April 9, 2009
LYDIA JONES, ADMINISTRATRIX FOR THE ESTATE OF DUBLIN G. JONES, DECEASED AND LYDIA JONES, H/W PLAINTIFF-APPELLANT,
SHAINA B. SACHS, DEFENDANT-RESPONDENT, AND PAUL A. SACHS, DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Mercer County, L-1793-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued Telephonically March 26, 2009
Before Judges Winkelstein and Chambers.
Dublin Jones contended that he was in an automobile accident on July 8, 2003, when a vehicle that defendant Shaina Sachs was driving hit the rear of his car. As a result of the accident, the fifty-nine-year-old Jones asserted that he twisted his right knee and struck it against the dashboard. Jones died in 2007 from causes unrelated to the accident.
The administrator of Jones's estate appeals from a May 21, 2008 order of the Law Division barring from trial the testimony of Detective Andrew Johnson, and dismissing plaintiff's complaint on the grounds that Jones's injuries were not permanent so as to satisfy the verbal threshold established in the 1998 Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8a. We affirm that portion of the trial court's order barring the testimony of Detective Johnson. Plaintiff's arguments as to that issue are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We reverse the order dismissing the case and reinstate plaintiff's complaint.
Following the accident, Jones complained of neck pain, bilateral shoulder pain, bilateral arm numbness and tingling, low back pain, right knee pain and headaches. His initial diagnosis was primarily focused on his neck and back pain, but also included a diagnosis of knee joint strain and sprain.
Plaintiff underwent chiropractic adjustments, but continued to have knee pain. By March 9, 2004, he was diagnosed with a right knee medial meniscus tear confirmed by an MRI.
On May 4, 2004, plaintiff underwent arthroscopic surgery to his right knee. His preoperative diagnosis included a complex tear of the knee, with chondrocalcinosis of the posterior half of his medial meniscus; he had diffuse grade IIB changes in his medial femoral condyle, with a chondrocalcinosis lesion along the lateral aspect.
Jones's surgeon, Steven R. Gecha, M.D., testified at his de bene esse deposition that as a result of the automobile accident, plaintiff sustained traumatic chondromalacia of his patellae and tore his medial meniscus when he struck his kneecap against the dashboard, exacerbating his pre-existing arthritic condition. The doctor performed a partial right medial meniscectomy, removing the back half of Jones's medial meniscus, which resulted in a permanent change in Jones's anatomy, placing him at greater risk of developing accelerated arthritis. The doctor's prognosis for Jones was guarded. He testified that "due to the arthritic changes that [Jones] has, there [is] a good chance that he will continue to have intermittent problems."
Following Jones's surgery, Dr. Gecha saw him for several months for follow-up. He remained out of work until returning for light duty on June 23, 2004. On June 21, 2004, Dr. Gecha found that plaintiff was "doing reasonably well with physical therapy," but still had some "mild swelling in his knee." At his last visit to Dr. Gecha, on August 9, 2004, the doctor observed that Jones was improving with physical therapy, but he still had some swelling in the knee and mild atrophy. The doctor considered Jones to be "doing well." By that time, plaintiff was working full-time.
Following completion of discovery, defendant filed a motion in limine on whether Detective Johnson should be precluded from testifying at trial. Defendant also sought to bar Dr. Gecha from testifying as to whether Jones's injuries were permanent, arguing that the doctor never gave an opinion on permanency in his records or reports. The motion was heard on the day of trial. The court concluded that the doctor's de bene esse testimony was inadequate to present a jury question as to whether Jones sustained a permanent injury from the accident. In other words, the court found that even giving all inferences to plaintiff, a jury could not find that he suffered a permanent injury as a result of the accident. The court further found that Jones's injuries from the accident did not have a serious impact on his life. Consequently, the court dismissed plaintiff's complaint. We reject the court's findings.
Under AICRA, to pierce the verbal threshold, a plaintiff must prove "a permanent injury within a reasonable degree of medical probability." N.J.S.A. 39:6A-8a. Permanency means a body part or organ "has not healed to function normally and will not heal to function normally with further medical treatment." Ibid.
Initially, we note that under AICRA, the serious impact test is no longer applicable. Juarez v. J. A. Salerno & Sons, Inc., 185 N.J. 332, 334 (2005). Thus, the court's reference to the serious impact test, which was part of this State's verbal threshold jurisprudence prior to the enactment of AICRA, see Oswin v. Shaw, 129 N.J. 290 (1992), was misplaced.
That said, we also disagree with the court's conclusion that the evidence would have been insufficient for a jury to find that Jones's knee injury was permanent within the meaning of N.J.S.A. 39:6A-8a. The preoperative medical records regarding Jones's knee, as well as Dr. Gecha's testimony that the surgery caused a permanent change to Jones's anatomy, placing him at greater risk of developing accelerated arthritis, were sufficient to allow a jury to draw an inference that Jones's knee injury was permanent. That inference is further supported by the postoperative records, which were indicative of knee swelling and atrophy following the surgery, through the time of Jones's last visit to Dr. Gecha in August 2004.
Reversed. We remand to the trial court for further proceedings.
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