July 2, 2012
LJ CALDWELL, JR. AND MYRA CALDWELL, PLAINTIFFS-APPELLANTS,
RAUL ALVARADO HERNANDEZ, DEFENDANT-RESPONDENT, AND FIRST TRENTON INDEMNITY COMPANY, DEFENDANT/INTERVENOR-RESPONDENT.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-1994-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued June 12, 2012
Before Judges Axelrad and Parrillo.
Plaintiff, LJ Caldwell, Jr., appeals from the summary judgment dismissal of his personal injury automobile negligence complaint*fn1 against defendant Raul Hernandez,*fn2 for failure to provide an expert comparative medical analysis. We affirm.
Plaintiff is subject to the "limitation on lawsuit" (verbal) threshold set forth in N.J.S.A. 39:6A-8 and in accordance with the provisions of his automobile insurance policy. The subject accident occurred on October 14, 2006, when the vehicle plaintiff was operating was rear-ended by defendant's car, forcing plaintiff's vehicle to strike the car in front of him.
Plaintiff received emergency room treatment and was discharged with complaints of headaches and pain in his neck, shoulders, legs and back. He began treating with Dr. Antonio Ciccone on October 17, 2006 and continued through February 25, 2009. Plaintiff's treatment consisted of a variety of pain management, including trigger point injections, percutaneous electrical nerve stimulation therapy and low level laser treatment, as well as physical therapy and chiropractic care. At the end of his treatment, on March 24, 2009, plaintiff still complained of continuing headaches, stiffness in his neck, and lower back pain radiating into his right leg and occasionally into his left leg.
During the course of plaintiff's treatment, MRIs of his cervical and lumbosacral spine were conducted on December 8, 2006, revealing disc bulging in the cervical spine at C4-5, C5-6, and C6-7 with thecal sac indentation and foraminal narrowing; disc bulging in the lumbosacral spine at L3-4 and L4-5 with facet prominence and mild thecal sac contact; and a herniated disc at L5-S1 contacting the thecal sac. By comparison, a later MRI of plaintiff's cervical spine conducted on October 21, 2008, showed disc bulging with superimposed posterior disc herniation at C4-C5 effacing the ventral CSF space with cord contact, while the lumbar MRI remained essentially unchanged with annular disc bulging at L3-4 and L4-5 with mild bilateral foraminal encroachment and a herniated disc at L5-S1. A needle EMG on October 14, 2008 revealed right radiculopathy at L5-S1, right carpal tunnel syndrome, and peripheral neuropathy. In his physician's certification of September 20, 2010, Dr. Ciccone opined that within reasonable medical probability, plaintiff's cervical and lumbar spine injuries have not healed to function normally and would not heal to function normally with additional medical treatment.
In his initial evaluation of plaintiff on November 3, 2006, however, Dr. Ciccone noted that plaintiff "relates history of a previous motor vehicle accident in 2000 and was feeling 85% better prior to [instant] accident." Dr. Ciccone also reported that plaintiff "relates with cervical and lumbar spine residual pain from previous injury and MRI's [sic] done for it."
Specifically, plaintiff suffered injuries to his back, neck, shoulders and legs in a work-related accident in 2000 when he fell six or seven feet from a moving truck onto pavement. Following the accident, plaintiff experienced headaches and pain in his neck, shoulders, entire back and legs. He missed six months to a year of work as a result of these injuries.
By his own account, plaintiff never fully recovered from the 2000 incident and was only 80% better at the time of the 2006 motor vehicle accident. Although not expressly pled in his instant complaint against defendant Hernandez, when asked in interrogatories whether "a previous injury . . . is claimed to have been aggravated, accelerated, or exacerbated," plaintiff answered:
In addition, and/or in the alternative, if proven that any and all of the above-referenced conditions pre-existed the subject motor vehicle accident, plaintiff claims that said conditions were asymptomatic; and, that said predispositions or weaknesses made plaintiff more susceptible to the kinds of medical problems claimed in this case. Furthermore, the subject accident combined with and/or aggravated the plaintiff's predisposed or weakened conditions to cause plaintiff to suffer symptoms, to cause plaintiff to sustain damages, and to create the plaintiff's post-accident medical condition and as set forth in any and all medical records and reports annexed hereto and to be provided in continuing discovery.
