YVETTE A. HAZ v. JOSEPH G. TOMON

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5592-09T2

YVETTE A. HAZ,

Plaintiff-Appellant,

v.

JOSEPH G. TOMON and NEW

JERSEY INDEMNITY INSURANCE

COMPANY,

Defendants-Respondents.

__________________________________

Argued April 6, 2011 Decided June 21, 2011

Before Judges Sapp-Peterson and Simonelli.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7229-07.

Anthony R. Suarez argued the cause for appellant (Dario, Yacker, Suarez, & Albert, L.L.C., attorneys; Mr. Suarez, on the brief).

Anthony J. Corino argued the cause for respondents (Connell Foley, L.L.P., attorneys; Brian G. Steller, of counsel; Mr. Corino and Stacie L. Powers, on the brief).

PER CURIAM

Plaintiff appeals from the grant of summary judgment dismissing her complaint against defendants brought pursuant to the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, and from the denial of her motion for reconsideration. In dismissing the complaint, the motion judge found that plaintiff's proofs, when viewed most favorably towards her, failed to raise a genuinely disputed issue of fact establishing that plaintiff sustained a permanent injury within the meaning of AICRA. In denying reconsideration, the court concluded plaintiff failed to meet the threshold requirements for reconsideration. We affirm.

Plaintiff filed a complaint in September 2007 seeking to recover damages arising out of an automobile accident with defendant, Joseph G. Tomon, from which plaintiff claimed she sustained permanent injuries. At the time of the accident, plaintiff maintained an auto insurance policy in which she selected the verbal threshold option. Under the option, should she seek to recover non-economic damages for injuries sustained as a result of a motor vehicle accident, she was required to prove that she suffered a permanent injury within the meaning of AICRA. A permanent injury under AICRA is defined as an injury to a "body part or organ, or both, [that] has not healed to function normally and will not heal to function normally with further medical treatment." N.J.S.A. 39:6A-8a.

After defendants answered the complaint, denying the allegations, the parties exchanged discovery, which included plaintiff providing responses to interrogatories and reports from physicians with whom she treated.

In her answers to interrogatories, plaintiff identified Dr. Thomas R. Peterson, a neurologist, and Dr. Edmund A. Eyerman, a chiropractor, as experts who would testify at the time of trial. Attached to the interrogatory responses were two reports from Dr. Peterson dated April 9, 2008 and May 17, 2008. Prior to the close of discovery, Dr. Peterson submitted a third report dated September 24, 2008. Dr. Peterson did not express an opinion in any of the three reports that plaintiff, as a result of the accident, sustained a permanent injury as defined under AICRA.

February 28, 2009, was the date fixed for completion of discovery. Arbitration took place on March 27, 2009. Defendant thereafter filed for a trial de novo, and trial was initially scheduled for June 30, 2009. The trial date was adjourned and rescheduled for September 21, 2009, and again adjourned and rescheduled for December 7, 2009. It was adjourned a third time to February 22, 2010. Following the first trial adjournment, plaintiff attempted to serve an expert report from Dr. Eyerman dated September 30, 2009, and an expert report prepared by Dr. Jerald S. Friedman, an oral surgeon, dated October 1, 2009. After the third adjournment, plaintiff attempted to serve an expert report by Dr. David H. Rosenbaum, a psychiatric neurologist, dated December 14, 2009, and a fourth report submitted by Dr. Peterson dated October 4, 2009.

In orders dated November 4 and 20, 2009, and orders dated January 22 and February 5, 2010, the court barred each of the additional reports plaintiff served upon defendants, as well as "all additional reports and treating records" prepared, on the basis that the reports were untimely and submitted after the close of discovery. Plaintiff then filed a motion to extend discovery, which the court denied by order dated February 19, 2010.

Defendants filed a motion to limit the testimony of Dr. Peterson and for summary judgment. The court granted the motion limiting Dr. Peterson's testimony to the four corners of the reports previously furnished that had not been excluded by the court. The court also granted summary judgment, noting:

While the reports describe physical examinations and overall impressions of plaintiff's injuries, the report[s] fail to certify[,] as required by statute[,] plaintiff's injuries will not heal to function normally with further medical treatment within a reasonable degree of medical probability causally related to this accident. There's no Polk[1] analysis, no Davidson[2] analysis. There's not an appropriate certification as required. A mere net opinion of possible future pain is insufficient. The report submitted by Dr. [Nalini] P[rasad][3] fail[s] to articulate any certification as to permanency or causal relation. And the certification supplied by Dr. Peterson in plaintiff's opposition brief was sent in well after discovery closed by order of Judge Cod[e]y. The certification was signed on April 11th, 2010.

Plaintiff moved for reconsideration, attaching to that motion, for the first time, a certification from a licensed physician, fifteen months after discovery had closed in the matter.4 The court denied the motion and, in its statement of reasons incorporated into its order denying the motion, the court stated:

Pl[aintiff] has failed to meet the standards for reconsideration set forth in R[ule] 4:49-2 and Cummings v[]. Bahr, 295 N.J. Super. 374 (App. Div. [19]96). Pl[aintiff] has not stated the case law or evidence overlooked by the [c]ourt, and no new information has been provided by pl[aintiff]. The [c]ourt was aware of and credited . . . Casinelli [v. Manglapus, 181 N.J. 354 (2004)] . . . in its original decision. Pl[aintiff]'s proofs do not meet the permanent injury standard as a matter of law. The reason the [c]ourt gave to deny pl[aintiff]'s [a]mendments to [answers to interrogatories] were sound and reinforced by [Presiding Judge] Cod[e]y's refusal to extend the [d]iscovery [e]nd [d]ates. Pl[aintiff] attempted to amend [answers to interrogatories] after the [fourth] and [fifth] [t]rial dates. See Szalontai v. Yazbo's [Sports Cafe, 183 N.J. 386 (2005)].

