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1. Mickey v. Allen, A-1325-05T5 DDS No. 23-2-6137 Judges Lintner and Seltzer Jan. 12, 2007 Result: Summary judgment in favor of defendant is affirmed. Facts/Background: In the automobile accident on July 29, 2002, plaintiff’s vehicle was rear-ended by defendant’s vehicle, and was forced into the oncoming lane, where she was broadsided by another vehicle. The plaintiff was taken to the hospital, complaining of lower back pain. She was discharged the next day and immediately went to see her family physician. Medical Testing and Treatment: Family physician: Dr. Jain-Bhalodia, on July 30, 2002, assessed plaintiff’s condition as cervical and lumbar strain. She placed plaintiff on moist heat and Tylenol, and advised plaintiff to follow up if her symptoms persisted or worsened. Plaintiff left in “stable condition,” and the doctor did not see her again with respect to the accident. She opined in her report that she did not believe that any of plaintiff’s complaints were long lasting, and that plaintiff recovered well. Chiropractor: Plaintiff first met with Dr. Anderson on Aug. 9, 2002, then three times a week for her lower back and neck pain. Treatment continued until Feb. 2003, then plaintiff went for more treatments in Oct. and Nov. 2003. Her final treatment was on Nov. 22, 2003. Dr. Anderson diagnosed acute lumbar sprain and muscle spasm in a report dated Nov. 11, 2003, but did not report on permanency. Obstetrician/gynecologist. In October 2002, Dr. Debbs noted that plaintiff had been in a motor vehicle accident but had “no residual sequelae.” He opined that she suffered from lumbar lordosis and lumbosacral strain, consistent with her pregnancy. Plaintiff was seen at the hospital on Nov. 6, 2002, with an elevated white blood cell count. The hospital consultation report indicated that plaintiff had no back pain at the time, and no vertebral tenderness. Orthopedic surgeon/expert retained for litigation: On Oct. 20, 2004, plaintiff was sent by her attorney to Dr. Kahn for the purpose of a permanency evaluation. The doctor’s report noted the accident, plaintiff’s chiropractic treatment, and the subsequent bathroom accident and ankle injury. Plaintiff reported pain in her neck and back with numbness and tingling going down her right leg to the top of her foot, and up into her right arm, as well. She reported difficulty lifting bending, sitting, standing, walking, driving, sleeping, kneeling and climbing the stairs. The doctor also noted a history of depression and urinary tract infections. His examination revealed cervical tenderness and right trapezial muscle spasm and tenderness. Lateral rotation in both directions was decreased 15 degrees. Extension and flexion were full. There was pain on compression of the cervical spine. Examination of the lumbar spine revealed midline tenderness and right paravertebral muscle tenderness and spasm. There was also right sciatic notch tenderness and right sacroiliac joint tenderness. The doctor’s impression was that plaintiff suffered from chronic traumatic cervical and lumbar sprain and strain with right upper and lower extremity radiculopathy. He stated that, if plaintiff’s history was accurate, she sustained these injuries as a result of the subject accident. He indicated that plaintiff remained symptomatic, but noted that the workup was incomplete. He opined that plaintiff was in need of further diagnostic studies and treatment, and scheduled cervical and lumbar MRIs. (See “radiology” below for results.) Dr. Kahn saw plaintiff again on Nov. 17, 2004, to review the results of her MRI’s. His impression was still chronic traumatic cervical and lumbosacral sprain and strain with chronic post-traumatic upper and lower extremity radiculopathy, but he added post-traumatic bulging discs in the lumbar spine, chronic pain syndrome and chronic myofascitis. He recommended lumbar epidural steroid injections; however, they were never performed. Radiology: X-rays were not taken at the hospital because plaintiff was pregnant. MRIs were not taken until Nov. 7, 2004. The radiologist reported largely normal findings in the cervical spine, including normal alignment and normal height and signal throughout. There were also no significant central or neural foraminal stenoses, disc bulges or herniations. The radiologist’s impression was that the cervical MRI was unremarkable. As to the lumbar test, the radiologist noted very minimal, noncompressive disc bulges at L4-5 and L5-S1, but found the rest of the examination unremarkable. Prior/Subsequent Injuries: On July 5, 2004, while trying to hang a shower curtain, plaintiff fell through a hole in her bathroom floor and strained her ankle. She went to the hospital, was placed in an air cast, and given crutches, which she used for about seven weeks. One of plaintiff’s doctors, Dr. Smolinski, referred her to a physical therapist; however, plaintiff never attended therapy because her back was “bothering” her. Serious Impact on Plaintiff’s Life: Current complaints: Neck and back pain, with numbness and tingling going down her right leg to the top of her foot, and up into her right arm, as well. Plaintiff claims difficulty with: lifting bending, sitting, standing, walking, driving, sleeping, kneeling and climbing the stairs. Physician’s Certification: Although there was no mention of permanency or causal relationship in Dr. Kahn’s report, he nevertheless provided plaintiff’s counsel with a certification of permanency under AICRA on the same date as his MRI review with plaintiff. He stated that he was a licensed orthopedic surgeon and the treating/consulting orthopedist who had “cared for and consulted with” plaintiff with respect to the injuries she sustained in the subject accident. He repeated his impressions from his report of the same date, and certified that the injuries were permanent and causally related to the subject accident. He also opined, to a reasonable degree of medical certainty, that the injuries had not healed, and, based on objective findings and medical reports, as well as plaintiff’s subjective complaints, would not heal with further medical treatment. He concluded by stating that the certification of permanency was based on plaintiff’s history and was valid only if plaintiff’s history was accurate. Polk Analysis: Plaintiff’s failure to provide a comparative analysis was one of the bases for the trial court’s dismissal, but the appellate court did not reach the issue. Trial Court Determination(s): Plaintiff failed to provide a comparative analysis as required by Polk v. Daconceicao and her proofs were insufficient to establish objective medical evidence of a permanent injury which was causally related to the accident. Appellate Court Determination(s): Plaintiff’s medical proofs did not meet the objective credible evidence standard required by AICRA. Plaintiff was referred to Dr. Kahn by her attorney; he was neither a treating physician nor a board-certified physician to whom plaintiff was referred by a treating physician. Moreover, Dr. Kahn’s physician’s certification of permanency was based on an examination and MRIs performed over two years after the accident, and he qualified his findings by relying on the accuracy of the history provided by plaintiff. His report of the same date as his certification made no mention of permanent injury or causal relationship. Finally, although he reported that the cervical MRI was normal, he nevertheless certified that she suffered from permanent chronic traumatic cervical sprain and strain as a result of the accident. On the other hand, those doctors who did treat plaintiff opined that she had no permanent injury resulting from the accident. Her treating chiropractor did not render a report or certify to any permanent injury. The panel noted that AICRA required opinions by treating physicians to assure that the objective medical evidence of permanent injury, for which treatment was provided, bore a meaningful causal relationship to the accident for which the claimant sought damages. A certification from a nontreating doctor, recommended by counsel, does not meet the required burden of proof placed upon a claimant seeking to satisfy the AICRA verbal threshold. More importantly, a medical professional providing a certification must do more than provide a qualified opinion based upon a subjective history related by a patient in order to meet the objective AICRA criteria. Medical opinions on causal relationship must be based upon a doctor’s actual participation in the claimant’s treatment or the rendering of an opinion by a treating physician. Otherwise, they lack the authenticity necessary to meet the legislative intent to tighten the threshold that was enacted to effectuate cost-saving restrictions on the right to sue. The order granting summary judgment to the defendant was affirmed. The court did not reach the issue of whether Polk was still viable under AICRA. 2. Kiley v. Merck & Co., Inc., A-4417-04T2 DDS No. 23-2-6138 Judges Stern and Lyons Jan. 12, 2007 Result: Appellate court ordered appeal re-submitted after Supreme Court decided Davidson. Facts/Background: No details given Medical Testing and Treatment: No details given, but since Polk was at issue, there apparently were other injuries. Polk Analysis: No details given, but was apparently the reason for the trial court’s dismissal of plaintiff’s case. Miscellaneous Issue(s): Defendant’s failure to timely raise verbal threshold as an affirmative defense. Trial Court Determination(s): Plaintiff’s complaint was dismissed, presumably because of her failure to provide a comparative analysis pursuant to Polk. Appellate Court Determination(s): Plaintiff asserted on appeal that, because assertion of the verbal threshold was an affirmative defense, defendants should not have been permitted to produce the declaration page of the governing Federal Insurance motor vehicle policy after the discovery end date. The parties agreed that it had not been produced before arbitration, nor before the filing of defendant’s summary judgment motion. Plaintiff asserted that, because the declaration page or the entire policy was not produced within the discovery period, she suffered prejudice in terms of the preparation of her case. Plaintiff therefore contended that the matter should have been considered a “no threshold case,” as defendants did not meet their “burden” of asserting that her claim was subject to the threshold. Alternatively, plaintiff argued that, even if the threshold defense could be raised, the trial court was incorrect in granting the defendant’s motion for summary judgment because no Polk analysis was required. The panel noted that Davidson had been argued before the Supreme Court on Sept. 12, 2006. The panel assumed that the Supreme Court’s decision in that case would control the Polk issue here. The decision would also affect the determination of whether plaintiff was prejudiced by the allegedly late production of the policy or late assertion of the threshold defense. Accordingly, the panel felt that the disposition of this appeal should abide the Supreme Court’s opinion in Davidson. The parties were offered the opportunity to file supplementary briefs after the filing of the Davidson opinion, and the appeal thereafter was to be resubmitted to the same panel for decision. 3. Stefanski v. Clayton, A-4138-05T5 DDS No. 23-2-6176 Judges Skillman and Lisa Jan. 17, 2007 Result: Judgment in favor of defendant is affirmed. Facts/Background: In the automobile accident on Aug. 21, 2003, plaintiff’s vehicle was rear-ended by defendant’s vehicle. She complained at first of pain in her scapular area, but later claimed injury to the rotator cuff in her right shoulder. Medical Testing and Treatment: Emergency room: The record contained an indication that plaintiff went to the emergency room in an ambulance after the accident, but no details were provided. Orthopedic surgeon: Plaintiff’s treating physician, Dr. Rizzo, performed two arthroscopic surgical procedures on her right rotator cuff. The first was in the summer of 2004, nearly a year after the accident. In performing the procedure, the doctor visualized the rotator cuff and detected a tear, although the MRI had not revealed one (see “radiology” below). He cleaned the area and repaired the tear. As plaintiff failed to pursue physical therapy and developed motion problems in her shoulder because of scar tissue, the second surgery was performed in Sept. 2004 to remove this tissue. The doctor opined that plaintiff’s shoulder injury was permanent in nature. Physical therapy: Plaintiff delayed commencement of her required post-operative physical therapy after the first surgery and developed a very significant frozen shoulder due to scar tissue and adhesions that built up. The second surgery was performed to remove this scar tissue. Radiology: An MRI examination conducted before plaintiff’s first surgery did not reveal a tear of the rotator cuff, but showed inflammation and a build up of fluid around it. Defense examination: Dr. Egan, an orthopedic surgeon, examined plaintiff on two occasions for the defense, on July 22, 2004, after her first surgery, and again on May 24, 2005. He also reviewed all pertinent medical records, including the emergency room record, ambulance call sheet, records of treating physicians in the months immediately following the accident, and the records of her orthopedic surgeon’s treatment. Dr. Egan noted that, although an acute rotator cuff tear is very painful and disabling, plaintiff did not begin to complain of rotator cuff injury symptoms until many months after the accident. He therefore opined that the rotator cuff condition resulted from degenerative changes, and not the accident. On cross-examination at trial, plaintiff’s counsel confronted Dr. Egan with records that demonstrated complaints of pain in plaintiff’s right shoulder immediately after the accident. Egan dismissed the significance of those complaints because they referred to the scapular or sub-scapular area which, although in a general sense is part of the shoulder, is not at the tip of the shoulder where the rotator cuff is located. Accordingly, the references in no way altered his opinion. Prior Injuries: None Trial Court Determination(s): The jury found defendant 100 percent at fault, but found that plaintiff did not prove that she sustained a permanent injury proximately caused by the accident. Plaintiff moved for a new trial, arguing that the verdict was against the weight of the evidence. The judge denied the motion, concluding that the jury had more than enough evidence to come to the conclusion that it did. Accordingly, he entered judgment in favor of defendant. Appellate Court Determination(s): On appeal, plaintiff argued that Dr. Egan’s testimony was so eroded on cross-examination, that his opinions regarding the causal relationship of her shoulder injury and the accident were stripped to the point of negating the thrust of his entire testimony. The appellate court noted that all of the testimony was available for the jury’s evaluation, and it had the right to credit Dr. Egan’s testimony and give it more weight than Dr. Rizzo’s. The court found the verdict to be well-supported by the evidence. Reviewing the denial of plaintiff’s new trial motion, the court noted that it deferred to the trial judge’s assessment of the intangibles not transmitted by the record, such as credibility, demeanor, and the “feel of the case,” but otherwise made its own independent determination of whether a miscarriage of justice occurred. Applying that standard, the court saw no occasion to interfere with the jury’s verdict and, therefore, affirmed. 4. Ramirez v. Balakas, A-4578-05T2 DDS No. 23-2-6188 Judges Graves and Lihotz Jan. 18, 2007 Result: Summary judgment in favor of defendant is affirmed. Facts/Background: In the automobile accident on Jan. 14, 2004, the 67-year old plaintiff’s air bag deployed, and struck her face. Medical Testing and Treatment: Treating physician: Plaintiff presented to Dr. Lanciano on Jan. 26, 2004, with complaints of discomfort in her left eye, and inflammation. No details of the doctor’s findings were presented. Ophthalmologist: A report from Dr. Regillo on March 4, 2004, noted that plaintiff had sustained a recent trauma to her face relating to an air bag injury, but had no trauma-related ocular sequelae. He reported posterior vitreous detachment floaters present on both sides, but no retinal tears. He indicated that plaintiff was “likely to need cataract extraction down the line on the right side and spectacles to help with the residual refractive error on the left side.” However, the doctor did not opine that plaintiff sustained any permanent eye injury as a result of the automobile accident. Reporting physician: Dr. Wells saw plaintiff and prepared a report dated July 28, 2004. He also prepared an undated physician’s certification of permanency (see below). Treating physician: There is a reference to a Dr. Kahn, to whom plaintiff reported on March 17, 2005, that she was essentially “back to baseline” and she denied any type of numbness and tingling in her arms or legs. Radiology: EMG and MRI tests were performed with abnormal results. Plaintiff’s physicians apparently reviewed these test results and found them to be causally related to the accident. Prior Injuries: None Physician’s Certification: Dr. Wells prepared an undated physician’s certification of permanency; however, he did not specifically refer to any objective clinical evidence or medical testing, and he did not certify that plaintiff 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. Trial Court Determination(s): The judge found that plaintiff had not satisfied the verbal threshold because she did not produce a physician’s certification that her injuries were permanent based upon objective evidence. In fact, the judge found that the evidence presented indicated that plaintiff, in fact, had healed to function normally and did not require further medical treatment. Summary judgment was granted to defendant. Appellate Court Determination(s): Affirmed, substantially for the reasons set forth by the trial court. Plaintiff failed to demonstrate a genuine issue of material fact as to whether she sustained a permanent injury as defined in the verbal threshold statute. 5. Caseres v. Fernandes, A-3589-05T5 DDS No. 23-2-6300 Judges Weissbard and Graves Jan. 29, 2007 Result: Summary judgment in favor of defendant is reversed. Facts/Background: The automobile accident here occurred on Sept. 12, 2003, when plaintiff’s vehicle was struck by defendant’s vehicle. Plaintiff was taken to the emergency room thereafter. Medical Testing and Treatment: Emergency Room: Plaintiff received emergency care, but was discharged that same day with a diagnosis of back strain. She was given a prescription for Motrin, and instructions to follow up with her primary care physician. Chiropractor: First visit with Dr. Zuniga was on Sept. 16, 2003. He ordered an MRI, and diagnosed a lumbar disc bulge; lumbar radiculitis; lumbosacral sprain and strain; lumbosacral subluxation complex; cervical sprain and strain; cervicobrachial and cervicocranial syndromes; cervical subluxations; and dorsal paraspinal myalgia. He concluded that these injuries resulted in a permanent reduction of plaintiff’s normal range of motion in the cervical and lumbar regions of plaintiff’s neuromusculoskeletal system and would translate to a deficit of the activities of daily living, vocationally and avocationally. Dr. Zuniga referred plaintiff to two other physicians; and he treated plaintiff until Feb. 17, 2004, the date of his report. He also authored a physician’s certification for plaintiff’s lawsuit on this same date (see “physician’s certification” below). A second report from Dr. Zuniga, dated July 28, 2005, revealed continued treatment of plaintiff from Nov. 10, 2004, to Jan. 14, 2005. He found many of the same conditions, and noted that muscle injury should improve in several weeks; but if the injury is more severe, it would continue through this normal period. As a result, myofascitis � an inflammation of the muscle and adjacent fascia � would set in. The injured muscle and surrounding ligaments might then be replaced by scar tissue, called myofibrositis. Also, he noted that inflammation surrounding a deranged disc and irritated nerve root could lead to adhesions, which fix the nerve root to the surrounding tissue, resulting in recurrent nerve root irritation. Dr. Zuniga’s prognosis was that plaintiff would, in the future, be prone to exacerbations and/or a complete relapse of the biomechanical structure, requiring further treatment. He opined that plaintiff’s symptoms and complaints were directly related to the subject automobile accident. Pain management specialist: The chiropractor referred plaintiff to Dr. Klyashtorny, who saw her on Oct. 7, 2003. His impressions were: (1) cervicalgia associated with atypical headache and myofascial sprain; and (2) lumbalgia associated with lumbar myofascial sprain. As to both, he noted, “rule out disc displacement and radiculopathy.” He recommended an MRI of both the cervical and lumbar spine, prescribed pain medication and a neuromuscular stimulator unit, as well as continued physical therapy and chiropractic manipulation with Dr. Zuniga, with a return visit in one week. At the time of the follow-up visit, however, the MRI had yet to be performed, and, as a result, the doctor made no additional findings, although he did prescribe an additional pain medication. After the MRI testing was completed, Dr. Klyashtorny reviewed the films and recommended lumbar epidural injections for plaintiff’s persistent low back pain; however, plaintiff refused. As a result, the doctor continued her pain medication and ordered EMG and nerve conduction studies of the legs, requesting a one-month follow up. Orthopedic specialist: Plaintiff’s chiropractor also recommended she see Dr. Glushakow, who examined plaintiff on Feb. 27, 2004, and noted full range of motion in her neck, but lumbosacral tenderness and spasm, as well as restriction of lateral rotation, flexion and extension, and positive straight leg-raising. He diagnosed lumbosacral radiculitis related to the accident and opined that the injuries were permanent. Radiology: X-rays were referred to in the chiropractor’s AICRA physician’s certification, but no details of the results of the test were provided. MRI testing was performed on Nov. 4, 2003. The lumbar study revealed straightening of the lordotic curvature correlated with muscle spasm; mild central spinal stenosis at L3-4 and L4-5 by “ligamentum flavum hypertrophy”; and disc bulging at L4-5 and L5-S1 mildly narrowing both neural foramina. There was no focal disc herniation or significant nerve root compression. The cervical MRI revealed straightening of the cervical lordosis correlated with muscle spasm; mild degenerative spurring and disc desiccation from C2 to C6; and no focal disc herniation, but significant foraminal stenosis or nerve root compression. The study noted a few small thyroid cysts, which could be further evaluated by thyroid ultrasound, if clinically warranted. Prior Injuries: None Physician’s Certification: On Feb. 17, 2004, plaintiff’s chiropractor, Dr. Zuniga, authored a physician’s certification for plaintiff’s verbal threshold lawsuit opining that plaintiff had sustained a type 6 permanent injury. The certification contained the diagnoses recited in his first report of the same date, and stated that the diagnosis was based on positive MRI and orthopedic tests, X-ray, muscle spasm, swelling, and limited range of motion and weakness and instability in both the cervical and lumbar spine. Trial Court Determination(s): When defendant moved for summary judgment, the motion judge first rejected plaintiff’s claim that her headaches constituted a qualifying injury under the verbal threshold, noting the absence of any objective, credible medical evidence as to that injury. He then rejected her contention that her disc bulging constituted objective medical evidence supporting her claim of a permanent back injury under the verbal threshold. The judge found that, in fact, the objective medical evidence belied the doctors’ conclusions. The objective clinical evidence suggested that plaintiff did not have radiculopathy, where the radiologist in the MRI report found no disc herniation or significant nerve root compression. Even though the MRI did not reveal any indication of radiculopathy, and Dr. Glushakow noted in his report that the MRI revealed no neurological focal findings, he nevertheless opined that plaintiff had lumbosacral radiculitis. The judge found it telling that there was no explanation for this contrary conclusion from this doctor or Dr. Zuniga. He also noted, as defense counsel had apparently indicated, that none of plaintiff’s doctors evaluated her legs for signs of radiculitis. Additionally, the judge found that the opinions of Drs. Zuniga and Glushakow were not supported by plaintiff’s own deposition testimony, where she testified that her current back pain was limited to the area of her left and right side at her belt line, and did not identify any pain radiating into her legs. Appellate Court Determination(s): Reversed. The appellate court agreed with the judge’s assessment of plaintiff’s headaches, however, despite his careful analysis and dissection of the rest of plaintiff’s proofs, the court concluded that the judge overstepped the bounds of summary judgment and indulged in findings that should more appropriately have been resolved by a jury. First, the court disagreed with the judge’s conclusion that disc bulges do not constitute objective medical evidence of a qualifying injury under AICRA. Further, the judge was simply mistaken in finding that Dr. Zuniga’s statement that the MRI showed mild narrowing of both neural foramina was contrary to the MRI report. This statement was an exact quote from the radiologist’s report. While it was true that the MRI was also read as showing no significant nerve root compression, that statement, as well as plaintiff’s deposition testimony cited by the judge, only served to undermine plaintiff’s claim of radiculopathy, not to eliminate it. Even ignoring Dr. Glushakow’s report, and expressing no view as to whether it was a net opinion, as the judge found, the appellate court found that Dr. Zuniga’s report, and his AICRA certification, supported the MRI results and were sufficient to vault the verbal threshold for summary judgment purposes. The panel concluded that the motion judge erred in not according plaintiff the benefit of all favorable inferences but, instead, resolving issues of fact himself. While it might be true, as the trial judge clearly thought, that plaintiff’s case was weak, the appellate court noted that the issue was for the jury to determine, not for the motion judge or the appellate court. 6. Kukielka v. Gibson Jr., A-3080-05T2 DDS No. 23-2-6448 Judges Holston, Jr. and Grall Feb. 9, 2007 Result: Summary judgment in favor of defendant is affirmed. Facts/Background: The automobile accident in this case occurred on April 10, 2003. Medical Testing and Treatment: Treating physicians: Plaintiff saw several doctors, but no details or names were specified. Radiology: No tests were ordered by plaintiff’s physicians, and plaintiff did not undergo an MRI examination until after the entry of the order granting summary judgment in favor of the defendant. That test showed a herniated disc, the location of which was not specified in the opinion. Prior Injuries: None Miscellaneous Issue(s): Plaintiff’s attempt to re-open discovery by procuring his first MRI after summary judgment was granted to the defendant, and then moving for reconsideration based on this “new evidence.” Trial Court Determination(s): Defendant filed his motion for summary judgment after the end of discovery and after arbitration. The judge granted the motion on the ground that there was no objective medical evidence that would permit a reasonable juror to find that plaintiff sustained a permanent injury within the meaning of AICRA. Plaintiff obtained his first MRI study after the judge entered the summary judgment order. It showed a herniated disc, and plaintiff moved for reconsideration, asserting that his doctors had not ordered such studies before. Finding no exceptional circumstances that would warrant a reopening of discovery, and noting that the MRI could have been obtained at an earlier date, the judge denied the reconsideration motion. Appellate Court Determination(s): On appeal, plaintiff did not contest the judge’s original summary judgment ruling. Rather, he argued that the judge abused his discretion in declining to reconsider that order in light of the herniated disc shown on the MRI obtained after his complaint was dismissed. The appellate court affirmed, finding neither an abuse of discretion nor misapplication of the law. The discovery period had ended and the arbitration was completed when the defendant’s summary judgment motion was heard. Plaintiff never moved for an extension of discovery prior to the expiration of the discovery period, and did not show good cause for a late extension request or exceptional circumstances warranting an extension after arbitration. Indeed, plaintiff could not show such exceptional circumstances because the excuse that he gave � that his doctors failed to order an MRI � was wholly inconsistent with a showing of due diligence or circumstances beyond the control of the litigant or his attorney. 