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Kiley v. Merck and Company


July 29, 2008


On appeal from the Superior Court of New Jersey, Law Division, Burlington County, L-3984-04.

Per curiam.


January 12, 2007

Argued December 20, 2006 -- Reserved Decision

Before Judges Stern and Lyons.

Re-Argued January 7, 2008

Before Judges Stern and Collester.

Plaintiff appeals from a judgment entered on March 29, 2005, granting summary judgment to the defendants after having permitted them to amend their answers to interrogatories following the discovery end date and to raise the verbal threshold. The complaint deals with an automobile accident which occurred on December 14, 2000. Defendant Merck is plaintiff's employer and defendant Castro was the driver of the vehicle leased to Merck. In response to form interrogatories, defendants did not attach a copy of Merck's policy. However, defendants identified the policy and its limits. After the discovery end date was extended and the trial date was adjourned to permit plaintiff to amend her answers to interrogatories to include treatment and surgery she had following the arbitration, defendants moved for summary judgment.*fn1 In their "statement of material facts," defendants asserted:

6. Plaintiff was diagnosed with scoliosis when she was young and had been treating with a chiropractor for years before the accident. Before the accident, plaintiff had been treating with a chiropractor more than once per month for at least a year for lower back pain.

7. On February 3, 2001, plaintiff underwent a MRI of the cervical spine the report of which says, "Review of the individual disc spaces shows no evidence of significant disc bulge, disc herniation or canal stenosis."

8. On February 24, 2001, plaintiff underwent a MRI of the brain, which revealed the following:

"MRI of the brain is normal."

(Internal citations to attached exhibits omitted.)

Plaintiff responded:

#[20]. The plaintiff came under the care of Dr. John Sinabaldi, a chiropractic physician. In his report dated January 25, 2001, he indicated that there was paraspinal muscle spasm at C7 through T1-T5, paraspinal muscle spasm at L1 to L5, and that x-rays revealed reversal of the normal cervical lordotic curve, as well as an L3 left pelvic tilt and decreased lumbar lordosis and a subluxation of L4 and a disruption in George's line at L4 to L5.

#[21]. On February 19, 2001, Dr. Sinabaldi performed another examination, that revealed cervical paraspinal muscle spasm, as well as lumbar paraspinal muscle spasm.

#22. On March 26, 2001[,] Dr. Sinabaldi's examination revealed paraspinal muscle spasm at C2 to C5 with myospasm and trigger points of the upper trapezius, and paraspinal muscle spasm at the level of L3 to L5.

#23. On July 5, 2001[,] Dr. Sinabaldi discharged Sabrina from his care, he discharged her with a chronic post-traumatic cervical, thoracic and lumbar sacral strain and sprain, cervical myofascitis, muscle spasm and post-concussion syndrome. It was his opinion "that this patient has suffered a significant permanent limitation of the use of cervical a long bow sacral spines" it was his opinion that she had permanent injuries that would result in permanent limitations in the cervical a long bow sacral spines and that she would not be able to enjoy the same lifestyle as prior to the accident.

#24. On February 9, 2001, the plaintiff was examined by Dr. Abrams, a board-certified neurologist. Due to the severity of her headaches, a quantitative EEG was performed.

#25. On March 2, 2001, the plaintiff was seen again by Dr. Abrams. He indicated "the quantitative EEG however did demonstrate some dysfunction in the right occipital lobe. This is consistent with our post-concussive symptoms."

#26. On July 24, 2002, the plaintiff was seen by Dr. Barry Korn[,] a board-certified pain management specialist[, and] his examination of the cervical spine revealed paravertebral spasms and tautness. Dr. Korn recommended nerve blocks.

#27. On November 24, 2003, Dr. Goldstein examined the plaintiff. Dr. Goldstein is a board-certified orthopedic surgeon. At the time she was complaining of headaches that ranged from short lasting to as long as three days. Sometimes these were accompanied with nausea, as well as a low back discomfort that was chronic in nature. Dr. Goldstein found tightness and stiffness of the cervical spine, and found the same thing on December 15, 2003.

(Citations to attached exhibits omitted.)

The response thereafter referred to evaluations and conditions following a subsequent accident which occurred in May 2004.

In granting summary judgment, the motion judge stated:

On behalf of the defendants, a defense medical was conducted by Dr. Zohar Stark in September of 2004 and he referred to an incident that occurred in work in May of 2004, and he said that it was his opinion that the plaintiff's injuries were the result of the December 2000 accident and not from the May 2004 incident, but there was no other analysis or reasoning provided.

In addition to all of this, there was a December 2000, prior to the December 2000 accident, there was a diagnosis of Ms. Kiley of scoliosis. When the accident occurred, she was a student at Rutgers and she worked part time in Mount Laurel as a nanny. When she graduated from college she went to Burlington County Family Service and worked there as a case manager and senior therapist. She only missed one or two weeks of work over a one-year period. She has not stopped working as a result of her injuries according to her testimony, and she said that there were no activities which she is not able to engage in as a result of the injuries, although she has difficulty playing picnic or pickup sports which she had played sporadically during the summer months.

