TOOLSEEDAS MOOLCHAN v. MARIE S. ETIENNE

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2905-04T32905-04T3

TOOLSEEDAS MOOLCHAN,

Plaintiff-Appellant,

v.

MARIE S. ETIENNE,

Defendant-Respondent.

______________________________

 

Submitted December 12, 2005 - Decided

Before Judges Parrillo and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, ESX-L-3935-03.

Patricia Weston Rivera, attorney for appellant.

Connelly Foley, attorneys for respondent (Kathleen S. Murphy, of counsel; Ryan A. McGonigle, on the brief).

PER CURIAM

Plaintiff, Toolseedas Moolchan, appeals the Law Division's January 11, 2005 order granting summary judgment on behalf of defendant, Marie S. Etienne, pursuant to the court's January 11, 2005 oral opinion. The court in its oral opinion determined that plaintiff failed to prove that he suffered a compensable injury in a May 11, 2001 automobile accident with defendant, as described in the limitation on lawsuit threshold contained in N.J.S.A. 39:6A-8a, entitling plaintiff to recover non-economic damages.

The judge granted summary judgment based on her conclusion that plaintiff failed to establish through "objective clinical evidence" a qualifying injury and failed to establish through a Polk analysis that his injuries were caused by the May 11, 2001 accident. The judge dismissed plaintiff's complaint without prejudice for plaintiff's failure to provide defendant with a licensed physician's certification that certified, under penalty of perjury, that plaintiff has sustained an injury that qualifies for recovery of non-economic damages as required by N.J.S.A. 39:6A-8a. We reverse and remand for further proceedings in accordance with this opinion.

On May 11, 2001, plaintiff was operating a motor vehicle on Chancellor Avenue in Irvington when it was struck from the rear by a vehicle driven by defendant. Plaintiff filed suit on May 9, 2003 seeking money damages for personal injuries proximately caused by the accident. On December 8, 2004, over one and one-half years later and after the completion of extensive discovery, defendant moved for summary judgment which was granted by the Law Division's January 11, 2005 order. This appeal followed.

A December 27, 2001 letter to plaintiff's counsel from Dr. Anthony Tangorra, plaintiff's treating chiropractic physician, indicates that on May 16, 2001, five days post-accident, plaintiff presented and subjectively complained of nervousness, numbness and tingling in the left hand, low back pain and headaches. Dr. Tangorra, on physical examination of plaintiff, found on palpation taught and tender fibers in the thoracic spine with discomfort in the right upper back and low right shoulder. Dr. Tangorra, on palpation, also found paraspinal muscle spasm of the lumbosacral spine as well as taught and tender fibers of the mid-lower lumbar region of the spine.

MRI testing of plaintiff's cervical and lumbar spine was conducted and reported on July 7, 2001. The cervical MRI revealed reversal of the normal cervical lordosis, a disc bulge at C3-C4 effacing the anterior thecal sac and abutting the cervical cord, and a moderate central disc herniation at C5-C6 causing spinal stenosis as well as cord compression. The lumbar MRI confirmed a disc bulge at L4-L5 and desiccation changes within the L5-S1 disc.

Plaintiff was treated with spinal manipulation to the cervical, thoracic and lumbar spine, moist heat, traction and soft tissue massage. After approximately eight months of treatment, Dr. Tangorra opined that based on plaintiff's history and his findings on physical examination, that plaintiff's injuries were sustained in the May 11, 2001 accident. Because of what the doctor assumed to be an avulsive insult to the supportive structures of the neuromusculoskeletal system located in the cervical and lumbar spines, he opined that the injuries sustained to the cervical and lumbar spine are subject to exacerbations and to becoming chronic in nature and in all probability will cause pain while plaintiff performs ordinary functions. Dr. Tangorra indicated that upon discharge, plaintiff was still experiencing low back pain, occasional numbness in the left hand, C1-C2 subluxation and sensitivity to touch on the left cervical and lumbo-sacral spines.

