YOUNG HEE LEE v. FRANK R. CINQUINA, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2616-04T12616-04T1

YOUNG HEE LEE,

Plaintiff-Appellant,

v.

FRANK R. CINQUINA, VAULT, and

GARRITY GRAHAM FAVETTA & FLINN,

Jointly, Severally or in the

Alternative,

Defendants-Appellants.

________________________________________________________________

 

Argued October 18, 2005 - Decided

Before Judges Collester and Lisa.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, L-5144-03.

David L. Kowzun argued the cause for appellant (Goldstein, Ballen, O'Rourke & Wildstein, attorneys; Mr. Kowzun, of counsel and on the brief).

John F.X. Kennedy argued the cause for respondents (Edward Hoagland, Jr., attorney; Mr. Kennedy, on the brief).

PER CURIAM

Plaintiff, Young Hee Lee, appeals from a summary judgment dismissing her complaint for personal injuries arising out of a motor vehicle accident for failure to satisfy the "limitation on lawsuit" threshold under the 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a. The motion judge found that plaintiff failed to present sufficient evidence to withstand summary judgment with respect to both the objective and subjective prongs required by Oswin v. Shaw, 129 N.J. 290 (1992).

Plaintiff argues that the second prong of Oswin, requiring a showing of a substantial life impact caused by the injuries, is not required under AICRA, or, alternatively, she submitted sufficient evidence to satisfy that prong. During the pendency of the appeal, the Supreme Court decided DiProspero v. Penn, 183 N.J. 477 (2005), holding that under AICRA, a claimant is not required to prove substantial life impact. Thus, the arguments presented by the parties on appeal regarding Oswin's second prong are moot, and we will not discuss them further.

With respect to the first prong under Oswin, proof by credible objective medical evidence of a qualifying injury, plaintiff argues that she made a sufficient showing to withstand summary judgment. We agree and reverse.

Following the accident on July 28, 2001, plaintiff was transported by ambulance to a hospital, where she was treated and released. On August 15, 2001, plaintiff came under the care of Dr. Shams Qureshi, with whom she treated until February 21, 2002. In his July 12, 2002 narrative report, Dr. Qureshi set forth a final diagnosis, including traumatically displaced disc of the cervical spine at C5-6 and traumatically displaced disc of the lumbar spine at L5-S1. Dr. Qureshi described his observation of muscle spasms in both the cervical and lumbar areas and his observed limitation of range of motion in both areas. He further described his review of diagnostic tests, including MRIs performed on October 26, 2001, revealing bulging discs at C5-6 and L5-S1, and an EMG performed on December 19, 2001, that was negative for either right or left cervical radiculopathy and showed no evidence of carpal tunnel syndrome bilaterally. In his final examination of plaintiff on February 21, 2002, plaintiff continued to exhibit spasm and limitation of range of motion in both the cervical and lumbar areas. Dr. Qureshi concluded that plaintiff's injuries were caused by the accident and were permanent.

On May 11, 2004, plaintiff was evaluated for her orthopedic injuries by Dr. Vijaykumar Kulkarni. Dr. Kulkarni performed a clinical examination of plaintiff and reviewed all of her prior medical reports and records pertaining to the injuries suffered in this accident. With respect to the MRI studies, he reviewed both the MRI films and the reports and expressed his agreement with the findings of the radiologist. In his physical examination, Dr. Kulkarni observed spasm in the cervical and lumbar regions and limitation of range of motion in both regions. In the cervical area, he also observed that "[t]he posterior musculature is harder than normal."

Dr. Kulkarni rendered the following diagnosis:

1. Status post sprain/strain injury involving the cervical spine with disc bulge C5-6 with residual myositis and fibromyositis with loss of range of motion.

2. Status post sprain/strain injury involving the lumbar spine with disc bulge at L5-S1 with residual myositis and fibromyositis with loss of range of motion.

In Dr. Kulkarni's opinion, the injuries were caused by the accident of July 28, 2001 and are permanent.

Plaintiff also sought treatment from Dr. Stuart Katz, an oral and maxillofacial surgeon. Dr. Katz evaluated plaintiff on August 28, 2001. He diagnosed a TMJ dysfunction, which he opined was caused by the accident and was permanent in nature. His diagnosis was based, in part, upon objective findings, described in his September 30, 2002 narrative report as follows: "TMJ: Upon opening there was a left TMJ clicking, as evidenced by palpable reduction of the TMJ meniscus. Intraoral: The patient has a class I occlusion, with minor wear facets."

The motion judge analyzed these medical reports and the underlying reports of the MRI and EMG studies, and made these findings with respect to the first prong of Oswin:

Plaintiff's claims are TMJ, pain in the cervical spine radiating into both shoulders, arms and hands, and pains in the lower back. There is evidence of spasms and limited motion in the plaintiff's lumbar spine.

. . . .

Although the plaintiff claims she is suffering from pain radiating down her leg, the objective evidence from the MRI reveals the following: disc bulging C5-6 and L5/S1. The electrophysiologic findings do not suggest either right or left cervical radiculopathy and there is no evidence of carpal tunnel syndrome bilaterally. The doctor then opines that with a high degree of medical certainty the patient's condition is guarded and prognosis is poor.

The actual MRI readings of October 26, 2001, reveal no evidence of focal atrophy of the cord and no abnormal signal intensity. Regarding the lumbar spine, the MRI states at L5/S1 there is no disc protrusion and no disc extrusion or herniation.

. . . Using the standard set forth in Brill [v. Guardian Life Ins. Co. of Am., 142 N.J. 520 (1995)], the court finds that the plaintiff has not established a permanent injury as a matter of law. The court finds that this case is similar to Sherry v. Buonansonti, 287 N.J. Super. 518 [(App. Div.), certif. denied, 144 N.J. 588 (1996)], in which the Appellate Division reversed an award finding that the plaintiff did not meet the objective credible evidence as established by Oswin[.]

On a summary judgment motion, the judge must consider whether the competent evidential materials comprising the motion record "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 in favor of the non-moving party." Brill, supra, 142 N.J. at 540. The judge should not weigh the evidence and determine truth but rather should ascertain whether there is a genuine issue for trial. Ibid. When reviewing a summary judgment on appeal, we apply the same standard. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Applying these principles, it is plain to us that, viewing the evidence most favorably to plaintiff, she provided ample credible objective medical evidence of permanent injuries caused by the accident of July 28, 2001. We do not find this case at all like Sherry v. Buonansonti, where the only purported objective evidence consisted of a CAT scan showing signs that were "very suggestive of degeneration that had occurred subsequent to the accident." 287 N.J. Super. at 521. Here, MRI studies revealed two bulging discs, and two physicians explained why, in their opinions, these injuries were traumatically caused by the accident. The same physicians observed persistent spasm and limitation of range of motion in the affected areas. The TMJ dysfunction diagnosis was also supported by ample credible objective medical evidence.

The motion judge impermissibly engaged in factfinding in his effort to analyze the details of the MRI and EMG studies in a manner that, in his view, would discredit the opinions rendered by plaintiff's medical experts. This usurped the jury's function. Brill, supra, 142 N.J. at 540.

Reversed and remanded for trial.

 

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A-2616-04T1

October 28, 2005