Opinion
DOCKET NO. A-6235-12T2
08-18-2015
CHRISTINA VAZQUEZ, Plaintiff-Appellant, v. RAMON F. MERCADO and TAINO EXPRESS, INC., Defendants, and WILLIE J. HARRIS and NEW JERSEY TRANSIT, Defendants-Respondents.
Dario, Yacker, Suarez & Albert, LLC, attorneys for appellant (Brian E. Eyerman, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Transit (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kevin J. Fleming, Deputy Attorney General, 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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION Before Judges St. John and Rothstadt.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 No. L-5065-10. Dario, Yacker, Suarez & Albert, LLC, attorneys for appellant (Brian E. Eyerman, on the brief). John J. Hoffman, Acting Attorney General, attorney for respondent New Jersey Transit (Lewis A. Scheindlin, Assistant Attorney General, of counsel; Kevin J. Fleming, Deputy Attorney General, on the brief). PER CURIAM
Plaintiff Christina Vazquez appeals from the summary judgment dismissal of several of her claims for economic damages against defendant New Jersey Transit (NJT). Plaintiff sustained injuries when the bus in which she was riding was struck by an NJT bus. She argues the trial court erred in holding her expert's report failed to establish a causal nexus between the accident and her injuries sufficient to overcome the general immunity for public entities under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3. We disagree and affirm.
I.
The record discloses the following facts and procedural history, viewed in the light most favorable to plaintiff, the non-moving party. Robinson v. Vivirito, 217 N.J. 199, 203 (2014). On August 20, 2008, plaintiff was riding on a bus owned and operated by Taino Express, Inc. (Taino), when it was rear-ended by a NJT bus. As a result of the accident, plaintiff allegedly suffered neck, back, foot and shoulder injuries. She was treated at a nearby hospital on August 20 and discharged the same day.
The first bus was driven by Taino employee Ramon F. Mercado. Willie J. Harris, an employee of NJT, drove the second.
Approximately one month after the accident, plaintiff sought treatment from Charles Collins, D.C., a chiropractor, regarding persistent headaches, neck and back pain. Collins referred plaintiff to an orthopedist, Napoleon Valdez, M.D.
Valdez compiled a report following his initial examination of plaintiff on November 12, 2008. In the report, Valdez acknowledged plaintiff was involved in a commercial automobile accident and postulated plaintiff suffered a head injury as a result of being thrown about the bus cabin upon impact. He noted plaintiff's left shoulder lacked some rotational capability and determined: "Sprain/strain left shoulder rule out rotator cuff." Valdez's examination of plaintiff's feet revealed no obvious swelling or discoloration, but he diagnosed her with "Sprain/strain both feet." The report did not discuss how plaintiff's shoulder and feet were injured by the accident. Nevertheless, it went on to conclude: "Causality in my opinion within a reasonable degree of medical probability, the above patient sustained the above injury as a direct result of the above accident."
Plaintiff returned to Valdez for three follow-up examinations between December 2008 and March 2009. In none of the reports memorializing these consultations did Valdez discuss causation as to plaintiff's shoulder and foot injuries. An MRI of plaintiff's left shoulder demonstrated degenerative changes to her joint with inferior spur formation narrowing the supraspinus outlet. Valdez subsequently performed arthroscopic surgery on plaintiff's shoulder on April 20, 2009. The operative report did not discuss causation.
Plaintiff initiated suit against NJT, Harris, Taino and Mercado, alleging negligence and demanding economic as well as non-economic damages. NJT denied liability and filed a motion for partial summary judgment as to non-economic damages, which the court granted, pursuant to N.J.S.A. 59:9-2(d)'s verbal threshold. NJT subsequently filed another motion for partial summary judgment, seeking dismissal of plaintiff's claims for economic damages related to the purported injuries to her left shoulder and feet, arguing she failed to provide any evidence demonstrating a causal link between those injuries and the accident. Plaintiff did not oppose the motion, which the trial court granted on March 2, 2012.
According to NJT's brief, defendants Taino and Mercado were dismissed from the case on summary judgment that same day. The record before us does not include the trial court's order as to Taino and Mercado. However, this issue is not germane to the instant appeal.
Plaintiff later filed a motion for reconsideration of the court's March 2 order, which NJT opposed. At oral argument on July 6, 2012, the motion judge treated the question before the court as NJT's motion for summary judgment. That same day, the court rendered its oral decision and accompanying order granting NJT summary judgment as to all of plaintiff's claims for economic damages, excepting the expenses incurred for her initial consultation with Collins. Although the matter was then assigned out to trial, the balance of plaintiff's claims were later dismissed, pursuant to N.J.S.A. 59:9-2(e)'s collateral source rule, because plaintiff could have recovered her medical expenses through Taino's insurance policy. See N.J.A.C. 11:3-29.1(a).
Even though the order under review resulted from plaintiff's motion for reconsideration, we address the decision as one granting summary judgment to NJT, as the trial court did. --------
This appeal of the trial court's July 6 order ensued.
II.
In reviewing the grant or denial of summary judgment, we apply the same standard that governs the trial court. Nicholas v. Mynster, 213 N.J. 463, 477-78 (2013). Summary judgment should be granted where the record demonstrates "no genuine issue as to any material fact challenged and . . . the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c); Henry v. N.J. Dep't of Human Servs., 204 N.J. 320, 329-30 (2010). The trial court's rulings on questions of law are subject to plenary review. Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
We set forth some general principles specific to interpreting the TCA, the foremost of which is that "a public entity is 'immune from tort liability unless there is a specific statutory provision' that makes it answerable for a negligent act or omission." Polzo v. Cnty. of Essex, 209 N.J. 51, 65 (2012) (quoting Kahrar v. Borough of Wallington, 171 N.J. 3, 10 (2002)). Even if liability exists, it is trumped by any immunity explicitly provided for by the TCA. See Weiss v. N.J. Transit, 128 N.J. 376, 382 (1992) (explicit grant of immunity under the TCA "will prevail over the liability provisions" (citation and internal quotation marks omitted)); see also Dickson v. Twp. of Hamilton, 400 N.J. Super. 189, 195 (App. Div.) ("When both liability and immunity exist, immunity prevails."), certif. denied, 196 N.J. 461 (2008).
Under the TCA, an exception to the general rule of public-entity immunity exists for injuries "proximately caused by an act or omission of a public employee within the scope of his employment." N.J.S.A. 59:2-2; see also Townsend v. Pierre, 221 N.J. 36, 51 (2015) ("To sustain a cause of action for negligence, a plaintiff must establish four elements: "(1) a duty of care, (2) a breach of that duty, (3) proximate cause, and (4) actual damages.'" (emphasis added) (quoting Polzo, supra, 196 N.J. at 584)). The Court has defined "proximate cause" as "any cause which in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the result complained of and without which the result would not have occurred." Townsend, supra, 221 N.J. at 51 (citation and internal quotation marks omitted).
In order to satisfy her burden of proof as to proximate cause, see Davis v. Brickman Landscaping, Ltd., 219 N.J. 395, 406 (2014), plaintiff must establish a causal nexus between the accident and her injuries "by objective, credible medical evidence." Puso v. Kenyon, 272 N.J. Super. 280, 284 (App. Div. 1994) (internal quotation marks omitted). This normally requires the testimony of an expert, particularly where "the existence of a nexus between the accident and [a] plaintiff's [injury] is not something that can be based upon common knowledge." Kennelly-Murray v. Megill, 381 N.J. Super. 303, 311 (App. Div. 2005); see also Amaechi v. Clark, 268 N.J. Super. 186, 187-88, 194 (Law Div. 1993) (requiring expert medical testimony to prove causal nexus between car accident and injury in verbal threshold suit).
However, the net opinion rule, which is a corollary of N.J.R.E. 703, "forbids the admission into evidence of an expert's conclusions that are not supported by factual evidence or data." Townsend, supra, 221 N.J. at 53-54 (citation and internal quotation marks omitted). Rather, in rendering an opinion, an expert must "'be able to identify the factual bases for [his] conclusions, explain [his] methodology, and demonstrate that both the factual bases and methodology are reliable.'" Id. at 55 (quoting Landrigan v. Celotex Corp., 127 N.J. 404, 417 (1992)); see also Buckelew v. Grossbard, 87 N.J. 512, 524 (1981) ("[A]n expert's bare conclusion[], unsupported by factual evidence, is inadmissible.").
We agree with the trial court that NJT was entitled to summary judgment on economic damages as to plaintiff's shoulder and foot injuries because Valdez's reports provided no factual support for the proposition plaintiff's shoulder or feet were injured as a result of the accident. Rather, Valdez offered only the unsubstantiated and overly-general statement that: "Causality in my opinion within a reasonable degree of medical probability, the above patient sustained the above injury as a direct result of the above accident." We determine this constituted nothing more than a "bare conclusion[], unsupported by factual evidence." Buckelew, supra, 87 N.J. at 524; see also Puso, supra, 272 N.J. Super. at 285 ("The 'parroting' of statutory words by the physician as to medical conclusions is not of assistance to the court in analyzing whether a plaintiff has carried her burden of proof."). In short, his opinion was "'based merely on unfounded speculation and unquantified possibilities,'" Townsend, supra, 221 N.J. at 55 (quoting Grzanka v. Pfeifer, 301 N.J. Super. 563, 580 (App. Div.), certif. denied, 154 N.J. 607 (1997)), and was correctly excluded as a "net opinion." We therefore hold summary judgment was properly granted.
Affirmed. I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION