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Walsh v. Transit


January 25, 2008


On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-1684-04.

Per curiam.


Submitted January 14, 2008

Before Judges Lintner and Sabatino.

Plaintiff, Mary Walsh, was allegedly injured while a passenger in a bus operated by Princeton Airporter Service and driven by its employee, Charles Fisher, when it was struck in the rear by a vehicle driven by defendant Randy Heller. Liability was admitted and the matter was tried to a jury on the issues of non-economic, pain, suffering, and inconvenience damages under the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. The jury returned its verdict, finding that plaintiff had not "proven by a preponderance of the credible evidence that she sustained a permanent injury that was proximately caused by the October 9, 2002 accident."

Plaintiff does not appeal from the judgment entered following the jury verdict.*fn1 Instead, she appeals from the denial of two pretrial in limine motions.*fn2 In the first application, relying on Ingersoll v. Aetna Cas. & Sur. Co., 138 N.J. 236 (1994), and N.J.S.A. 2A:15-97, plaintiff sought to introduce into evidence $10,000 in medical bills that were paid by her automobile insurance carrier under its extended medical benefits coverage provided in compliance with N.J.A.C. 11:3-7.3(b). N.J.S.A. 2A:15-97 allows a plaintiff to introduce medical bills subject to a deduction from any award that duplicates the benefits received by plaintiff from sources other than the tortfeasor. In her second pretrial motion, plaintiff sought to have the trial judge take judicial notice that she had met the verbal threshold, based solely upon the physician's certification filed by her pursuant to N.J.S.A. 39:6A-8a.

We agree that the judge mistakenly denied plaintiff's application to introduce the medical bills based upon the procedure set forth in N.J.S.A. 2A:15-97. However, we conclude that the error was harmless. The judge correctly denied plaintiff's motion to deem that she satisfied the lawsuit threshold. Accordingly, we affirm.

On October 9, 2002, plaintiff was being transported to the airport where she was to board a flight to Texas. There were two other passengers on the shuttle. One passenger was seated in the aisle seat of the bench directly behind plaintiff and the other passenger was seated behind the driver in the front row. Plaintiff testified that she was in the front passenger side seat and was not wearing a seatbelt because her seat did not have one. Fisher, however, testified that plaintiff was seated in the second or third row.

While the bus was stopped for traffic at the intersection of Routes 130 and 32, Fisher "felt a bump in the back of the shuttle." According to defendant, he was driving two to three miles per hour when he "inch[ed] forward and hit the bumper" of the shuttle. Plaintiff testified that the bus was slammed from behind. She put one hand up to stop herself from going forward into the Plexiglas in front of her, and used the other hand to protect her glasses in the event that she fell. Her hand struck the Plexiglas partition and she felt like she "jammed something" in her shoulder and neck. She did not fall out of her seat or lose consciousness and her glasses did not fall off her face. She did not suffer any cuts, bleeding, or bruising.

Fisher testified as a defense witness. After the accident, he pulled the shuttle to the side of the road, where he exchanged information with defendant. However, defendant claimed that no information was exchanged because neither he nor Fisher observed any damage. Although Fisher wrote in his accident report that the bus suffered damage to its "rear bumper and right rear panel," he testified that he found no damage on the rear of the shuttle or the front of defendant's car and got back in the bus. Five photographs of the rear of the shuttle were introduced into evidence by defendant. They showed little or no damage.

After the accident, plaintiff continued on the bus until it reached the airport, where she boarded her flight to Texas. She stated that she felt "[d]izzy [and] anxious" during the remainder of the bus ride, and experienced soreness in her neck, shoulder, and back. Plaintiff said that she told Fisher that she had neck, shoulder, and back pain, but did not ask him to call for an ambulance.

Plaintiff remained in Texas until October 14, during which time she was "dizzy" and experienced pain in her neck, shoulders, and lower back. However, in an effort not to "ruin" her daughter's graduation, plaintiff did not seek medical treatment while in Texas. Upon returning from Texas, plaintiff contacted her attorney and then called the South Brunswick Police Department to see if a report had been filed, which it had not. Plaintiff filed a report with the South Brunswick Police Department on October 17, noting in the report that she suffered upper back, shoulder, and lower back injuries. She did not report at that time any wrist, hand, or arm injuries, testifying that she did not experience wrist or hand pain until eight weeks after the accident.

