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Juarez v. J.A. Salerno & Sons

July 21, 2005

GLENDA RETANA JUAREZ, PLAINTIFF-APPELLANT,
v.
J.A. SALERNO & SONS, JAMES A. SALERNO, AND BALTAZAR ALVARADO MARTINEZ, DEFENDANTS-RESPONDENTS.



On appeal from the Superior Court of New Jersey, Law Division, Civil Part, Mercer County, L-1538-01.

The opinion of the court was delivered by: Kestin, P.J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Submitted November 9, 2004

Before Judges Kestin, Fuentes and Falcone.

Plaintiff appeals from trial court orders entered on July 29 and September 26, 2003, granting the respective defendants' motions for summary judgment and dismissing her personal injury claims against them. We affirm.

The accident giving rise to the claims occurred on August 7, 1999. Plaintiff was a passenger in a motor vehicle owned and operated by defendant Martinez, which collided with a vehicle driven by defendant James Salerno after the latter vehicle had run a stop sign.

The motions for summary judgment were based on the verbal threshold contained in N.J.S.A. 39:6A-8(a), a provision of the Automobile Insurance Cost Reduction Act of 1998 (AICRA or "the Act"), N.J.S.A. 39:6A-1.1 to -35. Defendants contended, inter alia, that plaintiff's injuries did not satisfy statutory requirements for prevailing on a claim for non-economic injuries. We view the factual allegations, as the trial court was obliged to do in evaluating the motions for summary judgment, in the light most favorable to the non-movant, plaintiff. See Brill v. Guardian Life Ins. Co., 142 N.J. 520, 540 (1995)

At the time of the accident, plaintiff was taken to a hospital. She complained of pain in her neck, whole back, face, and shoulders. X-rays were normal. A physical examination in the emergency room revealed contusions on plaintiff's face and chest, with shoulder pain referred by the neck.

An initial examination conducted thereafter by a neurologist at plaintiff's behest resulted in a finding of "post-traumatic lumbar sprain/strain injury." The physician was, at the time, unable to exclude bilateral lumbar radiculopathy and lumbar facet syndrome. However, as noted by the trial court, a subsequent "needle EMG disclosed evidence of bilateral lumbosacral radiculopathy, suggestive of acute denervation and with subacute [reinnervation]." A chiropractic evaluation on behalf of plaintiff resulted in diagnoses of "cervical sprain strain with vertebrogenic pain pattern[;] . . . thoracic sprain strain complex[;] . . . right cheek burn[;] . . . left sided L5/S1 radiculopathy[;] . . . post traumatic stress syndrome, with associated nervousness, fatigue, depression and anxiety[;] . . . lumbar sprain strain[; and] . . . right shoulder contusion." An MRI study of plaintiff's lumbar region had disclosed no abnormalities. The reports of plaintiffs' physicians also contained opinions regarding causation and permanency.

A defense examination by a neurologist disclosed the existence of "neurological impairment for sciatic radiculitis . . . which is very mild but definite and . . . causally related to the accident." The defense expert acknowledged that these injuries "restrict the functioning of [plaintiff's] body and its members[.]"

After setting out the objective showings, along with plaintiff's subjective complaints and her allegations of the effect her injuries had had on her everyday activities, Judge Sapp-Peterson decided the motions for summary judgment adversely to plaintiff on the basis that she had made no adequate prima facie showing of a qualifying injury, i.e., objective credible medical evidence of a serious and permanent injury within the descriptive parameters of the Act. The judge concluded that "[i]n the present matter, plaintiff's injuries fall short[.]" She noted that X-rays of [plaintiff] taken at the emergency room . . . following the accident[] were negative for fractures and showed no loss of lordotic curve. The ER room physician diagnosed plaintiff with neck and back contusions. Plaintiff's treatment was limited to chiropractic care for a period of three months. At the end of three months, the range of motion for cervical spine was 83 percent to 100 percent. As to her lumbar spine, the area alleged to have suffered permanent injury, plaintiff's range of motion exceeded normal limits.

In addition, an MRI of plaintiff's lumbar spine revealed no such musculoskeletal injury or nerve root involvement, and was essentially normal. The imaging revealed no herniations, spasms, or bulges. The injuries observed by the neuro-psychiatrist are not definitive and, indeed, . . . observations which are suggestive of a condition do not satisfy the verbal threshold.

The judge went on to determine, also, that "[t]here is insufficient evidence . . . of a structural injury to support ...


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