Likewise, in his March 24, 2009 deposition, plaintiff responded affirmatively to defense counsel's question "[w]ould you say that the October 14th, 2006 accident aggravated some prior condition that you had[,]" and further testified that, before the instant accident, he was about 80% better; that, of the injuries from the present accident, none were new; and that all of the injuries were aggravated injuries and had recurred from the 2000 accident.
Upon completion of discovery, the matter was scheduled for an expedited jury trial at the commencement of which defendant moved "in limine" to dismiss plaintiff's complaint with prejudice because the plaintiff failed to provide a comparative medical analysis of his 2000 and 2006 injuries. Treating it as a motion for summary judgment, the court adjourned the matter to allow plaintiff sufficient time to respond. Following oral argument, the court granted the motion to dismiss for want of an expert comparative analysis, citing Davidson v. Slater, 189 N.J. 166 (2007), and reasoning:
Plaintiff argues that the discussion of aggravation of existing injuries only occurred during the course of the discovery process; and as a result, it cannot be said that Plaintiff had "pled" aggravation of pre-existing injuries. Davidson does not expressly state whether evidence as to aggravation advanced by the plaintiff in the discovery process, but not pled in the complaint, is sufficient to justify the finding of an aggravation claim. However, Davidson does state that "[w]hen a plaintiff alleges aggravation of pre-existing injuries as the animating theory for the claim, then plaintiff must produce comparative evidence to move forward [. . . .]" Id. [at 170] (emphasis added). Here, the aggravation of existing injuries is clearly an animating theory for the claim despite the fact that aggravation was not expressly addressed in the pleadings. Furthermore, if an aggravation claim may only be found if it is mentioned in the pleadings, parties could simply omit this information from the complaint and advance evidence of pre-existing injury during the discovery process in order to circumvent the procedural requirements for bringing an aggravation claim. This would undermine the inherent purpose of AICRA's requirement to provide a comparative medical analysis.
Here, the Plaintiff is effectively asserting an aggravation claim. This is distinguishable from Davidson, in which the plaintiff was asserting a non-aggravation claim. The Supreme Court's decision to allow Plaintiff to move forward in her case upon a showing that she sustained permanent injury was based on the initial determination that the plaintiff did not allege aggravation of pre-existing injuries. Thus, the fact that the plaintiff in Davidson was permitted to proceed without the submission of a comparative medical analysis is not helpful to Plaintiff in this case. As a result, a comparative medical analysis is necessary for a fact-finder to determine the extent of the injuries that can be attributed to the 2006 accident. Plaintiff has not provided this analysis; and as a result, defendant's motion to dismiss is granted.
On appeal, plaintiff argues that defendant's motion was procedurally untimely and that, in any event, the court misconstrued the Davidson ruling. We deem these issues without sufficient merit to warrant extended discussion in this opinion.
R. 2:11-3(e)(1)(E). Suffice it to say, the trial judge properly exercised his discretion to treat the motion as one for summary judgment and to relax the requirement that it be returnable no less than thirty days before the scheduled trial date. R. 4:46-1.
With regard to the Davidson ruling, we perceive no error in its application here, as the motion judge properly found that plaintiff's interrogatory answers and deposition testimony clearly suggest plaintiff is pursuing an aggravation of a prior injury claim although not explicitly pled in his complaint. 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, supra, 189 N.J. at 185. We therefore agree with the motion judge's conclusion that plaintiff failed to demonstrate sufficient competent evidence of what aggravation can be attributed to the instant accident, and therefore affirm, substantially for the reasons stated in his written opinion of October 6, 2011.