CATHERINE NORRIS v. CECELIA R. ALTAMAR et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1693-04T21693-04T2

CATHERINE NORRIS,

Plaintiff-Appellant,

v.

CECELIA R. ALTAMAR and

GLADYS DEVEGA,

Defendants-Respondents.

_______________________________

 

Argued October 3, 2005 - Decided

Before Judges Lisa and S.L. Reisner.

On appeal from the Superior Court of New Jersey, Law Division, Morris County,

L-117-03.

Scott Arons argued the cause for appellant (Arons and Gonzalez, attorneys; Mr. Arons, on the brief).

Brian Peoples argued the cause for respondents (Leary, Bride, Tinker & Moran, attorneys; David J. Dering, of counsel and on the brief).

PER CURIAM

This is a verbal threshold case. Plaintiff Catherine Norris appeals from a trial court order dismissing her complaint on a motion for summary judgment. We reverse and remand for trial.

I

Plaintiff, age seventeen, was involved in an automobile accident on December 4, 2001, when the car she was driving was struck from the rear by a vehicle driven by defendant, Cecilia Altomar. She initially sought treatment with Dr. Kenneth Cubelli, an orthopedic surgeon, who sent her for an MRI of her spine on January 30, 2002. This MRI showed normal results. Dr. Cubelli prescribed physical therapy for plaintiff's continuing back pain and other symptoms.

She sought additional treatment from Dr. Dean Curtis, a chiropractor, on March 27, 2002. Dr. Curtis sent plaintiff for an MRI, which was performed on April 10, 2002. This MRI revealed a "small left paramedial disc herniation" at L4-5. In a report dated August 20, 2002, Dr. Curtis opined, based on the April MRI report and his own examination of the plaintiff, that she had suffered a herniated disc as a result of the accident and that the injury to her spine was permanent.

Because she continued to experience back pain "with occasional numbness of the right leg," plaintiff sought treatment from Dr. Cyrus Vosough, who sent plaintiff for a lumbar epidural injection and an evaluation by a neurosurgeon, and ordered another MRI. This third MRI, which was performed on July 31, 2003, revealed that the disc herniation at L4-5 was still present and was "larger than [it was] on 04/02." In a report dated July 16, 2004, Dr. Vosough opined that "I have been treating [plaintiff] for injuries sustained to the neck and the low back. I believe these injuries were causally related to the motor vehicle accident of December 4, 2001." He also opined that these injuries were permanent. He further stated that he based his opinion "in part on objective clinical evidence which have included medical testing including imaging studies." He then indicated that an MRI of the lumbar spine had revealed "disc protrusion at L4-5 resulting in thecal sac deformity."

Defendant moved for summary judgment contending that plaintiff had failed to meet both prongs of the Oswin test. The trial judge granted summary judgment, concluding that plaintiff's injuries did not have a "serious impact on her life," and that

Dr. Vosough's report of 7/16/04 purports to opine on the causal relationship and permanency. The report concludes there is permanency but does not state that the findings noted on the MRI were caused by this accident.

II

On this appeal, defendant concedes that pursuant to the Supreme Court decisions in DeProspero v. Penn, 183 N.J. 477 (2005), and Serrano v. Serrano, 183 N.J. 508 (2005), plaintiff was not obligated to demonstrate that the injuries caused a serious impact on her life. However, defendant continues to assert that plaintiff did not produce evidence that the herniated disc revealed on the last two MRI's was caused by the December 2001 accident. We find this argument without merit.

It is axiomatic that on a motion for summary judgment, the non-moving party is entitled to the benefit of all favorable inferences that can be drawn from the evidence. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). In this case, two MRI's have revealed the presence of a herniated disc in plaintiff's lumbar spine. Two doctors have diagnosed plaintiff as having a herniated disc, and they have both opined that the injury was caused by the accident and is permanent. Contrary to defendant's contention, Dr. Vosough's July 2003 report can fairly be construed as citing the MRI's in support of his conclusion that plaintiff suffered a herniated disc as a result of the 2001 accident.

We also find no merit in defendant's argument, based upon Polk v. Daconceicao, 268 N.J. Super. 568, 571-72 (App. Div. 1993), that plaintiff's experts were required to explain away the first MRI report, which was normal. Polk is inapplicable here, because there is no evidence that plaintiff was involved in any other accidents between the time that the first MRI was performed and the dates of the second and third MRI's. Hence, unlike Polk, there is no reason to require the plaintiff to produce evidence differentiating between the injuries caused by multiple accidents. Ibid.

At trial, defendant may argue that the second and third MRI's are inaccurate, or that the first MRI is evidence that the herniation was not caused by the accident. The contradictory MRI results may cast doubt on the credibility of the opinions offered by plaintiff's experts, particularly since their reports do not indicate that they reviewed the first MRI report before making their diagnoses. On the other hand, those experts may offer cogent explanations as to why the first MRI report was inaccurate. But all of these possible scenarios go to the weight the jury may give to the experts' opinions and not to the admissibility of those opinions.

 
Reversed and remanded.

Oswin v. Shaw, 129 N.J. 290 (1992).

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A-1693-04T2

October 14, 2005