The motion judge ruled that plaintiff had not established through "objective clinical evidence that he has suffered a qualifying injury." We disagree.

The Supreme Court in Serrano v. Serrano, 183 N.J. 508, 510 (2005) established that for a plaintiff to pierce the limitation on liability threshold established by N.J.S.A. 39:6A-8a, he need only prove that he suffered from an injury described in N.J.S.A. 39:6A-8a. Plaintiff claims that he satisfies the sixth category contained in the statute because he has suffered a permanent injury within a reasonable degree of medical probability that has not healed to function normally and will not heal to function normally with further medical treatment. In support of his assertion, plaintiff has supplied objective credible medical evidence in the nature of MRI studies and a medical opinion based on physical examination as to the permanency of the injuries and that further treatment will not restore the injured regions of plaintiff's spine to full function.

In Juarez v. J.A. Salerno & Sons, Inc., ___ N.J. ___,___ (2005), the Supreme Court reiterated its decision in Serrano that the objective credible medical evidence prong of N.J.S.A. 39:6A-8a, as amended by AICRA, does not impose an additional judicially-crafted subjective standard of proving a serious injury. An accident victim has only to prove an injury as defined in AICRA. See also Pungitore v. Brown, 379 N.J. Super. 165, 168 (App. Div. 2005).

We are satisfied that plaintiff's objective medical evidence, based upon clinical findings on physical examination and MRI findings, establishes a prima facie case that the May 11, 2001 automobile accident caused injuries to plaintiff's cervical and lumbar spine which "ha[ve] not healed to function normally and will not heal to function normally with future medical treatment[]" and thus qualify as permanent injuries pursuant to N.J.S.A. 39:6A-8a.

In DiProspero v. Penn, 183 N.J. 477, 488 (2005), the Supreme Court reiterated the additional statutory requirement that a plaintiff is required to file a certification by a physician that the injury satisfies one of the statutory categories contained in N.J.S.A. 39:6A-8a. AICRA requires the filing of a physician's certification "within sixty days following the filing of an answer to the complaint[.]" Ibid. "The court may grant no more than one additional period not to exceed 60 days to file the certification pursuant to this subsection upon a finding of good cause." N.J.S.A. 39:6A-8a. As of the return date of defendant's motion for summary judgment, plaintiff had not filed the required certification of physician.

In dismissing plaintiff's complaint without prejudice for failing to file a physician's certification, the motion judge stated,

[t]he lack of a certification is absolutely fatal. And I find it particularly fatal in this case, where the attorney for the plaintiff has certified that she not only didn't get it, but that in fact she was unable to get it. And I note that this is a 2003 docket. So, the comp -- I don't know how many years ago the certification was due, but it -- it was awhile.

Of course, Miss Rivera is correct, in her certif, -- in her brief, where she states that such a dismissal should be without prejudice.

In Casinelli v. Manglapus, 181 N.J. 354 (2004), the plaintiff failed to submit her physician's certification until after the defendant had filed a motion for summary judgment. "The trial court declined to dismiss [plaintiff's] complaint, finding good cause to extend the time within which to file the physician certification." Id. at 359. In Casinelli v. Manglapus, 357 N.J. Super. 398 (App. Div. 2003), this court determined that dismissal with prejudice was not compelled when there was a failure to comply with the AICRA certification of physician filing requirement. Casinelli, supra, 181 N.J. at 359. The motion for dismissal was viewed as akin to a motion for dismissal on the pleadings. We, therefore, determined that dismissal without prejudice is the proper remedy for late filing. Ibid. In that case, however, we recognized the "'harsh consequences' that would flow from the dismissal without prejudice remedy where the statute of limitations had expired," and based on the facts of that case determined that "the doctrines of substantial compliance and equitable estoppel could be invoked by Casinelli." Ibid. (citing Casinelli, supra, 357 at 416-17).

