JEAN E. KEELER v. JENNIFER DeSANTO, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3189-04T23189-04T2

JEAN E. KEELER,

Plaintiff-Appellant,

v.

JENNIFER DeSANTO and GREGORY

DeSANTO, individually, jointly,

severally and in the alternative.

Defendant-Respondent.

_______________________________________

 
 
 

Submitted November 30, 2005 - Decided

Before Judges Weissbard and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Camden County, L-3295-03.

Aronberg, Kouser & Paul, attorneys for appellant (William J. Stopper, of counsel and on the brief).

Marshal, Dennehey, Warner, Coleman & Goggin, attorneys for respondents (Walter F. Kawalec, III, on the brief).

PER CURIAM

In this automobile accident case governed by the Automobile Insurance Cost Reduction Act of 1998 ("AICRA"), N.J.S.A. 39:6A-8, the trial court granted summary judgment to defendants. The pivotal basis for the trial court's disposition was that plaintiff had failed to produce a sufficient expert analysis, pursuant to Polk v. Daconceicao, 268 N.J. Super. 586 (App. Div. 1993), comparing the injuries that she sustained in the subject accident with her pre-existing medical conditions.

We reverse as a matter of law, as we concur with a recent opinion of another panel of this court holding the strictures of Polk inapplicable to AICRA cases. See Davidson v. Slater, 381 N.J. Super. 22 (App. Div. 2005). Given the purely legal nature of the grounds for reversal, we need not comment at length on the facts. On June 20, 2001, plaintiff Jean Keller, while driving her automobile through an intersection, was struck by a sedan that had failed to stop for a stop sign. The sedan was driven by defendant Jennifer Desanto and owned by defendant Gregory Desanto.

Immediately following the accident, plaintiff was transported to a local hospital, and reported injuries to her lower back, shoulders, neck and arms. Over the next two years, plaintiff was treated for those injuries by a chiropractor, Perry J. Cicchini, D.C., as well as by her family physician. Dr. Cicchini diagnosed plaintiff with several conditions that he attributed to the June 2001 accident, including acute and chronic radiculopathy at vertebral level C7, right-sided carpal tunnel syndrome, and disc bulging at levels C4-C5, L3-L4 and L5-S1. He also found that the collision aggravated plaintiff's spinal stenosis at L3-L4. Dr. Cicchini noted that these injuries were objectively confirmed by MRI and EMG studies.

Plaintiff, who was age 65 at the time of the June 2001 collision, had some prior accidents, most notably in July 1996 when she injured her back, neck and right hand. She filed a lawsuit after that 1996 accident and recovered a modest settlement. The record also shows that plaintiff had a spinal fusion in 1969. She had not worked since 1988.

Plaintiff is subject to AICRA's lawsuit limitation option, pursuant to an election in her automobile insurance policy.

The trial court faulted plaintiff for failing to locate her medical records from the prior accidents and present them to her present treating doctors for review. Such review should have enabled them to compare the injuries from the subject 2001 accident to plaintiff's previous injuries. Because plaintiff's expert did not include such a comparative analysis within the body of his narrative report, the trial judge ruled that plaintiff had failed to comply with Polk v. Daconceicao, 268 N.J. Super. 586 (App. Div. 1993), a pre-AICRA verbal threshold case that had been widely extended to cases litigated under AICRA's lawsuit limitation option.

As a matter of law, we adopt the recent holding in Davidson v. Slater, supra, declaring that the Polk comparative-analysis requirement does not extend to cases under AICRA. We are aware that at least one other panel of this court has reached the opposite conclusion. Contra Lucky v. Holland, 380 N.J. Super. 566 (App. Div. 2005). Although this issue is not free from doubt, we believe that Davidson, which found it inappropriate to engraft the case law doctrine of Polk upon the standards for recovery codified in AICRA, is more faithful to the precepts for AICRA's statutory construction expressed by the Supreme Court in DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005)(declining to import the "serious impact" prong of pre-AICRA case law to AICRA cases).

 
Since plaintiff's failure to satisfy Polk was the sole basis for the dismissal of her claims below, we must reverse the judgment for defendants and remand for trial.

 

Parenthetically, we observe that some of plaintiff's injuries, particularly her bulging discs in the cervical region, appear to be conditions that were not manifest from her prior accidents. Hence, even if Polk applied here as a matter of law, the record suggests that no comparative analysis would be required for such new injuries. We also doubt that a plaintiff must always furnish his or her expert with all prior treatment records in order for the expert to perform a comparative analysis that satisfies Polk. The expert may be able to glean sufficient information about prior injuries from the patient's oral history, or from a partial set of medical records that the patient may be able to locate, to assess the relevance, if any,

of prior injuries on the patient's present diagnosis and prognosis. The weight of the expert's comparative opinions, of course, may be subject to impeachment at trial where the prior treatment records were incomplete or not reviewed at all.

(continued)

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A-3189-04T2

 

 

January 3, 2006