REBECCA METTA v. RON D. BERKOWITZ et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2405-05T32405-05T3

REBECCA METTA,

Plaintiff-Appellant,

v.

RON D. BERKOWITZ and

DAVID B. BERKOWITZ,

Defendants-Respondents.

________________________________________________________________

 

Submitted July 18, 2006 - Decided August 7, 2006

Before Judges Parker and Sapp-Peterson.

On appeal from the Superior Court of New

Jersey, Law Division, Monmouth County,

Docket No. MON-L-4206-03.

Schibell & Mennie, attorneys for appellant

(Richard D. Schibell, of counsel; Mark D.

Kentos, on the brief).

Carton Law Firm, attorneys for respondents

(James D. Carton, of counsel and on the brief).

PER CURIAM

In this verbal threshold case, plaintiff Rebecca Metta appeals from an order entered on December 1, 2005 granting summary judgment dismissing the complaint. We affirm.

This matter arises from an automobile accident on April 25, 2002 in which plaintiff's vehicle was rear-ended by a vehicle operated by defendant Ron D. Berkowitz and owned by defendant David B. Berkowitz. After complaining of headache at the scene of the accident, plaintiff was transported by ambulance to the Jersey Shore Medical Center Emergency Room. X-rays were taken and she was released with a prescription for ibuprofen for musculoskeletal pain. The next day she went to CentraState Medical Center complaining of "unbearable" pain in her neck. She was given a soft collar and prescriptions for pain and muscle relaxants.

She returned to CentraState on April 30, 2002 complaining of pain in her neck, right shoulder, headache, lower back and buttock/tail bone. Adriana Stolte, M.D., noted that plaintiff had a limited range of motion, muscle spasm, fixation, taut/tender fibers and paresthesia/radiculopathy in the cervical and lumbar regions. Edema was also noted in the cervical region.

Plaintiff continued to be treated and to complain of pain. On May 28, 2003, she was examined by Robert Dennis, M.D., an orthopedic surgeon who reviewed the reports and objective studies. In Dr. Dennis's opinion, plaintiff suffered:

1. TMJ problems.

2. Flexion and extension injury of the cervical spine.

3. Severe ligamentous injury of the cervical spine with cervical sprain, still in the acute phase.

4. Referred pain to the mid scapular area and along the rhomboid spasm.

5. Lumbar sprain.

He further opined that plaintiff "has been left with significant permanent residuals that expectedly will cause her to continue to have to limit her activities."

In August 2002, Dr. Stolte rendered a report in which she opined that plaintiff suffered a significant and permanent loss of function and use to the cervical and lumbar areas as a result of the accident. Dr. Stolte diagnosed plaintiff with cervical disc syndrome, migraine headache and sciatica neuritis. X-rays taken on April 30, 2002 indicated a loss of the normal cervical lordotic curvature, narrowed disc spaces from C4 to C6 with mild degenerative osseous changes from C4 to C7; increased lordotic curvature and thinning of the disc spaces between L4-5 and L5-S1 with facet imbrication. Dr. Stolte specifically noted that MRIs taken on July 18, 2002, however, were negative in the cervical area and indicated only a Schmorl's node in the lumbar region. "The overall prognosis for significant improvement is limited since injuries of this nature are precursors to progressive accelerated arthritic changes in the joint adjacent to and involved in the area injured."

On September 2, 2002, plaintiff had a subsequent accident in which she fractured her coccyx.

In May 2004, plaintiff was examined by Charles Daknis, M.D., who evaluated her prior history and diagnosed her as suffering from cervical and lumbar facet syndrome. Dr. Daknis noted that "MRI[s] of the cervical and lumbar spine are reviewed noting no disc herniation, but some notably traumatic appearing discs on the cervical as well as lumber spine." He did not, however, relate the "traumatic appearing discs" or the "lumbar facet syndrome" to the April 2002 accident.

On March 16, 2005, Robert Warren, M.D., a board certified orthopedist, examined plaintiff on behalf of defendant. Dr. Warren found that plaintiff suffered cervical and lumbar strain as a result of the accident on April 25, 2002 and that she showed "no evidence of any organic lesions, disc herniations or peripheral nerve or nerve root involvement. There is no evidence of radiculopathy in spite of her radicular complaints. Ms. Metta is a classic example of a young, healthy person with soft tissue injuries in the form of muscular strains." He specifically found within a reasonable degree of medical probability that plaintiff presented no evidence that she sustained any injuries of permanent nature as a result of the accident.

