PRICILA TORRES v. FELICITA RIVERA, GERONIMO RIVERA, ALEXANDRE TORRES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4306-05T54306-05T5

PRICILA TORRES,

Plaintiff-Appellant,

v.

FELICITA RIVERA, GERONIMO

RIVERA, ALEXANDRE TORRES,

Defendants-Respondents.

_________________________________________________

 

Argued January 23, 2007 - Decided May 23, 2007

Before Judges Weissbard and Payne.

On appeal from Superior Court of New Jersey,

Law Division, Essex County, L-3817-04.

Susan M. McNamara argued the cause for

appellant (Grieco, Oates & DeFilippo,

attorneys; Ms. McNamara, on the brief).

Antonietta Vitale argued the cause for

respondent Alexandre R. Torres (Chasen

Leyner & Lamparello, attorneys; John M.

Lago, of counsel and on the brief with Ms. Vitale).

McDermott & McGee, attorneys for

respondents Geronimo and Felicita

Rivera, rely on the brief filed on

behalf of respondent Alexandre R.

Torres.

PER CURIAM

Plaintiff, Pricila Torres, appeals from an order of summary judgment entered against her for failure to cross the limitation on lawsuit threshold established pursuant to the Automobile Insurance Cost Reduction Act by N.J.S.A. 39:6A-8a.

On May 11, 2002, the vehicle in which Torres was riding as a passenger was rear-ended by defendant, Felicita Rivera. Plaintiff, who was then twenty-three years of age, treated with Burgess Berlin, M.D., an orthopedic surgeon, for six months, ending on November 7, 2002. On May 10, 2004, she filed suit against Felicita and Geronimo Rivera and Torres's husband, Alexandre Torres. A discovery end date of August 19, 2005 was assigned to the case.

In a report, dated October 16, 2004, and served within the discovery period, Dr. Berlin found that, at the time of her last examination, plaintiff exhibited "significant" cervical, thoracic and lumbosacral muscle spasm that he found to be permanent in nature and causally related to the May 2002 accident. In his narrative, Dr. Berlin stated:

My impressions were that this patient had sustained as a direct result of motor vehicle accident which occurred on or about May 11, 2002, multiple injuries comprising a diagnosis of post traumatic headaches, acute cervical, thoracic and lumbosacral myositis with radiculitis, rule out herniated nucleus pulposus, and traumatic bilateral shoulder subacromial bursitis bicipital tendonitis, rule out torn rotator cuff.

Dr. Berlin also stated that if plaintiff's symptoms became "intolerable," he would recommend more aggressive medical management including a "MRI evaluation of her neck and low back to determine at what level she had herniated an intervertebral disc."

Subsequent reports of MRI studies, conducted on June 22, 2005, and, again, served within the discovery period, noted straightening of the normal cervical lordosis suggesting muscle spasm and a herniation at L5-S1, impinging upon the thecal sac. The films were reviewed by David Greifinger, M.D., the orthopedic expert retained on behalf of the Riveras, who, in a report dated August 11, 2005, did not challenge the radiological interpretation of the images, but stated that it would be impossible to draw any conclusions with respect to causation. No supplemental medical examination was requested.

Thereafter, on September 7, 2005, a motion for summary judgment was filed by Alexandre Torres, in which Felicita and Geronimo Rivera joined. While the motion was pending and one month after the discovery period had ended, plaintiff served a supplemental report from Dr. Berlin, dated September 15, 2005, in which he stated that he had last seen plaintiff on April 20, 2005, and at that time she continued to exhibit significant cervical, thoracic and lumbosacral muscle spasm with marked limitation of motion. MRI evaluations were recommended and, according to Dr. Berlin, their findings were "consistent with [his] earlier objective findings" and confirmed his "suspicion of a lumbar disc herniation." In his report, the doctor causally related the injuries detected on the MRIs to the motor vehicle accident and found the injuries to plaintiff's neck, middle and low back and to her shoulders to be permanent in nature. No certification that the information was not reasonably available prior to the discovery end date, required by R. 4:17-7, was supplied by plaintiff's counsel, and no consent to extend the period for discovery pursuant to R. 4:24-1(c) was obtained. At the time that defendant's summary judgment motion was filed, no trial date had been assigned to the matter.

