ANN GIESGUTH v. ANTHONY J. COSTANZA and JOYCE M. COSTANZA

NOT FOR PUBLICATION WITHOUT THE
                               APPROVAL OF THE APPELLATE DIVISION
        This opinion shall not "constitute precedent or be binding upon any court." Although it is posted on the
     internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.




                                                         SUPERIOR COURT OF NEW JERSEY
                                                         APPELLATE DIVISION
                                                         DOCKET NO. A-3501-17T2

ANN GIESGUTH ,

          Plaintiff-Appellant,

v.

ANTHONY J. COSTANZA and
JOYCE M. COSTANZA,

     Defendants-Respondents.
__________________________________

                    Submitted December 4, 2018 – Decided January 8, 2019

                    Before Judges Suter and Firko.

                    On appeal from Superior Court of New Jersey, Law
                    Division, Atlantic County, Docket No. L-1533-16.

                    The Carroll Law Firm, attorneys for appellant (James J.
                    Carroll, III and Benjamin B. Brenner, on the briefs).

                    Law Offices of Debra Hart, attorneys for respondents
                    (Eleanore Rogalski, of counsel and on the brief).

PER CURIAM
      Plaintiff Ann Giesguth 1 appeals from an order of summary judgment in

favor of defendants, Anthony J. Costanza and Joyce M. Costanza, in her verbal

threshold case.    Finding that plaintiff failed to demonstrate a permanent

condition meeting the requirements of the verbal threshold statute or a causal

relationship between that condition and the accident that is the subject of suit,

we affirm.

      Viewed in the light most favorable to plaintiff, see R. 4:46-2(c); Brill v.

Guardian Life Ins. Co. of Am.,  142 N.J. 520, 540 (1995), the summary judgment

record reveals the following facts and procedural history.

                                        I.

      Plaintiff was involved in a motor vehicle accident on July 18, 2014, with

a vehicle driven by Anthony J. Costanza. The police report states that as

defendant was pulling out of Smithville Cleaners, he was unable to see plaintiff's

vehicle and struck it on the right side. She did not seek medical attention. A

week later, plaintiff was found unresponsive at her home and she was

transported by ambulance to AtlantiCare Medical Center and diagnosed with a



1
   Regrettably, plaintiff passed away on June 27, 2017. The record does not
disclose whether a motion for leave to file and serve an amended complaint was
ever made to permit an Administrator Ad Prosequendum to pursue the action on
behalf of plaintiff's estate.
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pulmonary embolism.        The hospital progress notes stated that plaintiff

"apparently suffered a closed head injury, TBI [(traumatic brain injury)], and

may    be    suffering   from   post-concussive,    intermittent   delirium   with

disorientation." After being discharged from the hospital, she was transferred

to Royal Suites Rehabilitation where it was recommended that she undergo a

neuropsychological evaluation to determine if the TBI was contributing to "her

loss of memory and behavioral aberrancies." No such evaluation was ever

performed.

      In his memorandum of decision on motion, the judge stated, "there is not

sufficient objective credible medical evidence to reach a jury on the question of

whether [p]laintiff suffered a brain injury causing permanent 'mental decline .'"

His decision further held: "There are no medical records which specifically

diagnose [p]laintiff with TBI." None of her specialists opined that plaintiff

suffered the requisite permanent injury. Only plaintiff's family physician, Dr.

Robert H. Williams, who treated her for ten years and examined her shortly

before the accident, opined generally that, "[p]laintiff suffered a severe decline

in mental status; that in his professional opinion the decline in mental status was

caused by the car accident; and that '[t]his injury has not healed to function




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normally and will not heal to function normally with further medical treatment.'"

The judge concluded that this constituted a "net opinion."

      Plaintiff's counsel argues that the order should be reversed because

sufficient, objective medical evidence was presented to show that plaintiff

sustained a permanent injury as defined in  N.J.S.A. 39:6A-8(a) because her

mental acuity tests showed a "mild cognitive impairment" and "mental decline"

that satisfies the verbal threshold. Further, counsel contends that Dr. Williams

is in a superior position to opine as to plaintiff's mental decline because he

treated her for nearly a decade and he evaluated her a month before the accident.

                                        II.

      A plaintiff who is subject to the limitation on lawsuit threshold in  N.J.S.A.

