HEATHER J. BALIGIAN, an infant by her Guardians ad Litem DEBRA BALIGIAN and PETER BALIGIAN, and DEBRA BALIGIAN and PETER BALIGIAN, individually v. HUNTERDON CENTRAL REGIONAL HIGH SCHOOL; FLEMINGTON BOARD OF EDUCATION; LIBBY WILHELMS; and HUNTERDON CENT

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2026-08T22026-08T2

HEATHER J. BALIGIAN, an infant

by her Guardians ad Litem,

DEBRA BALIGIAN and PETER

BALIGIAN, and DEBRA BALIGIAN

and PETER BALIGIAN, individually,

Plaintiffs-Appellants,

v.

HUNTERDON CENTRAL REGIONAL HIGH

SCHOOL; FLEMINGTON BOARD OF

EDUCATION; LIBBY WILHELMS; and

HUNTERDON CENTRAL REGIONAL

HIGH SCHOOL BOARD OF EDUCATION,

Defendants-Respondents.

__________________________________

 

Argued October 1, 2009 - Decided

Before Judges Stern and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Hunterdon County, Docket No. L-000041-07.

S. Robert Princiotto argued the cause for appellants (Marcus & Levy, attorneys; Mr. Princiotto, on the brief).

Cherylee O. Judson argued the cause for respondents (Hill Wallack LLP, attorneys; Ms. Judson, on the brief).

PER CURIAM

This is an appeal from summary judgment dismissing plaintiff's complaint for damages under the Tort Claims Act, N.J.S.A. 59:1-1 to 12-3 ("the Act" or "the TCA"), arising out of a high school cheerleading accident. On appeal, plaintiff contends that her injuries from the accident are permanent and sufficiently serious to satisfy the Act's verbal threshold, N.J.S.A. 59:9-2(d), and that the trial court consequently erred in dismissing her non-economic claims for pain and suffering. Plaintiff further argues that the trial court improperly dismissed her claims of economic loss. We affirm as to the verbal threshold ruling, but vacate and remand as to the dismissal of plaintiff's economic damages.

I.

The record contains the following evidence pertinent to our analysis, particularly as to plaintiff's injuries and treatment. In reviewing these facts, we do not elaborate upon the mechanics of the accident, or what may have caused it, because the appeal solely concerns the trial court's rulings on the compensability of plaintiff's damages under the TCA.

On January 25, 2005, plaintiff Heather Baligian, then a fourteen-year-old freshman, was practicing a maneuver with the junior varsity cheerleading team at Hunterdon Central High School ("the high school"). At the time she was under the supervision of her coach, Libby Wilhelms. Acting as the top person (or "flier"), plaintiff was hoisted upon the shoulders of another cheerleader who served as the "base." During her dismount from that elevated position, plaintiff fell forward and struck her chin.

Following the accident, plaintiff was transported to a local emergency room. The emergency room report noted that plaintiff had pain in her jaw and chin from a fall. The staff attending her found no immediate signs of a fracture. Plaintiff received stitches in her jaw. She was discharged from the hospital with a diagnosis of a soft tissue injury of jaw strain with a laceration of the chin.

The day after the accident, January 26, 2005, plaintiff saw Joel Efron, D.M.D., for complaints of separation between her lower front teeth, problems with her bite, and difficulty opening her mouth. Dr. Efron opined that plaintiff's occlusion appeared stable, but he noticed a small separation between her teeth. He also diagnosed plaintiff with a hairline fracture through her central incisor. The next day, January 27, Dr. Efron issued a note temporarily restricting plaintiff from gym class and other physical activities "until further notification[,]" due to a fractured mandible.

On January 31, 2005, Douglas L. Worden, M.D., removed the sutures from plaintiff's chin. His report noted that her chin was "healing well."

Dr. Efron reexamined plaintiff on February 7, 2005. He observed that her occlusion was stable, that the space between her lower and central incisors had closed, and that she exhibited full range of motion.

A month later, on March 7, 2005, plaintiff returned to Dr. Efron. He found that her occlusion continued to be stable, and the closure between her lower and central incisors intact. He also noted that plaintiff's chin was well-healed.

In the meantime, plaintiff's general dentist, Lillian Vidal, D.D.S., treated her fractured teeth (specifically teeth numbered 5, 13, and 30) with restorative dentistry. Tooth #13 and tooth #30 required periodontal surgery prior to restoration. Consequently, Peter G. Cornick, D.M.D., performed pre-prosthetic periodental crown lengthening on teeth #13 and #30. After completing those procedures, Dr. Cornick stated that "the prognosis for the above two treated teeth appears favorable."

