September 28, 2007
DUANE JEFFERSON, PLAINTIFF-APPELLANT,
CONRAD MUSCARELLA AND MICHAEL MUSCARELLA, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Essex County, L-5333-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 13, 2006
Before Judges Collester and Sabatino.
Plaintiff Duane Jefferson filed suit on July 1, 2004, alleging personal injuries to his back and neck resulting from an automobile accident in Verona on July 29, 2002. According to the police report, plaintiff was seated in his car which was parked on Lakeside Avenue when it was struck by an automobile driven by defendant Conrad Muscarella, who admitted he was talking on his car phone at the time.
Plaintiff was taken from the accident scene to Mountainside Hospital where he was treated and released. Two days later he complained to his personal physician of pain in his back, neck and leg, and he was referred to Dr. Michael A. Corey, a chiropractor. Dr. Corey's findings were that plaintiff experienced pain and spasm in both his cervical and lumbosacral regions. Dr. Corey treated plaintiff with manual manipulation, hydrotherapy, and electrical stimulation therapy once a week for approximately four to five months. He also prescribed Percocet for pain. Plaintiff did not return to work until six months after the accident.
During the time he was treated by Dr. Corey, plaintiff underwent a nerve conduction study by needle electromyography performed by Dr. Enrique Hernandez, whose report indicated bilateral lumbar radiculopathy at the L5 level and bilateral upper dorsal radiculopathy. Plaintiff also had an MRI performed on August 3, 2002. The report from Dr. Stephen J. Conte, the radiologist, stated the MRI of the cervical spine gave the following impression:
1. Varying degrees of diminished signal intensity of the discs throughout the cervical spine resulting from a slight degree of intrinsic desiccation of the disc material.
2. Slight straightening of the normal lordotic curvature of the cervical spine suggestive of muscle spasm and cervical myalgia. Correlation with the patient's clinical status is required to determine the significance of this finding.
The report also denoted the following impression of the lumbar spine:
1. Posterior disc herniation at L4-L5.
2. Straightening of the normal lordotic curvature of the lumbar spine suggestive of muscle spasm and lumbar myalgia. Correlation with the patient's clinical status is required to determine the significance of this finding.
Dr. Corey's report, dated January 22, 2004, set forth the following diagnosis:
The patient has sustained acute sprains or strains to the cervical and lumbar spine as well as permanent disc damage . . .
Mr. Jefferson suffers from a severe traumatic cervical and lumbar sprain with resultant radiculopathy.
These injuries are accompanied by ligamentous instability, myositis and localized evidence of nerve root irritation.
Ligament and muscle tissue appeared myositic and displayed chronic spasm . . .
Varying degrees of diminished signal intensity of the discs throughout the cervical spine resulting from a slight degree of intrinsic desiccation of the disc material. Slight straightening of the normal lordotic curvature of the cervical spine suggestive of muscle spasm and cervical myalgia. Correlation with the patient's clinical status is required to determine the significance of this finding. Posterior disc herniation at L4-L5. Straightening of the normal lordotic curvature of the lumbar spine suggestive of muscle spasm and lumbar myalgia. Correlation with the patient's clinical status is required to determine the significance of this finding.
These injuries are of a permanent nature because the soft tissue injuries heal with scar tissue which is neither as elastic nor resilient as its undamaged counter parts (sic). Also, there is a possibility of future need for disc herniation surgery. However, conservative treatment (ie.) exercise programs and chiropractic care was currently opted for. The surgical option was discussed with Mr. Jefferson at length and will be considered if the pains gets unbearable.
Dr. Corey's prognosis was that because plaintiff suffered significant limitation of the use of his cervical spine and lower back he would have difficulty performing his usual daily activities and job requirements without pain:
In this type of injury, the soft tissue components, such as muscles, tendons and ligaments heal with scar tissue which will never be as flexible or elastic as their original counterparts.
This permanent restriction of the range of motion of the neck and low back region will result in significant limitation of use of his cervical and lumbosacral spine, which will no longer be able to function in a normal manner as it did prior to the auto accident. Mr. Jefferson was last seen by me with the following complaints:
Mr. Jefferson has injuries to his cervical and lumbar spine, which is traumatic in nature. Mr. Jefferson has severe pain in his neck. This pain in the neck region is a severe strain/sprain.
He has severe pain in his back. This pain in the back region is a severe sprain strain. He continued to be bother by pain to the back.
