TONI GASTON v. KATHLEEN M. MAGNIER and NEIL McNULTY

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1180-09T11180-09T1

TONI GASTON,

Plaintiff-Appellant,

v.

KATHLEEN M. MAGNIER and

NEIL McNULTY,

Defendants-Respondents.

_________________________________________________

 

Argued April 21, 2010 - Decided

Before Judges Payne and Waugh.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, Docket No. L-

7120-06.

Anthony J. Vinhal argued the cause for

appellant (Javerbaum Wurgaft Hicks Kahn

Wikstrom & Sinins, attorneys; Mr. Vinhal,

on the brief).

Donald T. Okner argued the cause for

respondents (Dwyer Connell & Lisbona,

attorneys; Raymond R. Connell, of counsel;

Mr. Connell, Mr. Okner and Lauren B. Connell, on the brief).

PER CURIAM

Plaintiff, Toni Gaston, appeals from an order of summary judgment in favor of defendants Kathleen M. Mangier and Neil McNulty, in her verbal threshold case. Finding that plaintiff has failed to demonstrate a permanent condition meeting the requirements of the verbal threshold statute or a causal relationship between that condition and the accident that is the subject of suit, we affirm.

I.

The record reflects that plaintiff was involved in a motor vehicle accident with a car driven by defendant Kathleen Mangier on March 23, 2005. The police report states that, while driving on a snow covered road, Mangier lost control of her vehicle, which crossed into the opposite lane of traffic, colliding head-on with plaintiff's car. Plaintiff was transported by ambulance to Morristown Memorial Hospital. There, she was treated in the emergency room for complaints of pain in the neck, leg and hand. X-rays were taken of all three areas. X-rays of the cervical spine disclosed degenerative changes at C4-5, but were otherwise normal. A CT scan of the cervical spine disclosed an anterior bony osteophyte at C4-5. An MRI study was not conducted. Following treatment, plaintiff was discharged from the emergency room with a small supply of Percocet and Valium. Plaintiff was instructed to follow up with her own physician on the following day.

On March 29, 2005, plaintiff was seen by her treating orthopedist, Dr. Lawrence Floriani, who recommended that she continue to take the anti-inflammatory drug Mobic and that she obtain some physical therapy for her neck and upper back. Plaintiff returned to Dr. Floriani on July 18, 2005 with complaints of neck pain radiating from the right side of her neck into her arm. The doctor advised plaintiff to obtain an MRI, which was performed at Open MRI of Morristown on July 28, 2005. The MRI was read by Howard Kessler, M.D. In his report, Dr. Kessler stated:

The craniocervical junction and marrow space outline normally. The cervical spinal cord has a normal configuration, placement, and signal characteristics. At C2-C3, C3-C4, and C7-T1, the intervertebral discs outline normally. Mild disc bulging mainly ventrally is seen at C4-C5 accompanied by ventral spurring. C5-C6 and C6-C7 show posterocentral protrusions scalloping the ventral CSF space. At all levels, the thecal sac remained centric. The facet joints are unremarkable. No definite foraminal encroachment is appreciated.

IMPRESSION

1. Noncompressive disc bulge, C4-C5.

2. Small disc protrusion, C5-C6 and C6-C7 scalloping the ventral CSF space.

3. No intrinsic cord abnormality or definite foraminal encroachment.

On August 1, 2005, Dr. Floriani referred plaintiff to Dr. Philip Rubinfeld, a pain management specialist, who recommended facet injections. Plaintiff did not return to Dr. Floriani until February 17, 2006, at which time she stated that she did not tolerate the cervical facet injections well. She continued to complain of right sided neck pain. As a consequence, Dr. Floriani started her on a Medrol Dosepack and home exercises, and he recommended that she return in a few weeks. She failed to do so, and the record does not reflect any further treatment.

A complaint, dated August 17, 2006, was filed on plaintiff's behalf. During the period for discovery, on February 12, 2007, plaintiff was examined by Dr. Berton Taffet, M.D., an orthopedist who, until Dr. Floriani's retirement, had practiced in partnership with him. Dr. Taffet issued a report, in which he noted plaintiff's current complaint of pain on the right side of the neck and an inability to turn her head easily to the right. Dr. Taffet took new cervical x-rays, which he reported as demonstrating "some anterior osteophytes present around the anterior margin of the C4-5 disc space (which preexisted the accident) and around the anterior margin of the C5-6 disc space. The disc space heights look normal." In a section labeled "Impression," Dr Taffet stated:

This patient was involved in a motor vehicle accident on 3/23/05. She did have some cervical degenerative disc disease that preexisted the accident. This was demonstrated by the degenerative changes seen at the C4-5 level on x-rays and CAT scan on the day of the accident. However, as a direct result of the accident she developed some disc disease at the C5-6 level and the C6-7 level. As the result of the accident the patient does have chronic intermittent pain in her neck and on the right side of her neck that will continue to bother her intermittently in the future.

