MEGHAN GAUGHAN, et al. v. CARON SIBONA, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3288-06T33288-06T3

MEGHAN GAUGHAN, an infant by

her Guardian ad Litem, CATHERINE

GAUGHAN,

Plaintiff-Appellant,

and CATHERINE GAUGHAN, individually,

Plaintiff,

v.

CARON SIBONA (as operator and/or

owner) and RALPH SIBONA (as owner

and/or operator),

Defendants-Respondents,

and

CATHERINE GAUGHAN, individually,

Third-Party Plaintiff,

v.

PRESERVER INSURANCE COMPANY,

Third-Party Defendant.

__________________________________

 

Submitted January 14, 2008 - Decided

Before Judges Lintner and Sabatino.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County,

L-294-05.

Shamy & Shamy, attorneys for appellant (George J. Shamy, Jr., on the brief).

Sherman & Viscomi, attorneys for respondents (Karen Quinn Sopko, on the brief).

PER CURIAM

On October 29, 2003, six-year-old Meghan Gaughan, after slipping from her mother's grasp in front of DeLuca's Pizzeria in Raritan, came into contact with a vehicle operated by Caron Sibona and owned by her husband, Ralph Sibona. A complaint was filed by Meghan's mother, Catherine, as Guardian ad Litem on behalf of Meghan, naming both Caron and Ralph as defendants. Defendants answered and, following completion of discovery, moved for summary judgment, asserting that Meghan's injuries failed to meet the enumerated categories in the 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a. After reviewing several reports from Meghan's treating orthopedist, Dr. Stuart Hirsch, Judge Ashrafi granted summary judgment, finding that Meghan failed to establish that she sustained a displaced fracture or permanent injury. Plaintiff appeals and we affirm essentially for the reasons expressed by Judge Ashrafi in his opinion rendered from the bench on January 8, 2007.

We need only concentrate on the injuries sustained by Meghan as established by the proofs. Because this appeal arises from the grant of motions for summary judgment, we construe the facts in a light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Following the accident, Meghan was transported via ambulance to Somerset Medical Center. X-ray examination of the left ankle revealed "a comminuted transverse fracture of the distal tibial metaphysis with buckling of the cortex [with] . . . a buckle fracture of the distal fibula metaphysis." X-ray examination of the left tibia and fibula revealed "an oblique fracture through the tibial metaphysis with butterfly fragment posteriorly." Both x-ray reports concluded that she suffered distal left tibial and fibular fractures.

Meghan was discharged from the emergency room with a splint on her left leg. The following day, Meghan was seen by Dr. Hirsch. Hirsch read the x-rays as demonstrating "a comminuted transverse fracture of the distal left metaphysis with buckling of the cortex." He described the fracture shown in the x-rays as a "fracture of the distal fibula" and found "[n]o significant displacement was evident."

In a reassessment on November 13, 2003, Hirsch noted Meghan's "[x]-rays demonstrated maintenance of satisfactory position" of the fractured bones. Her cast was removed on December 1, 2003, with a follow-up visit on January 16, 2004. At the time of the cast removal, Meghan's diagnosis was "[n]ondisplaced distal left tibial fracture."

Meghan was re-evaluated by Hirsch on December 16, 2004, and October 3, 2006. Hirsch prepared a report on December 14, 2006, diagnosing Meghan's injuries as "[d]istal left tibial and fibular fractures without displacement." Noting that both the tibia and distal fibula fractures sustained in the accident were non-displaced, Hirsch found Meghan had "[s]ome comminution of the tibial fracture." Hirsch reported that Meghan was symptomatic primarily during and after "sustained activities such as athletic participation." Hirsch concluded that "[b]ased upon the patient's age and potential for further healing, further improvement will be projected" and that "there [was] no evidence of bony residual from the injuries sustained."

At oral argument before Judge Ashrafi, plaintiff's counsel argued that although he requested Hirsch to comment on the issue of permanency, Hirsch's only response was that there will be improvement in light of Meghan's age and potential for further healing. Plaintiff's counsel conceded that the medical reports failed to establish that Meghan's injury qualified as permanent under the AICRA threshold. However, he implied that the lack of any mention of permanency did not necessarily mean that Meghan would not develop permanent residuals in the future. Plaintiff's counsel argued that the comminuted nature of Meghan's tibial fracture constituted "multiple pieces" and, thus, was analogous to a displaced fracture. He also argued that Hirsch's use of the words "[n]o significant displacement was evident" was equivalent to saying that there was some displacement noted.

