KERPER et al v. CHILSON, No. 1:2013cv03288 - Document 37 (D.N.J. 2016)
Court Description: MEMORANDUM OPINION & ORDER denying 27 Motion for Summary Judgment. Signed by Judge Joseph H. Rodriguez on 3/22/2016. (tf, )
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KERPER et al v. CHILSON Doc. 37 UNITED STATES DISTRICT COURT DISTRICT OF NEW J ERSEY LINDA M. KERPER and WAYNE KERPER (w/ h), : Hon. J oseph H. Rodriguez Plaintiffs, : Civil Action No. 13-3288 v. : MEMORANDUM OPINION & ORDER SARAH L. CHILSON, : Defendant. : This m atter is before the Court on Defendant’s m otion for sum m ary judgm ent pursuant to Federal Rule of Civil Procedure 56 [Doc. 27]. The Court reviewed the subm issions of the parties and has decided the m otion on the papers pursuant to Fed. R. Civ. P. 78(b). For the reasons set forth below, Defendants’ m otion will be denied. Background This m atter arises out of a May 27, 20 11 m otor vehicle accident in Wildwood, New J ersey. Plaintiff Linda M. Kerper filed a claim for negligence by Defendant Sarah L. Chilson, invoking diversity of citizenship as the basis for this Court’s jurisdiction. Plaintiff claim s that as a result of Defendant’s negligence, Plaintiff, Linda M. Kerper, sustained serious and perm anent injuries to her right foot, right knee, back, right hip, right hand and pelvis, including but not lim ited to lum bar strain and sprain, thoracic sprain and strain, cervical strain and sprain, 1 Dockets.Justia.com right ankle sprain and strain, right foot sprain and strain with plantar fasciitis, right hand sprain and strain, right wrist sprain and strain, right wrist nondisplaced hairline fracture of the right navicular waist, lum bar radiculitis, cervicalgia, lum balgia, cervical herniated discs, thoracic herniated discs, aggravation of disc degeneration of the lum bar spine and spinal stenosis, aggravation of degenerative disc at L3-4 and stenosis at L4-5 and other injuries. (Com pl., ¶ 12.) On the date of the accident, Plaintiff did not reside in New J ersey but m aintained an autom obile insurance policy with Travelers Insurance Com pany, an insurance com pany authorized to conduct business in the State of New J ersey. Accordingly, Plaintiff is subject to New J ersey’s “Deemer Statute”1 and the “lim itation-on-lawsuit threshold” set forth in the New J ersey Automobile Insurance Cost Reduction Act (“AICRA”). 2 The Deem er Statute, N.J . Stat. Ann. § 17:28– 1.4, “requires insurers authorized to transact autom obile insurance business in New J ersey to provide coverage to out-of-state residents consistent with New J ersey law ‘whenever the autom obile or m otor vehicle insured under the policy is used or operated in this State.’” Zabilowicz v. Kelsey, 984 A.2d 872, 875– 876 (N.J . 20 0 9). The Deemer Statute also requires affected insurance com panies “to provide personal injury protection [(“PIP”)] benefits pursuant to N.J . Stat. Ann. [§ ] 39:6A– 4.” Id. at 876. “In short, the Deemer Statute furnishes the covered out-of-state driver with New J ersey’s statutory no-fault PIP and other benefits and, in exchange, deems that driver to have selected the lim itation-on-lawsuit option of [N.J . Stat. Ann. §] 39:6A– 8(a).” Id. 2 AICRA represents an effort by the New J ersey’s Legislature to curb rising auto insurance costs by lim iting the opportunities for accident victim s to sue for noneconom ic dam ages. This effort began with New J ersey’s im plem entation of a no-fault insurance scheme in 1972 when New J ersey 1 2 Sum m ary J udgment Standard Federal Rule of Civil Procedure 56(c) provides that sum m ary judgm ent should be granted if “pleadings, depositions, answers to interrogatories, and adm issions on file, together with affidavits, if any, show that there is no genuine issue as to any m aterial fact and that the m oving party is entitled to a judgm ent as a m atter of law.” See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding a m otion for sum m ary judgment, the court m ust construe all facts and inferences in the light m ost favorable to the nonm oving party. See Boyle v. Allegheny Pa., 139 F.3d 386, 393 (3d Cir. 1998). The m oving party bears the burden of establishing that no genuine issue of material fact rem ains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A fact is m aterial only if it will affect the outcom e of a lawsuit under the applicable law, and a dispute of a m aterial fact is genuine if the evidence is such that a reasonable fact finder could return a verdict for the nonm oving party. See Anderson, 477 U.S. at 252. passed the New J ersey Autom obile Reparation Act and has since undergone num erous revisions, in a process described as “tortured,” which need not be recounted here. See, e.g., Branca v. Matthews, 317 F. Supp. 2d 533, 537-39 (D.N.J . 