On October 15, plaintiff sought medical treatment at Hamilton Health Care (Hamilton). There, she received heat packs, underwent x-rays, and was administered chiropractic treatment. Plaintiff went to Hamilton once a week for her first three visits, and went twice per week thereafter for about seven months. During that time, she felt pain in her neck, back, shoulder, and arm. After finishing her treatment with Hamilton on May 1, 2003, she consulted with a Dr. Aita from Mercer Orthopedics, Dr. Robert Dunn, Dr. Michael Grenis, and her family doctor, Dr. Cudrup.

Plaintiff did not take any days off from work as a result of the accident. She testified that she experiences numbness in both hands, which first began about eight weeks after the accident. She testified that she sometimes experiences pain in her shoulder and neck. She described that she starts her workday with both hands on the computer. Once one of her hands goes numb, she uses the other until that hand goes numb, at which point she switches back to the hand she used first. Plaintiff testified that she is unable to pick up or bathe her dog, vacuum, wash dishes, scrub the floor, style her hair, fasten her bra, tie her shoes, take long walks, garden, take out trash, or fasten her seatbelt.

Plaintiff was cross-examined at length regarding her medical history. In August 2001, plaintiff suffered a mini stroke, though she stated that none of her symptoms from the stroke are related to the accident. In the 1960s, plaintiff was involved in a car accident in which she injured her left arm. On cross-examination, defense counsel brought out that plaintiff denied at depositions and in interrogatories having had prior accidents, other than the October 1960 automobile accident. She did not remember a September 18, 1990, fall that caused injuries to one of her fingers on her left hand and hip joint. She did recall an October 13, 1995, car accident where she injured her lumbar spine, requiring treatment by a chiropractor. Plaintiff also fell in the garden on May 22, 1999, injuring her right arm and right knee. She did not remember injuring her right elbow in a fall on July 11, 2000.

On May 7, 1990, plaintiff injured her right thumb while gardening. X-rays were taken of her lower back on March 26, 1994, and she injured her thumb while cutting something on Thanksgiving in 1996. She pulled a muscle in her back on April 29, 1997, and sought treatment for a "burning feeling in both arms" on June 5, 1998. She complained to her family doctor of "tingling in [her] hands" on October 1, 1999, "numbness . . . in both hands" on November 1, 2000, and "pins and needles in both hands" on August 28, 2001. Plaintiff claimed she failed to mention any of her medical history in response to interrogatories or deposition questions because she "thought that they were insignificant things."

We first address plaintiff's assertion that the judge abused his discretion by denying plaintiff's motion to present to the jury documentation of her past medical expenses. At the pretrial motion, defense counsel pointed out that, in answers to interrogatories, plaintiff answered "[n]ot applicable" when asked whether there were any medical expense claims. Plaintiff's counsel noted that, as an amendment to interrogatories, defense counsel was sent a lien letter plaintiff received from her insurance company. At one point, plaintiff's counsel implied that plaintiff may have to pay back an Employee Retirement Income Security Act (ERISA) lien. However, in response to the trial judge's inquiry, plaintiff's counsel indicated that he only represented plaintiff not the insurance company. He explained that he wanted to introduce the medical bills paid for the purposes of her pain and suffering case, conceding that under the applicable statute the amount that was paid would be fully deducted from any award plaintiff received from the jury.

N.J.S.A. 39:6A-12, of our No Fault Compulsory Automobile Liability Insurance Law precludes the admission of "evidence of the amounts collectible or paid" under Personal Injury Protection (PIP) benefits coverage. N.J.S.A. 39:6A-4 mandates PIP coverage where bodily injury is sustained "as a result of an accident while occupying, entering into, alighting from or using an automobile." (Emphasis added). An "automobile" is defined as "a private passenger automobile . . . that is owned or hired and is [not] used as a public or livery conveyance for passengers." N.J.S.A. 39:6A-2a. As a bus passenger, plaintiff was ineligible for PIP coverage under her automobile policy.

However, as a passenger in the bus, plaintiff's automobile insurance policy covered her with $10,000 in extended medical expenses benefits (Med Pay), pursuant to N.J.A.C. 11:3-7.3(b).*fn3

See Ingersoll, supra, 138 N.J. at 239 (holding that Med Pay benefits "are a creature . . . of a regulation promulgated under legislative authority by the Commissioner of Insurance"). Med Pay is not a benefit precluded from introduction into evidence by N.J.S.A. 39:6A-12 of our No Fault law. The applicable statute is N.J.S.A. 2A:15-97.