The issue is raised in this case concerning the Polk*fn2 analysis. And the Court finds that there is no analysis submitted at this point in time, any different than what was submitted in January, that would differentiate between the alleged December 2000 injury and the May 2004 work incident. Apparently there was an incident that occurred that created some problems for which the plaintiff got some treatment.

The June 3rd, 2004 MRI was conducted after the work incident, and it's this MRI that Dr. Goldstein talked about that revealed herniated discs. The MRI of the cervical spine from February of 2001 did not reveal this evidence. What it said is there is no evidence of any significant disc bulge, disc herniation or canal stenosis. So something happened between February of 2001 and June of 2004 and there has been nothing that has been submitted that would indicate that the July 2004 surgery was a result of the December 2000 accident and not the result of the May 2004 work accident. Without this analysis, talking about the pre-existing condition and how, what the injury was and what the results were between the December accident and the May 2004 incident, there can be no, and there is no proof that it all arose out of the December 2000 accident.

There is nothing here that would enable a finder of fact, in this case the jury, to conclude that the injuries she has are as a result of the December 2000 automobile accident and not the May 2004 work incident. And when you look at all of this together, this is, even if it were to go forward to a trial, it would not get to the jury on those issues without that proof. And if the proof isn't here now, it's not going to be here tomorrow or any other day.

On her appeal, plaintiff argued:

I. When the defendant's insurance carrier denies the plaintiff's claim, before suit is instituted because the plaintiff did not meet the requirements of the verbal threshold, and the defendant did not provide proof that it is entitled to raise the verbal threshold until after the discovery end date specified by Rule 4:17-7 has expired, and after the arbitration of the matter has taken place, and after defendant's motion for summary judgment is denied, did the trial court err by allowing the defendant to amend its interrogatory answers to supply its declaration sheet, which was an element of one of its affirmative defenses, without any certification on behalf of the defendant "... that the information was not reasonably available or discoverable by the exercise of due diligence prior to the discovery end date...."

II. Assuming that the defendants are entitled to raise the verbal threshold, the trial court was incorrect in granting the defendants' motion for summary judgment.

On January 12, 2007, we reserved decision until after the Supreme Court's opinion in Davidson v. Slater, 189 N.J. 166 (2007), and invited supplementary briefs. Only defendants filed one.

We conclude there was no abuse of discretion in letting the verbal threshold be raised on the motion for summary judgment, particularly because it is a matter of substantive law, it was raised in the answer, defendants provided information about the policy in response to questions 13 and 14 of the Form C interrogatories, and they subsequently provided a copy of the policy after the discovery end date. Plaintiff made no further demand in response to the answers to interrogatories, and the motion judge noted, ""[t]here were never any applications to bar the presentation of any further documents [or] to get a more specific answer to question number 14."

As already noted, the complaint seeks damages as a result of injuries sustained in an automobile accident on December 14, 2000, and plaintiff also received treatment for injuries sustained in a work-related accident that occurred in May 2004.

As also noted, the motion judge concluded "[t]here is nothing here that would enable a finder of fact, in this case the jury, to conclude that the injuries she has are as a result of the December 2000 automobile accident and not the May 2004 work incident." However, under Davidson, supra, which was decided after the complaint was dismissed, a "comparative medical analysis" of the impact of the two accidents is "dependent on traditional principles of causation and burden allocation applicable to tort cases generally." 189 N.J. at 184. Thus, while a comparative analysis is not per se required, summary judgment is still available only "if the defendant can show that no reasonable fact-finder could conclude that the defendant's negligence caused plaintiff's alleged permanent injury." Id. at 188. Accordingly, the plaintiff who does not prepare for comparative medical evidence is at risk of failing to raise a jury-worthy factual issue about whether the subject accident caused the injuries." Ibid. However, no "comparative analysis" is necessary "in order to satisfy the verbal threshold proof requirements" in a non-aggravation case. Ibid.

Dr. Sinibaldi's certification of permanency, states a conclusion without reference to facts or a diagnosis based on objective medical evidence. His discharge report of July 5, 2001, is little better but points to "reversal of the normal cervical lodotic curve," limitations in range of motion in the cervical spine, and limitations in range of motion and abnormalities in the orthopedic examination of the lumbar spine. However, in her brief before us, which summarily refers to "a certification of permanency, . . . positive x-ray reports, positive EEGs, MRI's, and physicians' reports finding other objective findings such as spasms," plaintiff refer to Dr. Sinibaldi's report of March 3, 2004.*fn3 That report indicates plaintiff's condition before the 2000 accident was "completely resolved." It also states that the "left convex lumbar scoliosis" as well as a "hyperflexion injury (strain/sprain) to the erector spinae musculature (major supporting spinal muscle group) and supporting ligamentous structures involving the cervical thoracic and lumbosacral regions" were, therefore, attributable to the 2000 accident, and that plaintiff's "permanent impairment" for that accident was 7% "due to a 4% permanent impairment based upon spinal range of motion impairment and a 3% permanent impairment based upon loss of muscle strength in the lower extremities."

Plaintiff may well not prevail at trial, but given Davidson and the results of Dr. Sinibaldi's examinations, we are satisfied she is entitled to proceed to trial.*fn4 Reversed and remanded for trial.

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