CHRISTOPHER ASUNCION v. DONNA M. FARRELL

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2258-08T12258-08T1

CHRISTOPHER ASUNCION,

Plaintiff-Appellant,

v.

DONNA M. FARRELL,

Defendant-Respondent.

__________________________________________

 

Argued June 2, 2009 - Decided

Before Judges Fuentes and Chambers.

On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-1096-07.

Dario A. Martinez (Raphaelson & Levine Law Firm, P.C.) argued the cause for appellant.

John V. Mallon, argued the cause for respondent (Chasan Leyner & Lamparello, P.C., attorneys; Mr. Mallon, of counsel and on the brief; Richard W. Fogarty, on the brief).

PER CURIAM

Plaintiff Christopher Asuncion appeals from an order granting summary judgment to defendant Donna M. Farrell. We affirm.

This lawsuit arises out of a motor vehicle accident that took place on May 6, 2006. Plaintiff was a passenger in an automobile struck by a vehicle driven by defendant. As a result, plaintiff filed this personal injury action against defendant in February 2007.

The record is undisputed that plaintiff's claim is governed by the "limitation on lawsuit option," also known as the verbal threshold, set forth in the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-8(a). A person injured in an automobile accident whose claim is governed by AICRA may not recover for noneconomic loss unless the claim meets one of the six statutory categories. Ibid. One of those statutory categories is a "permanent injury," defined as an injury that occurs "when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment." Ibid. In addition, in order to pass the verbal threshold, plaintiff must provide defendant within sixty days of the filing of the answer a physician certification that "shall be based on and refer to objective clinical evidence." Ibid. This language has been interpreted as incorporating into the claim the requirement that a finding of a qualifying injury be supported by "objective credible evidence." DiProspero v. Penn, 183 N.J. 477, 495 (2005). Thus, to recover damages, plaintiff was required to prove with objective, credible evidence that he sustained a permanent injury.

In his answers to interrogatories, plaintiff claimed numerous injuries to his right knee, right ankle and foot, right shoulder, lumbar spine, cervical spine, right hand and arm, ribs, right leg, and head. Magnetic resonance imaging (MRI) studies revealed tendinitis, minimal joint effusion, and degenerative changes in his right shoulder; a probable tear in the posterior horn of his medial meniscus and a small amount of joint effusion in his right knee; a disc bulge at L5-S1 in his lumbar spine; a chronic partial tear of the anterior talofibular ligament, tenosynovitis, and a small ganglion cyst in his right ankle. Plaintiff underwent arthoscopic surgery on his right knee on December 1, 2006, and arthoscopic surgery on his right ankle on September 11, 2008.

While plaintiff provided defendant with progress notes and reports from plaintiff's physicians, defendant was not provided during the discovery period with a report from any of plaintiff's doctors on the issue of permanency. Indeed, plaintiff did not submit to the defense the physician certification of permanency required by N.J.S.A. 39:6A-8(a) until after the discovery period had ended.

The period for discovery ended on June 9, 2008, and on September 4, 2008, the case went to mandatory non-binding arbitration pursuant to Rule 4:21A-1. Defendant then moved for summary judgment, arguing that plaintiff could not pass the verbal threshold because he had no proofs from a qualified expert of a permanent injury.

In response to the summary judgment motion, plaintiff submitted two physician certifications of permanency. The certifications do not identify the particular injuries that are permanent. One doctor merely states that plaintiff has sustained injuries in the accident, as reflected in his reports and treatment records; the other doctor refers the reader to his narrative report; the certifications then state that "[s]uch injuries have resulted in permanent injury." Plaintiff proffered no reasons why the doctors were unable to issue permanency reports during the discovery period or why an extension of the discovery end date, if needed, was not obtained. Plaintiff's counsel attributed his failure to submit timely physician certifications to inadvertence and oversight.

The trial court granted summary judgment for defendant dismissing the complaint. On appeal, plaintiff contends that because he set forth sufficient credible evidence of permanent injuries thereby creating a triable question of fact and because he had recently undergone surgery and was under active medical care, summary judgment should not have been granted. Relying on Casinelli v. Manglapus, 181 N.J. 354 (2004), he also argues that his failure to file a timely physician certification did not merit dismissal of his action.

Our review is de novo, and we employ the same standard applied by the trial court. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). Summary judgment will be granted where no genuine issue of material fact is present and the movant is entitled to judgment as a matter of law. R. 4:46-2(c); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). Since proof of a permanent injury is a critical element of plaintiff's claim under N.J.S.A. 39:6A-8(a), defendant is entitled to summary judgment if plaintiff is unable to come forward with sufficient medical proofs to establish permanency.

We note that plaintiff's problem is not merely the filing of the physician certifications outside the time period set forth in the statute. That problem need not be fatal to the claim. See Casinelli v. Manglapus, supra, 181 N.J. at 363, 365 (stating that "the physician certification is not a fundamental element of the AICRA cause of action" and providing that when the deadline is missed "the court should assess the facts, including the willfulness of the violation, the ability of plaintiff to produce the certification, the proximity of trial, and prejudice to the adversary, and apply the appropriate remedy"). The trial court, applying the criteria in Casinelli, concluded that the complaint should be dismissed. We do not quarrel with that analysis. However, additional reasons exist for dismissal of the complaint.

Plaintiff did not submit any expert report on permanency within the discovery end date. The physician certifications in Casinelli had been submitted within the discovery end date. See id. at 358. Here, the statements plaintiff submitted in opposition to the summary judgment motion were also untimely because the discovery end date had passed. No motion to extend discovery under Rule 4:24-1(c) was made, and no exceptional circumstances were shown to allow late reports.

In order to extend discovery after an arbitration or trial date has been set, a litigant must show "exceptional circumstances." R. 4:24-1(c). Ongoing treatment and surgery may constitute exceptional circumstances "if the treatment or diagnosis could not have been anticipated during the discovery period." Vitti v. Brown, 359 N.J. Super. 40, 52 (Law Div. 2003). However, since plaintiff's right knee surgery occurred in December 2006, no exceptional circumstances justify a late report on that injury. While the right ankle surgery took place after the discovery end date, plaintiff was well aware of the injury during the discovery period, and no showing has been made that a permanency opinion was unavailable then. Further, we note that to the extent the physician certifications can be viewed as amendments to interrogatories, they do not meet the requirements of Rule 4:17-7, since no certification explaining the delay was supplied.

Putting all of these procedural barriers aside, we also note that the physician certifications are substantively defective, in that they fail to adequately apprise defendant of the specific injuries that plaintiff alleges are permanent. The certifications merely state that plaintiff sustained permanent injuries without identifying what those injuries are and direct defendant to look at other documents, thereby requiring defendant to try to figure out what injuries are being claimed as permanent.

For these substantive and procedural reasons, plaintiff's claim fails, and summary judgment was correctly granted.

Affirmed.

 

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A-2258-08T1

June 25, 2009