HECTOR L. CRUZ et al. v. HEATHER L. GLENN

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4010-05T14010-05T1

HECTOR L. CRUZ and

YESENIA CRUZ, his wife,

Plaintiffs-Appellants,

v.

HEATHER L. GLENN,

Defendant-Respondent.

__________________________________________________

 

Argued March 21, 2007 - Decided April 4, 2007

Before Judges C.S. Fisher and Messano.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. ESX-L-3873-04.

Amos Gern argued the cause for appellants (Starr, Gern, Davison & Rubin, attorneys; Mr. Gern, of counsel; James A. Meszaros, on the brief).

John R. Leith argued the cause for respon-dent (Mattson, Madden & Leith, attorneys; Mr. Leith, of counsel).

PER CURIAM

The trial judge granted summary judgment in favor of defendant, concluding that the "Best Practices" rule amendments "would mean nothing" if plaintiff was not precluded from relying upon a supplemental expert report and holding further that, in the absence of that report, the original report of plaintiff's expert constituted a net opinion. We conclude that the original expert report, standing alone, is not a net opinion, and that the trial judge erred in barring the supplemental report.

Plaintiff Hector L. Cruz claims that, on June 26, 2002, he incurred back injuries when his vehicle was struck in the rear on Route 280 in Roseland by a vehicle driven by defendant. He was taken by ambulance to St. Barnabas Hospital in Livingston, where a series of x-rays were taken, and then discharged.

Plaintiff claims that he remained in pain days later. He was examined by Dr. Philip H. Lewis, who ordered MRIs that were conducted on July 5, 2002. This MRI study, according to Dr. Lewis, revealed three herniated discs. Thereafter, plaintiff pursued a course of physical therapy, was referred for an EMG, underwent a series of epidural and facet-point injections, and consulted with a spinal surgeon, who opined that plaintiff was a candidate for surgical options. Plaintiff missed work from June 27, 2002 to September 3, 2002. In a July 3, 2003 report, Dr. Lewis opined that, within a reasonable degree of medical probability, plaintiff's back injuries were permanent and were causally related to the June 26, 2002 auto accident.

Neither Dr. Lewis's report nor plaintiff's answers to interrogatories revealed that plaintiff visited his primary care physician, Dr. Edward M. Wilson, six years before the auto accident with complaints of minor back pain. However, because plaintiff's answers to interrogatories revealed plaintiff's past and present healthcare carriers, defense counsel was able to obtain -- prior to the discovery end date -- evidence of plaintiff's visit with Dr. Wilson on November 20, 1996, at which time plaintiff complained of back pain. Following the discovery of this information, defense counsel deposed plaintiff, but did not inquire -- no doubt for strategic reasons -- about plaintiff's 1996 complaints. Instead, by the time the discovery period ended on June 13, 2005, plaintiff had not revealed either to defendant or to Dr. Lewis that he had been previously treated for back pain.

Defendant requested plaintiff's medical authorization for the first time a few months later, and obtained medical records of plaintiff's treatment by Dr. John Wolkstein, a chiropractor, on August 20, 2001, and his treatment by Dr. Franco Rizzolo, also a chiropractor, on March 23, 2002. Defendant served this information of plaintiff's two chiropractic treatments on plaintiff in December 2005 and immediately moved for summary judgment, arguing that plaintiff had failed to provide a Polk comparative analysis of the alleged pre- and post-accident injuries. Relying upon our decision in Davidson v. Slater, 381 N.J. Super. 22 (App. Div. 2005), the trial judge denied that motion by order entered on January 26, 2006, concluding that a Polk analysis is not required in a personal injury suit governed by the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. Our Supreme Court's subsequent decision in Davidson v. Slater, 189 N.J. 166 (2007), demonstrates that the judge correctly predicted how the Supreme Court would interpret AICRA in this regard despite decisions of other panels of this court that had reached a contrary conclusion.

Dr. Lewis rendered a supplemental report dated February 6, 2006, which stated in part:

I have reviewed my prior report . . . . It appears that Mr. Cruz correctly denied any prior motor vehicle accident or associated injury. While Mr. Cruz did not advise me of the above medical care, he was clear in attributing his onset of various pains, including the lower back to the motor vehicle accident that occurred on June 26, 2002. It would appear that none of the prior treatment to his lower back involved extended care, and no significant diagnostic evaluation was ever performed.