In an oral opinion granting summary judgment, the motion judge declined to consider Dr. Berlin's supplemental report, finding non-compliance with the dictates of Best Practices and prejudice to defendants as the result of their inability to counter, through a supplemental medical examination, plaintiff's claim of a herniation that was causally related to the 2002 accident. The judge found the remaining evidence to be insufficient to meet the limitation on lawsuit threshold. A motion for reconsideration was denied. In the interval between the initial order of summary judgment and the order denying reconsideration, on November 16, 2005, the depositions of all of the parties were taken.

We reverse, determining that the timely-submitted evidence, albeit contested, when viewed in a light most favorable to the plaintiff, is sufficient to support a verdict in plaintiff's favor. Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520, 540 (1995); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div), certif. denied, 154 N.J. 608 (1998).

In order to cross the threshold established by N.J.S.A. 39:6A-8a, plaintiff was required to present objective evidence of a permanent injury that was causally related to the May 2002 accident. DiProspero v. Penn, 183 N.J. 477 (2005). The verbal threshold statute provides that "[a]n injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment." N.J.S.A. 39:6A-8a. To meet the statutory burden, plaintiff produced, within the discovery period, evidence of permanent injury to the neck and lumbar spine, manifesting, respectively, in cervical spasm and lumbar herniation. No evidence that plaintiff had sustained any subsequent accident or was otherwise injured after May 2002 was provided by any party.

In his October 16, 2004 report, plaintiff's treating orthopedist, Dr. Berlin, recounted x-ray findings of "straightening of the normal cervical lordotic curve consistent with muscle spasm secondary to trauma" and the persistence of plaintiff's cervical symptoms for a period of six months. Additionally, in that report he concluded that the symptoms were both permanent and causally related to the May 2002 accident. The persistence of the cervical spasms for a period of more than three years was confirmed in the MRI study conducted on June 22, 2005. Although the radiological report did not address the issue of causation, viewed in a light most favorable to plaintiff, the report reasonably could be construed as providing confirmation of the accuracy of Dr. Berlin's opinion with respect to permanency.

Similarly, in the October 2004 report, Dr. Berlin found lumbosacral myositis with radiculitis, and he stated that plaintiff's low back condition was also permanent in nature and causally related to her accident. Evidence of the herniated nucleus pulposus that he was unable to rule out in 2004 was provided by the June 2005 MRI.

Although a further opinion with respect to causal relationship and permanency was submitted after the discovery period had ended, the timely-submitted evidence was sufficient to apprise defendants of the nature and severity of plaintiff's claimed injuries and to raise an inference of their causal connection to the accident that was the subject of her suit. That counsel for the defendant Riveras viewed the MRIs as substantive evidence of plaintiff's alleged injuries is demonstrated by the transmittal of the films to Dr. Greifinger for his review and opinion on the accuracy of the radiological findings and on the causal relationship between the findings and the May 2002 accident. There was no surprise, and no deprivation of a supplemental medical examination, which was never requested. Given the obvious import of the timely-served MRI reports, we disagree with the motion judge's determination that plaintiff's proof of a permanent injury causally related to her accident was fatally lacking.

Further, we regard the motion judge's determination not to consider Dr. Berlin's September 2005 supplemental report because it was not served in a manner that complied with Best Practices, in the circumstances presented, to have been a misuse of his discretion. The body of rules encompassed by Best Practices was "not designed to do away with substantial justice on the merits or to preclude rule relaxation when necessary to 'secure a just determination.'" Tucci v. Tropicana Casino and Resort, Inc., 364 N.J. Super. 48, 53 (App. Div. 2003) (citing R. 1:1-2). In the present case, the inference of causal relationship created by timely service of MRI reports that confirmed injuries considered or diagnosed by Dr. Berlin during his initial treatment of plaintiff was strong. Although Dr. Berlin's supplemental report provided the necessary formal evidence of permanency and causation, his opinions could in no respect be deemed unanticipated. In such circumstances, the use of Best Practices as a sword appears to us to have been unwarranted. Although we cannot condone the failure by plaintiff's counsel to follow applicable court rules, in circumstances in which the late-filed report was foreseen, no prejudice to defendants was demonstrated, arbitration had not occurred, and trial had not been scheduled, we find the penalty imposed to have been too severe.

 
The order of summary judgment is accordingly reversed, and the case is remanded for further proceedings.

It is unclear whether an arbitration date had been assigned. However, none had taken place.

The motion judge appears to have misconstrued Dr. Berlin's differential diagnosis, deeming herniation to have been ruled out, and not a subject of further diagnostic investigation, should plaintiff's physical condition warrant it.

(continued)

(continued)

9

A-4306-05T5

May 23, 2007