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Andriolo v. Castaldo


February 5, 2008


On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-3026-04.

Per curiam.


Argued January 15, 2008

Before Judges Winkelstein and Yannotti.

In this verbal threshold appeal, plaintiffs challenge the Law Division's dismissal of their complaint on summary judgment. The judge granted summary judgment because plaintiff Dianne Andriolo*fn1 failed to provide a comparative analysis, pursuant to Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993), of the injuries she sustained in a 2003 motor vehicle accident with the injuries she sustained in a 1993 motor vehicle accident. Because we conclude that no comparative analysis was necessary, we reverse.

On January 19, 2003, plaintiff's vehicle was stopped in traffic when defendant Jaclyn Castaldo drove a vehicle into the rear end of plaintiff's vehicle. After experiencing pain in her low back and right thigh, plaintiff began treatment with Dr. Gregory Quille, a chiropractor, on January 22, 2003. She complained of lumbar spine pain, right lower extremity involvement, cervicothoracic spine pain, and headaches. Dr. Quille made an initial diagnosis of: 1) lumbar spine sprain/strain; 2) lumbosacral spine strain; 3) radicular syndrome lower limb; 4) muscle spasm; 5) thoracic spine pain; 6) cervicothoracic spine strain; and 7) headaches. In his initial report, Dr. Quille noted that plaintiff was "last treated in this facility for MVA related injuries 10/93 through 5/94."

Dr. Quille treated plaintiff for lumbar spine pain on fourteen occasions between February 11, 2003 and February 4, 2004, when he discharged her. His discharge diagnosis was: 1) lumbar spine sprain/strain; 2) L3-L4 disc syndrome; and 3) "radiculopathy right." In his February 4, 2004 prognosis, Dr. Quille wrote that "results of findings from this office and results of tests and findings from other facilities indicate [plaintiff's] injuries to be directly related to an 01/19/03 motor vehicle accident. These injuries are significant, limiting and have caused permanent loss of use and function to the lumbar spine." On February 19, 2004, Dr. Quille certified that it was his opinion that "within a reasonable degree of medical probability, [plaintiff] has sustained permanent injury that has not healed to function normally with further treatment."

An x-ray of plaintiff's lumbar spine on January, 31, 2003, showed "[s]light rotary scoliosis of the lumbar spine." A subsequent MRI of her lumbar spine disclosed an "annular disc bulge at L3-4."

On April 22, 2003, plaintiff was examined by a neurologist, Dr. Alexander Pendino, who opined that plaintiff had "[p]osttraumatic lumbar pain secondary to MVA" and "[e]tiology multifactorial including lumbar myofascitis and lumbar facet syndrome." In a follow-up evaluation, Dr. Pendino listed the following impressions: "1) Recalcitrant lumbar pain. The etiology is secondary to lumbar myofascitis, facet syndrome and rule out lumbosacral radiculopathy; 2) L3-L4 disc bulge / multilevel foraminal stenosis by MRI."

On June 24, 2003, plaintiff underwent an EMG, which showed "electrodiagnostic evidence of right S1 radiculopathy." After the EMG, Dr. Pendino diagnosed: "1) Lumbar myofascitis; 2) Lumbar facet syndrome; 3) Right S1 radiculopathy by EMG; 4) L3-L4 disc bulge / multilevel foraminal stenosis by MRI."

An orthopedic surgeon, Dr. David Lamb, evaluated plaintiff on August 4, 2003 and on November 5, 2003. He diagnosed plaintiff with "left sided lumbar sciatica."

Plaintiff was served with Form A Uniform Interrogatories. Question nine stated: "If a previous injury . . . is claimed to have been aggravated, . . . specify in detail the nature of each and the name and present address of each health care provider, if any, who ever provided treatment for the condition." Plaintiff responded:

Yes, approximately 10 years ago (1995 or so), I was involved in an automobile accident in which I was driving a vehicle . . . when I was impacted by a driver that ran a red light. I treated with Dr. Gregory S.

Cortina . . . for this accident for a back injury. I was represented by Andrew M.

Kusnirik, III, Esquire for this accident.