39:6A-8(a) must present "objective clinical evidence" that the injury falls within

one of the categories of injuries enumerated in the statute. DiProspero v. Penn,

 183 N.J. 477, 489 (2005); Serrano v. Serrano,  183 N.J. 508, 518 (2005). We are

convinced that plaintiff failed to present sufficient "objective clinical evidence"

of a permanent injury here as defined in  N.J.S.A. 39:6A-8(a) to vault the

threshold.

      In order to vault the threshold, a physician must certify that, "the

automobile accident victim suffered from a statutorily enumerated injury."


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Davidson v. Slater,  189 N.J. 166, 181 (2007). That opinion must be based on

"objective clinical evidence,"  N.J.S.A. 39:6A-8(a), a standard that is the

equivalent of the "credible, objective medical evidence" standard described in

Oswin v. Shaw,  129 N.J. 290, 314 (1992); DiProspero,  183 N.J. at 495. Under

that standard, which is a critical element of the cost-containment goals of

AICRA,2 the necessary objective evidence must be "derived from accepted

diagnostic tests and cannot be 'dependent entirely upon subjective patient

response.'" Davidson,  189 N.J. at 181 (quoting  N.J.S.A. 39:6A-8(a)).

       A physician opining on the permanency of a plaintiff's injury must make

such a determination through the use of objective medical evidence.

DiProspero,  183 N.J. at 489. If the objective evidence depends on diagnostic

and medical testing, those tests "may not be experimental in nature or dependent

entirely upon subjective patient response."         N.J.S.A. 39:6A-8(a).       The

Legislature intended these rigorous standards to ensure that a plaintiff could use

only honest and reliable medical evidence and testing procedures to prove that

an injury met the threshold. DiProspero,  183 N.J. at 489; see, e.g., N.J.A.C.

11:3-4.5.




2
    Automobile Insurance Cost Reduction Act,  N.J.S.A. 39:6A-1.1.
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      Here, the report prepared by Dr. Williams is based only upon his own

general observations of plaintiff's behavior. He did not perform any objective

testing on her as required by statute. In fact, no medical tests were performed

on plaintiff in accordance with  N.J.S.A. 39:6A-4.7, and no neurological exam

was conducted. In a similar vein, Dr. Williams's permanency certification

simply states that the accident caused plaintiff's mental decline. No medical

records establish a TBI diagnosis either.

      Plaintiff presented no evidence of a causal connection through objective,

credible medical evidence that her apparent mental decline resulted from the

accident. In her certified answers to interrogatories, the only injury claimed by

plaintiff was a "significant decline in her mental status." No depositions were

taken in this case, and the only proffer made to the motion judge in opposition

was Dr. Williams's physician certification. The judge aptly found that Dr.

Williams offered a net opinion because no records or medical tests substantiated

his bare conclusions.

      We apply a "deferential approach to a trial court's decision to admit expert

testimony, reviewing it against an abuse of discretion standard." Pomerantz

Paper Corp. v. New Comm. Corp.,  207 N.J. 344, 371 (2011). "[A] court must

ensure that the proffered expert does not offer a mere net opinion." Id. at 372.


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A net opinion is "an expert's bare opinion that has no support in factual evidence

or similar data . . . ." Ibid.

      An expert witness's opinions that are not reasonably supported by the

factual record and an explanatory analysis from the expert may be excluded as

net opinion. Creanga v. Jardal,  185 N.J. 345, 360 (2005); accord Greenberg v.

Pryszlak,  426 N.J. Super. 591, 607 (App. Div. 2012). In general, an expert

should provide the "whys and wherefores" supporting their analysis. Beading

v. William Bowman Assocs.,  355 N.J. Super. 70, 87 (App. Div. 2002). As this

court has explained, "[e]xpert testimony should not be received if it appears the

witness is not in possession of such facts as will enable him [or her] to express

a reasonably accurate conclusion as distinguished from a mere guess or

conjecture.'" Dawson v. Bunker Hill Plaza Assocs.,  289 N.J. Super. 309, 323

(App. Div. 1996) (alterations in original) (quoting Vuocolo v. Diamond

Shamrock Chem.,  240 N.J. Super. 289, 299 (App. Div. 1990)).

      We agree with the motion judge that Dr. Williams offered a net opinion

because it is based upon speculation and therefore, not reliable. In light of these

circumstances, we conclude that plaintiff did not satisfy the required showing

of a permanent injury sufficient to withstand summary judgment.

      Affirmed.


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