ROBERT MARTIN et al. v. THOMAS DONIO and RICHARD G. McNAMARA

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5003-05T55003-05T5

ROBERT MARTIN and

DANNA MARTIN, his wife,

Plaintiffs-Appellants,

v.

THOMAS DONIO and RICHARD G.

McNAMARA,

Defendants-Respondents,

and

STATE FARM INDEMNITY COMPANY,

Defendant.

________________________________________________________________

 

Argued March 14, 2007 - Decided April 11, 2007

Before Judges Cuff and Baxter.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-3188-04.

Scott C. McKinley argued the cause for appellants (Hoffman DiMuzio, attorneys; Mr. McKinley, on the brief).

Walter F. Kawalec, III argued the cause for respondent Thomas Donio (Marshall, Dennehey, Warner, Coleman & Goggin, attorneys; Mr. Kawalec, on the brief).

Salvatore A. Alessi, attorney for respondent Richard McNamara (Mr. Alessi on the letter relying on the brief filed on behalf of respondent Thomas Donio).

PER CURIAM

Plaintiff Robert Martin and his wife, who sued per quod, appeal from the grant of summary judgment to defendant Thomas Donio. The trial court concluded that plaintiff failed to satisfy the limitation-on-lawsuit or "verbal threshold" of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. Specifically, the trial court concluded that plaintiff had not raised a genuine issue of material fact as to whether he had sustained either a "displaced fracture" or a "permanent injury" as required by AICRA. We agree with the trial court and affirm.

I.

On October 25, 2002, plaintiff was a back-seat passenger in a vehicle driven by defendant Richard McNamara when it collided with the vehicle driven by defendant Donio. In his answers to interrogatories, plaintiff certified that as a result of the subject accident, he suffered "displaced avulsion fractures to his right and left ring fingers, a concussion, back and neck sprain, and headaches." X-rays were taken the day of the accident, and Mark DeLaurentis, M.D., the reviewing radiologist, found a "normal examination of the right hand." DeLaurentis also noted that plaintiff's left hand suffered an "avulsion fracture of the volar plate, fourth PIP joint which is non-displaced."

Three days later, plaintiff began treatment with Enrico Marcelli, D.O. Dr. Marcelli reviewed the x-rays taken three days earlier and noted that, with respect to the left hand, "[t]he patient has a non-displaced fracture." Approximately two weeks later, the plaintiff underwent further x-ray studies of his hand to determine the progress of his injuries, and on November 8, 2002, a different radiologist, Markus Whitley, M.D., noted "[n]o significant abnormality in the left hand is identified. Specifically, no fracture is identified." On November 15, 2002, an x-ray of the right hand led a third radiologist, Sherrill Little, M.D., to note "[n]ormal right hand."

A partner of Marcelli, John K. Mariani, D.O., reviewed an x-ray of plaintiff's right hand, taken on November 12, 2002. Mariani noted the x-ray "might suggest occult fracture there. Because of that and the persistence of pain and tenderness there, I have suggested that immobilization with splinting is most appropriate to minimize risks of displacement of a non-displaced fracture that might be present." In addition to reviewing the x-ray, Dr. Mariani also examined and evaluated the plaintiff on November 12, 2002 and concluded that "[t]here is no displacement of the previously-noted avulsion at the PIP joint" of the left hand.

Approximately four weeks later on December 9, 2002, plaintiff underwent another x-ray of the right hand at Booth Radiology. Dr. Little again noted "[t]here does appear at this time to be a small non-displaced avulsion fracture." Dr. Mariani later reviewed the radiologist's report concerning the right hand, and in his report dated December 10, 2002, he concluded that the recent radiograph showed "an apparent small avulsion . . . . Joint congruity is preserved." Plaintiff received no further treatment to either of his hands after February 2003 that resulted from this accident.

