KRISTOPHER FELICI, et al. v. WARREN HILLS REGIONAL BOARD OF EDUCATION, et al.



NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4840-04T24840-04T2

KRISTOPHER FELICI, by his

Guardian ad Litem, Stephanie

Felici, and STEPHANIE FELICI

and CHARLES FELICI,

Individually,

Plaintiffs-Appellants,

v.

WARREN HILLS REGIONAL BOARD OF

EDUCATION and HELEN DEPALMA,

Defendants-Respondents.

_______________________________


Argued March 21, 2006 - Decided July 25, 2006

Before Judges Kestin and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Warren County,

L-296-02.

Kathryn J. Kingree argued the cause

for appellants (Algeier Woodruff, attorneys;

Ms. Kingree on the brief).

Sharon H. Moore argued the cause for

respondents (Gebhardt and Kiefer, attorneys;

Ms. Moore, of counsel and on the brief and

Leslie A. Parikh, on the brief).

PER CURIAM

Plaintiffs appeal from a summary judgment dismissing their personal injury lawsuit and from the subsequent denial of their motion for reconsideration. We affirm.

The motion record reveals that on September 10, 1999, plaintiff Kristopher Felici was twelve years old and enrolled in the seventh grade in the Warren Hills Middle School, when he was injured while a passenger in a school bus. He claimed to have sustained an injury to the left side of his head and neck, which resulted in an aggravation of pre-existing cognitive, psychological, and neurological deficits. The suit was subject to the New Jersey Tort Claims Act, N.J.S.A. 59:1-1 to 12-3; and, specifically, to the threshold limitation contained in N.J.S.A. 59:9-2(d). That section prohibits the award of damages for pain and suffering against a public entity in the absence of "permanent loss of a bodily function . . . ."

The statute was intended to prohibit payment of public money for "non-objective types of damages, such as pain and suffering, except in aggravated circumstances." Brooks v. Odom, 150 N.J. 395, 402 (1997) (quoting Report of the Attorney General's Task Force on Sovereign Immunity 10 (1972)). Accordingly, to prevail on a pain-and-suffering claim against a public entity, a plaintiff must show "by objective medical evidence that the injury is permanent." Brooks v. Odom, supra, 150 N.J. at 402-03. Additionally, the injury must be "substantial." Id. at 406.

After an answer had been filed and discovery exchanged, defendants sought summary judgment premised on a belief that plaintiff had failed to meet the requirements of N.J.S.A. 59:9-2(d). The motion judge agreed and dismissed the complaint. He, thereafter, denied a motion for reconsideration. This appeal followed.

Because this decision was reached on cross-motions for summary judgment, we apply the same standard to resolve the issue as that employed by the motion judge, Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.) certif. denied, 154 N.J. 608 (1998), without affording any special deference to the judge's interpretation of the law. Manalapan Realty, L.P. v. Twp. Committee of Manalapan, 140 N.J. 366, 378 (1995). We, therefore, examine the record in a light most favorable to plaintiff, afford to plaintiff the benefit of all inferences which may reasonably be drawn from the evidence thus viewed, and affirm the dismissal only if no reasonable factfinder could rule in favor of plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

The judge's January 21, 2005, oral decision accurately recounts the evidence relating to plaintiff's condition in the light required by Brill. The judge said:

As a result of the accident, the plaintiff claims he lost consciousness for a short time. The bus ride continued, and eventually the plaintiff and his brother exited the bus, and walked to their home.

Upon arriving home, the plaintiff informed his mother about the accident that occurred. His mother then called for medical assistance and the plaintiff was transported to Hackettstown Community Hospital in an ambulance.

Upon arrival at the emergency room, plaintiff was examined and an x-ray was taken of the plaintiff's cervical spine. Ultimately, the plaintiff was diagnosed with acute high cervical strain, flexion extension neck pain, and a cerebral concussion.

Subsequent to leaving the hospital, the plaintiff's condition allegedly worsened. Consequently, the plaintiff's mother contacted her son's neurologist, a Dr. FineSmith, who had been treating the plaintiff since 1998. Dr. FineSmith examined the plaintiff five days later and found him to be sluggish and experiencing headaches. These symptoms were consistent with post-concussion syndrome.

The plaintiff was then sent to a Dr. David Mahalick, a neuro-psychologist, who established the effect the concussion had on the plaintiff's cognitive ability. Dr. Mahalick concluded that, although some of the neurological impairment suffered by the plaintiff would be temporary, some symptoms would eventually be long term, enduring, and permanent.

At this point, it may be noted that prior to the accident, the plaintiff suffered from significant neurological and psychological problems. These problems must be presented . . . with the medical difficulties allegedly encountered by the plaintiff after the accident.

First and foremost, it is clear that the plaintiff had a rather traumatic and unfortunate childhood. At a young age, the plaintiff experienced the death of a sibling and was molested by his grandmother's ex-husband.