7. Coffey v. Beachemin, A-0017-05T1 DDS No. 23-2-6449 Judges Skillman and Grall Feb. 9, 2007 Result: Summary judgment in favor of defendant is affirmed. Facts/Background: On Oct. 17, 2001, plaintiff was a passenger in a car which was struck by two other cars, driven and owned by the defendants. She was taken to the emergency room after the accident. Medical Testing and Treatment: Emergency Room: Plaintiff presented with complaints of lower back pain and paresthesias in her right arm. Since a CT scan and X-ray of her cervical spine were normal, she was discharged that same day. Family physician: Two days after the accident, plaintiff saw her family physician, complaining of neck, back, right shoulder and arm pain. The doctor diagnosed plaintiff with cervical sprain, radicular symptomatology, possible thoracic outlet syndrome of the right arm, thoracic sprain, bilateral shoulder sprain, and stress reaction. He scheduled physical therapy for plaintiff. Physical therapy: Plaintiff apparently attended physical therapy for an undefined number of visits. No reports were provided. Neurologist: On Nov. 13, 2001, plaintiff saw a neurologist with complaints of headaches, neck, middle back, and right shoulder pain and numbness of the right arm down to the right hand and fingers. The doctor detected limited range of motion, and diagnosed post-traumatic headaches, cervical and dorsal sprain and strain, right shoulder sprain and right cervical radiculopathy. He also recommended physical therapy. Plaintiff saw the neurologist again a month later, on Dec. 11, 2001. She reported that her headaches were less frequent and that the pain in her neck, middle back and right shoulder, and the numbness in her arm, had all improved. On this visit, the doctor found that the range of motion in plaintiff’s right shoulder was still limited. Although she was instructed to continue physical therapy and await approval of the cervical and right shoulder MRI pre-certification request, plaintiff did not return to the neurologist, nor did she get the MRI. She claimed that her insurance company denied the pre-certification request. Orthopedist: On March 7, 2002, plaintiff saw Dr. Kahn, whose physical examination of plaintiff’s right shoulder revealed a positive impingement arc. She exhibited good strength and full range of motion with tenderness at the extremes of rotation. He diagnosed plaintiff’s shoulder condition as “impingment syndrome,” and ordered an MRI of the shoulder. However, plaintiff still did not secure an MRI, and she did not return to Dr. Kahn for three years. She saw him again on June 9, 2005, ostensibly at the urging of her new attorney, who had been substituted three days earlier. For the first time, Dr. Kahn then submitted a physician’s certification for the lawsuit. Radiology: A CT scan and X-ray of plaintiff’s cervical spine taken in the emergency room were normal. Plaintiff did not undergo MRI testing, as recommended by her physicians, until after defendants’ motion for summary judgment had been granted. Although the radiologist reported that the MRI was normal, Dr. Kahn found that it revealed a SLAP lesion. Prior Injuries: None Physician’s Certification: Dr. Kahn, plaintiff’s orthopedist, did not submit a physician’s certification � with an MRI that he said revealed a SLAP lesion � until after the defendants’ summary judgment motion had been granted. Miscellaneous Issue(s): Plaintiff’s belated attempt to supplement her proofs after defendants’ summary judgment motion had been granted. Trial Court Determination(s): The defense filed a motion for summary judgment on May 20, 2005. On June 6, 2005, plaintiff’s second attorney filed a substitution, 11 days before the discovery end date of June 17, 2005. On June 21, 2005, he submitted a brief with a certification by plaintiff in opposition to the summary judgment motion. In it, plaintiff asserted, apparently to excuse her lack of medical proofs, that she had not gotten an MRI test because her insurance company denied the request for precertification of the test. She also claimed that, because she was employed full-time and was required to work and care for her young children as a consequence of her ongoing divorce, it was difficult for her to seek medical treatment. After plaintiff’s certification was submitted, her attorney, by letters dated June 27, July 18 and July 21, 2005, submitted four new, supplemental medical reports in opposition to defendant’s summary judgment motion. Among these, for the first time, a physician’s certification was submitted with an MRI report. Although the radiologist read the film as normal, Dr. Kahn read it as showing a “SLAP lesion.” Although an arbitration date had been fixed and plaintiff’s attorney had not filed a motion to extend discovery, the attorney urged the judge to consider the new medical evidence at oral argument of the summary judgment motion. The judge, however, found that plaintiff had not established exceptional circumstances as required by R. 4:24-1(c), and declined to consider any reports not previously served and submitted on the motion. He then granted summary judgment to the defendants, determining that there was no objective, clinical evidence of a permanent injury within the meaning of AICRA. Plaintiff then filed a motion for reconsideration, and a motion to extend discovery, which were both returnable on Sept. 9, 2005. Although these motions were still pending, she also filed an appeal with the Appellate Division on Aug. 31, 2005. Appellate Court Determination(s): On appeal, plaintiff contended that the trial judge erred in refusing to consider the medical reports her attorney submitted after the discovery period expired. The appellate court found no merit in this argument and affirmed the judge’s dismissal of the case. The court found no basis to rule that the judge had abused his discretion or misapplied the law in declining to consider the late reports. First, the court noted that the reports were submitted after plaintiff’s certification in opposition to the summary judgment motion, a practice not consistent with the requirements of R. 4:46-2(b) and Rule 1:6-3. Second, plaintiff’s attorney had not moved to extend the period for discovery prior to its expiration; nor had he shown good cause for a late application, as required by R. 4:24-2. Third, because the reports were submitted after the period for discovery had expired and an arbitration date had been set, plaintiff was required to show that exceptional circumstances explained the late production of this evidence. Plaintiff’s affidavit asserting that full-time employment and family obligations made it difficult for her to seek medical care did not establish the kind of exceptional circumstances envisioned by the rule. The appellate court also noted the improper manner in which plaintiff proceeded with her motions and her appeal following the grant of summary judgment to the defendants. In any event, the appellate court concluded that, substantively, the judge properly denied both plaintiff’s motion for reconsideration and the motion to extend discovery. A grant of either motion would have been inconsistent with, and would have undermined, the fair and efficient administration of justice. As to the reconsideration motion, the court noted that one who seeks such relief based upon new evidence must demonstrate that the evidence could not have been discovered earlier with an exercise of due diligence, which was obviously not the case here. Compliance with discovery rules is also relevant to due diligence, and plaintiff did not establish exceptional circumstances for her failure to comply with the discovery rules here. Plaintiff could not avoid the requirements of R. 4:24-1(c) by seeking reconsideration at a later date or filing a motion for extension of discovery after her claim was dismissed. 8. McEnroe-Carey v. Jones, A-5151-05T3 DDS No. 23-2-6505 Judges Parrillo and Sapp-Peterson Feb. 15, 2007 Result: Summary judgment in favor of defendant is affirmed. Facts/Background: On March 3, 2003, plaintiff’s vehicle was rear-ended by an automobile driven by defendant. She went to the emergency room after the accident. Medical Testing and Treatment: Emergency Room: Plaintiff was seen in the emergency room and discharged on the same day. No details of care provided. Orthopedist: Plaintiff did not seek further medical treatment for a month after the accident. On April 9, 2003, she saw Dr. Cuomo. He observed muscle spasm in plaintiff’s neck and lumbar spine, and diagnosed her with cervical and lumbar sprain and strain with right-sided sciatica and impingement syndrome to the left shoulder. She saw the orthopedist on a monthly basis through July 2003; then again on Oct. 18, 2003 and Dec. 16, 2003; and, finally, seven months later, on July 14, 2004. The doctor found muscle spasms, however, only on the first three visits, all of which occurred within 90 days of the accident. On plaintiff’s second visit, the spasms were noted as “mild,” and all of plaintiff’s symptoms, including those in her neck and back, were stated to have definitely improved. No neurological deficits were noted. By the third visit, plaintiff’s spasms were “minimal,” her neck was clearly better, and her range of motion was improved. Throughout the course of treatment, Dr. Cuomo never recommended that plaintiff undergo any objective diagnostic testing. He did, however, recommend a short course of physical therapy, which plaintiff pursued. By the time of her Oct. 2003 visit, the left-sided sciatica and left shoulder syndrome were all under control with a home rehabilitation program. Physical therapy: Plaintiff underwent physical therapy from April 14, 2003, to July 9, 2003, and then pursued a home rehabilitation program. Chiropractor: Seven months after treating with Dr. Cuomo, and almost two years post-accident, plaintiff saw Dr. Forcella, a chiropractor, on Feb. 21, 2005. The report of his examination revealed no finding of spasm. His diagnosis was cervical brachial syndrome, lumbosacral neuritis, and multiple location subluxation. Dr. Forcella treated plaintiff for over a year, until April 21, 2006, but never indicated that he observed any spasms. Independent chiropractic examinations: Plaintiff underwent two independent chiropractic examinations. On April 5, 2005, Dr. Gross observed spasms in plaintiff’s cervical spine, but not in the lumbar area. He did not recommend that plaintiff undergo any diagnostic testing. On Aug. 9, 2005, Dr. Barile found no cervical or lumbar spasms, and all motion studies of plaintiff’s cervical spine were without pain. He also did not recommend any diagnostic studies. Radiology: Over three years post-accident, plaintiff finally underwent a lumbar MRI, which revealed diffuse disc bulges at L3-4 and L4-5 without compression of the thecal sac, any nerve roots, or the spinal column. Prior Injuries: None Trial Court Determination(s): In granting summary judgment to the defendant, the judge highlighted the fact that plaintiff’s treating orthopedist’s reports indicated findings of spasm and reduced range of motion at the outset, but improvement of plaintiff’s condition on the second and third visits. He found it telling that the doctor did not send plaintiff out for diagnostic tests. As a result, when the orthopedist opined that plaintiff had permanent sequelae, this conclusion was not backed up by objective medical evidence. The judge felt that plaintiff’s case further declined with the reports of the three chiropractors. He stated that the chiropractors’ findings as to whether there was spasm were “back and forth.” Without any diagnostic testing and without persistent muscle spasm, and not just evidence of spasm on one or two occasions, the judge was unwilling to allow the case to go to a jury. Appellate Court Determination(s): The appellate panel affirmed, because there was no objective medical evidence of persistent muscle spasm or its association with any body part or organ that would not heal to function normally with further medical treatment, as required by the verbal threshold. Indeed, the panel stressed that plaintiff displayed spasms on only three documented occasions during the initial 90 days of care with Dr. Cuomo, and these improved to “mild” and “minimal” over the course of the three visits. Although plaintiff treated with Dr. Cuomo for an additional 13 months, no additional instances of spasm were noted. In fact, there was no mention of spasm again until an isolated incident on April 5, 2005, nearly two years after the previous documented instance; however, four months thereafter, plaintiff was again examined independently and no spasms were found. Furthermore, no spasms were documented at any time by Dr. Forcella, who continued to treat plaintiff at least through April 2006. Thus, there was no objective, credible medical evidence of plaintiff’s condition to support a finding of persistent muscle spasm. The panel was further satisfied that the evidence of plaintiff’s sciatica and the radiological diagnostics of the MRI demonstrating two bulging discs were never linked or associated with any body part or organ that would never function normally again to constitute a permanent injury within the meaning of the verbal threshold. 9. Frenklakh v. Lojek, A-2619-05T5 DDS No. 23-2-6506 Judges Stern and Messano Feb. 15, 2007 Result: Summary judgment in favor of defendant reversed Facts/Background: Plaintiff was involved in an automobile accident on June 29, 2002, allegedly sustaining injuries to his neck, back, and right knee. Medical Testing and Treatment: Treating doctor: Dr. Lipovsky authored a report dated July 2, 2002, three days post-accident. Based on his physical and neurological examinations of plaintiff, his preliminary diagnoses were: post-traumatic sprain and strain and subacute myofascitis in the cervical and thoracolumbar spine. In the cervical spine, there were also signs of radicular irritation. In the thoracolumbar spine, there was a sciatic component. He noted, “rule out” cervical and lumbar herniated discs and bilateral carpal tunnel syndrome. The doctor also noted a right and left knee contusions; “rule out meniscal/ligamentous injury”; and cerebral concussion. Dr. Lipovsky authored another report dated Sept. 23, 2003, that diagnosed plaintiff with post-traumatic sprain and strain of the cervical and lumbar spine, a broad-based protruded disc herniation at L5-S1, bilateral L5 radiculopathy and right peroneal neuropathy, right C6 radiculopathy, and severe trauma to the right knee resulting in chondromalacia of the patella and atrophy of the vastus medialis oblique. He opined that the injuries were caused by the subject accident and left the plaintiff with permanent functional residual disabilities and limitations. Noting that plaintiff had been in a prior motor vehicle accident in 1995, for which he had also treated him, Dr. Lipovsky noted that he did not have the file on the previous accident, and therefore his report was somewhat incomplete. Orthopedic surgeon: In May of 2004, plaintiff was evaluated by Dr. Nehmer. He examined plaintiff, reviewed the MRI studies, and diagnosed plaintiff with cervical strain, a lumbar disc bulge/herniation at L5-S1, and right knee derangement. Notably, Dr. Nehmer concluded that the lumbar MRI study showed a lesion at L5-S1 which the radiologist interpreted as a bulge, but which he believed represented a herniation. He opined that all of his diagnoses reflected injuries resulting from the subject accident, and that plaintiff’s residual symptoms, loss of motion, loss of function and anatomic changes, all demonstrated permanency. In a follow-up report dated June 3, 2004, Dr. Nehmer opined that plaintiff was a surgical candidate who would benefit from right knee arthroscopy. The doctor furnished one final report in Oct. 2004. By that time, he had reviewed the medical reports from plaintiff’s 1995 motor vehicle accident, including MRI studies and electrodiagnostic testing. He noted that the 1995 diagnoses included bulging discs in plaintiff’s neck and back. His final diagnoses for the subject accident remained the same as in his previous report: that the cervical and lumbar conditions represented aggravations of pre-existing bulging discs in the spine as shown in the studies mentioned. He characterized the right knee derangement, however, as a new injury. Applying a comparative analysis, the doctor opined that 80% of plaintiff’s cervical and lumbar complaints, and 100% of his right knee complaints, were the result of the subject accident. He related 20% of the cervical and lumbar complaints to the 1995 accident. Radiology: Plaintiff underwent MRI testing of his spine and right knee. The spinal results were normal, with the exception of an annular bulging of the posterior annular fibers at L5-S1. The radiologist stated that the MRI of his knee demonstrated an intersubstance tear, and/or myxoid degeneration involving the posterior horn of the medial meniscus, with associated joint effusion. Electrodiagnostic studies revealed a right C6 radiculopathy, bilateral L5 radiculopathy, and right peroneal neuropathy. Prior Injuries: Plaintiff was involved in a prior motor vehicle accident in 1995. Dr. Lipovsky also treated him for the injuries he sustained in that accident. Although at first he did not have access to the file from the earlier accident, Lipovsky ultimately reviewed the file and did attempt a comparative analysis of the injuries from each accident. Polk Analysis: Main issue (see “Trial Court Determinations” below) Trial Court Determination(s): The motion judge concluded that plaintiff’s claimed injuries to his spine were an aggravation of prior injuries suffered in the earlier motor vehicle accident in 1995. Citing Polk, the judge found that plaintiff’s failure to provide a comparative analysis of his residuals prior to the accident with the injuries suffered in the subject accident was fatal. Although the judge noted that plaintiff’s medical expert distributed the causation of his present condition between the two accidents in percentage terms, he nonetheless concluded that the report of Dr. Nehmer was a net opinion as it did not provide any basis for its conclusions. Turning to plaintiff’s claim of injury to his right knee, the judge concluded that plaintiff failed to produce any medical evidence that this injury was permanent. He granted summary judgment to the defense. Appellate Court Determination(s): On appeal, plaintiff argued that the motion judge erred in imposing Polk’s comparative analysis requirement upon his claim. Alternatively, he argued that Nehmer’s report was not a net opinion, and should have been considered by the judge. As a result, even if Polk applied, he contended that he had satisfied his burden for summary judgment purposes by introducing an expert’s opinion that provided the required comparative analysis. The appellate panel first noted its disagreement with plaintiff’s contention that a comparative analysis was not required. Citing the recent Supreme Court opinion in Davidson on the subject, the panel noted that the need for a plaintiff to produce a comparative analysis remained dependent on traditional principles of causation and burden allocation applicable to tort cases generally. Where, as here, aggravation of a pre-existing injury was alleged by a plaintiff, comparative medical evidence was still necessary in order to isolate the physician’s diagnosis of the injuries that were allegedly permanent as a result of the subject accident. Applying Davidson, the panel found that, since Dr. Nehmer’s final report expressly stated that the injuries to plaintiff’s spine were aggravations of prior injuries suffered in the 1995 accident, a comparative analysis was required. The panel then turned to the motion judge’s conclusions: (1) that Dr. Nehmer’s report was a net opinion, without which plaintiff’s proofs as to permanent back injury were insufficient; and (2) that the injury to plaintiff’s right knee had not been shown to be permanent. The panel felt that the motion judge took too restrictive a view of plaintiff’s total medical evidence. As to Dr. Nehmer, the panel concluded that his report � based on his physical examinations, review of diagnostic studies, and the reports of Dr. Lipovsky, plaintiff’s treating physician � was adequately supported by facts and data and sufficiently encompassed an evaluation of the medical records of the patient prior to the subject trauma with the objective medical evidence existent post-trauma. The motion judge should have considered the report with respect to plaintiff’s back injury. With respect to plaintiff’s new knee injury, the panel concluded that the motion judge erred in ruling that plaintiff had not marshaled sufficient evidence to demonstrate a permanent injury. The MRI of the knee demonstrated objective medical evidence of an injury; and Dr. Lipovsky’s report characterized the injury as causing plaintiff “permanent, functional, residual disabilities and limitations.” Dr. Nehmer’s initial report opined that plaintiff had suffered right knee derangement exhibiting permanency based upon his residual symptoms, loss of motion, and loss of function. His subsequent report recommended arthroscopic surgery for the knee, noting that plaintiff would benefit from same. Considering all the medical proofs as a whole, the panel concluded that a jury question was presented on the issue of whether plaintiff’s right knee injury was permanent under the verbal threshold statute. Reversing the judge’s dismissal of plaintiff’s case, the panel summarized its conclusions that, for summary judgment purposes, plaintiff had adduced sufficient proofs to demonstrate that the injury to his back that was an aggravation of an earlier injury, and that he sustained a new injury to his right knee that was permanent. 10. Davidson v. Lash, A-0221-05T2 DDS No. 23-2-6507 Judges Axelrad and Gilroy Feb. 15, 2007 Result: Summary judgment in favor of defendant reversed. Facts/Background: This case arose from an automobile accident on April 4, 2002, in which plaintiff’s motor vehicle was rear-ended by defendant’s vehicle. Medical Testing and Treatment: Plaintiff’s complaints: Plaintiff initially complained of lower back pain and left-sided cervical pain, and was diagnosed with left shoulder, cervical and lumbar strain. A week later, she complained of pain in her lower back and neck. Orthopedic surgeon: On June 17, 2002, over two months post-accident, plaintiff came under the care of Dr. Vonroth Jr. He prescribed an MRI (see “radiology” below). Based upon the results of the test, the doctor opined that plaintiff’s back injury was permanent. Because plaintiff had suffered similar injuries in a prior accident only a month before the subject accident, and had not had the benefit of an MRI following that first accident, Dr. Vonroth candidly admitted that it was difficult to differentiate the pathology and determine if the first accident was the initiating factor, or the second accident. He based his interpretation on plaintiff’s history, stating that it seemed that the neck was more of the primary injury in the first accident, with the back becoming more aggravated or significant in the second. Plaintiff denied having any problems with either her neck or her back prior to these two accidents. The doctor indicated that the actual amount or degree of each injury would have to be correlated to her complaints and documentation on how she experienced the amount of trauma in those accidents. Radiology: An MRI examination was conducted on Aug. 24, 2002. It revealed posterior bulging of the annulus fibrosis at L5-S1, with impression upon the spinal canal in midline and to the right and left of midline. Prior Injuries: Plaintiff was involved in a prior accident on March 8, 2002, only a month before the subject accident. Her vehicle was rear-ended, and she complained of neck, shoulder and lower back pain. Cervical and lumbar X-rays were negative. Plaintiff was about to commence physical therapy for her soft tissue injuries when she was involved in the subject accident. Polk Analysis: Main issue (see sections below for discussion) Trial Court Determination(s): The trial judge granted summary judgment to the defendant because plaintiff failed to present a Polk comparative analysis distinguishing the injuries suffered in the prior accident from the injuries she suffered in the subject accident. Appellate Court Determination(s): On appeal, plaintiff contended that her back pain was significantly aggravated after the subject accident. She differentiated between the back injuries in the two accidents, indicating that the second one was more localized in the lower back, which prompted Dr. Vonroth to order the MRI. She contended that her subjective complaints, as well as Dr. Vonroth’s objective medical findings, were consistent with the results of the MRI, demonstrating a disc bulge at L5-S1, a permanent injury sufficient to withstand summary judgment under the verbal threshold. As this appeal was orally argued a week after the Supreme Court heard argument in Davidson v. Slater, both counsel requested that the appellate panel hold its opinion pending the Court’s decision in that case. On Jan. 30, 2007, that decision was rendered, holding that a plaintiff was under no obligation under AICRA to produce a Polk comparative analysis as part of the prima facie presentation in a nonaggravation case in order to satisfy the verbal threshold requirements. The panel noted that it appeared that the Supreme Court upheld the viability of Polk in cases where aggravation of a pre-existing injury was alleged. Accordingly, the panel reversed the summary judgment and remanded the matter to the trial court for further analysis in light of the Davidson decision. 11. Firoz v. Kolaranda, A-2886-05T1 DDS No. 23-2-6724 Judges Wefing, Parker and Messano March 8, 2007 Result: Involuntary dismissal of plaintiff’s case reversed. Facts/Background: The plaintiff sustained injuries in a motor vehicle accident on Dec. 6, 2001, when defendant made a left turn in front of him, causing a collision. Plaintiff was taken to the hospital by ambulance from the scene. Medical Testing and Treatment: Emergency Room: Presented with complaints of injuries to his left knee, right shoulder and chest. Chiropractor: Upon his release from the hospital, plaintiff treated conservatively with an unnamed chiropractor, who ultimately referred him to an orthopedic surgeon. Orthopedic surgeon: Dr. Massoud continued plaintiff on a conservative course of treatment, which included physical therapy for his shoulder. On May 1, 2002, Dr. Massoud performed arthroscopic surgery on plaintiff’s left knee to repair a tear of his medial meniscus. A Jan. 16, 2004, office note indicated that plaintiff continued to complaint of right shoulder pain with overhead activities, pushing and pulling. In a March 2005 office note, Massoud recorded that he had advised plaintiff that he was a candidate for right shoulder arthroscopy, bursectomy, and acromioplasty inspection, and possible repair of the rotator cuff tear. After the follow-up MRI in April 2005, in a narrative report dated May 11, 2005, Dr. Massoud noted that plaintiff’s shoulder tear had worsened, and that plaintiff had elected to have the suggested surgery, which could include partial excision of the distal clavicle. The doctor noted that plaintiff understood the risks and wished to proceed. In his medical opinion, to a reasonable degree of medical certainty, plaintiff’s right shoulder pain and the need for the surgery were directly caused and related to the subject motor vehicle accident. On Sept. 14, 2005, Dr. Massoud performed a bursectomy, acromioplasty, and rotator cuff repair during arthroscopic surgery on plaintiff’s right shoulder, detailed in an operative report of the same date. Radiology: Feb. 2002 MRI revealed that plaintiff had suffered a partial tear of the rotator cuff of his right shoulder. A follow-up MRI was conducted on April 22, 2005, showing shoulder deterioration to a full-thickness tear of the rotator cuff. Defense expert: Dr. Morrison, who presumably examined plaintiff for the defense and issued a report for defendant, also issued supplemental reports after the close of discovery addressing plaintiff’s shoulder injury and surgery (see “trial court determinations” below). Prior/Subsequent Injuries: Plaintiff was involved in a subsequent accident in February, 2002. No details were provided. Serious Impact on Plaintiff’s Life: Plaintiff complained of right shoulder pain with overhead activities, pushing and pulling. Physician’s Certification: Dr. Massoud issued a certificate of permanency for plaintiff’s lawsuit, which fully complied with AICRA. Polk Analysis: Although defendant raised plaintiff’s failure to comply with Polk because he did not provide a comparative analysis of his injuries from the subject accident with those sustained in his subsequent accident, neither the trial court nor the appellate court chose to address this issue, except that the panel noted the Supreme Court’s recent discussion, in Davidson v. Slater, of the continued vitality of Polk. Miscellaneous Issue(s): Trial judge’s evidentiary rulings barring late-provided reports of plaintiff’s treating orthopedic surgeon, and the last shoulder MRI. Trial Court Determination(s): Discovery ended on Nov. 19, 2004, and defendant’s subsequent summary judgment motion was denied on Feb. 4, 2005. The matter was arbitrated on Feb. 10, 2005, and scheduled for trial on April 19, 2005; however the trial was adjourned for unstated reasons. Defendant thereafter unsuccessfully brought two motions seeking to bar certain evidence because it was furnished after the end of discovery: (1) Dr. Massoud’s March 10, 2005 office note (wherein he advised plaintiff that he was a candidate for surgery), and any testimony relative thereto; and (2) the April 22, 2005, MRI of plaintiff’s right shoulder, and any testimony relative thereto. Both motions were denied by the same judge, without prejudice. In the interim, on July 6, and July 11, 2005, defense counsel served plaintiff’s counsel with two amendments to interrogatories containing supplemental reports from the defense expert, Dr. Morrison, and did so again on Sept. 21, 2005. Defense counsel certified that the information requiring these amendments had not been reasonably available prior to the discovery end date. When Dr. Massoud’s Sept. 14, 2005, operative report was served on the defendant, counsel again objected to the lateness, but nevertheless once again provided another supplemental report from Dr. Morrison dated Oct. 11, 2005, specifically addressing plaintiff’s shoulder surgery. At trial on Jan 23, 2006, before a different judge, defendant immediately stipulated as to liability. Before jury selection, defense counsel moved again, in limine, to bar the introduction of Dr. Massoud’s March 10, 2005, office note, the April 2005 shoulder MRI, and Massoud’s Sept. 14, 2005, operative report; the MRI objection was withdrawn at oral argument “for tactical reasons.” When the trial judge questioned counsel as to whether his prior denied motions had included the same records, defense counsel admitted that they did, but since they were denied without prejudice, he felt they had not been resolved by the prior motion judge. Plaintiff’s counsel acknowledged that he had never moved to extend discovery, but contended that defendant was on notice of the plaintiff’s shoulder injury, his treatment, and the recommendation for, and performance of, the surgery, since routine updates had been provided as reports became available. He also noted that defense counsel had responded to the late-provided reports with supplemental submissions addressing them. The trial judge ruled that plaintiff had not complied with R. 4:17-7 because he never filed a certification as to why the information contained in the late-provided documents was not reasonably available or discoverable by the exercise of due diligence prior the end of discovery. He also noted that plaintiff had not moved to extend discovery by demonstrating exceptional circumstances under R. 4:24-1(c). He granted defendant’s motion barring the March 2005 office note and the Sept. 2005 operative report, and plaintiff’s emergent application for leave to appeal was denied. Trial commenced the next day. Plaintiff testified as to his knee surgery and its aftermath, but was never questioned about the surgical recommendation with respect to his shoulder or the surgery itself. He did note that he still suffered pain and restricted movement in his shoulder as a result of the accident. Dr. Massoud testified regarding the knee surgery, and noted the 2002 MRI of plaintiff’s shoulder injury. Defense counsel objected when the doctor began to describe the subsequent deterioration of plaintiff’s shoulder condition, and, when no agreement could be reached, the jury was dismissed and counsel debated whether the various office reports and notes had ever been served; the issue remained unresolved by the trial judge. Although defense counsel stated that Dr. Massoud never opined as to either permanency or causal relationship, neither counsel ever referred to Massoud’s May 11, 2005, report, which clearly did relate plaintiff’s shoulder injury to the accident. Ultimately, the judge ruled that Dr. Massoud could opine regarding proximate cause; however he sustained defendant’s objection in part, and instructed the jury to disregard any testimony regarding (1) progression of the partial rotator cuff tear to a full-thickness tear; and (2) any post-traumatic arthritis. Defense counsel then continued his cross-examination of Dr. Massoud, focusing upon plaintiff’s subsequent accident, and the fact that the doctor had not seen plaintiff, nor had the MRI images been taken, until after that second accident. Thus, defense counsel suggested that Dr. Massoud’s opinion, regarding causation of plaintiff’s injuries by the first accident, was suspect. Plaintiff rested after the doctor’s testimony, and defendant then moved for dismissal, arguing that plaintiff had failed to demonstrate a permanent injury under AICRA, and that plaintiff had not provided the Polk-required comparative analysis of her injuries from the two accidents. Plaintiff’s counsel responded by arguing that his evidence, as a whole, was sufficient to present a fact question as to permanency and causation. The judge granted the dismissal motion, concluding that Dr. Massoud had never testified as to permanency; he declined to address the Polk issue. Appellate Court Determination(s): On appeal, plaintiff argued (1) that the involuntary dismissal should not have been granted because he presented objective evidence of injury to satisfy the verbal threshold; and (2) that the trial judge erred in barring the records related to his shoulder surgery. The appellate panel agreed that plaintiff was erroneously denied the opportunity to present relevant evidence regarding his shoulder injury and subsequent surgery. Therefore, it reversed and remanded the matter for a new trial. The trial judge’s pretrial decision to bar Dr. Massoud’s March 10, 2005, office note, Sept. 14, 2005, operative report, and all testimony relative to them, was erroneous. Defendant’s previous motion seeking that same relief had already been denied. While it was marked “without prejudice,” the motion judge needn’t have included this qualification, as all interlocutory orders are subject to amendment and reconsideration at any time prior to final judgment. Here, the defendant presented absolutely nothing different in support of the pretrial motion than she did in support of her earlier motion. The practice of having one judge overturn or modify the order of a different trial judge should be disapproved. The panel failed to see why, in the absence of any new law or facts, or an erroneous or uncertain prior ruling, the trial judge barred the doctor’s reports when defendant’s identical motion seeking that relief had already been denied. The appellate panel also found it troubling that defendant decided to withdraw her objection to the April 2005 MRI, which had also been the subject of the denied prior motion. The effect of this “litigation strategy” was to deny plaintiff the opportunity to introduce his doctor’s office note and testimony regarding his being a candidate for surgery, yet admit evidence that, one month earlier, and several years after the accident, plaintiff underwent another MRI of the shoulder, presumably at the same doctor’s request. A review of the doctor’s testimony regarding the significance of the April 2005 MRI � that plaintiff’s condition was worsening, possibly leading to arthritic changes, thus warranting surgery � demonstrated that it was received essentially in a vacuum followed by the judge’s “curative” charge. This was the effect of defendant’s tactical posturing. As a result, the importance of the doctor’s testimony was negated, despite the fact that: (1) he was interpreting the April 2005 MRI which defendant no longer challenged; (2) the March 10, 2005, office note reflected the doctor’s opinion that plaintiff needed surgery; and (3) though the trial transcript does not directly address the document, Dr. Massoud’s May 11, 2005, narrative report, which was not barred, fully discussed his interpretation of the MRI, the worsening of plaintiff’s condition, and the need for surgery. The panel next considered whether any of the three reports should have been barred based upon plaintiff’s failure to comply with R. 4:17-7 or his failure to move for an extension of discovery. While the panel did not condone plaintiff’s counsel’s obvious failure to comply with the rule, it failed to see how the required certification would have made any difference. Plaintiff’s counsel could not have obtained the three documents in question, even through the exercise of due diligence, because plaintiff was undergoing treatment contemporaneously with the preparation of those reports. More importantly, they were supplied to defense counsel without delay upon issue. Thus, even if the amendments had been accompanied by the required certifications, defense counsel could not have challenged them in good faith. In fact, defense counsel had his own expert prepare supplemental reports in response to the challenged reports. The initial motion judge’s ruling denying defendant’s motions reflected this reality. Additionally, while the panel did not condone plaintiff’s counsel’s dereliction in failing to move to reopen discovery during plaintiff’s late treatment and surgery, it nevertheless opined that, had he done so, undoubtedly such a motion would have been granted. Plaintiff’s continued medical problems, necessitating continued diagnosis, treatment, and surgery, would definitely constitute “exceptional circumstances” warranting a discovery extension. Moreover, when defendant received the Sept. 2005 operative report, she did not move to bar it, or to seek additional discovery. She again obtained a supplemental report from her own expert in response. R. 4:17-7 requires the party objecting to late discovery to move within 20 days or the objection is waived. Having lost her prior two motions to bar late-provided reports, defendant took a different tack with respect to the operative report, objecting in a letter, but furnishing another rebuttal report. The panel concluded that the trial judge exercised his discretion in a manner inconsistent with a complete and thorough presentation of all issues. Because the introduction of relevant evidence was denied, the panel also reversed the involuntary dismissal of plaintiff’s complaint at the conclusion of his proofs. While agreeing with the trial judge that Dr. Massoud never opined whether plaintiff’s knee or shoulder injuries were permanent, with the adoption of the new verbal threshold statute in 1998, a permanent injury is now statutorily defined. In light of the erroneous restriction of plaintiff’s proofs, and the significant limitations on his expert’s testimony, the panel had no confidence that the “full picture” was allowed to fairly develop before the jury. Perhaps the doctor’s testimony would still have been lacking. Because of the erroneous rulings, however, and their effect on the flow of the testimony, the panel simply could not tell. The matter was remanded for a new trial, the panel noting that defendant might wish to reopen discovery for a limited time to have plaintiff examined by its expert. 