Opinion
DOCKET NO. A-2906-13T2
01-14-2016
MICHELLE CATENA, Plaintiff-Appellant, v. DAPHKA JASMIN and JOHNNY HARRIS, Defendants, and AUTO ONE INSURANCE COMPANY/CAMDEN FIRE INSURANCE ASSOC., Defendant/Intervenor-Respondent. MICHELLE CATENA, Plaintiff-Appellant, v. UNITED ASSURANCE, INC., JOSEPH MARINO, and AUTO ONE INSURANCE COMPANY t/a THE CAMDEN FIRE INSURANCE ASSOCIATION, Defendants-Respondents.
Frank J. Zazzaro argued the cause for appellant (Law Offices of Frank J. Zazzaro, attorneys; Bridget Saro, of counsel and on the briefs). Andrew M. Horun argued the cause for respondents United Assurance, Inc. and Joseph Marino (Law Offices of Terkowitz & Hermesmann, attorneys; Mr. Horun, on the brief).
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Rothstadt. On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket Nos. L-4392-10 and L-6914-11. Frank J. Zazzaro argued the cause for appellant (Law Offices of Frank J. Zazzaro, attorneys; Bridget Saro, of counsel and on the briefs). Andrew M. Horun argued the cause for respondents United Assurance, Inc. and Joseph Marino (Law Offices of Terkowitz & Hermesmann, attorneys; Mr. Horun, on the brief). The opinion of the court was delivered by ROTHSTADT, J.A.D.
Plaintiff Michelle Catena appeals from the Law Division's order granting summary judgment and dismissing with prejudice the two complaints she filed in this consolidated action seeking damages for injuries she sustained in two unrelated automobile accidents: one in 2008, and the other in 2010. The court entered the order in response to a motion filed by defendants United Assurance, Inc. (United) and Joseph Marino, parties only to the second lawsuit. Defendant Auto One Insurance Company (Auto One), plaintiff's uninsured/underinsured (UM/UIM) coverage carrier and a defendant in both actions, joined in United's and Marino's motion by a letter to the court in the days before the motion was to be heard.
On August 29, 2012, plaintiff settled all claims against defendants Johnny Harris and Daphka Jasmin and dismissed her complaint against them with prejudice. At the time of the summary judgment motion, the only claim remaining in the earlier action was against defendant Auto One Insurance Company/Camden Fire Insurance Assoc. for uninsured/underinsured motorist coverage.
As Auto One was named differently in each action and has been referred to inconsistently throughout the record, we will refer to that party as Auto One.
In a letter to this court advising why it would not be participating in this appeal, counsel for Auto One advised that its joining in the summary judgment motion as it related to the 2008 accident was in error.
The court granted summary judgment because plaintiff failed to present objective medical evidence of a permanent injury caused by the 2010 accident. On appeal, plaintiff argues that the she did produce the required evidence and that the matter was not ripe for summary judgment because she was still undergoing treatment and had filed a motion to re-open discovery that was still pending when the court granted summary judgment. She further contends the court erred by dismissing her claim for lost wages because it did not depend upon her proving permanent injury, and by granting summary judgment in favor of Auto One because it failed to file any briefs or otherwise comply with the Rule regarding summary judgment motions.
In fact, on the same day one judge granted summary judgment, another entered an order extending discovery.
We have considered plaintiff's arguments in light of our review of the record and applicable legal standards. We affirm the court's order as to Marino and United, but reverse as to Auto One.
We review an order granting summary judgment de novo and apply the same standard governing the trial court, which requires summary judgment be denied if "the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also Townsend v. Pierre, 221 N.J. 36, 59 (2015); R. 4:46-2(c).
The facts, drawn from the competent evidential materials, and seen in the light most favorable to plaintiff, can be summarized as follows.
The first accident occurred on November 21, 2008, when a car owned by Jasmin and driven by Harris struck plaintiff's car while it was changing lanes. Plaintiff claimed she suffered injuries to her neck and back — specifically, a cervical disk bulge and herniation impinging on the thecal sac, a lumbar disk bulge, and straightening of the cervical lordosis — and, as a result, underwent chiropractic treatment until April 2010 and received epidural steroid injections.
Importantly, the record is devoid of any documents relating to plaintiff's treatment following the 2008 accident.
