pre-existing herniated disc, they were net opinions. There was no dispute that plaintiff had a pre-existing serious and permanent injury to her neck. To satisfy AICRA, the panel noted that plaintiff had to prove that the subject accident aggravated that pre-existing injury to the extent of producing a new, permanent injury. It was not sufficient for her experts to state, in conclusory fashion, that her injury was permanent and caused by the accident. To be useful to the trier of fact, the reports should have explained the basis for their conclusions. The panel concluded that, unless Drs. Boiardo and Tiger had personal knowledge of the extent of plaintiff’s previous neck injury � for example, if they had treated her for that injury � they could not provide a useful opinion concerning the nature and extent of the alleged aggravation without examining the prior medical records concerning the pre-existing injury, and certainly could not opine as to causation. The appellate panel noted the dispute as to whether Polk remained viable after AICRA, and that the Supreme Court was currently considering the issue. However, the panel concluded that, on this factual record, without the comparative review and analysis of medical records mandated by Polk, the doctors’ opinions as to causation and permanency were devoid of factual support and were therefore net opinions. 36. Rogers III v. Puma, A-5112-04T5 DDS No. 23-2-3279 Judges Collester, Lisa and Reisner March 21, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on Apr. 9, 2002. The 42-year-old plaintiff was taken to the emergency room. Medical Testing and Treatment: Emergency Room: Plaintiff presented with complaints of injuries to his neck, back, right shoulder and right knee. X-rays were taken (see below) and plaintiff was released with a diagnosis of cervical and lumbar strain and contusions of the right shoulder and right knee. Treating physician: Because plaintiff suffered from a form of muscular dystrophy, he had been continuously under the care of his physician, Dr. Berkovich, for about four years preceding the subject accident. Plaintiff had the disease fairly well under control with a walking program. He never complained of any knee problems and could walk long distances without problems. After the subject accident, over a course of further evaluation and treatment with Dr. Berkovich, plaintiff’s neck, back and right shoulder injuries improved and did not exhibit evidence of permanency. However, plaintiff had continued problems with his right knee. When walking, he would experience constant pain in the knee, accompanied by swelling, clicking, and other problems. As a result, he was unable to continue his walking regimen and exercise program which, he contended, accelerated the progression of his muscular dystrophy. Dr. Berkovich issued a report on Feb. 3, 2005, which described the swelling and tenderness on palpation associated with plaintiff’s right knee, as well as an audible click on extension. He also confirmed that plaintiff had never had any problems with his knee in the years prior to the subject accident. Based upon his clinical evaluation and review of the Apr. 20, 2002, MRI report, the doctor opined that plaintiff suffered a permanent injury to his right knee. Orthopedist: On Sept. 5, 2003, plaintiff came under the care of Dr. Bade. After the initial visit, the doctor’s diagnosis included a finding of “chondromalacia patella exacerbated by motor vehicle accident.” Dr. Bade had reviewed the Apr. 20, 2002, MRI report, and ordered a follow-up MRI, which was performed on Nov. 13, 2003 (see below). Based upon the results of these objective tests and a follow-up clinical evaluation of plaintiff on Nov. 21, 2003, he issued a report on that date explaining plaintiff’s “mild chondromalacia patella” as an irregularity of the undersurface involving the patella articular cartilage. He also noted a degree of osseous edema or increased signal involving the inferior anterior patella and, to a lesser degree in the soft tissues anterior to the inferior patella. He opined that these findings were all consistent with the trauma of the automobile accident, and that they also showed improvement from the first MRI examination to the second. Dr. Bade’s diagnoses were: post-traumatic patella pain right knee; contusion patella right knee improving; contusion right patella bone as a result of the motor vehicle accident improving; chondromalacia patella exacerbated or caused by the motor vehicle accident; inferior pole of the patella tendonosis improving; post-traumatic prepatellar bursal hypertrophy improving; and intrameniscal signal involving the medial meniscus without surface wear. He concluded that plaintiff would have permanent symptoms involving his right knee as a result of the trauma. Chiropractor: Although there is not much detail about plaintiff’s treatment with his chiropractor, Dr. McElroy, he was mentioned in the motion judge’s opinion. Apparently he treated plaintiff for his knee problems, and opined that plaintiff’s chondromalacia patella was either exacerbated or caused by the subject automobile accident. Defense physician: Plaintiff was examined for the defense by Dr. Warren, an orthopedist, on Feb. 3, 2005. The doctor reviewed all of plaintiff’s medical treatment and diagnostic records in detail. His diagnosis included “contusion of the right patella with exacerbation of pre-existent chondromalacia.” He causally related cervical strain, face and chest contusions, and a contusion and exacerbation of pre-existent chondromalacia of the right patella to the subject automobile accident. His view was that the chondromalacia was the result of exacerbation because the thinning of the cartilage, revealed first by the MRI taken less than two weeks after the injury, could not have been completely the result of the accident. Nevertheless, the doctor concluded that plaintiff had suffered a permanent injury to his right knee as a result of the accident, stating that, “the partial contribution to the chondromalacia with the exacerbation caused by the impact will likely add to continued symptoms in the right patella area indefinitely.” Radiology: X-rays of plaintiff’s right shoulder taken in the emergency room on the date of the accident were negative; X-rays of his cervical and lumbar spine taken at the same time revealed only degenerative changes. An MRI of the right knee was conducted on Apr. 20, 2002, eleven days post-accident. It revealed a tear of the medial meniscus, prepatellar bursitis, patellar tendonitis, osseous edema within the inferior aspect of the patella, and patellar chondromalacia. A subsequent MRI performed on Nov. 13, 2003 revealed the continued presence of a mild patellar chondromalacia. The other conditions noted on the previous MRI had resolved. Prior Injuries: Plaintiff was diagnosed with myotonic dystrophy, a form of muscular dystrophy, in 1997. Because of his increasing weakness, he retired in either 1997 or 1998 and was placed on Social Security disability status when he was under forty years old. Because of his condition, plaintiff was continuously under a physician’s care during the several years preceding the subject accident. However, he never complained of any pain or other symptoms related to his right knee during those years. A significant component of his treatment for the muscular dystrophy was a regular and extensive walking regimen, which was credited with keeping his disease fairly well under control. He was able to walk long distances without any complaints. Serious Impact on Plaintiff’s Life: not detailed, except to note that, prior to the subject accident, plaintiff, who was already retired and on Social Security disability because of his muscular dystrophy, engaged in an intensive walking regimen for exercise, which kept his disease under control. After the accident, because of the pain in his knee, plaintiff could no longer walk as he did, causing the progression of his muscular dystrophy to accelerate. Physician’s certification: No issue Polk analysis: Main reason for dismissal given by the motion judge was plaintiff’s failure to provide a Polk comparative analysis to support his claim of aggravation or exacerbation of his pre-existing chondromalacia patella. The panel concluded that the motion judge construed the Polk requirement too narrowly, and determined that plaintiff produced sufficient evidence of a permanent injury sustained in the subject accident. Whether the accident caused a new injury, or exacerbated a pre-existing one, the effect on plaintiff’s knee was permanent. Miscellaneous Issue(s): None Trial Court Determination(s): Confronted with the medical evidence, the motion judge was of the view that plaintiff was alleging the aggravation and exacerbation of a pre-existing condition � the chondromalacia patella � and failed to provide the Polk-required comparative analysis. He noted that the treating chiropractor opined that the condition was either exacerbated or caused by the subject accident, but did not make any comparisons of plaintiff’s knee condition before and after the accident. Summary judgment was granted to the defendant. Appellate Court Determination(s): Reversed. The appellate panel was satisfied that plaintiff provided sufficient evidence from which a jury could reasonably find that he suffered a permanent injury caused by the subject automobile accident. In fact, all of the evidence, including the report of the defense doctor, established that the motor vehicle accident either initially caused plaintiff’s chondromalacia or exacerbated a pre-existing chondromalacia. In either event, the effect of the accident on plaintiff’s right knee was permanent. In the context of this case, whether this was a new injury, or the aggravation of a pre-existing condition, was not dispositive. The panel concluded that it need not decide in this case whether a Polk comparative analysis continued to be required under AICRA. First, viewing the evidence most favorably to plaintiff, the jury could find that the chondromalacia was a new injury. More significantly, even if a Polk analysis were required, the panel concluded that the motion judge construed the Polk requirement too narrowly. Under the factual complex here, plaintiff had no residuals prior to the subject accident. Because he never complained of any knee problems, although he was under constant treatment for his muscular dystrophy, there were no MRI tests, X-rays or other objective tests ever performed on his knee before the subject accident. The medical experts in this case did, in fact, examine what medical records were available prior to the accident with the objective medical evidence performed thereafter, but there were no objective medical tests to review because none had been necessary. In fact, the lack of objective evidence regarding the knee prior to the subject accident verified plaintiff’s contention that his knee was completely asymptomatic before the current trauma. In these circumstances, the panel held that to require a comparative analysis of objective tests would be to require the impossible. Since plaintiff provided adequate, objective evidence that his right knee injury was permanent, he was therefore entitled to sue for noneconomic loss causally related to all injuries he sustained in the subject accident. Whether he could prove that his asserted inability to conduct his walking program as a result of his knee injury proximately caused an accelerated deterioration of his muscular dystrophy condition was a factual issue to be decided by the jury. 37. Brown v. Ritterman, A-3757-04T5 DDS No. 23-2-3295 Judges Coburn and Lisa March 22, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on April 9, 2002. Plaintiff did not seek medical care that day. Medical Testing and Treatment: Emergency Room: Two days after the accident, plaintiff went to the emergency room complaining of pain in her neck, back and both arms. She was released and told to follow up with her own physician. Primary care physician: Plaintiff pursued a course of treatment with her primary care physician, Dr. Odejobi. Orthopedist: On Apr. 30, 2002, plaintiff began a course of treatment with an orthopedic group. During the treatment, she was referred by her treating physicians to a specialist in hand surgery. Surgeon: Plaintiff consulted with Dr. Vasen, a specialist in hand surgery. He performed a right carpal tunnel release on March 3, 2003. At a post-operative follow up visit, the physical examination revealed objective clinical evidence of left carpal tunnel syndrome, which was consistent with the symptoms plaintiff had been reporting since the accident. Specifically, he doctor reported that plaintiff’s left hand had a positive Tinel’s at the carpal tunnel and a positive Phalen’s test. Sensation was intact to light touch. Dr. Vasen performed a left carpal tunnel release on May 19, 2003. Orthopedic specialist: Plaintiff was also evaluated by an orthopedic specialist. Independent Medical Examination: Plaintiff underwent an IME by Dr. Strouse at the request of her personal injury protection insurer. Diagnosis: Although the details of plaintiff’s treatment were not provided, her claimed permanent injuries were: (1) aggravation of a pre-existing cervical injury; (2) aggravation of a pre-existing right carpal tunnel syndrome; and (3) left carpal tunnel syndrome. One of plaintiff’s physicians, Dr. Sacks, issued a supplemental report after the EMG test (see below) which opined that the EMG findings were clearly within the realm of medical probability, causally related to plaintiff’s original injury sustained in the subject automobile accident, and represented both a worsening and recurrence of her prior conditions. Radiology: An MRI examination of the cervical spine was performed on March 13, 2002, about one month before the subject accident. It revealed a probable disc protrusion at C5-6 with a very small disc protrusion at C6-7. Another MRI was performed on Jan. 28, 2003, more than nine months post-accident, revealing an actual (rather than a probable) small disc protrusion at C5-6, and a small (rather than very small) disc protrusion at C6-7. An EMG study was performed on Sept. 23, 2004, which confirmed the presence of a left carpal tunnel syndrome, albeit “on the milder side of . . . moderate.” The study also revealed a left C6 radiculopathy. Prior Injuries: Plaintiff, a former mail carrier, suffered several work-related injuries in the 1990s. She was involved in two vehicular accidents, which resulted in relatively minor injuries to her mid- to lower back. In the mid-90s, plaintiff twisted in her delivery truck while lifting a tray of mail. This resulted in a pinched nerve in her neck, and caused numbness and tingling sensations in her right hand. Plaintiff continued to experience symptoms in her right arm and hand for the next several years, and those symptoms existed at the time of the subject accident. She left her job before the subject accident, and worked part-time as a school cafeteria aide. Serious Impact on Plaintiff’s Life: not detailed. Physician’s certification: No issue Polk analysis: Although the motion judge seemed to find sufficient evidence in the record to make a comparative analysis, he nevertheless found that plaintiff had failed to sustain her burden of proving a serious injury arising from the subject accident. The appellate panel disagreed. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge analyzed the medical records and reports and made a detailed analysis of the findings pertaining to plaintiff’s cervical spine both before and after the subject accident. He concluded that plaintiff failed to present sufficient evidence with respect to her neck to carry her across the verbal threshold, reasoning that the reported differences in the pre- and post-accident cervical MRI’s were “negligible.” As to plaintiff’s bilateral carpal tunnel syndrome, the judge was of the view that the right side was pre-existing and, to the extent of any aggravation, the surgery had been successful and plaintiff was doing well. With respect to the left side, the judge also found that the surgery was successful, and that any residual problems were of the mild variety. Thus, the motion judge acknowledged that plaintiff presented a factual issue that she had suffered permanent injuries in the accident, but concluded that she had not offered proof of a serious injury to carry her over the verbal threshold. Appellate Court Determination(s): Reversed. The panel noted that the trial judge did not have the benefit of DiProspero and Serrano, as the summary judgment motion here was decided before the Supreme Court rendered its decisions in those cases, determining that there was no “serious injury” requirement under AICRA. All that a plaintiff needed to do to cross the verbal threshold was to establish a permanent injury by objective credible evidence. The appellate panel agreed with plaintiff that she had done so in this case, producing sufficient evidence from which a jury could reasonably find that she suffered a permanent injury caused by the subject accident. In particular, viewing the evidence most favorably to plaintiff, the jury could reasonably find that the left carpal tunnel syndrome was a new injury, caused by this accident. It could also find an aggravation of the right carpal tunnel syndrome and her pre-existing cervical condition. The panel noted in closing that it need not decide whether a comparative analysis between pre- and post-accident residuals was still required under AICRA. The asserted permanent injury to plaintiff’s left hand and arm was a new injury, and the comparative analyses contained in the medical reports with respect to the right hand and arm, and the cervical spine, were adequate and sufficient to raise a jury issue. Further, if plaintiff provided adequate, objective evidence of any permanent injury, she was entitled to sue for noneconomic loss causally related to all injuries sustained in the subject accident. 38. Shaw v. Matejek, A-1619-04T3 DDS No. 23-2-3347 Judges Collester and Reisner March 27, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on Jan. 28, 2002. The 65-year old plaintiff was taken to the emergency room for treatment. Medical Testing and Treatment: Emergency Room: Plaintiff presented with complaints of pain in her forehead, lip, rib cage and both knees. X-rays were taken, but showed no abnormalities. Plastic surgeon: Plaintiff’s lip was surgically repaired by a plastic surgeon. There did not appear to be a report from this physician or a claim for any kind of scarring or disfigurement, however. Orthopedist: Plaintiff sought evaluation and treatment from Dr. Gutowski when the problems persisted in her knees. He ordered an MRI, which was performed about three months post-accident (see below). Dr. Gutkowski issued a physician’s certification of permanency in connection with plaintiff’s lawsuit, basing his report on his clinical examination of plaintiff and opining that plaintiff had suffered a permanent injury of “post-traumatic patellofemoral chondromalacia patellae, left greater than right.” Reporting physician: Plaintiff submitted a medical report dated July 15, 2004 from Dr. Tiedrich. While his treatment of plaintiff is not detailed, it appears that he initially examined plaintiff on that date and noted objective abnormalities. He referred plaintiff for MRI scans of both knees, and indicated that she should return to see him thereafter. The doctor attributed plaintiff’s complaints of spasm and tenderness to the subject automobile accident and opined that she had sustained significant injuries resulting in some degree of permanent disability, as evidenced by her continued episodes of pain, spasm, reduced range of motion, diagnosis and abnormal sensation in the injured areas, secondary to bleeding and scarring within the injured tissues themselves. Dr. Tiedrich opined that plaintiff’s prognosis for the future was poor, and that, within a reasonable degree of medical probability she would continue to require further medical and/or surgical care � such as bilateral knee arthroscopic surgeries � as a result of these injuries, and would go on to develop premature, degenerative arthritis in the affected areas. After defendant had been granted summary judgment, Dr. Tiedrich issued another report dated Sept. 1, 2004. He stated that plaintiff had undergone the follow-up MRI scans of both knees after his initial visit with her, and recited the MRI findings (see below). He stated that, in his professional opinion, plaintiff suffered from a previously asymptomatic radiographic chondromalacia patella, which became symptomatic with the motor vehicle accident and had gone on to worsen. The doctor attributed 80 percent of plaintiff’s current symptomatology to the motor vehicle accident, and 20 percent to the pre-existing condition. He also opined that plaintiff was an excellent candidate for left knee arthroscopic surgery with chondroplasty and probable synovectomy. He repeated that her prognosis was poor, and that her injuries in both knees were permanent. Radiology: X-rays were taken at the hospital emergency room on the date of the accident. The rib X-rays revealed no evidence of pneumothorax; and a bilateral knee X-ray showed no fractures, dislocations or abnormalities. An MRI of plaintiff’s left knee was performed on May 9, 2002. The report showed that there was moderate chondromalacia patella of the lateral facet and minor joint effusion. The sagittal view demonstrated a marginal osteophyte at the anterior aspect of the femoral condyle, medial better developed than the latter. The sagittal proton density series demonstrated a small well-circumscribed hypersensitivity within the substance of the cartilage of the nonweight bearing surface of the medial femoral condyle. The radiologist opined that this could reflect a healed osteochondral injury. In the absence of significant medial chondromalacia, the radiologist thought this was of doubtful significance. MRI’s of both knees were performed in the summer of 2004. In the left knee, there was a grade 4 chondromalacia patella noted, which had progressed in comparison to the prior study. The right knee scans did not show any evidence of meniscal tear, significant ligamentous injury or osteochondral fractures. There was no significant joint effusion or other internal abnormality. Prior Injuries: None Serious Impact on Plaintiff’s Life: Plaintiff was employed as a massage therapist at the Hilton Hotel at Short Hills at the time of the accident. She worked a full-time schedule of thirty-two work hours over four days. After the accident, she was unable to work more than eleven hours per week. Therefore, she actually stated a claim for economic loss as an element of her damages. Physician’s certification: No issue Polk analysis: Not discussed. Miscellaneous Issue(s): (1) Plaintiff’s claim for economic loss had not been considered by the motion judge, requiring remand. (2) Plaintiff should have been given the benefit of the full discovery period to marshal her evidence. Trial Court Determination(s): The defendant moved for summary judgment approximately three months before the expiration of the discovery period. The motion judge found that plaintiff’s knee condition was degenerative. He therefore concluded that she had not established by credible medical evidence that she suffered a permanent injury to satisfy AICRA. Summary judgment was granted to the defendant. Plaintiff subsequently moved for reconsideration, attaching another report from Dr. Tiedrich dated Sept. 1, 2004 (see above) which included the findings from the subsequent MRI scans and an updated prognosis. The judge nevertheless denied reconsideration, finding that the updated report still did not supply objective, credible medical evidence of a permanent injury. Appellate Court Determination(s): Reversed and remanded for further proceedings. The appellate panel noted that the accident had caused a significant reduction in the number of hours plaintiff could work at her job as a massage therapist. This resulted in an actual economic loss claim, which the motion judge had not considered. Since a plaintiff who fails to surmount the verbal threshold may nonetheless recover unreimbursed income losses, this claim deserved consideration by the trial court. Additionally, the panel concluded that plaintiff should have been given the benefit of the full discovery period to develop her case and produce further expert reports, if necessary. For example, Dr. Tiedrich’s second report opined that plaintiff had sustained permanent injury to her knees and attributed 80 percent of her injury to the accident, but did not explain the rationale for this allocation. On remand, the panel directed that plaintiff should be given an appropriate period of discovery to supplement her medical proofs prior to any subsequent application by defendant for summary judgment. 39. Lee v. Laffey, A-4038-04T2 DDS No. 23-2-3361 Judges Fall and Parker March 28, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on March 18, 2002, which occurred when plaintiff’s vehicle, proceeding into an intersection after the light turned green, was struck by defendant’s vehicle. Approximately one hour after the accident, plaintiff began to experience pain on the left side of his forehead, and in his neck, left foot, and left ankle. Medical Testing and Treatment: Medical Center: Later on the day of the accident, plaintiff went to a medical center and was seen by Dr. Bhoori. He was given pain medication and released. He returned the next day, at which time X-rays were taken of his cervical spine, left ankle, left foot and skull. No fractures or abnormalities were found. He received no other treatment from the medical center. Chiropractor (1): On Apr. 1, 2002, plaintiff saw Dr. Nettis, complaining of neck pain. He was diagnosed with acute cervical sprain and strain, and embarked on a course of treatment consisting of moist heat therapy, electrical muscle stimulation, massage therapy, and spinal manipulation. These treatments occurred approximately three times per week, and ended on July 18, 2002. Chiropractor (2): On July 23, 2003, since his neck pain had not resolved and, in fact, had become worse, plaintiff went to another chiropractor, a Dr. Hiras, and was treated intermittently thereafter. Dr. Hiras issued a report dated July 28, 2004, diagnosing plaintiff as suffering from a chronic cervical sprain and strain; cervical muscle spasm; chronic thoracic sprain and strain; chronic lumbar sprain and strain; headaches; cervical radiculopathy; and lumbar radiculopathy, all causally related to the subject motor vehicle accident. He stated that plaintiff’s mid- and lower-back, neck and shoulder injuries were permanent, and would not return to their normal level of functioning. Specialists: On Feb. 10, 2004, plaintiff first visited Spinal & Head Trauma Associates, complaining of persistent neck pain radiating to his left upper extremity with weakness in his left arm, pain in his left shoulder, and left frontal headaches approximately once a month. He was first evaluated by Dr. Pelman, who ordered an EMG study (see below). Two months later, Dr. Pelman also recommended an MRI study of plaintiff’s left shoulder (see below). On Apr. 20, 2004, plaintiff was examined by Dr. Bram for pain management, who recommended cervical facet nerve injections. On Jan. 26, 2005, Dr. Othee issued a report diagnosing plaintiff as suffering from a C6-7 disc bulge; left C6-7 radiculopathy; left shoulder impingement/supraspinatus tendonitis; myofascitis; and cervical facet pain, all causally related to the subject automobile accident. Dr. Othee opined that these injuries were permanent in nature. Radiology: X-rays were taken of plaintiff’s cervical spine, left ankle, left foot and skull on the day after the accident. No fractures or abnormalities were found. An MRI examination of plaintiff’s cervical spine was taken on Jan. 21, 2004. It disclosed a mild uncovertebral hypertrophy without evidence of significant disc bulge or focal disc herniations at C4-5 and C5-6; a mild diffuse disc bulge without focal disc herniation at C6-7; and an unremarkable cervical spinal cord. An EMG study was completed on March 9, 2004, which disclosed chronic left-sided C6-7 radiculopathy. An MRI of plaintiff’s left shoulder was performed on Sept. 11, 2004, and ruled out any rotator cuff tear. Prior Injuries: None Serious Impact on Plaintiff’s Life: not detailed. Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Summary judgment was granted to the defendant, the motion judge relying on the appellate decision in Serrano, and concluding that plaintiff had failed to prove that her injuries were not only permanent, but serious. Appellate Court Determination(s): The appellate court reversed, in light of the subsequent Supreme Court decisions in DiProspero and Serrano, which specifically disapproved of the “serious injury” standard under AICRA. 40. Scott v. Seilheimer, A-3826-04T3 DDS No. 23-2-3377 Judges Payne and Sabatino March 29, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on Sept. 4, 2002. The 31-year-old plaintiff was stopped at a red light and was struck in the rear by defendant’s sedan. Medical Testing and Treatment: Primary care physician: Later on the same day of the accident, plaintiff presented to her family physician with complaints of pain in her neck and back. Later that month, she began treatment for cervical and lumbar injuries. Over the next fifteen months, plaintiff was seen intermittently by an orthopedic surgeon, a physical therapist and a chiropractor. Her last date of treatment was apparently in March of 2004. Chiropractor: Plaintiff saw Dr. Herzog. Although the details of her treatment with him are not provided, Dr. Herzog did issue the physician’s certification of permanency for plaintiff’s lawsuit. Orthopedic surgeon: Plaintiff saw Dr. Walsh. Although the details of his treatment are not fully provided, he did administer three epidural steroid injections to plaintiff to relieve her continuing pain. Eventually, the lumbar injuries subsided, but her cervical problems persisted. Dr. Walsh causally related the objective abnormalities shown on the December 2002 cervical MRI to the subject accident, and opined that they were permanent. Physical therapist: No details are given of plaintiff’s treatment with this medical provider. Radiology: A cervical MRI examination was performed in December, 2002, and showed posterior disc protrusions at C3-4, C4-5, C5-6 and C6-7. Apparently the radiologist’s report noted these as being “mild.” Prior Injuries: Plaintiff was involved in two prior accidents, one in 1999 and the other in 2002, the same year as the subject accident. However, plaintiff contended that any effects from the two earlier accidents had fully resolved before she was rear-ended by defendant. Serious Impact on Plaintiff’s Life: Not detailed, however, the motion judge’s conclusion that plaintiff had failed to show a serious impact upon her daily life activities was the main reason for his grant of summary judgment to the defendant. The appellate panel reversed in light of intervening law eliminating the serious impact requirement, but noted that the defense could use this evidence in its damages argument to the jury at trial. Physician’s certification: The appellate panel noted, but did not reach, defendant’s argument that plaintiff’s physician’s certification of permanency insufficiently described her injuries stemming from the subject accident. Since the argument was not raised below, it was inappropriately raised for the first time on appeal. Moreover, defense counsel had conceded at oral argument on the appeal that no published case had insisted upon the particular degree of specificity which defendant was demanding here from the doctor’s certificate. Polk analysis: The motion judge also found plaintiff’s failure to submit a comparative analysis to be fatal to her case, in light of her involvement in two prior accidents. Because defense counsel had conceded that Polk compliance was not an issue in this case, however, the appellate panel vacated the motion judge’s ruling. Miscellaneous Issue(s): The court discussed and rejected defendant’s argument that plaintiff’s appeal was out of time, and found that defendant mistakenly treated the date of the order granting partial summary judgment on the noneconomic claims as the trigger date for the 45-day appellate period under R. 2:4-1. Because that order did not dispose of all issues, however, and final judgment was not entered until all of plaintiff’s remaining economic claims were dismissed six months later, the time period did not begin until then. Trial Court Determination(s): Summary judgment was granted to defendant, primarily based on the motion judge’s conclusion that plaintiff had failed to show a serious impact upon her daily life activities. The judge also found that plaintiff had failed to supply an adequate comparative analysis from one of her physicians, pursuant to Polk v. Daconceicao. Appellate Court Determination(s): Reversed, primarily because of the intervening holdings of the Supreme Court in DiProspero and Serrano eliminating the so-called “serious lifestyle impact” prong of the verbal threshold test under AICRA. The panel noted that the defense could, of course, raise the apparent minimal impact that plaintiff’s injuries had upon her work attendance and recreational activities to the jury in arguing about the nature and extent of plaintiff’s damages. The appellate panel was also satisfied that the record amply raised triable issues of permanency and causation, citing the chiropractor’s and orthopedic surgeon’s reports opining as such, and noting the MRI test results and the fact that plaintiff had to undergo three epidural injections, which manifested her continuing, ongoing pain and suffering. While acknowledging the radiologist’s notation that the cervical disc protrusions were “mild,” and the fact that plaintiff had not received any medical treatment since March of 2004, the appellate panel felt that these factors simply underscored the competing factual contentions that the jury would need to resolve in assessing any damages. With respect to the judge’s conclusion that plaintiff failed to provide a Polk comparative analysis, the panel noted that defense counsel had conceded at oral argument that compliance with Polk was not an issue in this case. Thus, that portion of the motion judge’s ruling had to be vacated. Finally, the appellate panel noted, but did not reach, defendant’s argument that plaintiff’s physician’s certification of permanency insufficiently described her injuries stemming from the subject accident. Since the argument was not raised below, it was inappropriately raised for the first time on appeal. Moreover, defense counsel had conceded at oral argument on the appeal that no published case had insisted upon the particular degree of specificity which defendant was demanding here from the doctor’s certificate. 41. Johnson v. Gowie, A-5567-04T1 DDS No. 23-2-3378 Judges Cuff and Holston Jr. March 29, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on Jan. 31, 2003, which occurred when defendant attempted to make a right hand turn onto the roadway from a gasoline station, and pulled out into plaintiff’s vehicle as she proceeded on that roadway. Medical Testing and Treatment: Treating physician: Plaintiff saw a Dr. Lackman, who physically examined her, ordered MRI studies of her cervical and lumbar spines, and treated her, although the treatment is not specified. In his final narrative report dated July 28, 2003, the doctor opined that plaintiff sustained the following injuries in the subject automobile accident: cervical sprain; cervical radiculopathy; disc herniation at C6-7 exerting pressure on the ventral aspect of the thecal sac; disc bulge at C5-6; lumbosacral sprain; L5 radiculopathy; ventral and bilateral posterolateral disc bulge at L3-4, encroaching on the neural foramina bilaterally; disc bulge at L4-5; and concentric disc bulge contacting the thecal sac and S1 nerve roots at L5-S1. He opined that the traumatically-induced spinal and neurological injuries were serious and that plaintiff sustained a significant and permanent limitation of the use of her spine. The doctor also provided a physician’s certification of permanency as required by AICRA. Radiology: MRI examinations of plaintiff’s cervical and lumbar spines were performed on Feb. 8, 2003. Tests revealed cervical sprain; cervical radiculopathy; disc herniation at C6-7 exerting pressure on the ventral aspect of the thecal sac; disc bulge at C5-6; lumbosacral sprain; L5 radiculopathy; ventral and bilateral posterolateral disc bulge at L3-4, encroaching on the neural foramina bilaterally; disc bulge at L4-5; and concentric disc bulge contacting the thecal sac and S1 nerve roots at L5-S1. Nerve conduction tests were also performed, demonstrating mild abnormalities. Prior Injuries: None Serious Impact on Plaintiff’s Life: not detailed, although the judge characterized plaintiff’s main complaint as being that her activities were just a little bit more difficult for her to do after the accident; it did not appear that she was deprived of the ability to do them, or that it was impossible for her to function on a daily basis. On this basis, he concluded that she failed to meet the subjective prong of the verbal threshold test. The appellate panel reversed in light of DiProspero and Serrano’s elimination of this requirement. Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge concluded that plaintiff had satisfied her burden of establishing a permanent injury by objective credible evidence, but nevertheless granted summary judgment to the defendant, concluding that plaintiff failed to show a significant and serious impact upon her personal and occupational life. He characterized plaintiff’s main complaint as being that her activities were just a little bit more difficult for her to do after the accident; it did not appear that she was deprived of the ability to do them, or that it was impossible for her to function on a daily basis. Appellate Court Determination(s): Reversed in light of DiProspero and Serrano’s elimination of the serious impact requirement under AICRA. Plaintiff met the verbal threshold requirement, articulated in Serrano, by proving that she suffered from a permanent injury to a body part or organ causally related to the accident in question. That was all she needed to show to survive defendant’s summary judgment motion. 42. Chu v. Rosenblatt, A-5444-04T1 DDS No. 23-2-3392 Judges Axelrad and Sabatino March 30, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on Oct. 15, 2001, when plaintiff’s sedan was broad-sided by defendant’s vehicle. Medical Testing and Treatment: Treating physician: Although the details of treatment are not provided, plaintiff’s expert causally related the objective findings on the MRI and X-ray to the subject accident. Radiology: An MRI examination of plaintiff’s cervical spine revealed disc bulges at C3-4, C4-5, C5-6 and C6-7. Foraminal encroachment was shown on a lumbar X-ray at L4-5 and L5-S1. Prior Injuries: In April of 1998, the plaintiff also suffered permanent cervical injuries in another accident, specifically in the form of herniated discs at C3-4 and C5-6. Serious Impact on Plaintiff’s Life: not detailed, although plaintiff’s failure to establish such an impact was the basis for the motion judge’s grant of summary judgment to the defendant. Physician’s certification: No issue Polk analysis: The defendant argued on appeal that the motion judge erred in not requiring plaintiff’s medical expert to provide a comparative analysis as required by Polk, comparing her injuries from the subject accident to those she sustained in her prior accident. The appellate panel rejected this contention (see below). Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge concluded that plaintiff’s objective medical evidence had established triable issues of fact as to the first prong of the verbal threshold test. He granted summary judgment to the defendant, however, because of plaintiff’s failure to prove a serious impact on her daily life activities. Appellate Court Determination(s): Reversed. While defendant conceded on plaintiff’s appeal that the former “serious impact” prong of the Oswin test was no longer applicable to this plaintiff (1) in light of the Supreme Court’s supervening opinions in DiProspero and Serrano, and (2) the fact that plaintiff’s case was in the appellate pipeline when those cases were decided, defendant nevertheless argued that summary judgment had still been appropriately granted because of plaintiff’s failure to provide a comparative analysis of the injuries she sustained in the subject accident with those she sustained in the prior accident in 1998. The appellate panel rejected this contention, noting that plaintiff had waived any claim for aggravation of her prior injuries. Moreover, the panel felt that her objective proofs established “new” injuries from the second accident in the disc herniations at C4-5 and C6-7, and the lumbar injury. Although the panel recognized that the multiple injuries to plaintiff’s neck area might well be interrelated to some degree, the panel left it to defense counsel on remand to demonstrate the extent of any such relationship to the jury. Since plaintiff had disavowed any aggravation claims, she would be confined on remand to recovering only for the new injuries that she could prove emanated solely from the subject accident. 43. Evert v. Picano, A-5595-04T3 DDS No. 23-2-3393 Judges Hoens and Seltzer March 30, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on Oct. 10, 2001, when the vehicle in which plaintiff was a passenger was struck by defendant’s vehicle. Medical Testing and Treatment: not detailed, except to note that apparently there was objective evidence of disc herniations and disc bulges Prior Injuries: None Serious Impact on Plaintiff’s Life: not detailed, although plaintiff’s failure to prove this resulted in the motion judge dismissing her complaint Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge concluded that plaintiff had presented sufficient objective medical evidence of permanent injury causally related to the subject automobile accident to create genuine issues of material fact enough to survive defendant’s summary judgment motion. However, her failure to demonstrate that those injuries had a serious impact on her life caused him to enter summary judgment for the defense. Appellate Court Determination(s): Reversed. Since plaintiff’s complaint was dismissed only because she failed to supply proofs that were necessary only as a result of the second Oswin prong, which was no longer viable under the Supreme Court’s holdings in DiProspero and Serrano, the panel concluded that the dismissal must be reversed and the matter remanded to the trial court. Although defendant had not filed a cross-appeal, she argued that the summary judgment should stand because plaintiff failed to demonstrate that she suffered a qualifying injury in the accident, as required by AICRA. She argued that plaintiff had presented evidence that was inconsistent with the opinion that her treating physician expressed concerning her injury. In addition, defendant argued that the treatment given to plaintiff effectively resolved her complaints to such an extent that her proofs fell short of demonstrating that she had sustained a permanent injury. In so arguing, the appellate panel found that defendant was inviting it to substitute a different analysis of the record for that expressed by the motion judge as it related to the first, and still viable, Oswin prong. The panel declined this invitation; rather, it found that the record showed that the trial court had considered the submissions and resolved this issue against defendant. However, the panel did not preclude defendant from seeking clarification, by means of a motion for reconsideration, of the judge’s determination of this issue as part of the remand proceedings. 44. Phillips v. Ekhelar, A-3322-04T5 DDS No. 23-2-3402 Judges Kestin and Seltzer March 31, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on Feb. 24, 2002. Medical Testing and Treatment: not detailed, but the judge found plaintiff’s objective medical proofs were sufficient to meet the verbal threshold requirements for a category six injury. Prior Injuries: Although no details were provided, plaintiff was apparently involved in a prior accident. Serious Impact on Plaintiff’s Life: not detailed, although the plaintiff’s failure to prove this aspect of her case was found fatal by the motion judge. Physician’s certification: No issue Polk analysis: Raised by defendant on appeal for the first time, and thus not considered by the court. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge found that plaintiff had provided sufficient proof of a permanent injury, causally related to the accident, within the scope of category six of the verbal threshold statute. However, she granted summary judgment to the defendant because she also concluded that plaintiff had failed to demonstrate a sufficiently serious impact on her lifestyle. Appellate Court Determination(s): Reversed in light of the Supreme Court’s subsequent decisions in DiProspero and Serrano, which held that AICRA removed the Oswin requirement that a plaintiff had to demonstrate a serious impact on his or her life. Defendant argued on appeal that the summary judgment should stand because plaintiff failed to produce the required comparative analysis of the injuries claimed to have been sustained in the subject automobile accident with those sustained in a prior accident, as required to Polk v. Daconceicao. While recognizing that the continued viability of Polk was in question with respect to post-AICRA litigation, the appellate panel concluded that it need not comment on that question because the issue had not been raised during the original motion for summary judgment. Under those circumstances, the appellate panel could not consider the issue for the first time on appeal. The panel noted, however, that this did not preclude consideration of the issue by defendant if properly raised on remand. 