12. Murray v. Young, A-1020-04T5 DDS No. 23-2-6744 Judges Rodriguez and Collester March 9, 2007 Result: Summary judgment in favor of defendant affirmed. Facts/Background: The automobile accident in this case occurred on March 23, 2000. As a result of the collision, the 24-year-old plaintiff’s left side hit the driver’s door. The following day, she experienced pain in her neck and back. Medical Testing and Treatment: Emergency Room: Plaintiff did not go to the hospital until two days after the accident, when she presented with complaints of neck and back pain. She was diagnosed with muscle strain, given a prescription for Flexeril and Motrin, and released. Treating physician: On March 28, 2000, plaintiff consulted with Dr. Marks, D.O., at Occupational Health Service. She complained of persistent pain in her neck and back, as well as daily headaches. The doctor’s assessment was cervical and lumbar sprain and strains with post-traumatic headaches. He gave plaintiff additional prescriptions for the same medications she had been given in the emergency room, and told plaintiff to come back for a re-check in a week. On April 14, 2000, plaintiff returned and said she was still having pain while bending, lifting, walking and sitting too long. A week later, she returned with the same complaints, and Dr. Marks told her to continue with Ibuprofen and Flexeril, as well as a home exercise program. Plaintiff continued to see Dr. Marks weekly with the same complaints of persistent pain in her neck and back. On June 20, 2000, Dr. Marks assessed her as having cervical, dorsal and lumbar sprains and strains with traumatic myofascitis. His Aug. 16, 2000, report stated that plaintiff’s neck and back pain was much worse because she had started a new job working in a factory. Dr. Marks found hypertonicity in the paravertebral cervical and lumbar muscles. Plaintiff continued to see Dr. Marks, at first on a biweekly basis, and then monthly through Sept. 29, 2000. She returned on Feb. 8, 2001, and told the doctor that she was six months pregnant and due to deliver in May. She complained of low back pain and pain in her left hip. An examination by Dr. Marks revealed full flexion, negative straight-leg raising and no motor, sensory, or reflex deficit. Plaintiff next saw Dr. Marks on July 25, 2001, with complaints of swelling and tenderness in her knees and hands. He referred her back to her personal physician for a work-up for systemic arthritis, although the opinion contains no discussion of this ever having occurred. Dr. Marks saw plaintiff twice more, the last time being on Oct. 23, 2001, when his examination revealed tenderness in plaintiff’s wrist, mild effusion of the right knee, and tenderness in the cervical/lumbar paravertebral musculature. Neurologist: Dr. Marks referred plaintiff to Dr. Gopal for a neurological examination. His clinical impression was post-traumatic cervical sprain and strain with left cervical radiculopathy. Orthopedist: Dr. Gleimer examined plaintiff on Aug. 8, 2000, and reviewed the lumbar spine MRI (see “radiology” below). He opined that plaintiff had a broad-based disc bulge or protrusion at L4-5, as well as mild bulging at L2-3 and L3-4. He noted that the radiologist’s report did not indicate the extent of the posterior bulge/protrusion, but it noted a good signal in the discs. Dr. Gleimer’s opinion was that the radiologist’s report was “obviously, and visually, on review of the MRI’s, inaccurate.” Dr. Gleimer saw plaintiff again on Oct. 5, 2000, and found no significant disc pathology, although he did note that there was disc bulging on the lumbar MRI, with no nerve involvement. He noted that plaintiff’s cervical MRI was unremarkable, but he felt there was nerve involvement. He also found that plaintiff had clinical carpal tunnel syndrome, even though an upper extremity EMG was negative. Dr. Gleimer’s July 10, 2001, report indicated that plaintiff presented for a re-evaluation with ongoing complaints of neck and back pain, as well as hand numbness and tingling in the morning. His assessment was clinical carpal tunnel syndrome, cervical radiculopathy at C6 and C7, a bulging lumbar disc (based on his own review of the MRI), as well as cervical and lumbar sprain and strain. In his final report of Nov. 1, 2001, Dr. Gleimer’s assessment was the same. He concluded that there was “nothing to offer the patient” at that time. He opined that she had sustained permanent nerve and lumbar disc injury as a result of the motor vehicle accident. He also found associated chronic muscular and ligamentous injury. Radiology: An MRI of plaintiff’s lumbar spine was performed on July 12, 2000, by Dr. Kahn; it revealed no herniated dics or disc pathology. On Aug. 22, 2000, Dr. Gopal performed an EMG, which revealed evidence of a left C6-7 radiculopathy. An MRI of plaintiff’s cervical spine was performed on an unspecified date by Dr. Kapadia, and muscle spasm was reported. No other abnormalities were seen. An undated upper extremity EMG was negative. Another EMG of the upper extremities was performed on Oct. 29, 2001. The impression was: extensor tendonitis of the right thumb without carpal tunnel syndrome, and cervical muscular strain. No finding of C6-7 radiculopathy was noted. Orthopedist: Dr. Kahn evaluated plaintiff and reported that he found chronic traumatic cervical and lumbosacral sprain and strain of a radicular type with symptoms of left upper extremity and bilateral lower extremity and bilateral trapezial myofascitis. He opined that, because of her persistent symptoms and his clinical findings, plaintiff had suffered a permanent injury based upon a reasonable degree of medical certainty, to her cervical or (sic) lumbosacral spine. After 2001, plaintiff had no further treatment and saw no physicians with respect to injuries to her neck, back or extremities. She lost no time from work, and gave birth to two children after the accident. Opthalmologist: Plaintiff did claim an additional permanent injury related to the accident in the form of a cataract in her right eye. Dr. Yasgur indicated that plaintiff, on an unspecified date, told him that she had become aware of a blur in her vision for a year, but recently had become startled by how poor her sight was. She denied ever having eye pain or injury before the accident. Eye doctor: Dr. Yaras noted that, three years post-accident, plaintiff was at an age (27) where one would not normally see a cataract. Based on the history given by plaintiff � that her vision had deteriorated since the accident � the doctor stated that “the combination of the history of trauma on the side of the cataract (which was not accurate, as plaintiff’s left side was impacted in the accident), the inadequate explanation for unilateral cataract otherwise, and the traumatic appearance of the cataract,” led him to believe that the most likely explanation for the condition was the motor vehicle accident. He felt that there was a likelihood that plaintiff would experience good vision after the cataract was removed. Nothing was said in the opinion as to whether or not this was ever done. Prior Injuries: None Serious Impact on Plaintiff’s Life: Work History and Impact: Plaintiff stated that she lost no time from her job as a receptionist as a result of the accident. However, by Aug. of 2000, the doctor noted that plaintiff’s neck and back pain were much worse because she had started a new job working in a factory. Lifestyle impact: Persistent neck and back pain while bending, lifting, walking and sitting for any length of time. Poor vision. Trial Court Determination(s): The trial judge concluded that plaintiff had failed to make a prima facie showing that her injuries fell within the “serious-permanent-injury standard” of the verbal threshold, as she did not demonstrate a permanent injury within a reasonable degree of medical probability. Noting that the MRI reports indicated no disc pathology, and no trauma to plaintiff’s eye was indicated at the time of the accident, he dismissed plaintiff’s claims and granted summary judgment to the defendant. Appellate Court Determination(s): Summarily affirmed, the panel merely expressing its agreement with the judge’s determination, without elaboration. 13. Velez v. Arias, A-5485-05T3 DDS No. 23-2-6767 Judges Coburn and Axelrad March 13, 2007 Result: Summary judgment in favor of defendant affirmed. Facts/Background: The 50-year-old plaintiff was involved in a rear-end collision on June 2, 2002. Medical Testing and Treatment: Emergency Room: Plaintiff went to the hospital on the day after the accident, complaining of back, neck and left leg pain. She was diagnosed with multiple areas of muscular sprain. Radiology: A week after plaintiff visited the emergency room, she had cervical and lumbar X-rays taken, which indicated no acute herniation and no acute disc bulge. An MRI was performed on Sept. 11, 2002, revealing evidence of “acute mild left-sided C6 radiculopathy and acute mild left-sided L3 radiculopathy” and “a mild demyelinating ulnar nerve neuropathy at the elbow . . . consistent with the clinical diagnosis of cubital tunnel syndrome.” An EMG was performed on May 23, 2004, which revealed evidence of a high lumbar L3 radiculopathy. Orthopedists: Plaintiff treated with doctors Cunningham and Bogdan, of Ani Orthopaedic Group, through Nov. 2002. In addition to the revelations from the MRI (see above), Dr. Bogdan also noted that plaintiff had severe lumbar paraspinal spasm. He authored a report dated Nov. 12, 2002, which reflected, inter alia, an impression of lumbar radiculopathy most likely at L3-4 on the left; cervical radiculopathy most likely at C4 and C6; cubital tunnel syndrome on the left; and bilateral lumbar paraspinal spasm in the L4-5 region. This report, however, was the last to mention spasm. Dr. Bogdan did not opine either as to causation or permanency in either of his reports. Neurologist: Dr. Mullally evaluated plaintiff on May 25, 2004, and noted the EMG that had been performed in May, 2004. His impression was chronic pain syndrome. Psychiatrist: Dr. Ivanov filed a physician’s certification for plaintiff dated March 17, 2004, with respect to her psychiatric claim. In answer to the question asking him to list the objective clinical evidence confirming the nature of plaintiff’s injuries, he reported that he obtained “computerized psychological testing MEM I-II,” but did not define or explain the testing. Prior Injuries: None Trial Court Determination(s): Since plaintiff failed to establish a serious permanent injury through objective, credible medical evidence, summary judgment was granted to defendant. In so ruling, the judge cited to Serrano v. Serrano, which held that an AICRA plaintiff had to prove only an injury as defined in the statute: “a permanent injury within a reasonable degree of medical probability . . . [that] does not have to clear the additional hurdle of . . . serious injury.” Appellate Court Determination(s): On appeal, plaintiff contended that the trial court failed to accord her all favorable inferences, and erred in employing the standard of “serious” permanent injury in determining that her injuries did not overcome the verbal threshold. She also contended that she suffered a qualifying permanent injury sufficient to overcome the threshold, as evidenced by the reports and records of her four treating and examining physicians, who opined causation and permanency based on positive clinical tests. The appellate panel was unpersuaded by plaintiff’s arguments and affirmed, substantially for the reasons set forth by the trial judge. The panel felt that, although the phrase “serious permanent injury” was contained several times in the trial court’s opinion, including the conclusion, it was clear that the judge’s use of the word “serious” was inadvertent. The panel was satisfied that the judge was well aware of, and correctly applied, the appropriate standard in evaluating plaintiff’s injuries for purposes of summary judgment, having cited to Serrano at the outset of the opinion, which removed the “serious” injury requirement in verbal threshold cases. The panel stressed, however, that Serrano did not remove the verbal threshold’s “permanent” injury requirement. With respect to the specific evidence that plaintiff produced, the panel noted that the presence of spasm in her lumbar spine five months after the accident, but not indicated thereafter, was not sufficient to defeat summary judgment. It also noted that plaintiff’s treating orthopedist failed to opine as to either causation or permanency. Viewing plaintiff’s proofs in the light most favorable to her, she did present objective medical evidence of radiculopathy, but this was insufficient to overcome the verbal threshold even under the liberal standard following Serrano. Lastly, the panel found insufficient plaintiff’s psychiatrist’s certification and reports, as none of them referenced any type of testing performed on plaintiff. 14. Dubon v. Cannady, A-2375-05T5 DDS No. 23-2-6815 Judges Axelrad and Coleman March 19, 2007 Result: Summary judgment in favor of defendant reversed. Facts/Background: While stopped on a highway exit ramp, waiting to enter the roadway, plaintiff’s vehicle was struck from behind by defendant’s vehicle. Following the accident, plaintiff went to the emergency room. Medical Testing and Treatment: Emergency Room: Plaintiff presented with complaints of neck, lower back and bilateral knee pain. She was diagnosed with a cervical strain and contusion to her knee, and discharged the same day. Treating physician: On March 11, 2002, plaintiff first consulted with Dr. Leshinsky, who ordered radiological tests (see below for results). The doctor’s final diagnosis was cervical, thoracic, and lumbar strain, disc bulge at C6-7, disc protrusion at L4-5, tear of the right meniscus and soft tissue injuries. She opined that these injuries were permanent, and related them to the subject accident. Radiology: Two MRI studies were performed on March 12, 2002. The lumbar study revealed disc protrusion at L4-5. The right knee MRI showed a small joint effusion in addition to a tear to the posterior horn of the lateral meniscus. A cervical MRI was performed on Oct. 2, 2002, disclosing a disc bulge at C6-7. Prior Injuries: None Trial Court Determination(s): In granting defendant’s motion for summary judgment, the motion judge indicated that the only evidence of serious injury he could find was the disc bulge and the disc protrusions, but he held that case law � Loftus-Smith v. Henry and Duffy v. O’Connell, in particular � had held that such evidence was not sufficient to surmount the verbal threshold. Appellate Court Determination(s): On appeal, plaintiff did not argue that any material facts were in dispute. Rather, she argued that the motion judge misapplied the law to the facts of her case. The appellate panel agreed and reversed. The appellate panel first reviewed the Loftus-Smith case, relied on by the motion judge, and noted that the plaintiff in that case had a similar disc bulge, which was found to be insufficient to overcome the verbal threshold because it was not a serious injury. However, the panel distinguished Loftus-Smith from the current case, both because it was decided under pre-AICRA precepts, and because of the additional injury to plaintiff’s right knee in this case. The panel noted that, under AICRA, a plaintiff need only show that her injury satisfied one of the statutory threshold injuries. The panel also distinguished the other case relied upon by the motion judge, Duffy v. O’Connell, another pre-AICRA case. In this case, the panel felt that plaintiff had presented the necessary certification to establish that she suffered a permanent injury to a body part or organ, proven by objective evidence. She provided medical records to support this certification with respect to the disc bulge and meniscus tear. While recognizing that AICRA’s certification requirement was an anti-fraud measure that was necessary for a plaintiff to state a claim, the panel noted that a physician’s certification was not necessarily sufficient to establish such a claim. But, without expressing or implying any view on the ultimate ability of plaintiff to succeed on her claims, the panel was satisfied that, at this stage of the litigation, granting plaintiff all favorable inferences, she had made a showing of permanent injury sufficient to satisfy the statutory requirement and withstand a motion for summary judgment. 15. Cantello v. Wask, A-5539-05T5 DDS No. 23-2-6861 Judges Holston Jr. and Grall March 22, 2007 Result: Dismissal of plaintiff’s complaint affirmed. Facts/Background: No facts provided. Medical Testing and Treatment: Chiropractor: Plaintiff saw a chiropractor, but no details were given. Radiology: An MRI was performed, and the radiologist apparently interpreted the report as showing some injury. The chiropractor relied on this report, but no details of the results were given. Prior Injuries: None Miscellaneous Issue(s): Chiropractor was unqualified to interpret plaintiff’s MRI. Trial Court Determination(s): When the trial date was first set, the plaintiff moved for an adjournment to permit him to obtain an expert qualified to read and interpret the MRI test allegedly documenting his injuries. When the new trial date arrived, plaintiff’s attorney acknowledged that the only objective medical evidence of permanent injury was a report authored by the radiologist who had interpreted the MRI. Plaintiff sought to introduce that evidence through the testimony of his chiropractor, who had relied on it. The attorney acknowledged, however, that the chiropractor was not qualified to interpret the MRI; and he also acknowledged that he had been unable to obtain a qualified witness to testify in court. Plaintiff produced no other objective medical evidence apart from the MRI report. Therefore, the trial judge dismissed plaintiff’s complaint on the trial date on the ground that plaintiff had produced no competent objective medical evidence to support his claim that he sustained a permanent injury within the meaning of AICRA. Appellate Court Determination(s): Affirmed. Citing Brun v. Cardoso, the panel noted its holding that, on objection, interpretation of an MRI may be made only by a physician qualified to read such films; and that the MRI report could not be bootstrapped into evidence through the testimony of a doctor not qualified to interpret the MRI. This result obtained because of the complexity of MRI interpretations. Reasoning that admission of an MRI report without calling the author as a witness would deprive defendants of the ability to cross-examine the author of the report on the central issues of the case, the appellate panel concluded in Brun that an MRI report authored by one who was not called as a witness was, on objection, inadmissible hearsay. Expert testimony could not be used as a vehicle for the wholesale introduction of otherwise inadmissible evidence. The panel also noted in Brun that, while a physician could be questioned about the report of another doctor that he had taken into consideration in formulating his opinion, the report of the nontestifying doctor could not, itself, be admitted into evidence in the absence of an independent basis for admissibility. The panel also rejected plaintiff’s argument that litigation would be too costly if he were required to call all of the medical professionals who had done diagnostic testing, stressing that this argument was based on a false premise. A litigant need not produce every professional who has rendered treatment or done diagnostic testing. The case law simply requires a litigant who intends to rely upon a diagnosis that is complex to present a witness who is competent to render an opinion on that diagnosis. 16. Brakna v. Hall, A-4421-05T5 DDS No. 23-2-6862 Judges Parker and Fisher March 22, 2007 Result: Dismissal of plaintiff’s complaint on procedural grounds reversed. Facts/Background: This case arose out of an automobile accident on May 18, 2002, in which defendant rear-ended plaintiff’s vehicle. Plaintiff sustained a number of spinal injuries, the most serious of which were a herniation at L5-S1, and radiculopathy emanating from C8 and S1. Medical Testing and Treatment: Not detailed Prior Injuries: None Miscellaneous Issue(s): Notwithstanding evidence that plaintiff’s injuries were permanent, this matter was disposed of on procedural grounds, to wit, plaintiff’s counsel’s failure to submit opposition to defendant’s summary judgment motion. Trial Court Determination(s): Defendant moved for summary judgment, and plaintiff’s counsel requested and received an adjournment, with defendant’s consent. By the adjourned return date, however, plaintiff had still not submitted any opposition, and defendant’s motion was granted. Plaintiff moved for reconsideration. Counsel submitted a certification indicating that he had missed the deadline and return date, and failed to oppose defendant’s motion on the merits, because his secretary and paralegal had recently left and his office had been under construction project that took additional time and attention away from the office. The judge denied the motion without oral argument, finding that plaintiff had not met the standard for reconsideration. He noted that the motion was actually more like one under R. 4:50-1, but found no excusable neglect had been demonstrated in the circumstances set forth by plaintiff’s counsel. He also found that the circumstances were within the control of the plaintiff. Appellate Court Determination(s): Plaintiff argued on appeal that (1) his injuries were permanent in nature and satisfied the verbal threshold requirements; and (2) his inaction was the result of excusable neglect or exceptional circumstances. The appellate panel reversed and remanded, noting initially its disagreement with the trial judge’s conclusion that counsel’s office problems were within the control of the plaintiff, which they clearly were not. The judges then noted that R. 4:50-1(f) provides relief from a judgment when a party shows that the circumstances are exceptional and that enforcement of the judgment would be unjust, oppressive or inequitable. This statute was designed to balance the interests in finality of judgment with the equitable notion that courts should have the authority to avoid an unjust result in any given case. Where a dismissal results from an attorney’s neglect or mistake, in the absence of demonstrable prejudice to the other party, it is neither necessary nor proper to visit the sins of the attorney upon his blameless client. Here, plaintiff himself was blameless for failing to oppose the summary judgment motion, and defendant had not demonstrated that any prejudice would result from reinstatement of the complaint. While counsel’s office issues might not rise to the level of excusable neglect, the interests of justice demanded that plaintiff’s case be reinstated and remanded for consideration of the motion on its merits. 17. Martin v. Donio, A-5003-05T5 DDS No. 23-2-7054 Judges Cuff and Baxter April 11, 2007 Result: Summary judgment in favor of defendant affirmed. Facts/Background: On Oct. 25, 2002, plaintiff was a back-seat passenger in a vehicle driven by one defendant, which collided with a vehicle driven by the other defendant. He alleged that he sustained displaced avulsion fractures to his right and left ring fingers, a concussion, back and neck sprain, and headaches, all as a result of the accident. Medical Testing and Treatment: Radiology: X-rays were taken on the day of the accident. The reviewing radiologist, Dr. DeLaurentis, found a normal examination of the right hand. He noted that plaintiff’s left hand suffered an avulsion fracture of the volar plate, fourth PIP joint, which was nondisplaced. Approximately two weeks later, on Nov. 8, 2002, plaintiff underwent further X-ray studies of his hand to determine the progress of his injuries, and another radiologist, Dr. Whitley, noted no significant abnormality in the left hand; specifically, no fracture was identified. On Nov. 12, 2002, an X-ray of plaintiff’s right hand led a third radiologist, Dr. Little, to note “normal right hand.” Approximately four weeks later, on Dec. 9, 2002, plaintiff underwent another right hand X-ray. Dr. Little noted that there appeared to be a small, nondisplaced avulsion fracture. Treating physicians: Three days post-accident, plaintiff began treatment with Dr. Marcelli, a D.O., who reviewed the X-rays and noted the nondisplaced fracture in plaintiff’s left hand. After additional X-rays were taken two weeks later, a partner of Dr. Marcelli, Dr. Mariani, also a D.O., reviewed the X-ray of plaintiff’s right hand, and opined that it might suggest an occult fracture there. Because of that, and the persistence of plaintiff’s pain and tenderness in the right hand, the doctor suggested that immobilization with splinting was most appropriate to minimize the risks of displacement of a nondisplaced fracture that might be present. In addition to reviewing the X-rays, Dr. Mariani also conducted a physical examination of plaintiff and concluded that there was no displacement of the previously noted avulsion at the PIP joint of the left hand. Following additional right hand X-rays on Dec. 9, 2002, Dr. Mariani reviewed the radiologist’s report and issued his own report dated Dec. 10, 2002, concluding that the recent X-ray showed an apparent small avulsion. Joint congruity was preserved. Plaintiff received no further treatment to either of his hands after February 2003 for injuries resulting from the subject accident. Prior Injuries: None Serious Impact on Plaintiff’s Life: Plaintiff claimed “permanent injury” because he could not perform 16 specific tasks, pointing to problems with: performing push-ups and pull-ups; opening jars; catching a softball; using handbrakes on his bicycle; writing for too long; “sports”; hard/quick turns while driving; almost any twisting motion; missionary-position sex; shaking his clients’ hands; using hand tools, such as screwdrivers; using a nonelectric toothbrush; giving back and foot massages to his wife; climbing ladders; moving 55-gallon drums; and playing tug-of-war with his dog. Physician’s Certification: On May 25, 2004, Dr. Mariani prepared a certification in lieu of affidavit in which he certified that the subject accident caused: an avulsion fracture of the middle phalanx in the right ring finger, a fracture of the middle phalanx in the left ring finger, a cervical sprain, and post-traumatic headaches. The doctor also opined that plaintiff’s injuries were permanent, giving the AICRA definition of a permanent injury. Miscellaneous Issue(s): What constitutes a displaced fracture? Trial Court Determination(s): The trial judge agreed with both defendants that plaintiff’s finger fractures were nondisplaced fractures that did not constitute permanent injuries under AICRA. Summary judgment was granted to defendants. Appellate Court Determination(s): On appeal, plaintiff argued that the motion judge incorrectly engaged in a weighing of the evidence and, therefore, reached an erroneous result. The appellate panel disagreed and affirmed, noting the six categories of permanent injury as set forth in AICRA, the fourth of which was for displaced fractures. While plaintiff argued that the judge erred in determining that the injuries to plaintiff’s fingers were nondisplaced, he argued, alternatively, that even if the fractures were nondisplaced, summary judgment should nonetheless have been denied because he satisfied the sixth category, raising a genuine issue of material fact that he had sustained a “permanent injury within a reasonable degree of medical probability.” First addressing plaintiff’s argument that his fractures were displaced, the panel reviewed the definition of an avulsion fracture provided by plaintiff � “the detachment of a bone fragment that results from the pulling away of a ligament, tendon or joint capsule from its point of attachment on a bone” and contrasted this with his definition of a displaced fracture: “a fracture in which two ends of the broken bone are separated from one another.” Plaintiff’s contention was that, since an avulsion fracture involved a detachment of a bone fragment from its original location, it satisfied the bone separation requirement of a displaced fracture. In light of the absence of a definition in the statute of “displaced,” the plaintiff urged the appellate panel to utilize the medical definitions he provided, and thereby reverse the trial judge’s conclusion that his fractures were not displaced. The panel declined plaintiff’s invitation, noting that every doctor who read plaintiff’s X-rays or examined his fingers concluded that his fractures were not displaced. Plaintiff cited nothing which persuaded the panel that it should essentially second-guess the treating physicians and numerous radiologists. None of their reports raised a genuine issue of material fact as to whether the fractures were displaced, and, accordingly the panel concluded that the trial judge had ruled correctly on that issue. The panel then turned to plaintiff’s alternative argument that he raised a material fact issue as to whether he had sustained a category-six injury. He argued that Dr. Mariani’s physician’s certification satisfied the statutory requirement of permanent injury, and that defendants’ disagreement with Dr. Mariani’s conclusions should be best resolved at trial by a jury. The panel noted that, while a physician’s certification is necessary to state a claim, it does not necessarily establish one; it is merely the conclusion of the physician that the injury is permanent. The panel stated that, unquestionably, a physician’s conclusory certification was insufficient to raise a genuine issue of material fact. Dr. Mariani’s certification did not contain a single identification of objective medical evidence in support of his opinion that the injury to the middle phalanx of plaintiff’s ring finger on either hand had not healed to function normally and, according to medical probability, would not heal to function normally with further medical treatment. The panel finally considered plaintiff’s argument that he had established permanent injury through the limitations listed in his recitation of 16 specific tasks that he could no longer perform (see list above under “serious impact”). It declined to consider these subjective complaints because, as the court noted in Davidson, subjective patient response is not sufficient to raise a genuine issue of material fact. Accordingly, the appellate panel upheld the trial judge’s conclusion that a nondisplaced fracture and the absence of any objective medical evidence supporting the conclusion of permanency required him to grant defendants’ motion for summary judgment. 