In a report dated November 13, 2006, Dr. Vidal noted that "[t]ooth #5 was restored with composite filling material." However, she felt that "more sophisticated procedures may be required such as root canal and[/]or crown should radiographic symptoms arise." (emphasis added). Dr. Vidal's long-term prognosis for all the fractured teeth was "guarded," in light of the nature of the trauma they had sustained as well as plaintiff's youth and "immature periodontium."

Apart from these dental injuries, plaintiff also exhibited signs of temporomandibular joint dysfunction ("TMJ") after the accident. She consulted her regular orthodontist, Dominic Cringoli, D.M.D., promptly after the accident. In June 2005, Dr. Cringoli found the TMJ still present and not yet improved. Consequently, he inserted a maxillary soft bite guard.

Thereafter noting "some slight improvement in [plaintiff's] symptoms," Dr. Cringoli decided to treat her "with bonded maxillary and mandibular full appliances to help the mandibular jaw to heal." The orthodontic maxillary and mandibular appliances were installed on November 30, 2005, and replaced with removable Essix retainers on July 29, 2006.

On August 1, 2006, plaintiff was seen by Vito L. Modugno, D.M.D., an oral and maxillofacial surgeon, for TMJ symptoms of ear pain, pain or difficulty chewing, having teeth that did not properly meet, jaw clicking or popping, visual disturbances, jaw pain, facial pain, headache, ringing in the ears, jaw noises, neck pain, and dizziness. Dr. Modugno noted on his examination that plaintiff experienced mild tenderness in her left intra-auricular region and left lateral pterygoid. He also noted that there was an "intermittent" and "occasional" early opening click on the left side of plaintiff's jaw, and a deviation to the left of two millimeters. Dr. Modugno diagnosed plaintiff with traumatic arthopathy of TMJ on the left side of her jaw.

On August 5, 2006, Dr. Modugno opined that plaintiff "remains with a guarded prognosis for progressive internal joint derangement." He deemed it too early to determine the long-term success of the palliative TMJ measures. "Even if successful in decreasing her pain and improving masticatory function," Dr. Modugno wrote, "the [TMJ] apparatus will remain with some aspects of craniomandibular uncoordination, disc laxity and intermittent symptomatology. Consequently it must be noted that this area may present problems in the long run, and therefore considered permanent in nature." (Emphasis added). Dr. Modugno did not rule out future surgical intervention to address these TMJ issues.

Dr. Modugno issued an addendum to his report on March 27, 2008. He stated that "[d]espite [her] previous complaints, [plaintiff's] craniomandibular health is unremarkable." He recommended behavior modifications, soft diet, non-steroidal anti-inflammatory medications, and other measures. He continued to classify plaintiff's status as "guarded."

Additionally, plaintiff had post-accident complaints of intermittent lower back pain, for which she received limited treatment by a chiropractor and an orthopedist. Diagnostic testing revealed mild scoliosis and mild-to-moderate stenosis in her spine, conditions which apparently predated the accident. The accident also left some mild scarring on plaintiff's chin.

Plaintiff, and her parents in their own right and as her guardians, filed a complaint in the Law Division against the high school, Coach Wilhelms, and Hunterdon Central Regional High School Board of Education. Plaintiff alleged that defendants were negligent in allowing her cheerleading accident to occur. Because all of the defendants are either public entities or employees, plaintiff's, claims are governed by the TCA.

During the course of discovery, plaintiff contended that she has occasional light headaches and ringing in the ears. She also testified at her deposition she has some clicking in her jaw when she eats chewy foods. Despite these problems, plaintiff has resumed an active lifestyle. She participates in several extracurricular activities, including marching band and dance, and has worked two part-time jobs. She has resumed gym class without restrictions.

Following discovery, defendants moved for summary judgment. They rely upon N.J.S.A. 59:9-2(d), which bars a plaintiff from recovering damages for pain and suffering under the TCA unless he or she demonstrates "permanent loss of a bodily function, permanent disfigurement or dismemberment." N.J.S.A. 59:9-2(d). Moreover, the statute requires a plaintiff to prove medical treatment expenses exceeding $3,600. Ibid. Defendants conceded that the $3,600 monetary threshold is surmounted here, but argued that plaintiff's injuries are neither permanent nor sufficiently severe to vault the statute's verbal threshold.

Plaintiff opposed the motion. In particular, she contended that the medical evidence and other proofs show that her TMJ condition and the damage to her teeth are severe and permanent. At a minimum, plaintiff argued, there are genuine material issues of permanency and substantiality that must be tried to a jury.

