WILLIE ROBERTSON v. SONIA E. JARA, SILVINIO JARA, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5460-04T35460-04T3

WILLIE ROBERTSON,

Plaintiff-Appellant,

v.

SONIA E. JARA, SILVINIO JARA,

and SALLY SCOTT,

Defendants-Respondents.

____________________________________

 

Submitted December 14, 2005 - Decided April 24, 2006

Before Judges Fuentes and Graves.

On appeal from Superior Court of

New Jersey, Law Division, Essex County,

Docket No. L-1034-04.

Grieco, Oates & DeFilippo, attorneys for

appellant (Susan M. McNamara, on the brief).

David E. Rehe & Associates, attorneys for

respondents Sonia E. Jara and Silvinio

Jara (Robert J. Kovacs, on the brief).

Burke & Potenza, attorneys for respondent

Sally Scott (Benjamin Justus, on the brief).

PER CURIAM

Plaintiff Willie Robertson appeals from the order of the Law Division dismissing his personal injury cause of action against defendants. Plaintiff's cause of action is subject to the limitations on lawsuits in N.J.S.A. 39:6A-8a. The matter came before the trial court on defendants' motion for summary judgment. The motion judge determined that plaintiff failed to present sufficient objective medical evidence that he sustained a permanent injury as a result of the automobile accident that gave rise to this litigation. After reviewing the record before us, we reverse and remand this matter for a trial on the merits.

For purposes of our analysis, we will recite the facts leading to the accident from plaintiff's perspective. By doing so, we obviously do not foreclose the possibility that a jury may find otherwise. On February 25, 2002, plaintiff was a front-seat passenger in a car owned and operated by his wife Sally Scott. As the car was proceeding southbound on Mill Street in Newark, a car driven by defendant Sonia Jara made a left turn onto Mill Street, colliding with the car driven by Scott. Plaintiff alleges that he was wearing his seatbelt at the time of the accident.

Four months later, on June 25, 2002, plaintiff underwent a magnetic resonance imaging (MRI) study of his lumbar spine and left knee. An MRI report dated July 2, 2002, issued by Bloomfield Diagnostic Imaging, and signed by Dr. Stephen A. Zinn, revealed that plaintiff had: (1) a straightening of the lumbar lordotic curve which suggests a correlation with muscle spasm; (2) loss of nuclear signal and disc herniation with ventral impingement on thecal sac at L3-4 and L4-5; and (3) disc thinning and bulging at L5-S1. The MRI test performed on plaintiff's left knee indicated an abnormal signal intensity of the medial meniscus.

On January 23, 2004, almost two years after the accident, plaintiff underwent electrodiagnostic testing. A report issued by Jersey Rehab, and signed by Dr. Edwin M. Gangemi, showed radiculopathy at left S1, which "[a]ppears to be quite acute." This study also found "[i]rritation of the posterior primary RAMI at right S1," and "[p]eripheral neuropathy, sensory and motor, primarily demyelinating in character."

In a report dated February 3, 2004, labeled "Final Narrative," Dr. Gangemi indicated that:

After assessment of the patient's condition, based on the patient's history, complaints, examinations, tests results, lack of previous symptoms and my experience with similar cases it is my impression that the above-mentioned injuries are directly and casually related to the motor vehicle accident which occurred February 25, 2002.

It is in all likelihood that these areas will be permanently weakened and [plaintiff] will experience future exacerbations of his condition. It should be considered that future arthritic degenerative changes of the cervical spine, lumbar spine and lower extremities may occur as a direct result of this injury.

[Plaintiff] reached maximum medial improvement under my care. He was discharged on 1/16/2004. He is to be seen for palliative care only.

[Emphasis added.]

In a certification dated June 30, 2004, prepared for the purpose of meeting the statutory requirements in N.J.S.A. 39:6A-8(a), Dr. Gangemi averred, within a reasonable degree of medical probability, that plaintiff "sustained substantial and permanent loss of a bodily function that will have permanent residual sequelae."

On the return date of defendants' motion for summary judgment, the trial court focused its analysis on the words used by Dr. Gangemi to describe his professional assessment of plaintiff's injuries, and the causal relationship these injures had to the automobile accident. In this respect, the court made the following findings:

Turning to the objective test, I think we really have to focus on what the proofs are that the plaintiff has to satisfy on the objective test, and I find that they have not been satisfied by Dr. Gangagami (phonetic) -- Gang[e]mi's, right -- February 3rd, 2004 report.

