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Fortunato v. Villafane

March 5, 2008

ALBERT FORTUNATO AND JACQUELINE FORTUNATO, PLAINTIFFS-APPELLANTS,
v.
HERNANDO VILLAFANE, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Union County, Docket No. L-3257-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Submitted January 15, 2008

Before Judges Fuentes, Grall and Chambers.

Plaintiffs Albert and Jacqueline Fortunato appeal from the dismissal of their complaint seeking damages for losses sustained as a consequence of defendant Hernando Villafane's reckless or negligent driving.*fn1 Plaintiffs alleged that the accident caused permanent injury to Mr. Fortunato's lumbar spine -- disc bulges. Mrs. Fortunato's claims are per quod. The trial judge dismissed the complaint on the ground that plaintiffs, who acknowledged that they were unwilling to retain an expert qualified to read the CT scan, lacked the objective clinical evidence required to establish a "permanent injury" within the meaning of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. That determination is consistent with New Jersey Evidence Rules 703, 705 and 808 and with this court's subsequent decision in Brun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006).*fn2 Accordingly, we affirm.

On June 6, 2003, Mr. Fortunato's car was hit from behind while stopped at a traffic light. On June 11, 2003, he sought treatment from Dr. Robert Matturro, a chiropractor. On July 22, 2003, Dr. Patel, a radiologist, performed a CT Scan of Mr. Fortunato's lumbar spine.*fn3 Dr. Patel reported his impressions as follows:

1. GENERALIZED DISC BULGES AT L4-5 AND L5-S1 WITH MILD TO MODERATE DEGREE OF SPINAL STENOSIS AT L4-5.

2. FACET OSTEOARTHRITIS.

3. NO FRACTURE IS DEMONSTRATED.

4. CT MYLOGRAPHY OR MRI IS SUGGESTED FOR

FURTHER EVALUATION.

The further studies Dr. Patel suggested were not done.

After receiving Dr. Patel's report, Dr. Matturro continued the course of treatment that he started on June 13, 2003, which consisted of spinal manipulation and electrical stimulation. Dr. Matturro last treated Mr. Fortunato on March 12, 2004. Dr. Matturro's report refers to an EMG that showed "[b]ilateral radiculopathy at L4-L5 and L5-S1," but the results of the EMG are not included in the record provided on appeal.

On December 8, 2004, Mr. Fortunato saw a second chiropractor, Dr. Iaizzi. That doctor provided a report which included a recitation of Mr. Fortunato's complaints and an assertion that her "objective clinical findings," which she ...


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