On April 16, 2010, plaintiff was involved in another accident, when a car owned and driven by Marino allegedly struck her vehicle from behind while she was stopped at a red light. Plaintiff went to an emergency room later that day complaining of head, neck, and back pain. Four days later, she received further care from the First Care Medical Group (First Care) and was prescribed pain medication. Two weeks after the accident, during a follow-up appointment at First Care, plaintiff complained she "ha[d] developed a constant burning pain in her low back which radiates to her buttocks," for which the pain medication provided insufficient relief.
An MRI performed in August 2010 revealed a disk bulge in plaintiff's lumbar spine, just above where a bulge was discovered following her 2008 accident. Plaintiff underwent physical therapy from October 2010 through the end of 2011, and in March 2011 began seeing specialists at the New Jersey Spine Center (Spine Center). Various imaging and diagnostic studies were performed between January and September 2011 — including MRIs of her cervical and lumbar spine, a lumbar discogram, and a nerve conduction study — the results of which were normal.
In August 2012, Brett Gerstman, M.D., of the Spine Center, reported that plaintiff had been experiencing "persistent diffuse pelvic pain and radiating leg pains which were of unclear etiology" since the April 2010 accident. According to the doctor, "further diagnostic work-up" revealed plaintiff had an abnormal and "extremely large separation of her pubic symphysis." He opined this separation "likely resulted" from plaintiff being born with bladder exstrophy, which plaintiff and her family reported. Gerstman further opined, "[i]t is unclear whether her most recent car accident further exacerbated the separation or whether the separation of the pubic symphysis is the clear cause of her pain."
The pubic symphysis is "[t]he joint compris[ing] the medial surface of the pubic bones and an intervening fibrocartilaginous disc." Ines Becker et al., The Adult Human Pubic Symphysis: A Systematic Review, 217 J. Anatomy 475, 475 (2010).
"Bladder exstrophy is a . . . disorder that occurs early on while a fetus is developing in the womb. As the bladder is developing the abdominal wall does not fully form, leaving the pubic bones separated and the bladder exposed to the outside through an opening in the lower abdominal wall." About Bladder Exstrophy, Children's Hosp. Of Phila., http://www.chop.edu/conditions-diseases/bladder-exstrophy/about (last reviewed Oct. 20, 2015).
In a March 2013 letter to plaintiff's counsel, Gerstman described plaintiff's diagnosis at the time as "includ[ing] persistent pelvic pain . . . coccygeal pain . . . sacroiliac joint dysfunction and congenital bladder exstrophy." Based on plaintiff's "congenital bladder exstrophy and resulting pelvic floor dysfunction," Gerstman reported that he "expect[ed] her to need regular medical follow-up throughout her life" and her "symptoms to be persistent and permanent." He concluded by stating:
Although I was not caring for [plaintiff] at the time of her car accident, review of her prior medical records did demonstrate causality between her current symptoms and her motor vehicle accidents within reasonable medical certainty.
The following month, Gerstman followed up with another letter, stating:
For clarification regarding my prior report . . . I would like to answer the following question:
1. Although [plaintiff] did have congenital bladder exstrophy, she did not have any significant pelvic or low back pain prior to being involved in a motor vehicle accident in April 2010. I believe that this congenital bladder exstrophy did predispose her to developing chronic pain. However, she had no pelvic pain prior to her accident. She only developed these pains after being involved in this motor vehicle accident in April 2010. It is likely that this accident accelerated and/or exacerbated any underlying pelvic
dysfunction which may have existed.
I do not believe any further diagnostic or clinical observations are needed to conclude that her current pathology is related to her motor vehicle accident in April 2010 within a reasonable degree of medical probability[.]
It is within a reasonable degree of medical certainty that [plaintiff] did have resulting loss of function in relation to her lumbosacral spine and pelvis as a result of the motor vehicle accident in April 2010. . . . I do not anticipate that she will ever regain full normal function.
Significantly, the results of a pelvic CT scan performed in August 2013 upon Gerstman's referral revealed no acute abnormalities, though noted "a wide diastasis of the pubic bones, compatible with the history of congenital pelvic abnormalities associated with bladder exstrophy." The scan also revealed "mild vacuum phenomenon at the right sacroiliac joint and a few tiny subcortical cysts . . . compatible with early degenerative change."
Plaintiff's complaints in the two actions — filed in May 2009 and August 2011 — alleged she sustained permanent injuries as a result of each accident. Neither complaint claimed its respective accident aggravated a pre-existing condition or that the second accident aggravated any injury sustained in the first.
