LEA FAIR v. RUSSELL A. ROBINSON, III

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4238-04T24238-04T2

LEA FAIR,

Plaintiff-Appellant,

v.

RUSSELL A. ROBINSON, III

Defendant-Respondent.

________________________________________________________________

 

Argued March 1, 2006 - Decided March 15, 2006

Before Judges Conley and Winkelstein.

On appeal from Superior Court of New Jersey, Law Division, Camden County, L-4095-03.

Stephen M. Tatonetti argued the cause for appellant (DuBois, Sheehan, Hamilton & Levin, attorneys; Mr. Tatonetti, on the brief).

Robert R. Nicodemo, III, argued the cause for respondent (Mr. Nicodemo, III, attorney; Richard V. Cosentino, on the brief).

PER CURIAM

This is a post-DiProspero/Serrano/Davidson verbal threshold appeal. In granting defendant automobile driver's summary judgment, the motion judge said:

Accident was November the 5th, 2001. Plaintiff was taken to Cooper Hospital, the ER room, saw Dr. Vernon, a chiropractor, beginning November the 7th, 2001, up to April 30th of 2002. X-rays were taken of the right hand, which were normal. MRI of the cervical spine shows a bulge at C3-4 and C6-7. MRI of the right shoulder shows . . . tendon[itis] but no fracture. Dr. Carr treated from December 4, '01 to January 8, '02.

Dr. Ponzio treated from February 13, '02, to May 1st, '02. He diagnosed tenderness in the paraspinal muscle, tendonitis of the right thumb, which cleared up, a bulge in the cervical disks and a right shoulder impingement.

Plaintiff had a prior accident on March 24, 2001 - and if the reports were supplied to me, I haven't seen them or I missed them. There's apparently no indication that the bulging disks impinged on the thecal sac and no clinical findings correlating any impingement. Last treatment by - of the plaintiff was May the 1st, 2002, six months after the accident. The moving party claims that the MRI does not show a right shoulder impingement and in the prior accident, plaintiff was treated by Dr. Patel for back pain. Defendant says no Polk analysis and no showing of any serious impact on the plaintiff's life.

Plaintiff says MRI shows the bulges, shows the tendonitis of the right shoulder and that there is at least a question of fact as to whether or not there is impingement. Dr. Ponzio apparently says there is. Plaintiff then lists 21 items or so that plaintiff cannot - claims she cannot now do as serious impact.

. . . .

The right hand situation - I was looking through the chiropractor's report. And he talks about it. But I can't see where he expresses an opinion that it came from this accident and the neurologist says the same thing. I think the right hand claim is not involved.

As to the - as to the rest, we have a - the only objective evidence is the MRI showing the bulges, an opinion that they probably came from this accident because nobody knows of any bulges before that. We have the Polk analysis situation, and I think a Polk analysis is required. But even aside from the Polk analysis, we have in spite of the 21 items that have been listed, many of which refer to the right hand and therefore should not be considered, this woman was last treated May the 1st, 2002, more than almost three years ago, has not had any treatment since.

I know that's not dispositive but when you couple that with the minimal objective findings, the absence of the Polk analysis, the type of injuries allegedly occur - which occurred, even with her subjective complaints, I don't think she meets the threshold, the verbal threshold.

These findings and conclusions barely satisfy R. 1:7-4(a). E.g., Ronan v. Adely, 182 N.J. 103, 110-11 (2004); Curtis v. Finneran, 83 N.J. 563, 569-70 (1980). Insofar as we can discern, the judge thought the proofs were insufficient to satisfy the Polk comparative analysis and failed to satisfy the second prong of the Oswin v. Shaw threshold test. But the latter no longer applies in light of DiProspero and Serrano. See Juarez v. J.A. Salerno & Sons, Inc., 185 N.J. 332, 334 (2005). Neither does the former in the context of a summary judgment motion where, as here, plaintiff has submitted a doctor's certification of permanency which asserts, within a reasonable degree of medical probability, that plaintiff sustained permanent injury as a result of the causative automobile accident. Davidson v. Slater, supra, 381 N.J. Super. at 29.

It is entirely unclear from the judge's decision whether he found that the first Oswin prong, which does survive, DiProspero v. Penn, supra, 183 N.J. at 495, was not satisfied. But if he did, he was wrong. Here, plaintiff's doctor filed a certificate of permanency which opined that, as a result of the automobile accident, plaintiff sustained, among other injuries, a flexion deformity in the right 5th DIP joint, a bulging disc at C3-4 and C6-7, and a traumatic syrinx in spinal cord at C6-7. He further opined that these injuries are permanent. Indeed, an MRI of plaintiff's cervical spine showed bulging discs and an x-ray of her right hand revealed a flexion deformity in her 5th DIP joint. Those results viewed in the context of a summary judgment motion constitute objective evidence of permanent injury sufficient to overcome the threshold.

Reversed.

 

DiProspero v. Penn, 183 N.J. 477 (2005).

Serrano v. Serrano, 183 N.J. 508 (2005).

Davidson v. Slater, 381 N.J. Super. 22 (App. Div. 2005), certif. granted, ___ N.J. ___ (2006).

Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993).

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

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A-4238-04T2

March 15, 2006