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Bredell v. Palischak

October 4, 2010

RAYMONDO F. BREDELL AND ANNETTE BREDELL, PLAINTIFFS-APPELLANTS,
v.
MICHAEL P. PALISCHAK, DEFENDANT/THIRD-PARTY PLAINTIFF-RESPONDENT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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.

I.

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 ...


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