WLADYSLAW JASLINSKI v. DIOUHE T. DIALLO

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2702-04T12702-04T1

WLADYSLAW JASLINSKI,

Plaintiff-Appellant,

v.

DIOUHE T. DIALLO,

Defendant-Respondent.

_______________________________________________

 

Submitted February 14, 2006 - Decided March 7, 2006

Before Judges C.S. Fisher and Humphreys.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-0093-02.

Bruce G. Cassidy, attorney for appellant.

Leary, Bride, Tinker & Moran, attorneys for respondent (James T. Gill, of counsel and on the brief).

PER CURIAM

Summary judgment was entered based upon the trial judge's determination that plaintiff's claim could not meet the requirements of the verbal threshold statute, N.J.S.A. 39:6A-8. Since we conclude that plaintiff alleged a permanent injury and since we also conclude that, if the requirements of Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993) are still viable, plaintiff sufficiently distinguished the injuries in question from other prior injuries and pre-existing conditions, we reverse.

I

Plaintiff filed a complaint alleging he suffered personal injuries resulting from an automobile accident in Hillsborough Township on April 1, 2000. Plaintiff claims his vehicle was struck by a vehicle negligently operated by defendant Diouhe T. Diallo. Plaintiff had been injured as a result of three prior accidents, the most recent of which was in 1992, and was also injured in a subsequent auto accident on November 24, 2003.

The trial judge entered summary judgment on January 26, 2005 based upon plaintiff's purported failure to vault the verbal threshold and, specifically, plaintiff's failure to provide an adequate Polk comparative analysis. The judge also determined that the opinion of plaintiff's expert that 80% of plaintiff's present complaints were brought about by the April 1, 2000 accident and 20% by the November 24, 2003 accident was a net opinion that could not defeat summary judgment. Plaintiff appealed.

II

Plaintiff's claim is governed by the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-8, the Legislature's most recent attempt to eliminate "suits for injuries which are not serious or permanent," N.J.S.A. 39:6A-1.1. Until recently, it was understood that AICRA required that a plaintiff present evidence of one of the types of injury delineated in AICRA and that the injury had a serious impact on plaintiff's life in order to defeat summary judgment. See James v. Torres, 354 N.J. Super. 586, 596 (App. Div. 2002), certif. denied, 175 N.J. 547 (2003). In addition, we had previously held that a comparative analysis is required in AICRA matters to defeat summary judgment when the plaintiff claims an injury to or aggravation of a body part that had also been injured in an earlier accident. Ostasz v. Howard, 357 N.J. Super. 65, 67 (App. Div. 2003).

Bound by our holdings in James and Ostasz, the trial judge considered the significance of plaintiff's pre-existing condition on his present claim. She described the parties' contentions in the following way:

As a result of the accident, [p]laintiff claims to have sustained personal injuries consisting of lower back strain and damage to his left arm, as well as various cuts, contusions and abrasions.

Plaintiff first treated for his injuries at St. Peter's Hospital in New Brunswick on the day of the accident. Plaintiff first treated with Dr. Eugene Pirog on April 4, 2000 for injuries allegedly sustained in this car accident. Dr. Pirog acknowledged that, prior to his accident, [p]laintiff had a pre-existing bulging disc, degenerative disc disease and spondylolysis.

On June 9, 2000, [p]laintiff had MRI's taken at University Radiology Group which revealed minimal disc bulge without significant central or foraminal stenosis at T11-T12; no evidence of herniation at T12-L1 and L1-L2; broad based disc bulge at L2-L3, L3-L4 and L4-L5; no evidence of disc herniation at L5-S1; and partially sacralized transitional vertebra at L5.

. . . .

Dr. Pirog states in his September 21, 2000 letter that the accident in question "certainly aggravated his bulging disc." In addition, Dr. Pirog states that, despite this pre-existing condition, [p]laintiff was very active prior to the accident in question. Dr. Pirog also noted that he based his findings in part on [p]laintiff's subjective complaints of increased levels of pain. There is, however, no discussion of [p]laintiff's prior medical records or any other objective findings. In addition, there is no mention of any previous MRI results for comparison with those taken after the current accident. Indeed, there is no reference to the three prior accidents. Without a comparison based on objective medical evidence sufficient to satisfy a Polk analysis as to the prior accidents and the pre-existing degenerative changes of an 80 year old man, including bulging discs, [p]laintiff's present complaints are insufficient under the verbal threshold. Polk, 268 N.J. Super. at 575.

. . . .

Finally, this court notes that [p]laintiff was diagnosed by Dr. Pirog as having other injuries aside from disc bulge. Those other injuries, including spasms, pain and limitation of motion, however, are insufficient under the verbal threshold as a matter of law. There is no specific mention of spasm beyond the initial September 21, 2000 report. Spasm cannot be currently found to exist in 2004 just because Dr. Pirog indicates, "[h]e continues to suffer from his previous injuries that are mentioned in my earlier reports." The objective medical evidence reveals only the following: minimal disc bulge at T11-T12 and broad based disc bulge at L2-L3, L3-L4 and L4-L5.

