DANNY TRAN v. GREGORY WARRINER et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1702-04T31702-04T3

DANNY TRAN,

Plaintiff-Appellant,

v.

GREGORY WARRINER and NANCY

M. SCHWEIZER,

Defendants-Respondents.

 

Submitted: November 2, 2005 - Decided:

Before Judges Stern and Fall.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket Number ATL-L-967-03.

Gerald F. Miksis, attorney for appellant.

Parker McCay, attorneys for respondents (Stacy L. Moore, Jr., on the brief).

PER CURIAM

In this verbal threshold case, plaintiff Danny Tran appeals from an order entered in the Law Division on August 27, 2004, granting summary judgment to defendants Gregory Warriner and Nancy M. Schweizer, dismissing his claims for non-economic damages for failure to satisfy the "limitation on lawsuit" threshold under the 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a. Plaintiff also appeals from an order issued on October 8, 2004, denying his motion for reconsideration. The following factual and procedural history is relevant to our consideration of the issues presented on appeal.

On April 17, 2003, plaintiff filed a complaint against defendants, alleging that he had suffered personal injuries and sustained damages arising from an automobile accident occurring on January 13, 2003, caused by the negligence of defendants.

Plaintiff had a pre-existing injury to the lumbar region of his back resulting in a herniated lumbar disk at the L4-5 level. On July 31, 1995, Dr. Henry L. Greenwood performed surgery on plaintiff's low back, consisting of a left lumbar hemilaminectomy to excise the herniated disk.

Although the surgery alleviated his back pain, plaintiff experienced low back and left sciatica pain after slipping on some steps on April 8, 2002, while moving furniture into a new home. An MRI of his low back at that time disclosed scarring at the L4-5 level in the region of the prior surgery, but no apparent recurrence of the prior injury. From his examination of plaintiff on May 16, 2002, Dr. Greenwood opined:

There is recurrent lumbar radiculopathy, most likely secondary to disturbance of the scar when he fell. Occasionally, you cannot see a small recurrent disc fragment that is imbedded in the scar. For the time being, however, I would treat him as though it is purely scar. I suggested that he return to Dr. Singh, who he had seen in past for a series of epidural injections. If he gets no relief, then he will need myelography and possibly repeat laminectomy. Hopefully, with the epidural injections, it will not come to that.

Thereafter, plaintiff was treated by Dr. Singh with medication and therapy.

As a result of the January 13, 2003 accident, plaintiff sustained injuries to both the cervical and lumbar regions of his spine. An MRI study of both regions performed on January 23, 2003, disclosed "moderate central disc protrusion at the level of C3-4[,]" "small central disc protrusion at the level of C4-5[,] "a moderate broad based annular disc bulge at the level of L4-5 which results in a mild degree of secondary canal stenosis[,]" which "is not appreciably changed when compared to the patient's previous study[,]" and "post operative changes on the left at the level of L4-5 with some scarring in the epidural space anterior and laterally which is also not appreciably changed."

Plaintiff underwent lumbar and cervical myelogram and post-myelographic CT scan studies on March 17, 2003. The cervical myelogram showed a small ventral defect at the C4-5 level, and the CT scan following the myelogram demonstrated no herniated disc, no compression of nerve roots or spinal cord. The lumbar myelogram showed a ventral defect at the L4-5 level secondary to a diffuse bulge, and the CT scan demonstrated some mild stenosis secondary to that bulge.

Dr. Rodney C. Brunson, who began treating plaintiff on January 15, 2003, issued a report dated November 10, 2003, diagnosing plaintiff as suffering from the following injuries caused by the January 13, 2003 accident: broad base central disc herniation C3-4 with impression upon the thecal sac; central disc protrusion at C4-5; broad base disc bulge L4-5, possibly pre-existing; radiculopathy at left C-5 nerve root; radiculopathy at left C7-8; radiculopathy at left S-1 nerve root; chronic shoulder strain/sprain; and myofascitis. Dr. Brunson stated that plaintiff had "sustained permanent injury that will have a permanent residual sequela" and that "the permanent residuals of the injury cannot be completely resolved by way of further medical treatment intervention[.]"

Defendants then moved for summary judgment, contending that plaintiff had failed to meet the requirements of the verbal threshold to sustain a claim for non-economic damages. The motion was argued in the Law Division on August 27, 2004. At the outset of the argument, the motion judge detailed his preliminary findings, in pertinent part:

In this case there are two basic body parts that appear to be at issue, the neck and the low back. Plaintiff's proofs indicate that there were no prior problems with the plaintiff's neck. The records are also fairly clear indicating that the plaintiff did have substantial problems with his [low] back prior to the accident. The timing of that may be subject to some debate. I understand the plaintiff is indicating he didn't have any active symptoms as of the time this accident occurred.

* * * *

I think there's a fairly simple dynamic presented here. It's clear to me that the plaintiff could on the face of things satisfy the basic initial inquiry with respect to the verbal threshold as to the injury to his neck. It's not so clear that he could do that with respect to his [low] back and the real dynamic that's presented is how does one deal with symptoms that may be related to two separate body parts that have been injured, one of which involves claims that appear to not be barred by the verbal threshold and the other of which appears to involve claims that may be barred because of the comparative analysis issue.

* * * *

First with respect to the neck, is there an injury type made out? Yes. [Dr.] Brunson's report talks about a permanent injury to the neck involving function. Is there objective medical evidence with respect to the neck? Yes. There's an MRI that confirms that as a new injury. That leaves the issue of serious impact.