N.J.S.A. 2A:15-97, commonly known as the "collateral source rule," states that in civil actions, except those brought pursuant to the No-Fault Law, "if a plaintiff receives or is entitled to receive benefits for the injuries allegedly incurred from any other source other than a joint tortfeasor, the benefits . . . shall be disclosed to the court and the amount thereof which duplicates any benefit contained in the award shall be deducted from any award recovered by the plaintiff." Additionally, "[a]ny party to the action shall be permitted to introduce evidence regarding any of the matters described in this act." N.J.S.A. 2A:15-97. In enacting N.J.S.A. 2A:15-97, "the Legislature's essential concern was with insurance-type benefits." Kiss v. Jacob, 138 N.J. 278, 282 (1994). The purpose of the collateral source rule was to "eliminate[] double recovery" and shift the burden of spiraling insurance costs from the liability carriers to the casualty insurers. Perreira v. Rediger, 169 N.J. 399, 418 (2001). As such, the first party insurer providing the medical benefit is not entitled to subrogate against the tortfeasor. Ibid.

The $10,000 Med Pay benefits paid to plaintiff's doctors by her automobile insurer come within the procedural application of the collateral source statute. Accordingly, the evidence of plaintiff's medical expenses should have been admitted into evidence subject to deduction of the same amount from the jury award. Plaintiff's automobile insurer has no right under the collateral source rule to subrogate against defendant, and plaintiff concedes that the entire $10,000 medical benefits paid by her automobile insurer would have been deducted from any award. The medical bills are not in and of themselves evidence of permanent injury. Therefore, the failure to have the jury consider those medical expenses as procedurally directed by the collateral source statute was harmless.*fn4

Additionally, plaintiff asserts, for the first time on appeal, ERISA preempts the provisions of N.J.S.A. 2A:15-97 that preclude subrogation. She posits that because certain medical expenses sought by her were paid by Core Source, an ERISA based health care insurer, she is obligated to reimburse Core Source from any recovery. See, e.g., Danowski v. United States, 924 F. Supp. 661, 672 (D.N.J. 1996) (N.J.S.A. 2A:15-97 is preempted by ERISA to the extent that it prevents an ERISA insurance plan from asserting its right to subrogation by reducing the amount of medical bills paid from the recovery awarded to a plaintiff.); see also Levine v. United Health Corp., 402 F.3d 156, 162 (3d Cir.), cert. denied, 546 U.S. 1054, 126 S.Ct. 747, 163 L.Ed. 2d 611 (2005).

However, plaintiff never maintained in her in limine motion that she was seeking to assert Core Source's subrogation interest against defendant. Instead, plaintiff's counsel expressly indicated, in response to the judge's inquiry, that he was not representing any interest other than plaintiff's. Indeed, in her appellate brief, plaintiff claims, as she did in the Law Division motion, that although she was not entitled to collect from defendant the $10,000 in Med Pay benefits paid by her automobile insurer, she should have been able to present evidence of those expenses to the jury. The purported ERISA subrogation claim of Core Source for medical payments was not raised in the trial court.*fn5 Generally, we will not consider an issue raised on appeal if the issue was not raised in the trial court unless it is jurisdictional or it "substantially implicate[s] public interest." State v. Walker, 385 N.J. Super. 388, 410 (App. Div.), certif. denied, 187 N.J. 83 (2006). Neither category applies here. We, therefore, decline to consider the issue. Nieder v. Royal Indemnity Ins. Co., 62 N.J. 229, 234 (1973).

Moreover, the facts concerning the amount of Core Source's purported subrogation right and its entitlement to such a claim under ERISA is beyond the record in this appeal. It is based purely upon conclusory statements of the brief writer. It is not entitled to our consideration. Our decision to forego consideration of the issue should not be interpreted as a determination by us as to the viability of any health care insurer ERISA subrogation claim in a future action for medical payments. This was not an action for medical bills, but instead one for non-economic loss under AICRA. We reject plaintiff's belated attempt to bootstrap certain medical bills not sought at the trial level to enhance her claim for non-economic pain and suffering damages that were rejected by the jury.

We next address defendant's contention that the judge erred by failing to take judicial notice that plaintiff met the verbal threshold based solely on her physician's certification. Plaintiff presented a physician's certification from Dr. Barry

D. Fass, M.D., stating in pertinent part:*fn6

Based upon the patient's reported history, my professional expertise and the findings in the attached report including reference to clinical findings and/or objective medical tests, it is my opinion that within a reasonable degree of medical probability [plaintiff] has sustained permanent injury that has not healed to function normally and will not heal to function normally with further medical treatment.

