JESSICA HERNANDEZ v. LUANN GOELLNER et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6821-03T26821-03T2

JESSICA HERNANDEZ a/k/a

JESSICA DOUGHTERY,

Plaintiff-Appellant,

v.

LUANN GOELLNER and

JOSEPH GOELLNER,

Defendants-Respondents.

___________________________________________________________

 

Argued August 30, 2005 - Decided

Before Judges Payne and Graves.

On appeal from Superior Court of New Jersey, Law

Division, Hudson County, L-6710-02.

Ronald M. Gutwirth argued the cause for appellant.

Matthew Toto argued the cause for respondents (Ronca,

McDonald & Hanley, attorneys; Mr. Toto, on the brief).

PER CURIAM

Plaintiff Jessica Hernandez appeals from the trial court's order granting summary judgment based upon plaintiff's failure to satisfy the requirements of the verbal threshold under N.J.S.A. 39:6A-8(a). The court held that plaintiff's injuries were neither permanent nor serious. In our view, plaintiff presented sufficient evidence of permanency to create a jury question. Therefore, we reverse and remand for trial.

On October 20, 2000, plaintiff was the operator of a motor vehicle that had stopped on Routes 1 and 9 South on the Hackensack Bridge in Jersey City. Traffic in front of plaintiff's vehicle slowed down and then stopped because of construction activity. While stopped, plaintiff's vehicle was struck from behind by a car driven by defendant Luann Goellner. Following the accident, plaintiff was taken in an ambulance to Christ Hospital where she complained of back pain, neck pain and head pain. After plaintiff was evaluated and x-rayed, she was released from the hospital. But she received subsequent treatment from her own physician.

In response to defendants' motion for summary judgment, plaintiff's attorney argued that there was a genuine factual dispute as to both "the objective prong and the subjective prong" and that "a reasonable fact-finder could conclude that this plaintiff has overcome the verbal threshold." The trial judge disagreed, reasoning as follows:

I look at this and I find that there is no objective medical evidence. We have one MRI taken four months after the accident which shows a bulge. We have no idea how long that bulge is there. It could have been there many, many years it could be there. It could be gone tomorrow. It's not a herniation. The definition of a disc bulge and a herniation is clear that the herniation is such that it can never go back; a bulge can go back. So there is no proof of a permanent medical condition with just this one test. And the range of motion test can indicate that there is muscle spasm and other issues; however, there is no indication [of] that . . . or any test to show that there's any permanency in it. So I do not believe that this plaintiff has met the first prong of the test.

And as for the second prong of the test, I do not see any significant limitation on this individual's life caused by this injury.

So I'm going to grant the motion.

On June 14, 2005, the Court decided DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005). DiProspero held that the plain language of N.J.S.A. 39:6A-8(a) does not contain a serious life impact standard. DiProspero, supra, 183 N.J. at 506. Serrano held "that in order to recover noneconomic damages, an accident victim has to prove only an injury defined in N.J.S.A. 39:6A-8(a), and does not have to clear the additional hurdle of proving a 'serious injury.'" Serrano, supra, 183 N.J. at 510. In the consolidated cases of Beltran v. DeLima and Imerman v. Munoz, 379 N.J. Super. 169 (App. Div. 2005), we determined that the DiProspero and Serrano decisions should be afforded pipeline retroactivity. Thus, the issue is whether plaintiff has made a prima facie showing of a permanent injury.

In addition to the MRI examinations referred to by the trial judge, plaintiff also relied on reports by Dr. Rao and Dr. Horwitz. Dr. Rao certified that he treated plaintiff for injuries she sustained in the automobile accident on October 20, 2000, and he stated:

3. It is my opinion to a reasonable degree of medical probability, that Ms. Hernandez-Dougherty, sustained permanent injury to the cervical and lumbar spine as a result of the accident which occurred on October 20, 2000. The objective clinical evidence on which I base my opinion of permanency, include magnetic [resonance] imaging of the lumbosacral spine and cervical spine, which are recognized in the medical community as reliable diagnostic studies and tools for injuries to the cervical lumbosacral spine such as the one that my patient has sustained.

4. Additional objective medical evidence which established Ms. Hernandez-Dougherty['s] permanent injuries include muscle spasms to the neck and back at the time of discharge from my office as well as limitations of range of motion of the cervical lumbar spine which was observed personally by me at the time of discharge from my care.

Dr. Rao's findings and conclusions were echoed by Dr. Horwitz. In his six-page certification dated June 28, 2004, Dr. Horwitz fully explains why he concluded, to a reasonable degree of medical certainty, that plaintiff "has suffered a permanent, significant loss of function to her lumbar and cervical spine as a direct result of her motor vehicle accident of August 20, 2000." Dr. Horwitz also certified that his opinion was based on objective findings resulting from his personal examination of plaintiff, together with the results of other objective tests, including the MRI examinations of the cervical spine and lumbar spine on February 19, 2001.

In our view, if a jury were to find that Dr. Rao and Dr. Horwitz are credible witnesses, it could reasonably find that plaintiff sustained permanent injuries as a result of the automobile accident on October 20, 2000. Therefore, the evidence is not so one-sided that defendants are entitled to prevail as a matter of law. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

The summary judgment in favor of defendants is reversed, and the matter is remanded for trial.

 

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A-6821-03T2

September 28, 2005