45. Marquina v. Cruz, A-4912-04T1 DDS No. 23-2-3445 Judges Conley and Winkelstein April 5, 2006 Result: Summary judgment in favor of defendant is affirmed. Facts/Background: This case arose out of an intersectional motor vehicle accident on Jan. 24, 2002, which occurred when the car in which plaintiff was a passenger collided with a GMC Yukon driven by defendant and owned by his corporation. Medical Testing and Treatment: not detailed, however the motion judge found that plaintiff failed to demonstrate objective evidence of a permanent injury so as to qualify for noneconomic damages under the verbal threshold. Prior Injuries: None. Serious Impact on Plaintiff’s Life: not detailed. Physician’s certification: None. Polk analysis: None. Miscellaneous Issue(s): Whether defendant’s sports utility vehicle qualified as an “automobile” under N.J.S.A. 39:6A-2a, so as to subject plaintiff to the verbal threshold provision of AICRA. Trial Court Determination(s): The motion judge granted summary judgment to the defendant, concluding that plaintiff failed to demonstrate objective evidence of a permanent injury so as to qualify for noneconomic damages under the verbal threshold. Plaintiff did not appeal this decision; rather, she claimed that the verbal threshold was not applicable to this accident because the GMC Yukon driven by defendant did not meet the definition of “automobile” in N.J.S.A. 39:6A-2a. The motion judge concluded that the defendant’s sports utility vehicle qualified as a private passenger automobile. It was owned by a corporation, and registered as a company vehicle, but it did not have commercial license plates, and was insured by a policy that provided for personal injury protection benefits. The defendant’s corporation was a construction company that employed 225 people. It owned approximately seventy-five vehicles, all of which were used for business purposes and were also available for the employees’ personal use. The defendant had two of the company vehicles. One, a Mercedes Benz sedan, was primarily for his wife’s use. Defendant himself used the SUV, which was garaged at his residence and not kept on the job site. Also, at the time of the errand defendant was driving the vehicle on a purely personal errand to the bank. Although defendant did use the SUV for work, there was very little evidence of the nature of that work-related use other than as a means of transportation for defendant from job site to job site, or within a job site. There was no evidence that the vehicle was used in the course of construction, or to transport materials from place to place. The judge reviewed the statutory definition of “automobile” and concluded that the Yukon SUV fit within it. He noted that if defense counsel’s position was accepted � that sports utility vehicles somehow did not qualify as automobiles � then “maybe 30% of the drivers on the road today would be disqualified from PIP coverage since there [was] an enormous usage of [such] vehicles throughout the country and particularly throughout [N.J.].” Appellate Court Determination(s): Affirmed, the appellate panel agreeing with the motion judge’s determination that the GMC Yukon qualified as an “automobile” under N.J.S.A. 39:6A-2a. The panel noted that the commercial ownership of the vehicle was not dispositive as to whether it qualified as an automobile under the statute; the statute referred to a “type” of vehicle, and then excluded specific vehicles based on their use. Here, there was no genuine dispute that the SUV was a passenger-type vehicle. The panel reiterated the important factors cited by the motion judge: that the vehicle did not have commercial plates; that it was garaged at defendant’s home; and that, at the time of the accident, it was being used for defendant’s personal errand. Such a vehicle was not exempted from coverage under the statute, such as vehicles that were “used as a public or livery conveyance for passengers” or “rented to others with a driver.” It did not have a pickup body, nor was it a delivery sedan, a van, or a panel truck or a camper type vehicle used for recreational purposes. Therefore, the appellate panel concluded that the Yukon unambiguously qualified as an automobile under N.J.S.A. 39:6A-2a. 46. Batezel v. Encompass Ins. Co., A-5297-04T2 DDS No. 23-2-3541 Judges Wecker and Graves April 13, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident between plaintiff’s vehicle and defendant’s vehicle. Medical Testing and Treatment: not detailed, except for references in the motion judge’s opinion to a disc bulge, spurring, and indications of carpal tunnel syndrome, for which plaintiff had not undergone surgery. Apparently MRIs of other areas proved negative. Prior Injuries: None. Serious Impact on Plaintiff’s Life: not detailed. Physician’s certification: No issue. Polk analysis: None. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge granted summary judgment to the defendant, concluding that plaintiff had not shown credible, objective medical evidence of a serious, permanent injury arising from the accident. Appellate Court Determination(s): Reversed. The appellate panel noted that the motion judge had been bound to apply the standards of James v. Torres; however, because James was subsequently abrogated by the Supreme Court’s decisions in DiProspero and Serrano, the panel reversed and remanded for further proceedings, without prejudice to defendant’s right to again seek summary judgment in light of the current applicable standards. The panel noted that, under those standards, a plaintiff need not show that an injury caused a serious life impact nor demonstrate that the injury was serious, because the Legislature considered the injuries defined in N.J.S.A. 39:6A-8(a) to be serious by their very nature. 47. Rodriguez v. Diwanji, A-6182-04T2 DDS No. 23-2-3542 Judges Fall and Fisher April 13, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident between the parties on Aug. 29, 2002. Liability was stipulated and the issue of plaintiff’s damages was tried to a jury over two days. Medical Testing and Treatment: not detailed except to note that plaintiff suffered an injury to her right knee that necessitated surgery, and plaintiff claimed permanent residuals. Prior Injuries: None. Serious Impact on Plaintiff’s Life: not detailed. Physician’s certification: No issue. Polk analysis: None. Miscellaneous Issue(s): Jury charge. Trial Court Determination(s): At the damages-only trial, the judge charged the jury based on the then-applicable two-prong Oswin test, under which plaintiff was required to establish both a permanent injury and a serious impact on her life. The jury unanimously found, in answer to the first interrogatory, that plaintiff had not suffered a permanent injury as a proximate result of the motor vehicle accident. It therefore terminated its deliberations and did not even reach the second question as to whether plaintiff proved a serious impact on her life. No damages were awarded. Plaintiff’s motion for a new trial was denied, resulting in this appeal. Appellate Court Determination(s): Reversed. The appellate panel first noted that the Supreme Court’s decisions in DiProspero and Serrano � abrogating the serious impact and serious injury requirements � were issued contemporaneously with this trial. The panel then set forth the pertinent parts of the judge’s jury charge, as well as the first two questions on the jury verdict sheet, and concluded that the jury charge impermissibly encompassed the requirement of a “serious impact” within the concept of “permanent injury,” and had the capacity to lead jurors to the conclusion that, in order to find that plaintiff had established a qualifying permanent injury, they would be required to also find that her injuries had a serious impact on her life. The panel reached this conclusion notwithstanding the separation on the verdict sheet of the questions of “permanent injury” and “serious impact.” The panel also felt that the capacity of the charge to mislead the jury was buttressed by the testimony of the defense expert, who was engaged in a colloquy on cross-examination, where, when asked if he disagreed with plaintiff’s expert’s finding of permanent injury, he said, “I disagree . . . that this is a serious injury, yes.” Asked next, “It is a permanent injury, though, isn’t it?” he responded, “Permanent, yes . . . serious, no.” Assuming from the verdict it reached that the jury credited the defense expert’s opinion, his testimony clearly (and impermissibly) linked the requirement of “serious” with the concept of “permanent injury.” Accordingly, the appellate panel was constrained to reverse the order denying plaintiff’s motion for a new trial and remanded the matter to the Law Division for retrial in accordance with the principles set forth in DiProspero and Serrano. 48. Cushing v. Estate of Wilson, A-5844-04T2 DDS No. 23-2-3564 Judges Payne and Sabatino April 17, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on July 25, 2001, which occurred when plaintiff’s sedan was entering a traffic circle and defendant’s van approached on her driver’s side. According to plaintiff, the van veered into her lane of travel and struck her sedan, forcing it to leave the roadway. Plaintiff was taken from the scene to the hospital by ambulance. Medical Testing and Treatment: Emergency Room: Plaintiff was seen at the emergency room, and was discharged the same day; no details of her treatment or diagnosis were presented. Chiropractor: Plaintiff treated with Dr. Biggiani approximately seventy-four times over the next eight months for neck and back injuries. The doctor noted continued muscle spasms and restricted loss of cervical and lumbar range of motion as late as twenty months post-accident. He noted that all neck and back problems were “completely related” to the subject accident. The chiropractor opined that plaintiff’s lumbar disc herniation resulted from compressive and/or torsional injury to the intervertebral disc in the accident. While he acknowledged that plaintiff had pre-existing degenerative changes in her lumbar spine, he opined that those changes rendered the area more susceptible to the effects of the trauma and probably contributed to the net effect of the subject accident. With respect to the abnormal motor nerve results in plaintiff’s upper extremities, as shown on the EMG, the chiropractor opined that these injuries were caused by the sudden stretching action to the nerve tissues, as from a traumatic force of the type that plaintiff sustained in the subject accident. He found that the EMG clearly demonstrated the severity of the trauma to this area and opined that the continued nerve irritation was permanent. In his final report dated March 23, 2003, the doctor stated that plaintiff continued to have cervical and lumbar injuries, which he causally related to the subject accident and which he repeatedly characterized as permanent. He stated that plaintiff’s ability to bend forward or extend her spine would be permanently restricted, as would her ability to perform her usual and formerly customary activities without pain. Physical rehabilitation specialist: Plaintiff was seen by Dr. Brody. He noted that plaintiff had tingling and numbness, but these conditions apparently improved over time. Although he did not address causation, he reached diagnoses consistent with those of the chiropractor and the pain management specialist. Neurologist: Plaintiff was seen by Dr. Banas. Details of her treatment with him are not provided. Pain management specialist: Plaintiff was seen by Dr. Carr, an anesthesiologist. Details of her treatment with him are not provided, although he did opine with the requisite degree of medical certainty that plaintiff’s complaints emanated from the subject automobile accident. Clinical psychologist: Plaintiff was seen by Dr. Natale, who treated her for depression and traumatic stress reaction, which manifested as a fear of driving. Radiology: A lumbar MRI examination revealed a disc herniation at L4-5 indenting the thecal sac. This apparently was superimposed on degenerative disease. There was no foraminal narrowing. The vertebral bodies were in good alignment. MRIs of the brain and cervical spine were apparently normal. A positive EMG showed polyneuropathy multiplex involving the motor nerves of the upper extremities; there was no indication of radiculopathy. Prior Injuries: None, although plaintiff had pre-existing degenerative disease in her spine. Serious Impact on Plaintiff’s Life: not detailed, although the motion judge found that the thirty-four-year old plaintiff, a mother of three children, had raised triable issues concerning the collision’s adverse effects on her daily life activities in raising her family and in pursuing recreation. Physician’s certification: None. Polk analysis: None. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge found that plaintiff had shown a serious impact on her life, but she granted summary judgment to the defendant, concluding that, although it was “a very close call,” plaintiff had not satisfied the first prong of the verbal threshold test. Although acknowledging the MRIs showing of a disc protrusion and its indentation on the thecal sac, the judge found significance in the fact that there was no foraminal narrowing. Likewise, although she noted that the EMG indicated that there were some problems in the upper extremities, she found significance in the fact that there was no radiculopathy. Thus, she concluded that plaintiff had not produced sufficient objective, credible medical evidence of a serious injury caused by the accident. Appellate Court Determination(s): Reversed. Even though the Supreme Court decisions in DiProspero and Serrano dealt primarily with the abrogation of the serious impact requirement � which would not affect this case because the judge found that plaintiff had met that requirement � the appellate panel noted that another holding of the Serrano opinion was the ruling that AICRA did not require a plaintiff to prove a serious injury; the Court found that the Legislature had considered the injuries defined in the statute to be serious by their very nature. The appellate panel here found that plaintiff was entitled to retroactive application of DiProspero and Serrano since her appeal was timely filed while those cases were pending before the Supreme Court, and was thus in the appellate “pipeline.” Considered in the context of present and controlling decisional law, the appellate panel held that the motion judge had granted summary judgment to defendant based upon an incorrect legal standard. The question was not whether plaintiff’s injuries were sufficiently “serious” in nature. Instead, the question was simply whether there was sufficient objective proof in the record to create a genuine issue of material fact as to whether the accident caused a permanent injury or injuries that would not heal to function normally, even with further medical treatment. Assessing the record under this clarified legal standard, the appellate panel concluded that plaintiff had offered sufficient objective proofs to raise triable issues of permanency and causation, citing the MRI and EMG findings, as well as the continued muscle spasms and losses in range of motion. Additionally, the panel noted plaintiff’s chiropractor’s report that her injuries were permanent and caused by the accident. To the extent that the jury might determine that plaintiff’s injuries were not altogether new because of her pre-existing degenerative disease, the panel felt that the chiropractor’s report raised a genuine issue of material fact as to aggravation of her pre-existing condition. 49. Boghdady v. Antala, A-5287-04T1 and A-5520-04T1 DDS No. 23-2-3596 Judges Kestin and Hoens April 19, 2006 Result: Summary judgment in favor of defendants is reversed. Facts/Background: This case arose out of an automobile accident on October 18, 2000, when the plaintiff Boghdady was a passenger in a vehicle operated by the plaintiff Rophael. This vehicle was involved in a collision with defendants’ vehicle, and both plaintiffs sued for injuries sustained in the accident. Medical Testing and Treatment: not detailed. Prior Injuries: None mentioned. Serious Impact on Plaintiff’s Life: not detailed. Physician’s certification: No issue. Polk analysis: None. Miscellaneous Issue(s): None Trial Court Determination(s): The case was tried to a jury in April, 2005. The judge ruled that he was bound by the James v. Torres decision and, in accordance with that then-prevailing precedent, he held that plaintiff was required to comply with the two-part Oswin test in order to meet the verbal threshold. Each plaintiff produced evidence relating to his or her injuries, the treatment received and the prognoses that related to each of them. In addition, evidence was received relating to whether the injuries were caused by the accident, and whether they were permanent and serious. Near the end of the trial, counsel for the parties requested that the trial judge separate the two Oswin prongs into two questions on the jury verdict sheet because the Supreme Court was then considering appeals challenging the continuing validity of the second Oswin prong in AICRA litigation. The trial judge denied that request, concluding that, consistent with the dictates of James, he should include all aspects of the proofs required by Oswin for verbal threshold purposes in a single question. He therefore charged the jury in that manner. The jury answered the interrogatory in the negative as to each of the plaintiffs. The judge entered a no-cause judgment based on the jury verdict, and plaintiff Boghdady filed her appeal. Plaintiff Rophael appealed after moving unsuccessfully for a new trial or, alternatively, for additur. Both plaintiffs argued that the Supreme Court’s post-judgment decisions in DiProspero and Serrano mandated reversal and a new trial. In addition, Rophael argued that the trial court erred in denying his motion for a directed verdict. The defendants argued that neither plaintiff was entitled to pipeline retroactivity because they failed to sufficiently preserve the issues in their appeals. They also argued that the record demonstrated that the jury had based its no-cause verdict on a conclusion that neither of the plaintiffs had suffered a permanent injury within the meaning of AICRA as defined by the Supreme Court. Appellate Court Determination(s): Reversed. First, the panel observed that all of the parties were aware of the status of the then-pending appeals in DiProspero and Serrano, and that counsel sufficiently preserved their objections to the trial judge’s reliance on James. In particular, the discussion among counsel and the judge as to the propriety of using a single interrogatory to the jury in that context was sufficient to bring these plaintiffs within the scope of the appellate pipeline for retroactive application of the holdings of DiProspero and Serrano. Second, the panel’s review of the testimony and evidence compelled it to reject defendants’ suggestion that the no-cause verdict should be interpreted as a rejection of the sufficiency of plaintiffs’ evidence as to the first objective prong of Oswin. Rather, the use of a single question inevitably required the jury to consider both aspects of the Oswin test. That, in turn, precluded the panel from concluding, as defendants contended it should, that the jury would have reached the same conclusion had they been charged in accordance with the subsequent Supreme Court decisions in DiProspero and Serrano. Finally, the panel rejected the argument raised by plaintiff Rophael that the judge erred in denying his directed verdict motion. Although the panel noted its awareness of language in a recently published appellate decision that suggested merit in this argument (see Pardo v. Dominguez), the record also contained expert opinions that equally supported the contrary conclusion. Moreover, in the absence of a complete record in which this argument might have been considered and addressed by the trial judge, the panel thought it inappropriate to intervene. The matters were remanded for a new trial consistent with the precedent articulated in DiProspero and Serrano. 50. Carrion v. Paribello, A-3659-04T2 DDS No. 23-2-3615 Judges Collester and Lisa April 20, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on Aug. 6, 2002, after which plaintiff complained of pain in her neck, lower back and arm. Medical Testing and Treatment: Orthopedic surgeon: Plaintiff was treated by Dr. Rangala. Following receipt of X-ray reports that were unremarkable, he recommended continuation of physical therapy and referred plaintiff for a cervical MRI, which was also unremarkable. Orthopedist: Plaintiff began treatment with another orthopedist, Dr. Hochberg, on Aug. 12, 2002. In his Nov. 15, 2002, report, the doctor noted that an MRI had been performed, but indicated that he had not received the results. At that time he made no determination of any cervical disc involvement or other permanent injury. At his request, another cervical MRI was performed in June of 2003, revealing a disc herniation at C4-5. In his report dated June 1, 2004, citing the 2003 MRI study, the doctor concluded that plaintiff had suffered a ruptured disc in her neck. He did not mention the 2002 MRI. Dr. Hochberg issued a physician’s certification of permanency on behalf of plaintiff for her lawsuit, certifying that plaintiff had sustained a permanent injury, namely, the cervical disc herniation at C4-5, as noted on the June 2003 MRI. Radiology: X-rays were performed on Aug. 7 and Aug. 15, 2002, shortly after the accident, with negative findings. A cervical MRI was performed on Sept. 28, 2002, but the radiologist interpreted the films as revealing no abnormalities. Another cervical MRI was performed on June 21, 2003, this time revealing a disc herniation at C4-5. Prior Injuries: None Serious Impact on Plaintiff’s Life: not detailed Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): The defendant moved for summary judgment, arguing that plaintiff had not produced objective evidence of an injury that was causally related to the subject automobile accident, since the first MRI following the accident disclosed no permanent injury. Defendant, however, submitted no certification by any physician in support of her motion. Plaintiff responded to the summary judgment motion, arguing that, absent any qualified medical opinion or evidence from the defendant, the issue as to whether the first MRI would negate the causal relationship between the accident and the herniated disc shown on the subsequent MRI was a genuine issue of material fact which, taken together with all legitimate inferences favoring plaintiff, would require submission of the issue to a jury under R. 4:46-2(c). The motion judge granted summary judgment to the defendant, concluding that, although plaintiff offered objective medical evidence to show a serious and permanent injury, she did not offer sufficient credible evidence establishing that her injury was causally related to the subject motor vehicle accident. She found it problematic that approximately ten and one-half months had passed from the time of the accident until the second MRI revealed the cervical disc herniation, whereas X-rays and an MRI taken within two months of the accident were unremarkable. Appellate Court Determination(s): Reversed. The appellate panel noted the fact that, while there were two MRI tests, with contrary findings interpreted by two different radiologists, there was only one physician’s interpretation of those tests as applied to the plaintiff’s clinical signs, symptoms, and history after the 2002 motor vehicle accident. Even assuming the reports of both radiologists to be accurate, the appellate panel could not assume an intervening cause to plaintiff’s detriment. In this instance, the motion judge engaged in impermissible fact-finding, which is the province of a jury, on what the panel determined was a material factual issue. 51. Zickler v. Miller, A-6517-03T5 DDS No. 23-2-3616 Judges Parrillo and Holston Jr. April 20, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on April 19, 2000, when plaintiff was a passenger in a car involved in a multivehicle accident. She was taken to the emergency room with complaints of pain in her left knee, which had struck the dashboard upon impact. Medical Testing and Treatment: Emergency Room: Plaintiff presented with complaints of pain and swelling in her left knee. She was diagnosed with a left knee sprain. Orthopedic surgeon: Plaintiff treated with Dr. Krasnick, who had treated her before for a prior injury to her left knee after a slip and fall in 1999 (see below). After the subject accident, the doctor re-evaluated plaintiff and noted that she had sustained direct anterior trauma to her left knee. Objectively, he noted that she manifested an antalgic gait with diffuse tenderness about the patella, had a small effusion and could only flex from neutral to 60 degrees. Based on the results of a May 2004 MRI, revealing meniscal tears (see below), Dr. Krasnick performed arthroscopic surgery on June 16, 2000, to evaluate the extent of plaintiff’s injuries. He found an extensive anterior horn tear of the lateral meniscus, and thus performed a partial lateral meniscectomy and joint debridement. In his post-operative report of Dec. 4, 2000, the surgeon noted that there was a meniscal tear requiring a partial meniscectomy, palpable and audible progressive crepitus and progressive chondromalacia. He further compared this condition to plaintiff’s post-1999 ACL surgery course, which had been unremarkable. According to Dr. Krasnick, plaintiff had been progressing well from the prior injury when she suffered a “severe setback” due to the subject accident. Plaintiff’s recovery was not complete following the June 2000 surgery. As of Aug. 31, 2000, when she was first re-evaluated after the procedure, she was still symptomatic with progressive pain; and a physical examination revealed continued palpable crepitus. Because her symptoms continued to increase over the next year, plaintiff underwent another operation on July 30, 2001, consisting of joint debridement, removal of the plicae, and chondroplasty. At that time, Dr. Krasnick diagnosed chondromalacia, fibrous plicae, and minimal degenerative changes. In a report dated June 14, 2002, the surgeon noted that plaintiff’s chondromalacia had developed into frank arthrosis, and that her left knee condition had continued to deteriorate. He opined that plaintiff would eventually require a total knee reconstruction based on her progressive condition, which he opined was directly caused by the subject motor vehicle accident. Because of persistent and recurrent knee buckling, a third post-accident surgery was indicated. On Nov. 15, 2002, Dr. Krasnick performed an arthroscopy and determined that plaintiff continued to suffer from chondromalacia and post-operative fibrosis. Based on this intervening surgery, the doctor, in a report dated May 23, 2003, indicated that, due to the injuries sustained in the subject automobile accident, plaintiff would eventually require a total knee replacement within ten to fifteen years. At that time, plaintiff suffered from mono compartmental arthrosis, which the doctor hoped to alleviate first with a knee cap replacement. Radiology: An MRI examination of plaintiff’s left knee performed on May 24, 2000, revealed the ACL graft to be intact, but also showed that plaintiff suffered tears to the posterior horn of the medial meniscus and to the anterior horn of the lateral meniscus. Prior Injuries: Plaintiff had fallen on May 30, 1999, and saw Dr. Krasnick, the orthopedic surgeon, for injuries sustained at that time. A Sept. 7, 1999, MRI was performed, and was interpreted by the radiologist as suggesting that plaintiff suffered three distinct injuries as a result of the fall: (1) a tear involving the posterior horn of the medial meniscus; (2) a possible subtle tear involving the anterior horn of the lateral meniscus; and (3) a tear involving the anterior cruciate ligament (ACL) with some bruising. The radiologist, Dr. Pahlajani, suggested “clinical correlation.” However, although plaintiff successfully underwent an anterior cruciate ligament (ACL) reconstruction on Dec. 20, 1999, Dr. Krasnick summarized the surgical procedure to the ACL without mentioning any menisci tear in need of repair, the implication being that the menisci were intact at the time. By the time of the subject accident in 2000, plaintiff’s left knee condition was generally unremarkable, she was nearing complete recovery, and her anterior knee pain had all but subsided. Serious Impact on Plaintiff’s Life: not detailed Physician’s certification: No issue Polk analysis: Main issue cited by motion judge. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge granted summary judgment to the defendant, concluding that plaintiff failed to produce the required comparative analysis of her pre-existing residuals from the 1999 fall with the injuries she sustained in the subject accident. The motion judge noted that, prior to the subject motor vehicle accident, plaintiff already had a disrupted ACL in 1999, and the MRI at that time also showed meniscal tears. She apparently credited the MRI and radiologist’s interpretation over the findings of the orthopedic surgeon in that regard. Since the injuries were similar following the subject automobile accident, the judge stated that, without a comparative analysis, she could not be sure exactly what injury to plaintiff’s left knee was actually alleged to have occurred as a result of the subject automobile accident. She opined that the newly-raised claim of progressive chondromalacia could not proceed in and of itself; and, while plaintiff’s physician now indicated that she might require future knee replacement, the question remained whether plaintiff’s knee condition and future need for surgery was causally related to the subject accident. Without an appropriate Polk comparative analysis, the judge felt that plaintiff’s claim could not proceed forward, because the trier of fact would have to speculate as to what was “supposed to be due to the motor vehicle accident and what [was] not . . . “ Appellate Court Determination(s): Reversed. Indisputably, the appellate panel found that the objective medical evidence suggested that plaintiff sustained a left knee injury which had not healed to function normally, and would not heal to function normally, even with further treatment. The question was whether sufficient evidence existed to further suggest that the qualifying injury was caused by the subject automobile accident, rather than the 1999 slip and fall accident. The panel was satisfied that the objective medical evidence � including the May 2000 MRI and the physician’s examinations and surgical procedures � created, at the very least, a genuine issue of material fact as to the distinctness of plaintiff’s left knee injuries. Consequently, no Polk comparative analysis was required. According to Dr. Krasnick, who was plaintiff’s treating physician at all times relevant, plaintiff underwent successful ACL reconstruction after the 1999 fall, and was recovering well from that injury. Prior to the subject accident, she was in no acute distress, had good motion, and her left knee was clinically stable. Therefore, whatever the nature and extent of her pre-existing condition, her knee had been essentially functionally quiescent until the subject motor vehicle accident. Under these circumstances, no comparative analysis was necessary as plaintiff’s proofs, even absent Dr. Krasnick’s Dec. 20, 1999, operative report, met the “desideratum of an objectively-based medical opinion that the disability was fairly attributable to the injury suffered in the accident” at issue, sufficient, at least, to withstand the defendant’s summary judgment motion. Of course, the panel noted that causation remained a question of fact for the jury to decide. 52. McKelvey, etc. v. Boker, A-0739-05T5 DDS No. 23-2-3631 Judges Axelrad, Payne and Sabatino April 21, 2006 Result: Summary judgment in favor of defendant is affirmed. Facts/Background: not detailed. Medical Testing and Treatment: not detailed. Prior Injuries: not discussed. Serious Impact on Plaintiff’s Life: not detailed, although plaintiff’s failure to surmount this prong of the verbal threshold test was the reason for the motion judge’s grant of summary judgment to the defendant. Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): Retroactivity of DiProspero and Serrano, pipeline or otherwise. Trial Court Determination(s): The motion judge granted summary judgment to the defendant on Aug. 6, 2004, concluding that plaintiff failed to prove a serious impact on her life as a result of any injury sustained in the subject automobile accident. Plaintiff’s motion for reconsideration was denied by order dated Oct. 13, 2004. Thereafter, only plaintiff’s claim against her PIP carrier remained. Plaintiff’s counsel informed defense counsel that there was a strong probability that he would appeal the trial judge’s grant of summary judgment on the verbal threshold issue after the PIP claim was resolved. On Oct. 18, 2004, defense counsel wrote to both plaintiff’s counsel and the PIP insurer’s counsel, requesting a copy of their stipulation of settlement or dismissal, so that he could properly advise his client when the appeal period had run, should plaintiff choose not to pursue an appeal. He followed up with another request and was told that the matter was close to being settled; and he was promised that he would receive the stipulation shortly. In May of 2005, although he never received a final stipulation, defense counsel learned that plaintiff’s case had, in fact, been reported settled and had been removed from the court docket on Jan. 3, 2005. The Supreme Court decided DiProspero and Serrano on June 14, 2005, removing the serious impact requirement from verbal threshold cases. On July 20, 2005, plaintiff sought to revive her personal injury claim against defendant by filing a motion for reconsideration and/or for relief under R. 4:50-1. She asserted that her case qualified for “pipeline retroactivity” under Beltran v. Delima because her PIP carrier had not yet satisfied the tentative settlement of her PIP claim, no releases had been exchanged, and no stipulation or final judgment had been filed. Thus, she asserted that her case was still “pending.” Alternatively, plaintiff sought an expansion of “pipeline retroactivity” under R. 4:50-1. The trial judge denied her motion. The stipulation of dismissal against the PIP carrier was thereafter filed. Appellate Court Determination(s): Affirmed. Although plaintiff renewed the same arguments on appeal that she had pressed on the trial court, the appellate panel also rejected them, concluding that this was not a pipeline case under Beltran. Plaintiff did not dispute that her PIP case was reported settled and removed from the court docket on Jan. 3, 2005; the filing of a stipulation was therefore an unnecessary formality. Thus, the forty-five days to appeal the final judgment expired on Feb. 17, 2005. After that date, the defendant had the right to assume that the case was over. The appellate panel discerned no basis under the facts of this case to allow the lack of a filed stipulation on the PIP claim as of the date of the DiProspero and Serrano decisions to serve as an excuse to bring this case within the pipeline defined in Beltran. The panel likewise rejected plaintiff’s alternative argument seeking retroactive application of DiProspero and Serrano pursuant to R. 4:50-1, based on Judge Stern’s cogent analysis set forth in the Feb. 27, 2006 appellate opinion in Ross v. Rupert. 53. Robertson v. Jara, A-5460-04T3 DDS No. 23-2-3648 Judges Fuentes and Graves April 24, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on Feb. 25, 2001, when plaintiff was a front-seat passenger in a car owned and operated by his wife. As their car was proceeding south on a road, defendant attempted to make a left turn onto the same street, and collided with plaintiff’s vehicle. Plaintiff alleged that he was wearing his seat belt at the time of the accident. Medical Testing and Treatment: Treating physician: Complaining of back and knee pain, plaintiff treated with Dr. Gangemi for almost three years. The doctor issued a report labeled “Final Narrative” on Feb. 3, 2004, indicating that, after assessment of plaintiff’s condition, and based on his history, complaints, examinations, test results, lack of previous symptoms, and his experience with similar cases, it was his impression that plaintiff’s injuries as shown on the electrodiagnostic testing (see below) were directly and causally related to the subject motor vehicle accident. In all likelihood, the doctor further opined that the affected areas of plaintiff’s body would be permanently weakened and he would experience future exacerbations of his condition. Additionally, future arthritic degenerative changes of the cervical and lumbar spines and lower extremities might occur as a direct result of the injuries sustained in the accident. The doctor indicated that plaintiff had reached maximum improvement under his care, and had been discharged on Jan. 16, 2004. He was to be seen thereafter for palliative care only. On June 30, 2004, Dr. Gangemi prepared a physician’s certification for plaintiff for the purpose of meeting the statutory requirements of AICRA. He averred, within a reasonable degree of medical probability, that plaintiff sustained substantial and permanent loss of a bodily function that would have permanent residual sequelae. Radiology: Four months post-accident, on June 25, 2002, MRI examinations of plaintiff’s lumbar spine and left knee were performed. The July 2, 2002 interpretive report of the lumbar study by Dr. Zinn indicated that plaintiff had: (1) a straightening of the lumbar lordotic curve, which suggested a correlation with muscle spasm; (2) loss of nuclear signal and disc herniation with ventral impingement on the thecal sac at L3-4 and L4-5; and (3) disc thinning and bulging at L5-S1. The MRI test on the left knee indicated an abnormal signal intensity of the medial meniscus. Almost two years post-accident, on Jan. 23, 2004, plaintiff underwent electrodiagnostic testing. A report issued and signed by Dr. Gangemi showed radiculopathy at the left of S1, which appeared to be quite acute. This study also found irritation of the posterior primary RAMI at the right of S1, and peripheral neuropathy, sensory and motor, primarily demyelinating in character. Prior Injuries: None Serious Impact on Plaintiff’s Life: not detailed Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge granted summary judgment to the defendant, concluding that plaintiff failed to present sufficient objective medical evidence that he sustained a permanent injury as a result of the subject automobile accident. In so ruling, the motion judge focused his analysis on the words used by Dr. Gangemi to describe his professional assessment of plaintiff’s injuries, and the causal relationship these injuries had to the automobile accident. Stating that plaintiff was required to prove, through objective clinical evidence, that he suffered a qualifying permanent injury that was caused by the accident, the judge did not find that the doctor’s report “connected the dots.” He noted that most of the report was not framed within a reasonable degree of medical probability. For example, under “prognosis,” the doctor wrote that plaintiff’s traumatic injuries might predispose him to the premature development of osteoarthritis involving the cervical spine, lumbar spine and lower extremities. Moreover, the judge agreed with defense counsel that the final report did not state what part of the diagnosis was related to the accident, and what part was not. The judge cited with disfavor the doctor’s reference to “his impression” that plaintiff’s injuries were causally related to the subject accident, stating that, “it’s not supposed to be an impression, number one, and number two, that conclusion is supposed to be based on objective clinical medical evidence and nothing else.” Accordingly, he found that plaintiff’s proofs failed to meet verbal threshold requirements. Appellate Court Determination(s): Reversed. In the view of the appellate court, the motion judge failed to give plaintiff all of the favorable inferences he was entitled to receive under the standards articulated by the Supreme Court in Brill v. Guardian Life Ins. Co. Here, the court found that the evidence presented to the motion judge showed that plaintiff underwent a series of diagnostic tests that revealed the existence of permanent injuries to his lower back and left knee. While the motion judge correctly noted that plaintiff’s doctor did not articulate a causal link between these injuries and the automobile accident by using the statutorily required language, the appellate court held that, notwithstanding this omission, when viewed in the light most favorable to plaintiff, the record contained sufficient objective medical evidence from which a rational jury could find that these injuries were, in fact, both permanent and causally related to the subject automobile accident. The appellate court further noted that it was undisputed that plaintiff had not been involved in any other accidents, and was asymptomatic prior to the subject collision. Both the MRI and electrodiagnostic studies constituted objective medical evidence that plaintiff suffered traumatic injuries to his lower back and left knee, and that these injuries manifested after the accident. The court felt that this, coupled with the doctor’s account of plaintiff’s treatment history, which also included the medical reasons for his conclusions and opinions, provided a legally sufficient basis for the denial of defendant’s summary judgment motion, and for permitting this controversy to be decided by a jury. Once the matter reached a jury, the appellate court noted that the trial court remained authorized to determine, upon defendant’s renewed motion, whether plaintiff had established a prima facie case that his injuries were both permanent and proximately related to the subject motor vehicle accident. 54. Kromka v. Mankoff, A-3554-04T1 DDS No. 23-2-3668 Judges Lisa and Reisner, April 25, 2006 Result: Summary judgment in favor of defendant is affirmed. Facts/Background: This case arose out of an automobile accident on Sept. 27, 1999, after which plaintiff went to the emergency room. Medical Testing and Treatment: Emergency Room: Plaintiff was treated and diagnosed with contusions to the head and back, and with cervical sprain. The emergency room record did not reflect any diagnosis of concussion. Neurologist: Plaintiff underwent a subsequent course of treatment with Dr. Husar for complaints of forgetfulness, loss of concentration, anxiety, depression and restlessness. After reviewing the objective testing (see below), the doctor diagnosed plaintiff with post-concussion syndrome. He acknowledged in his deposition testimony, however, that his conclusion that plaintiff suffered from any cognitive deficits was based only on plaintiff’s history, and not on any objective testing. Neuropsychologist: Nearly three years post-accident, plaintiff was referred to Dr. Brown by his attorney for an evaluation. Dr. Brown only saw plaintiff on one occasion, and noted in his report that the referral had been made due to plaintiff’s persistent complaints of memory loss. He was asked to assess the current status of plaintiff’s brain-behavior functioning. The doctor took a history from plaintiff and reviewed the neurologist’s reports and the reports of the objective testing. A series of psychological tests was performed � including the “Wexler Adult Intelligence Scale and Memory Scale, the Controlled Digit Span Subtest, the Wisconsin Card Sorting Test, Tests of Dynamic Motor Praxis, Raven Colored Progressive Matrixes, Ray Complex Figure Trail, Making A&B, Wide Range Achievement Test, California Verbal Learning Test, and Bentonly Left Body Part Orientation” (some phonetic). After these tests, Dr. Brown concluded that plaintiff was in the high average or superior range of IQ, but noted that there was a 13-point discrepancy between his verbal and performance IQ scores. The doctor found that plaintiff made spatial placement and size errors while drawing complex figures. There was a greater involvement of his right cortical hemisphere. Other testing suggested that the integrity of plaintiff’s executive controls was compromised and consistent with plaintiff’s complaints of his tendency to forget the purpose for entering a room. The doctor concluded that plaintiff would experience considerable difficulty executing vocational tasks that required efficient visual spatial integrity and executive mental and motor controls. His liabilities rendered him vulnerable to occupational hazards if placed in work settings that required processing demands which were attenuated. The doctor opined that, to a reasonable degree of psychological probability, plaintiff’s defects were due to the subject automobile accident. Defense examination: Plaintiff was evaluated by another neuropsychologist, Dr. Mahalick, for the defense. This doctor apparently issued a negative report; however, since the trial court was obligated to consider the evidence in the light most favorable to the plaintiff, the motion judge did not consider this report in his opinion, and, therefore, neither did the Appellate Division. Radiology: MRI, CT scan, EEG, and Brainstem Auditory Evoked Potential tests were all performed, with negative results. Prior Injuries: None Serious Impact on Plaintiff’s Life: not detailed Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): Standards for evaluating psychological injury under the verbal threshold. Trial Court Determination(s): In granting summary judgment to the defendant, the motion judge noted that all of the objective diagnostic tests had been negative for any physical injuries, and that plaintiff’s neurologist acknowledged at his deposition that plaintiff had no memory or cognitive problems evidenced by objective testing. Thus, plaintiff’s claim of a qualifying injury was limited to his psychological injury. Analyzing Dr. Brown’s report, the judge noted the tests which had been performed and the doctor’s report of the results, but found that his findings, while buttressed by an array of psychological terminology � “sometimes called psycho-babble” � hardly reflected any objective testing of the type that would be required to overcome the verbal threshold. The tests were all subjective and relied on the plaintiff’s ability, to an extent, to control the results. Even the conclusions reached by the doctor with respect to plaintiff’s anticipated work difficulties were difficult for the judge to understand, given plaintiff’s high IQ, the lack of objective medical findings, and the profession which he had pursued in his adult life � landscaping � which he noted Dr. Brown did not specifically address. Appellate Court Determination(s): Affirmed, the appellate panel agreeing that plaintiff failed to provide competent objective medical evidence from which a jury could reasonably find that he suffered a permanent psychological injury caused by the subject accident. While psychological injury could constitute a qualifying injury under AICRA, the panel noted that it nevertheless must still be established by objective, credible medical evidence. The panel reviewed the case of Saunderlin v. E.I. duPont Co., in which the Supreme Court set forth the guidelines for determining whether psychological injuries satisfied the demonstrable objective medical evidence standard prescribed by N.J.S.A. 34:15-36 for worker’s compensation claims. The panel found this standard sufficiently similar to the “objective medical evidence” standard governing proof in limitation on lawsuit cases, and adopted its use in this context. When dealing with a psychological or psychiatric injury, Saunderlin instructed that objective medical evidence was to be viewed more broadly than when dealing with physical injury. To fit within this paradigm, the diagnostic criteria of mental disorders as described in the Diagnostic and Statistical Manual of Mental Disorders (DSM), published by the American Psychiatric Association, must be followed. These diagnostic criteria typically included not only physical manifestations observable independently of the patient’s statements, but also descriptions of states of mind discoverable only through those statements. By following the DSM framework, which included consideration of both manifestations of physical symptoms and descriptions of the patient’s state of mind, objective medical evidence, as conceived by the profession of psychiatry, would be presented. Such evidence might suffice to interpose a professional psychiatric judgment between the subjective statement of the claimant and the ability to recover noneconomic loss, within the parameters set by the Legislature. However, the component of such “objective” psychological or psychiatric evidence that consisted of subjective statements by the patient must include a professional analysis of those statements. The mere “parroting” of the patient’s statement would never be sufficient. Courts would rely to some extent upon the psychiatrist’s professionalism in deploying the clinical method to insure that his or her analysis meaningfully exceeded parroting the subjective statement of the patient. The clinical method required the psychiatrist � or, in this case, the psychologist � to assimilate information from a wide variety of sources, to evaluate each fact, to discount some, to emphasize others, and to ignore still others. Combined with personal observations of the patient, the psychiatrist or psychologist then should put everything together, and arrive at a conclusion. The practitioner must explain what information was accepted and what was rejected; what information was given great weight, and what was minimized; and explain why the clinical material was evaluated in a particular way. The appellate panel first noted that the evaluator here was a psychologist, not a psychiatrist. Nevertheless, for the purposes of it analysis, the panel did not discount the substance or quality of Dr. Brown’s evaluation and report on that basis. The panel considered some of the same factors considered by the court in Saunderlin, namely that the plaintiff did not see a psychiatrist or psychologist until referred by his attorney nearly three years post-accident. Moreover, the evaluation was clearly obtained to assist in the litigation; plaintiff saw Dr. Brown only once, and received no medication or treatment as a result of that visit. The panel noted that Dr. Brown did not render a diagnosis under the DSM, and his analysis did not employ the clinical method required by Saunderlin. The panel held, therefore, that his opinion was nothing more than a net opinion; and it did not constitute objective medical evidence in the expanded form permitted for proving psychological injuries. Summary judgment in favor of the defendant was therefore appropriate. 