As a direct result of the traumatic injury sustained by Mr. Jefferson on 07/29/02, there were extremes of joint movement with concomitant stretching and tearing of the ligamentous structure of the cervical and lumbar regions. It appears that this area will be permanently weakened for an indefinite period of time resulting in significant and permanent restricted mobility.
From all the findings known and from reevaluation after several office visits, it is our conclusion that Mr. Jefferson has suffered a permanent partial disability as a result of the accident of 07/29/02. We feel that while continued therapy and treatment is essential, prognosis for recovery is poor.
Dr. Corey then opined that to a reasonable degree of medical certainty, plaintiff's signs and symptoms were causally related to the accident:
[A]s a result of this accident, Mr. Jefferson has sustained the injuries noted with the significant limitations noted. In all medical certainty, he will suffer acute serious flare-ups of these conditions in the future which may necessitate further care such as surgical intervention of the discs.
Defendants moved for summary judgment, asserting that plaintiff failed to surmount the limitation on lawsuit threshold. After oral argument on May 12, 2006, the motion judge granted the motion, holding that the report of Dr. Corey was a net opinion insufficient to satisfy the requirements of the verbal threshold statute. Moreover, in reviewing the MRI and electrodiagnostic test, the judge stated that although the impressions were of bilateral lumbar radiculopathy at the L5 level and R/O bilateral upper dorsal radiculopathy, the reports of these tests did not address either permanency or causation, which was left to the report of Dr. Corey. The judge was extremely critical of that report.
[T]he Court finds that the report is replete with errors, directly contradicts the factual statements stated . . . by the plaintiff in his deposition. And his diagnosis is pretty much all over the place. He says the injuries are of a permanent nature, without specifying what they are.
He says the reason is . . . because soft tissue injuries will heal with scar tissue, which isn't as elastic. Which is not quite the same thing as saying that he knows, within a reasonable degree of chiropractic certainty, that this was caused by the accident and explain why and that it's permanent and it cannot be fixed. And while he does use the word permanency all over the place, at the end of the day, he says he thinks it can be fixed with surgery.
Now, again, I don't know whether he's competent to say that it can be fixed with surgery. I don't know if it can be fixed with surgery if it could possibly be permanent. The idea of permanency is something that cannot be fixed with further medical intervention. But the real problem that I have with this report, apart from the fact that it's replete with errors, is that when it comes to causation, it is completely a net opinion.
Now, I am not stating here that the motion that was filed here was a slam dunk. I do believe it could have been rebutted by an opposing certification from somebody, perhaps even Dr. Corey, expanding on his net opinion that was attached as Exhibit G. But that was not done in the case.
[T]he Court was asked to rely on the MRI report and the electrodiagnostic test. And basically asked for the Court to read it -- read it myself and for me to issue a medical opinion that, based on my review of the MRI report and based on my review of the electrodiagnostic test that I am concluding that this was caused by the accident and that it is permanent in nature. And I think that . . . goes completely beyond the role that the judge is supposed to play in these kinds of cases.
We agree with the motion judge that Dr. Corey's report was hardly a model. Certainly, it was redundant in repeating the radiologist's findings word for word, including the phrase "clinical correlation is needed" without explicitly doing the correlation. However, Dr. Corey's report did recite numerous abnormal findings from his clinical examination that were confirmed by the MRI and electrodiagnostic tests to justify his opinion of a permanent injury caused by the accident.
Accordingly, we disagree with the conclusion of the motion judge that Dr. Corey's report was a net opinion. Under the net opinion rule, an opinion lacking facts and data and consisting of bare conclusions unsupported by factual evidence is inadmissible. Johnson v. Salem Corp., 97 N.J. 78, 91 (1984); Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). The rule requires an expert "to give the why and wherefore" of his or her opinion rather than a mere conclusion. Jimenez v. GNOC Corp., 286 N.J. Super. 533, 540 (App. Div.), cert. denied, 145 N.J. 374 (1996). In this case the expert relied upon the MRI report and the EMG/NCS electrodiagnostic test as well as his clinical observations as grounds for his opinion that the injuries suffered by plaintiff are permanent and causally related to the accident. The persuasiveness and quality of the opinion is, of course, subject to examination at trial, and Dr. Corey's opinion may still be excluded as a net opinion if he fails to make the connections necessary to substantiate his opinion.
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