Marino and United filed their motion for summary judgment in January 2014, at which time plaintiff was still undergoing treatment. At the ensuing oral argument, plaintiff claimed her injuries were established by objective diagnostic tests performed by Gerstman — specifically, that her congenital bladder condition was discovered using diagnostic imaging and that her related chronic pelvic pain was confirmed by "provocative testing." Though counsel conceded the latter relied upon a patient's complaint of pain, she described the provocative testing as being "objective in the sense that some of them are also designed to elicit a false complaint of pain to rule out someone . . . making up those pain responses." The motion judge rejected counsel's arguments and concluded plaintiff had proffered no evidence of objective tests demonstrating that anything related to plaintiff's congenital condition had changed as a result of the accident. The judge stated:
In this case plaintiff has longstanding complaints of pain. And as a result of that underwent a considerable number of diagnostic tests all of which were negative. . . . The only thing that was demonstrated on a CT Scan was the seven centimeter gap in the pubic symphysis. However, there was nothing to indicate one way or another whether that had increased, decreased or otherwise changed from the condition that she had from birth as a result of her bladder exstrophy.The judge entered an order granting summary judgment and dismissing with prejudice plaintiff's claims against United, Marino, and Auto One. This appeal followed.
We address first plaintiff's argument regarding the dismissal of her claims against Auto One, which admittedly did not seek summary judgment for dismissal of the claims relating to the 2008 accident. Further, Auto One did not file any submissions as required by Rule 4:46-2(a). For those reasons, we concur with plaintiff that summary judgment in favor of Auto One in the earlier case pertaining to the 2008 accident was improvidently granted. We reverse the judgment.
We next turn our attention to plaintiff's argument that her proof of an alleged aggravation of her congenital bladder condition satisfied her obligation to present evidence of a permanent injury resulting from the 2010 accident. According to plaintiff, Gerstman's acknowledgment of her pre-existing condition and that she experienced new pain following the 2010 accident adequately demonstrated aggravation of the pre-existing condition and a permanent injury. We find no merit to her argument.
It is undisputed that plaintiff's claims were subject to the "limitation on lawsuit option," pursuant to N.J.S.A. 39:6A- 8(a), which permits her to maintain an action for noneconomic loss only if she
sustained a bodily injury which results in death; dismemberment; significant disfigurement or significant scarring; displaced fractures; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
[Ibid.]
When an action is premised on a claim of permanent injury, the plaintiff must prove the injured "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 permanent injury cannot be proven based solely on an injured party's subjective complaints. Ibid.; see also Davidson v. Slater, 189 N.J. 166, 181 (2007). To vault the statutory threshold, the injury must be certified to by a licensed physician, whose "opinion must be based on 'objective clinical evidence' derived from accepted diagnostic tests and cannot be 'dependent entirely upon subjective patient response.'" Davidson, supra, 189 N.J. at 181 (quoting N.J.S.A. 39:6A-8(a)); see also Agha v. Feiner, 198 N.J. 50, 60-61 (2009); N.J.S.A. 39:6A-4.7; N.J.A.C. 11:3-4.5.
The provisions requiring verification of injuries by valid, objective diagnostic procedures "were 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); see also Davidson, supra, 189 N.J. at 189. While subjective complaints of pain may suffice if "verified by physical examination and observation . . . [of] objectively demonstrable conditions such as 'swelling, discoloration, and spasm,' . . . a physician's 'observations' of a patient's subjective responses [cannot be transmuted] into objective clinical evidence." Agha supra, 198 N.J. at 61 n.5 (quoting Oswin v. Shaw, 129 N.J. 290, 320 (1992), superceded by statute, N.J.S.A. 39:6A-8(a), as recognized in DiProspero, supra, 183 N.J. at 480).
An injured plaintiff may satisfy the obligation to prove a permanent injury by establishing the accident aggravated a pre-existing injury. "When aggravation of a pre-existing injury is pled by a plaintiff, comparative medical evidence is necessary as part of a plaintiff's prima facie and concomitant verbal threshold demonstration in order to isolate the physician's diagnosis of the injury or injuries that are allegedly 'permanent' as a result of the subject accident." Davidson, supra, 189 N.J. at 185. This obligation is based not on the need to vault the injury threshold — though that too must be satisfied — but rather on "traditional principles of causation and burden allocation applicable to tort cases generally," and the need to prove the ultimate permanent injury was caused by the accident. Id. at 184. However, "[w]hen a plaintiff does not plead aggravation of pre-existing injuries, a comparative analysis is not required to make that demonstration," as the statute does not demand "a comparative-medical analysis in respect of causation in order to vault the [injury] threshold." Id. at 170.