55. Raspantini v. Arocho, A-2020-04T5 DDS No. 23-2-3669 Judges Kestin and Coleman April 25, 2006 Result: Judgment based on no cause verdict is affirmed. Facts/Background: This case arose out of an automobile accident on May 5, 2000. The plaintiff’s husband of fifteen years passed away several weeks prior to the trial in this case. Medical Testing and Treatment: Treating physician: Dr. Grossman certified that he examined plaintiff on the day after the accident and found muscle spasms present in her cervical and lumbar spine. Because he noted that plaintiff had no history of prior trauma, complaints or treatment related to her neck or lower back, prior to the subject automobile accident, he opined that the subject accident had aggravated and exacerbated plaintiff’s pre-existing spondylolisthesis, and that her pain and suffering after the accident were causally related thereto. Orthopedic surgeon (1): Plaintiff also saw Dr. Ahmad, who testified on her behalf at trial. Orthopedic surgeon (2): Plaintiff was examined for the defense by Dr. Chalmers, who testified on behalf of the defense at trial. Radiology: X-rays and MRI examinations revealed degenerative arthritic changes in plaintiff’s cervical spine, that all of the medical experts agreed existed prior to the subject automobile accident, but were asymptomatic. Prior Injuries: No prior accidents, but plaintiff had pre-existing degenerative arthritic changes in her cervical spine, and spondylolisthesis � the slipping of one vertebra forward in relation to an adjacent vertebra � at L5 in her lumbar spine. All of the medical experts agreed that the abnormal lumbar condition was not causing any symptoms or impairment of function prior to the subject accident, in that plaintiff had been able to perform strenuous construction work in her husband’s business. Serious Impact on Plaintiff’s Life: not detailed, except to note that plaintiff had previously been able to perform strenuous construction work in her husband’s business. Physician’s certification: None. Polk analysis: An issue of causation was involved in this case because plaintiff asserted that her previously quiescent conditions were aggravated by the subject accident. The panel found that the judge’s instructions to the jury in this case, taken as a whole, adequately informed the jury as to the law on this issue. Miscellaneous Issue(s): Jury instructions on proximate cause and “pain” as a permanent injury; per quod claim for plaintiff’s deceased spouse. Trial Court Determination(s): The case was tried to a jury, which submitted two questions to the judge during deliberations: (1) “What is the definition of proximately?” and (2) “Is pain considered injury?” The judge responded to the first question by repeating the legal definition of proximate cause. She stated, “By proximate cause, I refer to a cause that in a natural and continuous sequence produces the accident and resulting injury and without which the resulting accident or injury would not have occurred.” Regarding the second question, plaintiff’s attorney urged the judge just to say “yes,” or to advise the jury that the term “injury” would include aggravation of a pre-existing condition. The judge denied plaintiff’s request, and, instead, opted to reiterate a portion of her initial instruction that incorporated the model jury charge on damages. That instruction stated that the law recognized, as proper items for recovery, the pain, physical and mental suffering, discomfort, and distress that a person may endure as a natural consequence of an injury. The judge stated, “If you find that the pre-existing condition was not causing the plaintiff any harm or symptoms at the time of the accident, but that the pre-existing condition combined with the injuries incurred in the accident to cause her damage, then the plaintiff is entitled to recover for the full extent of the damages she sustained. “Now I’ll explain what happens if the plaintiff had a predisposition or weakness which was causing no symptoms or problems before the accident but made her more susceptible to the kind of medical problems she claims in this case. If the injuries sustained in this accident again combined with that predisposition to create the plaintiff’s medical condition, then the plaintiff is entitled to recover for all of the damage sustained due to that condition. However, you must not speculate that an individual without such predisposition or latent condition would have experienced less pain, suffering, disability and impairment. “Now the law also recognizes as proper items for recovery the pain, physical and mental suffering, discomfort and distress that a person may endure as a natural consequence of the injury.” Within ten minutes of receipt of these responses from the judge, the jury returned its verdict of no cause for action. Specifically, the jury answered “no” to the question of whether the injuries alleged by plaintiff were proximately caused by the subject automobile accident. Consistent with that finding, the court entered judgment in favor of the defendant. Plaintiff contended that the subject accident aggravated and exacerbated her pre-existing cervical and lumbar conditions, which had been quiescent prior to the accident, whereas, afterward, she endured significant pain on a daily basis. She appealed the adverse verdict, arguing that the jury instructions “misstated the law and were overly confusing.” She contended that the trial judge erred when she (1) refused to instruct the jury that her pain could constitute her “permanent injury” under AICRA; and (2) failed to answer the jury’s specific question in that regard. Additionally, plaintiff asserted that the trial judge erred in effectively dismissing the per quod/loss of consortium claim of her deceased husband by failing to charge the jury on it. She argued that the loss of consortium claim should have been awarded to the date of her husband’s death, with a particularized claim that the loss of her services to the husband’s small business survived and was assertable by her husband’s estate. Appellate Court Determination(s): Affirmed. The appellate panel noted the importance of correct jury instructions and discussed the standard by which they should be examined for reversible error. In this case, the panel found that the trial judge had reiterated the relevant portions of the model jury charge on proximate cause and damages in response to the jury’s questions. The judge’s response to the inquiry about “pain” incorporated an excerpt from model jury charge sec. 6.11F on damages. The judge’s response was, according to the panel, a cautious and appropriate one. She understandably sought to avoid imposing on the jury’s province by giving an answer to its question that could have been perceived as a direction to the jury “to do something that they were not even thinking about doing.” The response given by the judge, though not the categorical answer plaintiff was urging, conveyed proper information � that pain was an element of damages that was to be considered and included if the jury determined that an injury had been caused by the accident. In truth, the panel noted that pain was not synonymous with injury. Thus, it found that the trial judge was justifiably concerned that a direct, unqualified response to the question, “Is pain considered injury?” could potentially mislead the jury and misdirect its focus from the threshold issue of causation. As the judge instructed, pain that a person endures as a natural consequence of an injury is recognized as a proper item for recovery. Pain may be a result or a symptom of an injury, but it is not the equivalent of an injury. Discussing the applicability of the Polk v. Daconceicao standard, the panel noted that plaintiff was required by that case to provide a comparative analysis that demonstrated that her pre-existing condition had been aggravated by the subject accident, not merely that she had experienced pain or greater pain following the accident. Without such an analysis, the conclusion that the pre-accident condition was aggravated had to be deemed insufficient to overcome the verbal threshold. The panel found that the judge’s instructions to the jury in this case, taken as a whole, adequately informed the jury as to the law on this issue. The instruction was not limited to the court’s response to the questions from the jury; rather, it included language which tied the pre-existing condition to the allocation of fault (see quoted language of charge in prior section). Thus, the panel was satisfied that the jury had an adequate context for consideration of the issue of aggravation of the pre-existing condition and that there was no reversible error in the responses the judge provided to the jury’s questions. Regarding plaintiff’s remaining assertion of error in the dismissal of the per quod claim, the panel noted Judge Petrella’s statement, made twenty years ago in Tichenor v. Santillo, that “a per quod claim is only maintainable by reason of a spouse’s personal injury. It depends upon and is incidental to the personal injury action . . . and can rise no higher than the personal injury claim of the other spouse.” Based on the appellate panel’s affirmance of the jury’s verdict of no cause, plaintiff’s assertion that the per quod claim survived the death of her husband was rendered moot. 56. Sadler v. Kayiales, A-5832-04T1 DDS No. 23-2-3683 Judges Lintner and Parrillo April 26, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident between the parties which occurred on May 13, 2002. Medical Testing and Treatment: Emergency Room: Following the accident, plaintiff was treated at a local hospital, although details were not provided. Chiropractor: Plaintiff treated with Dr. Doyle, who performed spinal manipulations and referred plaintiff to Dr. Brody, who kept him apprised of his observations and findings (see below). In a report dated Oct. 1, 2003, the chiropractor noted plaintiff’s prior accident. He opined, however, that it was the subject accident which had caused permanent injury to the cervical spine, demonstrated by the disc herniation at C6-7, as well as left wrist carpal tunnel syndrome. As a result of her injuries, the doctor noted that plaintiff had chronic symptomatology and had responded more slowly than average to treatment. He noted that plaintiff was then currently treating once a week in order to control her cervical and upper trapezial symptoms, as well as headaches. He finally noted that plaintiff’s injuries had created physical limitations which limited the amount of lifting, carrying, pushing, or pulling she could do, using her upper body. If she tried such activities, her symptoms increased. Physical medicine and rehabilitation doctor: Between Aug. 22, 2002, and April 10, 2003, Dr. Brody prepared multiple reports and sent them to Dr. Doyle. Following objective testing (see below), Dr. Brody diagnosed plaintiff with a herniation at C6-7 and carpal tunnel syndrome. Orthopedic specialist: Plaintiff was examined for the defendant by Dr. Glenn. He noted that the MRI performed after plaintiff’s prior accident in 2000 had revealed a cervical disc bulge at C6-7, the same location as the disc bulge shown post-accident. He opined that the disc bulge was insignificant, however, because from his review of the MRI, he “could not appreciate a so-called herniated disc,” and, even if one were there, it was not causing neural compromise. The doctor concluded that plaintiff sustained an initial aggravation of pre-existing chronic cervical and lumbar sprain, which was not substantiated with concrete reproducible physical findings. He also did not believe plaintiff suffered from carpal tunnel syndrome. Radiology: Plaintiff underwent an MRI examination on Nov. 4, 2002, which revealed disc bulging at C6-7, as well as a small central herniation causing impression on the anterior aspect of the thecal sac. An EMG of plaintiff’s left wrist on Nov. 14, 2002, showed acute left carpal tunnel syndrome with no evidence of cervical radiculopathy. Prior Injuries: Plaintiff was involved in a prior motor vehicle accident on Dec. 31, 1999, in which she sustained cervical injuries. At that time, an MRI conducted in May 2000 revealed a bulging disc at C6-7. Serious Impact on Plaintiff’s Life: Plaintiff’s injuries created physical limitations which limited the amount of lifting, carrying, pushing, or pulling she could do, using her upper body. The motion judge concluded that these limitations were insufficient to show the then-required serious impact on plaintiff’s life. Physician’s certification: None. Polk analysis: The motion judge dismissed plaintiff’s complaint for failure to provide a comparative analysis of her pre- and post-accident residuals, in light of the fact that she had injured the same body part in a prior accident. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge acknowledged the objective evidence that plaintiff had sustained a cervical disc herniation at C6-7 after the subject accident and that the injury was permanent; however, he granted summary judgment to the defendant, concluding that plaintiff failed to present the necessary comparative analysis to distinguish her present injury from a similar injury she sustained in her prior accident in 1999, pursuant to Polk v. Daconceicao. He also noted that plaintiff had failed to produce any evidence that her injury had a significant impact on her life. Appellate Court Determination(s): Reversed. The appellate panel noted the Supreme Court’s elimination of the serious impact requirement in DiProspero and Serrano. It also concluded that a Polk comparative analysis was not necessary in this case, given the nature of plaintiff’s proofs. The panel found that the medical evidence established that plaintiff’s post-accident cervical herniation and carpal tunnel syndrome were sufficiently distinguishable from the pre-accident diagnosed disc bulging to establish that a genuine issue of material fact remained concerning the nature and extent, as well as causation, of plaintiff’s alleged injuries. Indeed, the panel noted that the motion judge correctly found that there was sufficient evidence to establish a distinctive injury of herniation as well as permanency following the second accident. He then, however, confused the need for a Polk comparative analysis with the pre-AICRA necessity to establish a serious impact on life. He mistakenly determined that plaintiff had to show that she sustained a consequential and distinctive serious life impact beyond that which she suffered as a result of the earlier accident. As the panel had previously pointed out, the need to establish such a serious life impact was no longer required under AICRA. Accordingly, the dismissal of plaintiff’s noneconomic claims was reversed and the matter remanded for trial. 57. Murphy v. Naomi, A-0745-04T3 DDS No. 23-2-3684 Judges Collester and Reisner April 26, 2006 Result: Jury verdict in favor of defendant is reversed. Facts/Background: This case arose out of an intersectional automobile accident between the parties on Dec. 26, 1999. Medical Testing and Treatment: not detailed, except to note that plaintiff produced evidence that, as a result of the accident, he suffered permanent injuries including a chronic sprained neck; a herniated disc in his neck; limited motion of the low back; abnormal sensation from the back of his thighs down the inner side of his leg to the sole of his foot; and injury to the ligaments and muscular structure around the spine and nerve tissue within the spine, which caused pain and numbness in his legs. Radiology: not detailed, but testing apparently was conducted and revealed a herniated cervical disc. Prior Injuries: None mentioned. Serious Impact on Plaintiff’s Life: not detailed, but the judge instructed jury in accordance with the then-applicable Oswin test, and required that they find that plaintiff sustained permanent injuries in the accident and that these injuries caused a serious impact on his life. Physician’s certification: None. Polk analysis: None. Miscellaneous Issue(s): None Trial Court Determination(s): Liability was admitted, and the major issue at trial was the permanency of plaintiff’s injuries, which was the subject of disputed expert medical testimony. The judge denied defendant’s motion to dismiss, made after both sides had rested, asserting that plaintiff failed to meet the verbal threshold. The judge determined to submit the issue to the jury. The judge’s jury instructions, and the one interrogatory on the jury verdict form, were consistent with the law as it existed at the time of trial under James v. Torres. The judge instructed the jury that it had to find that plaintiff proved that, as a result of the accident, he had sustained permanent injuries within a reasonable degree of medical probability. He also instructed the jury that, in addition to proving permanent injuries, the plaintiff also had to prove that his injuries had a serious impact on his life. The single interrogatory on the verdict sheet similarly asked, “Has the plaintiff sustained a permanent injury as a result of the accident that has had a serious impact on his life?” The jury found no cause for action, unanimously answering the one interrogatory in the negative. Plaintiff unsuccessfully moved for a new trial, and appealed. Appellate Court Determination(s): Reversed. While plaintiff’s appeal was pending, the Supreme Court decided DiProspero and Serrano, which eliminated the serious impact requirement from the verbal threshold test. Since both the jury instructions and the single interrogatory on the verdict sheet related, in part, to the significant life impact test, the verdict had to be reversed and the matter remanded for a new trial. 58. Davis v. Mariani, A-6510-04T2 DDS No. 23-2-3715 Judges Lintner and Holston Jr. April 28, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident which occurred at 3 a.m. on the morning of October 5, 2003, when defendant crossed over a concrete median and collided with the vehicle in which plaintiff was a passenger. Plaintiff contended that, at the moment of impact, his right hand jammed against the dashboard of the vehicle, causing injuries to his hand and wrist. Medical Testing and Treatment: Family physician: Plaintiff first treated with his family physician, Dr. Dalsey, on Oct. 17, 2003. After reviewing the MRI results (see below), the doctor put a cast on plaintiff’s right hand and wrist. In a treatment note dated Oct. 24, 2003, the doctor wrote that he believed plaintiff’s partial tear “should heal well, with conservative treatment.” Orthopedic surgeon: Plaintiff later treated with Dr. Ranier, commencing on Dec. 18, 2003. The doctor diagnosed plaintiff’s injury as a tear of the ulna collateral ligament of the right thumb. In addition to immobilization, plaintiff’s treatment consisted of physical therapy and a home exercise program. In a report of a clinical examination on Dec. 2, 2004, fourteen months post-accident, Dr. Ranier found that plaintiff had tenderness and soreness about the metacarpal phalangeal joint, swelling along the ulna border and stiffness and tenderness on palpation. He opined that the torn ulna collateral ligament was a significant injury, for which plaintiff would have permanent residuals. Dr. Ranier also supplied a physician’s certification of permanency for plaintiff’s lawsuit, based on clinical objective findings and objective medical tests, as required by AICRA. Radiology: An MRI examination of plaintiff’s right hand and wrist, conducted on Oct. 22, 2003, showed a “prominent strain/partial tear of the medial collateral ligament first metacarpophalangeal joint space.” Prior Injuries: None. Serious Impact on Plaintiff’s Life: not detailed. Physician’s certification: No issue. Polk analysis: None. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge granted summary judgment to the defendant, concluding that plaintiff failed to prove that the tear of the ulna collateral ligament of his right thumb constituted a permanent injury, proximately caused by the subject automobile accident. The motion judge relied on Dr. Dalsey’s Oct. 24, 2003 treatment note � opining that plaintiff’s tear should heal well with conservative treatment � in granting defendant’s motion. Appellate Court Determination(s): Reversed. Assuming that plaintiff’s version of the facts was true, and giving him the benefit of all favorable inferences, the appellate panel concluded that plaintiff’s proofs met the verbal threshold requirements after DiProspero and Serrano. Plaintiff asserted that his injury satisfied the sixth category of the verbal threshold, defined as “a permanent injury within a reasonable degree of medical probability which had not healed to function normally and would not heal to function normally with further medical treatment.” In support of this assertion, plaintiff had supplied objective, credible medical evidence through the MRI finding of a partial tear of the ulna collateral ligament of his right thumb, and clinical findings on physical examination, fourteen months post-accident, of continued swelling along the ulna border of the metacarpal phalangeal joint. Additionally, Dr. Ranier had supplied a physician’s certification that plaintiff’s injury was permanent. Accordingly, the panel was satisfied that plaintiff had submitted the requisite evidence to satisfy the limitation on lawsuit threshold sufficient to allow a jury to resolve his claim for noneconomic damages. The summary judgment order was reversed and the matter remanded for trial. 59. Monaghan v. Rosenberg, A-5613-04T3 DDS No. 23-2-3822 Judges Fisher and Humphreys May 9, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident between the parties on Dec. 12, 2002. Medical Testing and Treatment: Treating physician: Plaintiff’s physician, Dr. Tiedrich, filed a physician’s certification of permanency for plaintiff’s lawsuit stating that plaintiff had sustained the following injuries in the subject automobile accident: chronic secondary fibromyositis and myofascitis of the cervical, dorsal and lumbosacral spine, acute at C3-4 and C4-5 “HNP.” The doctor indicated that his diagnosis was based on his physical examination and observation of plaintiff and a post-accident cervical MRI study (see below). Dr. Tiedrich opined that plaintiff sustained permanent injury within a reasonable degree of medical probability and that her body parts had not healed to function normally and would not heal to function normally with further medical treatment. Radiology: An MRI examination of plaintiff’s cervical spine was performed on Dec. 20, 2002, eight days post-accident. The impression of the radiologist was: “tiny right foraminal disc herniation C3-4. Small central disc herniations C4-5. No compromise of neural structures is noted. There is only minimal impression upon the thecal sac at both levels.” Prior Injuries: Plaintiff sustained neck and back injuries in previous accidents. An MRI was taken a few months prior to the accident in this case. The impression of the radiologist at that time was that there was straightening of the cervical lordosis with reversal at C3 over C4 associated with bulging annulus fibrosus encroaching upon subarachnoid space. Serious Impact on Plaintiff’s Life: not detailed, although the motion judge found that plaintiff had not met this requirement. Physician’s certification: No issue. Polk analysis: The motion judge found that plaintiff had not met the comparative analysis requirement, but the Appellate Division disagreed. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge granted summary judgment to the defendant, concluding that plaintiff had neither shown that her injury had a serious impact on her life, nor met the comparative analysis requirement set forth in Polk v. Daconceicao. Appellate Court Determination(s): Reversed. The appellate panel first noted that the serious life impact requirement had been eliminated by the Supreme Court’s decisions in DiProspero and Serrano. The panel also concluded that plaintiff had met the Polk comparative analysis requirement. As to proof of permanent injury, an issue which the motion judge had not addressed, the appellate panel determined to exercise its original jurisdiction to resolve the issue, and held that the plaintiff had established a jury question as to whether she met the AICRA requirements in that regard. With respect to permanent injury, the panel noted the MRI examinations before and after the subject accident, and found that a legitimate inference from the change shown by the second MRI was that the subject accident caused two disc herniations. A jury could reasonably find that a herniated disc was a permanent injury. Plaintiff did not have to prove that this injury was serious. Thus, a jury question was presented as to permanency. With respect to the Polk comparative analysis requirement, the panel noted that whether the requirement was still viable under AICRA following DiProspero and Serrano was in dispute and presently under consideration by the Supreme Court in Davidson v. Slater. The panel concluded that it did not need to state its own view of the controversy, however, because, even if Polk survived, plaintiff had met its requirements in this case. The panel noted that plaintiff’s treating doctor was aware of her prior accidents and injuries. His conclusion was that, after the subject accident, she had sustained “significant exacerbation of her neck symptomatology as well as pain radiating down to the left shoulder and left arm area.” The doctor also referred to the new MRI as being different from the previous MRI, and noted that the new MRI demonstrated disc herniations at C3-4 and C4-5. The purpose of the Polk requirement was to enable the trier of fact to have a sufficient factual basis to decide what causative effect, if any, the injuries in the prior accident might have had on the injuries plaintiff alleged were sustained in the accident in the current suit. Here, the difference in the MRI studies, when coupled with the treating doctor’s opinion and discussion of those differences, provided a sufficient factual basis for the trier of fact to assess the causative effect of any prior accidents. Hence, the panel concluded that the Polk requirements had been met. The panel concluded that the proofs in this case presented jury questions. Consequently, the defendant’s motion for summary judgment should have been denied. The matter was reversed and remanded for further proceedings. 60. Diemer v. Plath Jr., A-1993-04T1 DDS No. 23-2-3875 Judges Rodriguez and Alley May 12, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on Sept. 3, 2002, which occurred when plaintiff’s vehicle, which was completely stopped at a traffic light, was rear-ended by defendant’s vehicle. The impact of the collision forced plaintiff’s vehicle into the car in front of it. As a result, the 35-year-old plaintiff’s body was forced forward, his head struck the rear view mirror, and his knees struck the steering wheel and dashboard. Paramedics responded to the scene and transported plaintiff to the hospital. Medical Testing and Treatment: Emergency Room: Plaintiff’s head lacerations were sutured. X-rays of his back were negative, and plaintiff was discharged with instructions to see a neurologist. Neurologist: Dr. Oh examined plaintiff and administered CAT scan and MRI tests in April of 2002. The CAT scan was normal; however, the MRI disclosed “disc herniations between L3-4, L4-5 anterolateral to the right of the midline, compressing to the thecal sac.” In a report dated Feb. 18, 2003, the doctor mentioned plaintiff’s prior work-related injury and surgery (see below), but did not distinguish it from his recent injury. He opined that plaintiff had “manifested exacerbated lumbar radiculopathy resulting in painful restricted motion of the lower back with radiating pain to the right leg,” and that this symptom might recur with plaintiff’s underlying problems with radiculopathy. Orthopedist: Dr. Weiss examined plaintiff, who complained of intermittent low back pain and stiffness, and numbness and tingling in the right leg through to the ankle, intermittently. The doctor opined that plaintiff suffered from the following: “chronic post-traumatic lumbosacral sprain and strain; herniated nucleus pulposus L3-4, L4-5, right lumbar radiculitis; aggravation of the pre-existing lumbar pathology; and right lumbar myofascial pain syndrome.” With respect to plaintiff’s prior work-related accident, Dr. Weiss concluded that plaintiff had made a satisfactory recovery, and stated that he had been tolerating his daily activities with no restrictions following the surgery. He then noted that the restrictions in plaintiff’s activities of daily living following the subject automobile accident “would be considered a permanent disability in and of itself using the AMA Guidelines, Fifth Edition.” He added that plaintiff’s “visualized pain level involving his lumbar spine at that time was only mild in nature.” He further noted that it was apparent that plaintiff certainly had accelerated and aggravated his underlying lumbar conditions, as well as sustained a new two-level disc herniation. Radiology: X-rays taken of plaintiff’s back in the emergency room on the date of the accident were negative, as was a CAT scan taken later by plaintiff’s neurologist. An MRI examination also performed in April 2002 by plaintiff’s neurologist disclosed “disc herniations between L3-4, L4-5 anterolateral to the right of the midline, compressing to the thecal sac.” Prior Injuries: Four years before the subject accident, plaintiff sustained a work-related injury while trying to lift a forty-pound box of paint. His doctor at the time, Dr. Vessa, diagnosed “lumbar disc herniations at L4-5, right lumbar radiculopathy status post previous lateral disc herniations at L5-S1.” Plaintiff received two epidural injections for pain and eventually underwent a laminectomy in July 2000 to treat the herniated discs. After the surgery, plaintiff underwent six weeks of physical therapy. He was out of work for ten weeks. Serious Impact on Plaintiff’s Life: not detailed, although the orthopedist indicated that plaintiff had more difficulty performing his daily activities subsequent to the subject accident; the motion judge found that plaintiff failed to meet Oswin’s serious impact requirement because he did not produce a sufficient Polk comparative analysis (see below). Physician’s certification: No issue. Polk analysis: The motion judge concluded that plaintiff had not satisfied the second prong of the Oswin test because there was no proper Polk analysis comparing his residuals prior to the accident to the injuries suffered in the subject accident. Miscellaneous Issue(s): Whether defendant had to plead the verbal threshold as an affirmative defense. Trial Court Determination(s): At trial, the plaintiff successfully moved for summary judgment on liability. He then moved to preclude defendant from raising the verbal threshold as a defense, since it had not been pleaded as one of the nineteen separate defenses in defendant’s answer; plaintiff argued that it was therefore waived. The motion judge denied this motion, concluding that the verbal threshold was not an affirmative defense. The motion judge then granted defendant’s summary judgment motion, concluding that, although plaintiff had met the first prong of the Oswin test through the MRI’s revelation of a disc herniation, he had not satisfied the second prong because there was no proper Polk analysis comparing his residuals prior to the accident to the injuries suffered in the subject accident. Appellate Court Determination(s): Reversed. The appellate panel noted that the necessity of providing a comparative analysis in pre-AICRA cases when there was a pre-existing injury affecting the same body part was well-settled. However, the panel also noted the growing controversy surrounding the continued viability of the Polk requirement under AICRA, in the wake of the Supreme Court’s recent elimination of the serious impact prong of Oswin in DiProspero and Serrano. By virtue of the certification granted in Davidson v. Slater, the panel noted that the issue was then pending resolution before the Supreme Court. However, the panel went on to say that it need not decide whether or not a Polk analysis was necessary in this case because it was satisfied that, viewing plaintiff’s evidence in the most favorable light, he had vaulted the verbal threshold even if the requirement still existed. The panel felt that Dr. Weiss’s report distinguished the two accidents, pointing out that plaintiff’s pain had increased since the first accident and the disc herniation diagnosis. While defendants argued that this report was flawed because it did not make note of the June 2000 or April 2002 MRI films, and the doctor did not review the records from the prior accident, the appellate panel stressed that these deficiencies went to the weight of the doctor’s opinion. The panel noted that the court was required to assume that plaintiff’s proofs were true for the purpose of the summary judgment motion. Although the orthopedist’s report did not go into a comparative analysis in depth, the panel concluded that it did differentiate and explain plaintiff’s two injuries sufficiently to survive defendant’s motion. Given the conclusion that the motion judge should have denied defendant’s summary judgment motion, the panel felt that it did not need to address plaintiff’s other contentions: (1) that the motion judge erred in determining that defendant’s failure to raise the threshold as an affirmative defense did not preclude it as a defense pursuant to R. 4:5-4; or (2) that the doctrines of equitable estoppel, waiver and laches precluded defendant from raising the threshold as a defense. 61. Amabile v. Patel, A-3347-04T1 DDS No. 23-2-3916 Judges Wefing, Wecker and Graves May 17, 2006 Result: Summary judgment in favor of defendants is reversed. Facts/Background: This case involved two separate motor vehicle accidents occurring just over six months apart; the first occurred on March 25, 2001, and the second on October 1, 2001. Medical Testing and Treatment: not detailed. Prior Injuries: None discussed. Serious Impact on Plaintiff’s Life: not detailed, although the trial court found that plaintiff had failed to prove such an impact on his daily life activities. Physician’s certification: No issue. Polk analysis: Not discussed by the trial court; however, the appellate panel noted that, since the matter had to be remanded for reconsideration in light of the new legal standards, it might be necessary for plaintiff to meet the comparative analysis requirement of Polk at the time of remand, since he had been involved and injured in two separate accidents. Miscellaneous Issue(s): None Trial Court Determination(s): The trial court granted summary judgment to the defendants, finding that plaintiff had not sustained an injury in either accident that was permanent and serious, and therefore had not met the first prong of the verbal threshold test. Additionally, the court found that plaintiff had not shown that his injuries had a serious impact on his life. Appellate Court Determination(s): Reversed. While the appellate panel noted that the trial court carefully adhered to controlling authority in effect at the time of its decisions, the panel stressed that it was no longer necessary for a plaintiff to show an injury that was both permanent and serious to vault the verbal threshold. In light of the recent Supreme Court decisions in DiProspero and Serrano, the legal analysis of verbal threshold cases had been substantially changed, and the panel noted that those decisions were applicable to this case. The panel was unable to say with any sense of certainty how the trial court would have decided this case under the new standard. Therefore, the grant of summary judgment to the defendant was reversed and the matter remanded for reconsideration in light of the now-prevailing standards. Depending on the trial court’s initial determinations regarding the extent and nature of plaintiff’s injuries, the panel noted that it might also be necessary to determine whether plaintiff must satisfy the comparative analysis requirement of Polk v. Daconceicao in light of his having sustained injuries in two separate accidents. 62. Collins v. Rosinski, A-6194-04T5 DDS No. 23-2-3956 Judges Conley and Winkelstein May 22, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident in September of 2000. Plaintiff filed a complaint alleging (1) negligence on the part of defendant, which proximately caused her injuries; (2) a claim for PIP benefits and medical expenses against her automobile insurance carrier, State Farm Insurance Company; and (3) a per quod claim on behalf of her husband. Medical Testing and Treatment: Treating physician: Plaintiff’s physician noted her prior history of back and knee problems, and opined that the subject automobile accident had exacerbated these pre-existing conditions to a significant degree, which required much more intensive and invasive treatment modalities, including corticosteroid injections to the knee, as well as lumbar epidural steroid injections. Due to a lack of response to these injections, plaintiff was then required to undergo invasive surgery; she underwent arthroscopic surgery on her knee, as well as a lumbar decompressive laminectomy procedure. The doctor opined that, as a result of the subject accident, plaintiff’s post-traumatic arthritis had accelerated and been exacerbated to the point where she was now a candidate for total knee arthroplasty. Radiology: not detailed. Prior Injuries: Plaintiff’s expert noted in his report that plaintiff had a significant documented history of prior back complaints and some prior complaints of knee pain. These had been treated with analgesics, as well as therapy and traction. Serious Impact on Plaintiff’s Life: not detailed. Physician’s certification: No issue. Polk analysis: The plaintiff’s failure to produce a comparative analysis was the basis for the motion judge’s grant of summary judgment to the defendant on plaintiff’s negligence claims. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge dismissed the first count of plaintiff’s complaint on defendant’s motion for summary judgment, based upon plaintiff’s failure to surmount the verbal threshold. The judge reasoned that plaintiff had failed to produce the required comparative analysis of her pre- and post-accident residuals in light of her prior back and knee problems. The third count for the per quod claim also was dismissed since the husband’s claim could rise no higher than that of his wife. The dismissal order was interlocutory, since the PIP claim against State Farm remained unresolved. Nevertheless, plaintiff appealed the order without obtaining leave. Appellate Court Determination(s): Reversed. Since the appellate panel was advised at oral argument that plaintiff’s PIP matter had since been resolved, it chose to address the merits of her appeal. The rationale for the panel’s reversal was two-fold. First, this panel agreed with the holding in Davidson v. Slater that a Polk comparative analysis was not a matter for a verbal threshold summary judgment determination, given DiProspero and Serrano. Second, the panel found that plaintiff’s medical expert, in any event, had provided a sufficient comparative analysis to overcome defendant’s threshold motion, even if such an analysis were still required. Of course, the panel noted that, although the plaintiff’s proofs were sufficient for purposes of overcoming defendant’s motion, it remained an open question as to whether the proofs would ultimately satisfy the jury at trial. 63. Moylan v. Mehta, A-0035-05T5 DDS No. 23-2-3985 Judges Lefelt and Seltzer May 24, 2006 Result: Summary judgment in favor of defendant is affirmed. Facts/Background: This case arose out of an automobile accident between the parties which occurred on June 24, 2003. Plaintiff claimed permanent injuries to her cervical spine and knee. Medical Testing and Treatment: Treating physician (1): Dr. Gecha saw plaintiff for her knee problems. No physician’s certification of permanency was provided with respect to the knee injury. The doctor submitted a report in response to defendant’s summary judgment motion, but the diagnosis was based primarily upon plaintiff’s subjective complaints of pain and range of motion tests. The doctor described plaintiff’s knee status as “clinically stable.” She had full range of motion and no effusion. His impression was tendonitis. Her last treatment for the knee injury was in November 2003. Treating physician (2): Plaintiff saw Dr. Miller with respect to her cervical injuries. He did provide a physician’s certification of permanency for plaintiff’s lawsuit with respect to her cervical injuries; however, he did not mention the MRI finding of degenerative spondylosis. He reported decreased range of motion and palpable muscle spasm, but only five months post-accident and not thereafter. Radiology: An MRI examination and X-rays of plaintiff’s knee were negative. An MRI examination and X-rays of plaintiff’s cervical spine failed to show any indication of disc bulging or herniation; it did reveal evidence of degenerative spondylosis. Prior Injuries: There was evidence of a pre-existing degenerative condition in plaintiff’s cervical spine. Serious Impact on Plaintiff’s Life: not detailed. Physician’s certification: No issue. Polk analysis: None. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge granted summary judgment to the defendant, concluding that plaintiff failed to produce the requisite objective medical testing necessary to surmount the verbal threshold. With respect to the knee injury, the judge noted that the objective testing was negative. She further noted that plaintiff’s treating physician had not submitted a physician’s certification of permanency as to this injury. Moreover, his report was based on plaintiff’s subjective complaints of pain and range of motion tests. The knee was noted as being clinically stable, with no effusion and full motion. The diagnosis was tendonitis. The judge noted that plaintiff only treated for five months after the accident, and did not receive any treatment for her knee thereafter. With respect to the cervical injury, the objective testing showed no disc bulging or herniation, but only a degenerative condition, which plaintiff’s treating physician failed to mention. Moreover, there was no evidence that the degenerative condition was caused or affected by the accident. Plaintiff’s treating physician found decreased range of motion and muscle spasms in the cervical spine. The judge noted that range of motion deficits were insufficient as objective proof of injury under the verbal threshold. While muscle spasms could constitute objective proof of injury, they could do so only if they were persistent and of long duration. Here, the spasms were only noted five months post-accident, and not further after treatment; therefore the injuries were not permanent. Appellate Court Determination(s): Affirmed. The appellate panel’s independent review of the record left it in full accord with the motion judge’s evaluation of the submissions and her application of the law. Plaintiff’s argument that the physician’s certification she submitted in accordance with AICRA created a factual issue and compelled the denial of the defendant’s motion was refuted in Rios v. Szivos. Accordingly, the summary judgment dismissing plaintiff’s complaint was affirmed. 64. Fitch v. Coca, A-0655-05T1 DDS No. 23-2-4052 Judges Cuff and Parrillo May 31, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on June 14, 2002, when plaintiff’s vehicle was rear-ended by defendant’s vehicle. Plaintiff did not seek medical attention on the date of the accident. Medical Testing and Treatment: Emergency Room: Plaintiff went to the emergency room on the day after the accident with complaints of pain in her neck, shoulders, back and hands. She was diagnosed with neck and back sprain and released. Treating physician: Plaintiff treated with Dr. Friedman from June 20, 2002, six days post-accident, through May 30, 2003. In his initial report the doctor stated that his physical examination revealed neck and back spasm and tenderness; these persisted throughout the entire course of plaintiff’s treatment. He referred to plaintiff’s having been in a prior motor vehicle accident in 1997, but noted that she had been asymptomatic prior to the subject accident. He reiterated that plaintiff had been functioning well before the subject accident in a subsequent report dated Feb. 27, 2003. Upon discharge on May 30, 2003, the doctor diagnosed plaintiff with cervical sprain and strain with radiculopathy; herniated disc and stenosis; lumbosacral sprain and strain with probable lumbar radiculopathy; and sprain and strain to the right hand and wrist. Because plaintiff had been asymptomatic after her 1997 accident and before the subject accident, the doctor concluded that her current injuries were directly caused by the subject accident and were permanent in nature. Radiology: An EMG/NCV test was performed on Aug. 10, 2002, and confirmed C6-7 cervical radiculopathy. A cervical MRI examination performed on Sept. 24, 2002, revealed, among other things, straightening of the lordotic curvature producing mild central spinal stenosis from C2-7, and mild bilateral foraminal narrowing at C6-7 and C7-T1 associated with a small posterior central-to-right sided disc protrusion at C6-7, compressing the anterior cervical cord. Finally, a Feb. 19, 2003, lumbar MRI demonstrated a disc herniation at L4-5, and stenosis. Prior Injuries: Plaintiff had been involved in a previous motor vehicle accident in 1997, wherein her vehicle was hit by a truck at an intersection. She injured her hip, back, neck and head. She underwent surgeries (1) on her left knee and (2) for carpal tunnel syndrome on both hands. Serious Impact on Plaintiff’s Life: not detailed Physician’s certification: No issue Polk analysis: Main issue, the motion judge dismissing plaintiff’s complaint because she failed to provide such an analysis, and the Appellate Division concluding that such an analysis was not necessary in this case. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge granted summary judgment to the defendant, concluding that, while plaintiff did establish an injury by objective evidence, her proofs did not establish a Polk comparative analysis, which he deemed necessary because of plaintiff’s prior accident and injuries. The judge opined that there had to be an evaluation by plaintiff’s expert of the medical records before and after the current trauma. He did not find that the reports of plaintiff’s expert � noting that plaintiff had previously been asymptomatic � sufficed in that regard, and felt that there should have been some discussion of pre- and post-accident objective evidence, such as whether plaintiff had sustained disc herniations and disc bulges before. He felt that Dr. Friedman’s reports only recognized the prior injuries, without any real analysis other than to opine, without comparison, that plaintiff appeared to have become worse after the subject accident. Appellate Court Determination(s): Reversed. The appellate panel concluded, citing Davidson v. Slater, that there was no need for a Polk analysis in this case, since Polk had no continuing viability in the context of a verbal threshold motion under AICRA. Further, the panel was satisfied that the objective medical evidence, including the MRI tests and EMB/NCV evaluation, along with the physician’s examinations and resulting findings, raised a genuine issue of material fact as to whether the subject accident caused injuries to plaintiff’s neck and back which had not healed to function normally, and would not heal to function normally with further medical treatment. According to Dr. Friedman, plaintiff was asymptomatic prior to the current accident, and whatever the nature and extent of her pre-existing condition, her physical symptoms had been functionally quiescent until the subject accident. Under these circumstances, no comparative analysis was necessary as plaintiff’s proofs, without more, met the “desideratum of an objectively-based medical opinion that the disability [was] fairly attributable to the injury suffered in the accident,” at issue, sufficient at least to withstand defendant’s motion for summary judgment. Of course, the panel stressed that causation remained a question of fact for the jury to decide. 