On May 25, 2004, Dr. Mariani prepared a certification in lieu of affidavit in which he certified that the October 25, 2002 motor vehicle accident caused an avulsion fracture of the middle phalanx in the right ring finger, a fracture of the middle phalanx in the left ring finger, a cervical sprain, and post-traumatic headaches. Dr. Mariani also expressed an opinion as to permanency, concluding "such injury has resulted in permanent injury. 'Permanent injury' means a body part or organ, or both, that has not healed to function normally and according to medical probability, will not heal to function normally with further medical treatment."

Both defendants moved for summary judgment, arguing that plaintiff failed to satisfy the verbal threshold contained within N.J.S.A. 39:6A-8a, and that the fractures to plaintiff's ring fingers were non-displaced fractures that were not permanent. After hearing argument on May 12, 2006, Judge Nelson Johnson agreed, and granted summary judgment in favor of defendants.

On appeal, plaintiff argues that the motion judge incorrectly engaged in a weighing of the evidence and therefore reached an erroneous result. We disagree. As the Supreme Court explained in Brill v. Guardian Life Ins. Co. of Am., summary judgment should be denied only where the party opposing the motion has presented evidence that creates a "genuine issue as to any material fact challenged." 142 N.J. 520, 529 (1995). The motion judge must view the evidence in the light most favorable to the non-moving party, and determine whether that evidence is "sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Id. at 540. The judge's function is not to resolve factual disputes, but solely to determine whether there are any genuine issues of material fact for a jury to determine. Ibid. If the party opposing the motion fails to raise a genuine issue of material fact, and the moving party has demonstrated an entitlement to summary judgment as a matter of law, summary judgment should be granted. Ibid.

In order to avoid a grant of summary judgment to a defendant in a verbal threshold case, a plaintiff must demonstrate a genuine issue of material fact arising under one of the six categories enumerated in N.J.S.A. 39:6A-8a. The six categories are:

(1) Death;

(2) Dismemberment;

Significant disfigurement or

significant scarring;

(4) Displaced fractures;

(5) Loss of fetus; or

A permanent injury within a reasonable degree of medical probability other than scarring or disfigurement.

[N.J.S.A. 39:6A-8a.]

The statute further specifies that "an 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." Ibid. A plaintiff must establish an injury in one or more of these six categories through credible, objective medical evidence. Davidson v. Slater, 189 N.J. 166, 181 (2007). AICRA requires a plaintiff to produce a physician's certified statement that the injuries suffered in the accident fall within one of the categories enumerated. Ibid. The physician's certified opinion must be based on "objective clinical evidence" and cannot be "dependent entirely upon subjective patient response." Ibid. (quoting N.J.S.A. 39:6A-8). "Objective proof means the injury must be verified by physical examination or medical testing . . . ." Model Jury Charge (Civil), 5.42, "Limitation on Lawsuit Option" (2005).

Plaintiff argues that the trial judge erred when he concluded that the injuries to plaintiff's fingers were non-displaced. In the alternative, he argues that even if the finding that the fractures were non-displaced was correct, summary judgment should nonetheless have been denied because plaintiff satisfied the sixth category under the statute, by raising a genuine issue of material fact that he had sustained a "permanent injury within a reasonable degree of medical probability."

We begin by analyzing plaintiff's claim that an "avulsion fracture" is a displaced fracture." Plaintiff contends that an avulsion fracture is defined by the National Library of Health as "the detachment of a bone fragment that results from the pulling away of a ligament, tendon, or joint capsule from its point of attachment on a bone." A displaced fracture is defined as "a fracture in which two ends of the broken bone are separated from one another." http://www.the freedictionary.com/ displaced+fracture. He argues that because an avulsion fracture involves a detachment of a bone fragment from its original location, an avulsion fracture satisfies the bone separation requirement of a displaced fracture. Plaintiff therefore urges us, in light of the absence in the statute of a definition of the term "displaced," to utilize the medical definitions he provides and thereby reverse Judge Johnson's finding that because the fracture was not "displaced," it did not satisfy N.J.S.A. 39:6A-8a. We decline to do so.

