On appeal from the Superior Court of New Jersey, Law Division, Morris County, L-2965-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Rodríguez and Reisner.
Plaintiff Julianne Jekonski appeals from a September 30, 2008 trial court order precluding her medical expert from testifying as to the permanency of her automobile accident injuries. She also appeals from: a December 1, 2008 order denying reconsideration; and a March 20, 2009 order granting summary judgment as to non-economic damages because plaintiff could not demonstrate permanent injuries. We reverse and remand.
The automobile accident occurred on November 6, 2003, when plaintiff was seventeen years old. She filed suit on October 18, 2005, alleging permanent injuries in her complaint.*fn1
Thereafter, plaintiff served defendant with form interrogatory answers dated March 13, 2006, in which she claimed permanent injuries to her back. On March 16, 2006, she filed and served a certification of permanency from her treating orthopedic specialist, Dr. Frank Capecci, attesting that based on an MRI he had diagnosed plaintiff with two herniated spinal discs that constituted a permanent injury. See N.J.S.A. 39:6A-8a. Defendant promptly obtained an IME of plaintiff, and served plaintiff with a June 8, 2006 report and a July 3, 2006 supplemental report from its expert, Dr. Barry Levine, opining that plaintiff had not suffered a permanent injury in the accident.
On May 4, 2007, plaintiff served Dr. Capecci's expert report dated April 30, 2007. The report described her injuries and opined that the two herniated discs were caused by the auto accident, but did not set forth an opinion as to permanency. However, defendant was obviously aware that plaintiff was claiming a permanent injury based on her earlier filings, and had already obtained an expert report aimed at refuting her claim.
Defendant did not take a discovery deposition of Dr. Capecci. At oral argument defense counsel advised us that this was a strategic decision, made to avoid litigation costs. In preparation for trial, Dr. Capecci's de bene esse videotaped deposition was taken on May 6, 2008. At that deposition, he testified that it would be very unusual for a seventeen-year old to have herniated discs without having suffered physical trauma. Over defense counsel's objection, he also testified that the herniated discs constituted a permanent injury.
On or about July 10, 2008, defendant filed a motion returnable three days before the scheduled August 4, 2008 trial date, asking the court to strike the permanency testimony from Dr. Capecci's de bene esse deposition. In a brief hand-written notation on the order granting the motion, the judge stated:
Since this is a de bene esse deposition the opinions of Dr. Capecci are confined to the report he submitted [on] 4/30/07 in which he did not opine that the injuries were permanent.
After her motion for reconsideration was denied, plaintiff served a short supplemental report on January 20, 2009, in which Dr. Capecci indicated that he stood by his deposition testimony and stated that since plaintiff was still having back pain more than two years after the accident, her back pain was permanent. The trial court ...