The Supreme Court reversed and determined that the certification of physician required by N.J.S.A. 39:6A-8a is not a statutory bar to the continuation of the lawsuit. Id. at 365. Because a belatedly produced physician certification supports the otherwise cognizable claim advanced in the complaint, the Court viewed the late presentation of the certification "as falling under the broad umbrella of failure to make discovery," subject to discovery type sanctions along with dismissal for the procedural error. Ibid. The Court instructed that the motion judge "should assess the facts, including the willfulness of the violation, the ability of plaintiff to produce the certification, the proximity of trial, and prejudice to the adversary, and apply the appropriate remedy." Ibid. The Court explained,

That methodology provides judges with discretion to choose a response that is proportionate to the procedural stimulus; saves for trial the meritorious claims of truly injured victims; and allows dismissal of cases in which a plaintiff cannot or will not supply a certification or in which a plaintiff's conduct has irremediably prejudiced the defendant.

The bedrock of our conclusion is the legislative purpose behind the physician certification requirement of AICRA. As we have indicated, the certification serves two purposes; to provide evidence that a plaintiff's claim is meritorious in that he or she has, in fact, sustained an injury that qualifies for the recovery of non-economic damages under the revised AICRA verbal threshold, and to thwart fraud by furnishing a legal foundation for a charge of perjury, should false swearing later be shown. By allowing courts the flexibility to accept belated physician certifications, under appropriate circumstances, both of the AICRA's aims are advanced; the meritorious cases of injured plaintiffs can go forward, and a certification, paving the way for a future perjury action in the case of false swearing, is on file.

[Id. at 365-66.]

We are convinced that the motion judge mistakenly exercised her discretion in imposing the harsh remedy of dismissal without prejudice for failing to file the physician's certification based on the facts in this case. Based on the Supreme Court's directive in Casinelli, we are convinced that the trial court is required to accept the certification of physician which plaintiff belatedly filed with defendant eight days post-motion. We note, however, the Supreme Court's admonition that attorney delay in filing a physician's certification should not go unsanctioned even though dismissal will not be warranted in most cases.

The motion judge additionally granted summary judgment on the basis that plaintiff's "objective clinical evidence" did not establish that the injuries complained of were caused by the May 11, 2001 accident, because the medical proofs presented failed to contain a Polk analysis. The judge determined that a Polk analysis was a necessary prerequisite to surviving defendant's motion for summary judgment because plaintiff was involved in a subsequent accident that occurred in February 2002, about nine months after the May 11, 2001 accident.

Defendant argues that our decision in Sherry v. Buonansonti, 287 N.J. Super. 518 (App. Div. 1996) supports the judge's granting of summary judgment on Polk grounds. In Sherry, on May 16, 1990 the plaintiff was a rear seat passenger in the defendant's car when the driver lost control and hit a utility pole causing the plaintiff's injuries. Id. at 520. Approximately three months later, while the plaintiff was still treating for his injuries from the May 16, 1990 accident, plaintiff was in a second accident. Id. at 521. After the first accident, the plaintiff missed three weeks of work as manager of a Gap store, then returned to a modified schedule, before returning full time with certain accident required restrictions. Ibid.

After the second accident, the plaintiff sought further treatment, including six months of physical therapy, a year of orthopedic treatment and two treatments by a chiropractor. Ibid. We determined that the plaintiff failed to present sufficient evidence that the car accident of May 16, 1990 rather than the subsequent accident of August 18, 1990 caused the plaintiff's condition. Id. at 522. There was no comparative analysis as required by Polk. Ibid. In Polk we said:

A diagnosis of aggravation of a pre-existing injury or condition must be based upon a comparative analysis of the plaintiff's residuals prior to the accident with the injuries suffered in the automobile accident at issue. This must encompass an evaluation of the medical records of the patient prior to the trauma with the objective medical evidence existent post trauma. Without a comparative analysis, the conclusion that the pre-accident condition has been aggravated must be deemed insufficient to overcome the threshold of N.J.S.A. 39:6A-8a.

