GLENN GERMAINE v. MAHER TERMINALS

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2957-07T12957-07T1

GLENN GERMAINE,

Plaintiff-Appellant,

v.

MAHER TERMINALS,

Defendant-Respondent.

 

 

Submitted October 8, 2008 - Decided

Before Judges Parrillo and Lihotz.

On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-827-06.

Martin F. Kronberg, attorney for appellant.

Kenny, Stearns & Zonghetti, LLC, attorneys for respondent (James M. Kenny, on the brief).

PER CURIAM

Plaintiff Glenn Germaine appeals from the December 4, 2007 order of the Law Division dismissing his personal injury automobile negligence complaint against defendant Maher Terminals, Inc., pursuant to Rule 4:37-2, for failure of his expert proofs to make a comparative medical analysis. For the following reasons, we reverse.

The facts are essentially undisputed. On November 16, 2005, while employed at OST Trucking and operating his employer's tractor trailer at Maher Terminals in Elizabeth, plaintiff was rear-ended by a switching tractor owned by Maher Terminals and operated by one of its agents. As a result of the accident, plaintiff suffered a herniated disc of the cervical spine at C3-C4 and disc bulges of the lumbar spine. He was prescribed medication and eventually underwent a cervical fusion and the insertion of an anterior cervical plating. As a result of his injuries, plaintiff was forced to quit work only two days after the accident. Prior thereto, plaintiff was treated for neck pains on just three occasions: October 10 and 19, 2005 and November 3, 2005, a condition that did not require medication or cessation of work.

Plaintiff sued defendant and John Does 1-10 for negligence. Significantly, for present purposes, plaintiff did not plead aggravation of a pre-existing condition and the case proceeded on a non-aggravation theory, with plaintiff seeking relief for the permanent injury of a herniated disc. While during initial discovery, plaintiff did not disclose his prior neck pain, he later amended his answers to interrogatories on January 8, 2007, to indicate his prior treatment for cervical sprain and myositis. Despite this admission, plaintiff neglected to mention his previous history of neck pain to either his expert, Dr. Glushakow, who examined plaintiff on February 9, 2007, or defendant's expert, Dr. Greifinger, who examined plaintiff on March 9, 2007. In his February 23, 2007 report, Dr. Glushakow concluded that plaintiff's herniated disc was causally related to the November 16, 2005 accident.

Because of plaintiff's non-disclosure of his pre-existing cervical condition, defendant moved in limine, on the day of trial, to bar Dr. Glushakow's testimony. The judge denied the motion and granted plaintiff's cross-application for leave to file a supplemental report, which was submitted by Dr. Glushakow the very next day, concluding:

I have reviewed records from Dr. Lukenda dated 10/10/05, 10/19/05 and 11/3/05. The records indicate there was no prior injury as I stated in my initial report of 2/23/07.

Based on a review of these records my conclusions are that his herniated disc at C3-C4 is definitely causally related to the accident of 11/16/05 and an aggravation of a previous condition; namely cervical sprain and myositis. These conclusions are due to the fact that in spite of the neck pain prior to the accident of 11/16/05 he was able to . . . perform his job. His pain was not severe enough to require him to be on Vicodin or potent narcotics. He was forced to take narcotics after the accident of 11/16/05 . . . [and] was only able to work for two days and had to quit. Furthermore he had to subject himself to risky procedures such as cervical facet injections and cervical epidural blocks as well as cervical diskectomy and cervical fusion at C3-C4.

[emphasis added.]

Although Dr. Glushakow conclusively stated that plaintiff's "herniated disc at C3-C4 is definitely causally related to the accident of 11/16/05 . . .[,]" he added that the accident also caused "an aggravation of a previous condition . . . ." Because of the latter reference, the judge believed that plaintiff's theory changed to one of aggravation and thus required a comparative medical analysis, pursuant to Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993), distinguishing the alleged accident injuries from a pre-existing condition, which plaintiff's expert report did not provide. Consequently, the judge, treating defendant's motion as one for involuntary dismissal under Rule 4:37-2, granted the relief, dismissing plaintiff's complaint with prejudice for failure of proof.

We disagree. A comparative medical analysis was not required in this non-aggravation pled cause of action, where plaintiff's proofs made out a prima facie case of causation, namely that the accident in question proximately caused his herniated disc, a permanent injury separate and distinct from his pre-existing condition of soft-tissue cervical sprain and myositis.

