June 17, 2013
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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 surgery for February 2010, he changed his mind and declined surgery.
Plaintiff began treating with David Rosenbaum, MD, a board-certified neurologist, on October 14, 2010. Plaintiff complained of frequent headaches, lower back pain exacerbated by physical activity, and pain, tingling, and numbness in his left leg. Dr. Rosenbaum's physical examination revealed: a reduction in the pain-free range of motion in plaintiff's lumbar spine; a positive result on a straight left leg raising test, meaning plaintiff experienced pain when his left leg was raised; and significant spasm with tenderness of the paraspinal muscles on the left side, suggesting an ongoing, active process of injury.
Dr. Rosenbaum did not examine the 2007 or 2009 MRI films; instead, he reviewed the radiologists' reports from these studies. Additionally, Dr. Rosenbaum reviewed the raw data from a 2007 EMG/NCV test, which revealed signs of injury to the L5-S1 nerve roots on the left side; he advised these findings were consistent with injuries to the areas identified in the MRI reports. Dr. Rosenbaum also performed his own EMG study on November 15, 2010. This revealed evidence of L5-S1 radiculopathy on the left, which he felt was consistent with the earlier testing and MRI reports. Based on his review, Dr. Rosenbaum concluded plaintiff suffered an injury to the lumbar spine with disc displacements, causing injury to the nerve roots and resulting in pain and numbness down his left leg. He opined these injuries were permanent and would not heal to normal functionality, leaving plaintiff vulnerable to more serious injury if he suffered future trauma.
Dr. Rosenbaum sent plaintiff to his partner, Dariusz Nasiek, MD, a board-certified anesthesiologist and interventional pain management specialist. Following his examination and review of plaintiff's records, Dr. Nasiek concurred in Dr. Rosenbaum's diagnosis and, in December 2010, began a series of epidural steroid injections to alleviate plaintiff's pain. The injections provided temporary relief; during a January 4, 2011 evaluation, plaintiff told Dr. Rosenbaum that he was feeling better, with reduced pain so long as he was careful in his daily activities. Plaintiff insisted he "wanted to just get on with his life, [and] really didn't want to have any more treatments."
Trial was initially scheduled for March 7, 2011. Although plaintiff intended to call Dr. Lang to discuss his 2009 MRI report, plaintiff failed to secure his appearance and learned Dr. Lang would be vacationing out of the country and unavailable to testify at trial. Instead, plaintiff secured the appearance of Michael Amoroso, MD, a covering radiologist employed at the same facility and available to testify in place of Dr. Lang. Dr. Amoroso reviewed the 2009 MRI films and issued a report.
When plaintiff submitted Dr. Amoroso's newly-issued report and added him to the proposed witness list, defendants objected. The trial judge denied plaintiff's request to allow Dr. Amoroso to substitute for Dr. Lang, concluding plaintiff failed to exercise due diligence to secure Dr. Lang's appearance.
Trial commenced on March 7, 2011, and continued on March 8, 9, 10, 14, 15, and 16. Although Dr. Lang returned from vacation on March 14, plaintiff was unable to secure the radiologist's appearance at trial. Plaintiff therefore requested permission to take his de bene esse deposition, suggesting Dr. Lang's schedule prohibited his attendance. The judge denied this request, but, as an accommodation, agreed to allow Dr. Lang to appear anytime during the last two days of trial. Plaintiff called Drs. Rosenbaum, Nasiek, Klempner, and Orlikowski, to provide factual testimony regarding their respective treatments and expert opinions regarding the nature and cause of his injuries. Plaintiff and his wife also testified. Plaintiff explained how the accident occurred, the nature of his injuries, and how the experienced physical limitations affected his life.
By way of background, plaintiff is a door-to-door salesman for a home improvement company. To put his testimony in context, he makes approximately eight house calls per day, carrying product samples to prospective clients. The samples may include ceramic tiles, hardwood flooring, carpeting, bathliner, and window treatments, which plaintiff carries in as many as four bags from his car to the front door of a customer's residence. According to plaintiff, prior to the February 2007 accident, his job involved driving 200 to 250 miles daily, or 9, 600 to 12, 000 miles each year.
Plaintiff explained that as a result of the accident he felt he had to "calculate everything in [his] life" to decide whether or not a particular activity or task will re-aggravate his injuries. During work, plaintiff explained, some customers live on the third or fourth floor of an apartment complex, accessible only by stairs, so he must decide whether to lessen the weight of his bags by presenting fewer samples, thereby reducing his sales, or attempt to carry everything and possibly increase the risk of aggravating his condition. In recent years, plaintiff requested to be removed from the ceramic tile product line because the samples weighed about thirty pounds. He also curtailed his daily driving because of the discomfort, requesting assignments to local appointments only.
