On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-4989-03.
The opinion of the court was delivered by: Stern, P.J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Stern, Parker and Lihotz.
Plaintiff, Claudia Capilla, appeals from an order entered on February 16, 2005, dismissing her complaint for failure to satisfy the "limitation on lawsuit option" (frequently called the "verbal threshold"), under the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a. A similar summary judgment motion was denied as to plaintiff Cristina Pardo, and that matter was subsequently settled.*fn1
Plaintiff argues that she satisfied the threshold because "a herniated disc diagnosed through the use of an MRI, a bulging disc diagnosed through the use of MRI, and TMJ displacement diagnosed through MRI are all credible objective medical evidence of a permanent injury"*fn2 and because she "has illustrated the significant impact on her life that is causally related to her injuries." Because DiProspero v. Penn, 183 N.J. 477 (2005), decided after summary judgment was entered, held that there is no "serious life impact" prong of the threshold, the only issue before us relates to whether the record reveals objective medical evidence of a permanent injury and plaintiff's contention that "the trial judge improperly took judicial notice by finding that a herniated disc must also correlate with a positive EMG test at the same level in order for a permanent injury within a reasonable degree of medical probability to exist."
There is no dispute that an MRI of plaintiff's lumbar spine reveals a "[h]erniated disc at L1-L2 central and to the right extending to the right neural foramina," and that an MRI of plaintiff's cervical spine reveals a "bulge of the disc at C6- C7." In granting summary judgment dismissing the complaint as to Capilla, the motion judge stated:
Alright. I have reviewed the motion papers, the medical records and the deposition transcripts that have been attached as well as counsel's argument.
While I appreciate counsel for the plaintiff's argument about cracking the door, I think you need to do a little bit more than that and in this situation, unlike [Cristina] Pardo where I find that the treatment, the findings and the injury and the surgery tie in directly with her limitations, I do not find in this situation that there is objective credible evidence of a serious permanent injury.
Even assuming that there were[,] in reviewing the lifestyle impact and reviewing the deposition transcripts once again, the blanket assertion as to limitations on sexual activities, it's not the same as [Cristina] Pardo. Hers is more direct and more resulting from the actual surgical procedure and I don't believe that even if I'm wrong on the objective permanent serious injury, I don't believe there's a significant enough lifestyle impact for Claudia Capilla considering all the other activities that she's still able to do.
The summary judgment must be reversed because the motion judge gave no reasons for his conclusion that there was no "objective credible evidence of a serious permanent injury," despite the claims of plaintiff which include the reference to the MRIs. See R. 1:7-4(a). However, the parties seem to agree that the following colloquy during argument of the motion embodied the judge's reasoning:
THE COURT: [T]he herniated disk was found on an MRI at L-1 L-2. Was there any additional testing that shows any limitations or symptoms as a result of that herniated disk?
[PLAINTIFF'S COUNSEL]: Judge, I believe in this case, if I'm not mistaken, I may be confusing the two. There was ...