18. Harriatt v. Scott, A-4847-05T1 DDS No. 23-2-7167 Judges Lintner and Seltzer April 23, 2007 Result: The panel affirmed the motion judge’s denial of: (1) defendant’s pretrial motion seeking to bind plaintiff to the verbal threshold option elected by the corporate owner of the vehicle he was driving in the accident; and (2) defendant’s post-verdict motion for a new trial. Facts/Background: In the motor vehicle accident underlying this case, the plaintiff was driving a vehicle owned by his employer, Merchants of the World Inc., and covered by an insurance policy issued by New Hampshire Ins. Co. Merchants was the named insured in the policy, which provided coverage under the verbal tort threshold election. Plaintiff was treated at the scene of the accident and transported to the hospital. Medical Testing and Treatment: Emergency Room: Plaintiff received an injection, underwent X-rays, and was released. Chiropractor: On the day after the accident, plaintiff began treating with Dr. Johnson, and treated with him approximately three times a week for more than seven months. Orthopedic surgeon: Dr. Blank examined plaintiff on Nov. 23, 2005, and concluded that plaintiff sustained cervical, thoracic, and lumbar sprains, lumbar radiculopathy on the right side, and a contusion to the left leg. After reviewing plaintiff’s medical records and documentation, Dr. Blank found that plaintiff’s subjective complaints were consistent with his findings. He also stated that, as a result of the accident, plaintiff’s lumbar radicular symptoms were permanent, and that plaintiff sustained a permanent aggravation of the degenerative condition in his lumbar spine. Defense expert: Dr. Bercik, a board-certified orthopedic surgeon, examined plaintiff on March 19, 2004, and concluded that, within a reasonable degree of medical probability, plaintiff had a post-cervical sprain and post-lumbosacral sprain. He opined that plaintiff did not suffer permanent injury to his neck or lower back. Radiology: Plaintiff underwent an MRI, which showed disc bulging and degeneration at L2-3, L3-4 and L4-5. Prior Injuries: None Serious Impact on Plaintiff’s Life: Work History and Impact: Plaintiff could no longer do construction work. Current complaints: Continued pain in his upper and lower back, as well as numbness in his foot and toes. Other Lifestyle Impact: Plaintiff is no longer able to: play basketball with his 13-year-old grandson, of whom he had custody; go dancing; travel by taking long drives. Plaintiff claims difficulty with: lifting, jumping, and doing other physical activities; driving long distances. Miscellaneous Issue(s): Whether plaintiff could be bound by the verbal threshold tort election made by his corporate employer, the owner of the vehicle he was driving in the accident. Trial Court Determination(s): Prior to trial, defendant filed a motion seeking to bind plaintiff to the verbal threshold that his employer, the vehicle owner, had elected in its insurance policy. Relying on N.J.S.A. 39:6A-8.1, and noting that a person cannot be the spouse or child of a corporation, the motion judge denied the motion. A damages-only trial was presided over by another judge, and the jury awarded plaintiff $44,000. Defendant’s subsequent motion for a new trial was denied, the judge concluding that the verdict, which had been unanimous, did not represent a manifest denial of justice and did not shock his conscience, given the evidence of plaintiff’s pain and suffering. He considered the treatment plaintiff underwent with the chiropractor, as well as the testimony of Dr. Blank bearing upon the permanent aggravation of plaintiff’s degenerative disc condition. Appellate Court Determination(s): Defendant appealed from the denial of both of his motions, and the appellate panel affirmed in all respects. The panel first addressed the defendant’s contention that plaintiff should be bound by the corporation’s election of the verbal threshold. It discussed the statute relied on by the motion judge, N.J.S.A. 39:6A-8.1, which provided, in part, that the election of a tort option applied to the named insured and any immediate family member (spouse or child) residing in the named insured’s household. The panel also reviewed the statutory definition of “named insured,” and a case relied on by defendant, Stricklen v. Ferrugia. In Stricklen, the defendant successfully argued that the plaintiff was bound by the verbal threshold while driving a vehicle that she co-owned with her uncle, with whom she resided. Although the declaration page only addressed her uncle as a named insured, plaintiff was listed with him as a driver in the household. The trial judge agreed with defendant that plaintiff was bound by the verbal threshold, and the Appellate Division affirmed, noting that, as co-owner of the vehicle, plaintiff was obligated to maintain insurance coverage on it. The fact that she was not a named insured under the policy did not preclude a determination that she was bound by her uncle’s election, where her uncle acted as her agent in insuring, in accordance with the compulsory insurance law, the vehicle that they both owned. Defendant here argued that the circumstances were similar to those in Stricklen because plaintiff was the CEO and a stockholder of Merchants; an agency relationship existed; and plaintiff had the legal authority to bind the corporation. The appellate panel disagreed, noting, first and foremost, that plaintiff was not a co-owner of the vehicle, as was the case in Stricklen; hence, he was not required to maintain PIP coverage. Moreover, the record did not establish that plaintiff personally owned a vehicle, or that it was covered with the limited threshold, thus relegating plaintiff to the tort option elected by him. Further, there was no evidence that the corporation purchased the vehicle as the agent of plaintiff. In fact, any agency relationship here would necessarily be the opposite of that in Stricklen because, as the CEO, plaintiff would be the agent of the named insured corporate owner, not the reverse. Finally, the appellate panel noted that there was no evidence that plaintiff, as the CEO, actually purchased or authorized the purchase of either the vehicle or the insurance. Even if he had purchased the policy on behalf of the corporate entity as an agent, he would not be personally obligated or accountable for the contract he entered into on behalf of his principal, absent fraud or an allegation that he acted outside the scope of his authority. The defendant did not present any evidence that would warrant piercing the corporate veil to prevent an independent corporation from being used to defeat the ends of justice. The panel found this case more akin to Vamvakidis v. Peters, which involved a corporation closely held by members of a family. Even in that case, the court found that the mere fact that the corporation was held by the family members was insufficient, standing alone, to ignore the corporate form. The appellate panel finally addressed and upheld the trial judge’s denial of defendant’s motion for a new trial, rejecting defendant’s contention that the verdict was excessive. Plaintiff presented evidence of permanent suffering which would continue over his expected 18-year life span as a result of defendant’s negligence. Although hotly contested, there was ample evidence to support the jury’s verdict, and the panel saw no reason to intervene. 19. Joseph v. O’Driscoll, A-6602-05T2 DDS No. 23-2-7254 Judges Wefing and Yannotti May 2, 2007 Result: Summary judgment in favor of defendant affirmed. Facts/Background: The automobile accident in this case occurred on July 22, 2002. No details were provided. Medical Testing and Treatment: Chiropractor: Dr. Huber noted that, on plaintiff’s first visit on July 26, 2002, he complained of pain in his neck, lower back, and in both knees. The physical examination revealed muscle spasm in the cervical, thoracic and lumbosacral regions of plaintiff’s spine. Range of motion tests showed some limitations in plaintiff’s cervical and lumbar spine. Plaintiff continued to treat with Dr. Huber until Aug. 4, 2003. Range of motion tests were apparently performed again at the end of plaintiff’s treatment, and again revealed some limitations of motion in the cervical and lumbar spine. Dr. Huber submitted a report dated May 11, 2005, setting forth the following diagnoses: (1) severe cervical sprain and strain; (2) permanent restriction of cervical motion; (3) permanent post-traumatic cervical muscle spasms; (4) thoracic sprain and strain; (5) severe lumbar sprain and strain; (6) sciatica on the left side; (7) permanent restriction of lumbar motion; (8) permanent post-traumatic lumbar muscle spasms; and (9) bilateral knee sprain and strain. He stated that all of these injuries were directly caused by the motor vehicle accident, and were permanent. Specifically, the doctor stated that the cervical and lumbar spine regions were moved to their extreme range of motion and beyond in the accident, with resultant tearing and stretching of the ligamentous structure and muscular attachments. During treatment, plaintiff continuously suffered from muscle spasms in his cervical and lumbar regions, and continuous radiating pain into his left leg. Although plaintiff had made some sporadic improvement with general relief of his symptoms, the doctor noted that there had been episodes of exacerbation that were easily triggered by plaintiff’s normal daily activities. He advised plaintiff to return for therapy, should his symptoms worsen. The doctor opined that the injured areas would continue to present a problem for a long period of time, and, without proper care and continued therapy, plaintiff’s condition would continue to worsen with age. This would affect him in all areas of his life. Therefore, the injuries must be deemed permanent. Prior Injuries: None Physician’s Certification: Dr. Huber furnished a physician’s certification dated March 9, 2005, which asserted that plaintiff had sustained permanent injuries, specifically: cervical and lumbar sprain and strain; sciatica; permanent restriction of lumbar motion; and permanent post-traumatic lumbar muscle spasms. The doctor cited findings of spasm and loss of range of motion as objective, credible medical evidence to support his findings. Trial Court Determination(s): When the defendant moved for partial summary judgment on plaintiff’s noneconomic claims, arguing that his injuries did not meet the verbal threshold, plaintiff filed papers in response to the motion. However, the motion judge was apparently unaware that the motion was unopposed, and granted the motion without providing any reasons. Later, the parties filed a stipulation dismissing plaintiff’s claims for economic damages. Plaintiff then appealed the partial summary judgment dismissing his claim for noneconomic damages. Appellate Court Determination(s): Despite the fact that the motion judge gave no reasons for his determination, the appellate panel affirmed, concluding that plaintiff failed to present sufficient objective clinical evidence of a statutorily defined permanent injury to vault the verbal threshold. The panel noted Dr. Huber’s attempt to cite of range of motion tests as objective clinical evidence supportive of his conclusion that plaintiff’s injuries were permanent; however, the appellate judges then stressed that such tests were not valid diagnostic procedures under the verbal threshold because they were dependent entirely upon subjective patient response. Dr. Huber also relied on his findings of muscle spasm, which he opined were permanent. While the panel noted that spasm could be an objective indication of a soft tissue injury, it also pointed out that, for spasm to show a permanent injury, it must be persistent and not sporadic or minimal. Here, Dr. Huber noted that plaintiff was only treated from July 26, 2002, through Aug. 4, 2003. The record showed spasms over a period of only one year, with no evidence of same after the cessation of treatment. This was not the type of persistent spasm required to show a permanent injury. 20. Collazo v. Fuquene, A-0423-06T2 DDS No. 23-2-7410 Judges Axelrad and Gilroy May 18, 2007 Result: Summary judgment in favor of defendant reversed. Facts/Background: The plaintiff was a passenger in one of the vehicles involved in the subject automobile accident, which occurred in 2002. Medical Testing and Treatment: Not detailed, other than to state that plaintiff presented objective evidence of a herniated lumbar disc at L5-S1 with left nerve compression and radiculopathy. She apparently saw two physicians, Drs. Reiner and Paul, who opined that the injury was causally related to the accident and was permanent in nature. Prior Injuries: Plaintiff was involved in another accident in either 1993 or 1994, in which she injured her lower back. She related that she did not go to the hospital for that injury, did not miss any work as a result of it, and had therapy for only about a year. She claimed to have healed completely long before the subject accident, as corroborated by her annual physical examinations. Serious Impact on Plaintiff’s Life: Plaintiff’s failure to prove a serious impact was one of the reasons given by the motion judge for dismissing her case. No details of the “serious impact,” or lack thereof, were provided, however. Polk Analysis: Plaintiff’s failure to differentiate between the injuries sustained in the subject accident and those sustained in the prior accident was the other reason given by the motion judge for granting summary judgment to the defendant. Trial Court Determination(s): The judge granted summary judgment to the defendant, finding that plaintiff had failed to present evidence: (1) that the injuries suffered in the accident had caused a serious impact on her life; and (2) differentiating the injuries suffered in the subject accident in 2002. Appellate Court Determination(s): The appellate panel reversed, noting that, after the motion judge’s decision in this case, the Supreme Court had subsequently addressed both issues encompassed in the motion judge’s decision. As to the serious impact issue, the panel noted that, under the current law as defined in DiProspero and Serrano, a plaintiff who sued for noneconomic damages had to satisfy only one of AICRA’s six threshold categories, and no longer had the additional requirement of proving a serious life impact. Here, the panel pointed out that plaintiff presented objective evidence of a herniated lumbar disc at L5-S1 with left nerve compression and radiculopathy. Moreover, Drs. Reiner and Paul certified that the injury was causally related to the accident and was permanent in nature as defined in the verbal threshold statute. The motion judge did not rule that plaintiff failed to surmount the first, objective prong of the original Oswin test, but only that the second, serious impact prong was not satisfied. Since that prong was now abolished, plaintiff’s proofs met the current verbal threshold test. As to the Polk ruling, the panel cited the Supreme Court’s recent decision in Davidson, which clarified that a plaintiff was not required to present a Polk comparative analysis as part of her prima facie case to overcome the verbal threshold where she did not assert a claim of aggravation of a previous injury. Here, although plaintiff did have a prior automobile accident during which she injured her lower back, her proofs were that she did not go to the hospital for that injury, did not miss work, had therapy for about a year, and had not received any treatment for that injury for a significant period of time before the subject accident occurred. Plaintiff therefore did not present an aggravation claim in connection with this accident, taking the position that she had fully recovered from the prior accident and was in good health at the time of this accident, as evidenced by the results of her annual physical examinations. Accordingly, a Polk analysis was not required. 21. Santos v. Goncalves, A-6721-04T5 DDS No. 23-2-7425 Judges Stern, Sabatino and Lyons May 21, 2007 Result: Because summary judgment was granted to defendants for plaintiff’s failure to provide a Polk comparative analysis, matter remanded for reconsideration in light of Davidson decision. Facts/Background: Plaintiff injured his knee, and sustained spinal injuries in the accident underlying this consolidated case (see case number 22 below for other plaintiff, Trivino). Medical Testing and Treatment: No details provided. Prior Injuries: Plaintiff was involved in another accident in 1994. No details of injuries were provided. Physician’s Certification: Plaintiff did not timely file the required physician’s certification of permanency. Polk Analysis: Major issue. Plaintiff’s failure to provide Polk analysis was the reason the judge granted summary judgment to the defendant. Trial Court Determination(s): The judge granted summary judgment to the defendants, finding that plaintiff was not able to causally connect his current spinal complaints with the accident at issue, as explicitly required by Polk v. Daconceicao and its progeny. There was absolutely no comparative analysis conducted with the sequelae of plaintiff’s prior accident in 1994. The judge also noted that the medical records submitted in reference to plaintiff’s knee injury in this accident were devoid of any reference to permanency. Plaintiff moved for reconsideration, arguing that the summary judgment motion was premature, as his deposition had yet to be taken. He also argued that the Supreme Court’s recent decisions in DiProspero and Serrano, eliminating the serious impact requirement, should have impacted the court’s determination in this matter. With respect to plaintiff’s deposition argument, the judge noted that his decision had been clearly based on the objective, credible medical evidence presented. Thus, the absence of plaintiff’s deposition testimony was of no moment and did not constitute a basis for reconsideration. With respect to the DiProspero and Serrano decisions, the judge stressed that he had not based his ruling, in any manner, on the now-defunct “subjective” “serious impact” prong of the old Oswin summary judgment model. Therefore, plaintiff’s reconsideration motion was denied. Appellate Court Determination(s): On appeal, the panel stated that it was clear that the motion judge had not relied on the “serious life impact” prong of the former Oswin test in denying reconsideration. Nevertheless, because of his reliance on the Polk analysis requirement, the panel remanded for reconsideration in light of the Supreme Court’s recent decision on that issue in Davidson v. Slater. The panel noted, in closing, that plaintiff had not timely filed the required physician’s certification of permanency. While no defendant expressly contended that this untimeliness was dispositive, the panel did not preclude consideration of that issue on remand. 22. Trivino v. Goncalves, A-0376-05T2 DDS No. 23-2-7426 Judges Stern, Sabatino and Lyons May 21, 2007 Result: Because summary judgment was granted to defendants for plaintiff’s failure to provide a Polk comparative analysis, matter remanded for reconsideration in light of Davidson decision. Facts/Background: Plaintiff injured her cervical and lumbar spine in the accident underlying this consolidated case (see case number 21 above for other plaintiff, Santos). Medical Testing and Treatment: No details provided, except that one of plaintiff’s experts was Dr. Thorne, who produced a late report attempting to satisfy the Polk mandate. Prior Injuries: Plaintiff was involved in another previous accident in which she apparently injured her neck, although no other details were provided. Polk Analysis: Major issue. Plaintiff’s failure to provide Polk analysis was the reason the judge granted summary judgment to the defendant. Trial Court Determination(s): The judge granted summary judgment to the defendants, finding that plaintiff was not able to causally connect her current spinal complaints with the accident at issue, as explicitly required by Polk v. Daconceicao and its progeny. Although plaintiff attempted to have the judge consider a late submission from her expert, Dr. Thorne, purporting to satisfy the Polk mandate, the judge refused to consider it, because plaintiff failed to comply with R. 4:17-7, producing no certification that the information requiring the late report amending discovery was not reasonably available or discoverable by the exercise of due diligence prior to the end of the discovery period. Appellate Court Determination(s): On appeal, plaintiff argued that: (1) even in the absence of a comparative analysis there was a substantial issue of fact with respect to her piercing the verbal threshold, thus requiring a jury trial; (2) assuming, arguendo, that she needed a comparative analysis for her cervical injury, her lumbar injury still pierced the verbal threshold; (3) the judge erred in refusing to reverse, after the DiProspero and Serrano decisions, his earlier opinion requiring a Polk analysis; and (4) in the interest of justice and under the circumstances of this case, the court should have allowed the admittedly late report of Dr. Thorne which would have cleared up any Polk issue. The appellate panel summarily remanded for reconsideration in light of the Supreme Court’s recent decision in Davidson v. Slater. 23. Torres v. Rivera, A-4306-05T5 DDS No. 23-2-7466 Judges Weissbard and Payne May 23, 2007 Result: Summary judgment in favor of defendant reversed. Facts/Background: On May 11, 2002, the vehicle in which the 23-year-old plaintiff was a passenger was rear-ended by defendants’ vehicle. Medical Testing and Treatment: Orthopedic surgeon: Plaintiff treated with Dr. Berlin for six months, ending on Nov. 7, 2002. In a report dated Oct. 16, 2004, he stated that, at the time of her last visit, plaintiff exhibited “significant” cervical, thoracic and lumbosacral muscle spasm that was permanent in nature and causally related to the subject accident. More specifically, Dr. Berlin’s diagnoses included “post-traumatic headaches, acute cervical, thoracic and lumbosacral myositis with radiculitis, rule out herniated nucleus pulposus, and traumatic bilateral shoulder subacromial bursitis bicipital tendonitis, rule out torn rotator cuff.” He also stated that, if plaintiff’s symptoms became intolerable, he would recommend more aggressive medical management, including an MRI evaluation of her neck and lower back to determine at what level she had a herniated intervertebral disc. Dr. Berlin authored a supplemental report on Sept. 15, 2005 � one month after the discovery period had ended. He stated that he had last seen plaintiff on April 2005, and at that time she continued to exhibit significant cervical, thoracic and lumbosacral muscle spasm with marked limitation of motion. He then recommended MRI tests, which were performed (see below). He found that the results were consistent with his earlier objective findings, and confirmed his suspicion of a lumbar disc herniation. He causally related the injuries detected on the MRIs to the motor vehicle accident and found that the injuries to plaintiff’s neck, back and shoulders were permanent. Radiology: X-rays revealed straightening of the lordotic curve consistent with muscle spasm secondary to trauma. MRI studies were conducted on June 22, 2005, and noted straightening of the normal cervical lordosis, suggesting muscle spasm, and a disc herniation at L5-S1 impinging upon the thecal sac. Defense expert: The MRI films were reviewed by Dr. Greifinger, the orthopedic expert retained on behalf of the defendants who, in a report dated Aug. 11, 2005, did not challenge the radiological interpretation of the images, but stated that it would be impossible to draw any conclusions with respect to causation. Prior Injuries: None Trial Court Determination(s): Defendant moved for summary judgment on Sept. 7, 2005. It was while this motion was pending that plaintiff served Dr. Berlin’s supplemental report dated Sept. 15, 2005. No certification was provided, as required by R. 4:17-7, stating that the information in the late report was not reasonably available prior to the discovery end date, and no consent to extend the discovery period had been obtained. The judge granted summary judgment to defendants, declining to consider the late report of Dr. Berlin, finding noncompliance with the dictates of Best Practices and prejudice to the defendants as the result of their inability to counter, through a supplemental medical examination, plaintiff’s claim of a herniated disc causally related to the subject accident. The judge found the remaining evidence to be insufficient to meet the verbal threshold. Appellate Court Determination(s): The appellate court reversed, determining that the evidence that plaintiff timely submitted, albeit contested, when viewed in a light most favorable to her, was sufficient to support a verdict in her favor. She produced, within the discovery period, evidence of permanent injury to her neck and lumbar spine manifesting, respectively, in cervical spasm and lumbar herniation. There was no evidence that plaintiff had been involved in any subsequent accident or was otherwise injured after the subject accident. The court reviewed the diagnoses and findings in Dr. Berlin’s timely Oct. 16, 2004, report. He recounted X-ray findings of straightening of the normal cervical lordotic curve, consistent with muscle spasm secondary to trauma, and the persistence of plaintiff’s cervical spasms for six months. He also concluded that the symptoms were permanent and causally related to the accident. The persistence of the cervical spasms for more than three years was confirmed in the MRI study conducted on June 22, 2005. Although the radiological report did not address causation, the report could reasonably be construed as providing confirmation of the accuracy of Dr. Berlin’s opinion with respect to permanency of plaintiff’s cervical injury. Similarly, with respect to plaintiff’s lumbosacral injury, the doctor found lumbosacral myositis with radiculitis, and stated that plaintiff’s low back condition was also permanent in nature and causally related to her accident. Evidence of the herniated nucleus pulposus that he was unable to rule out in 2004 was provided by the June 2005 MRI, still within the discovery period. The timely submitted evidence was sufficient to apprise defendants of the nature and severity of plaintiff’s claimed injuries and to raise an inference of their causal connection to the accident that was the subject of her suit. Defendants’ orthopedic expert did not dispute the MRIs as substantive evidence of plaintiff’s alleged injuries. There was no surprise, and defendants did not suffer for their inability to conduct a supplemental medical examination, as the judge found. None, in fact, was ever requested. Even though the court had already ruled that summary judgment should have been denied on the timely evidence presented by plaintiff, it then further held that, with respect to the late-submitted supplemental report from Dr. Berlin, the motion judge’s refusal to consider it because it was not served in a manner consistent with Best Practices was a misuse of his discretion. The court noted that the Best Practices rules were not designed to do away with substantial justice on the merits or to preclude rule relaxation when necessary to secure a just determination. Here, the inference of causal relationship created by timely service of the MRI reports that confirmed injuries considered or diagnosed by Dr. Berlin during his initial treatment of plaintiff was strong. Although Dr. Berlin’s supplemental report provided the necessary formal evidence of permanency and causation, his opinions could in no respect be deemed unanticipated. In such circumstances, the use of Best Practices as a sword appeared to the court to have been unwarranted. Although the court did not condone the failure by plaintiff’s counsel to follow applicable court rules, in circumstances in which the late-filed report was foreseen, no prejudice to defendants was demonstrated, arbitration had not occurred, and the trial date had not been set, the court found the penalty imposed to have been too severe. 24. Gorman v. Grunt, A-3744-05T5 DDS No. 23-2-7638 Judges Parker and Yannotti June 12, 2007 Result: Summary judgment in favor of defendant affirmed. Facts/Background: On Sept. 9, 2002, plaintiff was involved in a rear-end collision with defendant. Medical Testing and Treatment: Family physician: Shortly after the accident, plaintiff was examined by Dr. Greenbaum, D.O., and was treated for neck pain, tenderness and decreased range of motion in the cervical spine. The doctor diagnosed an acute cervical strain and prescribed medication and hot packs. Plaintiff saw Dr. Greenbaum again on Sept. 23, 2002, at which time he reported continuing neck pain, tenderness and decreased range of motion, as well as frontal headaches. He ordered X-rays of the cervical spine, and physical therapy. Plaintiff saw Dr. Greenbaum for follow-up visits on Oct. 1, Oct. 8, Oct. 18 and Nov. 15, 2002, during which time he continued in physical therapy and took his medications, with no improvement. Radiology: X-rays taken on Sept. 23, 2002, showed moderate degenerative changes of the mid and lower cervical spine. Physical therapy: Plaintiff attended physical therapy from Sept. 25, 2002, to Nov. 13, 2002. No details were provided. Pain management specialist: Dr. Greenbaum referred plaintiff to Dr. Rudman, who examined plaintiff on Nov. 20, 2002. The doctor reported a “significant” decrease in range of motion, and tenderness and pain in the C2 to C6 area. He also referred to the Sept. 23, 2002, X-rays, opining that they showed only mild degenerative changes in the spine with evidence of interspace narrowing at C4-5 and C6-7, as well as narrowing of the facet joints at the C4-5, C5-6 and C6-7 levels bilaterally. Independent medical examination: On Jan. 31, 2005, plaintiff was examined by Dr. Bleiweiss. Plaintiff did not advise this doctor of his prior cervical pain and treatment (see below). The doctor therefore noted that plaintiff had first experienced left-sided neck, head and shoulder pain after the subject motor vehicle accident in 2002. Plaintiff did report, however, that he had been involved in a subsequent motor vehicle accident on Oct. 7, 2003. This accident caused right-sided neck, head and shoulder pain. Dr. Bleiweiss stated that plaintiff had not reached maximum medical improvement at the time of his visit. Defense expert: Plaintiff was examined by Dr. Levine on June 28, 2005. He noted that plaintiff denied prior neck difficulties before the subject accident, and denied any other accidents. He learned, however, when he reviewed the other medical reports, that plaintiff was involved in a subsequent motor vehicle accident in 2003 and had had a history of neck pain and radiculopathy since 2000. Accordingly, he reported that the degenerative changes shown on the cervical X-rays were chronic and not related to the motor vehicle accident. His diagnosis was pre-existing degenerative disc disease of the cervical spine, as well as pre-existing left-sided cervical facet joint syndrome. Prior Injuries: Plaintiff had been treated for virtually the same cervical spine injury more than two-and-one-half years before the subject accident. In Jan. 2000, Dr. Greenbaum referred him for radiographs of the cervical spine, and Dr. Cosentino reported, on Jan. 10, 2000, that these tests showed extensive degenerative changes with multi-level degenerative disc space narrowing, and anterior and posterior degenerative osteophytes at multiple levels. The doctor opined that this was associated with some degenerative changes of the oncovertebral joints. He also reported a narrowing of the left C4-5, C5-6 and C6-7 neural foramina with some narrowing of those on the right, as well. There were no compression deformities or subluxations. The pre-vertebral soft tissues were normal. There was also some cervical spine straightening. Dr. Cosentino diagnosed “extensive degenerative changes as described” and “encroachment of the neural foramina bilaterally.” On Jan. 19, 2000, plaintiff was examined by Dr. Dorsky, who noted that plaintiff presented with a history of neck pain dating back a month, and beginning spontaneously. Complaints included neck pain radiating bilaterally into the shoulders. This was initially worse on the right side, but, at the time of the examination, was worse on the left. The doctor’s impression was that plaintiff presented with the history of neck pain, as well as intermittent radiculopathy secondary to advanced degenerative disease. Plaintiff saw Dr. Dorsky again on March 1, 2000, at which time he complained of persistent neck pain and radiculopathy along the right side. He also had pain on the left side of the neck extending to the head and eyes. Range of motion was noted as very limited and painful. There was pain with axial compression. The doctor recommended a cervical MRI and instructed plaintiff to continue taking Vicodin and Celebrex. Plaintiff had the MRI, and the doctor reported that it revealed cervical spondylosis at multiple levels with ridging, most notably at C5-6 and C6-7. This was causing mild to moderate spinal stenosis. The doctor did not recommend surgery, but indicated that plaintiff should continue with physical therapy and exercise on his own. Subsequent injury: Plaintiff was involved in a subsequent motor vehicle accident on Oct. 7, 2003. This accident caused right-sided neck, head and shoulder pain. Trial Court Determination(s): The judge granted summary judgment to the defendant, concluding that plaintiff had not presented any objective proof of injury related to the subject accident. Plaintiff’s counsel argued that, although there was no MRI after the subject accident, plaintiff did undergo cervical medial branch blocks, several of them on the left side, and did undergo radio frequency lesioning on the left side, all of which counsel maintained were objective evidence of a permanent injury. The judge disagreed with plaintiff’s counsel that treatment equaled objective proof of injury. Plaintiff moved for reconsideration, arguing that the facet injections constituted objective evidence that was more diagnostic than an MRI. The trial judge still disagreed, and denied the motion, holding that inter facet injections were not diagnostic tests. Appellate Court Determination(s): Affirmed. The court agreed with the trial judge and rejected plaintiff’s continued assertion that facet injections and medial branch blocks constituted objective clinical evidence as defined by the verbal threshold. In the numerous medical reports included in the record, the court could find no objective support for plaintiff’s claimed permanent injury. 