On appeal, plaintiff reprises the arguments, asserting that "[f]ractures involving insignificant displacement can satisfy the fourth [AICRA] prong" and comminuted fractures by their nature are serious fractures intended to qualify as a displaced fracture. Plaintiff also maintains, for the first time on appeal, that the judge erred in dismissing the complaint with prejudice.

The AICRA limitation of lawsuit threshold bars recovery for pain and suffering unless the plaintiff "has sustained a bodily injury which results" in "death; dismemberment; significant disfigurement . . .; displaced fractures; loss of a fetus; a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." N.J.S.A. 39:6A-8a. The statute also declares 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." Ibid.

A comminuted fracture has been defined as "a fracture in which a bone is broken in several places." Jackson v. Fauver, 334 F. Supp. 2d 697, 714 n.9 (D.N.J. 2004). By contrast, a displaced fracture requires "'[r]emoval from the normal placement or position'" of the bone. Villanueva v. Lesack, 366 N.J. Super. 564, 566 n.1 (App. Div. 2004) (quoting Stedman's Medical Dictionary 528 (27th ed. 2000)) (alteration in original); see also Johnson v. Scaccetti, 192 N.J. 256, 272 (2007) ("[T]he uniform authority as reflected in medical and dental texts, non-medical reference books, and our case law leaves little doubt that the 'ordinary meaning and significance' of a displaced fracture is the complete separation of a bone."). The terms comminuted and displaced are not interchangeable. A fracture can be comminuted without being displaced.

Recognizing that plaintiff has the burden to establish that Meghan's fractures were displaced, Judge Ashrafi pointed out that all Hirsch's reports diagnosed her factures as non-displaced. Contrary to plaintiff's argument on appeal, the fact that Hirsch read the hospital x-rays as not exhibiting any significant displaced facture is not tantamount to a diagnosis that Meghan sustained some insignificant displaced fracture.

In a summary judgment motion, the court must grant the non-moving party all favorable inferences from the competent evidence presented. Brill, supra, 142 N.J. at 540. We do not pass on the credibility, as that is reserved for the trier of fact. However, as the Brill Court re-emphasized, it is within our province "'to determine whether there is a genuine issue for trial.'" Ibid. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511, 91 L. Ed. 2d 202, 212 (1986)). That the trier of fact makes determinations as to credibility "does not require a court to turn a blind eye to the weight of the evidence; the 'opponent must do more than simply show that there is some metaphysical doubt as to the material facts.'" Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3rd Cir. 1992), cert. denied, 507 U.S. 912, 113 S. Ct. 1262, 122 L. Ed. 2d 659 (1993) (quoting Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 1356, 89 L. Ed. 2d 538, 552 (1986)). Plaintiff has done no more than that. Plaintiff's expert clearly described Meghan's multiple fractures as non-displaced.

Relying on Casinelli v. Manglapus, 181 N.J. 354 (2004), plaintiff asserts essentially that a dismissal with prejudice based upon summary judgment is an inappropriate remedy. Although not clearly articulated, we glean from plaintiff's appellate brief that her unsuccessful reliance on a fracture claim to meet the threshold should not preclude her from asserting a future action on behalf of Meghan based upon permanent injury. "Normally, we decline to consider questions or issues not properly presented to the trial court when an opportunity for such presentation is available . . . ." Monek v. Borough of S. River, 354 N.J. Super. 442, 456 (App. Div. 2002). Nevertheless, we address the issue. Casinelli dealt with the discovery sanctions available to the trial court, including dismissal without prejudice for a plaintiff's failure to submit a physician's certification as required by AICRA, N.J.S.A. 39:6A-8a. Id. at 363-65. Here, discovery was complete.

Defendant's application in the Law Division was not a motion to impose sanctions for a physician's late certification, nor was it a motion to dismiss based upon the failure to file the required certification. The motion was for summary judgment based upon plaintiff's failure to establish a prima facie case under AICRA. In his ruling, Judge Ashrafi correctly pointed out that plaintiff's medical proofs do not establish a permanent injury or a displaced facture. Hirsch's report issued three years after the accident is bare of any indication that it was too early to tell if Meghan's non-displaced fractures would result in a "body part . . . not healed to function normally" with or without further medical treatment as defined by AICRA. Indeed, he concluded that three years post accident there was "no evidence of bony residual from the injuries sustained." Thus, Hirsch's opinion negated the existence of a permanent injury sufficient to vault the AICRA threshold.

Affirmed.

Catherine Gaughan is also known as Caterina Gaughan.

Defendant's answer included a counterclaim against Meghan's mother, alleging negligent supervision.

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A-3288-06T3

January 24, 2008