20 0 4). The New J ersey Legislature passed AICRA in 1998 with three distinct goals “containing [insurance prem ium ] costs, rooting out fraud within the system , and ensuring a fair rate of return for insurers.” DiProspero v. Penn, 874 A.2d 10 39, 10 46 (N.J . 20 0 5). 3 The nonm oving party m ust present “more than a scintilla of evidence showing that there is a genuine issue for trial.” Woloszyn v. County of Lawrence, 396 F.3d 314, 319 (3d Cir. 20 0 5). “If the evidence is merely colorable . . . or is not significantly probative . . . sum m ary judgm ent m ay be granted.” Anderson, 477 U.S. at 249-50 (internal citations om itted). The court’s role in deciding the m erits of a sum m ary judgm ent m otion is to determ ine whether there is a genuine issue for trial, not to determ ine the credibility of the evidence or the truth of the m atter. Id. at 249. Analysis To contain autom obile insurance costs, AICRA established the lim itation-on-lawsuit threshold, which “bars recovery for pain and suffering unless the plaintiff suffers an injury that results in (1) death; (2) dism emberment; (3) significant disfigurement or significant scarring; (4) displaced fractures; (5) loss of fetus; or (6) perm anent injury within a reasonable degree of m edical probability . . . .” DiProspero v. Penn, 874 A.2d 10 39, 10 46 (N.J . 20 0 5) (quoting N.J . Stat. Ann. § 39:6A– 8(a)) (internal quotation m arks om itted). An insured bound by the lim itationon-lawsuit threshold is barred from suing for noneconom ic dam ages unless her injuries fall within AICRA’s six categories. J ohnson v. Scaccetti, 927 A.2d 1269, 1273 (N.J . 20 0 7). In the sum m ary judgment context, a plaintiff 4 can proceed to trial if she dem onstrates that her alleged injuries, if proven, fall into one of the six threshold categories. Davidson v. Slater, 914 A.2d 282, 295 (20 0 7) (citing Oswin v. Shaw, 60 9 A.2d 415, 417 (N.J . 1992)). If the alleged injury does not fit one of the obvious types of injury specified in the statute (death, dismemberm ent, displaced fractures, or loss of fetus), a plaintiff m ust also prove that the alleged statutory injury was caused by the accident in question or “risk dism issal on sum m ary judgment if the defendant can show that no reasonable fact-finder could conclude that the defendant’s negligence caused plaintiff’s alleged . . . injury.” Id. However, where a plaintiff alleges she suffered more than one injury as a result of the accident in question, the plaintiff need only establish one of her injuries m eets the lim itation-on-lawsuit threshold for the jury to consider all of the injuries when calculating noneconom ic dam ages. J ohnson, 927 A.2d at 1282. AICRA defines “perm anent injury” as “[w]hen the body part or organ, or both, has not healed to function norm ally and will not heal to function norm ally with further m edical treatm ent.” N.J . Stat. Ann. § 39:6A– 8(a). Additionally, in adopting AICRA, the New J ersey Legislature explicitly adopted a threshold requirement, the objective m edical evidence standard, established by the New J ersey Supreme Court in Oswin v. Shaw, 60 9 A.2d 5 415 (N.J . 1992). DiProspero v. Penn, 874 A.2d 10 39, 10 50 (N.J . 20 0 5). A plaintiff’s alleged lim itation-on-lawsuit injury “m ust be based on and refer to objective medical evidence.” Id. (emphasis rem oved). Finally, When a plaintiff alleges aggravation of pre-existing injuries as the anim ating theory for the claim , the plaintiff m ust produce com parative evidence to m ove forward with the causation element of that tort action. When a plaintiff does not plead aggravation of preexisting injuries, a com parative analysis is not required to m ake that dem onstration. AICRA does not impose on plaintiff any special requirem ent for a com parative-medical analysis in respect of causation in order to vault the verbal threshold. Davidson v. Slater, 914 A.2d 282, 284 (N.J . 20 0 7). In m oving for summ ary judgm ent, Defendant argues, first, that Plaintiff has no credible, objective m edical evidence of perm anent injury resulting from the May 27, 20 11 accident to overcom e the verbal threshold. Defendant also argues that the Court should grant her sum m ary judgment because Plaintiff has not presented an adequate com parative analysis for any aggravated perm anent injuries to overcome the verbal threshold. Plaintiff argues that in her Am ended Com plaint, she pled that she suffered both aggravated and new perm anent injuries that independently m eet the verbal threshold. Again, Plaintiff alleged that she: sustained serious and permanent injuries to her right foot, right knee, back, right hip, right hand and pelvis, including but not lim ited to lum bar strain and sprain, thoracic sprain and strain, 6 cervical strain and sprain, right ankle sprain and strain, right foot sprain and strain with plantar fasciitis, right hand sprain and strain, right wrist sprain and strain, right wrist nondisplaced hairline fracture of the right