25. Brady v. Tomory, A-0999-06T5 DDS No. 05-2-7768 Judges Kestin and Payne June 26, 2007 Result: Post-verdict order granting plaintiff a new trial reversed. Facts/Background: In the accident on Jan. 17, 2003, plaintiff claimed to have sustained a cervical disc herniation at the C5-6 level. Medical Testing and Treatment: Emergency Room: Plaintiff went to the emergency room where X-rays were taken. Orthopedist: On Jan. 28, 2003, 11 days after the accident, plaintiff consulted with Dr. Koss, who had been treating her for knee complaints. Dr. Koss diagnosed severe arthritis and degenerative disc disease of the cervical spine with acute cervical strain. The record also stated that plaintiff had reported prior problems with her neck, but did not specify the nature of those problems. The doctor ordered physical therapy, which plaintiff attended sporadically before discharging herself. Spinal specialist: Dr. Koss referred plaintiff to Dr. Dwyer, an orthopedic physician specializing in spinal treatment. He sent plaintiff for an MRI (see below), which showed a C5-6 disc herniation. Dr. Dwyer treated plaintiff’s neck with two epidural injections of cortisone, the second of which plaintiff described as “fabulous.” Although she claimed that the pain recurred after five to seven months, she did not receive any other epidural injections. Physical therapy: Plaintiff attended physical therapy on a somewhat irregular basis for 12 treatments from Feb. 14, 2003, until April 2003. Plaintiff discharged herself from treatment after refusing to perform some of the suggested exercises and expressing dissatisfaction with her lack of progress. Radiology: X-rays taken on the day of the accident showed a narrowing of the disc space at the C5-6 level, accompanied by degenerative changes. Additionally, a CT scan of the neck showed diffuse degenerative changes throughout the cervical spine. In late spring 2003, a cervical MRI disclosed a disc herniation at C5-6. Defense expert: Dr. Levine interpreted the MRI and opined that, from the crushed aspect of the plaintiff’s cervical disc herniation, as shown on the MRI, it had taken years to form, and had not been caused by the accident. Family physician: Dr. McGraw described plaintiff’s extensive medical history, including chronic obstructive pulmonary disease, coronary artery disease, myocardial infection, hypertension, increased cholesterol, and total knee replacement, but made no mention of neck complaints. Hip surgeon: Dr. Bash medically cleared plaintiff for her second hip surgery in March 2005. Cardiologist: Dr. Watson saw plaintiff on July 16, 2003, because she was experiencing shortness of breath. He stated in his records that plaintiff’s activity was mainly limited by her de-conditioning, increased weight, and severe knee pain. Prior Injuries: extensive medical history, as set forth above by Dr. McGraw. Serious Impact on Plaintiff’s Life: Plaintiff claimed that her activities had been severely curtailed as a result of continuing pain arising from irritation of nerves caused by the herniation. The defense countered plaintiff’s claim by arguing that plaintiff, who was 73 years old, suffered from long-standing osteoarthritis, and that the disc herniation predated the accident. The defense also claimed that plaintiff’s physical limitations arose from a hip fracture sustained on Feb. 10, 2004, which was stabilized by the use of pins, and required a second surgery in March 2005. Additionally, plaintiff underwent a total left knee replacement on Aug. 26, 2004. Evidence suggested that plaintiff also had arthritis in her right knee. Miscellaneous Issue(s): Whether the trial judge erred in granting plaintiff’s motion for a new trial based on the admission of one brief reference to a short period of alcoholism following the death of her son. Trial Court Determination(s): The case was tried before a jury. During cross-examination of plaintiff, defense counsel sought to prove that plaintiff’s neck condition did not cause her significant pain or physical restriction by demonstrating that she had not complained of the condition when giving a history of her physical complaints to the multiple doctors that treated her for unrelated conditions after the accident. The cross-examination was compromised by plaintiff’s inability to hear the questions asked of her, and her exceedingly poor memory of the medical consultations occurring after the automobile accident. When asked about her cardiologist’s statement that her activity had been mainly limited by her de-conditioning, increased weight, and severe knee pain, she could not even remember a Dr. Watson. She guessed that he might have been her doctor when she had pneumonia and was in the hospital. However, she disputed the statement in his records at the same time she denied knowledge of having been seen by him, or by any cardiologist, at the time. She further had no recollection of being advised to have a myocardial perfusion imaging study done, but being unable to do so because of her knee problems. During the course of cross-examining plaintiff about her medical history, defense counsel asked plaintiff about a mention of alcoholism. She stated that, after her son passed away, she had started to drink. Counsel then moved on to questions about plaintiff’s neck problems. Plaintiff’s counsel did not object to the reference to alcoholism. However, at the conclusion of cross-examination regarding the history she gave to Dr. Watson, her attorney objected, as he had previously, to continued questioning of plaintiff regarding statements she had given to a doctor she could not recall. During the course of an unrecorded sidebar discussion of this objection, the reference to alcoholism was apparently briefly raised and a mistrial was mentioned. However, no action was taken at the time. Cross-examination then turned to other doctors that plaintiff had consulted after her accident, and whether their records contained any reference to a history of neck problems. None did. At the conclusion of cross-examination, plaintiff’s counsel requested a brief opportunity to discuss the alcoholism reference with his partner and his client. After that discussion, he advised the court that, after plaintiff lost her son, she drank for a period of four months, and not thereafter. He was concerned that the jury was going to be left with the impression that plaintiff was an alcoholic. He stated that he would rather not have a mistrial declared, but wanted to preserve the issue and was unsure how to proceed. Counsel then discussed the possibility of a curative instruction, and the court offered counsel the opportunity to address the circumstances of plaintiff’s drinking on re-direct examination. The offer was accepted, and plaintiff testified to having used alcohol as a “crutch” for two to three months after her son’s death, and then stopping. She denied being an alcoholic, and no further evidence of misuse of alcohol was presented by the defense. At the end of the three-day trial, in his closing argument, plaintiff’s attorney again addressed the issue of plaintiff’s alcoholism to the jury, stressing that the evidence was irrelevant to the issues being tried, and claiming that the reference by defense counsel to the subject had been meant to embarrass and humiliate the plaintiff. During the charge conference, the judge indicated that she had conducted research regarding the statement at issue, and would not declare a mistrial. However, on two occasions, she offered to instruct the jury that no evidence existed of drinking on the day of the accident, and she requested that counsel “write a sentence or two” as to the language she should include in the charge. Plaintiff’s attorney did not proffer the requested curative instruction, and raised no objection to the judge’s final charge, which omitted any mention of the subject. Following lengthy deliberations, the jury returned a verdict finding defendant wholly liable for the accident, but additionally determining that plaintiff failed to prove that she sustained the permanent injury required for recovery of monetary damages for pain and suffering. Plaintiff moved for a new trial, arguing that the jury’s verdict had been influenced by the disclosure of her alcoholism, and constituted a miscarriage of justice. Accepting plaintiff’s argument, and concluding that she had erred, the trial judge granted the motion, and defendant appealed. Appellate Court Determination(s): On appeal, defendant claimed that plaintiff waived the right to a mistrial by not requesting it when plaintiff’s history of alcoholism was disclosed to the jury; when plaintiff waived that relief at the conclusion of the plaintiff’s cross-examination; and when that relief was not sought at the conclusion of the evidence. In support of that argument, defendant relied on the Supreme Court’s decision in Maladowitz v. Coley, in which waiver was found to exist in factually analogous circumstances. In her opinion granting the new trial, the trial judge acknowledged the absence of objections at trial by plaintiff, but nonetheless concluded that she should have granted a mistrial sua sponte. The appellate panel noted that, although it owed deference to the trial judge’s “feel” for the case, jury verdicts should not be set aside except in cases of clear injustice. Here, the panel perceived no injustice to have been exhibited in this case as a result of the single reference during trial to a history of plaintiff’s alcoholism � a brief circumstance that plaintiff fully explained as having resulted from the untimely death of her only son. In reaching this conclusion, the panel found no evidence of any attempt by defense counsel to prejudice the jury, noting that plaintiff had been a difficult witness and the cross-examination an arduous process. At the time the disputed reference occurred, counsel was pursuing a proper line of inquiry regarding plaintiff’s own description to various treating physicians of her post-accident physical condition in a successful effort to demonstrate that plaintiff failed to make any mention of her neck complaints, while specifically detailing multiple other physical ailments and conditions, some dating back many years. The inquiry itself was of considerable relevance to plaintiff’s claim for damages arising out of the pain and suffering she allegedly sustained as the result of the accident. In this context, the reference to alcoholism served merely to illustrate one of the many conditions that plaintiff did, in fact, disclose, thereby highlighting the significance of the absence of any reference by plaintiff to her neck problems. While, in retrospect, it might have been preferable to omit that particular item from plaintiff’s medical history, the appellate panel could not conclude, in light of the court’s requirement that defense counsel ask plaintiff specific questions regarding her history, and the content of the document upon which cross-examination was being attempted, that the reference was made in bad faith. Moreover, the panel did not discern the potential for prejudice that impelled the trial court to order a new trial. Clearly, the jury could not have determined that plaintiff was under the influence of alcohol at the time of the accident, since it found defendant to be fully responsible for the collision. Additionally, the panel perceived no basis for concluding that the jury would, somehow, be prejudiced against plaintiff because, for a short period of time, she resorted to alcohol as a crutch while coping with the emotional effects of her son’s death. In this regard, the mere possibility that evidence could be prejudicial did not justify its exclusion. That being the case, the same mere possibility could not justifiably serve as a basis for a sua sponte mistrial declaration. The appellate panel noted, as well, that the evidence in question related solely to the issue of pain and suffering and not to the issue of the existence of a permanent injury that was causally related to the accident. Having heard substantial evidence that plaintiff sustained a permanent injury in the form of a cervical herniation, but that the herniation was degenerative in nature and pre-existed the subject accident, the jury found against plaintiff on this point. It is unlikely that the jury’s determination in this regard was premised on testimony by plaintiff or any determination by it that plaintiff lacked credibility. Plaintiff did not testify regarding the etiology of her neck complaints; in fact, she was incompetent as a lay person to do so. That evidence was derived from X-rays, a CT scan and MRI reports, along with the testimony of defense Dr. Levine � evidence that, by its nature, could not readily have been contaminated by a reference to plaintiff’s transitory abuse of alcohol. Because the jury found no causal relationship between plaintiff’s cervical herniation and the accident, it never addressed the question of damages for pain and suffering. Therefore, if the evidence of plaintiff’s alcoholism raised doubts in the jury’s mind regarding plaintiff’s credibility, it was unlikely that those doubts ever came into play in the course of the jury’s deliberations. As a consequence, finding no injustice in the court’s failure to have granted a mistrial when the brief mention of plaintiff’s alcoholism was first presented to the jury, the panel concluded that the trial judge abused her discretion in reconsidering the issue and granting plaintiff a new trial. That order was reversed and the jury’s verdict against plaintiff was reinstated. 26. Paradowski v. Cashman, A-6304-05T5 DDS No. 05-2-7784 Judges Parrillo and Sapp-Peterson June 27, 2007 Result: Judgment in favor of defendant after jury’s no cause verdict, and denial of plaintiff’s motion for a new trial, both affirmed. Facts/Background: In the accident underlying this case, defendant rear-ended plaintiff’s vehicle on April 18, 2002. Medical Testing and Treatment: Plaintiff claimed to have suffered cervical and lumbosacral disc herniations, which her doctor causally related to the accident. No other details were provided. Prior Injuries: Plaintiff was apparently involved in a prior motor vehicle accident, in which she injured her neck and back, and received treatment. No other details were provided. Miscellaneous Issue(s): Admissibility of severity-of-impact evidence and photographs of vehicle damage. Trial Court Determination(s): Defendant stipulated to liability and the case was tried on damages, based on plaintiff’s claim of permanent injury under the verbal threshold. The trial court granted plaintiff’s first in limine motion, barring defendant’s biomechanical expert from testifying. Specifically, the court found that the expert’s opinion � that the force imparted to plaintiff’s body in the collision was insufficient to cause the injuries of which plaintiff complained � was a net opinion and therefore inadmissible. The court, however, denied plaintiff’s other motion, based on Brenman v. Demello, seeking to bar other “severity of impact” references at trial. As a result, in plaintiff’s opening statement, her counsel was the first to introduce the issues of the nature of the impact and lack of property damage, by stating to the jury that, irrespective of the force of the impact and the damage done to the vehicle, the crash threw plaintiff around “like a rag doll.” Defense counsel responded in kind in her opening, commenting on the fact that the impact was so minor that the police weren’t even called to the scene, and noting that plaintiff didn’t even report the accident to the police until six days later. Defense counsel indicated that the evidence would show that the impact was minor and no more than “a tap.” She also mentioned that plaintiff had been involved in a prior motor vehicle accident, in which she injured her neck and back, and received treatment. On direct examination, plaintiff testified as to the nature of the impact, explaining that her body jerked back and forth “like a rag doll.” Following up on that characterization, defense counsel suggested in her cross-examination that the seat belt must not have worked. The court sustained plaintiff’s counsel’s objection and instructed the jury to disregard the comment. The court also sustained the objection to defense counsel’s comment, suggesting that the back of plaintiff’s car must have been totaled, in response to plaintiff’s confirmation, on cross-examination, of her earlier deposition testimony that the impact was “medium to heavy.” When asked about property damage, plaintiff indicated that there was damage to her bumper. Defense counsel then showed plaintiff photographs depicting two nicks on the bumper, and asked her if the photos fairly and accurately depicted the damage to her car, to which plaintiff responded, “I don’t recall.” The court sustained plaintiff’s counsel’s objection to the photographs, which were apparently taken after plaintiff’s bumper cover had been replaced, and therefore were never admitted into evidence. Nor were any estimates of property damage or repair invoices ever proffered. Finally, when defense counsel asked plaintiff whether the property damage cost less than $1,000 to repair, the court again sustained the objection and instructed the jury not to consider any reference to property damage. At the close of the evidence, and prior to summations, the court cautioned both counsel not to mention the nature of the impact in closing statements. Despite this directive, plaintiff’s counsel used the word “smashed” to describe the collision, and to suggest causative correlation with plaintiff’s injuries. Although defense counsel objected, the court took no immediate corrective action. Instead, in its final charge to the jury, the court specifically instructed the jury to disregard the “smashed” characterization. The court told the jury not to speculate as to the severity of impact or lack thereof, as impact may have no correlation to injury. Thus, the court clearly informed the jury that there was no relationship between the force of the impact and the existence and extent of plaintiff’s personal injuries. The jury subsequently returned a verdict of no cause of action. Appellate Court Determination(s): Plaintiff argued that the trial court erred in denying her second motion in limine after it had granted the first, which error permitted the defendant to improperly reference the alleged minimal impact between the vehicles. She also contended there was error in defense counsel’s: (1) characterization of the impact as “minor” and “a tap”; (2) repeated improper cross-examination; and (3) presentation of and questioning about the photographs of the vehicle damage. The appellate panel found no reason to interfere with the jury’s verdict. Plaintiff argued that by denying her in limine motion, the court impermissibly allowed reference to “impact” evidence without expert support. In this regard, she relied exclusively on the appellate decision in Brenman, which held that photographs showing minimal damage to an injured motorist’s vehicle following a rear-end collision could not be used to infer that the accident was not the cause of the motorist’s injuries, in a personal injury action against a defendant driver, without expert proof correlating the severity of impact and likelihood of injury. The appellate panel pointed out, however, that the Brenman court had been careful to point out that its holding should not be construed broadly to require expert testimony in every case in order for jurors to be permitted to view photographs of vehicles involved in an accident. The panel stressed that photographic evidence was neither automatically admissible nor excludable, but rather subject to the sound exercise of the court’s discretion. Whether an expert foundation was required depended on the particular issue in the case to which the evidence related. In Brenman, that issue was causation, and because no expert proof of correlation was produced, the panel held that the introduction of the photographs without restriction on their use, and the use actually made of them by the defense, constituted reversible error. In reversing this determination, the Supreme Court rejected a per se rule requiring expert testimony of a causal link when photographs of vehicle damage were offered to prove either the cause or the extent of the occupant’s injuries and consequently held that the trial court did not palpably abuse its discretion when it permitted the admission of photographs that fairly and accurately depicted the condition of the rear of plaintiff Brenman’s car and allowed defendant’s counsel to argue that neither the cause nor the extent of plaintiff’s injuries could have been the proximate result of the impact. The Court reasoned that, in the absence of competent proofs to the contrary, the aggregate of everyday knowledge and experience fairly entitled a jury to infer that there was a proportional relationship between the amount of force applied and the resulting injuries. The appellate panel in the subject case noted that, in fairness to plaintiff, the Supreme Court’s decision in Brenman had been issued well after the filing of her appeal, and essentially disposed of her argument that it was reversible error to permit defendant to reference the impact between the vehicles. As the Court observed, “jurors are entitled to infer that which resides squarely in the center of everyday knowledge: the certainty of proportion, and the resulting recognition that slight force most often results in slight injury, and great force most often is accompanied by great injury.” Thus, given the fact that plaintiff offered no competent proof to the contrary, defense counsel did not ask the jury to make an impermissible inference. Of course, the plaintiff further argued that there was no foundation in the evidence for defense counsel to question her about the photographs, or to refer to a “minor tap” in her opening. Unlike Brenman, where defense counsel’s triple reference to “fender bender” played such a prominent role in the defense and contradicted its own medical expert, who opined that no connection or correlation existed between the impact and injury in that case, here, in sharp contrast, the photographs were not admitted into evidence and the jury was both informed they did not accurately depict the condition of the vehicle at the time of the accident, and instructed, in any event, to disregard any reference to property damage. Furthermore, the panel noted that each of plaintiff’s challenges to questions posed by defense counsel on cross-examination was immediately sustained by the trial judge. In fact, plaintiff was the first to mention impact or force when she described being thrown about like a “rag doll,” thereby inviting a corresponding response by defense counsel, who characterized the rear-end hit as “minor” and a “tap.” Continuing this theme into summation, despite the court’s admonition to the contrary, plaintiff’s counsel again commented on force and impact, characterizing the hit as a “smash.” In contrast, defense counsel, heeding the court’s warning, did not mention impact or force in her closing statement. And, most significantly, the trial court clearly and unequivocally gave a limiting instruction in its final jury charge, addressing comments by both counsel during trial, explicitly advising the jury that there was no relationship between the force of the impact, or lack thereof, and the existence, nature or severity of the injuries claimed to be suffered by plaintiff. Although prompted by plaintiff’s counsel’s remark, the court’s limiting instruction plainly applied to both counsel and to the entirety of the trial. Contrary to plaintiff’s assertion, the instruction was fair and balanced, specifically advising that “significant impact may result in little or no injury, while a minor impact may result in serious injury.” The appellate panel presumed that the jury heeded the court’s clear and plain instruction. Moreover, it was satisfied that, considering plaintiff’s counsel’s own commentary, that of defense counsel was not prejudicial. Further, because both were neutralized by the judge’s instruction, no clear capacity for an unjust result was created in this case. 27. Jeffrey v. Borges, A-0632-06T2 DDS No. 23-2-7809 Judges Parker, Fisher and Yannotti June 28, 2007 Result: Summary judgment in favor of defendant affirmed. Facts/Background: The plaintiff was involved in a rear-end collision with defendant on Aug. 8, 2003. Medical Testing and Treatment: Treating physician: Plaintiff was treated by Dr. Snyder for low back and left shoulder pain. In a report dated Mar. 3, 2006, almost three years post-accident, Dr. Snyder noted the results of X-rays taken in 2004 (see below), and that plaintiff had undergone arthroscopic surgery on the shoulder (see below). The doctor reported that, following the arthroscopic surgery, plaintiff had pursued a course of physical therapy and seen him on Aug. 30, Sept. 14, Oct. 4, Oct. 19, Nov. 9, Nov. 30 and Dec. 22, 2004. At each visit, plaintiff complained that he did not feel he had achieved full strength. In a report dated March 3, 2006, Dr. Snyder stated that, within a reasonable degree of medical probability, plaintiff had injured his shoulder in the subject automobile accident. He further opined that the impingement pain was causally related to the accident. At the time of plaintiff’s final visit on Jan. 21, 2005, the doctor noted that plaintiff continued to complain of pain in his shoulder. It was the doctor’s opinion that plaintiff would continue to experience shoulder pain as a result of the accident. However, he did not opine that plaintiff had sustained a permanent injury as a result of the accident. In his physician’s certification dated Aug. 8, 2006, Dr. Snyder attested that he had personally treated plaintiff for left shoulder impingement syndrome. Plaintiff’s X-rays and MRI were noted as objective clinical findings supporting the doctor’s diagnosis of “pain.” Nowhere in the certification did Dr. Snyder state that plaintiff sustained a permanent injury. Radiology: An MRI of plaintiff’s shoulder was performed in March 2004. The report indicated no abnormal signal to suggest a fracture line. Degenerative disease of the AC joint was noted, and edema, as well. Hypertrophy from this was said to be causing some impingement on the supraspinatus tendon. There was thickening of that tendon, which had the appearance of tendonitis. There was no evidence, however, of a complete tear. The subdeltoid fat planes appeared intact. There were no abnormal fluid collections seen in the subacromial/subdeltoid bursa. The remainder of the report indicated that the joint appeared normal, except for edema seen within the humeral head, which could be related to bone contusion. In June 2004, X-rays of the shoulder showed the joint to be well maintained with no significant arthritic changes. Surgery: On Aug. 9, 2004, plaintiff had arthroscopic surgery of the left shoulder � a subacromial decompression and a bursectomy. Although the surgical report detailed the internal condition of the aspects of plaintiff’s shoulder, described the procedures performed, and indicated that the injury was related to the subject automobile accident, it noted that there was no evidence of a tear or loss of integrity in the rotator cuff. Further, it did not indicate that plaintiff suffered any permanent injury. Physical therapy: Plaintiff continued with physical therapy until he was discharged from care on Jan. 21, 2005, with no diagnosis of permanent injury. Prior Injuries: None Trial Court Determination(s): When defendant moved for summary judgment, the motion judge noted that Dr. Snyder had found full range of motion and excellent strength in plaintiff’s shoulder. His only diagnosis, “pain,” was based on subjective, not objective proof, which did not surmount the verbal threshold requirements. Accordingly, summary judgment in favor of defendant was granted. Appellate Court Determination(s): Affirmed summarily for the reasons stated by the trial judge. 28. Reyes v. Clegg, A-1037-06T1 DDS No. 23-2-7843 Judges Stern and Coburn July 2, 2007 Result: Summary judgment in favor of defendant affirmed. Facts/Background: The accident underlying this case took place in the fall of 2003. Medical Testing and Treatment: Emergency Room: The initial hospital diagnosis was strain of the neck and back. Radiology: X-rays taken at the emergency room on the day of the accident were essentially normal. A lumbar MRI performed about a week after the accident was also normal. At some point during treatment, an EMG indicated right L5 radiculopathy; however the doctor performing the test noted that it was neither acute nor chronic, and he did not relate the radiculopathy to the subject accident. Family physician: Apparently made findings that tended to support plaintiff’s claim of a permanent injury, but details are not supplied. He referred plaintiff to an orthopedist. Orthopedist: Dr. Maslow examined and treated plaintiff, concluding that she had sustained cervical and lumbar sprains, and a right knee contusion or sprain. On the occasion of plaintiff’s last examination by Dr. Maslow, he noted that plaintiff had reported marked improvement and said that she had little pain. The doctor found plaintiff’s range of motion was very good and that she had no tenderness and no spasm. Prior Injuries: None Trial Court Determination(s): Summary judgment was granted to defendant, the judge concluding that plaintiff failed to meet the verbal threshold. Appellate Court Determination(s): Affirmed. The panel reviewed the normal objective test results related to the accident, and Dr. Maslow’s findings of improvement, normal range of motion, and no tenderness or spasm on the occasion of plaintiff’s final examination. The panel pointed out that, although plaintiff’s referring physician had made early findings that tended to support her claim of permanent injury, the plaintiff’s ultimate status was established on her last visit with Dr. Maslow, who was her treating physician. Consequently, the panel saw no basis for disturbing the ruling made by the trial judge. 