WAYNE DAVIES et al. v. DANA FENSTERMAKER et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6048-04T16048-04T1

WAYNE DAVIES and JULIA DAVIES,

his wife,

Plaintiffs-Appellants,

v.

DANA FENSTERMAKER and JOYCE

FENSTERMAKER,

Defendants-Respondents.

 
____________________________________

Submitted April 26, 2006 - Decided June 26, 2006

Before Judges Wefing, Wecker and Graves.

On appeal from Superior Court of New

Jersey, Law Division, Burlington County,

No. L-121-04.

Randy P. Catalano, attorney for appellants.

Parker McCay, attorneys for respondents

(Steven Antinoff, of counsel; Stacy L.

Moore, on the brief).

PER CURIAM

Plaintiffs appeal from a trial court order granting defendants' in limine motion. After reviewing the record in light of the contentions advanced on appeal, we reverse and remand for further proceedings.

Wayne Davies was injured in an accident on January 17, 2002, with a car driven by defendant Dana Fenstermaker and owned by defendant Joyce Fenstermaker and he brought suit for his injuries. According to Davies, the accident on January 17, 2002, caused injuries to his lumbar spine as well as a fracture of his right ring finger. The parties disputed the nature and extent of plaintiff's injuries as a result of the instant accident. Plaintiff had been involved in an automobile accident some years earlier in which he was reported to have suffered three herniated discs in his lower back.

Plaintiff came under the care of Gary Neil Goldstein, M.D., an orthopedic and hand surgeon, following the January 2002 accident. The parties completed discovery, in the course of which Dr. Goldstein prepared a report and gave a videotaped de bene esse deposition. Although we have not been provided with a copy of either that report or a transcript of that deposition, we gather from the record before us that among the opinions Dr. Goldstein expressed was his view that plaintiff had suffered a displaced fracture of his finger, while defendants' experts agreed that plaintiff had suffered a fracture but contended it was not a displaced fracture.

The matter was assigned out for trial on May 31, 2005. Prior to jury selection, defense counsel made a motion in limine to restrict the scope of Dr. Goldstein's testimony. He contended that Dr. Goldstein should be precluded from offering any testimony about the nature and extent of plaintiff's alleged back injury because Dr. Goldstein had not reviewed plaintiff's records from the earlier incident and thus could not perform a comparative analysis as required under Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993).

Although the trial court originally expressed some uncertainty about whether it should entertain such a motion at that juncture, and also questioned whether it would not be necessary to review the pertinent medical information, it ultimately granted the motion. It entered an order precluding plaintiff "from arguing or submitting evidence to the jury and trying to prove that [he] meet[s] the lawsuit threshold at trial other than by proof of a displaced fracture of the right ring finger."

The matter proceeded to trial on that basis. The jury concluded that plaintiff's fracture was not displaced. The consequence of that decision was to limit plaintiff to his economic losses. The trial court entered a judgment in plaintiff's favor for $4,000.

Within their briefs, the parties address at length the several opinions issued by this court dealing with the question whether the necessity for a comparative analysis called for under Polk, supra, 268 N.J. Super. 568, survived the adoption of the revised verbal threshold contained in the Automobile Insurance Cost Reduction Act ("AICRA"), N.J.S.A. 39:6A-8. See Davidson v. Slater, 381 N.J. Super. 22 (App. Div. 2005), certif. granted, 186 N.J. 243 (2006); Hardison v. King, 381 N.J. Super. 129 (App. Div. 2005); Lucky v. Holland, 380 N.J. Super. 566 (App. Div 2005); Bennett v. Lugo, 368 N.J. Super. 466 (App. Div.), certif. denied, 180 N.J. 457 (2004); Ostasz v. Howard, 357 N.J. Super. 65 (App. Div. 2003).

Because we are satisfied that the procedure that was utilized here was unfairly prejudicial to plaintiff, we do not find it necessary to enter that arena. In our judgment, the trial court's initial reaction, that defendants' motion was the equivalent of a motion for partial summary judgment that should have been brought in compliance with the requirements of R. 4:46, was correct. Here, plaintiff was called upon to address a summary judgment motion without any notice or any opportunity to prepare and marshal his arguments.

A summary judgment motion is required to be served and filed twenty-eight days in advance of its return date to afford the adversary ample time to reply. R. 4:46-1. The rule was amended to this effect in recognition of the fact that the six days notice permitted under R. 1:6-3 is "patently unfair" in the context of summary judgment motions. Pressler, Current N.J. Court Rules, comment on R. 4:46-1 (2006). The procedure here was demonstrably even more unfair.

The order under review is reversed, and the matter is remanded for further proceedings. We do not retain jurisdiction.

 

Plaintiffs are Wayne Davies and his wife Julia Davies, who sues per quod. Hereafter, in the course of this opinion, we shall refer to plaintiff in the singular.

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A-6048-04T1

June 26, 2006