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Silverman v. Borow

August 23, 2010

JARED M. SILVERMAN, PLAINTIFF-APPELLANT,
v.
BRIAN D. BOROW, DEFENDANT-RESPONDENT.



On appeal from Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2051-07.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued March 10, 2010

Before Judges Graves and J.N. Harris.

In this automobile negligence action, plaintiff Jared Silverman alleged he was permanently injured on June 6, 2005, when the car he was driving was struck from behind by a vehicle owned and operated by defendant, Brian Borow. Plaintiff appeals from an order entered on August 14, 2009, denying his motion for reconsideration of an order dismissing his complaint.

Plaintiff's claim for non-economic damages was subject to the "limitation on lawsuit" or "verbal threshold" set forth in N.J.S.A. 39:6A-8(a), and the trial court ruled that he could not satisfy the verbal threshold because there was no objective evidence that he suffered a permanent injury. In addition, the court found that plaintiff's proofs were insufficient to support his claim for lost earnings. We affirm.

Plaintiff did not go to a hospital or seek medical treatment following the accident, which occurred at approximately 2:48 p.m. on June 6, 2005, but the next day he went to the Bayonne Medical Center's Emergency Department for "back pain." A report prepared by the emergency department on June 7, 2005, states:

This is a 32-year-old male who was in [a motor vehicle accident] yesterday. He was a restrained driver hit from behind now complaining of mid back pain. The patient states that he had no pain after the accident and went to work. However, several hours after the accident, he developed back pain. He reports pain is worse with movement. States pain improved when resting and sitting still.

The patient presents with pain consistent with muscle spasm/strain. The patient is treated with Toradol here in the emergency department with improvement, is discharged and referred to Dr. Engel.

On June 28, 2005, plaintiff had a magnetic resonance imaging (MRI) examination of his cervical spine. The MRI report stated: "There is a mild kyphosis*fn1 of the cervical spine.

Otherwise the vertebral alignment is anatomic. The vertebral body heights are within normal limits. The C3-4, C4-5 and C5-6 discs reveal minimum bulges and disc desiccation. Otherwise the cervical discs are fairly well preserved." The MRI examination was ordered by Dr. Steven Levine.

Plaintiff began treatment with Steinbaum-Levine Associates, L.L.C., on June 13, 2005. In his answers to interrogatories, plaintiff designated Dr. Howard S. Levine, D.O., as an expert witness. In a written report dated September 20, 2007, Dr. Levine stated:

To Whom It May Concern,

I am writing this letter in regards to Jared Silverman who was involved in a motor vehicle accident on 6/6/05. He has been seen by us since 6/13/05 till 9/20/07 and so on. His symptoms are constant chronic pain in the cervical, thoracic, lumbar sacral regions and also in his bilateral shoulders. He has ...


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