September 17, 2007
MICHAEL MOREL, PLAINTIFF-APPELLANT,
MRUGESHBHA D. PATEL, DINESHBHA PATEL, MICHAEL CECERE, III, DAWN K. JOSEPH AND DEXTER A. JOSEPH, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Essex County, L-2031-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted August 29, 2007
Before Judges A. A. Rodríguez and Parrillo.
Plaintiff Michael Morel appeals from the summary judgments entered on June 23, 2006, October 20, 2006, and November 17, 2006, dismissing his claims against defendants Mrugeshbha D. and Dineshbha Patel; Michael Cecere, III; Dawn K. and Dexter A. Joseph. We affirm.
The claims arise out of a four-vehicle accident, which occurred on the westbound lane of Route 280 in Orange on March 23, 2004. Morel was stopped in traffic when his vehicle was struck from the rear by the Patel vehicle, which was struck from the rear by the Cecere vehicle. The Joseph vehicle was the fourth car in line. Mrs. Joseph reported at the scene that the collision between the Cecere, Patel and Morel vehicles had already occurred before she became involved. Joseph explained that she came upon the accident, but was unable to stop her car in time to avoid striking the Cecere vehicle.
The basis for the dismissal was the judge's conclusion that Morel had failed to meet the limitation on lawsuit threshold set by N.J.S.A. 39:6A-8(a). It is undisputed that Morel chose that option. Therefore, all defendants moved for summary judgment on that basis. Morel opposed the motions.
The relevant evidence presented to the motion judge can be summarized as follows. Morel did not seek medical treatment immediately after the accident. The next day he was examined and treated at the Newark Rehabilitation Center. He complained of lower back, neck, right shoulder, and right knee pain and discomfort. X-rays of the lumbar and cervical spine, his right shoulder, and right knee were taken two weeks after the accident. All x-rays revealed normal findings. Morel underwent "a program of progressive physical therapy" at the Newark Rehabilitation Center until June 2004, about nine weeks after the accident.
Six months after the accident, Morel underwent MRI testing of his right shoulder and right knee. These tests revealed degenerative findings "with some associated bone edema possibly related to trauma" in the right shoulder. The right knee's MRI revealed findings "compatible with tendon sprain or intrasubstance tear."
Morel submitted the report of I. Ahmad, M.D., an orthopedic surgeon. Dr. Ahmad reported pain and limitations of motion based on Morel's subjective complaints. Dr. Ahmad also observed that Morel's cervical and lumbar spines were spastic. Dr. Ahmad referred to the MRI reports, noting that they revealed degenerative changes of the right shoulder and a tear of the quadriceps of the right knee.
Dr. Ahmad's report listed the following diagnoses: cephalalgia; spinal sprain; sprain and injury of right shoulder and right knee; tear of quadriceps tendon of right knee; and arthritis and myositis. He then opined that "[a]s a result of this accident, [Morel] has suffered from significant permanent injuries."
Morel also presented the report of Robert T. Latimer, M.D., a psychiatrist. Dr. Latimer reported that Morel complained of physical pain and feelings of anxiety. Dr. Latimer opined that Morel suffered from permanent "depression" and "pain."
The motion judge found that the reports of Morel's medical experts were insufficient to overcome the lawsuit threshold because they were "net opinions." In ruling on the motion for summary judgment filed by the Josephs, the judge said:
[M]y decision was that essentially the doctors' reports were a net opinion because . . . there [were] a couple of statements.
One was that -- that the injuries to the affected body parts are permanent in nature. Well, clearly that's net because some of the injuries encompassed by that statement were not . . . permanent, by the doctor's own report, and did not indicate which specifically were permanent or they thought that were permanent.
And the other problem was with regard to causation, that there was no apparent indication that those -- even if the injuries were permanent, that they were caused by this particular accident.
And, for both those reasons, summary judgment was granted.
On appeal, Morel contends that Dr. Ahmad's report is not a "net opinion" and that he "should have been given the appropriate favorable inferences." We disagree.
It is settled that an expert's opinion will be based upon "facts or data." N.J.R.E. 703. Those facts or data may be admissible, as long as they are of a type "reasonably relied upon by experts in the particular field." Ibid. The basic rule is that "an expert's bare conclusions, unsupported by factual evidence, is inadmissible." Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). See also Jimenez v. GNOC Corp., 286 N.J. Super. 533 (App. Div. 1996), certif. denied, 145 N.J. 374 (1996) ("When an expert's opinion is merely a bare conclusion unsupported by factual evidence, i.e., a 'net opinion,' it is inadmissible. In essence, the net opinion rule requires an expert witness to give the why and wherefore of his expert opinion, not just a mere conclusion.") (citation omitted); Dawson v. Bunker Hill Plaza Assoc., 289 N.J. Super. 309, 323 (App. Div. 1996), certif. denied, 146 N.J. 569 (1996) ("expert testimony is excluded if it is based merely on unfounded speculation and unquantified possibilities") (citation omitted). Supporting data and facts are vital to an expert's opinion "when the opinion is seeking to establish a cause and effect relationship." Rubanick v. Witco Chem. Corp., 242 N.J. Super. 36 (App. Div. 1990).
A physician's certification of permanency does not in and of itself defeat a motion for summary judgment. Rios v. Szivos, 354 N.J. Super. 578, 580 (App. Div. 2002). In order to meet the threshold, a plaintiff must prove by objective, credible evidence that she/he has a permanent injury. The finding must be based upon something more than subjective complaint of pain or conclusive assertions which merely parrot the statutory language. Oswin v. Shaw, 129 N.J. 290, 319-20 (1992).
The opinion of Dr. Ahmad that Morel sustained permanent injuries is unsupported by the MRI reports. As for Dr. Ahmad's other finding that Morel suffered from restricted ranges of motion, we note that these are not objective, but based on Morel's subjective complaints. See Chalef v. Ryerson, 277 N.J. Super. 22, 37 (App. Div. 1994) ("[S]ubjective complaints will not suffice to satisfy the requirements of the statute."). Spasm is an objective finding. However, a spasm by itself cannot defeat a summary judgment application. See Jacques v. Kinsey, 347 N.J. Super. 112, 120 (Law Div. 2001) ("A muscle spasm is not generally a permanent condition, nor is it by its nature indicative of a permanent condition. Rather, it is generally a temporary problem . . . .").
From our careful review of the record, we conclude that the proofs do not establish, by the objective credible evidence, that Morel has met the verbal threshold or limitation on lawsuit standard. Thus, Morel cannot recover damages for "non-economic loss." N.J.S.A. 39:6A-8(a).
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