On appeal from the Superior Court of New Jersey, Law Division, Union County, Docket No. L-827-06.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted October 8, 2008
Before Judges Parrillo and Lihotz.
Plaintiff Glenn Germaine appeals from the December 4, 2007 order of the Law Division dismissing his personal injury automobile negligence complaint against defendant Maher Terminals, Inc., pursuant to Rule 4:37-2, for failure of his expert proofs to make a comparative medical analysis. For the following reasons, we reverse.
The facts are essentially undisputed. On November 16, 2005, while employed at OST Trucking and operating his employer's tractor trailer at Maher Terminals in Elizabeth, plaintiff was rear-ended by a switching tractor owned by Maher Terminals and operated by one of its agents. As a result of the accident, plaintiff suffered a herniated disc of the cervical spine at C3-C4 and disc bulges of the lumbar spine. He was prescribed medication and eventually underwent a cervical fusion and the insertion of an anterior cervical plating. As a result of his injuries, plaintiff was forced to quit work only two days after the accident.*fn1 Prior thereto, plaintiff was treated for neck pains on just three occasions: October 10 and 19, 2005 and November 3, 2005, a condition that did not require medication or cessation of work.
Plaintiff sued defendant and John Does 1-10 for negligence. Significantly, for present purposes, plaintiff did not plead aggravation of a pre-existing condition and the case proceeded on a non-aggravation theory, with plaintiff seeking relief for the permanent injury of a herniated disc. While during initial discovery, plaintiff did not disclose his prior neck pain, he later amended his answers to interrogatories on January 8, 2007, to indicate his prior treatment for cervical sprain and myositis. Despite this admission, plaintiff neglected to mention his previous history of neck pain to either his expert, Dr. Glushakow, who examined plaintiff on February 9, 2007, or defendant's expert, Dr. Greifinger, who examined plaintiff on March 9, 2007. In his February 23, 2007 report, Dr. Glushakow concluded that plaintiff's herniated disc was causally related to the November 16, 2005 accident.
Because of plaintiff's non-disclosure of his pre-existing cervical condition, defendant moved in limine, on the day of trial, to bar Dr. Glushakow's testimony. The judge denied the motion and granted plaintiff's cross-application for leave to file a supplemental report, which was submitted by Dr. Glushakow the very next day, concluding:
I have reviewed records from Dr. Lukenda dated 10/10/05, 10/19/05 and 11/3/05. The records indicate there was no prior injury as I stated in my initial report of 2/23/07.
Based on a review of these records my conclusions are that his herniated disc at C3-C4 is definitely causally related to the accident of 11/16/05 and an aggravation of a previous condition; namely cervical sprain and myositis. These conclusions are due to the fact that in spite of the neck pain prior to the accident of 11/16/05 he was able to... perform his job. His pain was not severe enough to require him to be on Vicodin or potent narcotics. He was forced to take narcotics after the accident of 11/16/05... [and] was only able to work for two days and had to quit. Furthermore he had to subject himself to risky procedures such as cervical facet injections and cervical epidural blocks as well as cervical diskectomy and cervical fusion at C3-C4. [emphasis added.]
Although Dr. Glushakow conclusively stated that plaintiff's "herniated disc at C3-C4 is definitely causally related to the accident of 11/16/05...[,]" he added that the accident also caused "an aggravation of a previous condition...." Because of the latter reference, the judge believed that plaintiff's theory changed to one of aggravation and thus required a comparative medical analysis, pursuant to Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993), distinguishing the alleged accident injuries from a pre-existing condition, which plaintiff's expert report did not provide. Consequently, the judge, treating defendant's motion as one for involuntary dismissal under Rule 4:37-2, granted the relief, dismissing plaintiff's complaint with prejudice for failure of proof.
We disagree. A comparative medical analysis was not required in this non-aggravation pled cause of action, where plaintiff's proofs made out a prima facie case of causation, namely that the accident in question proximately caused his herniated disc, a permanent injury separate and distinct from his pre-existing condition of soft-tissue cervical sprain and myositis.
"When a plaintiff does not plead aggravation of pre-existing injuries, a comparative analysis is not required to make that demonstration." Davidson v. Slater, 189 N.J. 166, 170 (2007). Davidson discussed the role of comparative analysis in a verbal threshold summary judgment motion arising under N.J.S.A. 39:6A-1.1 to-35, the Automobile Insurance Cost Reduction Act (AICRA)*fn2, 189 N.J. at 169, 179-81, first discussed in Polk, where we held that
[a] diagnosis of aggravation of a pre-existing injury or condition must be based upon a comparative analysis of the plaintiff's residuals prior to the accident with the injuries suffered in the automobile accident at issue. This must encompass an evaluation of the medical records of the patient prior to the trauma with the ...