Every doctor who read plaintiff's x-rays or examined his fingers concluded that the fractures were not displaced. Plaintiff has cited nothing which persuades us that we should essentially second-guess the treating physician and numerous radiologists who read his x-rays, examined his hands and concluded that the injury to his fingers was a non-displaced fracture. No medical report in the record raises a genuine issue of material fact as to whether the fracture was a displaced fracture, and accordingly, we conclude that Judge Johnson correctly determined that plaintiff failed to satisfy category four under N.J.S.A. 39:6A-8a.

Accordingly, plaintiff can prevail only if he raises a genuine issue of material fact as to the sixth category under that statute. Kennelly-Murray v. Megill, 381 N.J. Super. 303, 313 (App. Div. 2005). There, we concluded that a non-displaced fracture can satisfy the verbal threshold "only if it meets the requirements of category (6)." Ibid. Plaintiff argues that Dr. Mariani's certification of May 25, 2004, satisfies the statute's requirement of a "permanent injury," and he further contends that defendants' disagreement with "Dr. Mariani's conclusions . . . is best resolved by a jury at trial." Plaintiff's argument ignores our conclusion in Rios v. Szivos, 354 N.J. Super. 578, 585 (App. Div. 2004) that the certification states a claim but does not establish one. The certification is merely the conclusion of the physician that the injury is permanent. Ibid. Indeed, we held that:

the certification is merely a statement of a conclusion by a board certified physician, that the plaintiff has sustained an injury that falls within one of the categories of injuries in the statutory threshold. As the statute provides, the certification must be based upon and refer to objective clinical evidence. The factual basis the certification may, however, be called into question. The conclusion that the plaintiff has sustained a permanent injury as defined in the law may be subject to challenge. All of these issues may properly be raised by the defendant on a motion for summary judgment.

[Ibid. (quoting Rogozinski v. Turs, 351 N.J. Super. 536, 552 (App. Div. 2002)).]

Unquestionably, a physician's conclusory certification is insufficient to raise a genuine issue of material fact. Ibid. As Justice LaVecchia observed recently in Davidson, supra, a physician must do more than simply assert that a condition is permanent. 189 N.J. at 190. In Davidson, a physician's assertion in his certification that "plaintiff's condition was permanent" combined with "another treating physician's opinion that plaintiff had 'reached a plateau in her recovery'" was held to be insufficient. Ibid. The physician must "identif[y] the objective medical evidence to support the diagnosis of permanency." Ibid. Dr. Mariani's May 25, 2004 certification contains not a single identification of objective medical evidence in support of his opinion that the injury to the mid-phalanx of plaintiff's ring finger on both hands had "not healed to function normally and according to medical probability, will not heal to function normally with further medical treatment."

Plaintiff additionally draws our attention to sixteen specific tasks that he can no longer accomplish and argues that these limitations establish a permanent injury and demonstrate that Judge Johnson incorrectly found otherwise. He points to problems with: performing push-ups and pull-ups, opening jars, catching a softball, using handbrakes on his bicycle, writing for too long, "sports," "hard/quick turns while driving," "mostly any twisting motion," "missionary style sex," shaking clients' hands, using hand tools such as screwdrivers, using a toothbrush other than an electric toothbrush, giving back and foot massages to his wife, climbing ladders, moving fifty-five gallon drums and playing tug-of-war with his dog. We decline to consider these subjective complaints because, as the Court noted in Davidson, "subjective patient response" is not sufficient to raise a genuine issue of material fact. Id. at 181.

Accordingly, Judge Johnson properly concluded that a non-displaced fracture and the absence of any objective medical evidence supporting the conclusion of permanency required him to grant defendants' motion for summary judgment.

 
Affirmed.

The references herein to "plaintiff" shall refer only to plaintiff Robert Martin.

The only injuries which plaintiff asserted in opposition to the verbal threshold motion were the avulsion fractures to his fingers. Because he did not raise the concussion, back or neck sprain or headaches, we do not consider them.

(continued)

(continued)

11

A-5003-05T5

April 11, 2007