JEFFREY TAYLOR v. MICHAEL KAJOURAS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-0399-04T50399-04T5

JEFFREY TAYLOR and SHERRIE

TAYLOR,

Plaintiffs-Appellants,

v.

MICHAEL KAJOURAS,

Defendant-Respondent.

_____________________________________

 

Submitted November 10, 2005 - Decided

Before Judges Wecker and Graves.

On appeal from the Superior Court of New

Jersey, Law Division, Essex County,

L-7995-01.

Lieberman, Ryan & Forrest, attorneys for

appellants (Robert Forrest, on the brief).

Judith A. Heim, attorneys for respondent

(William P. Cunningham, on the brief).

PER CURIAM

Plaintiffs Jeffrey and Sherrie Taylor appeal from a summary judgment dismissing their complaint for damages for failure to meet the verbal threshold pursuant to N.J.S.A. 39:6A-8. We now reverse.

The motion judge granted defendant's motion for summary judgment on two grounds: (1) failure to satisfy the subjective, second prong of the test to establish a serious injury, as required by Oswin v. Shaw, 129 N.J. 290, 314, 318-20 (1992), and (2) failure to provide a medical expert's comparative analysis, as required by Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993). The motion was decided on August 6, 2004, prior to the Supreme Court's decisions in DiProspero v. Penn, 183 N.J. 477, 480-82 (2005), and Serrano v. Serrano, 183 N.J. 508, 517-19 (2005), which held that the verbal threshold provision of N.J.S.A. 39:6A-8, as amended by the Automobile Insurance Cost Reduction Act (AICRA), L. 1998, c. 21, does not include the subjective test previously applicable under Oswin. While it was understandable that the judge followed our then-applicable holding in James v. Torres, 354 N.J. Super. 586 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003), which continued to apply the second prong of Oswin, it is clear that James is no longer the law.

We therefore address the alternative ground for the dismissal in this case, failure to meet the requirement of Polk. Several panels of this court have recently addressed the question whether Polk remains the law after DiProspero and Serrano. The resulting opinions reflect somewhat different views on the question, which has yet to be addressed by the Supreme Court. See Hardison v. King, 381 N.J. Super. 129, 137 (App. Div. 2005); Davidson v. Slater, 381 N.J. Super. 22, 29 (App. Div. 2005); Lucky v. Holland, 380 N.J. Super. 566 (App. Div. 2005). In Davidson, Judge Conley wrote, "[i]n light of [DiProspero and Serrano], it is doubtful whether Polk and its progeny continue to be viable in the context of a verbal threshold summary judgment motion." 381 N.J. Super. at 29. In Hardison, Judge Lefelt wrote:

We do not necessarily agree with Davidson that after AICRA, DiProspero, and Serrano, comparative evidence would never be required in a non-aggravation case. In our view, the need for plaintiff to oppose summary judgment with comparative evidence when aggravation is not being claimed should not depend on any automatic application of Polk. Instead, the necessity for comparative evidence should depend upon whether the factual construct presented by the moving papers calls into question whether any reasonable jury could find that plaintiff incurred a permanent injury resulting from the subject automobile accident.

[381 N.J. Super. at 137].

And in Lucky, Judge Lisa wrote for the panel, finding the plaintiff's medical evidence sufficient to meet Polk's comparative analysis requirement.

We begin with the basic requirement of the verbal threshold statute, as set forth in Hardison:

Under AICRA, to vault the limitation on the right to claim damages for noneconomic loss contained in the verbal threshold, plaintiff must show that "as a result of bodily injury, arising out of the . . . operation . . . or use of" an automobile, plaintiff has "sustained a bodily injury which results in" one of the specifically mentioned categories of serious injury. N.J.S.A. 39:6A-8(a). In this case, the relevant category of serious injury is "a permanent injury within a reasonable degree of medical probability." Ibid. The statute considers an injury permanent "when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment." Ibid.

[Hardison, supra, 381 N.J. Super. at 136].

We have carefully reviewed the records submitted to the motion judge in this case, including the letter report of Dr. Mark Friedman dated May 20, 2003. We conclude that Dr. Friedman's report clearly satisfied the comparative analysis required by Polk, and it is therefore unnecessary in this case to determine the extent, if any, to which Polk actually remains the law with respect to the expert's report required in order to withstand summary judgment in verbal threshold cases.

Here, plaintiff was involved in a motor vehicle accident on December 23, 1999, when his vehicle was struck from behind while stopped at a toll booth on the Garden State Parkway. The accident occurred at a very low speed. Plaintiff reported having wrenched his neck and left arm. He had suffered a prior accident on July 3, 1993 and was diagnosed thereafter with restless leg syndrome. There is also evidence of injury to his cervical spine, which is an area allegedly injured in the 1999 accident.

