ANGELO SOTTILE v. FRANCIS X. FLEMMING

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4244-03T14244-03T1

ANGELO SOTTILE,

Plaintiff-Appellant,

v.

FRANCIS X. FLEMMING,

Defendant-Respondent.

___________________________________________________________

 

Argued September 21, 2005 - Decided

Before Judges Wefing and Graves.

On appeal from the Superior Court of New Jersey,

Law Division, Hudson County, L-3308-02.

Louis J. Lamatina argued the cause for appellant.

John V. Mallon argued the cause for respondent

(Chasan, Leyner & Lamparello, attorneys; Mr. Mallon,

on the brief).

PER CURIAM

This is a verbal threshold case. Plaintiff appeals from an order of summary judgment in favor of defendant based upon plaintiff's failure to satisfy the requirements of the verbal threshold under N.J.S.A. 39:6A-8(a). In our view, plaintiff presented sufficient evidence of permanency to create a jury question. Therefore, we reverse.

At his deposition, plaintiff testified he was driving his Mazda 626 automobile on Newark Turnpike in Kearny on May 31, 2000, when the accident happened. Plaintiff was wearing his seatbelt and upon impact, he was thrown forward; however, when his air bag deployed, it struck him in the face and he was "knocked backwards." The other driver, Francis Flemming, told plaintiff that he was trying to make a U-turn, and he apologized for causing the accident. Plaintiff's nose was cut and bleeding from the accident and there were bruises on the left side of his face, including his cheekbone and his jaw. Within minutes, his back was "achy" and his jaw hurt.

Plaintiff's treating dentist, Dr. Omar Suarez, reported on July 12, 2000, that plaintiff complained of "difficulty with chewing, pain on yawning and the sensation that his jaws tire easily." The doctor also noted that on more than one occasion, plaintiff experienced "a sensation of locking in the closed position where he had difficulty opening his mouth." Upon examination, Dr. Suarez found "bilateral clicking of the temporomandibular joints," and he recommended "the fabrication and use of a mandibular orthotic appliance."

Subsequently, on January 17, 2004, Dr. Suarez noted his disagreement with a defense examination report prepared by Dr. Meiselman:

This patient was examined in my office on July 5, 2000 and treatments were started immediately afterward. Conversely, this patient was examined by Dr. Meiselman on November 7, 2003. He was examined 3 years and 4 months after my initial examination and almost 3 1/2 years after the incident in question. After reviewing Dr. Meiselman's report, it is my opinion that the report is erroneous, misleading, and a mis-representation of the facts that surround this incident. Perhaps the most troubling fact is that based on his examination which took [place] 3 years and 4 months after the incident, he questioned my clinical findings and the history of the occurrence that was obtained six weeks following the accident. The patient suffered direct trauma to the face. The patient's signs and symptoms were consistent with a temporomandibular joint injury. The x-rays that were obtained by me were simple baseline x-rays that are needed for the evaluation of a patient presenting with this type of complaint. Furthermore, it appears that in Dr. Meiselman's vague report that he himself required a panoramic x-ray in order to evaluate the patient. I would be interested in understanding the rationale of how an x-ray is required by him but an x-ray is not required by me. He also states [in] a paragraph on the last page that based on his clinical examination, Mr. Sottile has normal temporomandibular joint functions and somewhat diminished range of motion of mandibular opening. These two statements made in the same sentence contradict one another. Is there a normal temporomandibular joint or is there a temporomandibular joint with a diminished opening? Mention is also made that despite his examination of the patient with a stethoscope, he could not record any temporomandibular joint noise or clicking. I am sure that if I re-examine the patient at this time, the patient had clicking then, and would still have clicking now. This is a finding that is indicative of the severity of damage and it qualifies the fact that the temporomandibular joints were in fact injured.

In response to defendant's summary judgment motion, plaintiff submitted a certification from Dr. Suarez in which he confirmed that the clinical symptoms present during plaintiff's initial examination--including bilateral clicking of the temporomandibular joints--were still present. Dr. Suarez also concluded, to a reasonable degree of medical certainty, that Mr. Sottile suffered a permanent temporomandibular injury from the accident on May 31, 2000.

