BRENDA WILLIAMS AND PAUL WILLIAMS v. PAUL ILLGE, LIBERTY MUTUAL INSURANCE COMPANY AND THOMAS BRANNIGAN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1950-04T31950-04T3

BRENDA WILLIAMS AND

PAUL WILLIAMS,

Plaintiffs-Appellants,

v.

PAUL ILLGE, LIBERTY MUTUAL INSURANCE

COMPANY AND THOMAS BRANNIGAN,

Defendants-Respondents.

________________________________________________________________

 

Submitted October 3, 2005 - Decided

Before Judges Coburn and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-7562-02.

Preston & Wilkins, attorneys for appellants (Gregory R. Preston, on the brief).

Kramkowski, Lynes, Fabricant & Bressler, attorneys for respondent, Paul Illge (Jeanne M. Walsh, of counsel and on the brief).

Lamb, Kretzer, Reinman & Roselle, attorneys for respondents, Liberty Mutual Insurance Company and Thomas Brannigan (John T. Sullivan, on the brief).

PER CURIAM

Plaintiff, Brenda Williams, brought this action for personal injuries she suffered in an automobile accident allegedly caused by the negligence of defendant, Paul Illge. The accident occurred on August 16, 2000, and the complaint was filed on August 21, 2002. On January 23, 2003, plaintiff underwent a total right hip replacement surgery performed by Dr. Michael H. Rieber. On October 30, 2003, after completion of discovery, defendant filed a motion for summary judgment, contending that plaintiff failed to present sufficient evidence to satisfy the limitation on lawsuit threshold.

The motion was argued on December 5, 2003. The hip replacement was discussed between the court and counsel during argument. Plaintiff's counsel acknowledged that he did not have an expert report causally relating plaintiff's hip replacement surgery to the accident. Defendant's motion was granted and the complaint was dismissed.

On January 15, 2004, plaintiff filed a pro se notice of appeal, which was assigned Docket No. A-2698-03T5. Plaintiff did not file an appellate brief, as a result of which an order was entered by this court on July 1, 2004 dismissing the appeal. At some point, plaintiff obtained new counsel. Rather then attempting to cure the dismissed appeal by seeking reinstatement, plaintiff's new counsel attempted to cure the trial record by filing a motion pursuant to Rule 4:50-1 seeking relief from the summary judgment order dismissing the complaint.

Plaintiff's motion was filed on October 6, 2004 and was supported by a certification dated August 5, 2004 by Dr. Rieber. In pertinent part, Dr. Rieber stated that he first saw plaintiff in December 2002. He had her hip x-rayed which showed "rather severe and complete destructive osteoarthritic changes." He then stated in conclusory terms:

5. Within a reasonable degree of medical probability the osteoarthritic changes that resulted in a total hip replacement are causally related to the automobile accident she had on August 16, 2000.

6. I base my opinion on examination, treatment of Ms. Williams and the fact that a motor vehicle accident where there is trauma can cause degenerative osteoarthritic changes which require a hip replacement.

We note that the record contains a report of a December 17, 2001 x-ray that showed "marked osteoarthritis of the right hip joint with narrowing of the C4 and medial hip joint space with associated subchondral sclerosis and osteophytosis."

Plaintiff argued that relief from the summary judgment motion should be granted based upon newly discovered evidence (R. 4:50-1(b)) or in the interest of justice (R. 4:50-1(f)). The motion judge rejected the notion that Dr. Rieber's belated certification properly qualified as newly discovered evidence or that the interest of justice warranted relief under the circumstances of this case. We agree.

Newly discovered evidence under Rule 4:50-1(b) requires a showing that the evidence was discovered after the relevant proceeding (here, the summary judgment motion) and that by the exercise of due diligence it could not have been discovered prior to that time. State v. Speare, 86 N.J. Super. 565, 581-82 (App. Div.), certif. denied, 45 N.J. 589 (1965). To qualify, the new evidence must also be of a nature that would have been likely to have changed the result. Ibid.

Neither criteria has been satisfied in this case. Obviously, the hip replacement procedure was known to plaintiff and her attorney long before the summary judgment proceedings and there was more than ample opportunity to attempt to obtain from the surgeon (or any other medical expert) a proper report causally relating it to the accident.

Further, the certification is substantively deficient and would not have changed the outcome. It merely states an unsupported conclusion of causation that is lacking in three respects. First, there is no narrative discussion explaining how the accident was the cause of the injury requiring a total hip replacement and relating that causation to credible, objective medical evidence. See Oswin v. Shaw, 129 N.J. 290, 319 (1992). Second, because the record contains evidence of a pre-existing degenerative condition in the right hip, if exacerbation is asserted, an analysis comparing the condition prior to the accident and after the accident, with specific reference to objective medical evidence, is required but was not included in Dr. Rieber's certification. See Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993). Finally, the certification did not speak in terms of medical probability but merely stated that trauma "can cause" degenerative osteoarthritic changes.

There was no error in the denial of plaintiff's motion to vacate the summary judgment dismissing her complaint.

 
Affirmed.

Plaintiff's husband, Paul Williams, also sued per quod.

No issue has been raised in the trial court or on appeal regarding the statute of limitations.

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A-1950-04T3

October 13, 2005