"When a plaintiff does not plead aggravation of pre-existing injuries, a comparative analysis is not required to make that demonstration." Davidson v. Slater, 189 N.J. 166, 170 (2007). Davidson discussed the role of comparative analysis in a verbal threshold summary judgment motion arising under N.J.S.A. 39:6A-1.1 to -35, the Automobile Insurance Cost Reduction Act (AICRA), 189 N.J. at 169, 179-81, first discussed in Polk, where we held that

[a] diagnosis of aggravation of a pre-existing injury or condition must be based upon a comparative analysis of the plaintiff's residuals prior to the accident with the injuries suffered in the automobile accident at issue. This must encompass an evaluation of the medical records of the patient prior to the trauma with the objective medical evidence existent post trauma.

[Polk, supra, 268 N.J. Super. at 575.]

Polk, however, was an aggravation case, where the plaintiff claimed his pre-existing hip injury and arthritic condition were aggravated in an automobile accident. Id. at 570. "There are no . . . cases that could even arguably stand for the proposition that Polk applies in a non-aggravation situation." Hardison v. King, 381 N.J. Super. 129, 136 (App. Div. 2005). Hardison agreed with the Appellate Division decision in Davidson v. Slater, 381 N.J. Super. 22, 29 (App. Div. 2005), that Polk does not apply "where [a] plaintiff contends that he has incurred a permanent injury resulting solely from the subject automobile accident." 381 N.J. Super. at 134-35. Indeed, the Supreme Court, in affirming the Appellate Division two years later in Davidson, a case involving a permanent lumbar disc injury shown to be independent of soft tissue injuries and cervical/lumbar sprains suffered both before and after the August 2001 accident, held that "[plaintiff] was under no obligation under AICRA to produce, as part of her prima facie presentation in this non-aggravation cause of action, a comparative analysis in order to satisfy the verbal threshold proof requirements." 189 N.J. at 172-74, 188. Although the instant case does not involve the AICRA verbal threshold, the issue of comparative analysis "transcends the AICRA verbal threshold setting in which it has arisen." Id. at 184.

Whether a plaintiff must submit a comparative analysis is dictated by ordinary tort principles of causation and burden allocation. Ibid. In a negligence action, "to prevail against a negligent defendant, plaintiff must prove not only that defendant was negligent but also that defendant's negligence was a proximate cause of the injuries and damages suffered," Reichert v. Vegholm, 366 N.J. Super. 209, 213 (App. Div. 2004), for which plaintiff bears the following burden of production:

One of the underlying principles of tort law is that "an actor's conduct must not only be tortious in character but it must also be a legal cause of the invasion of another's interest." Restatement (Second) of Torts 9 cmt. a (1965) (Restatement). It follows from that principle that the issue of a defendant's liability cannot be presented to the jury simply because there is some evidence of negligence. "There must be evidence or reasonable inferences therefrom showing a proximate causal relation between defendant's negligence, if found by the jury," and the resulting injury. Germann v. Matriss, 55 N.J. 193, 205 (1970).

[Davidson, supra, 189 N.J. at 185 (citing Reynolds v. Gonzalez, 172 N.J. 266, 284 (2002)).]

Because "[c]ausation is germane to the plaintiff's theory of aggravation of a pre-existing injury[,]" a comparative analysis is required in aggravation-pled cases to show, as a necessary element, that aggravation occurred as a result of the accident. Id. at 185. A comparative analysis reveals the damages a defendant actually caused, and because plaintiff is in the better position to know "how a defendant's tort has affected or is related to prior or subsequent injuries or conditions[,]" it is plaintiff's burden to provide one. Reichert, supra, 366 N.J. Super. at 214.

On the other hand, in non-aggravation-pled cases, so long as the plaintiff carries the "burden of . . . demonstrating the existence of a 'permanent' injury" caused by the defendant, the additional burden of "exclud[ing] all prior injuries to the same body part" is not required. Davidson, supra, 189 N.J. at 170. If a plaintiff chooses not to plead aggravation, any evidence that defendant raises of plaintiff's pre-existing injury or condition to the same body part becomes a disputed fact on the issue of causation for the fact-finder to decide. Id. at 187.

Indeed, it is within this context that the Court warned:

In respect of the element of causation specifically, a plaintiff will risk dismissal on summary judgment if the defendant can show that no reasonable fact-finder could conclude that the defendant's negligence caused plaintiff's alleged permanent injury. Thus, the plaintiff who does not prepare for comparative medical evidence is at risk of failing to raise a jury-worthy factual issue about whether the subject accident caused the injuries.

[Id. at 188.]

Here, of course, we are satisfied that plaintiff has produced enough evidence, without a comparative analysis, to raise a genuine issue of proximate causation.