65. Cajigas v. Ware, A-6662-04T5 DDS No. 23-2-4066 Judges Coleman and Seltzer June 1, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident between the parties which occurred on Feb. 11, 2002. The plaintiff was subsequently involved in another motor vehicle accident on Oct. 13, 2003. Medical Testing and Treatment: treatment not detailed. Radiology: An MRI examination of plaintiff’s cervical spine was conducted on June 26, 2002, which showed posterior disc herniations at C5-6 and C6-7. An electro-diagnostic test was conducted on Aug. 13, 2002, demonstrating cervical radiculitis involving the C7 nerve root. These tests predated plaintiff’s second motor vehicle accident. Both were accompanied by physicians’ certifications relating the injuries shown to the subject accident. Prior Injuries: None, but plaintiff was involved in a subsequent accident on Oct. 13, 2003, one year and ten months after the subject accident. An MRI completed after the second accident found a cervical disc herniation at C5-6, and a disc bulge at C6-7. Serious Impact on Plaintiff’s Life: not detailed Physician’s certification: No issue Polk analysis: Whether the comparative analysis requirement is applicable when plaintiff is involved in a subsequent accident. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge concluded that a Polk comparative analysis was required, not only where there was a prior accident, but where there was a subsequent accident, as here. Since plaintiff failed to provide such an analysis, the judge granted summary judgment to the defendant. Appellate Court Determination(s): Reversed. The appellate panel concluded that the MRI performed after the subject accident, which demonstrated cervical disc herniations, satisfied plaintiff’s obligation to prove a permanent injury as a result of the subject accident. The electro-diagnostic testing also confirmed the injury. Both tests were accompanied by certifications of experts relating the injury to the subject accident. On this objective, credible medical evidence, a reasonable fact-finder could conclude that plaintiff had suffered a permanent injury as a result of the subject accident. Her showing was sufficient at least to defeat defendant’s summary judgment under the standards set forth in Brill v. Guardian Life Ins. Co. of America. The panel rejected the motion judge’s suggestion that Polk required plaintiff to compare the injuries she sustained in the subject accident with those she sustained in her subsequent accident in order to survive summary judgment. The panel stressed that the purpose of the comparative analysis requirement was to determine if an earlier condition had been aggravated by the subject accident. To the extent that the comparative analysis requirement even remained viable after AICRA, it simply had no applicability where there was no claim of aggravation. Injuries from a subsequent accident could not affect the valuation, on a motion for summary judgment, of the plaintiff’s proofs showing a permanent injury from the subject accident; those proofs must be evaluated without regard to the later injuries. A later accident cannot be said to have caused injuries which were demonstrated by objective tests that preceded that subsequent accident. The panel next addressed defendant’s argument that the medical reports after plaintiff’s second accident suggested that the reports after the subject accident may have exaggerated her condition. For example, the MRI after the subject accident showed two disc herniations, and the MRI completed after the second accident only showed one. The panel noted, however, that the second MRI actually confirmed that plaintiff had sustained at least one disc herniation at the time of the first accident, therefore it did not diminish her objective proof of injury resulting from the subject accident. Moreover, even if a complete disparity existed in the medical reports, it would do no more than create a question of the weight to be given to each objective test; it would not require the earlier test to be discarded. Because the panel believed that the motion judge improperly required a comparative analysis and because it believed it was clear that plaintiff satisfied her obligation under Brill, the matter was remanded for further proceedings. 66. Rizzo v. Krajewski, A-2244-04T3 DDS No. 23-2-4135 Judges Stern, Grall and King June 8, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on May 20, 2001, when plaintiff was a front-seat passenger in a vehicle involved in a collision with defendant’s vehicle. He claimed to have suffered back and other injuries, for which he saw several physicians. Medical Testing and Treatment: Treating physician: Plaintiff first saw Dr. Cooke, a Diplomate of the American Board of Physical Medicine and Rehabilitation, eight months post-accident, on Jan. 16, 2002. Dr. Cooke issued a physician’s certification on Aug. 17, 2002, to satisfy the requirements of AICRA. He certified that he was a licensed physician and had provided medical treatment to plaintiff for injuries sustained in the subject accident. Based upon the examinations, results of diagnostic testing, and the plaintiff’s clinical symptoms and complaints, the doctor opined that plaintiff had suffered permanent injuries in the accident. Dr. Cooke also issued reports dated Feb. 13 and Dec. 7, 2004. In the Feb. 13 report, the doctor stated that his impression with respect to plaintiff’s lumbar spine was left S1 radiculopathy secondary to lumbar spondylosis (confirmed by an EMG), with exacerbating factor of trauma from the subject motor vehicle accident with an underlying predisposing factor of bilateral L4-5 laminectomies from 1976. With respect to plaintiff’s prior back surgeries, the doctor indicated that plaintiff reported that he had been in good spinal health thereafter, up until the subject accident. Dr. Cooke indicated that plaintiff had improved somewhat symptomatically with conservative treatment measures, including oral medications and exercise-based physical therapy. However, he did not have complete resolution of his symptoms. In the follow-up report of Dec. 7, 2004, Dr. Cooke made note of another injury sustained by plaintiff � a lumbar disc anular tear on April 10, 2000 � and stated that it should have been well resolved by the time of the subject accident. He did admit, however, that some patients continued to experience symptoms from anular tears, which then became chronic. This did not change the doctor’s initial clinical impression; however, he noted that documentation from Capital Health Systems from April of 2000 dealing with the anular tear contradicted the plaintiff’s statement that he was in good spinal health after his 1976 laminectomy up until the motor vehicle accident. Radiology: An EMG test post-accident showed “denervation potentials” consistent with chronic active left S1 radiculopathy. A CT scan showed that there was no significant nerve impingement on the left side. Prior Injuries: Plaintiff underwent bilateral L4-5 laminectomies in 1976. On April 10, 2000, he sustained a lumbar disc anular tear, which produced associated muscle spasms. He went to the emergency room for this injury. He was told that it should resolve on its own in a few weeks with rest, which was prescribed. Serious Impact on Plaintiff’s Life: not detailed. Physician’s certification: No issue. Polk analysis: Apparently part of the judge’s reasoning for granting summary judgment to the defendant was plaintiff’s failure to supply a comparative analysis in light of his prior injuries. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge granted summary judgment to the defendant. Appellate Court Determination(s): Reversed. The appellate panel concluded that plaintiff made a sufficient showing to create a jury question on the issues of causation and permanency through the two reports and physician’s certification of Dr. Cooke. While it was “quite obvious” that the doctor’s opinion on the extent, if any, of permanent injury and causation might be vulnerable to a probing inquiry on cross-examination, and to medical rebuttal evidence in view of the history of earlier lower back surgery, the interim episodes of exacerbations and aggravations both before and after the subject accident, and certain inconsistencies in plaintiff’s medical history, the panel stressed that this was for the jury to evaluate. The doctor’s certification, amplified by his reports, appeared to indicate that he believed, to the requisite degree of medical certainty, that plaintiff had some permanent low back disability attributable to the subject accident, and he stood willing to so testify. The panel felt that this was all that plaintiff needed to cross the verbal threshold. With respect to the Polk comparative analysis requirement, pertinent where a pre-existing condition lurked, the panel adopted the Davidson court’s position that it was doubtful that the requirement remained viable in the context of a verbal threshold summary judgment motion under AICRA. The comparative analysis was an element of causation, but the court agreed that Polk and its progeny engrafted an additional element upon the causation aspect of the verbal threshold standard. The panel felt that differential causation and the extent of plaintiff’s injury and disability from the subject accident had to be tested in the crucible of a jury trial in view of his doctor’s certified claims and detailed explanations. The panel repeated Judge Conley’s valediction in Davidson: “Whether a jury will agree is not for us to say.” 67. Flynn v. Currier, A-5301-04T2 DDS No. 23-2-4136 Judges Weissbard and Sapp-Peterson June 8, 2006 Result: Jury verdict in favor of defendant reversed, and matter remanded for a new trial on damages only. Facts/Background: This case arose out of an automobile accident between the parties on Dec. 16, 2000. Plaintiff claimed permanent injury to his neck. Medical Testing and Treatment: not detailed. Radiology: Apparently conducted because there was evidence of cervical disc herniation at C5-6. Prior Injuries: None mentioned. Serious Impact on Plaintiff’s Life: not detailed, but the trial judge instructed the jury that plaintiff had to prove such an impact, and the jury found that plaintiff had not done so. Physician’s certification: No issue. Polk analysis: None. Miscellaneous Issue(s): Whether the new trial on remand should be on all issues, or limited to damages only. Trial Court Determination(s): A jury trial was conducted in April of 2005. The trial judge instructed the jury that there were six categories of injury under the verbal threshold law, but that only one applied in this case, and that was permanent injury within a reasonable degree of medical probability other than scarring or disfigurement. If the jury found that the injuries caused by the subject accident did not fit within this category, then the jury’s verdict must be for the defendant. The judge defined permanent injury as one where the body part � here, plaintiff’s neck � had not healed to function normally and would not heal to function normally with further medical treatment. He noted that plaintiff’s neck injury was manifested as the cervical disc herniation at C5-6. The judge then went on to state that, in addition to proving that the injury was permanent, the plaintiff also had to prove that it had a serious impact on his life, which meant that it seriously affected one or more of the activities which had been significant and important component of plaintiff’s way of life before the accident. In other words, the injury had to be such that the plaintiff was no longer able to attend to his regular routine activities, whatever they might be; and he had to be deprived of the physical ability to engage in a social or recreational activity that had previously been an important part of his life. The jury’s verdict sheet posed two questions concerning whether plaintiff sustained a qualifying injury under AICRA. The first asked whether plaintiff sustained a permanent injury in the subject accident. If the answer was no, the jury was to cease deliberations and find for the defendant. If the answer was yes, then the jury was to answer the second question, which asked whether the injury had a significant impact on plaintiff’s life. If not, then the verdict was for the defendant. If yes, then the verdict would be for the plaintiff. The jury answered “yes” to the first question, but “no” to the second; and the trial court entered judgment in favor of the defendant on May 4, 2005. On May 21, 2005, plaintiff filed a motion for a new trial, which was apparently denied as untimely. Plaintiff filed a timely notice of appeal, asserting that the Supreme Court’s decisions in DiProspero and Serrano mandated reversal and a new trial consistent with those decisions. He also contended that, since the issue of whether he had sustained a permanent injury had been litigated, and the jury found in his favor, the defendant should be collaterally estopped from seeking retrial on this issue, and the new trial should be exclusively limited to the issue of damages. Defendant asserted in response that plaintiff could not rely upon a portion of the original jury verdict as being reliable, and reject another portion of it; therefore, defendant argued that, if a retrial was necessary, it should be on all issues. Appellate Court Determination(s): Reversed and remanded. The appellate panel noted that plaintiff’s case qualified for pipeline retroactivity of DiProspero and Serrano. Therefore, since those cases eliminated the serious impact prong of the former verbal threshold test, the jury’s verdict in that regard could not be sustained. The only question remaining was whether the new trial on remand should be on all issues, or limited solely to damages. A review of the record convinced the appellate panel that it should be limited to damages. The trial judge had appropriately instructed the jury that, in order for plaintiff to recover damages, he was required to establish that he sustained a permanent injury proximately caused by defendant’s negligence. The judge then proceeded to provide the jury with the correct legal definition of a permanent injury under AICRA. In response to the jury interrogatory framed on that definition, the jury had answered “yes,” concluding that plaintiff did sustain such an injury. The panel discussed the doctrine of collateral estoppel and the five factors which a party must demonstrate for application of that doctrine: (1) the issue to be precluded is identical to the issue decided in the previous proceeding; (2) the issue was actually litigated in the prior action; (3) a final judgment on the merits was issued in the prior proceeding; (4) the determination of the issue was essential to the prior judgment; and (5) the party against whom preclusion was asserted was a party to, or in privity with a party to, the earlier proceedings. On the record of this case, the panel felt that plaintiff had met all five factors. The question of whether plaintiff sustained a permanent injury within the meaning of AICRA was an essential issue before the jury; the issue was fully litigated between the parties; and the jury determined that plaintiff did, in fact, sustain such an injury as a proximate result of the accident. As a final note, the panel commented that, upon retrial, in order to determine the measure of plaintiff’s noneconomic injuries, the jury would be required to consider the testimony of plaintiff on the subject of his discomforts, and should scrutinize all the other evidence presented by both parties on this subject, including, of course, the testimony of the doctors who appeared. 68. Heluk v. Clark, A-1985-04T1 DDS No. 23-2-4162 Judges Rodriguez, Alley and Fisher June 12, 2006 Result: Jury verdict in favor of plaintiff is affirmed. Facts/Background: This case arose out of an automobile accident between the parties on Feb. 15, 2001. At the time of the accident, the 38-year-old plaintiff was married and worked as a nanny for her brother’s children four days a week. She did not immediately seek medical attention after the accident. Medical Testing and Treatment: Family physician: Plaintiff was examined by her family doctor the week after the accident. She stated that the doctor moved her legs around, checked out her back and gave her a prescription for inflammation. Chiropractor: Plaintiff’s auto body mechanic referred her to Dr. Wolkoff, who examined plaintiff on March 2, 2001. At that time, plaintiff complained of lower back, neck and shoulder pain. She said she had difficulty sitting, bending to lift the young children she cared for, and walking. She also reported difficulty in her sex life. The doctor did not perform X-rays because it was possible plaintiff might be pregnant. The doctor’s initial findings included limited range of motion throughout, particularly in plaintiff’s cervical and lumbar flexion and extension. He also found significant muscle spasms on palpation. Subsequent examinations also revealed loss of sensation to plaintiff’s left lateral thigh, and she was referred for an MRI. Based on the results of the MRI (see below), the chiropractor opined that plaintiff’s injury was permanent and that the disc herniation shown on the film was caused by the subject accident. He made this assessment based on a lack of history or objective evidence of any pre-existing injury. The chiropractor treated plaintiff on approximately fifty visits. Four months post-accident, he noted in a progress report that, although she seemed to be improving, in that her bouts of pain occurred less frequently, she still experienced a significant amount of pain and discomfort while performing certain activities, including anything involving prolonged sitting, caring for her nephew, and during sexual activity. Anesthesiologist: Due to plaintiff’s continuing pain, she was referred to Dr. Lu for epidural blocks. Orthopedist: Dr. Weiss reviewed the MRI report and noted that there was no mention of degenerative disease. He noted the L5-S1 disc herniation with annular tear, causing indentation of the thecal sac. Dr. Weiss opined that, where there was an annular tear, a chemical reaction occured, which was what was causing plaintiff’s pain. He recommended that plaintiff undergo an EMG (see below). The doctor fitted plaintiff for a lumbar orthosis, or back brace. He opined that the disc injury was permanent and that it had been caused by the subject automobile accident. His reasoning was that there was no history of back pain; plaintiff’s symptoms were directly related in time to the car accident; the MRI didn’t show any disc space narrowing or mention any disc dessication, which were indications of pre-existing injury; and the MRI and EMG tests objectified many of plaintiff’s complaints regarding numbness, pain and stiffness. Defense doctor: After examining plaintiff for the defense, Dr. Chalmers opined that her injuries resulted from a long-standing degenerative process. He disagreed with the findings of the radiologist that plaintiff had sustained an annular tear. The MRI study, in his view, “did not reveal any residuals of acute abnormalities at all that might have been related to the accident in question.” He described the results of the EMG test as “unremarkable” and stated that the tests for both the cervical and lumbar spine were essentially normal. Radiology: An MRI examination was conducted and a neurologist-radiologist, Dr. Escar, reported that it revealed a central disc herniation at L5-S1 with an increased signal that was consistent with an annular tear. He saw no indication of nerve root compression. An EMG was performed which showed a mild subacute radiculopathy, or radiating pain down the leg. Prior Injuries: Plaintiff had been involved in two prior automobile accidents. In the first, her vehicle was struck when another vehicle ran a stop sign. This caused plaintiff’s airbag to inflate, and she was taken to the hospital because the powder from the airbag went into her face, and the paramedics wanted to make sure that this was not a problem. Apparently there were no other consequences from this accident. The second accident occurred when plaintiff hit a deer. She did not seek medical attention at all after that accident. Plaintiff was also involved in another accident subsequent to the subject accident, in March of 2004. In that accident, she suffered an aggravation of the disc injury in her lower back. Serious Impact on Plaintiff’s Life: Plaintiff’s lower back pain gave her difficulty in activities such as prolonged sitting, bending to lift the young children she cared for, and walking. She also reported difficulty in her sex life with her husband. Physician’s certification: No issue. Polk analysis: At the end of plaintiff’s case at trial, defendant moved for judgment, arguing that, because plaintiff injured her back in the subsequent accident, she should have produced a comparative analysis. The motion judge disagreed that a Polk analysis was required; he barred any reference in the damages aspect of the trial to injuries caused by the subsequent accident. The appellate panel affirmed. Miscellaneous Issue(s): None Trial Court Determination(s): Before the trial, defendant moved for summary judgment based on plaintiff’s alleged failure to surmount the verbal threshold, but the judge denied this motion. At the end of plaintiff’s case at trial, defendant then moved for judgment, arguing that, because plaintiff injured her back in the subsequent accident, she should have produced a comparative analysis. The motion denied this motion as well, disagreeing that a Polk analysis was required; he barred any reference in the damages aspect of the trial to injuries caused by the subsequent accident. Following the trial, the jury found that plaintiff sustained a permanent injury and that defendant was solely negligent in causing the accident. Plaintiff was awarded $100,000 in compensatory damages and her husband $10,000 on his per quod claim. Defendant appealed the denial of both of her motions. Appellate Court Determination(s): Affirmed. The panel concluded first that defendant’s pretrial verbal threshold summary judgment motion was properly denied. Both plaintiff’s chiropractor and orthopedist testified that plaintiff suffered a permanent injury in the accident � a disc herniation � which injury clearly satisfied the verbal threshold. The experts’ opinions, buttressed by the objective evidence shown in the MRI and EMG studies, created a factual issue for the jury to resolve. The panel also agreed with the trial judge’s denial of defendant’s motion asserting that plaintiff should have produced a comparative analysis of her lumbar injuries sustained in the accident with the lumbar injuries sustained in the subsequent accident in 2004. Taking note of the controversy as to whether the Polk requirement remained viable under AICRA, the panel here indicated that it did not even need to decide whether a comparative analysis was necessary in this case, because there was no prior injury, only a subsequent one. The panel referenced the pre-AICRA case of Sherry v. Buonsonti, which did suggest that a subsequent injury might require a Polk analysis. Discussing Sherry, the appellate panel stressed that the statement therein that a Polk analysis was necessary was specific to the facts of that case, where the two accidents were very close in time, and there was no evidence to indicate which accident had caused plaintiff’s injury. Here, the situation was clearly distinguishable, because the accidents were more than three years apart. More importantly, there was ample evidence to clearly establish plaintiff’s physical condition following the subject accident well before the subsequent accident occurred. 69. Johnson v. Scaccetti, A-4708-04T1 DDS No. 23-2-4177 Judges Lintner and Parrillo June 13, 2006 Result: Jury verdict in favor of plaintiff is affirmed; however order of remittitur is reversed and original verdict reinstated. Facts/Background: This case arose out of an automobile accident on Nov. 12, 2001, when plaintiff’s vehicle, which was proceeding through an intersection, was struck in the middle of the passenger side by defendant’s vehicle, which failed to stop for a red light. Plaintiff’s vehicle flipped over onto the driver’s side, slid down the road, hit the median, flipped onto its roof, and then over again onto its four tires. The 39-year-old plaintiff stated that, as her minivan was sliding down the road, all she could see was glass and pavement; she was worried that her arm was going to be ripped off. She complained of pain throughout her body to the police and emergency personnel who arrived at the scene. A cervical collar was placed on her neck, she was removed from her vehicle directly to a backboard, and then she was transported to the hospital by ambulance. After being released from the emergency room, one of plaintiff’s husband’s co-workers picked her up from the hospital, as her husband was on military assignment in the Mideast. The co-worker took plaintiff to the Air Force Base so that she could call her husband on a government phone, and then took her home. When plaintiff arrived home, she noticed that her two front canine teeth were chipped, with the tips of both missing. She sought treatment from her dentist and the Base doctor on the day following the accident. Soon after the accident, plaintiff’s parents traveled to New Jersey from Oregon to help her with her two daughters, ages thirteen and fifteen. Approximately one week post-accident, plaintiff’s husband was released from Qatar and returned home to care for his wife. He observed that she was in a lot of pain, could not move or lift things, and walked very slowly and meticulously. He stayed home for three to four weeks, after which he went back to work in an office position on the Base. Medical Testing and Treatment: Emergency Room: X-rays were taken of plaintiff’s neck at the emergency room, but they revealed no fracture. She was told to visit her own physician the following day, and was released with a cervical collar. Dentist: On the day after the accident, plaintiff went to Dr. Lyons, who filed the uneven edges of her teeth and capped them. The left cap fell off during trial, and the right remained sensitive to cold and biting into hard foods. Dr. Lyons later certified that plaintiff’s dental injuries consisted of 12 chipped and/or fractured teeth, two of which were displaced. The defendant stipulated that plaintiff’s dental injuries were caused by the subject accident. Military physician: Also on the date following the accident, plaintiff went to the hospital on the Base, and saw Dr. Stock, complaining of pain everywhere, but specifically in her neck, her entire back, head, hands, arms and legs. He prescribed medications for plaintiff, including Valium, Tylenol and Vicodin, along with neck and hand braces, and a recommendation that she pursue physical therapy. The doctor also referred plaintiff to a pain management specialist. Pain management specialist (1): Plaintiff saw Dr. Portman, who suggested steroid injections and trigger point injections with acupuncture in the back of her neck. Plaintiff stated that her pain “got better,” but she still had flare-ups at least twice a month, especially when she worked, because she used her arms to do nails, skin toning and waxing. Plaintiff also had injections for her back pain; while the steroids gave her temporary relief, the trigger point injections did not help, because her back pain was not muscle-related. Treating surgeon: Dr. Portman referred plaintiff to Dr. Vresilovic at the University of Pennsylvania Medical Center for surgery. After certain objective tests were performed (see below), the doctor performed spinal fusion surgery, which included placing screws into plaintiff’s spine between L5 and S1 to stabilize the vertebrae and inserting a carbon fiber box with a bone chip from her pelvis into the L5-S1 disc space. Plaintiff was left with a four-and-one-half inch surgical scar on her back. After the surgery, plaintiff was required to wear a customized fiberglass thoracal lumbar brace, referred to as a body cast, from just underneath her bustline down to her right thigh for sixteen weeks. Underneath, she wore a body sock to prevent sores. The brace prevented her from sitting or bending. A bed was set up in her living room, because she could not go upstairs in the brace. She needed help getting in and out of bed; had trouble sleeping; and needed a walker. She had to eat standing up or leaning on a bar stool. When she traveled to her doctor’s appointments, she had to lie flat on a pillow while her husband drove. She herself could not drive until Sept. 2003. Plaintiff was only allowed to remove the cast for thirty minutes per day to go to the bathroom and to shower. During the first two weeks after surgery, her mother bathed her downstairs. Subsequently, she was allowed to walk upstairs to shower, where her husband bathed her, because she could not move her arms. He also had to wipe her after she went to the bathroom, and had to shave her legs for her. Plaintiff described the pain she suffered after the surgery as a “10.” She stated that she had severe nerve pain down her legs after she left the hospital. She was not permitted to take pain medication for this pain because it would interfere with the fusing process. Her husband would rub her feet in an attempt to alleviate her pain. Pain management specialist (2): Plaintiff was referred by her surgeon to Dr. Slipman for a presurgical discogram and another MRI, which was performed in January of 2003 (see below). Physical therapy: After the body brace was removed, plaintiff went to physical therapy at the Base through December 2003. She described it as very painful, and took pain medication. Expert witness surgeon: Dr. Lessing, a board certified orthopedic surgeon, examined plaintiff on March 15, 2004, and prepared a report dated June 12, 2004. With respect to her cervical injuries, he opined that plaintiff had a cervical disc herniation at C6-7, which was confirmed by MRI studies and Dr. Portman’s diagnosis. He stated that the disc herniation was caused by the subject accident and based his conclusion on the lack of medical complaints by plaintiff about her neck prior to the accident, and also, the force and nature of the accident. He indicated that her prognosis was poor, because the damaged cervical disc would deteriorate at a faster rate, and to a more severe endpoint, than if it had not been damaged. Additionally, he noted that plaintiff would continue to experience pain. Because the disc was already damaged, it could herniate again in the future, causing renewed radicular symptoms of “that pins and needles feeling” in her arm. With respect to plaintiff’s lumbar injuries, Dr. Lessing admitted that an MRI from a low back injury plaintiff sustained in 1991, and the post-accident MRI taken on May 3, 2002, read almost identically, referring to a small disc herniation. The Jan. 19, 2003, MRI, however, showed a moderately-sized disc herniation or protrusion. The radiologist who read the 2003 MRI noticed the enlarged disc herniation and concluded that the change was due to the accident. Dr. Lessing agreed, testifying that, within a reasonable degree of medical probability, the change resulted from the trauma of the car accident, which accelerated the deterioration of the disc, a process he described as not instantaneous; thus, it did not appear on the May 2002 MRI. He opined that plaintiff’s spondylolisthesis and disc herniation were aggravated by the accident. He based his opinion on the increased deterioration of the disc, as shown on the post-accident MRI studies. He also opined that the fusion surgery was necessitated by the accident. Dr. Lessing gave plaintiff a poor prognosis because there had been massive permanent changes in her back due to the surgery. He believed her condition would worsen due to the fusion because the vertebral disc at the adjacent higher level was likely to deteriorate, herniate, and cause radicular pain. Based on the life expectancy tables at the time of trial, the doctor opined that plaintiff would live for another thirty-four years. Defense expert: Dr. Ratner, a board-certified orthopedic surgeon, examined plaintiff for the defense on March 10, 2004. He reported that he did not find anything on the Dec. 28, 2001, MRI study that he considered pathologic, nor anything related to the injury or the accident, because all of the changes were pre-existing degenerative changes that “every one of us gets along the way.” He admitted to seeing the “tiny . . . disc herniation” at C6-7 described by the radiologist, but because it wasn’t big enough to be pushing or touching any of the structures that were next to it, he concluded that it was a normal finding. he explained that he would not consider this pathologic and was not even sure it was a herniated disc. He thought the radiologist had overread the film and exaggerated his findings. Addressing the 2002 MRI of plaintiff’s lower back, Dr. Ratner noted a slipping vertebra and the degenerative changes, but opined that there were no acute injury changes and no disc herniations. He also believed that the grade one spondylolisthesis mentioned by the radiologist who initially read the MRI was exactly the same as prior to the accident. According to Dr. Ratner, the 2003 MRI showed exactly the same conditions that existed on the 2002 study: slippage, spondylolisthesis and the degenerative disc changes. He compared the two studies, stating that they were identical. He opined that plaintiff had an inherent or pre-existing defect at L5-S1, which was producing symptoms for at least ten or eleven years before the subject accident. He conceded, however, that the accident accelerated the need for surgical intervention. Although he found that plaintiff had no residuals to her neck or low back from the accident, he admitted that she had residual scarring and limited motion as “leftovers” from the surgery. Radiology: Cervical X-rays taken at the emergency room on the date of the accident were negative for fracture. On Dec. 28, 2001, plaintiff underwent an MRI examination of her cervical spine, which revealed a herniated disc at C6-7. With respect to her lumbar spine, plaintiff had an MRI of her lower back on May 3, 2002; it revealed grade one spondylolisthesis at L5-S1. Another lumbar MRI and a discogram were performed by a pain management specialist in January of 2003. Plaintiff described the discogram test as “God-awful”: she was awake and unsedated, and strapped on her side to a board, as the doctors partially inserted five thick guider needles into her discs at L1 through L5, and then other needles into her actual discs to insert dye. She testified that she cried throughout the entire test, trying to get through it. She was able to view the procedure on a television monitor used by Dr. Slipman. The discogram revealed disc disease at L3-4 and L5-S1, due to the dye material leaking out in a pattern indicative of a herniated disc. Prior Injuries: Plaintiff had injured her lower back in 1991 while lifting a child. Her doctor at the time took X-rays and diagnosed grade one spondylolisthesis at L5-S1. He prescribed medication and physical therapy but, at first, the treatment did not alleviate the pain. An MRI showed a herniated disc at L5-S1. After additional physical therapy, plaintiff stated that “it got better.” Plaintiff also experienced low back pain following a hysterectomy in 1993, but again, after physical therapy, she “was fine.” She stated that, if she overdid things, such as gardening, she would just take some Motrin and usually, within a day or two, the pain was better. On April 8, 1997, plaintiff fell while rollerblading, hurting her left knee, pelvis, and lower back, again at L5-S1. The lower back pain improved, however, plaintiff informed her physical therapist on May 15 and May 19, 1998, that she was experiencing low back pain and pain behind her knee after weeding the garden. Serious Impact on Plaintiff’s Life: In addition to the problems plaintiff had after her surgery (see above), plaintiff asserted that her lifestyle was affected severely by the accident. Prior to the collision, plaintiff described herself as “happy-go-lucky.” She gardened, jet skied, had season passes to water and amusement parks, went on vacations, and enjoyed hiking, fishing and camping. She “visited with her husband” two or three times per week in the bedroom, and did most of the housework. After the accident, plaintiff could no longer garden, jet ski, go on rollercoasters, or go hiking or camping. She did still attend amusement parks to see the shows, and had rented an electric wheelchair to move around at Disney World when the family vacationed there. Moreover, she had had to fly to Florida, which her doctor recommended, while the rest of her family drove. She did drive with the family to her daughter’s national cheerleading competition in Virginia, but they had to stop every hour so that she could stretch her back and legs. Once in Virginia, she had to remain in the hotel, where she would lie down, except for those specific times that her daughter competed. Although her relations with her husband had not stopped, they were totally different and “very much slowed down.” Although her pain had improved somewhat, she stated that she had gotten to the point where her back hurt every day, and she did not feel as if she was getting any better. Although there was no evidence of a lost wage claim, there was evidence that plaintiff did not return to work until February 2002, and that her husband stayed home from work for three to four weeks to take care of her. Physician’s certification: No issue Polk analysis: The defendant argued on appeal that plaintiff’s case was deficient because she had not provided a Polk comparative analysis of her pre- and post-accident residuals, in light of her prior lumbar injuries. The appellate panel found that no Polk analysis was necessary, in light of concessions made by the defense medical expert as to causation. Miscellaneous Issue(s): None Trial Court Determination(s): Following a four-day damages-only trial, the jury awarded the plaintiff $2.5 million, and her husband $500,000 on his per quod claim. Defendant moved for a new trial, which was denied, or, alternatively, for remittitur, which was granted. The judge reduced the awards to $1.5 million and $250,000, respectively. In so doing, he relied on his initial impression of the case; the lack of passion, sympathy or prejudice on the jury’s part; the short duration of the trial; a comparison of the verdict with others rendered in the county; and the fact that there was no lost wage claim. The judge found that the original jury awards were out of proportion to plaintiff’s physical injuries � the cervical disc herniation and lumbar laminectomy. He noted that plaintiff did not appear to have any great physical disability in the courtroom; she walked in unassisted, had no great difficulty in ambulating, and was able to sit through the trial without the use of a more comfortable chair than was provided. The only outward manifestation of her disability was the four-inch scar on her back. Although plaintiff suffered fractured teeth, the judge noted that they had been repaired without any significant resulting disability. While plaintiff was forced to endure a body cast for four months, and still suffered from constant pain which limited her previously active lifestyle, the judge considered the amount of damages to be vastly out of proportion to the impact on plaintiff’s lifestyle. As to the per quod claim, the judge noted that plaintiff’s husband had had to help her a great deal during the four months she was in the body cast. He also recognized the testimony that the injuries had affected the couple’s sex life; that the husband could no longer hike or camp with his wife, or engage in other activities, such as jet skiing; and that he had to take on more of the household chores; however, the judge felt that the original per quod award was out of proportion to the damages the husband had suffered. At the end of his oral decision, however, the judge made the following telling remarks about what plaintiff and her husband had endured as a result of this accident. The judge commented that, considering all of the evidence, he did find that the “40-something” plaintiff’s injuries were significant and life-altering. He recognized that she had daily pain, and suffered a change in her lifestyle. Moreover, he recognized that her injuries, both in her neck and her back, were permanent and likely to become more severe over time. “Her ability to see herself as a vibrant woman, who can keep pace with her active husband, has been snuffed out by this accident . . . “ As to the husband’s losses, the judge noted that the prospect of plaintiff returning to the family’s previously active lifestyle was medically unrealistic. The defendant’s negligence had deprived the husband of the joys of his wife’s companionship, and left him with concern and “a worrisome burden.” The judge noted that plaintiff put on a brave face, but that the strain and anguish would wear through in time. He opined that, “through the next three decades, there will be countless moments of laughter and thrills which will be held at bay by the decomposition of [plaintiff's] spine.” While he characterized these as lost opportunities for happiness, he noted that they could not be logged or calculated. The husband had been robbed of those family treasures nonetheless. The defendant appealed from the adverse judgment, asserting that the judge had erred in determining that plaintiff’s proofs vaulted the verbal threshold, and in denying his new trial motion. Plaintiff and her husband cross-appealed the order remitting the jury awards. The defendant asserted that the trial judge erred by not allowing the jury to determine factually whether plaintiff’s injuries vaulted the AICRA verbal threshold. During plaintiff’s testimony, the issue arose concerning her two chipped teeth and whether they constituted displaced fractures under AICRA as a matter of law. During the colloquy, plaintiff’s counsel indicated that, if the judge agreed that those injuries amounted to displaced fractures as a matter of law, then it would be unnecessary to have plaintiff’s dentist testify. Defense counsel stipulated that plaintiff sustained two chipped teeth as a result of the accident and accepted the judge’s ruling that they represented displaced fractures. However, he argued that the fractured tips of plaintiff’s teeth did not vault the AICRA threshold because they were very minor. The judge advised plaintiff’s counsel that there was no need to call the dentist to testify that plaintiff sustained displaced fractures to her two canine teeth. Appellate Court Determination(s): The appellate panel affirmed the judgment, but reversed the remittitur order, and remanded for entry of judgment reinstating the original awards. First, the appellate panel disagreed with the defendant’s argument that chipped teeth were not displaced fractures under AICRA. Displacement was defined as removal from the normal placement or position. Thus, a displaced fracture was a more serious type of fracture involving a complete separation of a broken bone. The dental injury suffered by plaintiff, conceded by defendant to be two chipped canine teeth, qualified as a “complete separation” and thus met the AICRA objective standard as displaced fractures. Additionally, the panel felt that it was appropriate for the judge, rather than the jury, to determine the issue. Since defendant did not dispute plaintiff’s dental expert’s conclusions, and produced no expert of his own, there was no factual dispute. In the absence of a factual dispute, the court properly resolved the question of whether plaintiff’s injuries met the verbal threshold. The panel then addressed plaintiff’s contention that, under Puso v. Kenyon, once she established that she sustained a displaced fracture, she was permitted to present her proofs as to all of her other injuries, regardless of whether they independently met the threshold. Defendant conceded at oral argument that, if plaintiff’s chipped teeth did qualify as displaced fractures, then Puso would apply. Moreover, defendant’s own expert confirmed the objective existence of spondylolisthesis of plaintiff’s lower back, and admitted that the fusion surgery had resulted in permanent residuals. Therefore, although the extent of the lumbar injury caused by the accident was at issue, even defendant’s proofs conclusively established that plaintiff suffered an objective and permanent soft-tissue spinal injury sufficient to meet the applicable AICRA threshold. Therefore, even if her dental injuries did not qualify, her causally-related spinal injury did. The panel also disagreed with defendant’s argument that the verdict should be reversed because plaintiff failed to produce a Polk comparative analysis by objective evidence of her pre- and post-accident residuals, to show a causal relationship between the subject accident and her current condition, given her chronic pre-existing spinal condition. The panel reviewed Polk’s requirement, and the controversy surrounding its continued viability under AICRA, but concluded that a comparative analysis was not necessary in this case, in any event. At the end of the defense expert’s direct examination, he conceded that there was a causal relationship between plaintiff’s involvement in the subject accident and her fusion surgery. While he did feel that plaintiff’s condition was pre-existing, he opined that the accident exacerbated plaintiff’s spinal condition and accelerated the deterioration and symptomatology, bringing plaintiff to the point where she required surgery earlier than she might otherwise have. The appellate panel concluded that this admission eliminated any need for a Polk analysis. Of course, the extent of the injury caused by the accident remained a question of fact for the jury to decide. Finally, the appellate panel addressed plaintiff’s cross-appeal challenging the judge’s reduction of the jury awards. In the panel’s view, the trial judge relied on certain factors, other than those which would fairly and adequately compensate the injured parties. Instead of explaining his particular experience with similar personal injury verdicts, the judge voiced his concern that the verdict might be one of the highest, if not the highest, returned in Bergen County. Moreover, he relied heavily on his initial reaction, the brevity of the trial, and the lack of evidence of any economic claim for lost wages, which would not even apply to plaintiff’s non-economic claim for pain and suffering. The panel was convinced that a remittitur was not clearly warranted under the facts presented here; and the verdict, although on the generous side, was not so disproportionate to plaintiff’s injuries and resulting disabilities to warrant reduction. The plaintiff’s stoic appearance during the trial had apparently influenced the judge to a great degree. His description of plaintiff at the trial, and his initial shock upon hearing the verdict, however, stood in stark contrast to the telling remarks he made toward the end of his oral decision, as set forth above, detailing what plaintiff and her husband had endured. The life-altering changes experienced by plaintiff and her husband as a consequence of plaintiff’s permanent neck and back condition, together with the evidence of her terrible pain, degrading recovery, and poor prognosis, convinced the panel that the jury’s award was not so disproportionate to plaintiff’s injuries and resulting disabilities so as to be manifestly unjust. It came to the same conclusion regarding the husband’s per quod claim. Accordingly, the order of remittitur was vacated and the matter remanded for entry of a judgment in the full amount of the jury’s award. 