SEAN GROWNEY v. JACK I. GLASSMAN


NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2820-08T12820-08T1

SEAN GROWNEY and

BARBARA GROWNEY,

Plaintiffs-Appellants,

v.

JACK I. GLASSMAN, TODD M.

PELLE and TRAVELER'S INSURANCE

COMPANY,

Defendants-Respondents.

________________________________________________________________


Argued February 24, 2010 - Decided

Before Judges Axelrad and Espinosa.

On appeal from Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-7823-07.

James M. Foerst argued the cause for appellant (Spector Foerst & Associates, attorneys; Mr. Foerst on the brief).

Mario J. Delano argued the cause for respondent Jack I. Glassman (Campbell, Foley, Lee, Murphy & Cernigliaro, P.C., attorneys; Mr. Delano, on the brief).

Laurence P. Chirch argued the cause for respondent Todd M. Pelle (Purcell, Mulcahy, O'Neill & Hawkins, attorneys; Mr. Chirch, of counsel and on the brief).

Law Offices of William E. Staehle, attorneys for respondent Traveler's Insurance Company, join in the brief of respondent Jack I. Glassman.

PER CURIAM

Summary judgment was granted, dismissing plaintiff's personal injury lawsuit for failure to satisfy the verbal threshold, N.J.S.A. 39:6A-8. Plaintiff appeals from an order denying reconsideration of that order. We affirm.

Plaintiff Sean Growney was the driver of a vehicle involved in a three-automobile accident on the Garden State Parkway on January 13, 2006. The other automobiles were driven by defendants Jack I. Glassman and Todd M. Pelle.

Plaintiff was taken to JFK Medical Center from the accident, where x-rays were taken of his right foot, left wrist and hand, and right ribs and chest. Plaintiff received treatment from a chiropractic physician, David Kutschman, D.C., who found tenderness to palpation and hypermobile joint function at the coccyx on January 16, 2006, and attributed this to the accident. On the same date, an x-ray was taken of plaintiff's cervical spine, lumbar spine and coccyx/sacrum. The report of this x-ray prepared by the radiologist, Dr. Douglas O'Connor, M.D., stated that there was a fracture line in the lower sacral coccygeal segment. In a follow-up examination on March 1, 2006, Dr. Kutschman noted a "fracture line lower sacrococcygeal segment" in a portion of his letter labeled "X-Ray Analysis."

Plaintiff was also treated by Dr. Joel Goldstein, M.D. In a report dated March 17, 2006, Dr. Goldstein stated the following about his review of the January 2006 x-rays: "In the sacrum, at the lowest sacral segment, there appears to be a mildly displaced fracture of the sacrum." Dr. Goldstein also stated that, as of March 2006, plaintiff's symptoms had "decreased but have not resolved completely."

Plaintiff's retained an orthopedist, Allan D. Tiedrich, M.D., to evaluate his injuries. Dr. Tiedrich prepared a report, dated August 6, 2008, that was based upon his examination of plaintiff and a review of plaintiff's medical records, which included the January 18, 2006 x-ray report and the records of both Dr. Goldstein and Dr. Kutschman. In setting forth the pertinent medical history, Dr. Tiedrich noted that the x-ray studies taken at the hospital immediately after the accident "did not demonstrate any acute bony fractures." He also stated that a subsequent bone scan "showed increased activity in the region of the sacrococcygeal joint, likely representing a bony fracture[,]" and that an MRI scan of the lumbar spine was "unremarkable." Although Dr. Tiedrich's "diagnostic impression" included "[c]occygeal fracture with coccygodynia," no diagnosis of a fracture, displaced or otherwise, was included in his conclusion. Instead, he presented an opinion "that there is a direct causal relationship between the patient's current complaints and problems and the motor vehicle accident of January 13, 2006." Dr. Tiedrich identified the references to spasm and tenderness mentioned in his physical examination as "objective evidence of underlying muscular/ligamentous/fascial damage and its secondary scar tissue formation." He stated further,

It is also my professional opinion that the patient has suffered significant injuries which have resulted in some degree of permanent disability as evidenced by his continued episodes of pain, spasm, reduced range of motion and abnormal sensation in the injured areas, secondary to bleeding and scaring within the injured tissues themselves, which has resulted in a decreased independence in the patient's activities of daily life.