The present appeal followed.

On appeal, plaintiff contends (1) Dr. Peterson's reports satisfied the requirements for vaulting the verbal threshold under AICRA, (2) the court erroneously concluded that a Polk analysis was required, (3) the lack of a certificate of permanency should not have resulted in the dismissal of plaintiff's complaint with prejudice, and (4) the trial court ruling barring the narrative reports of Doctors Eyerman, Peterson, Rosenbaum and Friedman warrants reversal.

Because plaintiff did not claim the accident resulted in an aggravation of a pre-existing injury, we agree no Polk analysis was required. Davidson, supra, 189 N.J. at 184-85. Likewise, the untimely filing of a certification of permanency is not necessarily fatal to plaintiff's claim since it is not a fundamental element of an AICRA cause of action. Casinelli, supra, 181 N.J. at 362-63. However, the certification of permanency is not a substitute for an expert report. Ibid. Moreover, a physician's certification under AICRA is not analogous to the Affidavit of Merit statute, N.J.S.A. 2A:53A-27 to -29. See Konopka v. Foster, 356 N.J. Super. 223, 227-29 (App. Div. 2002); see also Watts v. Carmilegan, 344 N.J. Super, 453, 466-68 (App. Div. 2001). Its purpose is twofold: "to supply evidence that a plaintiff has, in fact, sustained an injury that qualifies for recovery of non-economic damages under the new verbal threshold and, to provide a legal foundation for a charge of perjury, should false swearing later be shown." Casinelli, supra, 181 N.J. at 362. Therefore, dismissal of a complaint for failure to provide the requisite certification should only result in a dismissal without prejudice. Id. at 363. Despite these trial court rulings with which we disagree, we are satisfied summary judgment dismissing the complaint was properly granted.

In reviewing a trial court order granting summary judgment, we employ the same test as the motion judge. Coyne v. N.J. Dep't of Transp., 182 N.J. 481, 491 (2005); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998). That test requires that we first determine whether the moving party has demonstrated that there are no genuine disputes as to any material facts, and then we decide whether the motion judge's application of the law was correct. Atl. Mut. Ins. Co. v. Hillside Bottling Co., 387 N.J. Super. 224, 230-31, (App. Div.), certif. denied, 189 N.J. 104 (2006). In so doing, we view the evidence in a light most favorable to the non-moving party. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). However, we review issues of law de novo and accord no deference to the motion judge's conclusions on issues of law. Zabilowicz v. Kelsey, 200 N.J. 507, 512-13 (2009).

Plaintiff's proofs, when viewed most favorably towards her, raise no genuinely disputed issue of fact warranting resolution before a jury. The reports authored by plaintiff's named expert, Dr. Peterson, dated April 9, May 17, and September 24, 2008, which were not barred, do not express any permanency opinion. Notably, in the September 24, 2008 report, Dr. Peterson projected that it would take a minimum of three months to secure cervical and lumbar plain films and MRIs, a cervical CT scan, and to reevaluate plaintiff. Given the minimum additional time frame Dr. Peterson required to reevaluate plaintiff, along with the additional time defendant would need to complete discovery once Dr. Peterson's reevaluation was completed, it was unlikely discovery would be completed by the February 2009 discovery end date. Yet, plaintiff did not seek a discovery extension at that time. More significantly, Dr. Peterson never performed a physical reevaluation. The October 4, 2009 report, which the court excluded, indicates that Dr. Peterson simply "talked" with plaintiff on July 25, 2009.

We also reject plaintiff's contention that the court erred in barring, for discovery violations, medical narrative reports from Doctors Peterson, Eyerman, Friedman and Rosenbaum. As noted earlier, despite some indication from Dr. Peterson, in his September 2008 report, that he would need, at a minimum, an additional three months before he could reevaluate plaintiff, she failed to file a motion to extend discovery.

Plaintiff treated with Dr. Eyerman in excess of thirty-five times before discovery closed. He was named as an expert in her answers to interrogatories, but plaintiff failed to attach an expert report from him in her interrogatory responses or serve a report from the doctor during the discovery period.

Plaintiff's first treatment with Dr. Friedman did not occur until October 1, 2009, which was eight months after the arbitration. His report concludes that plaintiff's injuries are causally related to the accident, without any explanation how he arrived at that conclusion more than four years after the accident and without the benefit of any objective clinical evidence gathered over the four-year period that preceded plaintiff's first visit with him. Additionally, he too makes no permanency determination, merely stating that such a determination is "to be determined upon completion of care." Thus, the record supports the motion judge's conclusion that plaintiff's failure to comply with her discovery obligations prejudiced defendants.

The decision to admit or preclude documents based upon discovery violations is committed to the sound discretion of the trial court. Medford v. Duggan, 323 N.J. Super. 127, 133 (App. Div. 1999). Its determination of discovery issues is "entitled to deference in the absence of a mistaken exercise of discretion." Ibid. (citing Payton v. N.J. Tpk. Auth., 148 N.J. 524, 559 (1997)). Applying this standard, we discern no basis to disturb the motion judge's determination regarding the documents excluded.

A

1 Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993).

2 Davidson v. Slater, 189 N.J. 166 (2007).

3 Dr. Prasad, a neurologist, examined plaintiff at the request of Dr. Eyerman and issued a report dated November 6, 2007.

4 N.J.S.A. 39:6A-8a requires that within sixty days following a defendant's answer to a complaint, persons subject to the verbal threshold option provide a defendant with a certification from a licensed treating physician certifying that a plaintiff has sustained a permanent injury.