29. Kalra v. Garcia, A-4198-05T1 DDS No. 23-2-7977 Judges Kestin and Graves July 17, 2007 Result: Judgment in favor of plaintiff affirmed. Facts/Background: Plaintiff was injured in an automobile accident on Aug. 12, 2002, when the car she was driving was struck from behind by a car driven by defendant. She was taken to the hospital after the accident. Medical Testing and Treatment: Emergency Room: Plaintiff was examined and X-rays were taken. Plaintiff was given a prescription for pain medication, told to stay home from work for three days, and told to see her doctor if her pain did not subside. Family physician: Plaintiff experienced “a lot of pain” in her neck, back, shoulders and knees. Her physician recommended that she stay home for three weeks, and he referred her to an orthopedic surgeon. Orthopedic surgeon: Dr. Rangala saw plaintiff on Aug. 22, 2002, and noted that she was experiencing “acute pain” and that, as a result, he was only able to perform a very limited, gentle exam. He recommended physical therapy, which plaintiff immediately began. Nevertheless, plaintiff reported on Sept. 23, 2002, that the pain in her neck had gotten worse, and was now radiating down her right arm. When plaintiff still complained of severe neck pain on Sept. 30, the doctor referred her for an MRI. Plaintiff continued with her physical therapy and last saw Dr. Rangala on April 10, 2003. In a report dated July 7, 2003, he described plaintiff’s prognosis as “poor,” due to the fact that, at the time of discharge from care, she still had significant symptoms and abnormal findings in the cervical spine and left ankle, despite the length of time since the accident, the physical therapy program, and her home exercise program. He opined that plaintiff was left with a permanent injury to her cervical spine and left ankle, which had been caused by the subject automobile accident. During a videotaped deposition that was played for the jury, Dr. Rangala testified that plaintiff’s MRI results (see below) revealed some disc degeneration and herniation, which were the cause of her neck pain. He also testified that her neck injuries were permanent and causally related to the accident. Physical therapy: Plaintiff pursued a course of physical therapy at the direction of her orthopedic surgeon. She also participated in a home exercise program. Radiology: On Oct. 4, 2002, a cervical MRI examination was performed, revealing a definite narrow spinal canal with superimposed disc disease at multiple levels. There were epidural defects due to disc herniation with spinal cord compression at multiple levels, including C3-C7. Osteophytic ridges and osteophytes at multiple levels were also noted. Defense expert: Dr. Bercik, an orthopedic surgeon, agreed that plaintiff’s MRI showed disc herniations at C2-3, C3-4, C4-5, C5-6 and C6-7; however, in his opinion, plaintiff’s disc herniations were a function of the aging process and were not causally related to the accident. He stated that degenerative changes usually caused signs of herniation at multiple levels, as plaintiff showed, whereas, with an accidental trauma, the disc herniation would usually be seen at one level, or maybe two. His opinion was that plaintiff had sustained a cervical sprain in the accident, superimposed on a pre-existing degenerative spondylosis (like an arthritis of the spine). Prior Injuries: None Trial Court Determination(s): Liability was stipulated, and the case was tried to a jury. The plaintiff’s expert testified by videotape, and the defense expert testified at trial. The judge charged the jury, under AICRA, that (1) plaintiff had to prove that she sustained a permanent injury as a result of the accident, within a reasonable degree of medical probability; and (2) a permanent injury was one which had not healed to function normally and would not heal to function normally with further medical treatment. In addition, over defendant’s objection, the judge told the jury that if it found that the accident was a substantial factor in causing a herniated disc in plaintiff’s cervical spine as claimed, then that was a permanent injury under the statute and she would be entitled to noneconomic damages. The jury found that plaintiff sustained an injury that was proximately caused by the accident. It awarded plaintiff compensatory damages of $75,000, and defendant appealed. Appellate Court Determination(s): On appeal, defendant argued that the trial court erred (1) in charging the jury that a herniated disc was a permanent injury as a matter of law for purposes of AICRA; and (2) in admitting into evidence photographs of the damage to plaintiff’s vehicle. The appellate panel affirmed, seeing neither error nor abuse of discretion by the trial court. With respect to the judge’s jury charge, the appellate panel noted that defendant’s expert did not dispute that plaintiff had disc herniations; nor did he dispute that a disc herniation was a permanent injury. Moreover, the existence of a herniated disc had been held to be sufficient to satisfy the verbal threshold in Pardo v. Dominquez. Thus, the jury charge that defendant objected to was proper, given the circumstances present in this case. Regarding the judge’s admission of photographs of the plaintiff’s vehicle, the panel noted that, even when liability is conceded, photographic evidence showing vehicular damage may be relevant to the nature, extent or seriousness of the injuries resulting from the accident. In closing, it cited the Supreme Court’s recent explanation in Brenman v. DeMello, that, “Juries are entitled to infer that which resides squarely in the center of everyday knowledge; the certainty of proportion, and the resulting recognition that slight force most often results in slight injury, and great force most often is accompanied by great injury.” 30. Vergara v. Reilly, A-3222-05T5 DDS No. 23-2-8122 Judges Kestin and Graves Aug. 1, 2007 Result: First trial judge’s post-judgment order granting plaintiff a full, second trial is reversed, and the matter remanded for a third trial on damages only. Facts/Background: Plaintiff sustained lower back and neck injuries on May 9, 2001, when the automobile he was driving was struck from behind by an automobile driven by defendant. Medical Testing and Treatment: Chiropractor: Plaintiff sought treatment with Dr. Gleason on May 11, 2001, complaining of severe neck and back pain, radiating into his extremities. After ordering MRI tests and reading the results, the doctor began a conservative course of treatment with plaintiff, which continued for 46 visits, through approximately Aug. 13, 2001. The doctor completed disability papers for plaintiff, indicating that plaintiff’s injuries were permanent and causally related to the subject automobile accident. Neurologists: Dr. Gleason referred plaintiff to Drs. Adams and Rothman for various NCV and EMG studies (see below). Pain Center: Dr. Halioua performed six epidural injection procedures on plaintiff’s neck and back on Aug. 8, 14, 21, 28, and Sept. 4 and 12, 2001. During those six procedures, at which time plaintiff was under general anesthesia, the doctor performed 46 trigger-point injections. These were not immediately effective, so the doctor recommended that plaintiff receive physical therapy. Physical therapy: Plaintiff went to 18 physical therapy sessions for his neck and back from Oct. 8 through Dec. 3, 2001. Radiology: MRI examinations were performed on May 12, 2001. The cervical test revealed disc bulges at C4-5 and C5-6. The lumbar study revealed a disc bulge at L4-5 and a central and right disc herniation at L5-S1. There were no indications of any degenerative changes on any of the MRI reports. The neurologists performed NCV and EMG tests on plaintiff, which indicated that he was experiencing C5-6 and S1 radiculopathies. Dr. Rothman also recommended a series of epidural injections in the cervical and lumbar spines, which plaintiff received. Insurance examination: Dr. Frank performed a PIP independent medical examination of plaintiff and causally related all of plaintiff’s injuries to the subject accident. He also opined that plaintiff required lower back surgery. Neurosurgeon: After his first course of epidural injections and physical therapy, plaintiff improved and felt better for 10 months to a year. He was able to return to most of his normal activities. However, he became worse in approximately November 2002, and consulted with Dr. Klempner, who diagnosed left lower extremity radiculopathy, causally related to the subject accident. On Oct. 10, 2003, Dr. Klempner performed a spinal fusion and diskectomy on plaintiff. He removed damaged discs at L4-5 and L5-S1 and inserted four bone growth cages and various hardware into plaintiff’s back during the eight-hour operation. The doctor completed paperwork for plaintiff’s subsequent six months of disability. Defense experts: Dr. Cohen examined plaintiff for the defendant, but found no permanent injury, diagnosing only sprain or strain. Dr. Traflet also testified for the defense, and found no permanent injury, but no details were provided. Prior Injuries: None Serious Impact on Plaintiff’s Life: In addition to the 10 months of disability, plaintiff complained of permanent scars of approximately 3-1/2″ and 5-1/2″ on his abdomen and lower back as a result of the surgery by Dr. Klempner. Also, the post-surgical X-rays vividly showed the hardware permanently installed during the surgery, which affixed the L4-5 and L5-S1 vertebrae together so that they could not bend, twist or rotate. In addition to curbing plaintiff’s motion, Dr. Klempner noted that the hardware placed additional stress on the upper levels of plaintiff’s spine. Trial Court Determination(s): Liability was stipulated and the case was tried to a jury, which found that plaintiff had sustained a permanent injury proximately caused by the accident, and the injury had a serious impact on his life. $30,000 was awarded to plaintiff for “pain and suffering, disability, loss of enjoyment of life, and impairment.” Plaintiff moved for a new trial on damages only, or, alternatively, additur. His attorney argued that, given his life expectancy of 39-plus years from the date of trial, the jury’s award broke down to less than $800 per year. The trial judge granted plaintiff’s motion for a new trial, finding that the verdict shocked his conscience. He concluded that the jury failed to appreciate the severity of plaintiff’s injury. Nevertheless, he refused to limit the new trial to damages only. At the second trial, the jury did not find that plaintiff sustained a permanent injury proximately caused by the accident. Therefore, plaintiff moved again for a new trial, but this motion was denied. Appellate Court Determination(s): The appellate court noted that, once a trial court determines that a new trial is warranted, the scope of the new trial depends on the nature of the injustice. Where the trial error affects liability, the new trial should encompass all issues. However, a new trial may be limited to damages where: (1) that is the only question with respect to which the verdict or judgment is wrong; (2) it is fairly separable from the other issues; and (3) the best interests of justice will be served by granting a partial new trial. In this case, the court found that the application of these principles compelled the conclusion that the first trial judge erred in including the issue of permanent injury in the scope of the new trial. Defendant never claimed that the jury’s assessment of damages influenced or tainted the “permanent injury” determination. In fact, during oral argument of plaintiff’s first motion for a new trial, defense counsel stated, “I don’t want to have to re-litigate the verbal issue all over again. That’s been decided.” Thus, the court was convinced that there was no valid reason to re-try the permanent injury issue because that issue had been fully and fairly tried and decided against defendant in plaintiff’s first trial. The court therefore reversed and remanded for a third trial limited only to damages. 31. Diaz v. Hidalgo, A-0178-06T2 DDS No. 23-2-8233 Judges Parrillo and Sapp-Peterson Aug. 14, 2007 Result: Jury verdict of no cause affirmed. Facts/Background: On April 7, 2003, plaintiff was stopped at a traffic light when she was rear-ended by a vehicle operated by defendant. She allegedly sustained injuries in her neck, chest and shoulders. Defendant noted, however, that, immediately after the accident, plaintiff stated that she was “fine.” Medical Testing and Treatment: Chiropractor: Fifteen days after the accident, plaintiff commenced treatment with Dr. D’Agostini. She treated with him for several months, but there was no evidence of further treatment with Dr. D’Agostini or anyone else after that time. Orthopedic surgeon: Dr. Wolkstein first examined plaintiff for her accident-related injuries in 2005, in anticipation of his testifying at trial, because Dr. D’Agostini had indicated he would be unavailable to testify. He stated that plaintiff’s neurological examination was “unremarkable” and he found no evidence of spasm. Defense expert: Dr. Bercik found no objective sign of injury and opined that plaintiff sustained a cervical sprain in the accident that was not permanent in nature. Prior Injuries: None Serious Impact on Plaintiff’s Life: There was conflicting evidence related to whether the injuries caused plaintiff to lose time from her job. In her deposition, plaintiff testified that, prior to the accident, she had last worked in 2002 at a bakery, but began working at a ShopRite in October 2003. At trial, however, she testified that she was, in fact, working at the ShopRite at the time of the accident, and was out for two weeks due to the injuries she sustained in the accident. However, plaintiff made no lost wage claim. Miscellaneous Issue(s): Whether the judge properly issued a Clawans adverse inference charge because Dr. D’Agostini was not called as a witness by plaintiff. Trial Court Determination(s): The case was tried over three days. Plaintiff did not produce her treating chiropractor, Dr. D’Agostini, as a witness; she produced only Dr. Wolkstein. The trial judge ruled that neither party could comment about Dr. D’Agostini’s non-appearance in their opening statements. Just prior to Dr. Wolkstein’s testimony, plaintiff’s counsel requested permission to elicit from the doctor the fact that plaintiff was examined at his request because Dr. D’Agostini was unavailable to come to court. Defense counsel objected on hearsay grounds, and the judge agreed, but also advised defense counsel that he would not be permitted to comment on the doctor’s nonappearance in his summation. Two days later, after plaintiff had rested, and during the defense case, the judge conducted a charge conference during which she reversed her earlier ruling. She discussed whether giving an adverse inference “ Clawans” charge was appropriate as to Dr. D’Agostini and St. George Chiropractic. She found it was not appropriate as to St. George because plaintiff only treated there for two weeks, and the testimony of that entity would not have been superior to the testimony produced in court. The judge made a different analysis with respect to the testimony of Dr. D’Agostini, however, and gave the charge with respect to him. At the end of the trial, the jury, by a seven-to-one vote, found defendant one 100 percent liable for the accident. However, it also unanimously found that plaintiff failed to prove that she had sustained a permanent injury in the accident. Therefore, a judgment was entered in favor of defendant on the jury’s no-cause verdict. Appellate Court Determination(s): On appeal, the plaintiff claimed that the trial court erred when it (1) permitted defense counsel to argue that the jury should draw an adverse inference from the non-appearance of plaintiff’s treating physician and charged the jury on the doctor’s non-appearance; (2) permitted defendant to re-open his case to present proof that he was operating a passenger vehicle; and (3) limited plaintiff’s ability to demonstrate the extent of the defense expert’s bias and prejudice, evidenced by his personal relationship with defense counsel’s firm. The panel reviewed the law on the Clawans charge, noting that a judge, in considering whether an adverse inference instruction should be given, should determine whether: (1) the uncalled witness was peculiarly within the control or power of only the one party, or whether there was a special relationship between the party and the witness, or the party had superior knowledge of the identity of the witness or of the testimony the witness might be expected to give; (2) the witness was available to that party both practically and physically; (3) the testimony of the uncalled witness would elucidate relevant and critical facts in issue; and (4) such testimony appeared to be superior to that already utilized in respect to the facts to be proven. Applying the legal factors to this case, the panel noted that Dr. D’Agostini was plaintiff’s treating physician, whose treatment began shortly after the accident, as distinguished from Dr. Wolkstein, who was produced solely as an expert witness for trial and who examined plaintiff for the first time two year post-accident. Thus, Dr. D’Agostini was the witness that one would expect to be called on plaintiff’s behalf. As a fact witness, Dr. D’Agostini was equally available to both plaintiff and defendant. Ordinarily, that would suffice to negate an adverse inference argument or instruction. Here, however, the panel noted the additional factor of the judge’s sua sponte reversal of her earlier ruling after plaintiff presented her case. This ruling left plaintiff’s counsel unable, during the brief 15-minute recess the court afforded, to obtain the doctor’s presence or to make arrangements for his presence. Thus, plaintiff was placed at unfair advantage. The panel therefore concluded that the trial judge erred in permitting the adverse inference argument by the defendant and also in giving an adverse inference instruction. Nevertheless, the panel went on to find this error harmless. The panel noted further that plaintiff’s proofs of permanent injury could not be characterized as strong. She did not seek medical treatment after the accident until over two weeks had passed. Then, she treated with only one doctor, Dr. D’Agostini, and treated with him only for several months with no evidence of further treatment. When she was examined on the one occasion by Dr. Wolkstein, he found no spasm and no objective evidence of injury. Likewise, the defense doctor found no evidence of injury. As to the effect of the accident on plaintiff’s life, the panel pointed out the discrepancy in plaintiff’s testimony regarding loss of time from employment. Thus, in the panel’s view, the evidence that plaintiff’s injuries were not permanent, within the meaning of AICRA, was compelling. Therefore, any trial error regarding the adverse inference with respect to Dr. D’Agostini’s nonappearance was not capable of producing an unjust result. With respect to plaintiff’s other assertions on appeal, the panel noted first that the trial judge was well within her discretion to permit defendant to reopen the case to establish that he was operating a private passenger vehicle, a fact that was never in dispute prior to trial. With respect to Dr. Bercik, the trial court permitted plaintiff’s counsel to elicit testimony from him that disclosed that defense counsel’s law firm personally represented him on two occasions. Further, the jury was instructed to consider the reason for the doctor’s testimony, including any interest he had in the outcome of the case. Thus, the jury was aware that, as a part of its assessment of Dr. Bercik’s credibility, it could consider his relationship with the defense firm, and no error occurred. The appellate panel therefore affirmed the judgment based on the jury’s verdict of no cause. 32. Morel v. Patel, A-2279-06T2 DDS No. 23-2-8484 Judges Rodriguez and Parrillo Sept. 17, 2007 Result: Summary judgment in favor of all defendants affirmed. Facts/Background: The claims in this case arose out of a four-vehicle accident which occurred on Route 280 West in Orange on March 23, 2004. Plaintiff was stopped in traffic when his vehicle was struck from the rear by the defendant Patel’s vehicle, which was struck from the rear by the defendant Cecere’s vehicle. The defendant Joseph’s vehicle was the fourth car in line. She reported that the collision between the first three cars had already occurred when she came upon the scene, but she was unable to stop her car in time to avoid striking the Cecere car. Medical Testing and Treatment: Rehabilitation Center: Plaintiff did not seek medical treatment immediately after the accident, but went the next day to a rehabilitation center, complaining of lower back, neck, right shoulder and right knee pain and discomfort. He thereafter underwent a program of progressive of physical therapy at the rehabilitation center until June 2004, about nine weeks after the accident. Orthopedic surgeon: Dr. Ahmad reported pain and limitations of motion based on plaintiff’s subjective complaints. He also observed that plaintiff’s cervical and lumbar spines were spastic. He referred to the MRI reports (see below), noting that they revealed degenerative changes of the right shoulder and a tear of the quadriceps of the right knee. His diagnoses were: cephalgia; spinal sprain; sprain and injury of the right shoulder and right knee; tear of quadriceps tendon of right knee; and arthritis and myositis. He also opined that these were significant and permanent injuries, and causally related them to the subject accident. Psychiatrist: Dr. Latimer reported that plaintiff complained of physical pain and feelings of anxiety. He opined that plaintiff suffered from permanent “depression” and “pain.” Radiology: X-rays of plaintiff’s lumbar and cervical spine, his right shoulder, and right knee were taken two weeks after the accident. All X-rays revealed normal findings. MRI tests on plaintiff’s right shoulder and knee were performed six months post-accident. The shoulder MRI revealed degenerative findings with some associated bone edema possibly related to trauma. The right knee MRI revealed findings compatible with tendon sprain or intra-substance tear. Prior Injuries: None Trial Court Determination(s): In granting the defendants’ summary judgment motions, the judge found that the reports of plaintiff’s medical experts were insufficient to overcome the verbal threshold because they were “net” opinions. While the injuries were labeled as “permanent,” the judge noted that some of the injuries encompassed by that statement were not permanent by the treating doctor’s own reports. Moreover, the reports did not address specifically which injuries were permanent. The other problem was with respect to causation. Appellate Court Determination(s): Plaintiff argued that Dr. Ahmad’s report was not a “net” opinion, and that he should have been given the appropriate favorable inferences. The appellate panel disagreed and affirmed, noting that Dr. Ahmad’s opinion that plaintiff sustained permanent injuries was unsupported by the MRI reports. As for his finding that plaintiff suffered from restricted ranges of motion, the panel noted that these were not objective tests, but based on plaintiff’s subjective complaints. While spasm was an objective finding, it could not, by itself, defeat a summary judgment application. Spasm itself was not generally a permanent condition, nor was it, by its nature, indicative of a permanent condition. Rather, it was generally a temporary problem. As a result of the failure of plaintiff’s proofs, the appellate panel affirmed the grant of summary judgment to the defendants. 33. Jefferson v. Muscarella, A-5146-05T2 DDS No. 23-2-8578 Judges Collester and Sabatino Sept. 28, 2007 Result: Summary judgment in favor of defendant reversed. Facts/Background: The plaintiff allegedly sustained injuries to his back and neck in the automobile accident on July 29, 2002. According to the police report, plaintiff was seated in his parked car when it was struck by an automobile driven by defendant, who admitted he was talking on his car phone at the time. Plaintiff was taken to the hospital from the scene by ambulance. Medical Testing and Treatment: Emergency Room: Plaintiff was treated and released. No details were provided. Family physician: Plaintiff went to his personal physician two days after the accident, complaining of pain in his back, neck and leg, and he was referred to a chiropractor. Chiropractor: Dr. Corey noted that plaintiff experienced pain and spasm in both his cervical and lumbosacral regions. He treated plaintiff with manual manipulation, hydrotherapy and electrical stimulation therapy once a week for approximately four to five months. He also prescribed Percocet for pain. In a report dated Jan. 22, 2004, Dr. Corey stated that plaintiff had sustained acute and severe traumatic sprains or strains to the cervical and lumbar spine with resistant radiculopathy, as well as permanent disc damage. These injuries were accompanied by ligamentous instability, myositis and localized evidence of nerve root irritation. The ligament and muscle tissue appeared myositic and displayed chronic spasm. He also repeated the MRI findings, word for word, in his report (see below). Dr. Corey explained that plaintiff’s injuries were permanent because soft tissue injuries healed with scar tissue, which was neither as elastic, nor as resilient as its undamaged counterparts. In all medical certainty, the doctor opined that plaintiff would suffer serious and acute flare-ups of his conditions, possibly requiring disc herniation surgery in the future. He indicated that he discussed the option with plaintiff, who would consider it if the pain became unbearable. However, for the present, he recommended conservative treatment, including home exercise programs and chiropractic care. Dr. Corey’s prognosis for plaintiff was poor. He stated that, because plaintiff suffered a significant limitation of the use of his cervical spine and lower back, he would have difficulty performing his usual daily activities and job requirements without pain. There would also be permanent weakness in the areas of injury. The doctor causally related the injuries to the trauma of the subject automobile accident. Radiology: While he was undergoing treatment by Dr. Corey, plaintiff underwent a nerve conduction study by needle electromyography performed by Dr. Hernandez. The doctor’s report indicated bilateral lumbar radiculopathy at the L5 level and bilateral upper dorsal radiculopathy. Plaintiff also had MRI studies performed on Aug. 3, 2002. The report from Dr. Conte, the radiologist, stated that the cervical spine showed varying degrees of diminished signal intensity of the discs throughout the spine, resulting from a slight degree of intrinsic disc desiccation. The doctor also noted a slight straightening of the normal lordotic curvature, suggestive of muscle spasm and cervical myalgia. The lumbar MRI showed posterior disc herniation at L4-5, and straightening of the normal lordotic curvature, suggestive of muscle spasm and lumbar myalgia. As to both studies, the doctor stated that correlation with the patient’s clinical status was required to determine the significance of these findings. Prior Injuries: None Serious Impact on Plaintiff’s Life: Plaintiff did not return to work until six months after the accident. Trial Court Determination(s): The motion judge granted summary judgment to defendant. In reviewing the MRI and electrodiagnostic tests, the judge stated that, although the impressions were of bilateral lumbar radiculopathy at L5-S1 and “R/O bilateral upper dorsal radiculopathy,” the reports of these tests did not address either permanency or causation. This was left to Dr. Corey; and the judge was extremely critical of his report. The judge found Dr. Corey’s report to be replete with errors and contradictory of the facts stated by plaintiff in his deposition. He also indicated that the diagnosis was “all over the place.” The judge concluded that Dr. Corey’s report was a net opinion. While the doctor used the word “permanency all over the place,” he did not say what the permanent conditions were, just mentioning that soft tissue injuries healed with scar tissue which was not elastic. Additionally, while the doctor mentioned that plaintiff might need surgery in the future, the judge noted that he was not sure the doctor, a chiropractor, was competent to opine as to whether plaintiff’s injuries could be fixed by surgery. Further, if the injuries could be fixed by surgery, then the judge indicated that they wouldn’t be permanent. Finally, the judge felt the opinion was “net” on the issue of causation. Appellate Court Determination(s): Reversed. The appellate panel agreed with the motion judge that Dr. Corey’s report was hardly a model. Certainly, it was redundant in repeating the radiologist’s findings word for word, including the phrase “clinical correlation is needed,” without explicitly doing the correlation. However, the panel noted that the report did recite numerous abnormal findings from the doctor’s clinical examination that were confirmed by the MRI and electrodiagnostic tests to justify his opinion of a permanent injury caused by the accident. Accordingly, the panel disagreed with the conclusion of the motion judge that Dr. Corey’s report constituted a net opinion. The persuasiveness and quality of the opinion were still, of course, subject to cross-examination at trial, and Dr. Corey’s opinion might still be excluded as a net opinion if he failed to make the connections necessary to substantiate his opinion. Nevertheless, plaintiff produced sufficient evidence to survive summary judgment. 