After hearing oral argument, the motion judge issued a twenty-one-paqe written decision, finding the proofs inadequate to sustain plaintiff's claims for pain and suffering under N.J.S.A. 59:9-2(d). Viewing the record in a light most favorable to plaintiff, the judge held that she had "not sustained permanent loss of a bodily function that is substantial and demonstrated by objective, medical evidence." Consequently, the judge granted defendants summary judgment dismissing plaintiff's non-economic claims.

The motion judge then addressed plaintiff's claims of economic loss, which consisted of $16,857.16 in various medical expenses not fully reimbursed by insurance, plus the anticipated contingent costs of future surgical procedures. The judge concluded that those expenses were procedurally barred, because he was under the impression that plaintiff had not disclosed them to defense counsel before the discovery end date. The judge also found the claims were substantively barred, based upon a premise that "unreimbursed medical expenses claims are not proper economic damages" under the TCA. Accordingly, the judge dismissed the economic claims along with the non-economic claims. Plaintiff then filed the instant appeal.

II.

The parties agree that N.J.S.A. 59:9-2(d) controls the analysis of plaintiff's non-economic claims. As we have noted, the relevant part of that provision requires a TCA plaintiff to demonstrate "a permanent loss of a bodily function." Ibid. This requirement has been further construed by our Supreme Court to entail an injury that is "substantial", and which is proven by "objective medical evidence." See Brooks v. Odom, 150 N.J. 395, 402-03, 406 (1997); see also Gilhooley v. County of Union, 164 N.J. 533, 540-41 (2000).

Under these well-established standards of the TCA verbal threshold, "[t]emporary injuries, no matter how painful and debilitating, are not recoverable." Brooks, supra, 150 N.J. at 403. Even "[a]n injury causing lingering pain, resulting in a lessened ability to perform certain tasks because of the pain, will not suffice because '[a] plaintiff may not recover under the Tort Claims Act for mere subjective feelings of discomfort.'" Knowles v. Mantua Twp. Soccer Ass'n, 176 N.J. 324, 332 (2003) (quoting Gilhooley, supra, 164 N.J. at 540).

The substantiality of the injury must involve more than a "mere limitation on a bodily function[.]" Brooks, supra, 150 N.J. at 406. Hence, in Brooks, the Court found that plaintiff's persisting back pain and headaches following her accident with a New Jersey Transit bus did not suffice to vault the TCA verbal threshold, because plaintiff still was able to perform her usual functions at work and at home. Ibid.; see also Ponte v. Overeem, 171 N.J. 46, 53-54 (2002) (finding plaintiff's knee injury, which was addressed through post-accident arthroscopic surgery, not sufficiently substantial under N.J.S.A. 59:9-2(d), because he was not restricted in performing his work, household chores, yard work, and recreational activities); Heenan v. Greene, 355 N.J. Super. 162, 167 (App. Div. 2002) (upholding the dismissal of plaintiff's pain and suffering claims, despite her post-accident diagnosis of a herniated disc and some ensuing loss of range of motion, because she missed no days at work, continued to play sports and could perform household chores "to some extent").

We have examined the record of the injuries allegedly stemming from this accident in a light most favorable to plaintiff. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2, Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007) (requiring appellate courts to view the record on summary judgment in the same manner as trial judges). Having done so, we are satisfied that the motion judge justifiably dismissed plaintiff's non-economic claims under N.J.S.A. 59:9-2(d) and the related case law. We affirm the order granting summary judgment as to those claims, substantially for the cogent reasons expressed in the motion judge's lengthy written opinion.

With respect to the statute's permanency requirement, the motion judge aptly noted:

Although plaintiff has provided the [c]ourt with medical reports indicating that plaintiff's diagnosis is "guarded" and listing potential future medical and dental issues that may arise from [plaintiff's] accident, there is no "proof of permanency;" only speculation. Additionally, several of the medical reports provided to the [c]ourt are very positive as to plaintiff's long term prognosis.

We concur in that assessment.

Moreover, as to the requirement of substantiality, the motion judge wrote:

Plaintiff has not demonstrated a loss of ability to perform normal tasks as a result of her injuries. Although the [Supreme] Court in Kahrar[ v. Borough of Wallington, 171 N.J. 3 (2002),] specifically rejected the argument made by the movant that a claimant who is still able to function reasonably well at work and home is precluded from recovery under the [TCA], this plaintiff is able to function more than "reasonably well." Id. at 14-15. Plaintiff admitted during her deposition that she was capable of performing her activities of daily living, such as attending school, participating in sports and band and working. . . . Although plaintiff contends that she no longer participates in cheerleading and gymnastics as a result of her injuries, she admitted in her deposition [that] she was medically cleared to do so by 2005. Thus, her deposition testimony indicates that she is far past functioning "reasonably well"[,] in contrast to the severely injured litigant[s] in cases cited by her counsel.