The trial judge also made mention of the significance of plaintiff's November 24, 2003 auto accident to this lawsuit:

Plaintiff did not satisfy Polk with respect to this subsequent accident. The report of December 9, 2004 provides an insufficient Polk analysis. Dr. Pirog attributes 80% of the [p]laintiff's injuries to the April 1, 2000 accident and 20% to the November 24, 2003 accident, but provides no explanation for this allocation except [p]laintiff's subjective complaints (and again without reference to the earlier accidents and the pre-existing degenerative bulges). Polk is not satisfied and the statement is a net opinion.

Based upon the then existing precedent, which bound her resolution of defendant's motion for summary judgment, the trial judge concluded that plaintiff failed to vault the verbal threshold.

III

On June 14, 2005, while this matter was on appeal, our Supreme Court decided DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005). In those decisions, the Court rejected our holding in James v. Torres, supra, 354 N.J. Super. 586, and significantly altered the existing legal landscape by concluding that the Legislature did not intend that plaintiffs should meet the "serious impact" prong of the Oswin test when attempting to meet the requirements of AICRA's verbal threshold. The Court also held that an AICRA plaintiff is not obligated to demonstrate that an injury is serious because "the Legislature considered the injuries defined in N.J.S.A. 39:6A-8(a) to be serious by their very nature." Serrano, supra, 183 N.J. at 510. Even more recently, the Court again emphasized this point, holding in Juarez v. J.A. Salerno & Sons, Inc., 185 N.J. 332, 334 (2005), reversing, 379 N.J. Super. 91 (App. Div. 2005), that the appellate panel in that case "apparently misread" the Supreme Court's earlier decisions by "superimpos[ing], perhaps inadvertently, the same serious injury standard . . . disapproved of in Serrano."

In addition to this significant change in the way AICRA had previously been interpreted, panels of this court have also -- in the wake of the Supreme Court's recent decisions -- disagreed about whether Polk's requirements should be applied to AICRA cases. As noted earlier, prior to DiProspero and Serrano, one panel of this court held that Polk continued to apply. Ostasz, supra, 357 N.J. Super. at 67.

Once the Supreme Court decided DiProspero and Serrano, new questions were raised about the vitality of Ostasz. On October 12, 2005, one panel impliedly recognized the application of Polk to AICRA cases. Lucky v. Holland, 380 N.J. Super. 566, 573 (App. Div. 2005). Eight days later, another panel found Polk inapplicable and expressly stated its disagreement with Ostasz. Davidson v. Slater, 381 N.J. Super. 22, 28-29 (App. Div. 2005). And, on November 2, 2005, a third panel summarized this "developing controversy" but found it unnecessary, in the circumstances of that case, to "enter the fray completely." Hardison v. King, 381 N.J. Super. 129, 133-34 (App. Div. 2005). The Supreme Court recently granted certification in Davidson v. Slater, presumably to resolve the conflict presented by our recent decisions.

Like our colleagues in Hardison, we find it unnecessary to add our voice to the existing Polk controversy because we conclude that, even if Polk applies, summary judgment in this case must be reversed (a) because plaintiff has provided sufficient evidence of a permanent injury; (b) because, even if Polk remains applicable, plaintiff provided an adequate comparative analysis; and (c) because plaintiff's expert's analysis of the impact caused by a subsequent accident is not a net opinion.

A

As held in DiProspero, plaintiff is obligated only to demonstrate, in response to a summary judgment motion, that he has suffered one of the types of injuries delineated in N.J.S.A. 39:6A-8, and that the injury can be demonstrated by credible, objective evidence.

In this regard, plaintiff provided, among other things, his medical expert's certification of merit, which states that, as a result of the April 1, 2000 accident, plaintiff "sustained the following injur[ies]: . . . [c]hronic [b]ack syndrome; [r]adiculopathy into lower extremities; [and] [a]ggravation of previously asymptomatic bulged discs, L2-L3, L3-4 and L4-5, with spinal stenosis; aggravation of DJD and spondylolysis." Dr. Pirog further certified that these injuries were "permanent" and that his findings were based upon "objective clinical evidence," including "MRI examination [and] X-rays."

The Supreme Court's recent construction of the verbal threshold statute demonstrates that it is not permissible, when applying the standards governing summary judgment, for courts to adopt a view of permanency that differs from those expressed by medical experts. In addition, whether a court believes that such an injury is not serious or does not have a serious impact is also irrelevant. See Juarez, supra, 185 N.J. at 334. The fact that a medical expert has sworn to the permanency of these injuries is sufficient to rebut, for summary judgment purposes, a defendant's contention that plaintiff failed to allege an injury of the type delineated in the statute.

