October 4, 2010
RAYMONDO F. BREDELL AND ANNETTE BREDELL, PLAINTIFFS-APPELLANTS,
MICHAEL P. PALISCHAK, DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
TONISHA A. CARTER AND JOSH PULLIAM, THIRD-PARTY DEFENDANTS.
On appeal from the Superior Court of New Jersey, Law Division, Salem County, Docket No. L-381-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted September 22, 2010
Before Judges Axelrad and J. N. Harris.
Plaintiffs Raymondo Bredell and his spouse Annette Bredell appeal the dismissal on summary judgment of his claims for non-economic damages and her per quod claim against defendant Michael Palischak. The dismissal was premised upon Judge Timothy G. Farrell's determination that Raymondo's injuries did not satisfy the requirements of the verbal threshold established by the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, specifically N.J.S.A. 39:6A-8(a) ("a permanent injury within a reasonable degree of medical probability"). We affirm.
We recite the facts most favorable to plaintiffs because summary judgment was granted in favor of defendant. Estate of Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 374 (2010). However, we limit our review to only the competent evidentiary materials that were presented to the motion judge.*fn1
See Cherry Hill Dodge, Inc. v. Chrysler Credit Corp., 194 N.J. Super. 282, 283 (App. Div. 1984)(inclusion of numerous documents in the appellate appendix that were not in evidence was improper); R. 2:5-4(a). For this reason, we neither consider nor recite the information provided by plaintiffs for the first time in their appellate appendix.
On January 30, 2006, Raymondo was involved in a motor vehicle accident in Woolwich Township. He was taken from the scene of the accident to the CKHS Crozier-Chester Medical Center in Upland, Pennsylvania that same day. X-rays of his left knee and chest were taken, along with a CT scan of his head. No fractures or other abnormalities were detected. Minor treatment in the emergency room for a scalp hematoma in the frontal region was provided, along with a cardiology consultation because of Raymondo's pre-existing cardiac condition. He was released after a few hours with instructions to follow-up with his primary care physician. The Emergency Department Report dated the same day as the accident states [patient was] moving all [four] extremities equally with full strength. Pain and soft touch intact in all [four] extremities. Back examined on log rolling and the patient reveals no tenderness, full range of motion of back.
Raymondo was next seen by Dr. Jon S. Heist, D.O. on the following day, but the summary judgment record is barren of information indicating the nature, if any of Dr. Heist's treatment. Presumably, he provided Raymondo with a prescription for physical therapy because one week later, on February 6, 2006, Raymondo commenced such a regime with Roberto Yanez. The Initial Evaluation Report prepared by Yanez indicated that "X-rays were negative" but that Raymondo "has pain across his shoulders, right wrist, and left knee." According to the summary judgment record, Yanez provided physical therapy treatments on only three occasions in February and March 2006.
On December 7, 2007, almost two years after the accident, Dr. Heist executed a cursory "Certification of Treating Physician," which opined that as a result of the accident, Raymondo "did suffer permanent injuries to the following areas: lumbar with b/l sciatica; l[eft] hip." The fill-in-the-blanks certification further indicated that the medical testing that was considered by Dr. Heist in reaching his opinion included "physical therapy with Roberto Yanez, x-ray neck, films of head [at] E.R." The record, however, does not reveal any that any x-rays of Raymondo's neck were taken, and the motion judge noted -- without objection -- "there is no neck x-ray."
Defendant moved for summary judgment, based upon the failure to satisfy the requirements of N.J.S.A. 39:6A-8(a). Defendant argued that Raymondo had failed to support his claim of a permanent injury with objective medical evidence. Furthermore, defendant argued that to the extent plaintiffs were asserting that the accident aggravated several of Raymondo's pre-existing injuries, they had failed to provide a comparative analysis of how Raymondo's harm was caused by the instant accident.
Plaintiffs opposed the motion by submitting a five-page combined brief and response to defendant's statement of material facts. No additional certifications or expert reports besides Dr. Heist's certification were presented to the motion judge. In an oral opinion, Judge Farrell granted the motion and dismissed all claims for non-economic damages for two reasons:
(1) the absence of objective medical evidence of a permanent injury and (2) the failure to explain the nature of Raymondo's theory of aggravation. After the parties settled Raymondo's economic loss claim, this appeal followed.
An appellate court reviews a grant of summary judgment de novo, applying the same standard governing the trial court pursuant to Rule 4:46. Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46 (2007). Generally, the court must "consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995); see also R. 4:46-2(c).
"The very object of the summary judgment procedure... is to separate real issues from issues about which there is no serious dispute." Shelcusky v. Garjulio, 172 N.J. 185, 200-01 (2002). It obliges motion judges "to determine whether there is a genuine issue for trial." Brill, supra, 142 N.J. at 540; see also R. 4:46-2(c). That determination "does not require a court to turn a blind eye to the weight of the evidence; the 'opponent must do more than simply show that there is some metaphysical doubt as to the material facts.'" Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed. 2d 538, 552 (1986)), cert. denied, 507 U.S. 912, 113 S.Ct. 1262, 122 L.Ed. 2d 659 (1993); see also Triffin v. Am. Int'l Group, Inc., 372 N.J. Super. 517, 523-24 (App. Div. 2004).
What is required of the party opposing summary judgment is affirmative evidence that demonstrates the existence of a genuine issue for trial. Anderson v. Liberty Lobby, Inc. 477 U.S. 242, 256-57, 106 S.Ct. 2505, 2514, 91 L.Ed. 2d 202, 216-17. "Competent opposition requires 'competent evidential material' beyond mere 'speculation' and 'fanciful arguments.'"
Hoffman v. Asseenontv.Com, Inc., 404 N.J. Super. 415, 426 (App. Div. 2009). Plaintiffs' opposition largely fails because it rests upon assertions that lack support in the record or, in some instances, are authoritatively refuted by the evidence.
In this case, the only potentially viable element of the verbal threshold is "a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." N.J.S.A. 39:6A-8(a). That section further provides that an injury "shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment." Ibid.
In order to carry on beyond a motion for summary judgment, a plaintiff need only demonstrate "by objective credible evidence" that he suffered a "permanent injury." Juarez v. J.A. Salerno & Sons, Inc., 185 N.J. 332, 334 (2005). A plaintiff does not need to demonstrate a "serious life impact," DiProspero v. Penn, 183 N.J. 477, 481-82 (2005), or even a "serious injury." Serrano v. Serrano, 183 N.J. 508, 510 (2005).
Taking Dr. Heist's certification and the medical reports in the record, and giving Raymondo the benefit of the favorable inferences arising from them, we are satisfied that Raymondo has not met his burden of demonstrating that there is objective credible evidence that he suffered a permanent injury. The doctor's reliance -- without specificity and explanation -- upon the fact that Raymondo attended physical therapy is, as Judge Farrell indicated, "not  a basis for an objective finding." Moreover, the diagnostic studies performed in the emergency room on the day of the accident do not disclose any objective findings of permanent injury. In short, the record presented to the motion judge fully justified his grant of summary judgment dismissing Raymondo's claim for non-economic damages.
Because "[c]ausation is germane to the plaintiff's theory of aggravation of a pre-existing injury[,]" a comparative analysis is required in aggravation-pled cases to show, as a necessary element, that the aggravation was proximately caused by the accident. Davidson v. Slater, 189 N.J. 166, 185 (2007). A comparative analysis reveals the damages defendant actually caused, and because plaintiffs are in the better position to know "how a defendant's tort has affected or is related to prior or subsequent injuries or conditions[,]" it is plaintiffs' burden to provide one. Reichert v. Vegholm, 366 N.J. Super. 209, 214 (App. Div. 2004).
Although plaintiffs' initial pleadings did not clearly allege an aggravation of a prior injury, Judge Farrell treated plaintiffs' interrogatory answers indulgently, recognizing that those discovery materials obliquely suggested that they were pursuing such a claim. We agree with Judge Farrell's conclusion that plaintiffs failed to demonstrate sufficient evidence of causation "to establish the condition of [Raymondo before] the most recent accident, the conditions after, and what exactly was aggravated and what aggravation can be attributed to this accident."