At her deposition, plaintiff testified that Dr. Cortina, a chiropractor and her cousin, treated her for a back injury after an accident "about ten years ago." Dr. Cortina is an associate of Dr. Quille. Plaintiff testified that following the first accident, Dr. Cortina provided manipulations, treating her "two or three times a week" for "less than a year." She testified that when Dr. Quille treated her for back pain after the 2003 accident, he provided manipulations that were "pretty much the same" as those provided by Dr. Cortina after the first accident. She asserted that she did have lower back pain after the first accident, but the back pain she suffered after the 2003 accident was more severe and had radiated into her thigh.

On May 26, 2005, defense counsel requested information regarding plaintiff's earlier accident. On August 17, 2005, plaintiff's counsel replied that even though he represented plaintiff after the prior accident, he did not possess the records and could not provide them. Defense counsel sent a HIPAA authorization, executed by plaintiff on July 7, 2005, to Dr. Cortina's office, requesting a "complete copy of [plaintiff's] medical records including, but not limited to, those for dates of accident[s] in or about 1995 and 2003." Dr. Cortina's office provided him only with records pertaining to the 2003 accident and not those for the prior accident. Defense counsel sent a fax to Dr. Cortina's office on November 1, 2005, indicating that he did not receive records of previous treatments. In that fax, he requested records for Dianne Cortina, which was plaintiff's maiden name, dating back to 1993, which he had recently learned was the year of her previous accident. On November 2, 2005, Dr. Cortina's office sent defense counsel a fax stating: "Diane Andriolo/Diane Cortina our response remains the same."

Discovery ended on December 24, 2005. On July 18, 2006, defendants moved for summary judgment, claiming that plaintiff's complaint should be dismissed for failing to provide a Polk analysis. Defendants also asserted that plaintiff failed to provide "objective clinical evidence" proximately relating her lumbar injury to the January 2003 accident. The trial court granted defendants' motion, finding that a Polk analysis was warranted, and that plaintiff failed to distinguish the sources of her injuries between her 1993 and her 2003 automobile accidents.

Plaintiff filed a motion for reconsideration on September 8, 2006, attaching to the moving papers medical records relating to her treatment by Dr. Cortina after her 1993 automobile accident. These records showed a diagnosis, on October 4, 1993, of: 1) acute traumatic sprain/strain cervical spine; 2) thoracic spine pain; 3) muscle spasm; 4) double-crush syndrome bilateral at this time; and 5) C6 right radiculopathy. On April 11, 1994, the doctor found "tenderness, spasm cervical spine"; "[r]estricted motion on flexion and forced extension"; "[l]ateral rotation left and right with compression causing radicular pain"; and "[p]ositive percussion of C5, C6 spinous processes with pain." Dr. Cortina noted that plaintiff suffered a "significant, limiting injury." The final notation, dated June 27, 1994, indicated that plaintiff would require additional care for her injuries.

Plaintiff's counsel also attached to the motion for reconsideration a letter from Dr. Quille, dated August 30, 2006, which distinguished plaintiff's injuries and treatment after the 1993 automobile accident from plaintiff's injuries and treatment following the 2003 accident. This letter indicated that the 1993 accident caused injury to plaintiff's neck and upper back, while the 2003 accident injured plaintiff's lower back.

The judge denied plaintiff's motion for reconsideration. He did not consider the August 30, 2006 letter from Dr. Quille because discovery ended in December 2005.

Against this factual background, we turn to plaintiff's claim. Her automobile insurance had a limitation on lawsuit threshold pursuant to the 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a. A plaintiff subject to this limitation on lawsuit threshold may recover damages upon proof that his or her injuries "satisfy one of the six statutorily defined threshold categories in [AICRA] to sue for pain and suffering damages." Serrano v. Serrano, 183 N.J. 508, 509 (2005). As long as a plaintiff proves, by objective medical evidence, that he or she suffered a permanent injury, the plaintiff is entitled to sue for pain and suffering. Juarez v. J. A. Salerno & Sons, Inc., 185 N.J. 332, 334 (2005); N.J.S.A. 39:6A-8a.

