MYRIAM A. GUADALUPE et al. v. OLIVIA M. RAMOS, WENDY C. TEJADA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2080-05T22080-05T2

MYRIAM A. GUADALUPE and

PACO GUADALUPE,

Plaintiffs-Appellants,

v.

OLIVIA M. RAMOS, WENDY C.

TEJADA,

Defendants-Respondents,

and

JOAO G. BITTENCOURT,

Defendant.

______________________________________________________________

 

Submitted August 29, 2006 - Decided November 15, 2006

Before Judges R. B. Coleman and Holston, Jr.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, L-2879-04.

Aslanian & Khorozian, attorneys for appellants (Raffi T. Khorozian, on the brief).

Brian J. McGovern, attorneys for respondents (Mr. McGovern and Alison M. K. Lee, on the brief).

PER CURIAM

Plaintiffs, Myriam and Paco Guadalupe appeal from a grant of summary judgment on October 21, 2005, in the context of New Jersey's no-fault insurance plan, the Automobile Insurance Cost Reduction Act of 1998 (AICRA). On June 19, 2002, defendant Joao Bittencourt struck the rear of an automobile driven by defendant Wendy C. Tejada. This, in turn, caused Tejada's automobile to strike the vehicle driven by plaintiff, Myriam Guadalupe. Plaintiff sustained injuries and subsequently obtained treatment for these injuries at Palisades Medical Group from June 19, 2002, until approximately April 29, 2004.

Thereafter, on May 25, 2004, plaintiff filed a complaint alleging that she suffered both permanent and temporary injuries as a result of the accident. In response to interrogatories, plaintiff alleged that she suffers from diffuse bulging of both the C6-C7 disc and the L4-L5 disc, and that such injuries are permanent in nature. The court granted summary judgment in favor of defendant, finding that while there exists a genuine dispute as to the permanency of the injuries, nevertheless, plaintiff failed to provide an adequate analysis of her injuries as required by Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993).

When dealing with summary judgment motions, courts must view the evidence in the light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In an AICRA case, in order to cross "the verbal threshold," a plaintiff must show that his or her injury is a "permanent injury." N.J.S.A. 39:6A-8. An injury is 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. A plaintiff need only demonstrate an injury defined under the statute. DiProspero v. Penn, 183 N.J. 477, 480-82 (2005). No longer is there a requirement that an injury have a serious impact on the person's life. Id. at 481-82. At the summary judgment stage, a dispute as to a material fact, such as the existence of a statutorily defined injury, must be demonstrated by objective, credible medical evidence. Id. at 495-96.

In this case, the motion judge found that the MRI studies, the medical reports diagnosing the disc bulges, and the duration of treatment and pain were sufficient to create a dispute as to a material fact, that is, the permanency of the injuries. The court based its ruling as to permanency upon the fact that:

[Plaintiff] has provided this court with medical reports which have diagnosed her with cervical and lumbar sprain as well as disc bulges at C6/C7, L4/L5. She has provided not only a medical report which has indicated a final diagnosis of disc bulges but she has also provided copies of MRI studies which confirm the disc bulges at C6/C7, L4/L5.

. . . .

Further, it does appear from the medical submissions made to this court that this plaintiff has continued to treat for a significant period of time after the accident. . . . The doctors have opined that she continues to suffer from pain corroborated by physical examinations in that the doctors have indicated that their examinations have revealed spasm which they indicate is positive proof of injury to the area in question.

The court's findings are adequately supported by the record and summary judgment was properly denied on this ground.

Under Polk, supra, 268 N.J. Super. at 575, when a plaintiff alleges aggravation of a previous injury, that plaintiff must provide a comparative medical analysis covering the period before the accident and after the accident. Here, in response to Form Interrogatory A, which asks if aggravation of previous injuries is being alleged, plaintiff referred to a 1998 accident in which plaintiff was involved. Defendant argues that this triggered the requirement of a Polk analysis. We disagree.

Other than plaintiff's answer to the interrogatory, which stated specifically "12/29/98 accident (To be supplied)," nowhere else does a claim of aggravation appear. The record reveals that plaintiff was involved in two prior accidents. In an undated accident in 1996, for which plaintiff asserts no medical documentation is available, plaintiff claims she suffered an injury to her arm. Plaintiff does not complain of continuing pain or treatment for that injury. In the second prior accident, which occurred on December 29, 1998, plaintiff sustained the injuries referenced in her answer to the interrogatory asking about aggravation of previous injuries. However, plaintiff's medical expert, in his report, does not assert an aggravation of prior injuries, and the medical records indicate that the injuries from the June 19, 2002 accident that are the subject of this lawsuit affected plaintiff's spine, a portion of her body different from that affected in the December 29, 1998, accident. "[T]he necessity for comparative evidence should depend upon whether the factual construct 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." Hardison v. King, 381 N.J. Super. 129, 137 (App. Div. 2005).

There is no genuine claim of aggravation and there is a total absence of any medical records showing injuries to the same body part. Under such circumstances, a Polk analysis is not required. It follows that a grant of summary judgment on the grounds of an inadequate Polk analysis was inappropriate.

Here, plaintiff's expert relied upon evidence that included MRI reports of the affected areas completed after the 1998 accident, in addition to testing conducted after the accident at issue. The MRIs of the affected areas are relevant on the issue of causation. As such, when one gives plaintiff the benefit of every reasonable inference, as required by Brill, supra, 142 N.J. at 540, there is a question as to whether the 2002 accident caused the alleged injuries to plaintiff's spine.

The trial court found that plaintiff failed to meet the requirements of Polk because "one paragraph [of the expert's report] is [in]sufficient under Polk to adequately resolve the issue of causation." Specifically, regarding the causation issue, the report prepared by plaintiff's expert states:

I believe there is a direct causal relationship between the cervical spine and lumbar spine findings and the accident involved. We have reviewed the patient's records and confirmed that the patient did not have any abnormal findings prior to the motor vehicle accident in question. Therefore, it is our impression that the accident of June 19th, 2002 was directly responsible for the physical findings and diagnosis noted in this report.

In deciding a summary judgment motion, a trial court should not make findings of fact. Brill, supra, 142 N.J. at 540; Judson v. Peoples Bank & Trust Co. of Westfield, 17 N.J. 67, 75 (1954). Therefore, it is inapposite whether one paragraph of the expert's report is sufficient to "resolve the issue of causation." It need only create a question as to a material fact when viewed in a light most favorable to plaintiff, which we find that it does.

The report does not contain the type of conclusory language found to be insufficient under Lucky v. Holland, 380 N.J. Super. 566 (App. Div. 2005), but rather is based upon a review and comparison of medical records created before the accident at issue, with records created after the accident. That comparison disclosed no similar, prior injuries. The plaintiff need not prove conclusively the issue of causation in her favor at the summary judgment stage. Indeed, a jury may ultimately decide that there is a lack of causation; but that is not for us to decide. Based on plaintiff's credible medical evidence, there exists a genuine issue of material fact as to whether the injuries to plaintiff's spine were caused by the accident in question. For that reason, summary judgment should have been denied.

Finally, we find no prejudice to the defendant by allowing consideration of plaintiff's medical evidence, even though it was submitted after the end of the discovery period. There is no indication that defendants would have altered their claims that plaintiff's Polk analysis was insufficient. Therefore, they were not prejudiced by the delay in reviewing plaintiff's records from the 1998 accident.

Affirmed in part, reversed in part and remanded for further proceedings consistent with this opinion.

 

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A-2080-05T2

November 15, 2006