[Polk, supra, 268 N.J. Super. at 575.]

Plaintiff, in this case, testified in his deposition as to his involvement in a subsequent collision nine months after the May 11, 2001, accident. Plaintiff also testified that he was not injured by the second accident and has sought no medical treatment. All of the records involved in establishing plaintiff's injury as meeting the threshold were based on medical examinations and MRI testing prior to the second accident. A defense medical expert's examination of plaintiff after the date of the second accident does not reflect any complaint of injury not present in Dr. Tangorra's report of December 2001 or in Dr. Tangorra's belated physician's certification, both of which are based entirely on examinations and treatment records of a timeframe prior to the second accident.

Even assuming the continued viability of Polk's requirement of a comparative analysis in the context of a verbal threshold summary judgment motion, compare Davidson v. Slater, 381 N.J. Super. 22 , 29 (App. Div. 2005) (explaining that "the comparative analysis requirement of Polk and its progeny engrafts an additional element upon th[e] causation aspect of the verbal threshold standard[]") with Lucky v. Holland, 380 N.J. Super. 566, 570 (App. Div. 2005) (stating that plaintiff must provide an adequate Polk analysis with respect to her injuries) and Bennett v. Lugo, 368 N.J. Super. 466, 473 (App. Div.) (explaining use of Polk "to differentiate a subsequent injury to a body part that was previously injured whether aggravation of the prior injury is alleged or not[]") certif. denied, 180 N.J. 457 (2004), we are satisfied that no such analysis was required in this case. Plaintiff does not allege that the subsequent accident of February 2002 aggravated his injuries from the earlier accident of May 11, 2001. The residual injuries to plaintiff's cervical and lumbar spine contained in Dr. Tangorra's opinion, as expressed in his letter of December 27, 2001 and in his physician's certification, all relate to the May 11, 2001 accident in issue here.

Accordingly, we reverse the order for summary judgment and remand the matter for trial. We are satisfied that plaintiff has met the minimum requirements established by Serrano, DiProspero, Juarez and Casinelli to establish a prima facie cause of action based on permanent injury as defined in the limitation on liability threshold contained in N.J.S.A. 39:6A-8a. On remand, the court may impose whatever discovery sanctions for late filing of the physician's certification, if any, short of dismissal, it deems appropriate, after conducting an assessment of the factors required by Casinelli. We express no opinion as to whether any sanctions should be imposed. We do not retain jurisdiction.

 
Reversed and remanded.

Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993).

A certification of physician by Dr. Tangorra dated January 19, 2005, eight days after the motion for summary judgment was granted, contained in plaintiff's appendix on appeal, certifies to a reasonable degree of medical probability that plaintiff sustained the injuries discussed in the body of this opinion in the May 11, 2001 accident. The certification concludes that the injuries have resulted in a permanent injury which has not healed to function normally and will not heal to function normally with further medical treatment in that permanent residuals of the injury cannot be completely resolved and will be experienced by plaintiff for the balance of his lifetime.

Automobile Insurance Cost Reduction Act (as amended May 19, 1998). N.J.S.A. 39:6A-1.1 to -35.

Dismissal without prejudice in this case would bar plaintiff's claim. Plaintiff's cause of action accrued on May 11, 2001, the date of plaintiff's accident. The two year statute of limitations for the filing of tort actions for injuries to a person by wrongful act, contained in N.J.S.A. 2A:14-2 ran May 11, 2003, thereby precluding the plaintiff from refiling his complaint.

We note that in Casinelli, the Court did not reach the issues of substantial compliance and equitable estoppel raised by the plaintiff. Id. At 367. Plaintiff here also asserts the defense of equitable estoppel because defendant's motion for summary judgment based on late filing of the physician's certification was not filed until one and one-half years after the filing of the complaint and after completion of extensive discovery and non-binding arbitration.

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A-2905-04T3

December 20, 2005