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Gaston v. Magnier

July 22, 2010

TONI GASTON, PLAINTIFF-APPELLANT,
v.
KATHLEEN M. MAGNIER AND NEIL MCNULTY, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Essex County, Docket No. L-7120-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued April 21, 2010

Before Judges Payne and Waugh.

Plaintiff, Toni Gaston, appeals from an order of summary judgment in favor of defendants Kathleen M. Mangier and Neil McNulty, in her verbal threshold case. Finding that plaintiff has failed to demonstrate a permanent condition meeting the requirements of the verbal threshold statute or a causal relationship between that condition and the accident that is the subject of suit, we affirm.

I.

The record reflects that plaintiff was involved in a motor vehicle accident with a car driven by defendant Kathleen Mangier on March 23, 2005. The police report states that, while driving on a snow covered road, Mangier lost control of her vehicle, which crossed into the opposite lane of traffic, colliding head-on with plaintiff's car. Plaintiff was transported by ambulance to Morristown Memorial Hospital. There, she was treated in the emergency room for complaints of pain in the neck, leg and hand. X-rays were taken of all three areas. X-rays of the cervical spine disclosed degenerative changes at C4-5, but were otherwise normal. A CT*fn1 scan of the cervical spine disclosed an anterior bony osteophyte at C4-5. An MRI*fn2 study was not conducted. Following treatment, plaintiff was discharged from the emergency room with a small supply of Percocet and Valium. Plaintiff was instructed to follow up with her own physician on the following day.

On March 29, 2005, plaintiff was seen by her treating orthopedist, Dr. Lawrence Floriani, who recommended that she continue to take the anti-inflammatory drug Mobic and that she obtain some physical therapy for her neck and upper back. Plaintiff returned to Dr. Floriani on July 18, 2005 with complaints of neck pain radiating from the right side of her neck into her arm. The doctor advised plaintiff to obtain an MRI, which was performed at Open MRI of Morristown on July 28, 2005. The MRI was read by Howard Kessler, M.D. In his report, Dr. Kessler stated:

The craniocervical junction and marrow space outline normally. The cervical spinal cord has a normal configuration, placement, and signal characteristics. At C2-C3, C3-C4, and C7-T1, the intervertebral discs outline normally. Mild disc bulging mainly ventrally is seen at C4-C5 accompanied by ventral spurring. C5-C6 and C6-C7 show posterocentral protrusions scalloping the ventral CSF*fn3 space. At all levels, the thecal sac remained centric. The facet joints are unremarkable. No definite foraminal encroachment is appreciated. IMPRESSION

1. Noncompressive disc bulge, C4-C5.

2. Small disc protrusion, C5-C6 and C6-C7 scalloping the ventral CSF space.

3. No intrinsic cord abnormality or definite foraminal encroachment.

On August 1, 2005, Dr. Floriani referred plaintiff to Dr. Philip Rubinfeld, a pain management specialist, who recommended facet injections. Plaintiff did not return to Dr. Floriani until February 17, 2006, at which time she stated that she did not tolerate the cervical facet injections well. She continued to complain of right sided neck pain. As a consequence, Dr. Floriani started her on a Medrol Dosepack and home exercises, and he recommended that she return in a few weeks. She failed to do so, and the record does not reflect any further treatment.

A complaint, dated August 17, 2006, was filed on plaintiff's behalf. During the period for discovery, on February 12, 2007, plaintiff was examined by Dr. Berton Taffet, M.D., an orthopedist who, until Dr. Floriani's retirement, had practiced in partnership with him. Dr. Taffet issued a report, in which he noted plaintiff's current complaint of pain on the right side of the neck and an inability to turn her head easily to the right. Dr. Taffet took new cervical x-rays, which he reported as demonstrating "some anterior osteophytes present around the anterior margin of the C4-5 disc space (which pre-existed ...


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