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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...