Plaintiff argues that the requirement under N.J.S.A. 39:6A-8(a) that a plaintiff file a physician's certification within sixty days of a defendant's answer satisfies the verbal threshold, thus entitling plaintiffs to submit their claims to a jury "without the necessity of presenting proof of piercing the verbal threshold." Plaintiff's contention is devoid of merit.

"The physician certification provision has two purposes: to supply evidence that a plaintiff has, in fact, sustained an injury that qualifies for recovery of non-economic damages under the new verbal threshold and, to provide a legal foundation for a charge of perjury, should false swearing later be shown." Casinelli v. Manglapus, 181 N.J. 354, 362 (2004); see also Watts v. Camaligan, 344 N.J. Super. 453 (App. Div. 2001). The opinion provided in the physician's certification is not conclusive evidence that the threshold has been met. Plaintiff still has the burden "to prove that the injury meets one of the threshold categories."*fn7 DiProspero v. Penn, 183 N.J. 477, 493 (2005). "[T]he certification is merely a statement of a conclusion, by a board certified physician, that the plaintiff has sustained an injury that falls within one of the categories of injuries in the statutory threshold." Rogozinski v. Turs, 351 N.J. Super. 536, 552 (2002). The factual basis of the certification and the conclusion reached by the physician may be challenged and should not simply be accepted as true. Id. at 551. "A jury has no duty to give controlling effect to any or all of the testimony provided by the parties' experts, even in the absence of evidence to the contrary." Amaru v. Stratton, 209 N.J. Super. 1, 20 (App. Div. 1985). Plaintiff's extensive prior history of similar injuries to that alleged in the subject litigation established a significant jury question respecting proximate cause. See Davidson v. Slater, 189 N.J. 166, 188 (2007).

The subject matter that may be judicially noticed is set forth in N.J.R.E. 201(a) and (b):

(a) Notice of Law. Law which may be judicially noticed includes the decisional, constitutional and public statutory law, rules of court, and private legislative acts and resolutions of the United States, this state, and every other state, territory and jurisdiction of the United States as well as ordinances, regulations and determinations of all governmental subdivisions and agencies thereof. . . .

(b) Notice of facts. Facts which may be judicially noticed include (1) such specific facts and propositions of generalized knowledge as are so universally known that they cannot reasonably be the subject of dispute, (2) such facts as are so generally known or are of such common notoriety within the area pertinent to the event that they cannot reasonably be the subject of dispute, (3) specific facts and propositions of generalized knowledge which are capable of immediate determination by resort to sources whose accuracy cannot reasonably be questioned, and (4) records of the court in which the action is pending and of any other court of this state or federal court sitting for this state.

Judicial notice of both law and fact is always discretionary, N.J.R.E. 201(c), except in the circumstance defined by N.J.R.E. 201(d), namely, "if requested by a party on notice to all other parties and if supplied with the necessary information." Of course, to be mandatory, the request of a party must be "properly presented." Biunno, Current N.J. Rules of Evidence, comment 6 on N.J.R.E. 201 (2007). Although

[t]he quantum of "necessary information" required under N.J.R.E. 201(d) is not specifically defined[, a] party requesting a judge to judicially notice matter allegedly within N.J.R.E. 201 must provide the judge with sufficient information for the judge to be able to determine that the matter actually does fall within the categories set forth in the Rule and that the matter is in fact noticeable.

[Biunno, Current N.J. Rules of Evidence, comment 13 on N.J.R.E. 201 (2007).]

The only judicial notice that could have been taken by the trial judge was that plaintiff filed the required certification, thus precluding an application by defendant to either dismiss her claim without prejudice or apply discovery sanctions. See Casinelli, supra, 181 N.J. at 365-66. No such application was made by defendant. Simply stated, plaintiff was not entitled to have the judge take judicial notice that she had satisfied the verbal threshold based solely on her physician's certification.

Consideration of the facts and conclusions forming the basis of plaintiff's expert opinion was for the jury to decide. It did not fall within the categories set forth by the N.J.R.E. 201. More importantly, the jury's finding, not challenged by plaintiff on appeal, that she failed to prove "by a preponderance of the credible evidence that she sustained a permanent injury . . . that was proximately caused by the [October 9, 2002] accident," is dispositive. The jury resolved the factual dispute whether defendant's negligence caused the alleged permanent injury against plaintiff.


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