70. Settle v. Jones, A-1692-05T3 DDS No. 23-2-4224 Judges Conley and Sapp-Peterson June 16, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on July 17, 2002, which occurred when plaintiff’s vehicle was struck by defendant’s vehicle as she attempted to make a left turn through traffic. Plaintiff was transported from the scene of the accident to a local hospital. Medical Testing and Treatment: Emergency Room: Plaintiff was treated for upper abdominal and low back pain, and released. Treating physician: On July 23, 2002, plaintiff came under the care of Dr. Thorne, who ordered MRI studies. Plaintiff treated with Dr. Thorne for about three months, until Oct. 30, 2002, at which time the doctor reported that plaintiff had minimal complaints. He noted that plaintiff had obtained the maximum recovery with physical therapy and was being discharged from care. In a final report dated Nov. 27, 2002, under “prognosis,” Dr. Thorne stated that patients with the type of injuries suffered by plaintiff could experience recurrent episodes of pain over the years and intermittently to a permanent degree. Trauma such as plaintiff sustained could “upset the precisely balanced biomechanics of the spine and involved joints . . . “ On Sept. 25, 2005, Dr. Thorne submitted a physician’s certification of permanency for plaintiff’s lawsuit. He stated that within a reasonable degree of medical probability, based on his professional expertise and the findings in his reports � including reference to the clinical objective tests � it was his opinion that plaintiff sustained permanent injury that would have permanent residual sequelae. Although further treatment might alleviate some symptomatology in the future, the permanent residuals of the injury could not be completely resolved by way of further medical treatment and there would always be some aspect of residual permanent injury experienced for the balance of plaintiff’s lifetime. Radiology: A cervical MRI examination revealed a straightened cervical lordosis and disc bulges at C3-4, C4-5, C5-6 and C6-7. A lumbar MRI revealed disc degeneration at L4-5 associated with a disc bulge. Prior Injuries: None, although there was a reference in Dr. Thorne’s reports to plaintiff having “predisposition immature arthritis.” Serious Impact on Plaintiff’s Life: not detailed. Physician’s certification: No issue. Polk analysis: None. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge granted summary judgment to the defendant, concluding that plaintiff’s proofs essentially showed a clinical diagnosis of disc bulges and soft tissue injuries, transient in nature and not indicative of the permanent type of disability contemplated by the verbal threshold law. The judge found that the statement made by Dr. Thorne in his certification � that plaintiff’s residuals were permanent and could not be completely resolved by way of further medical treatment � was inconsistent with his Nov. 27, 2002, report noting that on the date of plaintiff’s discharge from treatment � Oct. 30, 2002 � he had minimal complaints. The judge was not impressed with Dr. Thorne’s prognosis, and concluded that his mere reference to the possibility of recurrent episodes of pain over the years and intermittently to a permanent degree, and referring to some degree of permanency resulting from these injuries as a consequence of “predisposition immature arthritis,” were insufficient to establish a genuine issue of material fact as to whether plaintiff sustained a permanent injury. Appellate Court Determination(s): Reversed. The appellate panel was satisfied that plaintiff’s proofs, when viewed favorably in the context of a summary judgment motion, presented objective evidence of a qualifying, permanent injury sufficient to satisfy the AICRA threshold. To the extent that there was any inconsistency between Dr. Thorne’s report and his subsequent certification of permanency, issued three years later, the issue was one for the jury to resolve. 71. Aravich v. Spero, A-5850-04T5 DDS No. 23-2-4333 Judges Axelrad and Payne June 27, 2006 Result: Summary judgment in favor of defendant is affirmed. Facts/Background: This case arose out of an automobile accident on June 5, 2003. The sixty-year-old plaintiff went to the emergency room following the collision. Medical Testing and Treatment: Emergency Room: Plaintiff complained of abdominal and chest pain, trouble breathing, laceration of his left elbow and back, and extensive bruising in the chest and right arm. Radiological examinations of the abdomen, chest and left elbow were negative, although degenerative osteophytes were noted in the thoracic spine. Family physician: Plaintiff saw his family physician, who referred him to a neurologist. Neurologist: Plaintiff first saw Dr. Pertchick on July 22, 2003. He treated with him approximately every one or two months for a total of about eight visits through Jan. 24, 2005. The doctor’s April 30, 2005, report of that final January visit reflected a final diagnosis of post-traumatic lumbar strain and bilateral lumbar radiculopathies. A neurological examination on the occasion of the final visit revealed lumbar spine tenderness, spasm and limited ranges of motion, antalgic gait (walking with pain), and absent ankle reflexes. The doctor opined that all of these conditions were caused by the motor vehicle accident; and, because they had lasted more than a year, he opined that they were permanent. Pain management specialist: Plaintiff was referred by Dr. Pertchick to Dr. Metzger, who performed lumbar epidural steroid injections for the radiculopathy on Aug. 17, 2004, Sept. 14, 2004, and Oct. 19, 2004. He also gave plaintiff facet joint injections on Nov. 30, 2004, for lumbar facet arthropathy. The doctor noted that plaintiff had improvement in his symptoms following the last injection, suggesting that a portion of his residual pain was related to the diagnosis of facet joint arthropathy. Radiology: Radiological examinations at the hospital of the abdomen, chest and left elbow were negative, although degenerative osteophytes were noted in the thoracic spine. On Oct. 23, 2003, an MRI was performed and revealed minor degenerative disc and facet changes involving the lumbar level . . . with convex left scoliosis. Additionally, the report stated that a small broad-based left foraminal ridge was “suspected” at L2-3 and a right foraminal ridge/disc formation was noted at L3-4. The report also noted mild foraminal stenosis on the left at L4-5 and the right at L3-4 with no significant canal compromise. Prior Injuries: None. Serious Impact on Plaintiff’s Life: not detailed, although the judge found that plaintiff had failed to prove such an impact. Physician’s certification: No issue. Polk analysis: None. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge found that plaintiff’s injury did not qualify as a permanent injury based upon credible objective medical evidence. He noted that the X-rays taken on the day of the accident either was normal or revealed a condition that was described as degenerative, such as stenosis. The judge noted that, like disc bulges, virtually every person was likely to develop some form of stenosis over the years; it was merely a matter of a difference in severity. The judge went on to state that factors such as canal size, weight, activities and genetics played major roles in stenosis, even with evidence of thoracic outlet syndrome. He found that there was no evidence that this type of injury was either permanent or causally related to the accident in question. Appellate Court Determination(s): Affirmed. The appellate panel was satisfied that plaintiff’s medical reports confirmed the degenerative findings noted by the trial judge, and stressed that degeneration was not generally considered a traumatically-induced injury sufficient to satisfy the verbal threshold. Serrano’s elimination of the requirement of serious injury did not change that result. Although muscle spasms might be considered evidence of a permanent injury sufficient to withstand summary judgment, the panel noted that plaintiff’s medical history contained no actual evidence of spasm. The neurologist did not report finding spasm during his examination on July 22, 2003, nor was it mentioned in his office notes of Nov. 24, 2003, Oct. 25, 2004, or Jan. 24, 2005. Further, while he noted that he observed spasm and limited ranges of motion when he conducted the final January 2005 neurological examination of plaintiff, there was no explanation or elaboration in his final report of April 30, 2005, for such a finding. Nor did the pain management specialist report finding muscle spasm. During his July 9, 2004, examination of plaintiff, he reported only complaints of tenderness, and only upon “deep palpation of the lumbosacral junction.” Even considering the more liberal standard of review for verbal threshold summary judgment applications following DiProspero and Serrano, the appellate panel was satisfied that the trial judge correctly concluded that plaintiff failed to present objective, credible medical evidence of a permanent injury causally related to his motor vehicle accident sufficient to raise a legitimate factual dispute and overcome summary judgment. 72. Giovinazzi v. Rea, A-1177-05T2 DDS No. 23-2-4386 Judges Conley and Cuff June 30, 2006 Result: Summary judgment in favor of defendant is affirmed. Facts/Background: While operating his mother’s vehicle, the eighteen-year-old plaintiff was involved in an automobile accident with defendant. Plaintiff had previously moved from his mother’s home to Florida, but, after three months, for reasons not specified, he moved back to New Jersey to continue attending high school in Vineland, where he lived with his aunt. Plaintiff claimed that he didn’t have a sufficient connection to his mother’s household to subject him to her election of the verbal threshold. Medical Testing and Treatment: Not detailed. Prior Injuries: None referenced. Serious Impact on Plaintiff’s Life: Not detailed. Physician’s certification: No issue. Polk analysis: None. Miscellaneous Issue(s): Whether plaintiff was bound by his mother’s election of the verbal threshold option, when he was driving her car at the time of the accident, and resided with an aunt elsewhere. Trial Court Determination(s): The trial judge concluded that plaintiff was bound by his mother’s election of the limitation on lawsuit, or verbal threshold, tort option. In so ruling, he listed the connections plaintiff still had to his mother’s household, including the fact that his mail still was delivered there, and that he identified her house as his residence for various purposes, including for school registration purposes. The judge found these connections sufficient to conclude that plaintiff was a member of the household and should be bound by his mother’s verbal threshold election. Appellate Court Determination(s): Affirmed. The appellate panel agreed with the trial judge. Despite his residency elsewhere, plaintiff’s undisputed connections to his mother’s home are sufficient to bind him to her tort threshold election. 73. Jordan v. Thaker, A-2318-04T2 DDS No. 23-2-4477 Judges Wecker and Fuentes July 13, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of a motor vehicle accident which occurred when plaintiff’s truck collided head-on with defendant’s car. The accident caused lacerations to plaintiff’s forehead, which healed, but left visible scars. Medical Testing and Treatment: Treating physician: In a report prepared one year after the accident, Dr. Moskowitz indicated that plaintiff’s facial area revealed that there was a 2 cm well-healed but obvious transverse scar on the midforehead. In addition, there was a 1-cm laceration just above the right eyebrow. Radiology: None mentioned. Prior Injuries: None mentioned. Serious Impact on Plaintiff’s Life: Not detailed. Physician’s certification: No issue. Polk analysis: None. Miscellaneous Issue(s): Whether plaintiff’s scars constituted “significant disfigurement” or “significant scarring” under the verbal threshold. Trial Court Determination(s): The sole question presented to the trial court was whether plaintiff’s scars were sufficient under the verbal threshold to survive defendant’s summary judgment motion. Viewing the scars, the trial judge concluded that, as a matter of law, they were not, and granted defendant’s motion. He found that the scars were not unsightly, and did not render plaintiff’s appearance imperfect or deformed in any way Appellate Court Determination(s): Reversed. The appellate panel noted that, because the scars were located on plaintiff’s forehead, they could not be readily concealed. Using only the treating physician’s description, the panel concluded that a rational jury could find that these scars impaired or injured the symmetry of plaintiff’s face, and adversely and significantly affected his appearance. Reviewing other cases dealing with scarring under the verbal threshold, such as Soto v. Scaringelli and Hammer v. Twp. of Livingston, the appellate panel was satisfied that, given the location and visibility of plaintiff’s scars in this case, whether they amounted to “significant scarring” was a question to be decided by a jury. 74. Gustave v. Flores, A-5443-04T2 DDS No. 23-2-4501 Judges Hoens and Seltzer July 14, 2006 Result: Summary judgment in favor of defendants is reversed. Facts/Background: This case involved three plaintiffs, all of whom were passengers on a bus owned by the defendant bus company and driven by the defendant bus driver, and all of whom asserted injuries after the bus was involved in an accident with another vehicle on Nov. 5, 2003. Medical Testing and Treatment � Plaintiff No. 1 � Gustave: Emergency Room: Gustave visited the emergency room two days after the accident, because he was experiencing shoulder numbness, neck and lower back pain, and pain in his lower chest. He left the emergency room without being treated, however. Treating physician: On the same day he left the emergency room � two days post-accident � Gustave consulted with Dr. Gelin, an internal medicine specialist. No details are provided of his treatment. Reporting physician: Although no details are provided regarding treatment by this physician, plaintiff submitted a report by Dr. Porter in opposition to defendants’ summary judgment motion, wherein the doctor opined that Gustave’s injuries were directly and causally related to the subject accident, and that they were permanent. Radiology: A cervical MRI examination was performed on Dec. 3, 2003, which revealed that Gustave had a herniated disc at C3-4, which was indenting the cervical spinal cord, as well as herniated discs at C4-5 and C5-6 that were indenting the thecal sac. A left shoulder MRI was performed on Feb. 17, 2004, which showed full thickness tears and partial tears of several of the tendons in the shoulder. EMG tests demonstrated bilateral cervical radiculopathy and median nerve entrapment in plaintiff’s wrists. Prior Injuries: None. Medical Testing and Treatment � Plaintiff No. 2 � Andros: Emergency Room: Andros went to the emergency room on the night of the accident. No details of the visit were provided. Treating physician: Two days later, Andros saw Dr. Gelin, the internal medicine specialist who also saw Gustave. He initially diagnosed Andros as suffering from cervical sprain and strain, along with a shoulder injury. Reporting physician: Although no details are provided regarding treatment by this physician, Andros also submitted a report by Dr. Porter in opposition to defendants’ summary judgment motion, wherein the doctor opined that his injuries were significant and permanent, and noted that Andros would require further medical treatment in the future. Radiology: On Feb. 5, 2004, Andros underwent an MRI of his right shoulder, which revealed full thickness tears and partial tears in the tendons of the shoulder. No rotator cuff tear was noted. Prior Injuries: None. Medical Testing and Treatment � Plaintiff No. 3 � Levi: Emergency Room: Levi visited the emergency room on the day following the accident, where X-rays were taken of his neck and shoulder. He was treated and released with prescriptions for a pain medication and a muscle relaxant. Treating physician: On Nov. 14, 2003, Levi consulted with Dr. Gelin, the same internal medicine specialist seen by the other two plaintiffs. Levi complained of neck and shoulder pain, coupled with complaints of shooting pain, numbness, and tingling in his arm. Reporting physician: Although no details are provided regarding treatment by this physician, Levi also submitted a report by Dr. Porter in opposition to defendants’ summary judgment motion, wherein the doctor opined that his injuries were both permanent and significant. Radiology: X-rays were taken of plaintiff’s neck and shoulder in the emergency room, but the results are not provided. On Dec. 3, 2003, Levi underwent a cervical MRI scan which revealed bulging discs at C3-4 and C6-7, together with herniated discs at C4-5 and C5-6, “centrally indenting the thecal sac.” Although an MRI of his shoulder was also recommended, the record did not reveal whether Levi ever underwent this test. EMG testing conducted on Dec. 19, 2003 revealed abnormal results. Prior Injuries: None. Serious Impact on Plaintiffs’ Lives: Not detailed as to any of the plaintiffs, but the motion judge found that each plaintiff’s failure to show a serious injury or serious impact on his life mandated dismissal of his case. Physician’s certification: No issue. Polk analysis: None. Miscellaneous Issue(s): Statutory construction of N.J.S.A. 17:28-1.5 to -1.7, which applied the verbal threshold to bus passengers; PIP coverage and the defendants’ entitlement to the protection of the verbal threshold. Trial Court Determination(s): The defendants moved for summary judgment, arguing that each plaintiff’s injuries were insufficient to cross the verbal threshold, as it applies to bus passengers under N.J.S.A. 17:28-1.5 to -1.7, which was enacted as part of the legislation that created the verbal threshold for automobile accident victims. In opposition to the motion, plaintiffs first argued that the statute did not apply to them because they did not receive PIP benefits in N.J., as required by the statute. The motion judge rejected this argument, concluding that the purpose of the statute was met because defendants made N.J. PIP benefits available, and plaintiffs’ conceded PIP coverage in New York resulted in payment of all of their medical bills. The motion judge then granted summary judgment to the defendant on the verbal threshold issue, concluding that each plaintiff had failed to surmount the verbal threshold as defined by the two-prong test articulated in Oswin v. Shaw. As to all three plaintiffs, his decision seemed to rest squarely on the second Oswin prong, regarding the need to show a serious impact on one’s life from the injuries sustained in the accident. As to Gustave, the judge noted the objective medical evidence of cervical injury and tears of the shoulder tendons, but concluded that it was sufficient to support Dr. Porter’s permanency opinion. Even if he were to accept Dr. Porter’s permanency opinion, the judge still found inadequate evidence of a serious subjective impact on plaintiff’s life. As to Andros, the judge concluded that there was some objective medical evidence of a right shoulder injury, but the evidence in the record did not demonstrate that the injury was serious within the meaning of Oswin, as there was no rotator cuff tear. Finally, with respect to Levi, the judge found that the record demonstrated objective medical evidence of disc herniations, but that plaintiff had failed to show that the injury was serious or that it had significantly impacted his life. Appellate Court Determination(s): Reversed. The appellate panel first rejected plaintiffs’ threshold argument that the motion judge erred in subjecting them to the limitation on lawsuit provisions of AICRA, disagreeing with their contention that, because they did not enjoy the benefit of the PIP coverage provided by the bus company, the bus company should not be entitled to the protection otherwise afforded by the verbal threshold. Plaintiffs conceded that their medical bills were, in fact, paid by PIP carriers, albeit by their own carriers in New York. They also conceded that the bus company complied with the requirement of the statute by maintaining medical expense benefits coverage for any of its passengers who sustained injuries on the bus. They did not argue that, if they had not had any PIP coverage in New York, defendants’ coverage would not have been available to them. Rather, they argued that the PIP limits in New York were lower than those required by statute in New Jersey. Therefore, they urged the panel to interpret the statute to require that a bus company only be allowed to claim the benefit of the verbal threshold if a passenger was actually covered by that bus company’s policy. The panel rejected this contention, noting that the bus company had complied with the statutory requirements. The statute did not establish which PIP carrier would actually provide coverage for an injured plaintiff, just that PIP coverage should be available. In fact, the applicable regulations mandated that New York PIP schedule applied to these plaintiffs in light of their election to be treated in New York. Plaintiffs were subject to the verbal threshold because the bus company maintained the required coverage and because plaintiffs received PIP benefits in New York, which were adequate in light of their injuries. Thus, the motion judge correctly ruled that defendants were entitled to the protection of the verbal threshold. The panel reached a different conclusion than the motion judge, however, with respect to his substantive decision on the failure of each plaintiff to surmount the verbal threshold. The panel noted that the judge’s grant of summary judgment to the defendants was based primarily on the failure of each of the three plaintiffs to show serious injury or a serious impact on his life. As those requirements were no longer viable in light of the Supreme Court decisions in DiProspero and Serrano, and because each plaintiff did present objective, credible medical evidence of qualifying injuries, as recognized by the motion judge, reversal and remand were mandated. 75. Calia v. Tepfenhardt, A-5716-04T2 DDS No. 23-2-4539 Judges Wecker and Graves July 18, 2006 Result: Summary judgment in favor of defendant is affirmed. Facts/Background: This case arose out of an automobile accident on March 5, 2002, which occurred when defendant’s vehicle swerved into plaintiff’s lane and caused her to lose control of her car. The 58-year-old plaintiff was apparently unconscious at the scene of the accident for a time, and suffered a concussion. Medical Testing and Treatment: Orthopedist: Plaintiff came under the care of an orthopedist after the accident, but he was not named and did not act as plaintiff’s expert at trial. No details were given as to his treatment of plaintiff. Neuropsychologist: Dr. Manto examined and tested plaintiff on Feb. 12, 2003, with respect to the effects of the head injury she sustained in the subject accident. He found her test results to be within normal limits that did not approach the level that would signify the presence of cerebral injury. There was no evidence, in terms of cognitive functioning, that cerebral injury had occurred. Nevertheless, he noted that plaintiff reported somatic and emotional symptoms that were consistent with post-concussion syndrome. With respect to plaintiff’s prognosis for recovery, the doctor noted that post-concussion symptoms were slow to resolve, and might persist for a year or more. Nevertheless, he opined that her prospects for recovery appeared good. With the passage of time, substantial recovery of function was to be expected. Orthopedic surgeon: Dr. Schultz evaluated plaintiff once, on Dec. 7, 2004. She was 60 years old at the time. The doctor noted that plaintiff had been under the care of another orthopedist after the accident. He then reported her subjective complaints of persistent pain in her neck and back, with back spasms frequently noted, occasional radiating pain into the left leg, occasional headaches, and persistent chest wall pain. Reviewing plaintiff’s post-accident tests, the doctor reported that an X-ray of her cervical spine on the date of the accident revealed no apparent fracture or dislocation, but joint space narrowing from C4-C7 with degenerative spurring was noted (perhaps on a subsequent MRI). He also reviewed her lumbar tests (see below), and offered the following prognosis: “The patient has suffered a severe and permanent injury, as stated above.” The report continued, describing an apparently degenerative condition, noting the disc injuries in plaintiff’s lumbar spine, and concluding that they represented “a permanent change the natural history of which is that of progressive dessication of the disc followed by decrease in the disc space height and secondary spondylitic changes of adjacent vertebral bodies encroaching upon the spinal canal and intervertebral foramen.” (sic) The expert’s report concluded with a statement on causation, indicating that, based on plaintiff’s history and the reports available for review, as well as the physical examination he conducted, within a reasonable degree of medical probability, the doctor opined that plaintiff’s injuries were caused by the subject motor vehicle accident. Radiology: An X-ray of plaintiff’s cervical spine on the date of the accident revealed no apparent fracture or dislocation, but joint space narrowing from C4-C7 with degenerative spurring was noted (perhaps on a subsequent MRI). On June 17, 2002, a CAT scan was performed on plaintiff’s lumbar spine, revealing multilevel degenerative changes at the facet joints, a disc bulge at L3-4 and L4-5, and “compression end plate at L1.” A follow up X-ray of the lumbar spine was performed on Oct. 1, 2003, revealing osteoarthritic degenerative changes. A bone scan was performed on June 3, 2002, which showed significant increase in the sternum, consistent with fracture. In addition, there was increased uptake at the level of the 4th or 5th rib near the costochondral junction, which was also related to probable fracture. Prior Injuries: Plaintiff had apparently suffered injury to her lumbar spine in a previous motor vehicle accident in 2000. No details were provided. Serious Impact on Plaintiff’s Life: Not detailed. Physician’s certification: No issue. Polk analysis: Main issue. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge granted summary judgment dismissing plaintiff’s complaint, agreeing with defendant that plaintiff failed to provide a comparative analysis of her pre- and post-accident injuries, as required by Polk. Although plaintiff had injured her lumbar spine in another motor vehicle accident in 2000, her orthopedic expert did not refer to that prior injury at all, much less offer a comparison of her condition before the subject accident and after. Appellate Court Determination(s): Affirmed, although not for the same reason as that given by the motion judge. The appellate panel noted the controversy over the continuing viability of the Polk comparative analysis requirement under AICRA. Nevertheless, the panel stated that it had no need to resolve that question in this case, as it concluded that plaintiff had not met her burden of producing evidence sufficient to establish a prima facie case of permanent injury. The panel first reviewed plaintiff’s neuropsychologist’s report and concluded that, since he opined that plaintiff had not established cerebral injury, and that her post-concussion symptoms would resolve, her reliance on her head injury to vault the verbal threshold was not supported by the record. With respect to her cervical and lumbar injuries, the panel reviewed the orthopedic surgeon’s report and noted his prognosis; however, the omission in that prognosis was that there was nothing “stated above” in the doctor’s report indicative of any permanent injury, as he concluded. Therefore, his report was insufficient to vault plaintiff over the verbal threshold. 76. Torres v. O’Donnell, A-6394-04T1 DDS No. 23-2-4816 Judges Lintner and Gilroy Aug. 1, 2006 Result: Summary judgment in favor of defendant is affirmed. Facts/Background: This case arose out of a motor vehicle accident between the parties on Jan. 20, 2001. Medical Testing and Treatment: Orthopedic surgeon: Plaintiff came under the care of Dr. Goldstein nine days post-accident, complaining of pain in his lower back. The doctor’s initial diagnosis was lumbosacral sprain and strain syndrome, for which he prescribed a short course of physical therapy and a lumbar MRI study. Physical examinations on March 13, 2001, May 8, 2001, and June 12, 2001, continued to disclose tightness and soreness in the lumbar spine, but without any complaints of “significant radicular sensation.” Dr. Goldstein read the March 2001 MRI report as showing circumscribed disc bulging at L3-4 and L4-5 in the setting of some degenerative changes. There were also some bone marrow changes, also consistent with degenerative disease. In a report dated May 8, 2001, the doctor stated that plaintiff clearly had pre-existing, but asymptomatic degenerative disease of the back which was aggravated by the subject accident. In an attempt to help plaintiff’s symptomatology, the doctor gave him a lumbar epidural injection. Plaintiff continued to complain of pain over the next several months. On Aug. 30, 2001, Dr. Goldstein recommended that plaintiff undergo “pain-control procedures of epidural-rhizotomy types or discogram with [an] eye towards more sophisticated surgery.” Plaintiff was next examined by Dr. Goldstein on March 26, 2002, and the doctor found “decreased ease in range-of-motion of the low back with lateral bending and rotation being particularly problematic.” Because his PIP insurer refused payment for the recommended pain control procedures (concluding that they were not caused by the accident), plaintiff never underwent the treatment. In his last regular report of April 29, 2003, Dr. Goldstein opined that plaintiff would have ongoing permanent sequelae from the subject accident. Disagreeing with the PIP carrier’s examining physician that the changes in plaintiff’s back were not due to this accident, the doctor stated that the accident must be viewed as precipitating plaintiff’s symptoms, because he had had no problems with his back until after the accident. Dr. Goldstein authored a physician’s certification of permanency dated June 24, 2003, in which he stated that plaintiff, as a result of the motor vehicle accident, sustained a “low back problem � presumed lumbar disc herniation.” He also opined that it was a permanent injury. Chiropractor: Overlapping the treatment with the orthopedic surgeon, plaintiff was treated by Dr. Diana, beginning on Feb. 1, 2001, and continuing until June 27, 2001. Dr. Diana’s initial assessment was that plaintiff had suffered a lumbar sprain and strain and that he would have to rule out lumbar disc syndrome and lumbar radiculopathy. Defense physician: On April 12, 2005, plaintiff submitted to a defense examination by Dr. Bachman, who opined that plaintiff sustained a mild lumbar sprain in the accident, from which he had recovered without the need for any further treatment or evidence of any permanent residuals. Radiology: An X-ray performed on Feb. 1, 2001, disclosed minimal anterior osteophytes of L4 and L5-S1, secondary to degenerative disease; no other abnormalities were seen. A lumbar MRI performed in March 2001, revealed circumscribed disc bulging at L3-4 and L4-5 in the setting of some degenerative changes. There were also some bone marrow changes also consistent with degenerative disease. Prior Injuries: None. Serious Impact on Plaintiff’s Life: At the time of the accident, plaintiff was employed as a truck driver working 55 to 60 hours per week. Plaintiff did not miss work as a result of the accident, and continued to work in the same employment, albeit with some discomfort that “came and went” in his lower back and right leg. Physician’s certification: No issue. Polk analysis: None. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge granted summary judgment to the defendant, concluding that plaintiff failed to demonstrate by objective, credible medical evidence that he sustained an injury fitting into one of the six threshold categories defined in the statute. The judge noted the fact that disc bulges had been held in some cases to constitute sufficient objective evidence of permanent injury, and, in other cases, had been held not to be. In this case, the judge highlighted the degenerative nature of plaintiff’s disc bulges, and agreed with the defendant that there was insufficient objective, credible medical evidence of a significant permanent injury as the case law had defined it. The judge noted that plaintiff’s treatment had not been extensive, and that his complaints consisted of generally just low back pain. He did not think that this sufficed to prove a permanent injury. Appellate Court Determination(s): Affirmed. The appellate panel carefully reviewed plaintiff’s proofs of permanency against the applicable legal principles, and concurred with the motion judge’s conclusion that they were inadequate to defeat defendant’s summary judgment motion. The record was devoid of any objective medical evidence to support Dr. Goldstein’s presumption that plaintiff suffered a lumbar disc herniation. The panel reviewed the findings of the X-ray and MRI reports (see above), and noted that the MRI did not show that the pre-existing disc bulges impinged or encroached upon the thecal sac or nerve roots. Nor was there any objective medical evidence to support plaintiff’s complaint that he suffered periodic radiculitis into his right leg. His complaint was not supported by an EMG or any other nerve conduction study. The panel was therefore satisfied that plaintiff’s objective, credible medical evidence fell short of that required to carry him over the verbal threshold. Stated simply, the objective medical evidence only supported the conclusion that plaintiff suffered from a pre-existing degenerative disc condition, not that the disc bulges were caused or aggravated by the accident. 77. Metta v. Berkowitz, A-2405-05T3 DDS No. 23-2-4762 Judges Parker and Sapp-Peterson Aug. 7, 2006 Result: Summary judgment in favor of defendant is affirmed. Facts/Background: This case arose out of an automobile accident on April 25, 2002, which occurred when plaintiff’s vehicle was rear-ended by defendant’s vehicle. After complaining of a headache at the scene, plaintiff was transported by ambulance to a local hospital. Medical Testing and Treatment: Emergency Room: X-rays were taken, revealing that the facets were aligned normally and there was no abrupt transition in the interspinous intervals. Plaintiff was released with a prescription for ibuprofen for musculoskeletal pain. On the following day, plaintiff returned to the emergency room and was X-rayed again. The vertebrae and disc spaces were within normal limits. The odontoid, as visualized, appeared unremarkable. The impression was that the examination was negative. Medical Center: On the same day, the day after the accident, plaintiff went to a local medical center, complaining of “unbearable” pain in her neck. She was given a soft collar and prescriptions for pain medication and a muscle relaxant. On April 30, 2002, five days post-accident, plaintiff returned to the medical center, complaining of headaches, and pain in her neck, right shoulder, lower back and buttock/tail bone. Dr. Stolte noted that plaintiff had limited range of motion, muscle spasm, fixation, taut and tender fibers and paresthesia/radiculopathy in the cervical and lumbar regions. Edema was also noted in the cervical area. Plaintiff continued to be treated and to complain of pain. In August 2002, Dr. Stolte issued a report in which she opined that plaintiff had suffered a significant and permanent loss of function and use to her cervical and lumbar areas as a result of the accident. She diagnosed plaintiff with cervical disc syndrome; migraine headaches; and sciatica neuritis. Noting plaintiff’s objective test results (see below), the doctor concluded that plaintiff’s overall prognosis for significant improvement was limited, since injuries of the kind sustained by plaintiff were precursors to progressive accelerated arthritic changes in the joints adjacent to, and involved in, the injured area. Chiropractors: Plaintiff treated with a chiropractor who recommended that she undergo MRI studies, which she did on July 18, 2002. She also treated with a group of chiropractors at a medical association for a total of four months after the accident. Dr. Simone stated that plaintiff had a significant and permanent loss of function and use to the areas noted in the physical examination. Orthopedic surgeon: On May 28, 2003, plaintiff was examined by Dr. Dennis. He reviewed the existing reports and objective studies, and concluded that plaintiff suffered from: “(1) TMJ problems; (2) Flexion and extension injury of the cervical spine; (3) Severe ligamentous injury of the cervical spine with cervical sprain, still in the acute phase; (4) Referred pain to the mid-scapular area and along the rhomboid spasm; and (5) Lumbar sprain.” He further opined that plaintiff had been left with significant permanent residuals that expectedly would cause her to continue to have to limit her activities. He noted that plaintiff had been involved in an accident subsequent to the subject accident, but made no comparison of injuries. Examining physician: Dr. Daknis examined plaintiff in May of 2004. He evaluated her prior history and diagnosed her as suffering from cervical and lumbar facet syndrome. He reviewed the MRI studies of her cervical and lumbar spine and noted that they showed no disc herniation, “but some notably traumatic appearing discs on the cervical, as well as lumbar, spine.” He did not, however, relate the “traumatic appearing discs” or the lumbar facet syndrome to the subject automobile accident. Otherwise, he found that plaintiff had normal lumbar lordosis, motor examination, and muscle tone; no sensory loss; normal reflexes; negative straight leg raising; normal cervical lordosis, strength, and reflexes; and intact cervical and upper thoracic dermatomes. Board certified orthopedist for defense: On March 16, 2005, plaintiff was examined by Dr. Warren, on behalf of the defense. His conclusion was that plaintiff had sustained cervical and lumbar strain as a result of the subject accident, and that she showed no evidence of any organic lesions, disc herniations or peripheral nerve or nerve root involvement. He found no evidence of radiculopathy, in spite of her radicular complaints. Dr. Warren concluded that plaintiff was a classic example of a young, healthy person with soft tissue injuries in the form of muscular strains. He specifically found, within a reasonable degree of medical probability, that plaintiff presented no evidence that she had sustained any injuries of a permanent nature as a result of the subject accident. Reporting physician: Dr. Klemons issued a narrative report on Aug. 9, 2005, stating that, in his professional opinion, based upon the information provided to date, including plaintiff’s negative history of prior pain or disability, that within a reasonable degree of medical probability, it could be stated that her present pain condition resulted from injuries sustained in the subject accident. Radiology: X-rays were taken in the emergency room on the date of the accident, revealing that the facets were aligned normally and there was no abrupt transition in the interspinous intervals. X-rays were taken again at the emergency room on the day following the accident. The vertebrae and disc spaces were within normal limits. The odontoid, as visualized, appeared unremarkable. The impression was that the examination was negative. X-rays taken on April 30, 2002, indicated a loss of the normal cervical lordotic curvature; narrowed disc spaces from C4 to C6 with mild degenerative osseous changes from C4 to C-7; and increased lordotic curvature and thinning of the disc spaces between L4-5 and L5-S1 with facet imbrication. MRI examinations were performed on July 18, 2002. The lumbar study revealed a Schmorl’s node, which was noted as “usually of no clinical significance.” No other abnormalities were seen. The cervical MRI was negative. Prior Injuries: No prior injuries noted, but plaintiff was involved in a subsequent accident on Sept. 2, 2002, in which she fractured her coccyx. Dr. Dennis also indicated that plaintiff suffered ligamentous injury to her cervical spine and referred pain following this accident. Serious Impact on Plaintiff’s Life: Not detailed. Physician’s certification: No issue. Polk analysis: None. Miscellaneous Issue(s): None Trial Court Determination(s): In November 2005, defendant moved for summary judgment and the trial judge granted the motion without oral argument; however he did issue a written statement of reasons, concluding that plaintiff, despite her numerous medical examinations and objective testing, had not overcome the verbal threshold standards, since all of her objective tests were negative. The judge did note that muscle spasm � which could qualify as objective evidence of permanent injury � was noted by Dr. Simone on April 30, 2002, and by Dr. Dennis on May 28, 2003. He also noted plaintiff’s argument that Dr. Daknis found “traumatic appearing discs” on the cervical and lumbar spine. However, even viewing all of these facts in a light most favorable to plaintiff, as required by Brill, the judge determined that her proofs were insufficient to defeat the summary judgment motion. Appellate Court Determination(s): Affirmed. The appellate panel affirmed substantially for the reasons set forth in the trial judge’s opinion. 78. McElroy v. Azydzik, A-1898-05T2 DDS No. 23-2-4776 Judges Fuentes and Graves Aug. 8, 2006 Result: Summary judgment in favor of defendant is affirmed. Facts/Background: This case arose out of an automobile accident between the parties on May 3, 2004, after which plaintiff was transported by ambulance to the hospital. Medical Testing and Treatment: Emergency Room: An X-ray taken of plaintiff’s right hand and thumb in the emergency room revealed no fractures or dislocations. The joint spaces were intact. There were some minimal degenerative changes noted at the metacarpophalangeal joint spaces. According to the hospital records, plaintiff sustained a sprain of her right thumb and a contusion on her left knee from the accident. Treating physician: On Nov. 3, 2004, Dr. Meyers confirmed that he reviewed the emergency room records and noted the findings on the X-rays. The doctor also referred to another X-ray of plaintiff’s right thumb, taken by his office on May 18, 2004, which showed no evidence of fracture or dislocation to plaintiff’s hand or thumb. The doctor’s final discharge diagnosis was post-traumatic subluxation of the first metacarpophalangeal joint and interphalangeal joint of the right thumb in a post-reduction state with chronic synovitis of the right thumb. Radiology: An X-ray taken of plaintiff’s right hand and thumb in the emergency room on the date of the accident revealed no fractures or dislocations; joint spaces were intact; and some minimal degenerative changes were noted at the metacarpophalangeal joint spaces. Another X-ray of plaintiff’s right thumb was taken at the office of her treating physician, Dr. Meyers, on May 18, 2004. It showed no evidence of fracture or dislocation to plaintiff’s right hand or thumb. Prior Injuries: None. Serious Impact on Plaintiff’s Life: Not detailed. Physician’s certification: No issue, although the trial judge did note, in her opinion granting summary judgment to the defendant, that mere parroting of the statutory language by the doctor was insufficient to meet verbal threshold requirements. Polk analysis: None. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge granted summary judgment to the defendant, concluding that plaintiff’s medical documentation failed to establish that she suffered a permanent injury as a result of the subject automobile accident. She found the evidence of possible sprain of the thumb with some swelling to be insufficient under the verbal threshold. Although the details of plaintiff’s physician’s certification of permanency were not provided, the judge noted that a parroting of the statute by the doctor was not enough to vault plaintiff over the threshold. Appellate Court Determination(s): Affirmed. The appellate panel found that the motion judge’s findings were well-supported by substantial credible evidence in the record, and her conclusions, predicated on those findings, were legally sound. The panel agreed that plaintiff’s medical proofs were insufficient to establish a prima facie case of permanent injury as required by AICRA. Specifically, the panel noted that X-rays taken of plaintiff’s hand and thumb on May 3rd and again on May 18, 2004, did not provide objective medical evidence of a permanent injury. 79. Burt v. Reiss, A-6725-04T2 DDS No. 23-2-4840 Judges Fisher and Grall Aug. 14, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident between the parties which occurred on Oct. 28, 1999. Plaintiff was taken from the scene of the accident to the hospital. Medical Testing and Treatment: Emergency Room: Plaintiff was treated with a soft cast and splint for his wrist. Treating physician (1): Plaintiff saw Dr. Rosengarten after his discharge. No details of treatment were provided. Treating physician (2): On June 12, 2000, plaintiff saw Dr. Dubowitch, complaining of light-headedness, neck pain, upper back pain and right wrist discomfort. His major concern was the pain in his lower back and left leg. Plaintiff denied any pre-existing problems of that sort. After undergoing testing (see below), plaintiff returned to Dr. Dubowitch on July 12, 2000. At that point, he complained of continued pain in his neck and upper back; a lot of pain within his lower back with left leg radiculopathy; and discomfort involving his wrist. Dr. Dubowitch detected muscle spasm in the areas of plaintiff’s cervical, dorsal and lumbar spine areas. The doctor’s impressions were: post-traumatic cervical, dorsal, and lumbar sprain with myofascitis; post-traumatic left lumbar radicular complaints; and post-traumatic clinical mild carpal tunnel syndrome. After plaintiff had been involved in a subsequent accident and had undergone surgery (see below), Dr. Dubowitch concluded on July 8, 2003, that, despite the surgery, plaintiff’s wrist injury was permanent and he would continue to have limited use of his wrist. He noted that the subsequent accident worsened the injury from the subject accident. Surgery: On July 24, 2001, plaintiff underwent surgery to repair tears in the cartilage and a ligament in his wrist. Radiology and testing: An MRI examination showed no disc herniation, but a needle EMG study showed a proximal nerve lesion on the left side at the L4 and L5 levels. Tinel’s maneuver and Phalen’s maneuver were positive as to his right wrist. Prior Injuries: No prior accidents; however plaintiff was injured in a second serious accident on Aug. 9, 2000. It was apparently work-related, as plaintiff received worker’s compensation benefits. Serious Impact on Plaintiff’s Life: Not detailed. Physician’s certification: No issue. Polk analysis: The motion judge felt that plaintiff had not produced a sufficient comparative analysis of the injuries he sustained in the subject accident with those sustained in a subsequent work-related accident. Miscellaneous Issue(s): None Trial Court Determination(s): On Nov. 5, 2004, the motion judge granted summary judgment to the defendant with respect to plaintiff’s claims for noneconomic damages for all injuries other than his wrist injury. On July 29, 2005, she heard argument on defendant’s motion with respect to the remaining claims � plaintiff’s wrist injury and his economic loss claims � and on plaintiff’s cross-motion for reconsideration of the judge’s prior ruling dismissing his other non-economic claims. Plaintiff asked the judge to reconsider her prior ruling in light of the Supreme Court’s then-recent decisions in DiProspero and Serrano. Denying the plaintiff’s motion and granting defendant’s, the judge simply said that she had to deal with the issues of permanency and the lack of a Polk analysis. The judge concluded that Dr. Dubowitch’s reports did not provide objective medical evidence to prove that plaintiff’s wrist injury was the result of the subject accident, or even that it had been exacerbated as a result of the subsequent accident. Appellate Court Determination(s): Reversed. The appellate panel first noted that neither party had included in the appellate record a transcript of the motion judge’s Nov. 5, 2004, decision; thus the panel could not review her reasons for determining that plaintiff could proceed on his claim for noneconomic damages for his wrist injury, and on his claim for economic damages. Next, the panel noted that the motion judge’s findings and conclusions with respect to the July 29, 2005, motions did not address the materials submitted on economic damages and did not address the Supreme Court’s decisions in DiProspero and Serrano. As this was error, the panel concluded that the matter must be reversed and remanded. With respect to the judge’s reference to the Polk requirement, the panel also noted that she did not have the benefit of the appellate court’s decision in Davidson v. Slater, which discussed the irrelevance of Polk after DiProspero and Serrano. For all these reasons, the summary judgment order was vacated and the matter remanded so that the trial judge might evaluate the evidential materials submitted on the motion in accordance with currently controlling legal standards. 