The Supreme Court's decision in Johnson v. Scaccetti, 192 N.J. 256 (2007), is similarly illustrative. There, the plaintiff sustained a grade one spondylolisthesis at L5-S1 and a small disc herniation as a result of the November 21, 2001 automobile accident that was the subject of the lawsuit. Id. at 263. Her medical history indicated that she was diagnosed with grade one spondylolisthesis and a herniated disc at the L5-S1 level ten years earlier, in 1991, as a result of hurting her back from lifting a child, which she claims "got better" over time with physical therapy treatments. Id. at 265. While acknowledging her previous injuries, plaintiff's medical expert, a board certified orthopedic surgeon, concluded that "the trauma of the November 2001 car accident aggravated and accelerated the deterioration of the disc herniation at L5-S1 and the spondylolisthesis, necessitating the fusion surgery." Id. at 265. Because of the surgery, the expert noted that the plaintiff's back had "undergone 'massive permanent changes' that will place at risk adjacent discs, which in time will likely deteriorate, eventually herniate, and cause radicular (nerve root) pain." Id. at 266. In holding that the proofs established at trial that the plaintiff suffered a permanent injury, entitling her to recovery of non-economic damages, the Court rejected the defendant's argument that the plaintiff's expert did not conduct a comparative analysis of her current injury to pre-existing injuries. Id. at 284. Citing Davidson, the Court stated: "as we recently held, plaintiffs have no obligation to perform such a comparative analysis when they do not claim aggravation of a pre-existing injury." Ibid.

To be sure, in Johnson, Davidson and Hardison, the plaintiffs' pre-existing injuries or conditions were asymptomatic at the time of the accidents giving rise to the lawsuits. Johnson, supra, 192 N.J. at 265; Davidson, supra, 189 N.J. at 174; Hardison, supra, 381 N.J. Super. at 137. Such a distinction, however, is not meaningful where, as here: (1) plaintiff has carried his burden of production on the issue of proximate cause by providing an expert report stating that his herniated disc was "causally related to the accident[,]" and (2) plaintiff's pre-existing soft-tissue condition has been shown to be medically distinct from his herniated disc. Like the expert's report in Johnson, Dr. Glushakow's reference to "aggravation" simply denotes a prior condition that, but for the accident, would not have resulted in several surgeries and "massive permanent changes" to plaintiff's back. See, e.g., Johnson, supra, 192 N.J. at 265-266. And like Davidson, a reasonable factfinder may find that the November 16, 2005 accident caused a herniated disc at C3-C4 requiring fusion surgery that is "permanent and distinct" from the soft-tissue injuries (cervical sprain and myositis) that plaintiff suffered before the accident. See, e.g., Davidson, supra, 189 N.J. at 176.

Furthermore, this is not an instance where plaintiff's pre-existing condition has recurred, Bennett v. Lugo, 368 N.J. Super. 466, 474 (App. Div.) (requiring comparative analysis where plaintiff's expert stated that "Mr. Bennett did sustain a recurrence of his disc herniation"), certif. denied, 180 N.J. 457 (2004), or where plaintiff presented insufficient evidence of proximate cause, Sherry v. Buonansonti, 287 N.J. Super. 518, 521-22 (App. Div.) (requiring comparative analysis where plaintiff's soft-tissue injuries suffered in current accident were similar to those suffered in prior accident), certif. denied, 144 N.J. 588 (1996).

Here, as noted, Dr. Glushakow concluded that plaintiff suffered a permanent herniated disc injury causally related to the November 16, 2005 accident, and distinct from the soft-tissue condition, namely cervical sprain and myositis, that plaintiff experienced prior to the accident. Having sufficiently presented a prima facie case that his herniated disc was proximately caused by the accident, a comparative medical analysis was not required. Accordingly, the trial court erred in dismissing plaintiff's complaint for want of expert proof distinguishing pre- and post-accident conditions.

Reversed.

Plaintiff collected workers' compensation benefits, and by June 28, 2007, the lien totaled $151,481.28.

2 This case is not a verbal threshold case under AICRA, because the accident involved commercial vehicles not within the defined scope of "private passenger automobiles." See N.J. Mfrs. Ins. Co. v. Hardy, 178 N.J. 327, 335-36 (2004) ("[T]he Legislature used the term 'private passenger automobile' as a term of art to distinguish such vehicles from 'public' passenger automobiles (such as taxicabs), and from private 'freight' automobiles (such as trucks)."). When the accident occurred, plaintiff was driving a tractor trailer as an employee of OST Trucking while an unknown driver employed by defendant was driving a switching tractor called a "Hustler."

Indeed, the judge noted that if the motion before her had been for summary judgment, plaintiff would have survived because he had enough to go to the jury on a permanent injury.

(continued)

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A-2957-07T1

November 3, 2008