Plaintiff claimed that the accident on May 31, 2000, caused serious and permanent injuries to both his jaw and lumbar spine. Although plaintiff had sustained severe neck injuries in a prior accident in July 1999, he testified at his deposition that he did not have any low-back problems or problems with his jaw prior to the present accident. Based on an MRI study performed on July 23, 2000, an EMG and nerve conduction velocity study in October 2000, and his physical examination of plaintiff, Dr. Shan Nagendra determined on December 2, 2000, that plaintiff had suffered permanent back injuries, including "Lumbar Intervertebral Disc Disorder with Myelopathy," and "Lumbosacral Radicular Syndrome" from the accident on May 31, 2000.

Plaintiff was also involved in another automobile accident in November 2000, when his vehicle was rear-ended. That accident apparently aggravated his lower back condition, but it did not affect his jaw.

Before the trial court, defense counsel argued that plaintiff failed to satisfy the serious impact test. When asked whether he was relying on Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993), defendant's attorney seemed to concede that plaintiff had sustained new injuries that were different from the neck injury that occurred in 1999:

MR. MALLON: Okay. Your Honor, the argument on the Polk issue, . . . there was a neck injury before this. This is primarily back and jaw in this case. There are some different injuries here. It's really -- it has to go with the impact, and the argument that I'm making under that case is that through physicians he has to show that this accident has had a significant impact on his life, the injuries from this accident, and I think that's where the medical reports really do fall short. Dr. -- I think it's Dragonis (phonetic) and Najendra (phonetic), do mention a prior accident, but don't say what his limitations were, don't say how he's been affected medically from our accident. They simply state that he has a permanent injury, but not what the impact to this person was as a result of these injuries.

[Emphasis added.]

The trial judge gave the following reasons for granting defendant's motion:

I'm very concerned that the medical evidence here is not articulated in an understandable and in a form by the plaintiff's expert so that the plaintiff can meet its burden of showing that there was a permanent condition from this accident that has a serious impact and what that serious impact is because of this accident. And that's one of the reasons why Polk is here, to make it easier to make a determination as to whether or not a doctor has differentiated the problems, the symptoms, the conditions, and the disability medically. And I do not believe that the plaintiff has met his burden of proof in this particular case in having this physician that he's relying upon show what the permanent condition is and how that condition has affected his present complaints and what are attributable to the accident and what are not attributable to the accident. So I do not believe that plaintiff has met its first burden of proof and I'm going to grant the motion.

In Polk we stated:

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.]

Although Polk predated AICRA, we have continued to require a Polk analysis in cases governed by AICRA. Ostasz v. Howard, 357 N.J. Super. 65, 67 (App. Div. 2003). "[A] Polk analysis is required to differentiate a subsequent injury to a body part that was previously injured whether aggravation of the prior injury is alleged or not. Comparative analysis is required whenever previous injury to the same body part is involved." Bennett v. Lugo, 368 N.J. Super. 466, 473 (App. Div.), certif. denied, 180 N.J. 457 (2004) (internal citation omitted).

In this case, however, plaintiff does not allege that the accident involving defendant aggravated a pre-existing injury or condition, and defendant has not presented any evidence suggesting that plaintiff ever suffered any prior injuries to his jaw or lower back. Thus, we conclude that the trial judge erred in dismissing plaintiff's complaint for lack of the comparative analysis required by Polk.

Because the trial court did not specifically refer to any of the medical reports, it is not clear whether it considered the information provided by Dr. Suarez and Dr. Nagendra. In our view, if a jury determines that plaintiff and his expert witnesses are credible, it could reasonably find that plaintiff sustained permanent injuries as defined in N.J.S.A. 39:6A-8(a).

The summary judgment dismissing plaintiff's complaint is reversed. We remand for further proceedings consistent with DiProspero v. Penn, 183 N.J. 508 (2005) and Serrano v. Serrano, 183 N.J. 477 (2005). See also Beltran v. DeLima, 379 N.J. Super. 169 (App. Div. 2005) (holding that the DiProspero and Serrano decisions are to be afforded pipeline retroactivity).

 
Reversed and remanded.

(continued)

(continued)

2

A-4244-03T1

October 20, 2005