80. Lowe v. Continental Ins. Co. of N.J., A-6124-04T2 DDS No. 23-2-4891 Judges Parrillo and Sabatino Aug. 18, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on June 11, 2000, when plaintiff’s vehicle was rear-ended by an uninsured driver’s vehicle. The plaintiff went to the emergency room, complaining of neck pain radiating into his upper arm. Medical Testing and Treatment: Emergency Room: Plaintiff presented with complaints of neck pain radiating into his upper arm. No details are provided of any treatment rendered; and plaintiff was discharged the same day. Treating physician: Plaintiff treated with Dr. Panaia for seventeen months following the accident. Following objective testing (see below), Dr. Panaia concluded that plaintiff’s disc herniations and radiculopathy were the direct result of the subject automobile accident and were permanent injuries that would not heal to function normally even with further treatment. After plaintiff’s subsequent car accident in December 2001 (see below), Dr. Panaia issued a letter report in which he concluded, based on his review of the medical records and plaintiff’s subjective complaints, that 50 percent of plaintiff’s cervical injury was attributable to the subject accident, and there was a 50 percent aggravation of the pre-existing injury as a result of the subsequent accident. Orthopedic surgeon: Dr. Jaffe saw plaintiff on Aug. 10, 2000, and also related his symptoms to the subject accident. Pain management specialist: Dr. Korn related plaintiff’s injuries to the subject accident, acknowledging plaintiff’s prior accidents (see below), but noting that plaintiff had healed completely from these injuries before the subject accident. He administered a series of trigger point injections. Neurologist: Plaintiff also saw Dr. Pendino, who also attributed his injuries to the subject accident. Radiology: An MRI examination of plaintiff’s cervical spine on Oct. 10, 2000, revealed four disc herniations, three of which impinged on the spinal cord with moderate spinal canal stenosis. An EMG of plaintiff’s arm performed on Nov. 15, 2000, revealed bilateral cervical radiculopathy localized to the bilateral C7 and right C6 nerve roots, and right carpal tunnel syndrome. Prior and subsequent Injuries: Prior to the subject accident, plaintiff sustained minor injuries to his neck and back in a series of accidents dating back to 1982. On March 30, 1982, plaintiff was involved in a car accident and sustained soft tissue injuries with normal X-rays, no neurological findings, and no radicular symptoms in his arms or legs. In a work-related accident on Oct. 21, 1993, plaintiff suffered a mild lumbar sprain and strain, and X-rays were negative. Another worksite incident in 1999 resulted in a minor hip injury for which plaintiff experienced no restrictions or limitations. Dr. Korn opined that plaintiff had healed completely from these injuries before the subject accident. Plaintiff was still suffering significant neck pain from the subject accident when he was involved in another motor vehicle accident on Dec. 13, 2001. He re-injured his neck and back, this time sustaining a new cervical disc herniation at C3-4. According to Dr. Barr, who saw him for these injuries, plaintiff also sustained an aggravation of chronic traumatic cervical sprain and strain. Plaintiff also injured his shoulder when he slipped and fell on ice on Feb. 5, 2006, but no further injury to his neck or back was noted at that time. Serious Impact on Plaintiff’s Life: not detailed Physician’s certification: No issue Polk analysis: Main issue, the motion judge dismissing plaintiff’s complaint because his proofs did not establish a Polk comparative analysis, deemed necessary because of both pre-existing and subsequent injuries. The appellate panel reversed, concluding that a Polk analysis was not necessary in this case. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge dismissed plaintiff’s uninsured motorist complaint for personal injuries, concluding that he failed to present the necessary expert comparative analysis to distinguish injuries sustained in the subject accident from injuries he sustained in both his prior and subsequent accidents. Appellate Court Determination(s): Reversed. The appellate panel concluded that there was no need for a Polk analysis in this case. There was indisputable objective medical evidence � including the MRI and EMG tests, along with the physicians’ physical examinations and resulting findings � to establish that plaintiff sustained multiple cervical disc herniations and correlating nerve damage and radiculopathy in the cervical spine as a direct result of the subject automobile accident, and that these injuries were permanent. As for the distinctiveness of plaintiff’s injuries, the court cited Davidson for the proposition that the requirement of a comparative analysis had no continuing vitality in the context of a verbal threshold summary judgment motion. Even assuming otherwise, however, the panel was nevertheless satisfied that no Polk analysis was necessary here, concluding that the medical proofs demonstrated that none of plaintiff’s previous injuries were permanent or involved disc or nerve damage. Further, all of the previous injuries had healed by the time of the subject accident. As to plaintiff’s subsequent injuries, the medical proofs demonstrated that plaintiff sustained a new disc herniation, not present in previous diagnostic studies, thus rendering the injuries plaintiff sustained in the subject accident sufficiently distinct and distinguishable from those post-accident to establish, at the very least, a genuine issue of material fact to defeat summary judgment concerning their nature and extent, as well as causation. Of course, causation remained an issue of fact for the jury to decide. Finally, even assuming both the continuing viability of Polk and the need for a comparative analysis in this case, the panel was satisfied that Dr. Panaia’s letter report, albeit belated and somewhat cursory, satisfied the requirement. 81. Alfonzo v. Doyle, A-5872-04T2 DDS No. 23-2-4904 Judges Wecker and Fuentes Aug. 21, 2006 Result: Judgment in favor of defendant, based on jury verdict, is reversed. Facts/Background: This case arose out of an automobile accident between the parties, as a result of which plaintiff claimed permanent injuries. Medical Testing and Treatment: Not detailed Radiology: Not detailed, however plaintiff’s claim was largely based on the contention that he proved qualifying permanent injuries through an allegedly herniated disc and several bulging spinal discs, which indicates some testing was performed. Prior Injuries: Not discussed. Serious Impact on Plaintiff’s Life: Not detailed Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): Plaintiff’s surprise testimony before the jury about a recent doctor’s visit. Trial Court Determination(s): In instructing the jury, the motion judge apparently instructed the jury negatively regarding surprise testimony from plaintiff about a recent doctor’s visit. The judge also declined plaintiff’s attorney’s request for a jury charge that would show that plaintiff only had to show that he had sustained a permanent injury; instead, he followed the then-extant Serrano decision and charged the jury that plaintiff was required to prove a “serious permanent injury” within a reasonable degree of medical probability, as well as a serious impact on his life. The jury answered “no” to the following question on the verdict sheet: “Has the plaintiff sustained a serious permanent injury or injuries as a result of the [subject] accident?” The jury ceased its deliberations and judgment was entered for the defendant. The jury, therefore, never reached the second question as to whether the injury had a serious impact on his life. Appellate Court Determination(s): Reversed. The appellate panel noted the Supreme Court’s decisions in DiProspero and Serrano, making it clear that the serious impact and serious injury requirements no longer existed under AICRA. As Justice Albin wrote in Serrano, the Court held that “the Legislature considered the injuries enumerated in [the statute] to be serious by definition. Accordingly, [the Court would] not superimpose a new serious injury standard onto that statute.” The panel further noted that plaintiff’s case was entitled to “pipeline retroactivity” of the DiProspero and Serrano decisions. The panel agreed with plaintiff that the judge’s unfortunate inclusion of the word “serious” in the first jury interrogatory and jury instructions clouded the jury’s verdict. The panel could not determine whether the jury found no permanent injury under the statutory definition, as it was entitled to do, or whether it found that, although plaintiff suffered permanent injury in the accident, the injury was not sufficiently serious, which it was not entitled to do. The error could not be viewed as harmless in the context of the existing law, mandating reversal of the judgment based on the jury verdict. Plaintiff was entitled to a new trial on remand. Finally, the panel noted that, because of its conclusion that there must be a new trial, it need not address plaintiff’s second argument on appeal: that the judge’s response and instruction respecting plaintiff’s surprise testimony about a recent doctor’s visit would itself constitute reversible error. The situation was unlikely to repeat itself at the new trial, and the panel felt no need to comment further. It noted, however, that medical evidence of the nature of plaintiff’s claimed injuries, which largely focused on an alleged disc herniation, was vigorously contested. If presented with a properly framed question and instruction respecting the required element of plaintiff’s claim, the jury could conclude that he did not suffer a permanent injury as a result of this accident. The panel did not suggest the outcome of the new trial; it merely noted that the original verdict was tainted by the jury interrogatory and instruction as posed. 82. Patel v. Sims, A-6525-04T2 DDS No. 23-2-4915 Judges Parker and Sapp-Peterson Aug. 21, 2006 Result: Jury verdict for defendant is affirmed. Facts/Background: This case arose out of an automobile accident on Sept. 20, 2000, which occurred when the out-of-state plaintiff’s vehicle, which was stopped at a red light, was struck by defendant’s vehicle. Plaintiff refused medical attention at the scene, did not go to the hospital, and said nothing to the police officers about suffering from any pain. He was taken to his residence by a friend. Later that evening, plaintiff felt pain on his left side. Medical Testing and Treatment: Emergency Room: On the day following the accident, plaintiff asked to be taken to the emergency room, where X-rays were taken. Plaintiff was diagnosed with neck, dorsal, and lumbar strain, and was instructed to follow up with his doctor. Treating physician: Plaintiff next sought treatment two months later with Dr. Vekhmis, who recommended that he undergo a four-week course of physical therapy. She also ordered an MRI of plaintiff’s cervical spine. Thereafter, plaintiff received physical therapy two or three times a week for the next two months, for a total of eight treatments, but his condition did not improve. The doctor diagnosed plaintiff with cervical radiculopathy, a herniated cervical disc, and cervical and thoracic strain/sprain. She based her findings on objective testing, plaintiff’s complaints, and his history. She opined that, within a reasonable degree of medical probability, plaintiff’s injuries were caused by the subject accident. Defense expert: Dr. Noble testified that the MRI image showed degenerative disc disease not caused by trauma; and that the accident did not cause plaintiff’s injuries. He explained that the condition of the spine was more likely to be due to a certain aging factor. He also indicated that it was impossible to tell the exact date of the onset of the degenerative condition. Radiology: X-rays were taken in the emergency room on the day following the accident, but the results were not detailed. A cervical MRI examination was conducted, which probably showed a disc herniation, as one was referred to in the treating doctor’s diagnosis. Prior Injuries: None. Serious Impact on Plaintiff’s Life: Not detailed. Physician’s certification: No issue. Polk analysis: None. Miscellaneous Issue(s): None Trial Court Determination(s): Before trial, the defendant moved for summary judgment, arguing that plaintiff was subject to the verbal threshold by virtue of the deemer statute, N.J.S.A. 17:28-1.4, and had failed to surmount the threshold. Plaintiff did not address the deemer statute issue in his opposition, but argued that summary judgment should be denied because there were genuinely disputed issues of fact as to whether he had satisfied the subjective prong of the verbal threshold test. The motion judge found that it was undisputed that plaintiff was subject to AICRA, but otherwise denied summary judgment, concluding that there were genuine issues of material fact as to whether plaintiff’s injuries pierced the threshold. The case then went to trial, and both sides produced their expert witnesses. At the conclusion of the testimonial stage, plaintiff made several motions, asserting that (1) defendant failed to prove that plaintiff was subject to AICRA; (2) the evidence supported a jury instruction on aggravation of a pre-existing condition; and (3) a directed verdict in favor of plaintiff was warranted because plaintiff had satisfied the verbal threshold. The trial judge agreed to instruct the jury on aggravation of a pre-existing condition, but denied the remaining two motions. Plaintiff then objected to the proposed verdict sheet. According to the jury verdict sheet proposed by plaintiff, the jury was to be asked first if plaintiff had proved that any of his permanent injuries were caused by the accident. If yes, then they were asked to determine what amount of money would fairly compensate plaintiff. If the answer to the first question was no, then the jury was to be asked if defendant proved that all of the plaintiff’s permanent injuries or conditions pre-existed the date of the accident. If not, then the jury was asked to determine an award for plaintiff. If yes, then the jury was to be asked if defendant proved that plaintiff had symptoms prior to the accident for the pre-existing injuries. If not, then the jury was to be asked to determine an award for plaintiff. If yes, then the jury was to stop deliberating. The verdict sheet that was actually given to the jury asked the jury if it found that any of the injuries alleged by plaintiff were proximately caused by the accident and were permanent. The jury answered “no” to this question. As a result, they ceased their deliberations and did not reach the second question, which was what amount would fairly and reasonably compensate plaintiff for his injuries. Plaintiff moved for judgment notwithstanding the verdict, which the trial court denied. Thereafter, judgment was entered on the no-cause jury verdict, and plaintiff appealed, arguing that the trial judge erred in not granting two of his motions after the testimonial stage at trial, and adding that (1) the judge erred in his refusal to submit plaintiff’s proposed verdict form to the jury; and (2) the jury’s verdict was against the weight of the evidence, and therefore was a miscarriage of justice under the law. Appellate Court Determination(s): Affirmed, with little comment. The appellate panel added only that, if the jury accepted the testimony of the defendant’s medical expert, there was sufficient evidence to support the verdict. Consequently, the trial judge properly denied the motion for judgment notwithstanding the verdict. 83. Aazeem v. Bowers, A-2139-05T5 DDS No. 23-2-5092 Judges Lintner and Miniman Sept.14, 2006 Result: Summary judgment in favor of defendant is affirmed. Facts/Background: This case arose out of an automobile accident between the parties on May 16, 2002, when defendant’s vehicle struck plaintiff’s vehicle from the rear. Plaintiff went to the hospital from the scene of the accident. Medical Testing and Treatment: Emergency Room: Plaintiff presented with complaints of mild neck and back pain. She also had a contusion of her left knee. The emergency room report noted neck and lumbar sprain. X-rays of the cervical and lumbar spine were performed (see below). Chiropractor: Plaintiff came under the treatment of Dr. Afolabi. During this treatment, MRI’s were performed (see below). In a report dated Oct. 1, 2002, after plaintiff had undergone what the doctor called a “clinical course of chiropractic care,” Dr. Afolabi listed the following as his “Assessment/Diagnosis:” Traumatic insult to the cervical spine, complicated by intervertebral disc syndrome and radiculopathy; Hyperextension-hyperflexion type injury (whiplash) of the cervical and thoracic spine; Primary cervical subluxation accompanied by paravertebral muscle spasms; Traumatic insult to the soft tissues of the neck and cervical paravertebral musculature with accompanying radiculitis; Multiple intersegmental vertebral spine disrelationships, accompanied by degenerative disc disease; Lumbosacral sprain and strain with accompanying vertebral subluxation; Thoracolumbar sprain and strain resulting in intervertebral spinal motor unit disrelationships; Lumbar radiculitis with pain radiating into the buttocks and leg via the lumbosacral plexus; Post-traumatic lumbar sprain and strain with associated low back pain, complicated by exacerbations caused by normal activities of daily living; and Traumatically induced disc injury, with resultant neurological deficient (sic) in the form of motor and sensory impairments. In a separate paragraph following the listing of the above-described injuries, the doctor stated that, based on the physical examinations, radiographic studies, and other objective and subjective symptomatology, he had determined, with reasonable medical certainty, that plaintiff did, in fact, receive the above-stated injuries as a result of the subject accident. Later, under “prognosis,” the doctor wrote that plaintiff had attained maximum medical improvement and presented with permanencies and impairments to bodily parts resulting from the injuries sustained in the accident. Radiology: X-rays of plaintiff’s cervical spine, taken at the emergency room on the date of the accident, revealed moderate to severe endplate degenerative disease at C5-6 and C6-7 with mild anterior subluxation at C4-5. The need for an MRI was clinically indicated. Lumbar X-rays were taken on the same date, revealing mild straightening of the normal lumbar lordosis, along with a mild anterior spondylolisthesis of L3 and L4. MRI examinations were performed of plaintiff’s cervical, thoracic, and lumbar spine on May 25, 2002. Reports signed by a Dr. Green revealed the following impressions: Lumbar spine: posteriorly herniated L4-5 and L5-S1 disc; thinly-based posteriorly bulging L2-3 and L3-4 disc; and lumbar spine disc degeneration with facet arthritis; Cervical spine: severe degenerative arthritic changes noted at C5-6 and C6-7, with spondylosis and facet arthritis, as described; C5-6 and, to a greater degree, C6-7 spinal canal and neural foraminal stenosis; posteriorly bulging C2-3, C3-4 and C4-5 disc; Thoracic spine: degenerative disc space disease; and demonstration incidentally of prominent arthritic changes of the cervical spine. Prior Injuries: None, although there was evidence of degenerative disease and arthritic changes. Serious Impact on Plaintiff’s Life: Not detailed. Physician’s certification: No issue. Polk analysis: In light of plaintiff’s prior degenerative conditions, the motion judge cited her failure to produce a Polk comparative analysis as part of the reason he granted defendant’s summary judgment motion. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge granted summary judgment to the defendant, determining that plaintiff failed to demonstrate by objective, credible medical evidence that she suffered a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement, as a result of the accident, as required by category 6 of AICRA. He noted that there was nothing in the expert’s report that said that the disc herniation was permanent or causally related to the accident. Characterizing Dr. Afolabi’s report as a “hodgepodge,” the judge noted the various conditions listed in the diagnosis section, and the report’s general reference to permanent injury. He wondered which conditions the doctor was talking about with respect to permanency, and wondered in what manner they were found to be permanent. He also noted a supplemental report, which made no mention of the MRI studies. The motion judge also concluded that, because plaintiff had prior degenerative problems throughout her cervical, thoracic and lumbar spine, her failure to provide a Polk comparative analysis required the granting of defendant’s motion. Appellate Court Determination(s): Affirmed. The appellate panel concurred with the motion judge’s conclusion that plaintiff’s medical proofs did not meet the objective, credible medical evidence standard required by AICRA. The record was devoid of any specific objective medical evidence supporting the conclusion that either the herniated or bulging discs found on the MRI were caused by the accident or were permanent. The panel noted that, by imposing the requirement that a plaintiff prove by objective, credible medical evidence that his or her injury fell into one of the verbal threshold categories, AICRA replaced the prior verbal threshold with fewer categories of injuries and a more objective standard. However, a plaintiff must do more than provide a report that “bombards the reader with a list of various injuries, some of which are clearly degenerative or pre-existing, and others that may or may not be permanent, together with a general conclusion that they are all causally related to the accident and permanent in nature.” The panel found that such a report, like Dr. Afolabi’s here, did not meet the surviving Oswin standard of objective medical proof announced in both DiProspero and Serrano. The panel went on to explain that a plaintiff is required to provide something more than a report with the repetitive, general use of the word “permanent,” devoid of objective medical findings respecting those specific injuries that are claimed to be permanent and caused by the accident. The panel found that Dr. Afolabi’s report did not meet the magnitude of proof necessary to establish the objective medical standard to vault the threshold here. As the panel upheld the grant of summary judgment to the defendant on the basis of the failure of her proofs of permanent injury, it noted that it did not need to address the issue of whether Polk was still viable under AICRA. 84. Reed v. Endl, A-2768-05T2 DDS No. 23-2-5199 Judges Lisa and Holston Jr. Sept. 27, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on June 7, 2003, which occurred when defendant’s vehicle struck plaintiff’s vehicle in the rear as they were traveling on the Garden State Parkway. Medical Testing and Treatment: Chiropractor: On June 11, 2003, plaintiff presented himself for examination and treatment to Dr. Blake, with whom he underwent conservative chiropractic manipulative treatment over the course of three months, until Sept. 17, 2003. Dr. Blake reported on Oct. 14, 2003, that plaintiff’s chief complaints were pain in his neck, shoulder, and mid- and lower back radiating into his buttocks. After plaintiff underwent MRI testing (see below), the doctor opined that plaintiff had suffered a serious intervertebral disc injury as a result of the accident, as evidenced on the MRI. He stated that, although this injury could respond well to physical therapy, mild spinal manipulation, traction, certain exercises and some medication, if these measures failed to provide enough relief for plaintiff to be productive and somewhat comfortable, surgical intervention should be considered. The doctor opined that this condition represented a serious permanent injury causally related to the accident in question. As a final diagnosis, based on the objective testing, physical examinations, and plaintiff’s complaints, Dr. Blake diagnosed plaintiff with “acute traumatic hyperflexion/hyperextension injury to the cervical, thoracic and lumbar spines, causing multiple subluxation syndromes.” He concluded that these injuries were causally related to the subject accident. Dr. Blake issued a physician’s certification of permanency for plaintiff’s lawsuit on Feb. 16, 2004. He diagnosed plaintiff with disc herniation at L5-S1; lumbosacral sprain and strain; acute traumatic hyperflexion/hyperextension lumbar, thoracic and cervical injury; and multiple subluxation syndromes associated with cervicalgia, cephalgia, pain in the thoracic spine and lumbalgia. He further opined that these injuries were permanent and that there was a reasonable medical probability that they would not completely heal to function normally even with further medical treatment. Osteopathic physician: Plaintiff also saw Dr. Auriemma, who reported on Oct. 14, 2003, that plaintiff had significant decrease of the cervical and lumbar range of motion, and was going to have an ongoing problem in his neck and back as a result of this injury. Thus, he opined that these injuries were serious and permanent in nature. Radiology: After a lumbar MRI examination was performed on July 1, 2003, the radiologist, Dr. Cohen, reported that the sagittal and axial image of the lumbar spine showed disc space narrowing at L5-S1 with decreased signal present in the L5-S1 disc, compatible with dessication, and a very small central disc herniation at L5-S1. Prior Injuries: None. Serious Impact on Plaintiff’s Life: Not detailed. Physician’s certification: The trial judge found Dr. Blake’s physician’s certification of permanency insufficient. He also found that, as a chiropractor, Dr. Blake was not qualified to render a medical opinion as to permanency. The appellate panel reversed as to both of these issues. Polk analysis: None. Miscellaneous Issue(s): Whether a chiropractor is qualified to render an opinion to a reasonable degree of medical certainty with respect to a plaintiff’s injuries. Trial Court Determination(s): In granting the defendant’s summary judgment motion, the judge found that: (1) a chiropractor was not permitted to opine on medical issues; (2) the chiropractor’s certification of permanency was a net opinion and did not comply with Rios v. Szivos; and (3) plaintiff did not meet his burden of proving that he sustained a permanent injury in the accident that had not healed to function normally and would not heal to function normally with further medical treatment. He also concluded that Dr. Auriemma’s opinion as to the permanency of plaintiff’s injury was a net opinion. The judge concluded that there was no objective, credible medical evidence that showed that plaintiff’s injuries were caused by the subject accident, and that they could not be “fixed with further medical intervention.” Appellate Court Determination(s): Reversed. Reviewing the statutory definition of “physician” for purposes of the verbal threshold, the appellate panel disagreed with the trial judge’s holding that Dr. Blake, as a chiropractor, was not qualified to render an opinion to a reasonable degree of medical certainty with respect to plaintiff’s cervical, thoracic and lumbar spine injuries. The panel cited Afram v. Heller, which specifically held that chiropractors were qualified under the verbal threshold statute to render opinions on causation and permanency in respect of the types of injuries they treated. The appellate panel was also satisfied that Dr. Blake’s physician’s certification of permanency satisfied the requirements of the statute. Finally, the panel was satisfied that plaintiff submitted the requisite evidence to satisfy the limitation on lawsuit threshold sufficient to allow a jury to resolve his claim for noneconomic damages. In support of his claim of a category six injury, plaintiff supplied objective medical evidence, shown by the MRI finding of a disc herniation at L5-S1, and clinical findings on post-accident physical examination, contained in the medical reports of Drs. Blake and Auriemma. Additionally, the physician’s certification of Dr. Blake accorded with the statutory requirements, opining that plaintiff’s injury was permanent. 85. Vaspol v. Heidt, A-0274-05T5 DDS No. 23-2-5200 Judges Wefing, Parker and Fisher Sept. 27, 2006 Result: Summary judgment in favor of defendant is affirmed. Facts/Background: This case arose out of an automobile accident between the parties on Feb. 6, 2002. Immediately after the accident, plaintiff was transported to the hospital by ambulance, complaining of neck and head pain. Medical Testing and Treatment: Emergency Room: Plaintiff presented with complaints of head and neck pain, but no details of treatment were provided. Chiropractor: Plaintiff began treatment with Dr. Nixdorf soon after the accident. Neurologist: Plaintiff was examined by Dr. Adams, who related plaintiff’s right-sided C6 and 7 radiculopathies; bilateral L2-3 and L5-S1 radiculopathies; and possible musculoskeletal problems in the inguinal area to the subject accident. Treating physician: Plaintiff was examined by Dr. Pavell, who reported that plaintiff’s symptoms had improved with chiropractic care and physical therapy, which was still ongoing at the time of the report on May 22, 2002. He felt that joint injections might further reduce plaintiff’s symptoms, and in June, August and Oct. 2002, Dr. Pavell administered three lumbar epidural steroid injections at L5-S1. Radiology: An MRI examination conducted the month after the accident showed disc bulges. Prior Injuries: None detailed, but the motion judge referred to prior injuries in holding that plaintiff should have produced a Polk comparative analysis. Serious Impact on Plaintiff’s Life: Not detailed. Physician’s certification: No issue. Polk analysis: The judge found that plaintiff should have produced such an analysis in light of (unspecified) injuries she suffered on a prior occasion. The Appellate Division did not need to reach this issue. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge granted summary judgment to the defendant, holding that plaintiff had only demonstrated the presence of bulging discs, with no disc herniation, which the judge determined did not qualify as a “permanent” injury as defined by the verbal threshold statute. The judge also found that plaintiff had failed to provide a Polk analysis comparing her present injuries with those suffered on an earlier occasion. Appellate Court Determination(s): Affirmed, but for reasons different than those of the motion judge. The panel found that plaintiff had presented objective, credible medical evidence of bulging discs, and she presented the opinions of medical experts that her injuries were causally related to the subject accident. However, it did not necessarily focus, as did the trial judge, on whether bulging discs qualified as permanent injuries under the verbal threshold statute. Instead, the panel assumed that a bulging disc without herniation could fit the statutory description of permanent injury. It chose to base its affirmance of the dismissal of plaintiff’s case on the fact that none of plaintiff’s experts expressly opined or otherwise suggested that plaintiff suffered a permanent injury within a reasonable degree of medical probability that had not healed to function normally and would not heal to function normally with further medical treatment, as required by the statute. Indeed, her experts observed that their treatment of plaintiff had improved her condition. Therefore, the appellate panel concluded that plaintiff failed to provide the opinion of a medical expert that the bulging discs revealed by the objective tests, represented a permanent injury within the meaning of the verbal threshold statute. Affirming summary judgment on that basis, the panel found it unnecessary to reach the Polk question. 86. Calise v. Dempsey, A-4233-04T5 DDS No. 23-2-5240 Judges Fuentes and Messano Oct. 2, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident between the parties, which occurred on March 8, 2003. The plaintiff went to the emergency room immediately following the accident. Medical Testing and Treatment: Emergency Room: Plaintiff was treated and released. No details were provided. Chiropractor: Later that same month, plaintiff sought chiropractic treatment for her complaints of headaches, cervical pain radiating into her right arm, and lumbar pain radiating into both legs. The doctor’s initial physical examination revealed muscle spasms and restrictions in plaintiff’s range of motion throughout her cervical and lumbar spine. During the ensuing course of treatment, plaintiff received three epidural injections in her lumbar spine. Her doctor opined that her injuries were causally related to the subject motor vehicle accident and were permanent. Radiology: Plaintiff underwent MRI examinations of her cervical and lumbar spine. These revealed positive findings of disc bulges at C5-6 and L5-S1, and annular tears at L3-4 and L4-5. Electrodiagnostic testing revealed bilateral radiculopathy at L5-S1. Prior Injuries: None Serious Impact on Plaintiff’s Life: Plaintiff claimed that, as a result of the accident: (1) she was no longer able to drive long distances without having to stop and stretch; (2) her periods of sleep were interrupted; and (3) because of her inability to bend without pain, she lost extra income she had previously earned by cleaning her in-laws’ house on a weekly basis. Physician’s certification: Defendant argued, for the first time on appeal, that plaintiff’s complaint should be dismissed because she failed to file a physician’s certification of permanency, as required by AICRA. Citing Casinelli v. Manglapus, defendant argued that plaintiff’s failure to file the certification, as opposed to filing it late, should result in dismissal of her complaint with prejudice. The Appellate Division chose not to address the issue, since it had not been raised below. As the case was being remanded to the trial court anyway for further proceedings, the appellate court remanded this issue for the trial court’s consideration. Polk analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge conducted his analysis in accordance with the then-applicable Oswin v. Shaw two-prong test. He concluded that plaintiff had not suffered a serious impact upon her life as a result of the injuries caused by the accident, and, moreover, she had not proved that the injuries themselves were permanent and serious. Summary judgment was granted to the defendant. Appellate Court Determination(s): Reversed. The appellate panel noted the Supreme Court’s decisions in DiProspero and Serrano, holding that the serious impact and serious injury requirements were no longer viable under AICRA. The panel also noted that plaintiff’s case was in the appellate “pipeline” at the time, and was thus entitled to retroactive application of DiProspero and Serrano. Therefore, the matter was remanded for trial. In closing, the panel briefly addressed defendant’s argument, raised for the first time on appeal, that plaintiff’s complaint should nonetheless remain dismissed because she failed to file a physician’s certification of permanency, as required by AICRA. Citing Casinelli v. Manglapus, defendant argued that plaintiff’s failure to file the certification, as opposed to filing it late, should result in dismissal of her complaint with prejudice. Because this issue was never raised below, however, the appellate panel declined to consider it on appeal, and remanded consideration of the issue to the trial court. 87. Best v. Cannella, A-4689-04T5 DDS No. 23-2-5342 Judges Weissbard and Lihotz Oct.13, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident between the parties, which occurred on Sept. 23, 2002. Medical Testing and Treatment: not detailed, but the motion judge found that plaintiff had sustained a qualifying permanent injury manifested by objective medical evidence. Radiology: not detailed, but objective testing apparently was conducted, and supported a diagnosis of permanent injury. Prior Injuries: None Serious Impact on Plaintiff’s Life: Plaintiff’s failure to produce evidence of a substantial or significant impact on her life was the motion judge’s reason for granting summary judgment to the defendant. Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge found that plaintiff had a qualifying permanent injury, manifested by objective medical evidence; however, she granted summary judgment to the defendant, concluding that plaintiff failed to prove a substantial or significant impact on her life as a result of injuries sustained in the accident, therefore precluding any claim for noneconomic damages. Appellate Court Determination(s): Reversed, in light of the Supreme Court’s decisions in DiProspero and Serrano, which abrogated the serious impact requirement imposed by Oswin v. Shaw. The panel noted that it could not expect its trial judges to be prescient. It found that the “able and conscientious motion judge” had applied the law as it existed at the time, and she could not be faulted for that. Since the judge found that plaintiff had an otherwise qualifying permanent injury manifested by objective medical evidence, the case was remanded for trial. 88. Myers v. Garrett, A-1343-05T3 DDS No. 23-2-5469 Judges Hoens and Sapp-Peterson Oct. 25, 2006 Result: Order denying plaintiff relief from judgment is affirmed. Facts/Background: This case arose out of an automobile accident between the parties, which occurred on May 7, 2001. Medical Testing and Treatment: not detailed. Prior Injuries: None discussed. Serious Impact on Plaintiff’s Life: not detailed, but apparently this issue was submitted to the jury, and its determination was based, at least in part, on a consideration of this issue. Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): Retroactivity of DiProspero and Serrano; right to relief from judgment for non-”pipeline” cases. Trial Court Determination(s): The case was tried to a jury, which entered a verdict of no cause on June 24, 2004, and judgment was entered in favor of defendant. Plaintiff neither moved for a new trial, nor filed a notice of appeal. After the Supreme Court decided DiProspero and Serrano on June 14, 2005 � overruling James v. Torres, and holding that AICRA did not require proof of a serious life impact � plaintiff filed a motion for relief from judgment pursuant to R. 4:50-1(f) on Sept. 8, 2005, since her case had involved the jury’s consideration of the serious impact issue. The motion judge denied plaintiff’s motion, citing Hartford Ins. Co. v. Allstate Ins. Co. for the proposition that a change in the law or in the judicial view of an established rule of law is not an extraordinary circumstance to justify relief from a final judgment where the time for appeal has expired. This general principle rested primarily on the important policy that litigation at some point had to have an end. Appellate Court Determination(s): Affirmed. On appeal, plaintiff argued that, in light of the Supreme Court’s clear statement in DiProspero that its decision did not reflect a change in the application of AICRA, but rather, recognition that it had been applied mistakenly, the trial court’s denial of her R. 4:50-1(f) motion had the effect of holding her to a higher standard of knowledge than the James court, and punished her for accepting James as dispositive of the issue. Plaintiff further argued that her perceived finality of the James decision was reinforced by the March 2003 revised verbal threshold jury instruction � Model Jury Charges (Civil) �5.42 � which referenced the James decision. Therefore, she maintained that she had no reason to believe that James would be overturned, nor any rational basis to pursue an appeal at the time the verdict was entered against her. Defendant argued that prior to the commencement of the trial, plaintiff should have been on notice that the holding in the James decision was being called into question, and the appellate panel agreed. It noted that, on March 17, 2004, three months before the trial in this matter, the appellate court decided Serrano, upholding the grant of summary judgment to a defendant for plaintiff’s failure to satisfy the second, serious impact prong of Oswin. In the Serrano opinion, the appellate court did note that three months earlier, in the unpublished appellate opinion in DiProspero, the dissenting judge had adopted the reasoning in Compere v. Collins, a 2002 Law Division case, which held that the second Oswin prong was no longer applicable under AICRA. One month before plaintiff’s trial commenced in this matter, the Supreme Court granted certification in Serrano. Subsequent to the Supreme Court’s decisions in DiProspero and Serrano, the appellate court addressed their retroactive application in Beltran v. DeLima, holding that retroactivity was applicable to all pre-judgment matters pending in the trial courts and to those matters that were on direct appeal at the time the two cases were decided. While the appellate court in Beltran expressly declined to address retroactivity beyond the “pipeline cases,” a subsequent 2006 case, Ross v. Rupert, did address the issue, holding that retroactive application of DiProspero and Serrano did not extend to those cases that were not pending in the trial court or on appeal at the time the two decisions were rendered. The panel in this case noted that relief from judgment pursuant to R. 4:50-1(f) required a plaintiff to demonstrate extraordinary circumstances justifying the relief sought. The panel repeated the motion judge’s citation from Hartford, in denying plaintiff’s motion, that a change in the law or in the judicial view of an established rule of law is not an extraordinary circumstance to justify relief from a final judgment where the time for appeal has expired. Further, the panel was not persuaded by plaintiff’s argument that her reliance upon the finality of the James decision satisfied the extraordinary circumstances requirement for relief under R. 4:50-1(f). If her reliance on James rested upon the Supreme Court’s denial of certification in that case, then the subsequent grant of certification in Serrano, prior to the commencement of trial, should have placed her on notice that the Supreme Court was revisiting the holding in James. Moreover, the appellate court’s reference in Serrano to the dissent’s rejection of James in DiProspero should have placed plaintiff on notice that DiProspero was subject to review as of right. Therefore, the panel concluded that the procedural posture of both DiProspero and Serrano at the time the jury reached its verdict in this case afforded plaintiff the choice to preserve the issue of the continued viability of Oswin’s second prong by filing an appeal. She chose not to do so, however, and the motion judge properly found that her motion for relief for judgment could not be used as a substitute for such failure. 89. Ramos v. Perez, A-1158-05T1 DDS No. 23-2-5572A Judges Rodriguez and Sabatino Nov. 8, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on Aug. 23, 2001, when plaintiff’s vehicle was rear-ended by defendant’s vehicle. Medical Testing and Treatment: not detailed, except to note that plaintiff sustained soft tissue injuries to her neck and back, and was treated by a chiropractor, a pain management specialist, and her family physician. Prior Injuries: None discussed. Serious Impact on Plaintiff’s Life: not detailed, except to note that defendant moved successfully for summary judgment based on the fact that plaintiff could still perform many of the routine daily activities after the accident that she had performed before. Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): Erroneous dismissal of plaintiff’s economic claims; entitlement to retroactive application of DiProspero and Serrano. Trial Court Determination(s): The defendant moved for summary judgment, arguing that plaintiff could still perform many of the routine daily activities after the accident that she had performed before, and therefore had not proved a serious impact on her life. Defense counsel submitted a proposed order granting summary judgment, but it did not distinguish between plaintiff’s noneconomic damages and her economic damages, the latter of which are not limited by the AICRA verbal threshold. Following oral argument limited to plaintiff’s noneconomic claims, the motion judge granted summary judgment to the defendant, agreeing that plaintiff had not demonstrated a serious, detrimental impact on her lifestyle as a result of the injuries sustained in the subject accident. On April 1, 2005, the judge signed the order proffered by the defendant, which effectively, and erroneously, dismissed plaintiff’s economic claims as well as her noneconomic claims. Forty-eight days later, on May 19, 2005, plaintiff moved under R. 4:50-1 to amend the original order because it had improperly disposed of her economic claims � for lost wages and several thousand dollars in nonreimbursed medical costs. On July 8, 2005, the same judge reinstated plaintiff’s economic claims; however, he inserted language into the order provided that it did not extend plaintiff’s time to appeal the earlier dismissal of her noneconomic claims. Plaintiff moved unsuccessfully for reconsideration of that proviso, which the judge denied on Sept. 23, 2005. On Nov. 4, 2005, plaintiff filed her appeal, seeking a determination that the Supreme Court’s supervening opinions in DiProspero and Serrano, which eliminated the presumed “lifestyle” prong of the verbal threshold test, should apply retroactively to her case. Appellate Court Determination(s): Reversed. As a preliminary matter, the appellate panel noted that the present appeal was interlocutory, as there was no indication that plaintiff’s economic issues had yet been resolved. However, the panel declined to dismiss the appeal on that basis, and instead granted plaintiff leave to appeal, sua sponte, in the interests of efficiency. Because the proceedings in the Law Division were not yet final on June 14, 2005, plaintiff’s case was plainly within the retroactivity pipeline when DiProspero and Serrano were decided. Accordingly, the panel held that the clarified rules of law governing AICRA cases, as announced that date by the Supreme Court, applied to plaintiff’s still-pending matter. Because defendant’s summary judgment motion hinged entirely on plaintiff’s failure to prove a serious lifestyle impact, she was entitled to have her noneconomic claims reinstated. The panel recognized that by May 19, 2005, plaintiff had missed the twenty-day deadline to correct the overbroad initial order of April 1, 2005, through a motion for reconsideration or through an appeal, which had to be filed within forty-five days. Nonetheless, the panel found that plaintiff acted with reasonable dispatch by applying for relief under R. 4:50-1 to cure the mistake arising out of defendant’s misdrafted order. Finally, the panel noted that if defense counsel had submitted a proper order with his motion in the first place, plaintiff’s economic claims would have been preserved, and the order would have been a nonfinal one for partial summary judgment. That scenario also would have entitled plaintiff to the pipeline application of DiProspero and Serrano. 