In November 2005, defendants moved for summary judgment and on December 1, 2005, the court granted the motion without oral argument. The judge did, however, provide a written statement of reasons as follows:

FACTS

Defendants Ron and David Berkowitz move for summary judgment dismissing plaintiff's Complaint with prejudice. The case arises out of a motor vehicle accident occurring on April 25, 2002.

Immediately after the accident, the plaintiff went to the emergency room during which time she was x-rayed. The report read, "the facets are aligned normally and there is no abrupt transition in the interspinous intervals." The following day, the plaintiff returned to the emergency room and was x-rayed again. Such report read, "[e]xamination of the cervical spine demonstrates the vertebrae and disc spaces to be within normal limits. The odontoid, as visualized, appears unremarkable. IMPRESSION Negative exam."

Plaintiff was treated with a chiropractor who recommended she receive an MRI of the cervical and lumbar spines. Such were performed on July 18, 2002. The MRI report of the lumbar spine read, "[o]n magnetic resonance imaging study of the lubrosacral spine, evidence of Schmorl's nodes is noted as described above. These are usually of no clinical significance. No other abnormalities are seen."

The MRI report for the cervical spine read, "[n]egative resonance imaging study of the cervical spine."

Dr. Ira Klemons created a narrative report on August 9, 2005 and stated that it was his "professional opinion based upon the information provided to date, including Ms. Metta's negative history of prior pain or disability, that within a reasonable degree of medical probability it can be stated that her present pain condition resulted from injuries sustained in the accident of April 25, 2002.

The plaintiff treated with chiropractors at Monmouth Medical Association for a total of four months after the accident. The chiropractor, Dr. Joe Simone, stated that the plaintiff had, "a significant and permanent loss of function an[d] use to the areas noted in the physical exam."

On May 28, 2003, Dr. Robert Dennis examined plaintiff and noted that plaintiff had a subsequent accident during which time she suffered a fractured coccyx and "ligamentus injury to the cervical spine and referred pain." Plaintiff points out that at this time Dr. Dennis noted spasm in the lumbar spine coupled with a significant limitation in the range of motion of the cervical and lumbar spine.

The plaintiff was examined by Dr. Charles Daknis on May 19, 2004, at which time he found plaintiff had a normal lumbar lordosis, normal motor examination, normal muscle tone, no sensory loss, normal reflexes, negative straight leg raising, normal cervical lordosis, normal strength, intact cervical, and upper thoracic dermatomes, normal reflexes. Dr. Daknis read the MRI of the cervical and lumbar spine as "noting no disc herniation, but some notably traumatic appearing discs on the cervical as well as lumbar spine."

STANDARD OF REVIEW

The purpose of the Summary Judgment procedure is to provide a prompt, businesslike, and inexpensive means of disposing of a case. R. 4:46-2 states that where it appears that there is no genuine issue of material fact presented, it is for the Court to determine the Motion on the applicable law. Judson v. Peoples Bank & Trust Company of Westfield, 17 N.J. 67, 74 (1955); Rothman v. Silber, 90 N.J.Super. 22, 33 (App. Div. 1966).

In Judson v. Peoples Bank & Trust Co. of Westfield, supra, Justice Brennan quoted the following from Clark, The Summary Judgment, 36 Minn. L. Rev. 567, 579 (1952):

". . . what is needed is the application of common sense, good judgment, and decisive action, on the one hand and, on the other, not to allow harassment of an equally deserving suitor for immediate relief by a long worthless trial."

R. 4:46-2(c) states, in pertinent part, that a Motion for Summary Judgment should be granted"

"[I]f the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any show that there is no genuine issue as to any material fact challenged and that moving party is entitled to a judgment or order as a matter of law."

Once the moving party has demonstrated that there is no genuine issue of fact, the burden of going forward with the evidence shifts to the opponent of the Motion. The opponent must show controverting facts, not merely ipse dixit representations or allegations in pleadings without affidavit or other evidentiary support. The opponent of the Motion must establish the existence of a genuine issue of material fact. Failure to discharge this duty will entitle the movant to the relief sought. Judson v. Peoples Bank & Trust Co. of Westfield, supra, at 75.

Once the burden has shifted, certain requirements as set forth in R. 4:46-5(a) must be met:

"When a motion for Summary Judgment is made and supported as provided in this Rule, an adverse party may not rest on mere allegations or denials of his pleadings, but his response by affidavits must set forth specific facts showing that there is a genuine issue for trial."