Upon entering school, the plaintiff was classified as neurologically impaired and has received special education since he was in kindergarten.

This classification was based upon the finding that the plaintiff suffered difficulties in attention span, language processing abilities, visual-motor coordination, orientation, and fine and gross motor coordination. Later the plaintiff was diagnosed with developmental output disorder, attention disorder, language processing disorder, and adjustment disorder with depressed mood.

As a result of these impairments and condition, the plaintiff received special education throughout his schooling. For instance, the plaintiff received individual counseling, speech therapy, physical therapy, and occupational therapy.

The plaintiff was, however, mainstreamed in some classes, such as mathematics, notwithstanding by the time he reached 6th grade he was classified as multiple disabled. This disability classification was issued after the plaintiff's psychologist diagnosed him with -- with bipolar disorder, post-traumatic stress disorder, and attention deficit hyperactivity disorder.

The plaintiff also suffers from a condition called . . . enuresis, which is more frequently referred to as bedwetting. Also the plaintiff was at times very aggressive and violent. In addition, he suffered from mood swings and depression.

Consequently, the plaintiff has been placed on a number of medications since his childhood, including Ritalin, Prozac, Zoloft, Buspar.

The plaintiff complains that the concussion he suffered during the school bus accident exacerbated these conditions and that these conditions are permanently aggravated.

According to the plaintiff's mother, the problems that the plaintiff experienced prior to the accident are now worse. For

example, his mother claims that the plaintiff's memory has deteriorated to a point where he can't find his way home at times. Moreover, the plaintiff cannot process information as he once did, and does so now in a childlike manner.

His mother also asserts that the plaintiff is so sluggish that he has to take medication to keep him awake during the day. Without such medication, the plaintiff -- or the mother claims that he would sleep round the clock.

The mother also concedes that the plaintiff exhibited violent behavior prior to the accident, but now asserts that the plaintiff's violent proclivities have intensified.

In addition, his mother claims that the plaintiff has now gained a substantial amount of weight, and is now morbidly obese.

The plaintiff is allegedly to have suffered academically and vocationally as well. After the accident, decision was made not to enroll the plaintiff in Warren Hills High School. Instead, the plaintiff was sent to District Technical School and will now take an additional year to graduate.

His mother has been advised that her son will not be able to live independently in the future, and likely needs to be placed in a residential care facility in the future.

The motion judge then considered the sufficiency of the objective medical proofs presented in support of the claim that plaintiff had suffered a permanent aggravation of his condition as a result of the accident. He concluded the proofs were insufficient:

Based upon the facts presented, this Court finds that the plaintiff has failed to satisfy this test [requiring objective medical evidence of a permanent injury caused by the accident] and, thus, the Tort Claims Act bars this lawsuit. As was set forth with great detail, when I recited the facts, the plaintiff suffered from numerous psychological and neurological conditions prior to the accident at issue.

As such, any injuries allegedly suffered by the plaintiff in this accident must be interposed with those [pre-existing] the accident. The applicable examination is similar to a comparative analysis used in the verbal threshold setting, consistent with Polk Vs. Daconceicao, [ 268 N.J. Super. 568 (App. Div. 1993)].

Simply stated, the plaintiff has failed to demonstrate that the accident aggravated his preexisting conditions in a way that is both permanent and substantial.

This Court will address both prongs of the Brooks test in turn. The first prong of the Brooks test requires the plaintiff to provide objective, credible evidence of a permanent injury. The plaintiff has undergone several objective medical tests, all of which produced normal results.

Upon presentation to the emergency room after the accident, the plaintiff complained of back and neck pain. Yet an x-ray of the plaintiff's cervical spine essentially yielded normal results.

The plaintiff has allegedly been experiencing seizures as a result of the accident. However, the results of the plaintiff's EEG test were normal.

Most notably, it has been alleged that the plaintiff's cognitive abilities have been affected. Again, an MRI of the plaintiff's brain produced normal results and showed no evidence of brain injury.

The plaintiff's expert medical reports are very troubling. Although the plaintiff has submitted numerous medical expert reports to the Court, these reports clearly fail to establish the first prong of the Brooks test. The thrust of the medical records issued by Dr. FineSmith and Dr. Mahalick is that the plaintiff suffers from post-concussion syndrome and, as a result, some of the plaintiff's preexisting conditions have been exacerbated.

These reports certainly go to great lengths to detail the past neurological and psychological problems suffered by the plaintiff. Noticeably missing from these reports, however, is any specific delineation of which preexisting conditions may have been permanently altered as a result of the accident.

In the absence of any comparative analysis between the plaintiff's preexisting conditions and those allegedly impaired by the accident, these expert reports are essentially meaningless.

The plaintiff relies heavily on one paragraph in Dr. Mahalick's report, which states, "I can state within a reasonable degree of medical certainty that some of the neuro-behavioral impairment with which the patient currently persists, is a direct result of and is causally related to the September 9th, 1999, automobile accident. Some of the difficulties with which the patient currently presents are believed to be transient, such that Kristopher is well within the period of spontaneous recovery. However, after this time, the patient may be left with symptoms which are long-term, enduring, and permanent."