Here, plaintiff did not plead aggravation of her pre-existing condition; rather, she alleged she sustained a new permanent injury. In response to the summary judgment motion, plaintiff was unable to offer any "objective clinical evidence" to support her allegation of a new injury. Contrary to her counsel's arguments, Gerstman's reliance on only her subjective complaints of pain in response to manipulation and other tests, without more, cannot sustain her claim of permanent injury. Plaintiff failed, therefore, to meet her burden on summary judgment to establish a question of material fact as to whether she sustained a new and permanent injury.
To the extent plaintiff later decided to rely upon Gerstman's opinion that the 2010 accident aggravated her congenital condition to establish injury, she failed to prove that her condition was aggravated or that any such aggravation was caused by the accident. Gerstman's opinion that the accident aggravated plaintiff's condition relied solely upon her subjective claims regarding pain — both that she was pain-free before the accident and that she suffered from pain thereafter — and was not based on any objective evidence that plaintiff's condition had worsened since the accident or that it pre-dated the diagnostic imaging. Proof of aggravation requires much more. See Polk v. Daconceicao, 268 N.J. Super. 568, 575 (1993) ("A diagnosis of aggravation of a pre-existing injury or condition must be based upon . . . an evaluation of the medical records of the patient prior to the trauma with the objective medical evidence existent post trauma."). Under these circumstances, we conclude the motion judge correctly determined summary judgment in favor of United and Marino was appropriate.
Because we find plaintiff's proofs could not ward off dismissal of her complaint, we need not reach the question of whether her post-complaint allegation of aggravation obligated her to provide the comparative analysis of her pre- and post-accident condition, as it would had she pled aggravation initially. See Davidson, supra, 189 N.J. at 170, 185-87.
"Although Polk predated [amendments to N.J.S.A. 39:6A-8(a)], a Polk analysis continues to be required in cases governed by [the statute]. Further, a Polk analysis is required to differentiate a subsequent injury to a body part that was previously injured whether aggravation of the prior injury is alleged or not." Bennett v. Lugo, 368 N.J. Super. 466, 473 (App. Div.) (citation omitted), certif. denied, 180 N.J. 457 (2004).
The fact that plaintiff was seeking to extend discovery, and obtained an order doing so, does not change our conclusion. The additional time granted for discovery clearly related to plaintiff's further treatment and not to allow additional time for plaintiff to secure a different expert opinion as to causation. When the motion for summary judgment was filed, discovery had concluded and a trial date had been scheduled. The case was not "in an early stage," with the issue of causation "still not fully developed." See Bilotti v. Accurate Forming Corp., 39 N.J. 184, 193 (1963). In fact, Gerstman had opined that no further testing or diagnostic studies were necessary to establish causation.
Contrary to Rule 2:6-1, plaintiff's appendix does not contain a copy of the certification filed in support of her cross-motion to extend discovery that would have disclosed the reason for an extension. However, the order stated the scheduled trial date would be adjourned and discovery extended so that plaintiff could obtain medical records regarding the "January 7, 2014 implementation of [a] neurostimulator device," the anticipated surgery for installation of a permanent device, and any updated medical records or reports from Gertsman. --------
Finally, we address plaintiff's contention that, although she could not prove permanent injury, she was still entitled to pursue a claim for lost wages resulting from the 2010 accident. While plaintiff is legally correct, see Miskelly v. Lorence, 380 N.J. Super. 574, 578 (App. Div.) ("We have held that plaintiffs need not satisfy the [limitation on lawsuit] threshold to recover for economic loss."), certif. denied, 185 N.J. 597 (2005), her claim lacked any factual support, as plaintiff offered no proof that any of her injuries prevented her from going to work. Competent evidence that an injury caused by the accident prevented a plaintiff from working is required to sustain a claim for lost wages. See Haywood v. Harris, 414 N.J. Super. 204, 214 (App. Div.) (noting that even when a required permanent injury is not proven, lost wages may be recovered if there is evidence of "a reasonable probability of such a loss flowing from the past harm"), certif. denied, 204 N.J. 38 (2010). Without such evidence, summary judgment was correctly entered as to the lost wage claim.
The Law Division's January 31, 2014 order is affirmed as to L-6914-11 and the grant of summary judgment to United, Marino, and Auto One with respect to the 2010 accident. We reverse and vacate the order as to L-4392-10 and the grant of summary judgment to Auto One with respect to the 2008 accident, and remand the matter for further proceedings consistent with our opinion. We do not retain jurisdiction. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION