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Bushman v. Halm

February 13, 1986

LAWRENCE BUSHMAN AND GWENYTH BUSHMAN, APPELLANTS,
v.
HENRY J. HALM AND UNITED STATES OF AMERICA



On Appeal from the United States District Court for the District of New Jersey, D.C. Civil No. 79-0956.

Author: Giles

Before: HUNTER and SLOVITER, Circuit Judges and GILES, District Judge*fn*

Opinion OF THE COURT

GILES, District Judge.

This appeal from an award of summary judgment in favor of the defendant United States requires us to decide whether, as a matter of law, the district court properly adjudicated plaintiff's*fn1 tort claims arising out of a head-on motor vehicle accident. Plaintiff's recovery is controlled by the terms of the New Jersey Automobile Reparations Reform Act (Act), N.J. Stat. Ann. § 39:6A - 1 et seq. (West 1973 & Supp. 1985). Because we find that plaintiff is not required under New Jersey law to submit expert medical opinion on the element of legal causation to establish a prima facie case of negligence, we conclude that a genuine issue of material fact exists as to the causal nexus between the accident and the alleged injury. We therefore vacate the judgment for defendant and remand for further proceedings consistent with this opinion.

I.

On December 20, 1977, a truck driver by plaintiff, Lawrence Bushman, collided with a United States Postal Service jeep driven by one of its employees, Henry Halm. On March 29, 1979, Bushman and his wife filed suit against the United States Postal Service and Halm seeking compensatory damages under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq. (1982),*fn2 for the husband's personal injuries, the wife's loss of consort and property damage to the truck.*fn3

Without filing supporting evidentiary materials, see Fed. R. Civ. P. 56(b), the United States moved for summary judgment on two grounds.*fn4 It argued that Bushman had only soft tissue injuries and, as such, his injuries were not permanent within the meaning of the Act. The government reasoned that since his medical expenses were below the $200.00 threshold established under the Act, the case came within the scope of the Act's tort exemption. See N.J. Stat. Ann. § 39:6A - 8 (West 1973 & Supp. 1985). The United States also argued that plaintiff had failed to establish explicitly a causal nexus between Bushman's alleged permanent injuries and the accident.

Plaintiff attempted to rebut defendant's summary judgment motion with evidentiary support. The proffered evidence consisted of Bushman's sworn affidavit setting forth his recollection of the accident and his resultant injuries as well as a medical report in letter form prepared by his treating physician, Dr. Ralph Kuhn, an orthopaedic surgeon.

As a result of the collision, plaintiff's knees struck the dashboard of his truck causing him pain and restricting his mobility. (App. at P 2). He received hospital emergency room treatment immediately after the accident. X-rays were taken of his left knee and a suture was used to mend a laceration of that same knee. (Id.) As to the permanency of the injury, Bushman contended that he has suffered daily pain in both legs since the date of the accident and can no longer maintain his previous level of physical activity. (Id. PP 3, 4, 5). Moreover, plaintiff averred that he had no pain in his knees prior to the accident. (Id. P 2).

Dr. Kuhn's report,*fn5 dated September 11, 1978, by history, substantially confirms Bushman's affidavit testimony that both of his knees were injured as a result of the collision with defendant's jeep. Upon his first examination on December 22, 1977, just two days after the accident, Dr. Kuhn found "mild tenderness" around the right knee, particularly in the area of the suture. (Id.). Swelling in the soft tissue of the left knee with "pain on palpitation medially" was also determined. Dr. Kuhn diagnosed contusions of both knees and, additionally, a sprain of the left knee. On December 22, 1977, Bushman was given crutches, an ace bandage for his left knee, and pain medication.

Bushman was again examined by Dr. Kuhn on February 23, 1978. At that time, he found no clinical evidence of physical injury, but recorded plaintiff's subjective complaints of residual pain emanating from both knees. Bushman was advised to continue with self-administered heat treatments and exercises and was prescribed anti-inflammatory medication. On May 11, 1978, he was seen again by Dr. Kuhn in a follow-up visit. At that time, Bushman complained of pain upon bending at the knees. Plaintiff was told to continue exercising using an ace bandage for support.

In a letter opinion,*fn6 the court below found from this record that Bushman's soft tissue injuries were purely subjective in nature and not obviously related to the accident. Referencing substantive law of the suits of the accident,*fn7 the court applied what it referred to as "established" New Jersey judicial precedent for the proposition that expert testimony on the issue of causation is a prerequisite to recovery where a plaintiff's "pain and suffering is subjective and not obviously related to an identifiable injury." The court opined that Bushman had not presented any evidence of medical opinion showing "causation between the accident and plaintiff's physical complaints." Concluding that objective expert evidence on the issue of causation was absent, the district court granted summary judgment in favor of defendant on all counts.*fn8

Plaintiff filed a motion for reconsideration of the order granting summary judgment, submitting what he viewed as new and material evidence supporting a finding of permanent injury. This additional proof was a letter dated November 29, 1979, from Dr. Kuhn. The report as submitted addressed only the question of permanency, an issue not reached by the trial court. Dr. Kuhn stated that Bushman had intermittent subjective pain in his calves. Although Dr. Kuhn suggested that this condition may be permanent, he made no reference to a correlation ...


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