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Silverman v. Borow

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 difficulty sitting, standing, walking and finding a comfortable position to stay in.

He has been treated by Dr. Levine since the accident. He has had physical therapy for a year and a half and has been seeing a chiropractor for three to four months now. He has been treated with multiple anti-inflammatory medications, muscle relaxers and pain pills. All with just about ten to fifteen percent improvement/relief since the accident.

Our next plan is for Mr. Silverman to meet with Dr. Friedman for epidural injections.

At this time I find Mr. Silverman to still be with chronic back pain which doesn't allow him to function or work properly. All this with hope that the epidural injections can provide some relief.

At this time he is reluctant to have any surgery. I foresee this as a prolonged problem for Mr. Silverman.

Sincerely,

Dr. Howard S. Levine DO

The case was originally scheduled for trial on January 6, 2009, but the trial was adjourned to June 8, 2009. On June 8, 2009, defendant moved in limine to bar Dr. Levine from testifying and to dismiss plaintiff's complaint. Defendant's attorney argued there was no objective medical evidence to support plaintiff's claim that he sustained a permanent injury, and plaintiff's proofs were insufficient to establish a claim for lost wages. As previously noted, the trial court granted defendant's application to dismiss plaintiff's complaint.

On appeal, plaintiff presents the following arguments for our consideration:

POINT I

THE LOWER COURT ERRED IN FINDING THAT PLAINTIFF'S DOCTOR'S REPORT WAS A 'NET OPINION.'

POINT II

THE LOWER COURT ERRED IN BARRING TESTIMONY OF PLAINTIFF[']S DOCTOR.

A. EVEN IF THE LOWER COURT'S FINDING DR. LEVINE'S REPORT WAS A 'NET OPINION' IS NOT DEEMED TO BE IN ERROR, LEVINE SHOULD STILL HAVE BEEN PERMITTED TO TESTIFY NONETHELESS AS A FACT WITNESS.

B. THE LOWER COURT ABUSED ITS DISCRETION IN FINDING THAT LEVINE WOULD NECESSARILY HAVE BEEN LIMITED TO TESTIFYING AS TO ONLY THAT WHAT WAS CONTAINED IN HIS REPORT.

POINT III

THE LOWER COURT ERRED IN FINDING THAT PLAINTIFF'S INJURIES FAILED TO MEET THE VERBAL THRESHOLD.

POINT IV

THE LOWER COURT ERRED IN DISMISSING PLAINTIFF'S CLAIM FOR LIQUIDATED DAMAGES (LOST WAGES).

A. PLAINTIFF HAD SUFFICIENT EVIDENCE TO PRESENT A CLAIM FOR LIQUIDATED DAMAGES.

B. PLAINTIFF SHOULD HAVE BEEN PERMITTED TO SUBMIT THE ADDITIONAL DOCUMENTS.

C. THE LOWER COURT COMMITTED PLAIN ERROR IN FINDING THAT THE LOAN AGREEMENTS HAD NOT BEEN TURNED OVER TO DEFENDANT IN DISCOVERY.

After considering these arguments in light of the record, the briefs, oral argument, and the applicable law, we conclude they are without sufficient merit to warrant extended discussion in a written opinion. R. 2:11-3(e)(1)(E). We affirm substantially for the reasons stated by Judge Curran in her oral opinions on June 10 and August 14, 2009. We add only the following comments.

With regard to defendant's motion to bar Dr. Levine from testifying, the court found his report did "not even identify an injury" and did "not in any way indicate that there is objective credible medical evidence [of a permanent injury] which is required by the verbal threshold." We agree. See Agha v. Feiner, 198 N.J. 50, 54 (2009) ("Ordinarily a dismissal would be required in an AICRA case where, as here, no objective evidence of permanency was adduced.").

Plaintiff's claim for lost wages was equally deficient. As the court noted, plaintiff failed to substantiate his claim for lost wages "on a timely basis"; plaintiff's tax return for 2005, the year of the accident, showed plaintiff's income in 2005 exceeded his income in 2004; his gross income in 2006 was the same as in 2005; and there was no medical evidence "that [plaintiff] could not work." Again, we agree. See Lesniak v. County of Bergen, 117 N.J. 12, 31 (1989) ("Proof of lost income- earning capacity contains one element that ordinarily must be established by expert testimony, namely, the severe nature and lasting extent of the injury.").

In view of the foregoing, the court did not err in granting defendant's motion to dismiss plaintiff's complaint and did not abuse its discretion in denying plaintiff's motion for reconsideration.

Affirmed.


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