TILAL Y. OSMAN and KATHERINE OSMAN, Plaintiffs-Appellants/ Cross-Respondents,
EUGENE R. WATSON and TOWNSHIP OF NORTH BERGEN, Defendants-Respondents/ Cross-Appellants.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued February 26, 2013
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-638-09.
Keith J. Roberts agued the cause for appellant/ cross-respondent (S. Gregory Moscaritolo, LLC, attorneys; S. Gregory Moscaritolo, on the brief).
Roosevelt Jean argued the cause for respondent/cross-appellant (Chasan Leyner & Lamparello, PC, attorneys; Mr. Jean, on the brief).
Before Judges Lihotz and Kennedy.
Plaintiff Tilal Y. Osman appeals from the dismissal of his claims for noneconomic damages against defendants Eugene Watson and Watson's employer, the Township of North Bergen (defendants), arising out of a 2007 motor vehicle accident. On appeal, plaintiff argues the trial court erred in concluding he failed to satisfy the requirements of the New Jersey Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, and in granting defendants' motion for involuntary dismissal on that basis. Plaintiff argues the trial court applied the wrong legal standard and failed to give all reasonable inferences to plaintiff. Defendants' cross-appeal challenges the jury instructions. We affirm.
The facts are taken from the trial record. We confine our recitation to those facts related to the issues on appeal.
The accident occurred in North Bergen on February 21, 2007. While driving defendant's truck (Blazer Jimmy) northbound on Route 1/9 in the course of his duties as a mechanic, Watson received a call to pick up his supervisor. In an effort to enter a parking lot on the other side of the street where he could turn around, Watson turned left and crossed the double yellow line separating the northbound and southbound lanes of traffic. Watson crossed Route 1/9 in front of plaintiff's vehicle, which was traveling southbound. Plaintiff's vehicle collided with the rear panel of defendant's truck. Although plaintiff's vehicle was totaled upon impact, plaintiff appeared unscathed. He declined medical assistance from responding paramedics, whom he told he was fine, and returned home.
The following morning, plaintiff experienced neck and back pain so severe he could barely walk. He went to the emergency room, where he received an injection of numbing agents. X-rays were negative for fractures. The doctors found no other issues warranting treatment and, therefore, discharged plaintiff.
Over the ensuing days, plaintiff continued to experience headaches, neck pain, and back pain. He then sought treatment from Jeffrey P. Orlikowski, DC, on February 26, 2007. Plaintiff presented with headaches, lower back pain, leg pain, and leg weakness, with heightened pain on flexion, extension, and various bending maneuvers. Dr. Orlikowski noted plaintiff suffered spasms and a reduced range of motion, for which he provided "conservative" treatment including light chiropractic adjustments, electrical muscle stimulation to relax the muscles, heat, and massage. Dr. Orlikowski further evaluated plaintiff on April 4, May 14, and July 24, 2007, and also provided weekly adjustments between evaluations. During the second evaluation, Dr. Orlikowski noted plaintiff's reduced muscle strength, reduced range of motion, pain, and inward, instead of outward, curving of a certain region of the spine. Dr. Orlikowski recommended a lumbar MRI to evaluate plaintiff's lower back.
The MRI report revealed disc desiccation, a lumbar bulge, and impingement of the L5 nerve roots. Although Dr. Orlikowski became more aggressive in treatment following receipt of the MRI report, his treatment concluded on July 24, 2007.
Beginning in April 2007, and ending two years later, plaintiff commenced treatment with a neurologist. Plaintiff advised his neck "felt perfect, " and he had returned to work without restrictions. At the time of trial, the neurologist was not called to testify because his medical license was under suspension.
Plaintiff next consulted with William Klempner, MD, a board-certified neurosurgeon, on October 28, 2009. Dr. Klempner considered plaintiff's medical history and records, reviewed the April 2007 MRI films, and elicited plaintiff's subjective complaints. He concluded plaintiff suffered from a structural spinal disease known as internal disc derangement. To ensure reliance on up-to-date information, Dr. Klempner ordered a second MRI study, which was performed by 401 Medical Imaging's radiologist, Jeffrey Lang, MD. Dr. Lang summarized his findings from the films in a report. Dr. Klempner also reviewed the films and reached similar conclusions as Dr. Lang, reporting disc desiccation, a left-side disc herniation at L4-5, and bulging and a small midline disc herniation at L5-S1.
In December 2009, Dr. Klempner recommended an anterior lumbar interbody fusion, a procedure designed to stabilize the spine by replacing the disc with a prosthetic device and eventually resulting in a solid fusion. Although plaintiff originally scheduled the ...