JENNIFER MOYLAN et al. v. EDWARD J. MOYLAN, III

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0035-05T50035-05T5

JENNIFER MOYLAN and

EDWARD J. MOYLAN, III,

Plaintiffs-Appellants,

v.

MAMTA MEHTA,

Defendant-Respondent.

____________________________

 

Submitted May 2, 2006 - Decided May 24, 2006

Before Judges Lefelt and Seltzer.

On appeal from the Superior Court

of New Jersey, Law Division, Somerset

County, L-671-04.

Nee Beacham and Gantner, attorneys for

appellants (Richard A. Gantner and Stacey

L. Pilato, on the brief).

Sherman and Viscomi, attorneys for

respondent (Judith E. Collins, on the brief).

PER CURIAM

Plaintiff, Jennifer Moylan, appeals from Judge Harriett Derman's August 10, 2005, order granting summary judgment to defendant and dismissing her personal injury complaint. We affirm.

The submissions demonstrate that on June 24, 2003, plaintiff was involved in an automobile accident. At the time of the accident, plaintiff was subject to the "limitation on lawsuit" threshold contained in N.J.S.A. 39:6A-8a. After an answer had been filed and discovery exchanged, defendant sought summary judgment dismissing the complaint, asserting a failure to cross the threshold.

Plaintiff's suit was based on a claim that the accident resulted in permanent injuries to her cervical spine and knee. Accordingly, plaintiff was required to show objective medical evidence demonstrating the existence of a permanent injury occasioned by the accident. See Serrano v. Serrano, 183 N.J. 508, 509 (2005) (citing DiProspero v. Penn, 183 N.J. 477, 480-82 (2005)).

Judge Derman recognized her obligation "'to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party.' Brill v. Guardian Life Insurance Company of America, 142 N.J. 520, 523 (1995)." We review the decision by applying the same standard as that employed by the motion judge, Prudential Prop. & Cas. Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.) certif. denied, 154 N.J. 608 (1998), without affording any special deference to the judge's interpretation of the law. Manalapan Realty L.P. v. Twp. Committee, 140 N.J. 366, 378 (1995).

Judge Derman evaluated the materials before her as follows:

In the present case, this court finds that Plaintiff has failed to produce the requisite objective medical testing necessary to survive the Verbal Threshold. With regard to Plaintiff's knee injury, the relevant MRI and X-ray testing was negative. Plaintiff has failed to provide a certification of permanency with regard to this injury. Dr. Gecha's report and diagnosis (submitted after this motion was filed) is primarily based upon Plaintiffs subjective complaints of pain and tests involving range of motion. . . . Even so, Dr. Gecha describes the knee status as "clinically stable. She has full motion. She has no effusion. . . . My impression . . . is tendonitis." She has had no treatment since November 2003. Plaintiff's knee injury is therefore an insufficient basis to survive the verbal threshold.

With regard to Plaintiff's cervical spine injury, the relevant MRI and X-ray testing failed to show any indication of disc bulging or herniation. The MRI found only evidence of degenerative spondylosis. Ibid. Interestingly, however, Dr. Miller's certification of permanency fails to mention this condition. Dr. Miller's certification mentions only a decreased range of motion and palpable muscle spasm. Range of motion indications are insufficient to survive the verbal threshold. Oswin v. Shaw, 129 N.J. 290, 320 (1992). While findings of muscle spasm are objective findings, Oswin, 129 N.J. at 320, the decisions of the Appellate Division are replete with findings that evidence of muscle spasm shortly following an accident are insufficient by themselves to find permanency. See, e.g., Chalef v. Ryerson, 277 N.J. Super 22, 37 (App. Div. 1994) (holding that while spasm may be an objective form of evidence, it is insufficient by itself to withstand summary judgment); . . . Cavanaugh v. Morris, 273 N.J. Super. 38, 41 (App. Div. 1994) ("report of continuing spasm long after the accident [more than a year] meets Oswin's objective medical-evidence requirement"); Owens v. Kessler, 272 N.J. Super. 225, 232 (App. Div. 1994) (holding that "[s]pasm ... still evident . . . twenty-six months after cessation of active medical treatment, clearly constitutes prima facie objective evidence of permanent injury").

This court finds that Dr. Miller's finding of spasm a mere five months after the accident is an insufficient basis to avoid summary judgment. "The absence of spasm after treatment is obvious evidence that any claim of permanency based solely upon the existence of spasm will not withstand summary judgment." Owens, 272 N.J. Super. at 232. The lack of additional objective medical evidence with regard to this condition amplifies that finding.

At oral argument, Plaintiff also relied on a reference to "minimal spondylosis" in the cervical area, referenced in the MRI report. Defendant argues that spondylosis is degenerative in nature. The MRI report does not rescue Plaintiff as it says definitively, "Essentially, negative MRI of the cervical spine." There is nothing in the record to suggest the accident caused the spondylosis.

Based on this court's review of the record in this case, it appears that Plaintiff's injuries are insufficient to satisfy the Verbal Threshold.

Our independent review of the record leaves us in full accord with Judge Derman's evaluation of the submissions and her application of the law. Plaintiff's argument that the physician's certification required by N.J.S.A. 39:6A-8a creates a factual issue and compels the denial of the motion is contrary to our opinion in Rios v. Szivos, 354 N.J. Super. 578 (App. Div. 2002). Accordingly, we affirm substantially for the reasons set forth by Judge Derman in her comprehensive six-page Memorandum of Decision explaining the rationale for her August 10, 2005 order dismissing plaintiff's complaint.

Affirmed.

 

Plaintiff's husband, Edward J. Moylan, III, was also named as a plaintiff in the complaint. He has not appealed from the judgment that also dismissed his claim.

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A-0035-05T5

May 24, 2006