Here, the trial judge did not dismiss plaintiff's complaint on the grounds that she did not suffer a permanent injury. Rather, he concluded that plaintiff's failure to present a comparative analysis, as required by Polk, supra, 268 N.J. Super. 568, warranted dismissal of her claim. At the time the judge made his decision, the legal authority was split as to when a comparative analysis required by Polk was warranted. Compare Lucky v. Holland, 380 N.J. Super. 566, 570 (App. Div. 2005) (Polk analysis necessary to defeat summary judgment in claim for aggravation of a pre-existing injury) with Davidson v. Slater, 381 N.J. Super. 22, 29 (App. Div. 2005) (Polk's requirement of a comparative analysis was no longer viable following the New Jersey Supreme Court's decisions in DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano, supra, 183 N.J. 508).

Subsequent to the motion judge's decision in this case, the New Jersey Supreme Court determined that the issue of whether a plaintiff must produce comparative medical evidence should be framed in terms of "traditional principles of causation and burden allocation applicable to tort cases generally." Davidson v. Slater, 189 N.J. 166, 184 (2007). The Court also observed that a plaintiff "need only raise a genuine issue of material fact in respect of causation sufficient to permit a rational fact-finder to resolve the alleged dispute in her favor." Id. at 186.

The Court held that in a "non-aggravation cause of action," a plaintiff has no obligation to produce a comparative analysis to satisfy the verbal threshold of AICRA to defeat a motion for summary judgment. Id. at 186-88. It is only "[w]hen a plaintiff alleges aggravation of pre-existing injuries as the animating theory for the claim, [that the] plaintiff must produce comparative evidence to move forward with the causation element of that tort action." Id. at 170.

When we apply the Davidson holding here, the critical issue is whether plaintiff is seeking compensation for the aggravation of injuries she sustained in the 1993 automobile accident, or whether she is seeking compensation solely for the injuries she sustained in the 2003 automobile accident. Defendants argue the former, while plaintiff claims the latter. For purposes of defendants' summary judgment motion, we agree with plaintiff.

Plaintiff did not allege aggravation in her complaint. Her treating chiropractor's final prognosis of February 17, 2004, directly related her current symptoms to the 2003 accident. The doctor stated that plaintiff's "injuries [are] directly related to an 01/19/03 motor vehicle accident." In the history taken by Dr. Quille during plaintiff's initial examination of January 22, 2003, he noted that "[plaintiff] last treated in this facility for MVA related injuries 10/93 through 5/94. [Plaintiff] does not relate a previous history of current symptomology."

Viewing these evidential materials in a light most favorable to plaintiff, see Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995), which plaintiff timely submitted in opposition to defendants' summary judgment motion, a genuine issue of material fact exists as to causation sufficient to defeat the summary judgment motion. The only medical evidence before the motion judge at the time he granted defendants' summary judgment motion showed that plaintiff's injuries were directly related to the January 19, 2003 motor vehicle accident.

No doubt exists that plaintiff's answer to interrogatory number nine can be read to show that, at least at the time plaintiff answered the interrogatories, one of her claims may have been an aggravation of a prior injury. We do not conclude, however, that plaintiff's response to the interrogatories trumps the medical evidence that her injuries were directly related to the 2003 accident. See Hardison v. King, 381 N.J. Super. 129, 137-38 (App. Div. 2005) (finding that the plaintiff had established a genuine issue of fact relating to whether his injuries were permanent and caused by the subject automobile accident).

In a "non-aggravation cause of action," even with a prior injury, a plaintiff has no obligation to produce a comparative analysis to satisfy the verbal threshold to defeat a summary judgment motion. Davidson, supra, 189 N.J. at 186-88. Here, plaintiff is not seeking compensation for aggravation of the injuries she sustained in 1993. Her claim, certainly at the time the summary judgment motion was filed, was solely that her injuries were a direct result of the 2003 automobile accident. While defendants are entitled to challenge that claim at trial, the proofs presented to the motion judge were sufficient to defeat their summary judgment motion.

Reversed and remanded for further proceedings consistent with this opinion.

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