LAURA CUSHING v. ESTATE OF MARVIN L. WILSON, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5844-04T25844-04T2

LAURA CUSHING,

Plaintiff/Appellant,

v.

ESTATE OF MARVIN L. WILSON, deceased,

and/or CYNTHIA RILEY-WILSON, Executrix

of the Estate of Marvin L. Wilson,

jointly, severally and/or in the

alternative,

Defendants/Respondents.

_______________________________________

 
Argued telephonically March 24, 2006 - Decided April 17, 2006

Before Judges Payne and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-4034-03.

Steven J. Friedman argued the cause for appellant.

William L. Lundgren, III, argued the cause for respondents (Green Lundgren & Ryan, attorneys; Mr. Lundgren, on the brief).

PER CURIAM

In this verbal threshold case, the Law Division dismissed plaintiff Laura Cushing's non-economic damages claims on summary judgment for failure to present sufficient proof of a permanent injury caused by the subject motor vehicle accident. She has appealed; we reverse.

On July 25, 2001, plaintiff, while driving her sedan, was entering a traffic circle when a van operated by defendant Marvin Wilson approached on her driver's side. According to plaintiff, the van veered into her lane of travel and struck her sedan, forcing it to leave the roadway.

Plaintiff was injured in the accident, and was taken to a local emergency room by ambulance. She was discharged from the hospital that same day, and thereafter obtained treatment approximately seventy-four times over the next eight months with a chiropractor, Gregory Biggiani, D.C., for neck and back injuries. Plaintiff also was seen by Ronald L. Brody, M.D., a physical rehabilitation specialist, Eby L. Banas, M.D., a neurologist, and Alan D. Carr, D.O., a pain management doctor. Plaintiff was further treated for depression and traumatic stress reaction manifesting a fear of driving by a licensed clinical psychologist, Michael Natale, Ph.D.

Plaintiff sued Wilson for personal injuries that she claims arose from the accident. Plaintiff is subject to the limitation on lawsuit option ("verbal threshold") under the Automobile Insurance Cost Reduction Act of 1998 ("AICRA"), N.J.S.A. 39:6A-8. Following the completion of discovery, the defense moved for summary judgment, arguing that there was insufficient objective proof that plaintiff had sustained a qualifying permanent injury under the statute and also contending that plaintiff failed to overcome the so-called "second prong" of the verbal threshold demonstrating that the accident had caused a serious impact on her life.

The motion judge rejected defendant's arguments on the second prong, concluding that plaintiff, a thirty-four-year-old mother of three children, had raised triable issues concerning the collision's adverse effects on her daily life activities in raising her family and in pursuing recreation. However, in what she twice described as "a very close call," the motion judge found that plaintiff could not vault the first prong of the statute. Among other things, she commented:

I am having difficulty with the first prong. [Plaintiff] had a [protruding] disk superimposed on degenerative diseases. It is indenting the [thecal] sac, but it's not causing any narrowing. The vertebral bodies are in good alignment. The MRI[s] of the brain and the spine, cervical spine, are normal. The . . . only thing that would keep this case going is this EMG and it doesn't indicate that there is any radiculopathy. It just says that there are some problems or some indication there's something going wrong in the upper extremities.

Dr. Brody notes that her numbness and tingling, if indeed this it what it refers to, is improving[,] which questions permanency. I have to tell you it's a very close call on whether or not there is credible objective medical evidence of a serious injury that was caused as a result of this accident.

I do not find that the herniated disk would spur this case because although there is . . . indenting into the [thecal] sac, there's no narrowing. So that does not add up. This EMG does not indicate that there's any radiculopathy. Under Oswin v. Shaw and James v. Torres, I'm going to grant this motion for summary judgment. I admit that it's a very close call, Counsel. But I find that there is no proof of a serious injury which was caused by this accident.

[Emphasis added.]

In the interim between the motion judge's ruling and the briefing on this appeal, the Supreme Court on June 14, 2005 issued its seminal opinions in DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005), interpreting the AICRA statute. In those opinions, the Court construed AICRA as eliminating the so-called "second" or "lifestyle impact" prong of the verbal threshold. DiProspero, supra, 183 N.J. at 491-406; Serrano, supra, 183 N.J. at 509-10. Those holdings would not, of course, disturb the outcome of this case because the motion judge had not granted summary judgment on the serious lifestyle impact prong. Additionally, however, the Court in Serrano eliminated any perceived requirement that an AICRA plaintiff must clear another hurdle of proving a "serious injury," the Court finding that the Legislature had considered the injuries defined in the statute "to be serious by their very nature." Serrano, supra, 183 N.J. at 510, 514-18.