90. Guadalupe v. Ramos, A-2080-05T2 DDS No. 23-2-5626 Judges Coleman and Holston Jr. Nov. 15, 2006 Result: Summary judgment in favor of defendants is reversed. Facts/Background: This case arose out of a three-car collision which occurred on June 19, 2002, when defendant Bittencourt’s vehicle struck a vehicle driven by defendant Tejada, causing Tejada’s vehicle to strike plaintiff’s vehicle. Medical Testing and Treatment: Medical center: Plaintiff was treated at Palisades Medical Group from June 19, 2002, until approximately April 29, 2004. Physical examinations revealed continued muscle spasm and plaintiff subjectively reported pain over the course of her treatment. Medical reports diagnosed her with cervical and lumbar sprain, as well as disc bulges at C6-7 and L4-5, and concluded that such injuries were permanent in nature. Medical expert: Plaintiff’s medical expert opined that the subject accident caused her spinal injuries. Based on a review of the plaintiff’s prior medical records, including those from a prior 1998 accident (see below), the expert confirmed that she did not have any abnormal findings prior to the subject accident. Therefore, he opined that her spinal injuries were directly caused by the subject accident. Radiology: An MRI examination revealed diffuse bulging of the C6-7 disc and the L4-5 discs. Prior Injuries: In response to an interrogatory which asked whether aggravation of a previous injury was being alleged, plaintiff referred to an accident on Dec. 29, 1998. Other than this one reference there was no aggravation claim made. Plaintiff was involved in two prior accidents. In the first, occurring in 1996, plaintiff claimed injury to her arm; however, she asserted that no medical documentation was available for that injury. Further, she claimed no continuing pain or treatment for that injury. The second accident was the one on Dec. 29, 1998, referred to in plaintiff’s answer to the aggravation interrogatory. However, plaintiff’s medical expert reviewed MRI studies from the 1998 accident, as well as the MRI studies after the subject accident, and, in his report, did not assert an aggravation of any prior injury. It appeared from the medical records that a different part of plaintiff’s body was injured in that accident than in the subject accident. Serious Impact on Plaintiff’s Life: Not detailed. Physician’s certification: No issue. Polk analysis: Main issue. Miscellaneous Issue(s): Court properly allowed consideration of plaintiff’s medical evidence from her prior accident, even though it was submitted after the end of discovery, since there was no prejudice to defendants. Trial Court Determination(s): The motion judge found that the MRI studies, medical reports diagnosing the disc bulges, and the duration of treatment and plaintiff’s pain were sufficient to create a dispute as to a material fact as to the permanency of her injuries. Nevertheless, he granted summary judgment to the defendants, concluding that plaintiff failed to produce a Polk comparative analysis of her pre- and post-accident injuries, which he deemed necessary because of plaintiff’s prior accidents. Appellate Court Determination(s): Reversed. The appellate panel agreed with the motion judge’s conclusion that plaintiff had provided sufficient objective medical evidence to create a question of material fact as to whether she sustained a permanent injury as a result of the accident. However, the panel did not agree that there was a genuine claim of aggravation in this case, such that Polk was implicated. The panel noted a total absence of medical records showing injuries to the same body part. Thus, the grant of summary judgment on the grounds of an inadequate Polk analysis was inappropriate and was reversed. The panel further noted that the motion judge erred in finding, as a fact, that plaintiff’s expert’s opinion was insufficient as to the issue of causation. The report only needed to create a question as to a material fact when viewed in a light most favorable to plaintiff, which the panel felt that it did. The report did not contain the type of conclusory language found to be insufficient in Lucky v. Holland, but rather, was based on a review and comparison of medical records created before the subject accident with records created after the accident. That comparison disclosed no similar, prior injuries. A plaintiff need not prove conclusively the issue of causation in her favor at the summary judgment stage. Indeed, a jury might ultimately decide that there was a lack of causation; but that was not for the trial court or appellate panel to decide. Based on plaintiff’s objective, credible medical evidence, the panel found that she had established a genuine issue of material fact as to whether her spinal injuries were caused by the subject accident. For that reason, summary judgment should have been denied. Finally, the panel found no prejudice to the defendants by the trial court’s having allowed consideration of plaintiff’s medical evidence from her 1998 accident, even though it was submitted after the end of the discovery period. There was no indication that defendants would have altered their claims that plaintiff’s Polk analysis was insufficient. Therefore, they were not prejudiced by the delay in reviewing plaintiff’s records from the 1998 accident. 91. Davis v. Redwood, A-5455-04T3 DDS No. 23-2-5650 Judges Weissbard and Payne Nove. 17, 2006 Result: Summary judgment in favor of defendant is reversed as to plaintiff Sharon Davis; Judgment based on jury verdict of no cause is reversed as to plaintiff Della Davis. Facts/Background: This case, involving two plaintiffs, arose out of an intersectional automobile accident which occurred on March 22, 2002. Plaintiff Della Davis was a front-seat passenger in a car that was being driven by her son-in-law, Brown. Della’s daughter, plaintiff Sharon Davis, was an unrestrained passenger in the back seat of the car. The car was struck by defendant Redwood, who allegedly ran a stop sign. Little damage to either car was evident, and both were driven from the scene. No scene diagrams were made, and no police testimony was offered at trial regarding the accident. The trial court granted defendant summary judgment on Sharon’s claims (see below for details of her medical treatment), and the case proceeded to trial on Della’s claims. Della settled with her son-in-law, and he did not appear at trial. The jury was informed of the settlement and was properly instructed under Model Jury Charges (Civil) �� 1.11 and 1.17 that the settlement was not evidence of negligence, which could be found only upon the basis of evidence adduced at trial. The only two fact witnesses at trial were Della and Redwood. At trial, Della testified that Brown was driving at normal speed, when defendant’s vehicle came “out of nowhere,” going as fast as it could. She testified that the collision was so hard that it knocked plaintiffs’ vehicle over into oncoming traffic. However, Della could not state that the defendant’s vehicle was speeding, since she claimed to be unaware of the speed limit at the scene. When Della was asked on direct examination whether she had seen defendant’s car before the collision, she said that, by the time she did see it, “it was too late . . . I could see it coming, and . . . it wasn’t going to stop.” However, on cross-examination, in response to a similar question, she said that she had not seen the car until the collision. She later explained that she had seen the car for a “split second” before impact. Della testified at trial that defendant’s vehicle struck plaintiffs’ vehicle between the car’s front door and front wheel on the passenger side; however, the photographs marked as exhibits at trial showed no damage in that area to plaintiffs’ vehicle. Defendant Redwood testified that, prior to the collision, she had stopped at the stop sign and, because a van was blocking her view to the left, she inched forward, looking to see if it was clear to proceed. She claimed she didn’t know where plaintiffs’ car came from before the impact, but she did state that it was going a little faster than it should have been going; the speed limit was 25 mph, and defendant thought Brown was traveling about 35-40 mph. In contrast to Della’s testimony, defendant stated that she was only proceeding at a speed of zero to five miles per hour while inching forward. When shown photographs, defendant pointed to a small area of her front bumper as constituting the site of the impact, which she characterized as slight. Defendant testified that her vehicle came to a stop after the accident, but plaintiffs’ vehicle continued forward and then stopped at the side of the road. On cross-examination, defendant was asked how, if she had not seen the Brown vehicle before the impact, she could estimate its speed. Defendant testified that she estimated the speed because of where the Brown vehicle ultimately stopped after impact. In his closing, defense counsel made references to the Brown settlement that were conjoined with missing witness arguments. Counsel stated that defendant was more credible because she could have simply told the jury that she had seen the Brown vehicle and it was speeding, but, instead, admitted that she hadn’t seen the Brown vehicle. Then, when discussing Della’s testimony, and noting the inconsistency between her characterization of the impact and the nonevidence of damage as shown by the photographs, defense counsel asked why Brown, who was Della’s family member, wasn’t there to help her case. Della’s counsel’s objection was overruled. Defense counsel also asked the jury why, if defendant was supposed to have sped through the stop sign, there wasn’t more damage to her car. Medical Testing and Treatment (Sharon Davis): Treating physician: Plaintiff was examined approximately three weeks post-accident, on April 15, 2002, by Dr. Joachim, a physician practicing with Sall/Myers Medical Associates. He diagnosed plaintiff as suffering from post-traumatic headaches, contusion of the head, cervical and lumbar spine injury with nerve root involvement, injury to the dorsal root, and soft tissue injuries to muscles and ligaments. Physical therapy and a neurological consultation were recommended. Neurologist: On June 23, 2002, Sharon was examined by Dr. Malkin, a neurologist in the Sall/Myers group. He diagnosed plaintiff with post-traumatic headaches that were resolving, cervical sprain and strain, cervical spine injury with nerve root involvement, displacement of cervical intervertebral disc without myelopathy, and lumbar sprain and strain. In a report dated June 17, 2002, Dr. Malkin found that Sharon’s symptoms were causally related to the subject accident, and her prognosis was uncertain. Physical therapy: Plaintiff completed thirty-one physical therapy treatments at Sall/Myers, and was discharged on July 24, 2002. Upon discharge, Dr. Dane, another neurologist, provided the following final diagnosis: “Flexion/extension injury of the cervical spine with chronic fibrosis and fibromyositis plus cervical radiculopathy manifested by the loss of range of motion, complaints of pain radiation and reflex changes plus traumatic derangement of the intervertebral disc at C3-4, C5-6 and C6-7 with disc bulges with straightening of the cervical spine noted on MRI.” The doctor noted that the areas of the body mentioned in the diagnosis had not healed and would not heal to normal function, and he causally related the injuries to the subject accident. Radiology: An MRI examination of Sharon’s cervical spine, conducted on May 31, 2002, disclosed disc bulges at C3-4, C5-6 and C6-7, each of which indented the ventral aspect of the thecal sac, and cervical straightening suggestive of paraspinal muscle spasm. A lumbar MRI examination was normal. Prior Injuries: None. Serious Impact on Plaintiff’s Life: Not detailed as to either plaintiff. Physician’s certification: No issue as to either plaintiff. Polk analysis: None. Miscellaneous Issue(s): Evidentiary rulings at trial of Della’s claim. Trial Court Determination(s): The motion judge first granted summary judgment to the defendant with respect to Sharon’s claim, concluding that she did not surmount the verbal threshold. Sharon filed an appeal. Della’s case then proceeded to trial, as summarized above. The plaintiffs moved to strike defendant’s testimony regarding the speed of the Brown vehicle at the time of the collision; that motion was denied. Additionally, the trial court denied Della’s motion for a directed verdict on the issue of defendant’s negligence. The judge noted that it was a close case, but that the testimony created a jury question. The jury’s verdict of no cause for action followed and judgment was entered accordingly. Della appealed. Appellate Court Determination(s): Reversed as to both the grant of summary judgment on Sharon’s claim, and the judgment entered on the jury’s no cause verdict as to Della’s claim. First, with respect to Sharon’s claim, the panel concluded that the diagnosis of Dr. Dane upon her discharge, supported by an objective demonstration of three cervical disc bulges indenting the thecal sac, constituted prima facie evidence of the existence of permanent injury as defined in the verbal threshold, sufficient to defeat defendant’s summary judgment motion. While recognizing the dispute among experts as to whether evidence of disc bulges is sufficient to meet the AICRA threshold, the panel concluded that the issue was one that was best resolved at trial after a full exploration of relevant medical opinions. Summary judgment in favor of defendant as to Sharon’s claim was reversed. Next, the appellate panel considered Della’s arguments on appeal with respect to the trial of her claims. The panel first found merit in her argument that the trial court erred in permitting defense counsel, in closing, to reinforce the permissible inference � that Brown was not called by Della as a witness because his testimony would have been unfavorable to her case � with the impermissible inference that Brown’s settlement with Della constituted an admission of liability. The panel found no error in defense counsel’s references to Brown, the driver of the vehicle in which plaintiffs were riding, as a crucial missing witness, given the paucity of other competent evidence at trial as to how the accident had occurred. The panel also found no error in counsel’s suggestion that the jury draw a negative inference from the fact that Brown was not produced to testify. However, the panel regarded counsel’s repeated coupling of his missing witness argument with the fact of settlement to have been improper, because the argument, as framed, unmistakably suggested an admission of liability on Brown’s part, in violation of both N.J.R.E. 408, and the trial court’s instruction to the jury that no inference of liability should be drawn from the fact of the settlement. The panel also found error in the trial court’s failure to strike defendant’s testimony regarding the speed at which the Brown vehicle was traveling at the time the accident occurred. Discussing cases in which lay testimony had been allowed, the panel noted that those witnesses had qualifications which provided a sufficient foundation for their opinions. The panel noted that it would generally not be proper for the average lay witness who is familiar with the sound of a moving automobile to give a general characterization of the vehicle’s speed based solely on auditory perception. In the case at bar, no foundation was presented for defendant’s testimony on the speed of the Brown vehicle in this case. Thus, it was error to deny counsel’s motion to strike that testimony. The panel also concluded there was no foundation for defendant’s testimony that Brown was proceeding at a little faster speed than he should have been prior to the accident, as defendant had testified that she did not see the vehicle prior to impact. Defendant was, however, competent to compare the ease with which she stopped her vehicle with Brown’s difficulty in doing so, despite the slight nature of the impact � testimony from which an inference of speed could be drawn. The panel further held that plain error occurred as a result of the court’s admitted failure to follow its charge regarding the stop sign provisions of the Traffic Act, N.J.S.A. 39:4-144, with Model Jury Charge (Civil) � 5.20D, which instructs that, if violation of a statutorily-established standard of care is found to have occurred, that violation may be considered in determining the existence or non-existence of the defendant’s negligence. Without the cited charge, the panel believed that the jury may have been confused or misled as to the significance, if any, of defendant’s statutory violation, assuming that the jury found such violation to have occurred. Under all of these circumstances, reversal of the no cause verdict was required, and the matter remanded for re-trial. With respect to Della’s argument that the trial court erred in declining to direct a verdict against defendant because of the absence of negligence on the part of Brown, the appellate panel rejected this assertion. The panel agreed with the trial judge that reasonable minds could differ as to defendant’s liability on evidence that provided a basis for the conclusion that she had brought her vehicle to a halt at the stop sign, proceeded forward cautiously because of obstructed view, and was only inching forward at five mph when the impact occurred. Evidence was also produced on the basis of which the jury could conclude that Brown either failed to observe defendant, or failed to take any evasive action after seeing her, and that he was traveling faster than he should have been. Thus, the evidence was sufficient to require submission of the case to the jury for its consideration. The panel finally declined to address Della’s arguments regarding the admissibility of photographs of Redwood’s vehicle taken after the accident and the admissibility of testimony as to who had taken those photographs, finding the incomplete and partially unintelligible record of this aspect of the trial to be insufficient to permit its consideration of the issue. 92. Kurtz v. Doggett, A-6527-04T1 DDS No. 23-2-5652P Judges Stern and Messano Nov. 17, 2006 Result: Summary judgment in favor of defendant is affirmed; denial of plaintiff’s motion for reconsideration in light of DiProspero and Serrano is affirmed. Facts/Background: This case arose out of an automobile accident between the parties, which occurred on April 5, 2001. Medical Testing and Treatment: Emergency room: X-rays were taken and were positive for a nondisplaced fracture of the left clavicle. Orthopedist: On April 18, 2001, Dr. Baker reported that the X-rays taken on the date of the accident showed that plaintiff’s fracture was in “good position and alignment.” Her left clavicle had no swelling or deformity when palpated. The distal third of the clavicle was tender. Upper extremity deep tendon reflexes were intact and motor strength was intact as well. She had a full range of motion of the cervical spine bilaterally with a negative Adson’s test. The doctor’s impression was a nondisplaced fracture of the left clavicle. The orthopedist placed plaintiff in a figure eight clavicle strap, and gave her a note to excuse her from work for the following two weeks, at which time he wanted to see plaintiff again. Physician’s certification: Dr. Glenn issued a physician’s certification of permanency for plaintiff’s lawsuit, noting the subject accident and opining that, within a reasonable degree of medical probability, the accident caused plaintiff to sustain a fracture of the left clavicle. He also reported that this was a permanent injury that had not healed to function normally and would not heal to function normally with further medical treatment. The doctor stated that he based his findings on objective, credible medical evidence, consisting of diagnostic tests that were not experimental and not dependent entirely upon subjective patient response. Radiology: X-rays were taken in the emergency room on the date of the accident, and revealed a nondisplaced fracture of the left clavicle. Prior Injuries: None. Serious Impact on Plaintiff’s Life: Not detailed. Physician’s certification: The appellate panel concluded that plaintiff’s physician’s certification was inadequate because it merely parroted the statutory language. Polk analysis: None. Miscellaneous Issue(s): Scarring on plaintiff’s leg. Trial Court Determination(s): Plaintiff asserted that her nondisplaced fracture satisfied the permanent injury requirement of the verbal threshold, even though it differed from a displaced fracture, which satisfied the threshold per se. She also argued that she was able to pierce the threshold through her left leg injury, because of the scar she sustained, although she produced no medical report concerning the scar. The motion judge disagreed with both of plaintiff’s contentions, and granted summary judgment to the defendant. He noted that plaintiff’s scar � a 3/8-inch scar below her knee � without any other distinguishing characteristics, did not qualify as “significant scarring” under the verbal threshold. The record does not contain his findings on the fracture injury. Plaintiff unsuccessfully sought reconsideration, arguing that her case was “in the pipeline” for retroactive application of the Supreme Court’s decisions in DiProspero and Serrano. Appellate Court Determination(s): Affirmed. The appellate panel first noted that, although the record was silent as to when final judgment was entered in this case, one of the case information statements indicated that plaintiff’s economic claims were settled on May 18, 2005. If judgment was entered on that day, plaintiff’s motion for reconsideration, filed on June 27, 2005, was not timely, and the matter would not be governed by DiProspero, as the case would be outside of the pipeline. Nevertheless, the panel determined that it would address plaintiff’s claims on the merits, on the premise that the motion was timely filed. As to plaintiff’s fracture, the appellate panel agreed with plaintiff that a non-displaced fracture could satisfy the verbal threshold, if it met the requirements of category six, and was proved to be a permanent injury. However, plaintiff’s physician’s certification of permanency merely parroted the statutory language. Mere recitation of the required wording of a certificate of permanency was not sufficient to withstand summary judgment, which was properly granted, as was the motion for reconsideration. As to her scar, the panel noted that plaintiff had produced no medical report concerning it, and there was no suggestion that it had become further discolored or more significant following the entry of summary judgment, when the judge � who had a chance to view the scar � found it inadequate to vault the verbal threshold. Therefore, summary judgment was properly granted and the motion for reconsideration was properly denied. 93. Lechmanick v. Kiss, A-2540-04T3 DDS No. 23-2-5653A Judges Stern and Baxter Nov. 17, 2006 Result: Summary judgment in favor of defendant under old verbal threshold is reversed. Facts/Background: This case arose out of an automobile accident between the parties, which occurred on March 19, 1996. In addition to neck injuries, plaintiff claimed to have sustained a fracture and foot injury. Medical Testing and Treatment: Chiropractor: Plaintiff sought treatment with her chiropractor, Dr. Louro, who found that plaintiff sustained, among other injuries, a significant loss in normal cervical lordosis, a break in the posterior vertebral line, and foraminal encroachment of the C6-7 nerve root level. Additionally, the doctor found evidence of paravertebral erector myospasms, along with spasms in the trapezius deltoid and biceps bilaterally, and myospasm of the paravertebral musculature throughout the thoracic and lumbar spine. Dr. Louro attributed all of these findings to the accident with defendant. Because Dr. Louro had treated plaintiff for a prior work-related injury, he concluded that the combined effect of the two accidents had resulted in a severe amount of structural damage to plaintiff’s cervical spine. Also, he concluded that the accident with defendant had caused a permanent injury to the cervical spine, which he anticipated would result in remissions and exacerbations of complaints on an alternate basis, which he indicated was quite common following injuries such as those plaintiff suffered. Dr. Louro’s report of May 20, 1999, concluded with the observation that plaintiff had been forced to retire from her position at Verizon due to numerous exacerbations of the injuries resulting from the subject automobile accident. Defense experts: Plaintiff was examined by a number of physicians at the request of defendant, all of whom found no evidence of spasm or gross abnormalities in plaintiff’s cervical spine. Their reports included notations that: plaintiff was found to have normal EMG and MRI studies, but had evidence of cervical sprain and strain; there was no spasm in plaintiff’s range of motion and that her cervical spine was in a normal range; plaintiff had minimal tenderness in the postural cervical spine; plaintiff had reached her maximum level of medical improvement; and a physical examination of the plaintiff had revealed that she had made a complete recovery from any earlier symptoms. Radiology: EMG and MRI studies were apparently performed, as they were referenced in the defense experts’ reports with, they claimed, normal findings. Prior Injuries: Three months prior to the subject accident, plaintiff was involved in a work-related accident. She was also treated by Dr. Louro, her chiropractor, for injuries sustained in that accident. Serious Impact on Plaintiff’s Life: Plaintiff was forced to give up her $65,000 per year office manager position at Verizon due to numerous exacerbations of the injuries resulting from the subject automobile accident. She also had to sell her wholesale candy business, could no longer exercise on a regular basis, and could no longer fish or do housework. Physician’s certification: No issue. Polk analysis: None. Miscellaneous Issue(s): Dismissal of plaintiff’s economic loss claims; barring of plaintiff’s expert’s report as to her injuries causing her retirement. With respect to her claim for economic loss, plaintiff asserted that, due to lingering neck pain and stiffness, numbness and pain in her arms, pain between her shoulders, back pain, and muscle cramping, she had to retire from her $65,000 per year position as officer manager at Verizon. She also had to give up her wholesale candy business. Defendant claimed that there was no causal relationship between the plaintiff’s retirement from her job, and the subject automobile accident. The defendant argued that, because plaintiff continued to work for three years after the accident, she could not be deemed to have forcibly retired. Defendant asserted that plaintiff only retired because she had attained the requisite number of years to receive full benefits. Trial Court Determination(s): The motion judge granted summary judgment to the defendant, summarizing the defendant’s medical reports, and noting their conclusion that plaintiff was found to have normal EMG and MRI studies, and showed evidence of cervical sprain and strain; that there was no spasm in plaintiff’s range of motion and that her cervical spine was in a normal range; that plaintiff had minimal tenderness in the postural cervical spine; that plaintiff had reached her maximum level of medical improvement; and that a physical examination of the plaintiff had revealed that she had made a complete recovery from any earlier symptoms. Despite Dr. Louro’s reports of permanent cervical injury and his findings of spasm, the motion judge did not discuss them, and limited her discussion to Dr. Louro’s treatment of plaintiff’s foot injury. She concluded that plaintiff had not provided sufficient proof of substantial injury. She also found that plaintiff had not provided any proof that her alleged fracture was related to the accident. With respect to lifestyle impact, the motion judge found it significant that plaintiff did not quit her job at Verizon until three years post-accident. She said there was no lost wage claim at or near the time of the accident. She also noted that plaintiff had not produced any office records or employment records that would substantiate her claim as to disability because of her injuries, or why she was able to work for three years after the accident. After summary judgment on plaintiff’s noneconomic claims had been granted, a second judge dismissed her claims for economic loss. Although the judge recognized that plaintiff did not have to satisfy the verbal threshold requirements in order to pursue her economic loss claim, she nonetheless mistakenly held the plaintiff to the standard set forth in Zoller v. Transamerica Ins. Co., which required a showing of objective, credible medical evidence in order to recover for economic losses. The judge noted Zoller’s instruction that complaints of pain and discomfort were not enough to sustain a claim for lost income where a voluntary retirement was taken, and the plaintiff had been able to resume her job duties after the accident. In order to prevail, the plaintiff must prove through objective, credible medical evidence that the injury had rendered her incapable of carrying out her work-related duties. Since plaintiff had continued to work, she had not shown she was incapable of performing her job, and the judge dismissed plaintiff’s claim for economic losses. Appellate Court Determination(s): Reversed. The appellate panel noted that, although the motion judge thoroughly reviewed the defendant’s medical evaluations of plaintiff, her opinion omitted any significant discussion of the findings of plaintiff’s treating chiropractor, Dr. Louro, or his conclusion that, as a result of the subject accident, plaintiff had suffered a permanent cervical spinal injury, as shown by objective medical evidence, including spasm. This was significant because, in Owens v. Kessler, the appellate court held that spasm clearly constituted prima facie objective evidence of permanent injury, most notably spasm and significant loss of cervical lordosis, both of which plaintiff suffered here. Dr. Louro’s findings were thus sufficient under Owens to raise a genuine issue of material fact as to whether plaintiff sustained a permanent injury to satisfy the verbal threshold. Moreover, the panel concluded that the motion judge’s finding that plaintiff did not satisfy the serious impact prong of Oswin was incorrect as well. The appellate courts had held that a plaintiff’s loss of the physical ability to continue to engage in a social or recreational activity which had been a significant and important component of that plaintiff’s way of life constituted a qualifying “serious impact.” Here, the panel felt that a reasonable jury could find that the loss of any of the activities in which plaintiff could no longer engage had a serious impact on her life. As to the second judge’s dismissal of plaintiff’s economic claims, the panel also reversed, noting that the verbal threshold requirements do not apply to such claims. The panel stated that all plaintiff had to do was present enough evidence to create a genuine issue of material fact as to whether she had suffered economic losses as a result of the subject accident. Because the report of Dr. Louro concluded that plaintiff was forced to terminate her employment as a result of the accident, such evidence was sufficient to satisfy this standard. Moreover, the panel held that the motion judge seemed to have exceeded the mandate of Oswin when she made her decision. The Oswin court held that the role of a summary judgment motion judge was to determine whether a genuine issue of material fact existed, but not to decide the issue if she found it to exist. Here, the panel noted that the motion judge did not make any explicit findings as to whether or not a genuine issue of material fact existed. Instead, despite plaintiff’s claims of injury, the judge improperly found the facts and granted summary judgment to the defendant, concluding that, even if pain and discomfort were a substantial factor in plaintiff’s retirement decision, the unequivocal proofs showed that she was able to resume her job after the accident without interruption, and to carry out all the tasks necessary to perform her job until she qualified for full retirement benefits. Thus, the judge found that plaintiff could not sustain her lost wage claim. The panel found that, even if the judge had been correct in requiring plaintiff to satisfy the holding of Zoller in order to survive defendant’s motion to dismiss the claim for economic loss, defendant’s motion for summary judgment still should have been denied, because Dr. Louro’s finding of spasm, and his conclusion that the effects of the accident had caused plaintiff to retire, were a sufficient showing of objective, credible medical evidence to enable plaintiff to survive the motion. Had the judge applied the correct Brill standard, as she should have done, the panel noted that the proper result became even more clear; unquestionably, it found that plaintiff’s proofs raised a genuine issue of material fact as to whether she had suffered economic losses as a result of the subject accident. While a jury might ultimately choose to disbelieve plaintiff’s claim that the accident was the cause of her retirement, the panel noted that issues of causation were best left to the jury to resolve. Finally, the appellate panel addressed plaintiff’s challenge to the trial court’s order granting defendant’s motion to strike Dr. Louro’s opinion regarding plaintiff’s inability to work on the basis that it was a prohibited net opinion. The panel gathered from the record that, when Dr. Louro was deposed, he offered an opinion that plaintiff’s work at a computer was adversely affected by the tingling and numbness in her hands, which had resulted from the accident, forcing her to retire. The panel concluded that this was sufficient to satisfy Buckelew’s requirement that “an expert explain a causal connection between the act or incident complained of and the injury or damage allegedly resulting therefrom.” Thus, the order barring Dr. Louro’s May 20, 1999, report was error. 94. Ortiz v. Lafita-Chang, A-2521-05T2 DDS No. 23-2-5721 Judges Weissbard and Payne Nov. 27, 2006 Result: Summary judgment in favor of defendant is affirmed. Facts/Background: The seventy-one-year-old plaintiff was a restrained front-seat passenger in a car involved in an automobile accident on April 18, 2002. Following the accident, she was taken to the hospital. Medical Testing and Treatment: Hospital: Plaintiff was kept at the hospital for four days after the accident on the orders of her daughter, a doctor, because of severe chest pain and concerns regarding the effect of the accident on plaintiff’s pre-existing coronary artery disease. During this period, plaintiff was subjected to “innumerable” tests, all of which were negative. Pain relief center: Since plaintiff continued to have pain, she sought treatment at a pain relief center operated by Dr. Roque. He referred plaintiff to Dr. Ahmad for evaluation, specifically requesting that Dr. Ahmad state in his report that, due to plaintiff’s right shoulder injury, she had permanent residuals. Treating physician: Dr. Ahmad saw plaintiff and, in a final report dated March 29, 2004, recounted a history of treatment focusing on her right shoulder that concluded on Oct. 17, 2002. At that time, the doctor reported that plaintiff continued to have tenderness in the region, and decreased range of motion. The doctor concluded his report by noting that plaintiff had been given the option of a repeat cortisone injection, and that the doctor had discussed with her the possibility of manipulation under anesthesia and diagnostic arthroscopy, capsular release, and subacromial debridement. Instead, plaintiff elected to continue nonoperative treatment, and continued to undergo physical therapy. She also took anti-inflammatory medications, but continued to have ongoing pain and disability from the motor vehicle accident, which required more medications and physical therapy, and “serial orthopedic follow up.” Dr. Ahmad concluded that plaintiff had sustained a right shoulder injury in the automobile accident, with permanent residuals. Dr. Ahmad’s report was premised upon the theory that plaintiff suffered from adhesive capsulitis of the right shoulder. However, the record contained no objective evidence of this condition, only a statement from Dr. Ahmad that, at the time of his initial examination of plaintiff, his “impression” was “cervical strain, right shoulder adhesive capsulitis.” Other medical reports: Plaintiff also alleged that she sustained fractures of the sternum and ribs in the accident, and she presented medical reports attesting to the fractures. However, the objective evidence in the record did not support these diagnoses. Radiology: Although the record reflected that plaintiff underwent “innumerable” tests, the opinion only detailed a bone scan, which was performed on May 29, 2002, approximately one month post-accident, and was “significant for bilateral rib and sternum uptake . . . consistent with traumatic injury.” Plain film correlation was recommended, but did not appear to have taken place. Prior Injuries: None. Serious Impact on Plaintiff’s Life: Not detailed. Physician’s certification: No issue. Polk analysis: None. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge granted summary judgment to the defendant, concluding that plaintiff did not meet the requirements of the verbal threshold. Appellate Court Determination(s): Affirmed. The appellate panel noted that there was no objective clinical evidence to support plaintiff’s claims, and her doctors’ diagnoses, of permanent injury resulting from the accident. 95. Shook v. Cook, A-3006-05T5 DDS No. 23-2-5722 Judges Lefelt, Parrillo and Sapp-Peterson Nov. 27, 2006 Result: Summary judgment in favor of defendant, holding that plaintiff was subject to the verbal threshold, is affirmed. Facts/Background: This case arose out of an automobile accident on May 5, 2002, when plaintiff, who did not have his own automobile, was driving a friend’s car, and collided with the defendant’s vehicle after it had allegedly run a red light at an intersection. In the lawsuit that followed, defendant asserted the verbal threshold as a defense, and served on plaintiff a request to produce his automobile insurance policy and a request to admit the applicability of the verbal threshold. Plaintiff never responded to either request. Plaintiff had lived with his parents, but represented that he moved into the home of his girlfriend’s parents a day or two before he accident because of arguments with his own parents. Although the girlfriend’s parents could not specify the date when plaintiff arrived, they all agreed that the arrangement was temporary, until plaintiff “got situated.” Plaintiff was employed as a mechanic at his father’s garage, and, at the time of the accident, he still worked daily with his father. He never effectuated a change of his legal residence from that of his parents, nor did he use his girlfriend’s parents’ address as his legal residence. He did not receive mail there until much later after the accident. Medical billings resulting from treatment of injuries sustained in the accident were sent to his parents’ home. His driver’s license continued to list his address as his parents’ home, and the police report of the subject accident showed that address as well. Most significantly, plaintiff applied for and received PIP benefits under his father’s automobile insurance policy, claiming to be a resident of the insured’s household, and therefore eligible for such benefits. Medical Testing and Treatment: not detailed; however, it was stipulated that plaintiff’s proofs did not vault the verbal threshold. Radiology: Not discussed. Prior Injuries: Not discussed. Serious Impact on Plaintiff’s Life: Not discussed. Physician’s certification: Plaintiff never filed a physician’s certification, and thus it was stipulated for the purposes of the summary judgment motion that plaintiff’s proofs did not vault the verbal threshold. Polk analysis: Not discussed. Miscellaneous Issue(s): Whether plaintiff was subject to the verbal threshold; residency issue. Trial Court Determination(s): Defendant moved for summary judgment. The sole issue was the applicability of the verbal threshold which, in turn, depended on whether plaintiff, since he had no automobile of his own, was a resident of his father’s household, and therefore bound by the verbal threshold election in his father’s policy. The motion judge granted summary judgment to the defendant, concluding, as a matter of law, that plaintiff was a resident of his father’s household and therefore subject to the verbal threshold. Reviewing the indicia of residency, he found that plaintiff had not established residency with his girlfriend’s parents, but was only there temporarily; for insurance purposes, the judge concluded that plaintiff still lived with his parents. Appellate Court Determination(s): Affirmed. The appellate panel viewed the undisputed evidence and found that it led to the “inexorable conclusion” that plaintiff was a resident of his father’s household at the time of the subject automobile accident. Reviewing the applicable verbal threshold statutory provisions, the panel noted that the tort option elected was to be applied to the named insured and any immediate family member residing in the named insured’s household. An “immediate family member” meant the spouse of the named insured and any child of the named insured or spouse residing in the named insured’s household, who was not a named insured under another automobile insurance policy. Likewise, under the PIP statutes, a resident family member was entitled to PIP coverage under the named insured’s policy for injuries sustained in any automobile. The scheme of holding immediate family members to the tort option selected by their named insured, whose PIP premiums covered their medical expenses, was compatible with, and carried out, the main goals of both the PIP and verbal threshold statutes. Here, plaintiff applied for and collected PIP benefits on the basis of his declared residency as a member of his father’s household. The panel concluded that it followed, therefore, that he should be bound by his father’s selection of the verbal threshold option. Under these particular facts and circumstances, the panel discerned no reason for treating the question of plaintiff’s residency differently for purposes of determining PIP eligibility on the one hand, and the verbal threshold option on the other. The panel saw no principled distinction requiring a different interpretation of the “residency” criterion. The panel reviewed case law dealing with such terms as “bona fide resident,” “domicile,” “resident relative” and “household member” for insurance coverage purposes, such as in uninsured and underinsured motorist coverage matters. Specifically, the panel noted the concept of dual residency, which was extended to verbal threshold matters in Roman v. Correa. In that case, the appellate court concluded in principle that an immediate family member might reside in more than one household so as to be bound by the tort option election of the head of the household. As a result, the panel concluded that plaintiff’s temporary living arrangement with his girlfriend’s parents in this case was not the touchstone of the residency issue; and dual residencies are not necessarily mutually exclusive for purposes of the verbal threshold. Rather, the meaning of “residing” and “household” will vary depending on the circumstances of a given case. On the undisputed facts here, the panel was satisfied that plaintiff was residing in his father’s household within the meaning of the verbal threshold so as to be bound by the father’s verbal threshold election. He had resided with his parents until only shortly before the auto accident. At the time, he had taken no steps to effect a change of legal residence, holding himself out to the investigating police and medical providers as residing at his parents’ address, where, among other things, he received his mail. Indeed, he provided no contrary proof when asked in discovery to acknowledge residency is his father’s household. And, most telling of all, plaintiff applied for and collected PIP benefits under his father’s insurance policy as a “resident” of the named insured’s household. 