Summary judgment was granted in favor of the defendants on October 31, 2008. Thereafter, Dr. Tiedrich prepared a new report, dated January 21, 2009. For the first time, in this one-page letter, Dr. Tiedrich opines that "the patient did suffer a displaced sacral coccygeal fracture" as a result of the accident. The stated basis for this new opinion was the history provided by the patient, his physical examination and a review of the pertinent medical records, all information available to Dr. Tiedrich and specifically cited by him in his August 6, 2008 report. It is undisputed that Dr. Tiedrich did not review the January 2006 x-rays himself but merely relied upon the reports of others who reviewed them. The only explanation given for the change in Dr. Tiedrich's opinion after summary judgment was granted is the following:

I've had the opportunity to review the records of Joel Goldstein, M.D. where he states in his 3/17/06 report after his review of the x-rays from Red Bank Radiologists on 1/18/06 "in the sacrum at the lowest sacral level there appears to be a mildly displaced fracture of the sacrum". This correlates quite well with the findings on the Tc99 Bone scan, which showed increased activity in the region of the sacrococcygeal joint, which again, likely represents a bony fracture.

The motion judge denied plaintiff's motion for reconsideration. On appeal, plaintiff raises these issues:

POINT I

PLAINTIFF HAS SATISFIED THE VERBAL THRESHOLD AS STATED IN N.J.S.A. 39:6A-8 HAVING SUFFERED BOTH A DISPLACED FRACTURE AS WELL AS PERMANENT INJURY.

POINT II

THE LOWER COURT ERRED IN GRANTING SUMMARY JUDGMENT TO THE DEFENDANTS AND OVERLOOKING CERTAIN UNDISPUTED MATERIAL FACTS IN THE MOTION FOR RECONSIDERATION AS THE PLAINTIFF'S INJURIES MET THE STANDARD SET BY N.J.S.A. 39:6A-8.

POINT III

SUMMARY JUDGMENT WAS THE IMPROPER REMEDY IN THIS MATTER AS THERE IS A GENUINE ISSUE OF MATERIAL FACT THAT SHOULD BE GIVEN THE OPPORTUNITY TO BE HEARD BY A JURY.

The appeal here was from the denial of plaintiff's motion for reconsideration, which is governed by Rule 4:49-2 and is a matter to be exercised in the trial court's sound discretion. Capital Fin. Co. of Delaware Valley, Inc. v. Asterbadi, 398 N.J. Super. 299, 310 (App. Div.), certif. denied, 195 N.J. 521 (2008) (citing Johnson v. Cyklop Strapping Corp., 220 N.J. Super. 250, 257 (App. Div. 1987), certif. denied, 110 N.J. 196 (1988)). "Reconsideration should be utilized only for those cases . . . [that] fall into that narrow corridor in which either 1) the [c]ourt has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the significance of probative, competent evidence." D'Atria v. D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990); see also Fusco v. Bd. of Educ. of Newark, 349 N.J. Super. 455, 462 (App. Div. 2002). The motion is properly denied if based on unraised facts known to the movant prior to entry of judgment. Del Vecchio v. Hemberger, 388 N.J. Super. 179, 188-189 (App. Div. 2006). Therefore, the question for us to determine is whether the denial of the motion for reconsideration was an abuse of the motion judge's discretion.

It is undisputed that plaintiff's claims are subject to the "verbal threshold" which, pursuant to N.J.S.A. 39:6A-8(a) of the Automobile Insurance Cost Reduction Act (AICRA), allows him to maintain an action for noneconomic loss only if he

has sustained 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, other than scarring or disfigurement.

[Ibid. (emphasis added).]

The statute further provides, "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." Ibid.

Our courts have recognized the verbal threshold to be "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 v. Feiner, 198 N.J. 50, 60 (2009) (citing DiProspero v. Penn, 183 N.J. 477, 480-81 (2005)). To vault the threshold, a plaintiff must show, by expert opinion that is based on "objective clinical evidence" that he has suffered an injury enumerated in N.J.S.A. 39:6A-8(a). Davidson v. Slater, 189 N.J. 166, 181 (2007). The necessary objective evidence must be "derived from accepted diagnostic tests and cannot be 'dependent entirely upon subjective patient response.'" Ibid.

In ruling on the summary judgment motion, the motion judge was required to determine "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue[s] in favor of the non-moving party." Spinks v. Twp. of Clinton, 402 N.J. Super. 465, 473 (App. Div. 2008) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)), certif. denied, 197 N.J. 476 (2009). A review of the record shows that, even when viewed most favorably to plaintiff, the evidence was insufficient to permit a rational factfinder to conclude that plaintiff had suffered an injury enumerated in N.J.S.A. 39:6A-8(a).

Plaintiff contends that he presented sufficient proof to establish either a displaced fracture or "a permanent injury within a reasonable degree of medical probability." See N.J.S.A. 39:6A-8(a). However, as of the time that the summary judgment motion was heard, the medical evidence consisted of the following: (1) the radiologist's conclusion that the January 2006 x-ray showed a fracture in the lower coccygeal segment; (2) the chiropractor's conclusion that there was a "fracture line lower sacrococcygeal segment[;]" (3) Dr. Goldstein's note regarding his review of the same x-rays: "In the sacrum at the lowest sacral segment there appears to be a mildly displaced fracture of the sacrum[;]" and (4) Dr. Tiedrich's inconclusive report of August 2008. In that report, Dr. Tiedrich did not diagnose any fracture, displaced or otherwise. His notes regarding the x-ray studies were, at best, inconsistent: while the x-rays taken immediately after the accident "did not demonstrate any acute bony fractures," a subsequent bone scan "showed increased activity in the region of the sacrococcygeal joint, likely representing a bony fracture," and an MRI scan of the lumbar spine was "unremarkable."