Under the circumstances, I reiterate my opinion that the injuries to his lumbosacral spine, including sprain and strain with radiculitis, and diagnosed herniated discs at multiple levels, are all causally related to the motor vehicle accident in question. My opinion is stated to a degree of medical probability.

In her second motion for summary judgment, which was pending at the time, defendant argued that this supplemental expert opinion was untimely and that, in its absence, the original expert report constituted a net opinion.

The trial judge agreed that Dr. Lewis's original report contained only a net opinion. She stated that Dr. Lewis drew

a conclusion about causation without the facts of this case. He has only what the plaintiff had advised him and we know now that that advice was inaccurate and incomplete. He advised the doctor of no prior motor vehicle accidents, and so the doctor assumed that meant that [there were] no incidents and no prior complaints.

In fact, that's not accurate. And, indeed, the plaintiff had been asked in discovery . . . in the form interrogatories, not just about accidents, but about injuries and incidents. He failed to disclose any of the prior treatment that he had received.

Although the judge accurately described plaintiff's failure to fully advise Dr. Lewis of his prior medical history, she was mistaken in concluding that Dr. Lewis's failure to consider this additional information transformed his opinion into a net opinion.

An expert's bare conclusion, without reliance upon factual evidence or data, represents a net opinion. See Matter of Yaccarino, 117 N.J. 175, 196 (1989); Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). Such an opinion is of no weight because N.J.R.E. 703 requires that an expert's opinion be based upon "facts or data." As we explained in Rosenberg v. Tavorath, 352 N.J. Super. 385, 401 (App. Div. 2002) (quoting Jiminez v. GNOC Corp., 286 N.J. Super. 533, 540 (App. Div.), certif. denied, 145 N.J. 374 (1996)), the rule requires that an expert "'give the why and wherefore' of his or her opinion, rather than a mere conclusion." Dr. Lewis's original report meets this standard. He examined plaintiff, and he viewed and considered the objective tests available, which included x-rays, an EMG, and an MRI study, in concluding that plaintiff's injuries were permanent and were caused by the auto accident. It is true that the report was rendered without Dr. Lewis knowing of plaintiff's pre-accident back complaints and treatment. This may ultimately serve to undermine the credibility or persuasiveness of Dr. Lewis's opinion, but it does not transform the opinion into a net opinion, nor may it serve as a basis for precluding Dr. Lewis's expert testimony at trial.

We also reject the trial judge's barring of plaintiff's use of Dr. Lewis's supplemental report. Certainly the "best practice" rule amendments were meant to avoid last minute discovery and the concomitant trial delays that such occurrences bring about. See Ponden v. Ponden, 374 N.J. Super. 1 (App. Div. 2004), certif. denied, 183 N.J. 212 (2005); Tucci v. Tropicana Casino and Resort Inc., 364 N.J. Super. 48 (App. Div. 2003). These rule amendments, however, were not intended to be the cause of additional litigation. Ragusa v. Lau, 119 N.J. 276, 283-84 (1990). If a breach occurs, the discovery rules permit the assessment of sanctions to redress the litigant's failure to comply. We do not dispute that there are times when our discovery rules will permit the prelusion of a late expert report. But it disserves the overriding policy that cases be resolved on their merits to allow plaintiff's failure to provide a full picture of his prior back complaints to foreclose him from a trial on the merits. Undoubtedly, plaintiff will pay a price on cross-examination, as will his medical expert, for his failure to seasonably disclose this information. But, contrary to the trial judge's holding, barring plaintiff from relying on Dr. Lewis's supplemental report, or from eliciting at trial, from Dr. Lewis, the supplemental opinion contained therein, will not render the "best practices" rule amendments meaningless.

The order of March 3, 2006 is reversed and the matter remanded for further proceedings. In light of our conclusion that plaintiff is entitled to rely upon Dr. Lewis's supplemental report, and will be entitled at trial to elicit testimony from Dr. Lewis based upon that report, we do not foreclose the reopening of discovery for a brief period of time in order to provide defendant with a full and fair opportunity to conduct discovery regarding the supplemental report or to provide an additional report in rebuttal.

Reversed and remanded. We do not retain jurisdiction.

 

His wife has also asserted a per quod claim.

Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993).

See, e.g., Hardison v. King, 381 N.J. Super. 129 (App. Div. 2005); Lucky v. Holland, 380 N.J. Super. 566 (App. Div. 2005).

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A-4010-05T1

April 4, 2007