Simply put, this conclusion does not satisfy the evidential standard. First, Dr. Mahalick states that some of the plaintiff's conditions are not permanent in nature and, second, that they are nonrecoverable under the statute.

Second, Dr. Mahalick merely predicts that after the period of recovery, the plaintiff may be left with permanent injuries. More importantly, Dr. Malahick fails to state which objective evidence he bases this conclusion on.

Based upon the foregoing reasons, this Court finds the plaintiff has not satisfied the first prong in the Brooks test.

The judge then considered whether there was any proof of a "substantial" injury. We quote his analysis because much of it relates to the lack of objective proof that plaintiff suffered any injury from the accident. He said:

There can be no doubt that the plaintiff suffers from significant neurological and psychological conditions. These problems were well documented in the evidence presented to the Court. In the past, the plaintiff suffered from memory and concentration problems, cognitive ability, depression, mood swings, and aggressiveness. This list is not exhaustive.

Yet, the evidence produced to the Court essentially demonstrates that the plaintiff continues to suffer from the very same conditions without establishing which impairments have been exacerbated and to what extent they've been altered.

The evidence shows that the plaintiff's conditions are no worse now than they were prior to the accident. For example, the plaintiff's scores on standardized tests administered both pre- and post-accident are nearly identical. The same is true of the IQ tests, given to the plaintiff both before and after the accident. In fact, the plaintiff's grades have actually improved since the time of the accident.

The plaintiff's cognitive difficulties and psychological problems were diagnosed from testing when he was a young child. It is clear that these problems continue to affect the plaintiff to this day. Yet the expert medical reports provided to this Court do not demonstrate that the plaintiff now suffers greater impairments than prior to the accident.

We agree essentially with the reasoning of the motion judge. The judge prefaced his analysis by noting that "The first prong of the Brooks test requires the plaintiff to provide objective credible evidence of a permanent injury." Nevertheless, as his analysis demonstrates, he focused, correctly, on whether there was objective medical evidence of any injury caused by the accident.

Plaintiff's claim was that he had sustained a "concussion syndrome resulting in a deterioration of his cognitive abilities and increasing his pre-existing conditions." The difficulty, as the judge pointed out, is that no objective evidence supported that claim. Plaintiff produced two experts, Dr. FineSmith and Dr. Mahalick. Dr. FineSmith had been treating plaintiff before the accident but was unable to produce objective evidence of aggravation. The tests she performed after the accident were within normal limits. Dr. Mahalick, who had not seen plaintiff before the accident, conducted tests which did show substantial deficits. There was, however, no medical comparison of the post-accident deficits with the pre-accident deficits. Accordingly, there was, as the judge noted, no evidence to demonstrate that pre-accident deficits had been aggravated. For all that can be told from this record, the plaintiff suffered no aggravation of his pre-existing condition, let alone an injury, as the result of the accident. Dr. Mahalick's assertion that such aggravation had occurred and plaintiff's mother's subjective opinion that his behavior had deteriorated is insufficient to provide the objective medical evidence required by the Tort Claims Act to cross the threshold.

Non-physical injury will support a recovery to the extent it is not solely "based on subjective evidence," and otherwise meets the Brooks requirements. Collins v. Union County Jail, 150 N.J. 407, 413 (1997). Collins involved a plaintiff who asserted post-traumatic stress disorder resulting from a sexual assault and the Supreme Court held that the psychological effects of such an assault might cross the threshold. In that case, however, there was objective evidence of the post-assault disorder and no suggestion that the plaintiff suffered from any pre-existing problems. Here, in contrast, there was clearly a pre-existing condition and no objective proof that the condition had worsened after, let alone as a result of, the accident.

The policy underlying the Brooks requirement of "objective medical evidence" of a permanent substantial injury applies whether the issue is framed in terms of proof of causation or proof of permanency. In either case, a plaintiff must demonstrate, by objective proof, that the accident caused the condition complained of, before inquiry is made into whether the injury is permanent and substantial. Here there was no objective proof of any causative relationship between the accident and plaintiff's condition.

Although plaintiff produced an additional report from Dr. Mahalick on the motion for reconsideration, detailing the objective nature of the testing he performed, the judge never suggested that objective tests had not been performed. However, the judge found the objective testing to be of no consequence, given the "lack of a comparative analysis of the plaintiff's extensive neurological and psychiatric problems existing before the . . . accident, and the [claimed] exacerbation of these conditions subsequent to the accident." We understand the judge to have rendered his decision because of an absence of objective proof of a causal relationship between the accident and plaintiff's current condition. We agree that such objective proof was both necessary and lacking.


Affirmed.

(continued)

(continued)

13

A-4840-04T2

July 25, 2006