Summary judgment is a procedure which requires careful consideration and due deliberation and should be granted with caution. Devlin v. Surgent, 18 N.J. Super. 148, 154 (1995); Friedman v. Friendly Ice Cream Co., 133 N.J. Super. 333 (App. Div. 1974). Where, however, the moving party demonstrates by competent evidential material that no genuine issues of fact exists, the Court, as a matter of law, should grant the party's Motion for Summary Judgment.

The Supreme Court of New Jersey revisited the standard to be applied by the trial judge when determining a motion for summary judgment in Brill v. Guardian Life Insurance Co., 142 N.J. 520 (1995). Specifically, the Court focused on whether an existing issue of fact is to be considered "genuine" under R. 4:46-2 or, in the alternative, merely "of an insubstantial nature" thereby allowing the granting of summary judgment. Id. at 530. The Supreme Court stated that, although summary judgment is based solely on documentary evidence, the essence of the inquiry by the trial judge should be the same as is applied in motions for directed verdicts: "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Id. at 536. (quoting Anderson v. Liberty Lobby, 477 U.S. at 251-252).

Thus, the new standard for determining whether a "genuine issue" of material fact exists in a summary judgment motion requires the trial court to "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact finder to resolve the alleged dispute in favor of the non-moving party." Id. at 540. However, where there "exists a single, unavoidable resolution of the alleged disputed issue of fact, that issue should be considered insufficient to constitute a genuine issue of material fact for the purposes of R. 4:46-2." Id. The Court concluded by stating that "[t]he thrust of today's decision is to encourage trial courts not to refrain from granting summary judgment when the proper circumstances present themselves." Id. at 541.

ANALYSIS

In DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005), the Supreme Court determined that, to clear the verbal threshold and recover non-economic damages, the plaintiff need not prove that s/he sustained a "serious injury." Specifically, in declining to re-write the AICRA statute, the Court found, taking into account the holding in DiProspero, that a plaintiff need only "prove by objective clinical evidence, supported by a physician certification, under penalty of perjury, an injury fitting into one of the six statutorily defined threshold categories" to clear the verbal threshold.

A finding by a doctor of a possible muscle spasm, herniated disc or disc bulge, or peripheral neuropathy is merely a differential diagnosis if solely based upon the patient's subjective statements of pain because there is no objective proof of a definite injury to support the doctor's finding. Polk v. Daconceicao, 268 N.J.Super. 568, 573 (App. Div. 1993). However, the existence of muscle spasms can be prima facie objective evidence of a permanent injury that would withstand a summary judgment motion under the verbal threshold depending on the frequency and persistency of the spasms. Owens v. Kessler, 272 N.J.Super. 225 (App. Div. 1994). Additionally, Whitaker v. Devilla states that "the findings of muscle spasm may constitute an objective medical finding." 147 N.J. 341, 358 (1997).

Though, in recent years, with the new verbal threshold, courts seemed to have tightened the standard. An MRI of a plaintiff's cervical and lumbar spine, which revealed bulging discs did not satisfy the objective standard of N.J.S.A. 39:6A-8a. See James v. Torres, 354 N.J.Super. 586 (App. Div. 2002). Also, muscle spasms documented up to five months after the accident, accompanied by some loss of range motion, were insufficient to support a finding of a permanent injury. See Jacques v. Kinsey, 347 N.J.Super. 112 (App. Div. 2001).

Plaintiff has been examined on at least four different occasions and has had cervical MRIs, lumbosacral MRIs, and cervical x-rays. All of those objective tests were negative. The most plaintiff can point to as possible objective evidence of a permanent injury is a spasm observed by Dr. Simone on April 30, 2002 and by Dr. Dennis on May 28, 2003. Additionally, plaintiff states that "although Dr. Daknis does not label what he finds upon his review of the MRI films of the cervical and lumbar spine a 'herniation' or 'bulge,' he does note 'traumatic appearing discs on the cervical as well as lumbar spine.'" Even if all of these facts are viewed in the light most favorable to the plaintiff as required by the Brill standard, it is the opinion of this Court that such would not be enough to overcome the verbal threshold standard as set forth in N.J.S.A. 39:6A-8a.

We have carefully considered the extensive record in light of plaintiff's arguments in light of the applicable law. We affirm substantially for the reasons set forth in Judge Daniel M. Waldman's written statement of reasons appended to the December 1, 2005 order. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Affirmed.

 

(continued)

(continued)

11

A-2405-05T3

 

August 7, 2006