Dr. Taffet's de bene esse deposition was taken on July 24, 2008. At the deposition, the doctor sought to testify regarding the findings of the July 28, 2005 MRI. However, defense counsel interposed an objection to that testimony arguing, in reliance on our decision in Brun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006), that since the doctor had not reviewed the films, but only Dr. Kessler's report, he could not testify as to what the MRI films depicted. After it was conceded that the objection would require judicial resolution, the deposition continued. At that time, Dr. Taffet testified that plaintiff "sustained injuries to the cervical disks at the C5-6 level and the C6-7 levels." He conceded that plaintiff had degenerative disk disease at the C4-5 level that preexisted the accident. In response to a question regarding what complaints, if any, plaintiff would have in the future, Dr. Taffet responded:

I think, based on the injuries that we've discussed, that she will have intermittent episodes of neck pain and pain that radiates into her right upper extremity.

Following Dr. Taffet's de bene esse testimony, defendants moved to strike those portions of the transcript that reflected the doctor's statements as to the results of the MRI as reported by Dr. Kessler. An order was entered on September 25, 2008 sustaining defendants' position and striking portions of Dr. Taffet's testimony.

On October 14, 2008, the de bene esse deposition of Dr. Kessler was taken. On cross-examination, Dr. Kessler characterized the protrusions as herniations that were contained by the posterior longitudinal ligament, which exists behind the vertebrae. He testified that the protrusions, which he conceded to be "small," extended into the fluid surrounding the spinal cord, but he noted that there was no impingement on the cord itself. Further, the doctor testified that from the studies that he reviewed, he could not tell how long the conditions had existed. The doctor additionally confirmed that the facet joints were unremarkable and that there was no encroachment in the foraminal areas from which the spinal nerves exit, and thus there was no nerve impingement.

Following the completion of Dr. Kessler's deposition, plaintiff moved for reconsideration of the motion barring testimony of Dr. Taffet regarding the MRI. The motion was denied in an order dated March 6, 2009. A motion for leave to appeal was also denied.

Thereafter by motion returnable on September 25, 2009, defendants sought summary judgment on the ground that plaintiff had failed to demonstrate a permanent injury causally related to the 2005 accident as was required under the verbal threshold provisions of the Automobile Insurance Cost Reduction Act of 1998 (AICRA), N.J.S.A. 39:6A-1 to -35. The motion was granted by the judge who ruled:

Under the statute, plaintiff must present a certification which states under penalty of perjury, that plaintiff sustained a permanent injury, within a reasonable degree of medical probability, which will not heal or function normally with further medical treatment.

In this matter, . . . Dr. Taffet's report, and even his de bene esse deposition testimony did not specifically state any of plaintiff's injuries relating to the accident were permanent as required by statute.

Plaintiff has appealed both the order barring Dr. Taffet's testimony regarding the MRI and the order granting summary judgment.

II.

In reaching our decision in this matter, we agree with plaintiff's position that the testimony of Dr. Taffet regarding the MRI was admissible as the result of the testimony of Dr. Kessler, the radiologist who interpreted the MRI at issue. Both our decision in Brun and the Supreme Court's decision in Agha v. Feiner, 198 N.J. 50 (2009) concern circumstances in which the testifying doctor either was unqualified to read the plaintiff's MRI films or failed to do so, and a radiologist was not called to testify or his testimony was excluded. We held in those circumstances that the MRI results could not be admitted as substantive evidence as a business record because of the complexity of the procedures utilized in formulating the conclusions expressed in the radiologist's report. Brun, supra, 390 N.J. Super. at 420-24. A similar conclusion was reached by the Supreme Court in Agha, supra, 198 N.J. at 63. The circumstances are different here as the result of the testimony of Dr. Kessler and the opportunity provided as a consequence to fully cross-examine him as to his conclusions. That Dr. Kessler gave his testimony after Dr. Taffet does not alter our conclusion in this regard.

III.

The question then becomes whether plaintiff's proffer of Dr. Taffet's report and testimony meet AICRA's requirements as set forth in N.J.S.A. 39:6A-8a.

The limitation on lawsuit or verbal threshold statute, N.J.S.A. 39:6A-8a, "is a cost containment measure that provides lower premium payments in exchange for a limitation on the insured's right to sue for noneconomic damages." Agha, supra, 198 N.J. at 60 (citing DiProspero v. Penn, 183 N.J. 477, 480-81 (2005)). In order to obtain such damages, a person accepting the verbal threshold option must demonstrate "a bodily injury which results in death; dismemberment; significant disfigurement or significant scarring; displaced fractures; loss of a fetus; or a permanent injury within a reasonable degree of medical probability." N.J.S.A. 39:6A-8a. The statute further defines a permanent injury by stating:

An injury shall be considered permanent 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.

It is the permanent injury requirement that is at issue here.