Dr. Friedman's letter report concludes with this diagnosis:

1. Herniated cervical disc with spondylosis C6-7 greater than C5-6 with left C6 and C7 radiculopathy. In the cervical spine he has a long history of cervical difficulty but the recent MRI's show more impairment after the accident of December 23, 1999 and his complaints are much more severe after the accident of December 23, 1999. The history received from the patient and a review of the medical records indicates that he had minimal complaints if any prior to the accident of December 23, 1999. He had not received any treatment from the prior 1993 accident in quite some time.

2. He had severe spondylosis which causes an indentation of the cord and neural foraminal narrowing.

3. I believe that he has a long standing cervical nerve root irritation which was made worse by the accident of December 23, 1999. Complicating this is the fact that he has had Charcot-Marie-Tooth disease which is present and hereditary.

4. He has evidence of Charcot-Marie-Tooth disease a hereditary disease, hereditary peroneal atrophy, pescavus of his foot and atrophy of the leg and weakness of the leg. He has difficulty in dorsi-flexion.

5. In his low back he has spasm and tenderness, restricted motion, pain and weakness radiating down the left and right leg. He has sprain and strain to the low back with evidence of left sciatic nerve irritation, polyneuropathy of the lower leg due to Charcot-Marie Tooth disease. He had restless leg syndrome after the original accident of 1993 but this has decreased with time.

Within a reasonable degree of medical probability all of Mr. Taylor's current difficulties are due to the accident that occurred on December 23, 1999 with permanency in the neck with neurological irritation causing radiculopathy.

The accident of December 23, 1999 aggravated a long history of cervical difficulty. My review of all of the pre-accident records, including objective medical testing, leads me to conclude within a reasonable degree of medical probability that Mr. Taylor's pre-accident cervical condition was aggravated in the motor vehicle accident of December 23, 1999. This opinion is based on my comparison of the pre-accident and post accident objective medical testing, but not limited to, the aforementioned MRI's and EMG's and records of Mr. Taylor. It is clear that after the accident of December 23, 1999, Mr. Taylor experienced increased pain and increased limitation of motion involving his cervical spine when compared to the pre-accident residuals. This increase is substantiated by the post accident objective medical testing performed on the patient including, but not limited to the aforementioned MRI's and EMG's.

It is my opinion that with a reasonable degree of medical probability that the accident of December 23, 1999 aggravated his pre-existing condition to his cervical spine (due to degeneration, heredity, and the trauma suffered in 1993) but for which he had minimal if any complaints prior to the accident of December 23, 1999.

Prior to the accident of December 23, 1999 Taylor was not diagnosed with a herniated cervical disc with spondylosis C6-7 greater than C5-6 with left C6 and C7 radiculopathy. Prior to the accident of December 23, 1999 it was never recommended that he undergo surgical intervention in the form of anterior cervical discectomy and fusion and stabilization at C5-C6 and C6-7 with iliac bone graft with titanium plate and stabilization. Within a reasonable degree of medical probability[,] the above diagnosis and surgical recommendation are a result of the accident of December 23, 1999 which aggravated his pre existing conditions for which he had minimal if any complaints prior to the accident of December 23, 1999.

I agree with Dr. Pelosi's recommendation that the patient undergo surgical intervention in the form of anterior cervical discectomy and fusion and stabilization at C5-C6 and C6-7 with iliac bone graft with titanium plate and stabilization.

It is my opinion, within a reasonable degree of medical probability, that although further treatment in the future may alleviate some syptomatology, the permanent residuals of the injury cannot be completely resolved by way of further medical treatment intervention and there will always be some aspect of residual permanent injury experienced for the balance of patient's lifetime . . . .

In our view, Dr. Friedman's report includes a sufficient comparative analysis of plaintiff's condition, before and after the accident in issue, to meet any requirement imposed by Polk.

 
In reaching this conclusion, we do not suggest the outcome of a jury trial. We note that substantial issues of proximate cause remain, including the very issue addressed by Polk, that is, whether any injuries presently complained of were caused by the prior accident. See Polk, supra, 268 N.J. Super. at 573, 575. Nonetheless, plaintiff is entitled to go forward with his action.

Reversed and remanded for trial.

As Sherrie Taylor's claims are derivative, we refer in the balance of this opinion to Jeffrey Taylor as the plaintiff.

(continued)

(continued)

8

A-0399-04T5

February 6, 2006