* * * *

Let's talk about the [low] back. Is there injury type made out? Again, [Dr.] Brunson's report talks about a permanent injury to the back involving loss of function on the face of things. That's enough, at least on the initial inquiry. Is there objective medical evidence with respect to a new injury to the [low] back? I'm not so clear about that.

* * * *

For present purposes, however, subject to argument, I'm prepared to at least concede that the objective medical evidence issue may be dealt with adequately . . . with respect to the [low] back. That, however, leave two additional problems. First, the case law that requires the plaintiff establish a serious impact and second, the case law that requires the comparative analysis when there has been either . . . a claim of an aggravation or a pre-existing or alternatively, simply whenever a body part that was previously injured has been injured again, whether there's a claim of an aggravation or not. Polk[ v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993)] is the case that is commonly cited with respect to the first proposition. That is, the need for comparative analysis where there's a claim of aggravation. There are subsequent cases. Ostasz[ v. Howard, 357 N.J. Super. 65, 67 (App. Div. 2003)] makes it clear from the perspective of the Appellate Division . . . that that type of comparative analysis is necessary whenever a body part has been injured again, whether it involved an aggravation claim or not. And the cases clearly contemplate that there will be an expert, presumably a physician, who will engage in a comparative analysis comparing the records of prior and current injuries.

* * * *

I don't think there's any need for a comparative analysis with respect to the injury to the neck. There's no indication there was a prior injury to the neck. I am satisfied that the case law would require a comparative analysis with respect to the injury to the [low] back.

* * * *

It's the serious impact question with respect to the neck that causes me to pause with respect to this matter. . . . If the reason that the plaintiff cannot participate in those activities is a combination of the neck and [low] back problems, then I don't see how he can satisfy the verbal threshold.

After hearing arguments from counsel, the motion judge granted summary judgment in favor of defendants, stating in pertinent part:

I still feel that it's appropriate to grant this motion for summary judgment on behalf of the defendant based on the verbal threshold essentially for the reasons I articulated, and so the matter is clear, my concern is not the injury type, it's not the objective medical evidence, it's not the serious impact issue in the most general sense. It is my conclusion under our case law in this particular circumstance where you have a plaintiff who presents claims relating to the injuries to two body parts, one of which clearly does not require a comparative analysis, one of which does require a comparative analysis, where there is no comparative analysis, that plaintiff cannot rely on the injury to that body part, in this case the back, to satisfy the verbal threshold in any way and that would include establishing the serious impact, and for that reason, once one gets to that point in the analysis, I'm satisfied that . . . if there's no comparative analysis with respect to the body part that had been injured before -- the plaintiff's going to need something much more specific in terms of establishing that the injury to the body part that had not been injured before, by itself and considering the fact that there had been an injury to the other part, would create the serious impact and it's on that issue that I'm satisfied this plaintiff's claim fails.

* * * *

Also so the matter's clear, I don't think there's any question that [plaintiff's counsel] is incorrect about his analysis of the comparative analysis question as it relates to the [low] back. I'm satisfied he absolutely needed that, that he doesn't have it. The claim with respect to the [low] back fails. I'm prepared to acknowledge there's a much more sophisticated issue as to whether the neck injury can proceed without the comparative analysis with respect to the back, but my interpretation of the law is that it cannot.

The motion judge noted that because plaintiff had a claim for economic damages, in the form of loss of wages, the summary judgment decision was interlocutory. An order granting partial summary judgment, dismissing plaintiff's claim for non-economic damages, was entered on August 27, 2004. On September 10, 2004, plaintiff moved for reconsideration. The trial court issued an order on October 8, 2004, denying plaintiff's reconsideration motion. The claim for economic damages was settled.

On appeal, plaintiff presents the following argument for our consideration:

POINT I

PLAINTIFF HAS ESTABLISHED BY CLEAR OBJECTIVE EVIDENCE PERMANENT CERVICAL INJURY CAUSALLY RELATED TO THE ACCIDENT OF JANUARY 13, 2003.

The decision of the motion judge had several components. First, the judge determined that plaintiff had advanced objective credible medical evidence establishing a causally-connected injury to the cervical area of his back. Second, the judge granted summary judgment dismissing plaintiff's non-economic claims relating to the cervical injuries because plaintiff was unable to establish a resulting serious life impact from those cervical injuries because there was no evidence attributing the claimed serious life impact to the cervical, as opposed to or compared with the lumbar back injuries. Stated differently, the judge found that plaintiff could not establish the second prong of the Oswin v. Shaw, 129 N.J. 290, 318 (1992), test because there was no evidence establishing whether the claimed serious life impact was causally related to the cervical injuries. Third, the judge found that the lack of a comparative analysis as required by Polk and Ostasz, defeated plaintiff's claim for non-economic damages for any causally-related injuries to his lumbar spine.

During the pendency of this appeal, our Supreme Court decided DiProspero v. Penn, 183 N.J. 477, 481 (2005), holding that the limitation on lawsuit option under AICRA does not require proof of a serious life impact. Plaintiff only appeals from the Law Division's ruling dismissing his claim for non-economic damages resulting from his causally-related cervical injuries. Because the serious life impact prong of the Oswin test was the underlying basis for the granting of partial summary judgment in favor of defendants concerning the cervical injuries, the summary judgment grant as to those injuries must be vacated.

That portion of the August 27, 2004 order granting summary judgment dismissing plaintiff's claims for non-economic damages resulting from the cervical injuries sustained on the January 13, 2003 accident is reversed, and the matter is remanded for trial.

 
Reversed and remanded.

(continued)

(continued)

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A-1702-04T3

December 19, 2005