B

Although panels of this court have disagreed about Polk's viability in the wake of DiProspero, Serrano and Juarez, we need not add our voice to that controversy, particularly since the Supreme Court appears poised to soon decide that issue. Davidson, supra, __ N.J. __. Our view of that controversy makes no difference because the outcome of this appeal must be the same notwithstanding. That is, if we assume this court's holding in Davidson will be endorsed by the Supreme Court and if it is thus held that Polk has no application to AICRA claims, then we would be obligated to reverse the summary judgment entered in this case, since the trial judge based her ruling on the inadequacy or lack of a Polk comparative analysis. And, if we assume Davidson will be rejected and Polk declared applicable to claims governed by AICRA, then we would still reverse because we are satisfied, when the record before the trial judge is viewed in the light most favorable to plaintiff, Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), that plaintiff's comparative analysis was sufficient.

Our view of the sufficiency of plaintiff's comparative analysis is particularly appropriate in light of the significant passage of time between the prior accidents, which occurred in 1978, 1986 and 1992, and the accident in question, which occurred in 2000. In this regard, we also take note of the fact that in the present matter plaintiff mainly complains of and seeks damages for injuries to his lower back. A review of plaintiff's past medical history demonstrates that lower back problems were not a chief concern.

Dr. Pirog testified at his deposition that although plaintiff complained of "hurt[ing] all over" when examined shortly after the 1978 accident, he mainly complained of neck and right foreleg pain. Dr. Pirog also examined and treated plaintiff after an accident in 1986, at which time plaintiff complained of "point tenderness of the neck, limitation of motion to the left and some pain in the lower back." Plaintiff was in yet another accident in 1992. Again, his complaint related to his neck but apparently not his lower back. According to Dr. Pirog's notes, which he explained at his deposition, the 1992 complaints and treatment "primarily" concerned "the cervical aspect because [plaintiff] was put in cervical traction." Dr. Pirog also testified at his deposition about his examination of plaintiff on October 13, 1997, when plaintiff complained of back pain in general. Dr. Pirog at that time attributed plaintiff's back pain to arthritis. Plaintiff again complained of back pain on January 10, 1998, which the doctor attributed to either a prostate problem or arthritis. Dr. Pirog concluded in his deposition that plaintiff had some back pain in the past resulting from arthritis but that, by the time of the April 1, 2000 accident, "it wasn't bothering him much."

We discern from defendant's arguments a contention that Polk requires that a comparative analysis must contain greater specificity than plaintiff provided here. We reject that argument. Here, despite incurring injuries as early as 1978, most of plaintiff's complaints related to his neck and not the lower back areas in question in this suit. Polk does not require a plaintiff to provide a comparison of pre-existing injuries to bodily areas not in question with those bodily areas affected by the accident in question. And, although plaintiff did previously complain to his doctor of lower back pain, those complaints were deemed attributable to either a prostate or arthritic problem, and the most recent prior auto accident was eight years earlier. Considering that these issues were presented at the summary judgment stage, we conclude that when examined in the light most favorable to plaintiff, Brill, supra, 142 N.J. at 540, a sufficient comparative analysis under the circumstances was provided by the expert's opinion that plaintiff was asymptomatic at the time of the April 1, 2000 accident. Thus, even if Polk remains viable in the wake of DiProspero, Serrano and Juarez, the summary judgment entered in favor of defendant cannot stand.

C

Summary judgment was also based upon the trial judge's conclusion that Dr. Pirog's comparison of the injuries in question and those caused by the November 24, 2003 accident constituted a net opinion. The main reason for this conclusion emanates from the doctor's attempt to attribute percentages to the effects of the 2000 and 2003 accidents. That is, the focus of the inquiry in the trial court turned toward Dr. Pirog's December 9, 2004 report and the following statements about the 2000 and 2003 accidents:

I note that [plaintiff] was involved in a second motor vehicle accident on 11/24/03. Injuries sustained in that accident aggra-vated the already severe injuries of the accident of 4/1/00. While the combination of injuries suffered in these accidents continues to prevent [plaintiff] from per-forming most of his daily activities, he was already prevented from doing these activi-ties before the accident of 11/24/03. I consider the accident of 4/1/00 to be 80% responsible for his present condition that will not improve.

Based on the facts and findings, it is my medical opinion within a reasonable degree of medical certainty that [plain-tiff's] injuries are a direct result of the accident of 4/1/00 and are permanent, will not improve and have aggravated and worsened an arthritic condition which prior to the accident was a mild discomfort not affecting his daily living but as a result of the accident has caused permanent pain and disability which with age will worsen.

In his preamble to these findings, Dr. Pirog referenced and presumably intended to incorporate his prior reports and findings.

We reject the contention that Dr. Pirog's opinion is a net opinion. An opinion is not a net opinion if the expert gives the "why and wherefore" and not simply a conclusion without foundation. Jimenez v. GNOC Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996). Although Dr. Pirog's December 9, 2004 report may be criticized for its brevity, the report does reference his prior reports, asserts that the opinions were based upon the doctor's past and present examinations of plaintiff, and, thus, incorporates the "why and wherefore" of his conclusions.

Reversed and remanded for further proceedings in conformity with this opinion. We do not retain jurisdiction.

 

Oswin v. Shaw, 129 N.J. 290 (1992).

(continued)

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A-2702-04T1

March 7, 2006