The only evidence of a possible displaced fracture was Dr. Goldstein's note that "there appears to be a mildly displaced fracture of the sacrum." This falls short of the standard for admissible medical opinion testimony, which must be based on reasonable medical certainty or probability, State v. Denofa, 187 N.J. 24, 45 (2006); Greene v. Memorial Hosp., 304 N.J. Super. 416, 420 (App. Div. 1997); and not based upon possibility. Vitrano by Vitrano v. Schiffman, 305 N.J. Super. 572, 580 (App. Div. 1997); Johnesee v. Stop & Shop Cos., 174 N.J. Super. 426, 431 (App. Div. 1980). Since a genuine issue of fact sufficient to withstand summary judgment must be shown through competent evidence, Brill, supra, 142 N.J. at 540, Dr. Goldstein's note cannot provide the basis for creating a genuine issue of fact that plaintiff suffered a displaced fracture.

The evidence was equally deficient to create a genuine issue of fact that plaintiff suffered a permanent injury as defined in N.J.S.A. 39:6A-8(a). Again, plaintiff seeks to rely upon Dr. Goldstein's observation that, as of March 2006, plaintiff's symptoms had "decreased but have not resolved completely." The fact that symptoms had not resolved completely two months after the accident does not equate with expert medical opinion that a body part "has not healed to function normally and will not heal to function normally with further medical treatment." N.J.S.A. 39:6A-8(a). Similarly, Dr. Tiedrich's conclusory statement that plaintiff had "suffered significant injuries which have resulted in some degree of permanent disability" also fails to create a genuine issue of fact to defeat summary judgment. See Smith v. Estate of Kelly, 343 N.J. Super. 480, 496-497 (App. Div. 2001) (factual issue cannot be created by an expert's net opinion alone).

Therefore, the motion for summary judgment was properly granted. The arguments raised in support of the motion for reconsideration failed to show that the motion judge either relied upon a "palpably incorrect or irrational basis," or "failed to appreciate the significance of probative, competent evidence." D'Atria, supra, 242 N.J. Super. at 401.

This is so even if Dr. Tiedrich's January 21, 2009 letter is considered. The only significance to this letter is that Dr. Tiedrich alters his previously stated opinion by adopting Dr. Goldstein's note that there appears to be a displaced fracture as his opinion that there was a displaced fracture. This change is effected without a new examination of plaintiff or any medical records that Dr. Tiedrich had not reviewed prior to his earlier report.

Although N.J.R.E. 703 permits an expert to rely upon facts or data that are not admissible in evidence if "of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject," that Rule does not automatically elevate the information relied upon to the rank of substantive evidence. Our Supreme Court explicitly rejected such an argument in Agha, supra, 198 N.J. at 63 ("Although the rule permits a hearsay statement, such as a medical report by a non-testifying expert, to be referred to by a testifying expert for the purpose of apprising the jury of the basis for his opinion, it does not allow expert testimony to serve as "a vehicle for the 'wholesale [introduction] of otherwise inadmissible evidence.'")).

As previously noted, Dr. Goldstein's note did not constitute competent evidence of a medical opinion when the summary judgment motion was granted. That same statement did not become an admissible medical opinion simply because Dr. Tiedrich cited it in changing his mind. Moreover, since all this information was available before the summary judgment motion was decided, it fails to provide an appropriate basis for reconsideration of that order. See Del Vecchio, supra, 388 N.J. Super. at 188-189; Cummings v. Bahr, 295 N.J. Super. 374, 384 (App. Div. 1996).

We therefore conclude that the motion judge did not abuse his discretion in denying the motion for reconsideration of the order that properly granted summary judgment.


Affirmed.

Both Sean Growney and his wife, Barbara Growney, were plaintiffs in the complaint filed. However, after summary judgment was granted, dismissing the claims of both plaintiffs, only Sean Growney sought reconsideration of the order. Accordingly, we refer to Sean Growney as plaintiff.

There is no mention of this report during the oral argument of plaintiff's motion for reconsideration on January 23, 2009. In denying the motion, the court noted that no new evidence was presented and described only Dr. Tiedrich's first report in recounting the medical evidence. However, as defendants have not objected to the report as an improper supplementation of the record, we will consider the report as having been presented to the motion judge in support of that motion.

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A-2820-08T1

March 12, 2010