Plaintiff is entitled to the benefit of the retroactive application of DiProspero and Serrano, since her appeal to us was timely filed on July 8, 2005 while those AICRA cases were pending before the Supreme Court. See Beltran v. DeLima, 379 N.J. Super. 169, 176-77 (App. Div. 2005)(applying pipeline retroactivity to DiProspero and Serrano). Considered in the context of present--and controlling--decisional law, the motion judge granted defendant summary judgment here based upon an incorrect legal standard. The question is not whether plaintiff's injuries were sufficiently "serious" in nature. Instead, the question simply is whether there is sufficient objective proof in the record to create a genuine issue of material fact as to whether the accident caused a permanent injury or injuries that "will not heal to function normally," even with further medical treatment. N.J.S.A. 39:6A-8(a).

Assessing the record under this clarified legal standard, we conclude that plaintiff has offered sufficient objective proofs to raise triable issues of permanency and causation. In his March 23, 2003 final report, Dr. Biggiani opined that plaintiff continued to have cervical and lumbar injuries, which he causally related to the accident and which he repeatedly characterized as permanent. There are several objective indicia of a qualifying permanent injury to support Dr. Biggiani's diagnosis. These include, among other things, an MRI study showing disc herniation at disc level L4-5 indenting the thecal sac, a positive EMG showing "polyneuropathy multiplex involving the motor nerves of the upper extremities" (albeit without a finding of radiculopathy), and continued muscle spasms and restricted loss of cervical and lumbar range of motion perceived by Dr. Biggiani as late as twenty months post-accident.

On appeal defendant argues that the record contains insufficient clinical correlation of the objective findings of cervical and lumbar abnormalities to the subject accident. However, viewing that record, as we must, in a light most favorable to the non-movant plaintiff, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), we believe there is more than ample proof of such correlation to place plaintiff's claims before a jury. In particular, we note that Dr. Biggiani's final report of March 2003 specifically linked plaintiff's lumbar and cervical diagnoses to the subject accident in multiple references.

Among other things, Dr. Biggiani opined that the L4-5 disc herniation observed on plaintiff's MRI examination "resulted from compressive and/or torsional injury to the intervertebral disc" and represents "a permanent injury that will limit [plaintiff's] ability to use her spine in a manner that she was accustomed to prior to the effects of the 7/25/01 injuries." He went on to note that this "will permanently restrict her ability to forwardly bend or extend the spine and . . . will restrict [plaintiff] from performing activities that she was accustomed to performing without pain prior to the effects of the 7/25/01 injuries." Further, Dr. Biggiani acknowledged that plaintiff had pre-existing degenerative changes in her lumbar spine, but opined that those changes "would render the area more susceptible to the effects of trauma . . . [and] probably contributed to the net effect of the 7/25/01 injury to the lumbar spine." This opinion raises a genuine issue of aggravation of an injury, to the extent the jury determines that the injuries from the subject accident are not altogether new.

Additionally, Dr. Biggiani connected the abnormal EMG results for the motor nerves in plaintiff's upper extremities to "[t]he sudden stretching action to nerve tissue . . . a traumatic force of the type that [plaintiff] sustained on 7/25/01." He further opined that "[t]he EMG study clearly demonstrates the severity of the trauma to this area and [that] the continued nerve irritation is permanent." Dr. Biggiani also linked plaintiff's restricted range of motion and residual spasm to the subject accident, prefacing his opinion with the general observation that that the neck and back problems are "completely related" to [plaintiff's] 7/25/01 injuries."

Further, Dr. Carr, a Board-certified anesthesiologist, opined with the requisite degree of medical certainty that plaintiff's complaints "are emanating from her [July 25, 2001] accident." Also, although he did not address causation, Dr. Brody, a rehabilitation physician, reached diagnoses consistent with those of Dr. Biggiani and Dr. Carr.

 
The record amply presents triable issues on causation and permanency. Accordingly, we reverse the entry of summary judgment and remand for proceedings consistent with this opinion.

The record suggests that the defense disputes liability for the happening of the accident, as defendant Wilson, who is now deceased, had contended that he had lawfully remained in his own lane of travel. We need not address these liability matters further, because summary judgment was grounded solely upon a finding that plaintiff's injuries did not pierce the verbal threshold. On remand, the Law Division will confirm with counsel what, if any, liability issues are to be tried.

Given the triable disputes about plaintiff's physical injuries, we find it unnecessary to comment on whether plaintiff's claims of post-traumatic stress disorder would be independently sufficient to vault the threshold.

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A-5844-04T2

April 17, 2006