LAUREN HURLEY v. JAMES M. GERETY, JR.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1641-07T11641-07T1

LAUREN HURLEY,

Plaintiff-Respondent,

v.

JAMES M. GERETY, JR.,

Defendant-Appellant,

and

FRANK F. NELLI and

DOROTHY NELLI,

Defendants-Respondents,

and

SANDRA L. SEEL and JOHN

SEEL,

Defendants.

_________________________________________

 

Submitted September 22, 2008 - Decided

Before Judges Lisa and Sapp-Peterson.

On appeal from the Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-2345-05.

Youngblood, Corcoran, Lafferty & Hyberg, attorneys for appellant (Chad M. Sherwood, on the brief).

D'Amato Law Firm, attorneys for respondent Lauren Hurley (Paul R. D'Amato, on the brief).

Respondents Frank F. Nelli and Dorothy Nelli have not filed a brief.

PER CURIAM

Plaintiff, Lauren Hurley, who was subject to the verbal threshold under the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, was injured when a vehicle operated by defendant, James M. Gerety, Jr., rear-ended the vehicle she occupied as a passenger on May 10, 2003. Plaintiff filed suit, claiming she sustained permanent injuries to her cervical spine as a direct and proximate result of the motor vehicle accident. The jury awarded plaintiff $185,000 in damages stemming from her injuries. The court awarded plaintiff an additional $13,801.83 because an offer of judgment had been filed. Inclusive of prejudgment interest, the total judgment entered in favor of plaintiff was $218,928.82. Defendant moved for a new trial pursuant to Rule 4:49-1, claiming plaintiff failed to present sufficient objective evidence of permanent injury to vault the verbal threshold under AICRA. The motion was denied. On appeal, defendant contends the trial court erred in denying his summary judgment motion, as well as his motion for a directed verdict at the conclusion of the presentation of all of the evidence. We are not persuaded by these arguments and affirm.

In denying defendant's summary judgment motion, the court concluded that plaintiff's "medical records and expert reports raise a jury question on the issue of the alleged permanency of her cervical injuries." We agree.

In reviewing an appeal from a summary judgment order, we employ the same standard of review as the trial court. Prudential Prop. Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); Busciglio v. DellaFave, 366 N.J. Super. 135, 139 (App. Div. 2004). Although our review is de novo, Singer v. Beach Trading Co., 379 N.J. Super. 63, 80 (App. Div. 2005) (citing Manalapan Realty v. Twp. Committee, 140 N.J. 366, 378 (1995)), we first determine whether the moving party has demonstrated that there were no genuinely disputed issues of material facts. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). We then decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., Inc., 387 N.J. Super. 224, 230-31 (App. Div.), certif. denied, 189 N.J. 104 (2006).

AICRA, N.J.S.A. 39:6-8(a), bars recovery for non-economic injuries arising out of a motor vehicle accident unless there has been "a permanent injury within a reasonable degree of medical probability." In describing what constitutes a permanent injury under AICRA, the act provides: "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." Proof of the existence of a permanent injury must be verifiable through objective medical testing and the tests administered "may not be experimental in nature or dependent entirely upon subjective patient response," and any diagnostic tests must be "administered in accordance with . . . [N.J.S.A. 39:6A-4.7]."

The requirement that the injuries be verified through valid diagnostic procedures was "intended to ensure that only honest and reliable medical evidence and testing procedures would be introduced to prove that an injury meets the threshold." DiProspero v. Penn, 183 N.J. 477, 489 (2005). The types of objective testing recognized as valid under the act include magnetic resonance imaging (MRI), computer assisted tomographic studies (CT, CAT Scan), and electroencephalograms (EEG). See N.J.A.C. 11:3-4.5

In the present matter, plaintiff, who was seventeen years old at the time of the accident and an award-winning track athlete, was treated at a local hospital immediately after the accident. As to her cervical spine, an x-ray report revealed no osseous destruction, but indicated a "mild reversal of the neutral cervical lordotic curve." As to her left knee, the x-ray report revealed no significant osseous abnormalities. Two days after the accident, plaintiff came under the care of her treating physician, Dr. Stephen J. Zabinski, to whom she complained of pain in her left leg, neck and low back. Dr. Zabinski's clinical exam demonstrated paraspinal spasm, loss of motion and localized tenderness about the knee. His initial impression at the time was left knee contusion and sprain, cervical sprain, and mild concussion. He prescribed anti-inflammatories and muscle relaxants.