The Supreme Court has held:

In order to vault the threshold, a physician must certify, under penalty of perjury, [N.J.S.A. 39:6A-8a,] that "the automobile accident victim suffered from a statutorily enumerated injury." Davidson v. Slater, 189 N.J. 166, 181 (2007). That opinion must be based on "objective clinical evidence," N.J.S.A. 39:6A-8(a), a standard that we have held is the equivalent of the "credible objective medical evidence" standard described in Oswin v. Shaw, 129 N.J. 290, 314 (1992); DiProspero, supra, 183 N.J. at 495. Under that standard, which is a critical element of the cost-containment goals of AICRA, the necessary objective evidence must be "derived from accepted diagnostic tests and cannot be 'dependent entirely upon subjective patient response.'" Davidson, supra, 189 N.J. at 181 (quoting N.J.S.A. 39:6A-8(a)).

[Agha, supra, 198 N.J. at 60.]

Indeed, N.J.S.A. 39:6A-8a requires that:

[i]n order to satisfy the tort option provisions of this subsection, the plaintiff shall, within 60 days following the date of the answer to the complaint by the defendant, provide the defendant with a certification from the licensed treating physician or a board-certified licensed physician to whom the plaintiff was referred. The certification shall state, under penalty of perjury, that the plaintiff has sustained an injury [of the sort required by statute].

As the motion judge recognized, no such certification of permanency was supplied by Dr. Kessler, Dr. Taffet, or any other physician on plaintiff's behalf. The Supreme Court has held, in a case in which the certification was filed belatedly:

We hold that the physician certification is neither a fundamental element of the AICRA cause of action nor analogous to a pleading and therefore, that neither dismissal with nor without prejudice is compelled. Rather we view the late filing of the physician certification as akin to a discovery violation, with respect to which the court may resort to any of a full panoply of remedies, ranging from an order to compel production through dismissal, depending on the facts.

[Casinelli v. Manglapus, 181 N.J. 354, 355 (2004).]

However, the Court has not held that the certification, or its equivalent, can be omitted entirely, as occurred here. Even if we view Dr. Taffet's report and testimony as the equivalent of a certification, as the motion judge did, an opinion as to permanency does not appear. Dr. Taffet expressed the opinion that "as a direct result of the accident [plaintiff] developed some disc disease at the C5-6 level and the C6-7 level." Dr. Kessler, in turn, opined that the "disc disease" at those levels consisted of protrusions that he characterized as a mild form of herniation. Neither stated that the condition was permanent in nature or, in the language of the statute, that it would not heal "to function normally with further medical treatment." At most, Dr. Taffet expressed his opinion that plaintiff would, in the future, suffer some intermittent pain. We hold this statement, apparently premised upon plaintiff's existing subjective complaints, to be insufficient to meet the statutory standard.

Even if we regard plaintiff's herniation to be a permanent condition for summary judgment purposes, Pardo v. Dominguez, 382 N.J. Super. 489, 492 (App. Div. 2006), despite the fact that neither doctor attested to that fact, a further difficulty arises with respect to causation. Dr. Kessler testified that he was unable to determine when the protrusions arose, and no prior MRIs were offered to establish their non-existence before the accident. Thus, to the extent that Dr. Taffet relied on Dr. Kessler in rendering his opinion as to causation, that opinion lacked foundation. Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). Further, because Dr. Taffet found that the protrusions caused no nerve impingement, there is no objective foundation for any conclusion that, because plaintiff's symptoms appeared to have manifested after the accident, they establish the onset of the "permanent" conditions seen on the 2005 MRI. Indeed, with expert testimony complete, there is no evidence that would refute a claim that plaintiff's pain is the result of her degenerative condition at C4-5 or that it had another origin entirely. We thus find, after construing the competent evidential materials in a light most favorable to plaintiff, that they do not provide sufficient evidence for a rational factfinder to conclude that plaintiff met the verbal threshold under the familiar standards established in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998) (holding that Brill's standard is applicable on appeal). We thus affirm the order of summary judgment.

 
Affirmed.

Computerized axial tomography.

Magnetic Resonance Imaging.

Cerebrospinal fluid.

Compare Ames v. Gopal 404 N.J. Super. 82, 85 (App. Div. 2008) (holding that "[o]ur conclusion in Pardo that the existence of a herniated disc, demonstrated through an MRI, is sufficient to satisfy the verbal threshold for purposes of a motion for summary judgment is not the equivalent of a holding that the existence of a herniated disc caused by an accident entitles one to an award of damages" because permanency has to be established within the framework of N.J.S.A. 39:6A-8a, which provides that an injury "shall be considered permanent 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."), certif. denied, 198 N.J. 316 (2009).

In Pungitore v. Brown, 379 N.J. Super. 165, 168 (App. Div. 2005), we agreed that plaintiff had established permanency when resisting summary judgment by supplying objective credible medical evidence of a herniated disc at the L5-S1 level and "two physicians' certifications that the injury is permanent and that further treatment will not restore the lumbosacral region to full function."

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A-1180-09T1

July 22, 2010