96. Lopez v. Pearson, Inc., A-1828-05T3 DDS No. 23-2-5737 Judges Lefelt and Sapp-Peterson Nov. 28, 2006 Result: Motion judge’s determination that the verbal threshold applied is affirmed; Summary judgment in favor of defendant because plaintiff failed to provide a comparative analysis is reversed. Facts/Background: This case arose out of an automobile accident on July 15, 2000, which occurred when plaintiff’s vehicle was struck in the rear by defendant’s minivan, a 2001 Dodge Caravan leased by his employer’s parent company, Pearson, Inc. Defendant used the vehicle full-time for both business and personal purposes. At the time of the accident, he was using it for business purposes, having a catalog case in the vehicle; on other occasions, he carried demonstration kits as part of his presentations to clients. He also used it for his family, and chose this particular vehicle because it had built-in passenger seats, a feature he found particularly important because he had five children. The declarations page for Pearson’s business automobile insurance coverage showed that automobiles in the fleet with the code “5″ had PIP coverage, and the minivan was one of those vehicles. Defendant lived in Maryland and registered the Caravan in that state; he did not register it as a commercial vehicle. Medical Testing and Treatment: not detailed. Radiology: An MRI examination was apparently performed, as the motion judge referred to it in her ruling on the Polk issue, but no details were provided. Prior Injuries: Plaintiff was involved in two prior accidents. She indicated that efforts to locate her earlier medical records had proved unsuccessful, but, in any event, she asserted that in the ten years preceding the subject accident, she had been pain free and had received no treatment related to those earlier injuries. Serious Impact on Plaintiff’s Life: Not detailed. Physician’s certification: No issue. Polk analysis: The motion judge granted summary judgment to the defendant on this issue, ruling that, although plaintiff’s expert attributed her current complaints to the subject accident, there was no comparison or explanation why the findings on the MRI should be attributable to the subject accident and not to the earlier accidents. Miscellaneous Issue(s): Whether defendant’s minivan was a commercial vehicle such that the verbal threshold did not apply to plaintiff. Trial Court Determination(s): Plaintiff sued for both noneconomic and economic damages. Defendant moved for summary judgment, arguing (1) that plaintiff had failed to show that her claimed injuries had a serious impact on her life; and (2) that plaintiff had failed to provide a comparative analysis of her pre- and post-accident injuries, required because she had sustained similar injuries in two prior accidents. Plaintiff opposed the summary judgment motion, arguing that she was not subject to the verbal threshold because defendant was driving a commercial vehicle at the time of the accident. If the verbal threshold were applicable, plaintiff argued alternatively that her proofs were sufficient to vault the statutory requirements under AICRA. With respect to defendant’s Polk argument, plaintiff indicated that efforts to locate her earlier medical records had proved unsuccessful; however, in any event, she asserted that in the ten years preceding the subject accident, she had been pain free and had received no treatment related to those earlier injuries. Therefore, she argued that no Polk analysis was required. Finally, even if such an analysis was required, plaintiff contended that her expert had provided one. The motion judge concluded that plaintiff was subject to the verbal threshold because defendant was operating a vehicle subject to AICRA. She also concluded that, because plaintiff had been involved in two prior accidents, a comparative analysis was required. However, she denied defendant’s summary judgment motion because discovery was not complete and because she did not perceive that plaintiff had made an “exhaustive search” for her prior medical records. Plaintiff moved for reconsideration of that part of the order allowing defendant to assert the verbal threshold defense, arguing that there had been no discovery on the issue of whether defendant’s vehicle was a commercial vehicle. She asserted that defendant had only first identified the vehicle as a Dodge Caravan in response to plaintiff’s opposition papers to defendant’s summary judgment motion. She claimed there were still factual issues as to whether the vehicle was actually a van used in commercial purposes. The motion judge denied reconsideration, concluding that there was no material dispute as to the type of vehicle defendant was operating, namely, one required to maintain PIP coverage. She also found that the vehicle was designed to transport primarily passengers rather than cargo, and as a result, it was a station-wagon-type vehicle. Relying on Giordano v. Allstate Ins. Co., the judge concluded that the minivan was considered an automobile, and therefore defendant was able to assert the verbal threshold defense. By the time the parties completed discovery, plaintiff still had not produced any further records related to her earlier accidents. Defendant renewed his motion for summary judgment and the court granted it, finding that, although plaintiff’s expert attributed her current complaints to the subject accident, there was no comparison or explanation why the findings on the MRI should be attributable to the subject accident and not to the earlier accident. After the Supreme Court decided DiProspero and Serrano, plaintiff moved for reconsideration. She indicated that it was unclear whether summary judgment had been granted to the defendant based on the serious impact issue or based on the Polk comparative analysis issue. Additionally, she argued that the court erred in dismissing her economic damages claim. The motion judge granted reconsideration, reinstated plaintiff’s economic claims, and clarified her prior dismissal of the noneconomic claims, indicating that it was based solely upon plaintiff’s failure to provide a comparative analysis of her prior injuries with those sustained in the subject accident. Therefore, DiProspero and Serrano had no effect on the dismissal order, and the case remained dismissed. Plaintiff appealed. Appellate Court Determination(s): Affirmed as to the motion judge’s conclusion that the verbal threshold applied, but reversed as to the comparative analysis issue. The appellate panel addressed plaintiff’s argument that defendant was not entitled to raise the verbal threshold defense because he failed to establish that his minivan was an “automobile” rather than a commercial vehicle, and failed to establish that the vehicle was required to maintain, and actually maintained PIP coverage. The panel reviewed the PIP statutes and noted the Giordano court’s holding that such benefits were available for a minivan even if it was customarily used for business purposes, as long as it was characterized as a private-passenger-type automobile. The panel also cited Wagner v. Transamerica Ins. Co., which added that there was no perceived legislative design to exclude private passenger vehicles commercially-owned and used in business pursuits from the protections of the no-fault laws. While plaintiff argued that a jury could reasonably find that the Caravan was not an automobile, but a cargo-transporting van customarily used in defendant’s business, the appellate panel concluded that this contention was simply not supported by the record. While defendant did acknowledge that he used the minivan to carry supplies he needed for work presentations, there was no dispute that it was also used to transport his family. He chose the Dodge Caravan because of its interior design over the Dodge Intrepid, because the Caravan had built-in passenger seats, which plaintiff found particularly important, as he had five children. Moreover, even if the panel accepted plaintiff’s argument that the proofs defendant presented were not definitive as to whether the minivan maintained PIP coverage, it was undisputed that the vehicle was designed and equipped as a private passenger vehicle; and it was this fact which triggered application of N.J.S.A. 39:6A-4, not whether defendant complied with the statutory requirements. Likewise, the fact that defendant was using the van for business purposes at the time of the accident was not dispositive. Under the Brill standard, the appellate panel was persuaded that there were no genuinely disputed issues of fact as to whether the vehicle operated by defendant on the date of the accident was an automobile within the meaning of N.J.S.A. 39:6A-2. The panel found the proofs to be so one-sided in support of this finding that it upheld the motion judge’s conclusion, as a matter of law, that defendant was entitled to raise the verbal threshold defense to plaintiff’s claims. Finally, the appellate panel disposed of plaintiff’s claim that a Polk analysis no longer applied to claims under AICRA. The panel noted that, subsequent to the Supreme Court’s decisions in DiProspero and Serrano, the appellate court had had the opportunity to address the impact of those two rulings on the continued viability of the Polk comparative analysis requirement in verbal threshold cases. The panel cited Davidson v. Slater, and Hardison v. King, and joined the reasoning set forth in the latter, namely, that the question of whether or not a claimed injury was or was not an aggravation of a pre-existing injury, although possibly relevant on the issue of causation at the time of trial, was not an element of proof a plaintiff must sustain at the summary judgment stage. Therefore, the appellate panel reversed the motion judge’s grant of summary judgment to defendant, which had been based solely upon plaintiff’s failure to provide a Polk analysis. 97. DeTorres v. Martin, A-2021-05T3 DDS No. 23-2-5774 Judges Cuff, Winkelstein and Fuentes Dec. 1, 2006 Result: Trial court’s denial of plaintiff’s R. 4:50-1(f) motion to vacate the jury verdict and consequent judgment in favor of defendant affirmed. Facts/Background: This case arose out of an automobile accident between the parties, which occurred on Jan. 21, 2001. The case went to trial on June 2, 2004. Medical Testing and Treatment: not detailed. Prior Injuries: None mentioned. Serious Impact on Plaintiff’s Life: Not detailed, although the jury found that plaintiff failed to show a substantial impact on her life, as then required by James v. Torres. Physician’s certification: No issue. Polk analysis: None. Miscellaneous Issue(s): Retroactivity of DiProspero and Serrano in nonpipeline cases Trial Court Determination(s): At trial, the judge instructed the jury that, in order to find for the plaintiff, it had to find that plaintiff suffered a permanent injury that had a substantial impact on her life, in accordance with James v. Torres. The jury found that plaintiff did not meet the James standard and judgment was entered in favor of the defendant on June 8, 2004. Following the Supreme Court’s decisions in DiProspero and Serrano, plaintiff filed a motion, pursuant to R. 4:50-1(f), seeking to vacate the judgment and allow a new trial. The trial court denied this motion, relying on Beltran v. DeLima, which held that only cases that were in the appellate pipeline at the time of the DiProspero and Serrano decisions were entitled to retroactive application of those decisions. The appellate court in Beltran noted that it was difficult to fault those who had relied on James v. Torres as setting forth the proper interpretation of the verbal threshold, particularly after certification was denied in James by the Supreme Court. Nonetheless, because an issue of statutory construction remained that the Supreme Court had not addressed, it could not be claimed that the issue was “settled,” especially after the appeal in DiProspero was perfected and certification was granted in Serrano on May 21, 2004. The trial judge addressed the facts of this case and noted that, at the time of the jury’s verdict and judgment, the law was unsettled, as discussed in Beltran. Both the perfecting of the DiProspero appeal and the grant of certification in Serrano occurred before entry of the final judgment in this case. Further, articles appeared in the legal newspapers both before this trial and within the forty-five day appellate window in this case, yet plaintiff did not perfect her appeal. The judge observed that full retroactive application of DiProspero and Serrano would frustrate the legislative goal of cost-containment, and would have an adverse affect on the administration of justice because hundreds, if not thousands, of closed automobile negligence cases would be re-opened. Appellate Court Determination(s): Affirmed. The appellate panel noted that, since the trial judge in this matter issued his oral and written opinions, the appellate court had considered a similar case in Ross v. Rupert. In that case, the court held that plaintiff’s R. 4:50-1(f) motion, which sought to vacate a summary judgment in favor of the defendant in a verbal threshold case, was properly denied. As here, the summary judgment in Ross had been based on James; it was entered before DiProspero and Serrano were decided; and neither a timely motion for reconsideration nor a notice of appeal was filed before the issuance of the DiProspero and Serrano decisions. In short, the judgment, as in this case, was final. The court found no basis for granting full retroactivity beyond the pipeline, as the motion was filed long after the times for reconsideration or the filing of an appeal had passed; and the case did not involve constitutional issues. The appellate panel in this case found the reasoning of Ross pertinent, rejecting plaintiff’s contention that there was a fundamental difference between the summary judgment orders in Beltran and Ross and the judgment entered following trial in her case. All of the judgments were final, and were founded on James. The panel concluded by noting that the Beltran holding provided a thoughtful and orderly consideration of the ramifications of the rules announced in DiProspero and Serrano. It also noted that plaintiff’s appeal would require it to ignore the often-stated principle that a R. 4:50-1 motion could not be a substitute for an appeal. Therefore, the trial judge’s order was affirmed for the reasons he expressed, as supplemented by the appellate court’s subsequent opinion in Ross v. Rupert. 98. Bauman v. Virgilio, A-5565-04T3 DDS No. 23-2-5792 Judges Graves and Lihotz Dec. 4, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on Oct. 10, 2001, when plaintiff’s vehicle, which had the right of way, was struck by defendant’s vehicle, which failed to yield. Plaintiff asserted that she sustained permanent injury to her neck and lower back in the accident. Medical Testing and Treatment: Treating physician: Following the subject accident, plaintiff saw Dr. Tiger, who had been seeing her regularly for neck and back injuries sustained in a prior fall (see below). In a report dated April 5, 2002, the doctor failed to mention the automobile accident. He wrote another evaluation on Sept. 26, 2003, and attached it to a physician’s certification of permanency he issued for plaintiff’s lawsuit. In this report, he did reference the car accident and described plaintiff’s current symptoms. He also discussed plaintiff’s post-accident MRI (see below), and compared the results to the MRI taken after plaintiff’s 1999 fall (see below). He concluded that plaintiff’s cervical injuries from the fall-down accident in 1999 had been aggravated and made significantly worse by the motor vehicle accident, and that she would always have pain and discomfort in and about her neck and back, and radicular symptoms from her neck and lower back into her arm and leg. Radiology: An MRI examination of plaintiff’s cervical spine was performed on Oct. 10, 2001, after the subject accident and before plaintiff’s surgery (see below). A moderately large left paracentral disc herniation at C4-5 was shown, with associated posterior osteophyte indenting the thecal sac and cord, as shown on a prior MRI after the plaintiff’s fall. A disc bulge at C5-6 was revealed, with associated bony ridge/posterior osteophyte indenting the thecal sac. A shallow right paracentral disc herniation at C6-7 slightly indented the thecal sac. A tiny, very shallow central disc herniation at C3-4 was shown, with associated posterior spur, minimally indenting the thecal sac. Prior Injuries: Plaintiff had injured her neck and back in a fall on Sept. 11, 1999. Radiographic testing on that date revealed no fractures, and the recommended treatment included a cervical collar, ice packs, and pain medication. Dr. Tiger examined plaintiff after the fall, on April 28, 2000, and found her in moderate distress because of her neck and back discomfort. Upon examination, plaintiff had significant spasm and loss of the usual lordotic curvature in both the neck and lower lumbar region. An MRI was completed on May 11, 2000, revealing left foraminal encroachment at L1-2, diffuse bulging at L2-3, and cystic nerve root changes at L5-S1 on the right of the lumbar spine. As to the cervical spine, a disc herniation at C4-5 and a disc bulge at C5-6 were revealed. Thereafter, plaintiff underwent twenty-four or twenty-five physical therapy sessions. An EMG conducted on July 12, 2000 evidenced a diagnosis of a moderate, left-sided greater than right, L5-S1 radiculopathy. In a March 2, 2001 report, Dr. Tiger noted that plaintiff remained symptomatic during an examination on Feb. 28, 2001, experiencing neck and lower back stiffness and radiating pain into her left leg, as well as some radiating pain into her left arm. Plaintiff had stopped physical therapy at the doctor’s recommendation, and was advised to commence epidural injections. Dr. Tiger’s conclusion after the March 2, 2001 follow-up examination was that plaintiff had chronic, permanent and progressive injuries to both her neck and lower back that were causing her a significant functional disability. In Sept. 2001, before the subject accident, plaintiff also consulted with Dr. Giordano regarding potential surgical intervention because her neck and back problems were unresponsive to conservative care. Plaintiff did not have the surgery until after the subject accident. On Dec. 10, 2001, she underwent a laminectomy at L2, L3, L4, L5 and S1. The surgeon noted a majority of stenosis in the lateral recess at L3-4 and L4-5. There was mild stenosis at L2-3 and L5-S1. Serious Impact on Plaintiff’s Life: not detailed Physician’s certification: The motion judge found the certification and attached medical report deficient in the sense that it did not causally relate any permanent injury to the motor vehicle accident. Polk analysis: The motion judge granted summary judgment to the defendant, in part, because plaintiff’s expert failed to perform a Polk analysis. Miscellaneous Issue(s): None Trial Court Determination(s): The motion judge granted summary judgment to the defendant, concluding that plaintiff’s expert failed to present medical evidence causally linking any permanent injury to the motor vehicle accident. Additionally, the judge noted that plaintiff’s expert failed to adequately perform a Polk comparative analysis of her pre-existing neck and back problems with the injuries she allegedly sustained in the accident. Appellate Court Determination(s): Reversed. The appellate panel found that Dr. Tiger’s report sufficiently identified permanent injuries suffered by plaintiff after the automobile accident, which were verified by objective clinical evidence. When comparing the MRI results, the doctor discussed the changes in plaintiff’s cervical spine, specifically noting the newly-visible herniation at C6-7. He also referenced the impairment at C3-4, characterizing it as a “disc bulge.” Dr. Tiger’s conclusion that plaintiff’s neck injuries were worsened by the motor vehicle accident, and that plaintiff’s MRI evidence was significantly changed from the pre-accident status, satisfactorily designated the accident as the cause of plaintiff’s newly-visible herniated discs, which qualified as permanent injuries satisfying the verbal threshold. The panel then briefly addressed the Polk issue, noting the divergent opinions as to the continued viability of the comparative analysis requirement after DiProspero and Serrano. However, the panel did not enter the fray, concluding that plaintiff satisfied her summary judgment burden even if Polk was still applicable. The panel found sufficient objective credible evidence in the record to show that plaintiff suffered permanent injuries in the subject automobile accident, as required by AICRA, to proceed in her suit for pain and suffering damages. That same evidence, when viewed most favorably to plaintiff, supported a finding that the permanent injury caused by the automobile accident was sufficiently differentiated from her previous injuries. Consequently, a genuine and material factual question was raised, requiring reversal of the grant of summary judgment to the defendant. 99. Argyrou v. Marra, A-3472-05T5 DDS No. 23-2-5793 Judges Lefelt and Sapp-Peterson Dec. 4, 2006 Result: Judge’s denial of plaintiff’s motion for a new trial after jury verdict in favor of defendant is affirmed. Facts/Background: This case arose out of an automobile accident on March 9, 2002, when plaintiff was stopped at a traffic signal. Defendant’s vehicle failed to negotiate a turn in the intersection and struck a vehicle, which, in turn, struck plaintiff’s vehicle. Plaintiff was transported from the scene by ambulance. Medical Testing and Treatment: Emergency Room: Plaintiff presented with complaints of head and neck pain. The results of an X-ray of her neck were normal. She was discharged with instructions to follow up with her primary care physician. Treating physician: Plaintiff first visited her primary care physician, Dr. Swartz, on March 18, 2002, complaining of headaches, radiating neck pain, low back pain, poor concentration and memory, depression and anxiety. Plaintiff treated with Dr. Swartz for approximately one year and, at the conclusion of his treatment, the doctor opined that plaintiff’s injuries were permanent. Orthopedist: Plaintiff also came under the care of Dr. Greisman, with whom she had previously treated. She complained of continuing neck and shoulder pain, as well as back pain, headaches, dizziness and vomiting. Dr. Greisman diagnosed a disc herniation at C6-7 and thoracic outlet syndrome. He ordered physical therapy and administered a nerve block to alleviate plaintiff’s shoulder pain. Reporting expert: There was evidence in the record to indicate plaintiff also saw a Dr. Warren, but no details were provided of her involvement with this physician. It appears that he may have been the defense expert, as he apparently concluded that plaintiff sustained no permanent injuries in the subject accident. Radiology: An X-ray of plaintiff’s neck taken in the emergency room on the date of the accident showed normal results. A cervical MRI study ordered by plaintiff’s primary care physician thereafter revealed a C6-7 foraminal encroachment causing cervical radiculopathy. Prior Injuries: None Serious Impact on Plaintiff’s Life: not detailed Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): The jury found defendant negligent, and concluded that her negligence was a proximate cause of the accident, but it entered a verdict in her favor nonetheless, concluding that plaintiff had failed to prove she sustained a permanent injury within the meaning of AICRA. Thereafter, plaintiff moved unsuccessfully for a new trial, the trial judge concluding that the case had been well-tried by both counsel and that the record supported the jury’s verdict. In fact, the judge noted that, if the case had been tried without a jury to the bench, he would have come to the same conclusion. The judge stated that he was not impressed with plaintiff’s testimony, and did not find her credible with respect to the extent of her injuries. Appellate Court Determination(s): Affirmed. On appeal, plaintiff acknowledged that the jury was presented with conflicting opinions relative to the permanency of her injuries, but she contended that, given the medical qualifications of the three experts who testified, no reasonable jury could find the testimony of Dr. Warren credible, and, therefore, the trial judge erred in not granting her motion for a new trial. The appellate panel noted that a trial judge’s decision on a motion for a new trial should not be reversed unless it appears clearly that there was a miscarriage of justice under the law. The appellate court had to defer to the trial judge regarding the “intangibles,” such as credibility, demeanor, and the “feel of the case.” Here, the essence of plaintiff’s argument was that the jury should have believed her experts over defendant’s because her experts had more impressive credentials. Here, the panel noted that the trial judge had advised the jury that they might consider each expert’s reason for testifying, as well as his credentials and qualifications, among other things. The panel reviewed the trial judge’s instructions to the jury with respect to expert witnesses, and found them entirely appropriate. The panel noted that conflicting expert testimony was not unusual, and that it was the jury’s function to sift through the testimony as part of the weighing process, and ascribe to the testimony the weight to which it was entitled. While that weighing process included consideration of the qualifications of the experts, qualifications alone were not dispositive. The weight to which any expert’s opinion was entitled could rise no higher than the facts on which the opinion was predicated. The panel concluded that it could not substitute its judgment for that of the jury; rather, its task was to conscientiously and diligently review the record to correct, if warranted, clear error or mistake by the jury. Having discharged this task here, the panel could not conclude that the trial judge was wrong in his denial of plaintiff’s new trial motion. To conclude otherwise would be to intrude, without any basis, into the rightful province of the jury. 100. Nortesano v. Torres-Romero, A-0521-05T3 DDS No. 23-2-5794 Judges Lefelt and Parrillo Dec. 4, 2006 Result: Judgment of no cause for action in favor of defendant is affirmed. Facts/Background: This case arose out of an automobile accident on Aug. 6, 2002, when the 18-year-old plaintiff was operating a vehicle owned by his father, with whom he resided, and which was insured by a policy including the verbal threshold election. The accident occurred when defendant pulled out of a bank parking lot, striking the vehicle driven by plaintiff, who was on his way to work at a nearby supermarket. At that time, plaintiff did not own his own automobile and did not maintain liability insurance. Medical Testing and Treatment: Emergency Room: Plaintiff was taken to the emergency room and treated for injuries to his neck and right wrist. No details are provided. Treatment: Plaintiff’s medical expenses were paid by his employer’s worker’s compensation carrier. No details are provided of either injuries or treatment, but it appears that plaintiff also suffered some scarring, as his failure to show that it was significant was the basis of the jury’s finding that he had not met the verbal threshold. Radiology: none discussed Prior Injuries: None discussed Serious Impact on Plaintiff’s Life: not detailed Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): “Law of the case” doctrine; whether the verbal threshold applied to plaintiff under his father’s insurance policy. Trial Court Determination(s): When defendant first moved to dismiss plaintiff’s complaint for his failure to surmount the verbal threshold, the motion judge denied the motion, concluding that the verbal threshold was not applicable to the facts of the case. When the matter was assigned for trial to a different judge nine months later, defense counsel renewed the summary judgment motion, but the trial judge declined to reconsider the original decision, finding the motion judge’s ruling to be the “law of the case.” Due to the unavailability of a defense expert, the trial was adjourned and re-scheduled before a third judge, who granted defendant’s renewed request for reconsideration on the first day of trial. Relying on the original moving papers and holding that the “law of the case” doctrine did not apply to a clear error by the motion judge, the trial judge ruled that the verbal threshold defense was available to defendant. He held that the plaintiff was not prejudiced because the case had been prepared as a verbal threshold case, and could be adjourned upon plaintiff’s request. Plaintiff made no such request. The case was tried to a jury, which attributed fifty percent liability to each party, but also found that plaintiff had not suffered significant scarring or disfigurement, and therefore did not satisfy the verbal threshold. Consequently, a judgment of no cause of action was entered, and plaintiff appealed. Appellate Court Determination(s): Affirmed. The panel first rejected plaintiff’s contention that the trial judge erred in subjecting him to the verbal threshold and in failing to apply the “law of the case” doctrine. Reviewing the pertinent no-fault and PIP statutes, the panel held that plaintiff, as an insured’s resident child who recovered worker’s compensation benefits for injuries sustained while operating an insured vehicle, and who was otherwise entitled to PIP coverage within the meaning of the no-fault statute, was subject to his father’s election of the verbal threshold option. The panel rejected plaintiff’s argument that, because he received worker’s compensation benefits, he was not entitled to PIP coverage, and therefore not subject to the verbal threshold. Rather, under the “collateral source” provision of the no-fault law, the panel noted that the availability of worker’s compensation only foreclosed the injured party from collecting for the same injuries from his or her PIP provider. In finding the verbal threshold inapplicable in this case, the original motion judge relied on Lefkin v. Venturini, which involved the collateral source rule. However, the panel found Lefkin distinguishable as it involved the interplay of the collateral source rule and N.J.S.A. 39:6A-12, the evidentiary bar that prevented admission of evidence of PIP “amounts collectible or paid” to an injured party in a third-party action against a PIP carrier; the panel concluded that it had no application to an insured’s tort threshold. The panel was satisfied that the plaintiff here satisfied both prongs of the test set forth in Beaugard v. Johnson. With respect to the verbal threshold statute, he was subject to the threshold as an immediate family member residing in the named insured’s household, where “immediate family member” was further defined to include any child of the insured, regardless of age. As to PIP coverage, although plaintiff did not have an obligation to maintain PIP coverage of his own because he owned no vehicle, he did have a right to receive PIP benefits, as he was a named insured or member of the insured’s family residing in his household, and sustained bodily injury as a result of an accident while occupying, entering into, alighting from, or using an insured automobile. Therefore, the verbal threshold applied and the trial judge did not err, under the discretionary law of the case doctrine, in correcting a clear error of law by the original motion judge who held otherwise. The panel noted its perception that no express or implied public policy or statutory interpretation would support a per se exclusion from operation of the verbal threshold for automobile accident victims who were eligible to receive compensation from sources other than PIP. Nothing about the operation of N.J.’s no-fault system of automobile insurance coverage suggested that an accident victim’s access to his or her own worker’s compensation coverage precluded exercise of the verbal threshold option. The availability of such benefits did not afford plaintiff a better policy than that negotiated and bargained for by his father as the named insured. Finally, the panel also perceived no inequity in the trial judge’s reconsideration, just prior to the commencement of trial, of the original motion judge’s ruling regarding the applicability of the verbal threshold. As the trial judge found, plaintiff had prepared the case as a verbal threshold case, having obtained an expert who had certified to the existence of a qualifying � i.e. permanent � injury. Indeed, discovery had been completed well before the motion judge’s original ruling. Moreover, plaintiff was afforded the opportunity for an adjournment, but did not request one. Therefore, plaintiff suffered no prejudice under these circumstances. 101. Cruz v. Mankad, A-1985-05T5 DDS No. 23-2-5815 Judges Sapp-Peterson and Sabatino Dec. 6, 2006 Result: Summary judgment in favor of defendant is reversed. Facts/Background: This case arose out of an automobile accident on Jan. 29, 2003, when plaintiff was struck by defendant’s vehicle as she was loading groceries into the trunk of her car. Upon impact, she was briefly pinned between the two cars. Plaintiff was transported to the emergency room by ambulance from the scene of the accident. Medical Testing and Treatment: Emergency Room: An X-ray of plaintiff’s left knee was taken, revealing no effusion, fracture or dislocation. There was a small posterior osteophyte noted at the inferior patella. No other significant degenerative changes were noted. The impression was recorded as “Early degenerative changes. No osseous trauma evident.” Plaintiff was diagnosed with a left knee contusion, and discharged with instructions to ice her knee, and to follow up with her primary care physician. Family physician: Three days post-accident, the plaintiff began unspecified treatment with Dr. Miller. She continued treating with him until March 2003, at which time his records indicated that her knee was “doing better.” He noted that plaintiff had had fourteen physical therapy treatments, which had helped, but there was still grinding under the patella and “crepitation” in the knee, with pain. Orthopedic group (physician 1): Dr. Miller referred plaintiff to an orthopedic group, where she was first evaluated by Dr. Urs on July 9, 2003 for problems in her back, left trochanteric area, and left knee. She was given a corticosteroid injection and Bextra, but, at a follow-up evaluation two days later, the doctor reported that there was no improvement in her symptoms. Dr. Urs also reported that plaintiff suffered post-traumatic chondromalacia patella of the left knee, left trochanteric bursitis, and lumbar strain. He injected her left hip with Depo-Medol and Lidocaine, and gave her Mobic. Plaintiff received an additional corticosteroid injection in her left knee on Sept. 8, 2003, and was prescribed more Mobic and more physical therapy. Plaintiff visited Dr. Urs again on Oct. 20, 2003, and he reported that there was still a good deal of grinding in the left knee. He prescribed a Synvisc injection, but it was denied by the PIP carrier on Nov. 12, 2003. The doctor wrote to the PIP carrier, requesting reconsideration because plaintiff’s injuries were causally related to the motor vehicle accident, and the injections were medically necessary, as the knee problems persisted, despite medications, physical therapy and cortisone injections. Nevertheless, the PIP carrier reaffirmed its denial on Jan. 12, 2004. Orthopedic group (physician 2): Plaintiff also saw Dr. Idank at the orthopedic group. He prescribed Darvocet N-100, as needed, and also a cortisone injection to the sacroiliac region, which was administered on Oct. 18, 2003. Ten days later, the doctor reported that the injection had provided only three days of partial relief for plaintiff’s back pain, and recommended an MRI of the lumbar spine. Chiropractor: Plaintiff also visited Dr. Decker in Sept. of 2004 in another attempt to obtain relief, but according to her deposition, the treatments (unspecified) were not effective. Expert physician: In early 2005, plaintiff retained Dr. Swartz as her expert. He reviewed plaintiff’s treatment records, examined her, and certified that she suffered a permanent injury that would not be cured with further medical treatment. In his report, which was not submitted by plaintiff as a physician’s certification of permanency in connection with her lawsuit, he found that plaintiff “sustained trauma to the posterior lateral portion of her left knee directly causing her to have a patellafemoral syndrome, an iliotibial band syndrome, left trochanteric bursitis, and a chronic left sacroilitis.” He also concluded that her patellofemoral syndrome was directly related to the accident, and was not degenerative in nature. Referring to the significance of the X-ray taken on the date of the accident, the doctor opined that, although the finding of a posterior osteophyte was consistent with degenerative arthritis, the posterior osteophyte was not significant. Plaintiff had no symptoms of knee pain before the accident and no evidence of generalized arthritis. Moreover, the doctor noted that plaintiff’s right knee was, and remained, totally asymptomatic, which he found to be significant; he opined that someone with degenerative arthritis would be expected to have symmetric joint involvement. Dr. Swartz’s diagnosis was “crepitation with anterior knee pain.” Radiology: An X-ray of plaintiff’s left knee was taken at the emergency room on the date of the accident. It revealed no effusion, fracture or dislocation, although there was a small posterior osteophyte at the inferior patella. No other significant degenerative changes were noted. The impression was recorded as “Early degenerative changes. No osseous trauma evident.” An MRI examination of plaintiff’s left knee was performed on Feb. 19, 2003, revealing joint effusion throughout, which the radiologist indicated could be attributed to a contusion. A lumbar MRI study, performed on Nov. 29, 2003, revealed marked levoscoliosis; disc dessication at L3-4, L2-3 and L1-2; but no evidence of focal herniation or spinal canal stenosis. Prior Injuries: None Serious Impact on Plaintiff’s Life: not detailed Physician’s certification: Defendant argued that plaintiff had failed to submit a physician’s certification of permanency, mandating dismissal of her complaint. The motion judge did not address this discrete issue, but dismissed the case nevertheless, finding that plaintiff had not presented sufficient objective medical evidence of permanent injury to surmount the verbal threshold. The appellate panel disagreed, and concluded that plaintiff’s proofs sufficed to meet the permanency certification requirements and to establish sufficient evidence to surmount the defendant’s summary judgment motion. Polk analysis: No issue Miscellaneous Issue(s): None Trial Court Determination(s): Defendant moved for summary judgment, arguing that plaintiff had failed to submit a physician’s certification of permanency, mandating dismissal of her complaint. In reply, plaintiff submitted a certification from Dr. Urs stating that, based upon his review of the medical test results and his treatment of plaintiff, he concluded that she suffered a permanent injury, describing it as “post-traumatic degenerative joint disease left knee, related to accident and permanent.” The motion judge granted summary judgment to the defendant, concluding that plaintiff failed to produce objective medical evidence of a permanent injury to her back. With respect to her knee, he did find objective evidence of a pre-existing arthritic condition based on the X-ray taken at the hospital emergency room and the Feb. 19, 2003, MRI. Beyond degenerative arthritic changes, however, the judge concluded that plaintiff’s remaining injuries were attributed to a contusion, which he found was not a permanent injury under AICRA. Appellate Court Determination(s): Reversed. The appellate panel agreed with plaintiff that the record contained objective evidence that her knee and back injuries were traumatically induced, permanent, and would not improve with further medical treatment. Therefore, she crossed the verbal threshold and the motion judge erred in granting summary judgment to the defendant. The panel found that the motion judge, in reviewing the evidence and deciding the summary judgment motion, did not accord plaintiff the benefit of all favorable inferences. Instead, he decided that the X-ray report was indicative of a generalized, pre-existing degenerative condition. In making this finding, the judge took on the role of fact-finder, thereby intruding into the jury’s role. The appellate panel highlighted the record, which showed that Drs. Miller, Urs and Swartz all reported crepitus in plaintiff’s knee, described in their reports as grinding, crunching, or clicking in the joint. While plaintiff’s diagnostic testing was limited to an X-ray and two MRI studies, diagnostic testing was but one form of objective clinical evidence which sufficed under AICRA to establish the existence of a permanent injury. The panel concluded that, when the proofs were viewed in the light most favorable to plaintiff, as required by Brill, a reasonable jury could conclude that plaintiff sustained permanent injuries to her left knee causally related to the accident. 102. Chavez v. Hull, A-1810-05T1 DDS No. 23-2-5816 Judges Lintner and Reisner Dece. 6, 2006 Result: Summary judgment in favor of defendant is reversed and matter remanded for a plenary hearing on service of summary judgment order. Facts/Background: This case arose out of an automobile accident between the parties, which occurred on Feb. 22, 2003. Medical Testing and Treatment: Chiropractor: Plaintiff’s doctor, Dr. Beato, noted the disc bulges revealed by the objective testing (see below) and noted that plaintiff demonstrated continued muscle spasm and loss of range of motion in the cervical and lumbar spine. He opined that these findings were causally related to the subject accident and constituted permanent injuries that would not heal to function with further medical treatment. Radiology: EMG and MRI studies showed disc bulges at C5-6 and L5-S1, and nerve root irritation. Prior Injuries: None Serious Impact on Plaintiff’s Life: not detailed, although the motion judge granted summary judgment to the defendant because plaintiff failed to prove a serious impact on his life. Physician’s certification: No issue Polk analysis: No issue Miscellaneous Issue(s): Whether plaintiff was entitled to “pipeline retroactivity” of DiProspero and Serrano; when original summary judgment order was served on plaintiff. Trial Court Determination(s): Defendant moved for summary judgment based on plaintiff’s alleged failure to surmount the verbal threshold, and plaintiff’s counsel requested an adjournment. Despite the adjournment, plaintiff’s counsel neither filed opposition nor did she appear on the return date of the motion for oral argument. The motion judge concluded that, while plaintiff’s medical proofs were sufficient to establish a material factual issue as to whether he sustained a permanent injury as a result of the subject accident, he had failed to establish that his injuries had a serious impact on his life. Accordingly, he granted summary judgment to the defendant on Feb. 4, 2005. On June 14, the Supreme Court decided DiProspero and Serrano. On Jul. 25, 2005, plaintiff’s attorney telephoned defense counsel and asked for a copy of the summary judgment order, which defense counsel said he faxed. It was not made clear in the record how plaintiff learned of the existence of the order. On Aug. 5, 2005, plaintiff’s counsel filed a motion seeking to vacate the summary judgment order, asserting that she had never received the order until it was faxed to her after her telephone call. Oral argument was heard on plaintiff’s motion on Sept. 9, 2005. Counsel argued that plaintiff was entitled to relief under R. 4:50-1(f) because the decision in DiProspero did not constitute a change in the law. The motion judge disagreed, concluding that DiProspero and Serrano did represent a change in the law. Relying on Hartford Ins. Co. v. Allstate Ins. Co., the judge concluded that exceptional circumstances under R. 4:50-1 did not apply simply because of a change in case law. Plaintiff moved for reconsideration and oral argument was heard on Oct. 21, 2005. Plaintiff’s counsel now argued that, through inadvertence, her office had not calendared defendant’s summary judgment motion, and as a result, opposition was never filed as intended. She also argued that, because her office never received the summary judgment order until after her telephone call on July 25, 2005, her motion of Aug. 5, seeking reconsideration of the summary judgment order, was timely filed within twenty days, pursuant to R. 4:49-2, and her client was entitled to “pipeline retroactivity” of DiProspero and Serrano. The judge denied plaintiff’s motion, for the same reasons as those he previously expressed on Sept. 9th. He did not determine whether plaintiff’s counsel was indeed served with the summary judgment order within seven days of its entry, as required by R. 1:5-1, or whether she was served on July 25, 2005, as she claimed. Appellate Court Determination(s): Reversed and remanded. On appeal, plaintiff essentially repeated her argument that, because counsel was not in receipt of the original summary judgment order until July 25, 2005, the Aug. 5 motion for reconsideration was timely filed and plaintiff should be afforded “pipeline retroactivity” of DiProspero and Serrano in accordance with the ruling in Ross v. Rupert. While the panel noted that it was well-settled that a change in the law after entry of an order or judgment did not entitle a party to relief under R. 4:50-1, and that a motion for relief under the rule could not be used as a substitute for a timely appeal, it was more concerned with the fact that the trial judge never decided the question raised by plaintiff regarding the issue of service of the original summary judgment order. R. 1:5-1 required service of the summary judgment order on plaintiff’s counsel within seven days from the date it was entered. If defendant violated this rule, and plaintiff’s counsel was, in fact, first served with the order on July 25, 2005, when defense counsel faxed it to her office, her Aug. 5 motion for reconsideration was timely, notwithstanding the fact that it was filed after the decisions in DiProspero and Serrano. Although defendant contested plaintiff’s claim that the original order for summary judgment was not timely served, there was no record of defense counsel producing any proofs as to the service of the order, and the judge never decided the factual issue presented; he simply assumed that the original order was properly served. Without a plenary hearing, the panel held that it was impossible for that issue to be determined. Likewise, the issue of whether plaintiff was attempting to use R. 4:50-1 as a substitute for failing to object to defendant’s motion, or to follow up with a timely motion for reconsideration, must be decided in a plenary hearing on remand. 103. Rodriguez-Santa v. Jerome, A-3307-05T3 DDS No. 23-2-6007 Judges Payne and Lihotz Dec. 28, 2006 Result: Summary judgment in favor of defendants is reversed. Facts/Background: The plaintiff suffered injuries to his neck and back in two separate automobile accidents approximately six months apart. The first accident occurred on Jan. 9, 2003, when defendant Jerome made a left turn onto a roadway on which plaintiff was traveling, and struck plaintiff’s vehicle. The second occurred on June 7, 2003, when plaintiff’s vehicle was rear-ended by a vehicle driven by defendant Samila. Medical Testing and Treatment: Chiropractor (1): Two days after the first accident, plaintiff sought treatment from Dr. Debari, who referred him for an MRI (see below). Chiropractor (2): After the second accident, plaintiff treated with Dr. Sands, who diagnosed plaintiff as having cervical and lumbar myofascial syndrome. Treating physicians: Plaintiff also treated with Dr. Friedlander and other physicians at “The Back Institute” after the second accident. The treatments included cervical facet joint trigger point injections, use of a cervical collar, and physical therapy. Reports regarding plaintiff’s progress and treatment were submitted, including notations of tenderness in the cervical and lumbar spine, and some limitation of motion in the cervical area. Dr. Friedlander filed a physician’s certification of permanency for plaintiff’s lawsuit, citing his treatment of plaintiff for injuries sustained in the first accident and aggravated in the second accident. Surgery: On July 14, 2005, Dr. Friedlander performed a C5-6 discectomy with the installation of a locking plate. On Dec. 13, 2005, a second surgery was performed, this time on plaintiff’s lumbar spine, with the installation of pedicle screws at L5-S1. Radiology: A March 13, 2003, report of plaintiff’s MRI examinations after the first accident revealed, as to the cervical study, “mild diffuse disc bulging at C4-5 and C5-6, moderately impressing on the anterior thecal sac at these levels.” The lumbar study revealed “mild diffuse disc bulging at L3-4 and L4-5, mildly impressing on the anterior thecal sac at these levels.” A cervical MRI performed on Sept. 2, 2003, after the second accident revealed that plaintiff’s cervical spine had “moderate disc bulging at C5-6 moderately impressing on the anterior thecal sac at this level along with mild disc bulging . . . present at C3-4 and C4-5 mildly impressing on the anterior thecal sac at these levels.” Plaintiff’s lumbar spine showed “mild diffuse disc bulging at L4-5 and L5-S1, mildly effacing the anterior thecal sac at these levels.” Prior Injuries: None. Serious Impact on Plaintiff’s Life: Not detailed. Physician’s certification: No issue. Polk analysis: The motion judge granted summary judgment to both defendants because plaintiff failed to provide a comparative analysis of his injuries. The appellate panel found Polk inapplicable to the first accident, and found that plaintiff’s proofs sufficiently differentiated his injuries after the second accident. Miscellaneous Issue(s): None Trial Court Determination(s): Each defendant moved for summary judgment, and the judge granted both motions, concluding that dismissal was required because plaintiff failed to submit a sufficient comparative analysis of the injuries he suffered, as required by Polk. Appellate Court Determination(s): Reversed. After review of the record, the panel discerned that plaintiff had produced sufficient evidence to create genuine issues of material fact that should not have been resolved by summary judgment. The panel first concluded that the summary judgment arising from the accident with defendant Jerome had to be reversed because the motion judge gave no reasons for his conclusion that a comparative analysis of plaintiff’s injuries was necessary with respect to this first accident. Polk involved a claim for aggravation of a pre-existing injury, but plaintiff had no such pre-existing injury before the first accident with Jerome; therefore, Polk had no applicability to the first accident. Since he granted summary judgment on the Polk issue, the judge made no further findings with respect to plaintiff’s objective medical evidence of permanent injury, which remained to be examined in further proceedings. With respect to the injuries plaintiff sustained in the second accident with defendant Samila, the panel also concluded that summary judgment should be reversed, finding that plaintiff’s evidence provided a sufficient differentiation between the injuries he sustained in the second accident with his pre-existing condition from the first accident. In reaching his diagnosis, plaintiff’s treating physician relied on the radiological findings dated Sept. 2, 2003, which revealed moderate disc bulges at C5-6, mild disc bulging at C3-4, C4-5, L4-5 and L5-S1, with impingement of the thecal sac. This diagnosis differed from plaintiff’s condition after the first accident. Not only had the degree of bulging at C5-6 increased, but there were also newly visible bulges at C3-4 and L5-S1. Surgical intervention was required to address the worsened areas at C5-6 and L5-S1. The panel found that this constituted sufficient objective credible evidence showing that plaintiff suffered permanent injuries, as required by AICRA, in the second accident to proceed in his suit for pain and suffering damages.

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