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Ponte v. Overeem

February 27, 2002


On certification to the Superior Court, Appellate Division, whose opinion is reported at 337 N.J. Super. 425 (2001).

The opinion of the court was delivered by: Per Curiam

Argued November 27, 2001

In this appeal we consider whether plaintiff, Robert Ponte, may recover for pain and suffering damages under the Tort Claims Act, N.J.S.A. 59:1-1 to 59:12-3. At issue is whether an injury to plaintiff's right knee requiring arthroscopic surgery satisfies the threshold requirement under that Act. N.J.S.A. 59:9-2d. The Appellate Division reversed an order granting summary judgment for defendants, holding that plaintiff had raised a factual issue concerning whether his knee injury constituted a "permanent loss of a bodily function that is substantial." Gilhooley v. County of Union, 164 N.J. 533, 541 (2000). We now reverse.


On March 8, 1995 while driving westbound on the helix leading from the Lincoln Tunnel, plaintiff's car stalled because of an electrical malfunction. There was no shoulder where plaintiff could pull over safely, so his car remained where it stalled in the far right traveling lane. Shortly thereafter, a New Jersey Transit bus traveling in the far right lane rear-ended his car. The impact caused the back of plaintiff's driver's seat to break and his right knee to strike the dashboard.

Following the accident, plaintiff was admitted to the St. Clare Riverside Medical Center complaining primarily of pains in his neck and in his right lower leg. The treating physician diagnosed a cervical sprain and a contusion on his right leg. Plaintiff was discharged from St. Clare on the same night.

On March 9, 1995, the day following the accident, plaintiff came under the care of Dr. David J. Feldman, an orthopedic surgeon. Dr. Feldman's initial examination of plaintiff revealed "marked decreased motion of the cervical spine" and "abrasions and resolving contusions over the right tibia." Knee, hip and ankle examinations were negative, indicating no neurological deficits. Dr. Feldman recommended a soft collar, medication and limited physical therapy.

When Dr. Feldman saw plaintiff on April 13, 1995, plaintiff complained primarily of stiffness in his neck and pain in his back. However, plaintiff also complained of some locking and clicking in his right knee and pain in the medial area, the side of the knee closest to the other knee. He also had positive responses to pain tests. Dr. Feldman determined that the "right knee had signs of internal derangement" and there was probably a tear of the meniscus.*fn1 He recommended continuation of the exercise program and medication.

On April 19, 1995, plaintiff had an MRI that revealed a small joint effusion and a small tear in the posterior horn of the medial meniscus. The MRI additionally revealed that the medial and lateral collateral ligaments were intact, as were the quadriceps tendon and the patellar ligament. The posterior and cruciate ligaments also were intact.

Plaintiff was again reevaluated on April 27, 1995 when he complained of ongoing pain in the right knee. At that time, Dr. Feldman indicated that plaintiff had "increasing symptoms with activities." Based on those increased symptoms and lack of improvement, Dr. Feldman recommended arthroscopic surgery on the right knee.

On June 25, 1995, plaintiff again was admitted to St. Clare after he fell over his handlebars while riding his mountain bike. During that admission to St. Clare, plaintiff complained of back and groin pain.

On June 30, 1995, less than one week after his biking accident, plaintiff underwent arthroscopic partial medial menisectomy, partial synovectomy and chondroplasty of the patella in the right knee. The purpose of the surgery was to repair the small tear of the medial meniscus and treat the synovitis of the plica band and the Grade 2 chondromalacia of the patella. In his post-operative report, Dr. Feldman noted that plaintiff had "tolerated the procedure well." Plaintiff saw Dr. Feldman for a post-operative visit on July 5, 1995. Dr. Feldman noted that plaintiff was "doing well" and that the "[k]nee motion was almost full with minimal pain."

Dr. Feldman reevaluated plaintiff on August 17, 1995 and indicated that the knee had only "slight tenderness." He also noted that plaintiff again was exercising and had returned to work. Plaintiff saw Dr. Feldman on September 13, 1995 after he experienced some pain in the medial side of the knee while squatting and putting on a bicycle tire. Dr. Feldman determined that there was still some tenderness but that there was no instability or swelling. Plaintiff also had negative responses to pain tests. Dr. Feldman diagnosed medial collateral ligament strain and mild hamstring tendonitis, and prescribed local injection and anti-inflammatory medication.

Plaintiff next saw Dr. Feldman on December 11, 1995, complaining of ongoing pain in his right knee. Dr. Feldman prescribed local injections, stretching, ice, and anti-inflammatory medication. Dr. Feldman saw plaintiff again on January 29, 1996 and noted that plaintiff had improved. Specifically, Dr. Feldman noted that the "knee had done well with minimal tenderness noted [and] slight ...

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