34. Ahmed v. Hunt, A-5913-05T2 DDS No. 23-2-8770 Judges Collester and Miniman Oct. 23, 2007 Result: The denial of plaintiff’s motion for a new trial, and entry of judgment in favor of defendant, based on no-cause verdict, both reversed. Facts/Background: The plaintiff sustained injuries in a motor vehicle accident that took place on Sept. 11, 2002. Medical Testing and Treatment: The plaintiff was ultimately diagnosed as having two herniated lumbar discs with radicular pain. The following medical records were discussed in the opinion: Ambulance and emergency room: mentioned, but no details given Physical therapy: records of Health South for the periods from Oct. 3 to Dec. 19, 2002, and Aug. 28 to Sept. 18, 2003. Dr. Singh: gave plaintiff facet injections on Feb. 20, 2006, and treated plaintiff from April 15 to Oct. 3, 2005. Dr. Zuck: treated plaintiff from Dec. 28, 2001, to June 22, 2002 (for pre-accident injury). Radiology: Report of MRI of lumbar spine dated July 22, 2003; EMG report, dated July 21, 2003; and cervical MRI report dated Oct. 4, 2005. Prior Injuries: Plaintiff sustained a prior, undefined injury in 2001, and apparently was treated by Dr. Zuck. He offered Dr. Zuck’s records from 2001 and 2002 to counter the defendant’s argument that his current complaints were attributable to the prior injury. Miscellaneous Issue(s): Main issue was whether the trial judge erred in excluding plaintiff’s medical records from evidence. Trial Court Determination(s): As required by the court rules, the parties exchanged their pretrial information in May 2006. Plaintiff specifically listed all exhibits to be offered in his case in chief and pre-marked them for identification. Defendant also listed all exhibits to be offered in her defense. Neither side objected to the exhibits of the other, although such objections were to be made no later than two days prior to trial. The case was reached for trial on May 22, 2006, and the jury was selected. On May 23, the parties presented several in limine motions. Although defendant raised a number of issues, including an objection to a chart reflecting dates of treatment, she did not indicate any objections to the pre-marked medical records that had been identified in plaintiff’s pretrial information exchange. During trial some of the pre-marked medical records were identified on the record, and were used in examining the experts. Other records were generally discussed with the experts, but were not shown to the witnesses or identified on the record by exhibit number. Defendant again raised no objections to any of the records, except with respect to the recommendations Dr. Singh made to plaintiff. The objection here was that Dr. Singh was not going to testify. Plaintiff’s counsel immediately rephrased the pertinent question prior to a ruling from the judge. At the close of plaintiff’s case in chief, defense counsel, during a colloquy with the judge, suggested that, “whatever legal stuff we have to do between plaintiff’s case and [ours], we can hold it in abeyance until [our] case is done.” The judge concurred and plaintiff’s counsel stated that he had marked numerous exhibits, and inquired if he was “resting, subject to putting in [his] exhibits.” The judge agreed, and told the attorneys during the lunch break to determine which exhibits they could agree on, and he would then rule on those on which there was a disagreement. After the break, plaintiff’s counsel advised the judge that defendant objected to the admission of all of the medical records, except the ambulance and emergency room records. He acknowledged that he understood the issue of trying to import a diagnosis from another doctor into a trial when that doctor had not testified, but then argued that the real question was whether the records were trustworthy. Although finding the records trustworthy, the trial judge remarked that his concern was with the fact that there would be no opportunity to cross-examine if such a report were admitted. He also felt that to place in evidence the report of a doctor who did not testify would place undue influence upon that report, which he didn’t think the jury “should be able to peruse.” He noted that he could tell the jury until he was “blue in the face” what they ought to consider the evidence for, but once the evidence went into the “box” of accepted evidence, it was fair game and the jury could use it any way they wanted to. Plaintiff then argued that the records were being offered to prove that he had complaints of pain and received treatment throughout a significant period of time. The judge responded that there were other ways that this could be done. He concluded that everything but the ambulance and emergency room records should be excluded. Plaintiffs then declined to proffer the latter records, expressing concern about undue emphasis being placed thereon in the absence of the remaining medical records. The jury returned a verdict on liability, apportioning 70 percent of the fault to defendant, but concluded that plaintiff did not prove that he sustained a permanent injury in the accident. On June 9, 2006, the judge entered an order of dismissal with prejudice based upon the no cause verdict, and plaintiff unsuccessfully filed a motion for a new trial. Appellate Court Determination(s): Plaintiff argued that the excluded medical evidence should have been admitted as exceptions to hearsay under N.J. Evidence Rules 803(c)(3), (4), (6) and 808. He claimed that the trial judge failed to apply the proper test to analyze the admissibility of the records. The appellate court noted that plaintiff’s pretrial information exchange listed all of his medical records (see above) except for the records of Dr. Zuck, which pertained to a prior injury. Some or all of the three medical experts who testified at trial discussed all of the records and test reports. None of the MRI or EMG findings were disputed by the defense expert. The court then discussed the exceptions to the hearsay bar for records of regularly conducted activities, and concluded that, having found that the records were trustworthy, the trial judge should have found that they were generally admissible because they clearly fell within the scope of N.J.R.E. 803(c)(6). While medical opinions in hospital records should not be admitted under the business records exception where the opponent will be deprived of an opportunity to cross-examine the declarant on a critical issue � such as the basis for the diagnosis or cause of the condition in question � the court found that the judge here never made such a determination; nor did he review the records to determine under N.J.R.E. 805 whether any included statements were admissible under another exception to the hearsay rule, such as 803(c)(3) and (4), or whether the included statements were inadmissible and should be redacted, as required for opinions on the cause of an injury. While the court agreed with the defendant’s argument that the trial court nonetheless has discretion to exclude evidence under N.J.R.E. 403, it found that proposition inapplicable here, where the trial judge did not even purport to exercise such discretion. Rather, he excluded all of the medical records and reports merely because the doctors did not appear and testify. The appellate court found that this was error. The court was further satisfied that plaintiff was prejudiced as a result of this unexpected exclusion of his evidence. Defendant had failed to comply with the requirement that she notify plaintiff two days prior to trial of any objections to admission of the exhibits listed in plaintiff’s pretrial information exchange. This failure was never corrected at any time. Even before plaintiff rested his case, defendant’s colloquy with the judge did not include any alert that an objection would be forthcoming to the admission of the medical records. Defendant then presented her defense and rested. It was not until the ensuing break for lunch after the conclusion of the cases of both parties that defendant, for the first time, apprised plaintiff of her objection. Such timing completely prejudiced the plaintiff’s ability to respond fully to the objections by submitting a letter brief or, as appropriate, calling additional witnesses. Further, the unexpected exclusion of the majority of his medical evidence certainly prejudiced plaintiff’s ability to document the objective evidence of permanent injury in order to secure a verdict in his favor. The appellate court noted that the requirement of notice of objection to exhibits listed in a pre-trial information exchange is intended to eliminate surprise in the trial so that cases may be decided on their merits and not on the skill and maneuvering of counsel. The matter was therefore reversed and remanded for a new trial on plaintiff’s injuries and resulting damages. 35. Edwards v. Walsh, A-0401-06T3 DDS No. 23-2-8781 Judges Wefing, Parker and Coleman Oct. 24, 2007 Result: Judgment in favor of plaintiff, based on jury verdict, affirmed. Facts/Background: The accident in this case occurred on Nov. 20, 2001. Plaintiff was taken to the emergency room after the accident. Medical Testing and Treatment: Emergency Room: Plaintiff presented with complaints of pain in the left ankle and lower back, an abrasion to the right wrist, and bruises. All of these injuries apparently resolved after the accident. Plaintiff did not complain of any pain in her neck in the emergency room. Doctor Purcell: On the day after the accident, plaintiff stated that she began to feel pain in her neck, and went to see Dr. Purcell, who prescribed a muscle relaxant. He referred plaintiff to an orthopedic surgeon. Orthopedic surgeon: Dr. Rudman examined plaintiff and prescribed physical therapy. Plaintiff continued to see Dr. Rudman, but developed pain radiating down her right arm, along with a “dead” feeling in the arm, as well as still-persistent neck pain. Physical therapy: Plaintiff pursued a course of physical therapy for a total of 12 weeks beginning in December 2001. Radiology: An open cervical MRI examination was performed on Apr. 26, 2002, which showed a paracentral disc herniation in contact with the spinal cord at C5-6. An X-ray was taken on Oct. 30, 2002, which showed degenerative disc disease at C4-5, C5-6 and C6-7. Another MRI, this time in a closed machine, was performed in April 2004, and it showed a large right paracentral disc protrusion C5-6 causing displacement of the right side of the cervical cord. Dr. Nachwalter: Plaintiff saw Dr. Nachwalter, who acknowledged the cervical disc herniation shown on the MRI. He diagnosed plaintiff with cervical whiplash. He also referenced the degenerative findings on the X-rays. Complaining of persistent neck pain, plaintiff saw Dr. Nachwalter again on Nov. 4, 2002. In addition to the diagnosis of cervical whiplash, the doctor added cervical spondylosis. He did not refer to the disc herniation in his report of this visit, because plaintiff had no radicular symptoms of numbness radiating into her arms. Plaintiff continued to see the doctor, along with Dr. Rudman, but, as indicated above, she developed radiating pain and a dead feeling in her right arm, in addition to her persistent neck pain. After another MRI in April of 2004, Dr. Nachwalter opined that disc herniation had been asymptomatic from the time of the accident until the radicular symptoms began in 2004. Plaintiff last saw the doctor on June 17, 2004, at which time she was still complaining of neck pain, with numbness and tingling in her right arm. His final diagnosis was cervical disc herniation at C5-6, and cervical whiplash, which he attributed to the accident. He stated that her prognosis was good, however. Expert orthopedic surgeon: Plaintiff retained Dr. Tiger to testify as an expert on her behalf. He first saw plaintiff on Nov. 18, 2002, and diagnosed her with a disc herniation at C5-6 and right-sided radiculopathy. He saw plaintiff again on Oct. 29, 2004, and Dec. 30, 2005. He reviewed the April 2004 MRI and testified that it showed a significant disc herniation at C5-6 which indented or pushed into the spinal cord. He opined that this herniation was caused by the accident, and disagreed with Dr. Nachwalter’s opinion that radiating symptoms had not occurred until 2004. He also disagreed with Dr. Nachwalter’s finding that there was degenerative disc disease in plaintiff’s cervical spine and testified that, even if there was, it had nothing to do with the C5-6 herniation. Defense expert: Dr. DeLuca, also an orthopedic surgeon, agreed with both of plaintiff’s experts that there was a disc herniation at C5-6. In his opinion, however, it was not a result of the accident, but was degenerative in nature. Prior Injuries: Plaintiff specifically denied any pre-existing injuries. Trial Court Determination(s): Defendant conceded liability and the matter was tried to a jury on the issues of proximate cause, the verbal threshold, and damages. Dr. Nachwalter testified for plaintiff via his videotaped de bene esse deposition, and Dr. Tiger testified as set forth above. Dr. DeLuca testified for the defense. The jury found in favor of plaintiff and awarded her and her husband a total of $289,216.71. Defendant unsuccessfully moved for a new trial or remittitur. Plaintiff cross-moved successfully for an additional $1,250 in costs and fees, and defendant appealed. Appellate Court Determination(s): On appeal, defendant argued that (1) the trial court erred in denying his motion for a directed verdict; (2) the jury award was against the weight of the evidence in light of the divided and contradictory medical evidence; and (3) the trial court erred in charging the jury with aggravation of a pre-existing injury. The appellate panel disagreed and affirmed the judgment for plaintiff. As to defendant’s first two points, the panel noted that both MRIs confirmed, and all of the experts agreed, that plaintiff had a herniated disc which was permanent. What they disagreed on was the cause, i.e., the accident or degenerative disease. Defendant argued that, because plaintiff’s two experts themselves took divergent views on that issue, the trial court should have directed a verdict in his favor. The panel disagreed, noting that the evidence was clearly sufficient to submit the matter to the jury. Although plaintiff’s experts differed in their opinion as to whether there was pre-existing degenerative disc disease and whether the disc herniation at C5-6 was asymptomatic from the time of the accident until January or February 2004, they agreed, however, on the critical points � that the herniation was significant; that it worsened with time; and that it was caused by the accident. Thus, there was no difference in plaintiff’s experts’ opinions as to the significant issues � the injury, its permanence, or its being caused by the accident. Therefore, defendant’s directed verdict motion was properly denied, and the verdict was not against the weight of the evidence. The panel also found no merit in the defendant’s argument that, because plaintiff provided no evidence to support aggravation of a pre-existing injury, the trial judge erred in charging the jury on aggravation. The panel pointed out that, although plaintiff did not raise the issue in her direct case � indeed, she denied any pre-existing injury � defense counsel had raised the issue in his cross-examination of Dr. Nachwalter, and in Dr. DeLuca’s testimony. When defendant objected, during the charge conference, to charging the jury on aggravation of a pre-existing condition, the trial judge correctly noted that defendant was the one who “put it into play.” Setting forth the judge’s charge on this issue in full, the panel found no error in it. 36. Miller v. Hill, A-2172-06T2 DDS No. 23-2-8811 Judges Lintner and Sabatino Oct. 26, 2007 Result: Summary judgment in favor of defendant affirmed. Facts/Background: Plaintiff was involved in an intersectional collision with defendant on Oct. 11, 2002. Medical Testing and Treatment: Emergency Room: Following the accident, plaintiff was taken to the hospital, where he received emergency treatment, although no details were provided. Chiropractor: Four days post-accident, plaintiff sought treatment with Dr. Wittig, complaining of thoracic, lumbar, neck and jaw pain. He also complained of a headache and radiating pain in his right trapezius muscle. Dr. Wittig treated plaintiff until Jan. 15, 2003, after which plaintiff commenced physical therapy. When the physical therapy treatments were not successful, plaintiff returned to Dr. Wittig, complaining that his pain had not gone away and that nothing seemed to help his low back pain. At that time, Dr. Wittig noted that plaintiff had normal range of motion in his lumbar spine, but with end point tenderness. He also found spasm and tenderness over the right and left lumbar paraspinal muscles. After the MRI test in May 2004 (see below), Dr. Wittig diagnosed plaintiff with chronic thoracic and low back pain with spasm and lumbar disc bulging. He reported that plaintiff’s condition had developed into a chronic back condition, and he opined that plaintiff would continue to experience periodic exacerbation of symptoms and would require occasional treatments to relieve these flare-ups. Physical therapy: Plaintiff pursued a course of physical therapy unsuccessfully, but no details were provided. Orthopedic surgeon: On May 24, 2004, Dr. Tiger reviewed a copy of plaintiff’s MRI, and reported that it showed some muscle spasm in his lower back and a mild bulging disc at L5-S1. He indicated, however, that there was nothing further that he could do for the plaintiff with respect to these findings. He did recommend that plaintiff continue with chiropractic care as long as it gave him relief. Defense expert: Plaintiff was examined by Dr. Levine, an orthopedist, for the defense. He found that plaintiff’s MRI showed nothing clinically significant and nothing post-traumatic that could be related to the motor vehicle accident. Although he noted plaintiff’s symptoms and subjective findings, he concluded that there was no objective evidence of injuries from the accident. His opinion remained unchanged after reviewing the emergency room report. Radiology: Plaintiff underwent an MRI examination on May 7, 2004. It revealed a mild posterior bulging of L5-S1 and straightening of the lordotic curve. Prior Injuries: None Physician’s certification: Plaintiff did not supply one, as required. Trial Court Determination(s): The motion judge granted defendant’s summary judgment motion without a hearing. On the order memorializing his decision, the judge hand wrote, “No objective medical evidence linking the bulging disc to the accident. Moreover, bulge not considered permanent injury.” Appellate Court Determination(s): The plaintiff argued on appeal that, despite treatment, he had not obtained any relief from his complaints, and therefore his injuries had had a serious impact on his life sufficient to meet the verbal threshold. The appellate panel pointed out the Supreme Court’s DiProspero and Serrano opinions, and their removal of the “serious impact” requirement from verbal threshold cases, but further noted that the statute still required proof of accidental injury by objective medical evidence. The panel’s careful review of plaintiff’s proofs regarding causal relationship and permanency caused it to concur with the motion judge’s conclusion that they were inadequate to defeat summary judgment. The record was devoid of any specific objective medical evidence supporting the conclusion that the mild bulging disc found on the MRI one-and-one-half years post-accident was either permanent or caused by the accident. The judges noted that a plaintiff must do more than provide a medical report that bombards the reader with general phrases such as “chronic back condition” and “periodic exacerbation of symptoms” without relating them to the accident and providing an objective explanation of permanency in terms of the body’s failure to heal to function normally. The diagnosis of mild posterior disc bulging at L5-S1, without more, implicated a pre-existing degenerative condition. There was neither a meaningful objective conclusion nor even a suggestion of a nexus between plaintiff’s back condition and the automobile accident. The panel further noted AICRA’s requirement of a physician’s certification to opine as to those issues, and further noted that plaintiff did not file one in this case. While the panel did not deprecate the seriousness of plaintiff’s condition and his subsequent discomfort, it was not persuaded that his medical reports met the magnitude of proof necessary under the surviving Oswin objective medical evidence standard announced in both DiProspero and Serrano to vault the limited lawsuit option. The judges felt that it should not be difficult to obtain a timely report from a doctor providing information concerning permanency and the causal relationship of specific positive findings on an MRI following an accident, if such a diagnosis could be made. Plaintiff’s failure to do so � indeed, his failure to obtain the required physician’s certification within the one-and-one-half year interval that elapsed between the filing of the defendant’s answer and motion for summary judgment � suggested to the panel an inability to obtain the necessary objective medical proof that he suffered a permanent injury causally related to the accident. In affirming the grant of summary judgment to the defendant, the panel also summarily rejected plaintiff’s additional contention that he should have been accorded additional discovery time to develop his medical proofs. 37. Donnelly v. Foster, A-3327-06T1 DDS No. 23-2-8841 Judges Wefing and Parker Oct. 31, 2007 Result: Judgment awarding plaintiff medical expenses, but denying his claims for noneconomic loss, affirmed. Facts/Background: Plaintiff moved to N.J. less than a month before the accident in this case. His car was registered in Georgia, where he previously lived. The Georgia insurance on the car had lapsed for nonpayment of the premium. Plaintiff was living with his parents in New Jersey, but claimed that he intended to return to Georgia, although he had not retained a residence or address there. In fact, he had found employment and was working in New Jersey at the time of the accident. At the time of the subject accident on Sept. 26, 2001, plaintiff was operating a motorcycle and was struck by defendant at an intersection when defendant ran a red light. Automobile insurance coverage was provided to plaintiff under his father’s policy, which was subject to the verbal threshold. Medical Testing and Treatment: Not detailed. Prior Injuries: None mentioned Miscellaneous Issue(s): Coverage issue Trial Court Determination(s): The trial judge ruled that plaintiff was subject to the verbal threshold. The jury awarded plaintiff medical expenses, but denied his claims for noneconomic losses, finding that he failed to meet the threshold requirements for such damages. Appellate Court Determination(s): Plaintiff argued that the motor vehicle regulations did not require him to register his car in New Jersey until he had lived in the state for 60 days. Since he had been in the state for fewer than 30 days, he maintained he had no obligation to register the car here. The appellate panel pointed out that plaintiff’s argument did not address the insurance issue. Since his Georgia insurance had lapsed, he was uninsured at the time of the accident, but for the coverage under his father’s policy. An immediate family member covered under an insurance policy cannot argue that he is covered by certain provisions thereof � such as PIP � but not others � such as the verbal threshold. Therefore, since plaintiff was covered under his father’s policy for PIP purposes, he was subject to its verbal threshold limitations as well. The judgment was affirmed. 38. Evenson v. Sawlani, A-1347-06T5 DDS No. 23-2-8910 Judges Stern and Fisher Nov. 9, 2007 Result: Judgment in favor of defendant reversed. Facts/Background: The infant plaintiff was a back-seat passenger in the December 2002 accident. He allegedly struck the back of the front seat upon impact, injuring his right knee and ankle. Medical Testing and Treatment: Emergency room: X-rays were taken of the plaintiff’s right ankle, which showed no abnormalities, and the discharge diagnosis was “sprained ankle.” Pediatrician: The infant plaintiff went to his pediatrician, Dr. Knowles, who, in July 2005, noted “objective findings of notably marked decrease in the patient’s ability to bend his great toe and second toe.” Plaintiff was also noted as being unable to raise his heel from the floor on the right side; and suffering joint pain, morning stiffness and decreased range of motion. As a result, Dr. Knowles opined that plaintiff had contracted juvenile arthritis and referred him to a pediatric rheumatologist. An associate of Dr. Knowles, Dr. Katz, issued a letter report on Feb. 6, 2006, which, inter alia, causally related plaintiff’s injuries to the accident. Pediatric rheumatologist: Dr. Kimura, Chief of Pediatric Rheumatology at Children’s Hospital at the Hackensack University Medical Center, saw plaintiff and, in August 2005, diagnosed him with juvenile arthritis, supposedly caused by plaintiff’s impact with the back of the front seat in the collision. Dr. Kimura observed swelling of plaintiff’s right knee and toes, and tenderness in his ankles with decreased range of motion. On Jan. 16, 2006, the doctor again found “active swelling” of plaintiff’s right knee and toes associated with pain and decreased range of motion. He also issued a report on Feb. 24, 2006, which presumably, from the court’s opinion, contained similar findings and conclusions. Pediatric orthopedic surgeon: In May 2003, plaintiff saw Dr. Altongy, who rendered an “impression” (details not provided) and recommended more time for recovery. Radiology: X-rays of the infant plaintiff’s right ankle taken in Dec. 2002 reflected no evidence of osseous or articular abnormality. No other objective tests were performed. Prior Injuries: None Trial Court Determination(s): The trial judge found that the infant plaintiff’s injuries were not permanent within the meaning of the verbal threshold statute, noting that range of motion tests ordinarily did not suffice to establish a permanent injury. Further, no evidence, aside from plaintiff’s subjective complaints of pain and morning stiffness, was presented to show that his ankle would neither heal nor function normally in the future with further medical treatment. The judge noted that the X-rays of plaintiff’s right ankle did not reveal any abnormalities, and no other objective tests were performed. She stressed finally that the fact that Dr. Knowles characterized his findings as “objective” did not make them so. Appellate Court Determination(s): Plaintiff asserted that he submitted proof by objective, credible medical evidence of swelling in conjunction with range of motion restrictions, and that the motion judge erred in holding that he did not suffer a permanent injury, despite a finding of permanency by his treating physician. He re-asserted his claim to have developed juvenile arthritis after the collision. The appellate panel did find some merit in the trial judge’s view, especially with respect to the absence of any objective test to support the diagnosis of arthritis or any permanent injury. However, the panel noted that Oswin included swelling as objective evidence of injury. The panel felt that this finding, together with the Jan. 18 and Feb. 24, 2006, reports of Dr. Kimura, were sufficient to present a factual dispute on permanency adequate to survive summary judgment. The panel also found that Dr. Kimura’s report sufficiently related plaintiff’s condition to the accident, as did the Feb. 6, 2006, letter of Dr. Knowles’s associate, Dr. Katz. While the judges agreed with the motion judge that the fact that a doctor says evidence is objective is not dispositive, it nevertheless felt that, based on Dr. Kimura’s reports and the language of Oswin about swelling, the grant of summary judgment should be reversed. 39. Clarke v. Piscopo, Jr., A-1157-06T5 DDS No. 23-2-8911 Judges Axelrad and Payne Nov. 9, 2007 Result: Judgment in plaintiff’s favor, and denial of her motion for a new trial, both affirmed. Facts/Background: The 42-year-old plaintiff allegedly sustained permanent injuries to her neck, back and shoulders when defendant, who was traveling at about 30 mph, rear-ended the vehicle plaintiff was operating on June 19, 2002. Plaintiff was thrown forward on impact in a whiplash-like motion. Medical Testing and Treatment: Emergency Room: Plaintiff went to the emergency room after the accident. The records did not mention any shoulder pain or problems. No other details were provided. Prior chiropractor: Before the accident, Dr. Galgano had treated plaintiff from March to June 2002 for spinal problems that he claimed were related to her job as a waitress; but he asserted that plaintiff was not experiencing any neck pain when he last saw her, just six days before the subject accident. He also emphasized that plaintiff had never experienced pain radiating down her arm prior to the accident. Despite these statements, his records nevertheless documented regular complaints of cervical pain and neck stiffness, though improving. He stated that he had not discharged her from treatment before the subject accident, but she simply had not returned for her scheduled appointments. Post-accident chiropractor: Plaintiff treated after the accident with different chiropractor, Dr. O’Hay. No details were provided. Family physician: On June 24, 2002, plaintiff went to her family physician, Dr. Varner. His notes of the visit recorded complaints only of right shoulder discomfort. Orthopedic surgeon: Dr. Reiner first saw plaintiff on Sept. 12, 2002. She complained of pain in her neck, back and shoulders, and of radiating pain into her right arm and leg. The doctor eventually performed arthroscopic surgeries on both of plaintiff’s shoulders. He repaired the tear of the interior glenoid labrum of plaintiff’s right shoulder on June 11, 2003, and performed the same procedure on her left shoulder on Aug. 20, 2003. Dr. Reiner last saw plaintiff in May 2005, and noted that she was still complaining of stiffness, soreness and discomfort in her shoulders, neck and back. She had 60 percent of normal movement in her cervical spine; a positive Tinel’s sign above her left elbow; 60 percent of normal restricted movement in her back, with spasm and tenderness; and back pain on straight-leg raising. He opined that plaintiff had sustained permanent injuries to her cervical and lumbar spine, and both shoulders. While he acknowledged that plaintiff had had some pre-existing problems with her neck and back, he opined that the vast majority of her problems were attributable to the accident, and that her shoulder injuries were entirely caused thereby. He concluded that the cervical spine and shoulder injuries were permanent, based on the MRI’s and residual effect of the surgeries. He further concluded that the symptomatic soft tissue injury to plaintiff’s lower back was permanent, despite the fact that there was no herniated disc. Pain management specialist: Dr. Arino treated plaintiff with epidural injections to her neck. Neurosurgeon: When the epidural injections did not help plaintiff’s pain, she saw Dr. O’Shea in February 2004. The doctor diagnosed plaintiff with herniated cervical discs caused by the accident, noted that she had failed to obtain relief from conservative treatment (chiropractic care, the epidural injections, and time), and concluded that surgery was necessary. She performed an anterior cervical diskectomy fusion at C4-5 and C5-6 in May of 2004, concluding that the injuries and the need for the surgery were the direct result of the motor vehicle accident, and that plaintiff suffered permanent injury and loss of function of her neck because she could not move properly. Dr. O’Shea discharged plaintiff from her care in October 2005. Defense expert: Dr. Friedenthal, an orthopedic surgeon, examined plaintiff for the defense on Aug. 25, 2004. It was his opinion that the bulk of plaintiff’s spinal injuries were pre-existing conditions not caused by the accident. He felt that plaintiff had not sustained any permanent residuals as a result of the accident. He noted no muscle atrophy in plaintiff’s upper arms or legs and found no muscle spasm. He noted that her neurological examination was normal, as were all her reflexes. The doctor also mentioned that plaintiff’s ranges of motion were inconsistent; she moved through wider ranges while he was “casually” observing her than when he was actually testing her. Dr. Friedenthal interpreted the 2002 cervical MRI film to reflect degenerative disc changes rather than herniation, and found mild degenerative disc changes to C4-5 and minimal degenerative changes to C5-6 in the 2004 films. He also did not observe any localized acute changes or traumatically-caused damage to plaintiff’s spine on the MRI’s that he reviewed; rather, he opined that the abnormalities and changes were consistent with the wear and tear of spinal degeneration. Dr. Friedenthal also challenged the causal relationship of plaintiff’s shoulder injury to the accident. He opined that the fact that Dr. Reiner, during arthroscopic surgery, found a small glenoid labral tear � actually a “fraying” in the inner surface � but no rotator cuff tear, was consistent with degenerative changes in the shoulder rather than a traumatic injury. The surgeon’s finding of similar conditions in both shoulders reinforced Dr. Freidenthal’s conclusion. Therefore, he concluded that the shoulder surgeries were not necessitated by the accident. Radiology: A cervical MRI performed in Aug. 2002 showed herniated discs at C3-4 and C4-5. The lumbar MRI was normal. The MRI of plaintiff’s shoulder indicated a possible tearing to the labrum on both sides. A March 2004 MRI showed disc bulges in the cervical spine at C3-4, C4-5 and C5-6. Prior Injuries: Plaintiff was involved in a prior automobile accident when she was about 20 years old, in which she sustained a pinched nerve and injuries to her lower spine at L4 and L-5, causing what she characterized as excruciating, radiating leg pain. She claimed not to have had any problems with her neck or shoulders; nor did she have any radiating pain down either of her arms. This was not what she filled in on her post-accident chiropractor’s initial intake form, however. Plaintiff was also involved in an incident in a bar in Dec. 2002, when she was thrown against a wall and complained to her family doctor, Dr. Varner, about pain in her tailbone. She did not report this incident to her experts in this case. Serious Impact on Plaintiff’s Life: Plaintiff testified that, before the subject accident, she was physically active and in “great shape,” although she did acknowledge that she had treated with Dr. Galgano for lower back pain prior to the accident. On cross-examination at trial, however, defense counsel pointed out that plaintiff had indicated on the initial patient intake form she completed with her post-accident chiropractor that she had been experiencing neck pain, lower back pain, and tingling in her right leg since Nov. 1996. Miscellaneous Issue(s): Whether the court erred (1) in refusing plaintiff’s request to give a Puso charge to the jury; and (2) in refusing plaintiff’s request to modify the jury interrogatories. Trial Court Determination(s): Defendant stipulated liability and the case proceeded to trial on the issue of damages. In his opening, plaintiff’s counsel summarized plaintiff’s medical treatment, stating that the accident had caused nerve damage to plaintiff’s neck, stressing that plaintiff had plates and screws in her neck and limited range of motion; and, as a result, was in pain on a regular basis and her activities were severely limited. Counsel did not discuss the verbal threshold requirement of permanency or differentiate between any of plaintiff’s injuries as temporary or permanent. Plaintiff testified, as did Dr. Galgano. Drs. Reiner and O’Shea testified via their videotaped depositions. In the defendant’s case, defense counsel focused on plaintiff’s pre-existing injuries and her lack of candor to her physicians about her prior medical history and treatment. Plaintiff’s experts explained on cross-examination, however, that their subsequent knowledge of plaintiff’s pre-accident complaints and chiropractic treatment did not affect their opinions regarding the injuries plaintiff sustained in the subject accident. Dr. Friedenthal testified for the defense. In his closing, defense counsel focused on plaintiff’s overall lack of credibility and the lack of proof of a causal relationship between the accident and plaintiff’s injuries. Any conclusion as to causation was suspect, he argued, because the doctors’ findings were based on the inadequate medical history plaintiff had given them. Defense counsel did not advise the jury that it needed to limit its award because only some of plaintiff’s injuries qualified under the verbal threshold; rather, he argued that plaintiff should not be awarded any damages because her injuries were simply not caused by the accident. In his closing, counsel for plaintiff emphasized that her complaints of neck, back and shoulder pain were made in a consistent pattern following the serious subject accident, and that her experts’ opinions were based on objective, credible evidence. He discussed generally for the jury the issues of proximate cause and damages. The trial judge instructed the jury on the verbal threshold requirements and plaintiff’s burden of proof thereunder, and noted that the defendant was not responsible for any pre-existing injury. Therefore, the jury could not award plaintiff any damages for injury solely attributable to any pre-existing injury. It could, however, award damages to the extent of any aggravation of a pre-existing injury, if plaintiff proved what portion of her condition was due to her pre-existing injury; or, if plaintiff’s pre-existing injury was asymptomatic at the time of the accident, but when combined with injuries incurred in the accident caused her damage, she was entitled to recover for the full extent of the damages she sustained. The parties agreed that, during an unrecorded sidebar conference after the jury instructions had been given and the interrogatories distributed, plaintiff requested a Puso instruction, to the effect that, if the jury found that she overcame the verbal threshold as to one injury, then she was entitled to have the jury consider, in calculating noneconomic damages, all of her injuries proximately caused by the accident, regardless of whether any of the remainder independently satisfied the threshold. Plaintiff’s counsel also claimed to have raised the issue as to whether the second interrogatory on the verdict sheet should be modified because it was misleading, since it did not mirror the exact language of the sample interrogatory on Category 6, damages. The judge denied both requests. The jury returned a $75,000 verdict in plaintiff’s favor. Plaintiff then unsuccessfully moved for a new trial, claiming error in the trial court’s denial of her requests for a Puso charge and modification of the jury interrogatory on damages to insert the word “all” before “injuries.” The judge found that the jury received appropriate information and adequate instructions, and that the interrogatories on the verdict sheet were not in any way misleading. Appellate Court Determination(s): Plaintiff asserted the identical arguments on appeal � that the lack of a Puso instruction and a misleading verdict sheet resulted in reversible error and a low jury verdict that shocked the conscience and was a miscarriage of justice. The appellate panel was not persuaded by these arguments, and affirmed. The panel considered the instructions and verdict sheet in the context of the case. Plaintiff’s position was that she sustained a variety of serious injuries in the collision. She made no attempt to differentiate between the type of injuries she sustained as to whether they would or would not satisfy the verbal threshold. Moreover, defendant never argued that plaintiff was to be limited in her proofs as to any claimed injuries because any such injury would not have satisfied the threshold; nor did he argue that plaintiff could only recover damages for those injuries which, individually, may have satisfied the threshold. Rather, the theme of defendant’s case was an attack on plaintiff’s overall credibility and an argument that plaintiff should not be awarded any damages whatsoever because her injuries were not caused by the subject accident. The jury instructions, which were approved by both counsel, reflected the parties’ theories of the case advanced at trial. Unlike the defendant in Espinal v. Arias, defendant here did not argue that the jury should have been instructed to parse out all nonpermanent injuries, and not consider them in arriving at its verdict. And, in fact, no such instruction was given. The judge instructed the jury that a plaintiff who is awarded a verdict is entitled to fair and reasonable compensation for any permanent or temporary injury. The panel was satisfied that the jury charge, when evaluated in its entirety, set forth an understandable and clear exposition of the issues in the case. The judge instructed the jury that, in order to prevail, plaintiff had to establish that she sustained permanent injuries as a result of the automobile accident, and if the jury so found, the verdict must be for the plaintiff. That charge tracked, verbatim, the language of the model jury charge. The judge also tailored the charge to the facts of the case, specifically informing the jury that plaintiff had the burden to prove a neck, back or shoulder injury that was permanent in order to recover damages. The charge adequately conveyed the law and did not give the misimpression to the jury that each and every claimed injury had to satisfy the verbal threshold in order to be compensable. As to the jury verdict sheet, the panel found it was neither misleading nor confusing. The first question asked whether plaintiff had suffered “a permanent injury” in the accident, phrased in the singular. Thus, the jury only needed to find one of the claimed injuries to vault the verbal threshold requirement. If it did so, it would then proceed to the second question and render a monetary award. The jury clearly was not persuaded by defendant’s causation defense as to all of plaintiff’s injuries, because it answered the first question in the affirmative. Thus, it found at least one permanent injury caused by the accident. The second question invited a monetary award for plaintiff’s injuries, in the plural. The jury had never been told that it was limited to awarding damages only for those injuries which it found specifically satisfied the verbal threshold, i.e., permanent injuries. On the contrary, the court specifically instructed the jurors of their obligation to award “fair and reasonable compensation for any permanent or temporary injury.” The word “all” was an implicit modifier of “injuries.” In the context of the presentation of and instructions in this case, there would be no reason for the jurors to interpret this question as limiting the type of injuries for which they could compensate plaintiff. The panel finally noted that the timing of plaintiff’s request also reinforced the propriety of the trial court’s ruling. Plaintiff requested the additional charge and modification of the jury interrogatory after summations, the conclusion of the jury instructions, and distribution of the jury verdict sheet. On balance, bringing this new issue into the case at such a late point in the trial could have unfairly emphasized the damage component and prejudiced a substantial right of defendant. Affirmed. 40. Fea v. Shull, A-0913-06T1 DDS No. 23-2-8929 Judges Parker, Coleman and Lyons Nov. 13, 2007 Result: Judgment in favor of the plaintiff reversed and matter remanded for a new trial. Facts/Background: On April 1, 2003, plaintiff was driving to the grocery store when she was hit from behind by defendant. Neither police nor medical personnel were called to the scene. Plaintiff drove away from the scene and proceeded to the grocery store to do her shopping. She did not go to the emergency room. Later that night, she tried to call her primary care physician, but was unable to reach him. Medical Testing and Treatment: Primary care physician: Plaintiff eventually saw her doctor two days later. At that time, she complained of pain and stiffness in her lower back, radiating into her left leg. She also had numbness in that leg. Orthopedist: Plaintiff’s doctor referred her to Dr. Collalto, a board-certified orthopedist, for treatment. He diagnosed plaintiff with a pinched nerve and recommended an MRI, which showed a herniated lumbar disc. Dr. Collalto opined that the disc injury was permanent. He referred plaintiff to a chiropractor for treatment, in lieu of physical therapy. In addition, he suggested plaintiff consider steroid injections as a treatment option; however, plaintiff did not avail herself of that option. Chiropractor: Plaintiff was referred for chiropractic treatment by Dr. Collalto, but no details of the treatment were given. Radiology: MRI examination showed a left lateral disc herniation at either L2-3 or L3-4. Prior Injuries: None Miscellaneous Issue(s): (1) Whether trial judge erred in excluding evidence of the circumstances of the accident, such as traffic conditions, speed, severity of impact, and property damage to the respective vehicles; (2) whether the fact that plaintiff’s doctor suggested a treatment that would help her, which she then did not pursue, meant that plaintiff could not prove her injuries were permanent. Trial Court Determination(s): Following the close of discovery, plaintiff obtained summary judgment on the issue of liability, and the matter was set for a jury trial on damages. Prior to trial, plaintiff successfully moved to bar any reference by defendant to the circumstances of the accident, such as traffic conditions, speed, severity of impact, and property damage to the respective vehicles. The trial judge held that, absent some “opening of the door” by plaintiff’s testimony, these issues were not relevant and the evidence would not be permitted. Following the close of plaintiff’s case, defendant moved for a directed verdict on the ground that plaintiff did not meet her burden of proof under the verbal threshold. Defendant argued that, since plaintiff’s expert, Dr. Collalto, had opined that further medical treatment in the form of steroid injections could have returned plaintiff to normal function, plaintiff’s injury was not permanent under the statute. The trial judge denied the motion, finding that there was sufficient evidence in the record for the jury to infer that the treatment might have provided some reduction in pain, but would necessarily guarantee that the herniation would heal. The case was then tried to a conclusion, and the jury found that plaintiff had suffered a permanent injury in the accident. It awarded her damages of $190,000. Defendant filed a motion for judgment n.o.v., a new trial, or, alternatively, remittitur. The trial judge denied this motion in all respects, and defendant appealed. Appellate Court Determination(s): On appeal, defendant argued that: (1) a new trial should be granted due to the trial judge’s prohibition of the evidence concerning the nature and severity of the accident; (2) the directed verdict motion should have been granted, or a judgment n.o.v. should be ordered, due to Dr. Collalto’s testimony regarding steroid injections, which could have returned plaintiff to normal function; and (3) a new trial should be granted as the verdict was against the weight of the evidence. The appellate panel reversed, finding merit in defendant’s first argument regarding the judge’s exclusion of evidence of the circumstances of the accident. The panel pointed out that the trial judge had relied on the Appellate Division decision in Brenman v. Demello, which held that a party’s use of photographs depicting minimal vehicular damage to suggest that the plaintiff’s injuries could not have been caused by a relatively minor impact invited jury speculation and conjecture. However, the panel noted that the judge did not have the benefit of the Supreme Court’s subsequent reversal in Brenman, which supported defendant’s position. That decision stated that the beginning point of the admissibility analysis for any evidence was whether it was relevant. Applying the recent Supreme Court Brenman decision, the panel found that it was error to exclude evidence that tended to demonstrate a relationship between the force of the impact and the resultant injury. Such evidence could be admitted, provided that the court reviewed it to determine that it was relevant; that an appropriate foundation existed; and that it was not excluded by N.J.R.E. 403. Therefore, reversal of the judgment and a new trial were warranted. Addressing defendant’s second argument � that the trial court should have granted a directed verdict or judgment n.o.v. based on Dr. Collalto’s testimony regarding the steroid injections � the panel reviewed the doctor’s trial testimony and noted that, during his direct testimony, he indicated that, once a disc is damaged, the damage is permanent. He said, “It’s not going to go back to the way it was, and [plaintiff] could get recurring symptoms at any time.” While the panel agreed with the trial judge’s statement that the testimony of the doctor, when viewed most favorably to defendant, might be equivocal on the issue of permanency, the panel noted that, in reviewing a motion for a directed verdict or judgment n.o.v., a court must accept as true all of the evidence which supports the position of the party defending against the motion, along with all legitimate inferences. Here, the record was clear that the doctor did testify that the herniated disc would not heal and was a permanent injury. The doctor’s statements concerning the possible benefits of steroid injections could have been interpreted as implying simply that they might reduce the pain associated with a herniation, as opposed to repairing it. Therefore, giving plaintiff the benefit of all legitimate inferences, it was appropriate for the court to deny defendant’s motions. As to defendant’s final argument � that a new trial should have been granted as the verdict was against the weight of the evidence � the panel noted that, given the fact it had already found that a new trial was warranted because of the error in the in limine motion ruling, this issue did not need to be addressed. 41. Gencarelli v. Custin, A-3540-06T1 DDS No. 23-2-8997 Judges Grall and Chambers Nov. 20, 2007 Result: Summary judgment in favor of defendant affirmed. Facts/Background: In the accident underlying this case, which occurred on May 12, 2003, plaintiff claimed that he sustained injuries to his head, knees, neck and back. Medical Testing and Treatment: Radiology: X-rays of plaintiff’s neck were taken the day after the accident and showed a loss of cervical curvature. Neurologist: Dr. Lamzow treated plaintiff and issued the physician’s certification of permanency for his lawsuit. His reports included findings of persistent muscle spasms. One report also stated that plaintiff experienced “increased headaches, neck pain, and low back pain” after the accident, and that, as of Jan. 18, 2005, the date of the report, plaintiff “had not returned to his baseline status prior to the [subject] accident . . . “ Orthopedic surgeon: Dr. Granatir treated plaintiff and issued reports which were included in the record. No details of the treatment were provided. Chiropractor: Dr. Dellanno treated plaintiff and issued reports which were included in the record. No details of the treatment were provided. Prior Injuries: At the time the subject accident occurred, plaintiff was still in treatment for an earlier motor vehicle accident that had taken place on Sept. 21, 2002. In that earlier accident, he also had sustained injuries to his neck and back. As a result, in this case, he claimed aggravation of these pre-existing injuries. He had also sustained a head injury in a motor vehicle accident in 1985. Polk analysis: The trial judge apparently found that plaintiff did not produce a comparative analysis of his pre- and post-accident residuals, as required by Polk. Trial Court Determination(s): The trial judge granted defendant’s summary judgment motion, finding that plaintiff had not met the verbal threshold. Appellate Court Determination(s): Plaintiff appealed, arguing that the cervical X-ray, showing loss of cervical curvature, along with Dr. Lamzow’s report of persistent muscle spasms, constituted objective medical evidence supporting a finding of permanent injury. He also argued that the doctor’s reports provided the required comparative analysis of his pre- and post-accident injuries and residuals. The appellate court affirmed substantially for the reasons set forth by the trial judge. The court noted that the judge’s decision provided a detailed analysis of the medical evidence in this case (although the appellate opinion did not), and explained why the verbal threshold had not been met. The court noted also that, since the entry of the trial judge’s decision, the Supreme Court decided Davidson v. Slater, which clarified the law governing the obligation of a plaintiff to produce comparative evidence under the verbal threshold when the parts of the body injured in the accident at hand had been injured in an earlier accident. Since the Davidson case continued to impose upon a plaintiff claiming aggravation of a pre-existing injury the obligation to produce a comparative analysis as required by prior law, that decision did not change the outcome here. 42. USAA Casualty Ins. v. Trenkamp, A-1589-06T3 DDS No. 23-2-9139 Judges Cuff, Lisa and Lihotz Dec. 11, 2007 Result: Summary judgment in favor of defendant reversed. Facts/Background: While in the course of her employment, defendant was involved in an automobile accident on May 19, 1994. She maintained an automobile insurance policy with plaintiff USAA Casualty, which provided income continuation benefits of $700 per week for unlimited weeks. Claiming that she was totally disabled as a result of the accident, defendant brought an action against USAA seeking payment of such benefits. She also initiated a worker’s compensation claim against her employer, which ultimately resulted in a determination that she was totally and permanently disabled. This resulted in an award of $460 per week, beginning Feb. 1, 2000. Plaintiff filed this suit, contending that it was entitled to a setoff of $460 per week against its $700 per week obligation to defendant for the income continuation benefits under the collateral source rule, N.J.S.A. 39:6A-6, in the Automobile Insurance Cost Reduction Act. Plaintiff therefore sought reimbursement from defendant for the $460 per week from Feb. 1, 2000, when the compensation award began. Plaintiff also sought a declaration that it was entitled to a weekly setoff in that amount in the future. Medical Testing and Treatment: No details provided. Prior Injuries: None Miscellaneous Issue(s): Whether the plaintiff-automobile insurer was entitled to a setoff against the income continuation benefits it owed the defendant-insured, for worker’s compensation total permanent disability benefits she received. Trial Court Determination(s): No facts were in dispute, and the parties filed cross-motions for summary judgment. The trial judge issue a written decision granting summary judgment in favor of defendant, concluding that plaintiff was not entitled to the setoff. USAA appealed. Appellate Court Determination(s): During the pendency of the appeal, on Apr. 25, 2007, in a factually-identical case, Portnoff v. N.J. Mfrs. Ins. Co., the Appellate Division was confronted wit the same issue. However, in Portnoff, the appellate panel reached a conclusion opposite to that reached by the trial judge in this case, holding that the automobile insurance carrier was entitled to a setoff against its income continuation benefits obligation for worker’s compensation total permanent disability benefits. Since the trial judge in this case did not have the benefit of the Portnoff decision when deciding the summary judgment motions in this case, and since defendant advanced the same arguments in defending this appeal that the appellate court rejected in Portnoff, the summary judgment in favor of defendant was reversed. 43. Matthews v. N.J. Mfrs. Ins. Co., A-2050-06T3 DDS No. 23-2-9272 Judges Skillman, Winkelstein and Yannotti Dec. 28, 2007 Result: Judgment in favor of defendant affirmed. Facts/Background: Plaintiff was injured in an automobile accident on Dec. 24, 1999. While making a right turn, she was struck from behind by a vehicle driven by Diana Figura. Plaintiff settled her claim with Figura for $99,000 of Figura’s $100,000 policy limit. Plaintiff’s own automobile insurance policy with defendant had underinsured motorist (UIM) coverage with a $300,000 limit. She filed this UIM suit against defendant, alleging that she sustained multiple injuries in the accident, including a right carpal tunnel injury, lumbar disc herniations and other spinal injuries. Plaintiff’s claim was subject to the verbal threshold. In May 2000, plaintiff was granted Social Security Disability Insurance benefits and Supplemental Security Income benefits. Her application was at first denied, but an ALJ subsequently determined that the 48-year-old plaintiff, who had a history of progressively worsening chronic back pain since her automobile accident, was disabled for purposes of receiving benefits. The ALJ also noted plaintiff’s limited education and unskilled work background, as well as the fact that she was unable to perform her “past relevant work.” Medical Testing and Treatment: General practitioner: Dr. Labaczewski opined that plaintiff suffered permanent injuries as a result of the subject accident, and restricted her from returning to her job as a cook. Orthopedic surgeon: Dr. Maslow performed carpal tunnel surgery on plaintiff in Nov. 2000. He testified that plaintiff’s neck injury, low back injuries, and carpal tunnel injury were causally related to the subject accident and were permanent. Pain management specialist: Plaintiff saw Dr. Perkins, but no details were provided. Radiology: apparently an EMG of plaintiff’s wrists and hands was performed post-accident, because one of the medical experts compared them at trial with a pre-accident EMG from 1990. First defense expert: Dr. Friedenthal, an orthopedic surgeon and defendant’s expert, examined plaintiff in September 2003 and issued a report dated Nov. 18, 2003. At trial, he opined that plaintiff’s carpal tunnel syndrome was not caused or aggravated by the subject accident, and that she had suffered from this condition before the accident. He also opined that plaintiff’s back injuries were not permanent and that she had recovered from the soft tissue injuries she sustained in the accident. Dr. Friedenthal issued a supplemental report on March 8, 2006, based upon additional medical records he had obtained. A dispute arose as to the timeliness of this report, which plaintiff’s counsel stated he did not receive prior to trial. The court offered plaintiff the option of a mistrial, but plaintiff declined. Nevertheless, the court limited Dr. Friedenthal’s testimony about the supplemental report to (1) the results of an EMG dated March 10, 1990, which he stated showed severe carpal tunnel syndrome in both of plaintiff’s wrists; and (2) a comparison of EMG’s before and after the accident, which he stated showed that plaintiff had severe carpal tunnel syndrome prior to the accident. Second defense expert: Dr. Sobel, also an orthopedic surgeon, examined plaintiff for the defense. His report indicated that plaintiff suffered no ongoing orthopedic disability from the subject accident. He did not testify at trial. Prior Injuries: The defendant presented evidence that plaintiff suffered from carpal tunnel syndrome and low back injuries prior to the subject accident. She was diagnosed with bilateral carpal tunnel syndrome in March 1990, as shown on an EMG, and had carpal tunnel surgery in May of that year. Doctors’ notes from February 1997 through October 1999 showed that plaintiff was suffering from back and shoulder pain. Plaintiff was previously employed as a packer. In March 1996, and again in March 1997, she suffered low back injuries while lifting boxes at work. Dr. Heist, who examined her for her worker’s compensation claim, noted in December 1997 that these work accidents caused plaintiff a 20 percent permanent partial total disability based on the residuals of a lumbosacral sprain and strain with right sciatic neuralgia. After these accidents, plaintiff obtained work as a cook, and continued working in that job until the subject accident occurred. Serious Impact on Plaintiff’s Life: Plaintiff experienced pain in her neck, back, legs arms and hands, as well as numbness in her right hand and legs. This pain restricted her daily activities, and she was unable to return to her job as a cook. She claimed a total wage loss in excess of $300,000. In 2001, she moved to Virginia and tried to return to work as a dishwasher, but worked only three days a week because her back pain prevented her from lifting and from standing or sitting for long periods. Miscellaneous Issue(s): Propriety of: two evidentiary rulings at trial; the judge’s instruction that plaintiff had to prove a permanent injury to succeed on her wage-loss claim; and defense counsel’s comments in summation. Trial Court Determination(s): The arbitrator found for plaintiff, but defendant rejected the award and moved for a trial de novo. The trial judge ruled that the ALJ’s decision in plaintiff’s Social Security matter would not be admitted into evidence because the ALJ had not considered the issues relevant in this case, to wit, whether plaintiff was permanently injured in the car accident, whether the injuries had corrected themselves, or whether plaintiff’s injuries came from a pre-existing condition. The judge instructed plaintiff’s expert economist that, although it was appropriate for him to factor plaintiff’s Social Security Disability award into his calculations, he was not to refer to those payments as a “disability award.” The witness therefore offered an opinion as to the “monetary consequences” plaintiff experienced as a result of the subject accident, which are detailed in the opinion. He concluded that plaintiff’s total economic loss was $309,893 in current dollar value. That included past and future wage losses, the appropriate credit for her Social Security award, and also the fact that she was somewhat better off having an early pension from the Public Employees Retirement System. In his charge to the jury, the judge instructed that, although plaintiff received income from Social Security Disability, which the economist had considered in his calculations, the jury was only to use this information to show that plaintiff received this particular source of income; it was not to use it to determine if plaintiff was permanently disabled. The case was tried to a jury, which unanimously found that plaintiff did not suffer a permanent injury as a result of the accident. Accordingly, the trial court entered judgment in favor of defendant. Appellate Court Determination(s): On appeal, plaintiff argued that: (1) the trial court erred in failing to allow into evidence the Social Security Administration’s determination that she was totally disabled as a result of the accident; (2) defense counsel’s closing argument introduced facts that were not in evidence; (3) the trial court improperly admitted into evidence the findings from a late-supplied supplemental report of the defense expert, Dr. Friedenthal; and (4) the trial court erred in its charge to the jury, which instructed the jury that it must find that plaintiff sustained a permanent injury as a prerequisite to awarding her economic damages. As to plaintiff’s first point about the judge failing to allow evidence of her Social Security Disability determination, the appellate panel found no error. First, the panel noted that defendant had not been a party to the Social Security proceedings, and therefore collateral estoppel with respect to the disability determination could not be applied to it. Second, the panel agreed with the trial judge that the evidence presented in the Social Security proceeding related only to plaintiff’s post-accident medical treatment. Whether her pre-accident injuries and disabilities contributed to her inability to work had not been an issue. Therefore, the issues before the ALJ and those before the trial court were not the same. Consequently, the Social Security determination was properly held inadmissible. The appellate panel next turned to plaintiff’s claim that defense counsel introduced new facts in his closing. He mentioned Dr. Sobel’s expert report, and also made reference to Dr. Heist’s reference, in the worker’s compensation case, to plaintiff having a permanent low back injury prior to the automobile accident. Though neither of these two experts testified at trial, plaintiff did not object to the remarks during the summation, so they had to be reviewed under the plain error standard. The appellate panel found that the comments did not, in fact, introduce new facts, as plaintiff claimed. During the trial, defense counsel had elicited from Dr. Wolf the fact that he never saw or considered Dr. Friedenthal’s or Dr. Sobel’s reports. In those reports, the physicians concluded that plaintiff did not suffer a permanent orthopedic disability as a result of the subject accident. Plaintiff did not object to Dr. Wolf’s testimony. In closing, defense counsel said that Dr. Wolf “never had the records of Dr. Friedenthal or Dr. Sobel indicating the disability.” That remark was fair comment on the evidence. Counsel did not introduce facts not in evidence, and the panel found no plain error. Similarly, although defense counsel made reference in his summation to Dr. Heist’s opinion that plaintiff had a permanent lower back disability before the subject accident, that reference was to testimony that was elicited during the trial. Although there may have been grounds for an objection at the time the testimony was provided, plaintiff made no such objection. Indeed, with respect to Dr. Labaczewski’s testimony about Dr. Heist’s report, it was plaintiff’s counsel who, on re-direct examination, asked that witness if Dr. Heist’s report was accurate. Therefore, the panel rejected plaintiff’s challenge to defendant’s summation. The panel next addressed whether the trial court improperly permitted references to Dr. Friedenthal’s late supplemental report and, again, found no error. Although discovery ended in August 2005, and Dr. Friedenthal issued the report in March 2006, the trial judge properly restricted the doctor’s testimony to a limited reference in the report; he was only permitted to testify about the 1990 EMG, and plaintiff had been made aware of the EMG results at the time of defendant’s summary judgment motion in July 2005. The medical records upon which the report was based had also been made available to plaintiff’s counsel for inspection in March 2005. Also significant was the fact that plaintiff ‘s counsel was offered a mistrial, but rejected the offer. In context, the judge’s action in permitting the limited testimony was not an abuse of discretion. Finally, the panel turned to plaintiff’s claim that the trial court erred by requiring her to prove that she suffered a permanent injury before she could be compensated for her prior and future wage losses. In general, the panel noted that plaintiff was correct that proof of a permanent injury was not necessary to support an award of economic damages. Nevertheless, in the context of the trial evidence, the panel found that the court’s jury instruction on this issue was appropriate. While a plaintiff must prove a permanent injury to recover noneconomic losses under the verbal threshold, a plaintiff who fails to vault the threshold is not generally precluded from recovering unreimbursed income losses. The panel noted, however, the case of Miskelly v. Lorence, in which the plaintiff’s vocational expert had relied upon medical information indicating the existence of a permanent injury in projecting plaintiff’s lost earnings over his “work lifetime.” The judge in Miskelly reasoned that, if there was, in fact, no permanent injury under the verbal threshold, there logically could not be an award premised upon an expert’s opinion that accepted that the plaintiff suffered a permanent injury. In the case at bar, the trial judge relied on Miskelly. He noted that plaintiff’s whole position was that she was permanently injured from the day of the accident, and had been unable to work. There was no segregated number of days or weeks of missed work � which he stated he might have let go to the jury � but a total and permanent inability to work. The appellate panel agreed with the trial judge that, consequently, the evidence could not support an award of economic damages unless the jury concluded that plaintiff was, in fact, totally and permanently disabled. Dr. Wolf testified as to what plaintiff’s total economic loss would be based on her prior income, her life expectancy, her economic life expectancy, her pension considerations, and appropriate credits for her Social Security award. The record was insufficient for the jury to calculate plaintiff’s loss for any defined period of time. The entire thrust of the expert testimony was that plaintiff would be medically precluded from working for the remainder of her life. In fact, Dr. Wolf indicated that plaintiff had suffered an “economic death.” The evidence simply would not have supported a calculation of lost wages for less than plaintiff’s entire work-life expectancy. For the jury to arrive at such a conclusion would have required it to determine, first, when plaintiff could have returned to work, and second, if she did return, what her net lost earnings would have been. The record did not permit the jury to decide these questions without speculating.

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