Plaintiff returned to Dr. Zabinski in September 2003, reporting that she continued to experience pain in her cervical and lumbar region, intermittent left knee pain and giving way. Dr. Zabinski referred plaintiff for physical therapy. When she returned for further consultation in December 2003, she reported that her complaints continued, prompting Dr. Zabinski to order diagnostic testing. This testing did not take place until eighteen months later. At that time, the cervical MRI revealed straightening and actual reversal of the normal curvature with accompanying disc bulging.

Dr. Zabinski diagnosed plaintiff with cervical strain/sprain with persistent muscular spasm, intermittent radicular syndrome and accompanying cervical straightening, reversal of lordosis and disc bulging. He reported no verifiable injury to the lumbar spine and opined that the contusion and sprain of the left knee was "largely resolved." In his report he concluded:

Specifically, the patient sustained significant contusion injury to her head and associated cervical strain/sprain. She had a left knee contusion and lumbar sprain. All of these were symptomatic immediately after the accident[,] requiring treatment, which included chiropractic care, physical therapy, anti-inflammatories and treatment with a personal trainer. Despite this, the patient has continued to be symptomatic and has suffered limitations in her activities of daily life secondary to the injuries above.

The patient's cervical injury is permanent. Specifically, the patient objectively on physical exam demonstrates loss of motion, spasm and pain with provocative Spurling maneuvers. Additionally, objectively on MRI scan there is not just straightening of the cervical spine, but reversal of normal cervical lordosis with accompanying disc bulging.

Given the patient's young age it is within a reasonable degree of medical probability that this objective MRI finding[] [is] directly related to the trauma of the accident in question in which the patient significantly sprained her neck and contused her forehead at the same time.

This injury is permanent and will continue to limit the patient's activities of daily life as it relates to lifting, pushing, pulling, turning her head and carrying out running and jumping activities.

Based upon the medical records and plaintiff's expert report, the motion judge properly concluded that "plaintiff has raised a genuine issue of material fact as to whether her persistent cervical muscle spasms constitute a permanent injury." Plaintiff produced objective evidence of muscle spasm in the cervical spine both by diagnostic testing as well as clinical examination. Viewing the evidence in the light most favorable to plaintiff, the spasms persisted and continued to exist at the time of trial. Additionally, there was objective evidence that plaintiff suffered from a mild reversal of the neutral cervical lordotic curve. That defendant's expert, Dr. John A. Cristini, in his report, attributed this condition possibly to "positioning" did not negate the opinion of plaintiff's expert. Indeed, defendant's expert also acknowledged that the cervical lordotic curve could also be attributable to muscle spasm as well. Thus, the court properly denied defendant's motion for summary judgment.

Likewise, the court did not err in denying defendant's motion for a new trial. A trial court may order a new trial when "having given due regard to the opportunity of the jury to pass upon the credibility of the witnesses, it clearly and convincingly appears that there was a miscarriage of justice under the law." R. 4:49-1(a). As a reviewing court, we are essentially guided by the same standard, except that we accord due deference to the fact of the trial judge's "feel of the case." Dolson v. Anastasia, 55 N.J. 2, 6 (1969).

We are convinced that the trial judge in this case correctly found that defendant's essential basis for the motion, namely, that plaintiff failed to present sufficient objective credible medical evidence to permit the case to go to the jury, was not supported by the record. Both Dr. Zabinski and Dr. Cristini testified at trial via videotaped deposition, and their testimony was largely consistent with their findings detailed in their respective reports. In addition to the two doctors, plaintiff and her father testified, describing for the jury how the injuries impacted her daily activities and, in particular, her inability to continue to engage in certain activities in which she had excelled prior to the accident.

As the trial judge observed, "[t]he plaintiff presented X-ray evidence, MRI evidence, and medical evidence of persistent, long-standing muscle spasm, which collectively created a triable issue of fact as to whether the plaintiff sustained a permanent injury." Defendant had the full opportunity to rebut that evidence through the presentation of its expert testimony, which testimony the jury obviously rejected as evidenced by the verdict. We discern no miscarriage of justice that warrants our intervention.

Affirmed.

(continued)

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A-1641-07T1

October 15, 2008