[(Emphasis in original).]

These observations are supported by the record and comport with the law, as expressed in Brooks and its progeny. We thus affirm summary judgment as to the non-economic claims.

Plaintiff separately contends that the motion judge improperly dismissed her economic damages at the same time he granted summary judgment to defendants on the non-economic damages. On this discrete issue, we agree with plaintiff.

The motion judge appears to have been under a misapprehension that plaintiff failed to disclose her medical expenses to defense counsel during the discovery period. In fact, plaintiff's answers to interrogatories contained a schedule itemizing nineteen separate medical expenses, plus several estimates of future surgeries. For virtually every listed item, plaintiff identified the medical provider, the start and end date of treatment, and the amount charged. The sole exception was an August 2005 bone scan at Hunterdon Medical Center, as to which plaintiff noted that the charge was "[t]o be supplied."

Later, in responding to defendants' motion for summary judgment, plaintiff presented an updated itemization of medical expenses, and indicated what sums thus far had been reimbursed by insurance. Although this listing does not precisely match the schedule presented in plaintiff's interrogatory answers, there is substantial overlap. We do not discern any prejudice to defendants arising out of plaintiff's updated list. Although we recognize that plaintiff had an ongoing duty to update her discovery responses, see Rule 4:17-7, we discern no significant deviation from the Rules here, nor any distinct prejudice to defendants. Moreover, plaintiff should not be faulted for being uncertain in the earlier stages of the litigation what reimbursements she would receive from her insurers, as such reimbursements typically can take a long time to determine and resolve. Consequently, we disagree with the motion judge's ruling that plaintiff's economic claims were procedurally barred.

We also part company with the motion judge's substantive premise that "unreimbursed medical expenses are not proper economic damages" under the TCA. Unlike the motion judge, we do not read Justice Pollock's opinion in Brooks, supra, as foreclosing such claims, at least where they encompass more than insurance co-pays and deductibles. The Court in Brooks specifically reserved decision on whether "uninsured claimants who may not recover for pain and suffering under N.J.S.A. 59:9-2(d) may nonetheless recover the cost of their medical expenses." Id. at 407. The Court only reached the question of a plaintiff's out-of-pocket expenses for co-pays and deductibles, which it found non-recoverable under the TCA because "allowing recovery for such claims would clog the court system with minor claims for reimbursement." Id. at 406-07; see also Roig v. Kelsey, 135 N.J. 500, 514 (1994) (reaching the same conclusion respecting the non-compensability of co-pays and deductibles under the No-Fault Act, N.J.S.A. 39:6A-1 to -35); Thorpe v. Cohen, 258 N.J. Super. 523, 528 (App. Div. 1992) (observing that N.J.S.A. 59:9-2(d) restricts only awards for pain and suffering, and "does not preclude damages for any other claim or injury").

We think the better view is to treat such unreimbursed medical expenses, apart from co-pays and deductibles, as recoverable under the TCA, provided, of course, that plaintiff prove: that the expenses were medically necessary and caused by the accident; that any use of out-of-network providers was justified; that the charges are reasonable; and that plaintiff has reasonably exhausted attempts to obtain reimbursement from applicable insurers. We further note that in the present case the unreimbursed expenses for which plaintiff seeks recovery are not minor amounts, but include substantial items such as an $18,200 bill from her chiropractor, for which the insurance provider paid only $6,560. However, we do not order reimbursement for future surgery, as we agree with the trial court that the need for such surgery is speculative.

We therefore vacate summary judgment solely as to the economic claims, and remand for further proceedings to adjudicate those claims.

 
Affirmed in part, vacated in part, and remanded. We do not retain jurisdiction.

Plaintiff also named as a defendant the "Flemington Board of Education," which is a non-existent entity.

Plaintiff does not contend that her back injury and her scarring are sufficient to meet the requirements of N.J.S.A. 59:9-2(d).

Mack v. Passaic Valley Water Comm'n, 294 N.J. Super. 592 (App. Div. 1996), a Tort Claims Act case involving a permanent TMJ injury that was deemed to satisfy N.J.S.A. 59:9-2(d), does not alter our conclusion. The plaintiff in Mack suffered from numerous severe maladies after her accident, including a "total" loss of taste and smell, "constant" headaches, "daily" dizziness, "acute" pains in the skull, facial twitching, and jaw bone pressure. Id. at 594. By contrast, plaintiff's residual symptoms in this case are not as intense or extreme. Moreover, Mack was decided in 1996, a year before Brooks declared that the TCA verbal threshold requires proof of substantiality, as well as permanency.

(continued)

(continued)

16

A-2026-08T2

November 12, 2009