navicular waist, lum bar radiculitis, cervicalgia, lum balgia, cervical herniated discs, thoracic herniated discs, aggravation of disc degeneration of the lum bar spine and spinal stenosis, aggravation of degenerative disc at L3-4 and stenosis at L4-5 and other injuries. (Com pl., ¶ 12.) She continues that “[f]or the first tim e in Plaintiff’s life on J une 14, 20 11, after continuous com plaints of lower back pain radiating into her thighs since the accident in May 20 11, an MRI ordered by Dr. J oseph Kipp revealed a ‘broad-based disk bulge with severe bilateral facet arthropathy at L5-S1.’” Pl. Br., p. 9, citing Tango Cert., Ex. Y. Indeed, the Court finds that this disk bulge did not appear in the February 15, 20 11 MRI of the lum bar spine. See Tango Cert., Ex. R. Rather, as to L5S1, the February 15, 20 11 MRI indicates “there is no posterior disc contour abnormality,” “[t]he central canal is patent,” “[t]he neutral foram ina are patent bilaterally,” and “[t]here is m oderate facet hypertrophy.” Id. Plaintiff’s March 11, 20 11 MRI was only on the cervical and thoracic spine. Tango Cert., Ex. T. The Court cannot find, as a matter of law, that the disk bulge at L5-S1 on J une 14, 20 11 could not have reflected a new injury as the result of the traum a of the May 27, 20 11 accident. 7 Additionally, in his J uly 21, 20 14 Report, Dr. J oseph Kipp discusses the perm anency of this injury and details the various complaints and instances in Plaintiff’s medical records where she was found to have significant lower back pain radiating into her thighs and/ or lower extrem ities. See Tango Cert., Ex. V. 3 This is credible, objective evidence of a new perm anent injury sufficient to m eet the verbal threshold and overcome the instant m otion for sum m ary judgm ent. Further, Dr. Kipp’s report provides sufficient analysis of Plaintiff’s pre-existing injuries from prior m otor vehicle accidents as com pared to the instant action. Kipp states that Plaintiff had sustained injuries in a prior m otor vehicle accident to her lower back, thoracic pain, and right carpal tunnel syndrom e. See Tango Cert., Ex. V. He points out that as of April 20 , Specifically, Dr. Kipp m entions and relies upon Plaintiff’s urgent visit to Dr. Robert Sim csak, D.C., on August 1, 20 11, approxim ately two m onths after the accident. At that visit, Dr. Sim csak found that the “lum bosacral spine revealed paravertebral tenderness” and there was “pain upon end play at L5-S1 and the right S1 joint.” Sciolla Cert., Ex. E. Additionally, Dr. Kipp relied upon Plaintiff’s visit to Dr. J ames Zaslavsky, D.O. on August 15, 20 12. At that visit, Dr. Zaslavsky noted that “[Plaintiff’s] acute injury for which she seeks treatm ent for today is a new radicular pain that she is getting into her right lower extrem ity that em anates from her right PSIS region.” Tango Cert., Ex BB. Dr. Kipp’s Report reflected that Plaintiff sought treatm ent from Zaslavsky for right lower extrem ity radicular pain that was “new since this accident.” Tango Cert., Ex. V. He concluded that “within a reasonable degree of medical certainty,” “[a]s a result of her m otor vehicle accident of May, 20 11,” Plaintiff would “require chronic m edical m anagement” indefinitely. Tango Cert., Ex. V. 3 8 20 11, Plaintiff’s preexisting injuries were steadily im proving with therapy and goes on to explain that, as of J une 9, 20 11, Plaintiff was still com plaining of ongoing thoracic level pain from her thoracic disc herniation that had been “exacerbated since this accident.” Id. 4 Therefore, Dr. Kipp has provided a sufficient com parative analysis of Plaintiff’s aggravated injuries to m eet the verbal threshold in this case. His conclusions are to a reasonable degree of m edical certainty and are based on his first hand treatm ent and evaluation of Plaintiff from both before and after the May 27, 20 11 accident. Conclusion For these reasons, IT IS ORDERED this 22nd day of March, 20 16 that Defendant’s m otion for sum m ary judgment [Doc. 27] is hereby DENIED. / s/ J oseph H. Rodriguez J OSEPH H. RODRIGUEZ U.S.D.J . Although Dr. Kipp adm its that Plaintiff’s m ost recent MRI did not show appreciable internal changes to her previous injuries to the C5-6, C6-7, T56, T6-7, L3-4, and L4-5 regions, documented in her February 20 11 MRI, he contends that the level of pain to the cervical, thoracic, and lum bar regions where Plaintiff had previous injuries was beyond the pain she had experienced prior to the May 27, 20 11 accident. See Tango Cert., Ex. V. Kipp found that her pain in these regions was not well controlled, only tem porarily relieved by epidural injections, and is evidence of chronic pain syndrom e, in contrast to the progress that Plaintiff was experiencing related to pain in these regions prior to the May 27, 20 11 accident. Id. 4 9
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