The first thing that the report has to tell me, because if the -- judges, of course, as we hear all these cases, we get very familiar with things such as bulges versus herniations and impingements on the thecal sac, nonimpingments on the thecal sac. It is not our job to judge injuries. It's the job of the plaintiff to have a doctor explain to us that there is objective clinical evidence that shows that this plaintiff suffered a qualifying injury that is severe, that the injury was caused by the accident in question, that it is permanent and that it cannot be fixed.

I do not find that Dr. Gang[e]mi's report connects the dots. Most of the report is not within a reasonable degree of medical probability. For example, on the last page, under prognosis, he writes, quote, "Such traumatic injuries may also predispose Mr. Robertson to the premature development of osteoarthritis involving the cervical spine, lumbar spine and lower extremities," close quote.

Mr. Kovacs is correct that the final diagnosis doesn't particularly tie in what part of the diagnosis was related to the accident and what wasn't. The -- Dr. Gang[e]mi writes in the second paragraph under causation summary, quote, "After assessment of the plaintiff's condition, based on the plaintiff's history, complaints, examinations, test results, lack of previous symptoms and my experience with similar cases, it is my impression," and I underline the words my impression, "that the above mentioned injuries are directly and causally related to the motor vehicle accident which occurred February 25th, 2002," close quote. It is -- it's not supposed to be an impression, number one, and number two, that conclusion is supposed to be based on objective clinical medical evidence and nothing else.

Accordingly, I do find that the plaintiff has failed to meet his burden on the objective test and that is the reason I'm granting the summary judgment motion.

On appeal from a grant of summary judgment, we use the same standard as the motion judge. First, we decide whether there is a genuine issue of material fact, and if none, we then decide whether the Law Division's ruling on the law is correct. Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); R. 4:46-2. In our view, the trial court failed to give plaintiff all of the favorable inferences he is entitled to receive under the standard articulated by the Supreme Court in Brill.

It is well-settled that in deciding a motion for summary judgment under Rule 4:46-2:

the determination whether there exists a genuine issue with respect to a material fact challenged requires the motion judge to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party in consideration of the applicable evidentiary standard, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party. This assessment of the evidence is to be conducted in the same manner as that required under Rule 4:37-2(b).

[Brill, supra, 142 N.J. at 523 (emphasis added).]

In order to successfully resist a defendant's motion for summary judgment, a plaintiff in an automobile accident case, who is subject to the limitations of N.J.S.A. 39:6A-8a has to present sufficient objective medical evidence that he sustained one of the statutorily recognized six categories of injuries, within a reasonable degree of medical probability. DiProspero, supra, 183 N.J. 481-82. Here, plaintiff alleges that he sustained a permanent injury to his lower back and left knee.

The evidence presented to the motion judge shows that plaintiff underwent a series of diagnostic tests that revealed the existence of permanent injuries to his lower back and left knee. As correctly noted by the motion judge, however, the final narrative report of plaintiff's treating physician did not articulate a causal link between these injuries and the automobile accident by using the statutorily required language of "within a reasonable degree of medical probability." N.J.S.A. 39:6A-8a. Notwithstanding this omission, when viewed in the light most favorable to plaintiff, the record contains sufficient objective medical evidence from which a rational jury could find that these injuries are both permanent and causally related to the February 25, 2002 accident.

It is undisputed that plaintiff had not been involved in any other accident, and was asymptomatic prior to the collision. Both the MRI and electrodiagnostic studies constitute objective medical evidence that plaintiff suffered traumatic injuries to his lower back and left knee, and that these injuries manifested after the accident. This, coupled with Dr. Gangemi's account of plaintiff's treatment history, which also includes the medical reasons for his conclusions and opinions, provides a legally sufficient basis for denying defendants' summary judgment motion, and permitting this controversy to be decided by a jury. See Pardo v. Dominguez, 382 N.J. Super. 489, 493 (App. Div. 2006).

Once this matter reaches a jury, the trial court remains authorized to determine, upon defendants' motion, whether plaintiff has established a prima facie case that his injuries are both permanent and proximately related to the February 25, 2002 accident. R. 4:37-2(b).

 
Reversed and remanded.

The trial court also found that plaintiff had not established that the injuries had a substantial impact on his life. Since the court's ruling, the Supreme Court abrogated the serious impact requirement. DiProspero v. Penn, 183 N.J. 477 (2005).

The circumstances here are distinguishable from the facts in Tierra v. Salazar, 356 N.J. Super. 586, 588-89 (App. Div. 2003), in which plaintiff presented an un-sworn letter from a doctor who was not his treating physician.

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A-5460-04T3

April 24, 2006