Addressing the effect of his injuries on his personal life, plaintiff testified the pain sometimes impeded his ability to carry his baby, run, and play soccer with his older children. Further, he cannot shop for groceries, go to the bathroom, clean the house, or stand to wash dishes without pain, which, though, is temporarily alleviated by treatment. Plaintiff's wife's testimony largely mirrored his, noting plaintiff could no longer play with the children, perform household tasks, play soccer, or go for runs without experiencing pain.
At the close of the evidence regarding plaintiff's personal injuries, defendants moved for a directed verdict, seeking dismissal of plaintiff's claims for non-economic damages. Defendants argued there was no proof of causation and plaintiff failed to prove he suffered a substantial loss of a bodily function. The trial judge initially reserved her decision and later granted defendants' motion. The trial concluded with evidence of plaintiff's claims for economic damages, and Watson's testimony. The jury returned a verdict for plaintiff, awarding damages on his economic loss.
Plaintiff appeals, arguing the trial judge erred in ordering the involuntary dismissal of his claims for pain and suffering.
An involuntary dismissal is governed by Rule 4:37-2. At the close of the plaintiff's evidence, a defendant, "without waiving the right to offer evidence in the event the motion is not granted, may move for a dismissal of the action or of any claim on the ground that upon the facts and upon the law the plaintiff has shown no right to relief." R. 4:37-2(b). A plaintiff successfully defeats such a motion when "the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor." Ibid.
At this stage, the judge is not concerned with the quantum of evidence, but must determine whether the plaintiff has shown a prima facie case for relief. See Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969) ("The point is that the judicial function here is quite a mechanical one. The trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion.").
After giving the plaintiff all favorable inferences which can reasonably and legitimately be deduced from the proofs, if the court finds the plaintiff has presented "a sufficient quantum of evidence on each of the elements of the causes of action tried to the jury, " the motion for involuntary dismissal must be denied and the case submitted for the jury's determination. Fox v. Millman, 210 N.J. 401, 428 (2012); Dolson, supra, 55 N.J. at 5-6. Dismissal of the cause is warranted only when "no rational jury could conclude from the evidence that an essential element of the plaintiff's case is present." Pressler & Verniero, Current N.J. Court Rules, comment 2.1 on R. 4:37-2 (2013).
We apply this same standard in our de novo review of a trial judge's grant or refusal of a motion for involuntary dismissal. See Chance v. McCann, 405 N.J.Super. 547, 563 (App. Div. 2009).
We also must consider the parameters of the TCA, which governs plaintiff's right of action against the municipality. See Knowles v. Mantua Twp. Soccer Ass'n, 176 N.J. 324, 329 (2003) (stating the TCA "controls when and under what circumstances public entities are liable for non-economic damages such as pain and suffering"). We start by restating the "guiding principle" of the TCA, which "is that immunity from tort liability is the general rule and liability is the exception." D.D. v. Univ. of Med. & Dent. of N.J., 213 N.J. 130 (2013) (internal quotation marks and citations omitted). Several limitations are contained throughout the TCA's provisions. Applicable here is N.J.S.A. 59:9-2d, which sets forth the threshold for recovery:
No damages shall be awarded against a public entity or public employee for pain and suffering resulting from any injury; provided, however, that this limitation on the recovery of damages for pain and suffering shall not apply in cases of permanent loss of a bodily function, permanent disfigurement or dismemberment where the medical treatment expenses are in excess of $3, 600.00.
At trial, the parties stipulated plaintiff met the $3600 monetary threshold. Therefore, at issue is whether plaintiff's proofs satisfactorily adduced evidence of "a permanent loss of bodily function."
In Gilhooley v. Cnty. of Union, the Supreme Court reiterated the two-pronged test to ascertain whether a plaintiff has suffered a permanent loss of a bodily function sufficient to vault the TCA threshold. 164 N.J. 533, 540-41 (2000). A plaintiff must show "'(1) an objective permanent injury, and (2) a permanent loss of a bodily function that is substantial.'" Knowles, supra, 176 N.J. at 329 (quoting Gilhooley, supra, 164 N.J. at 541). Under the first prong, there must be an "objective injury, " Thorpe v. Cohen, 258 N.J.Super. 523, 530 (App. Div. 1992), established by "objective medical evidence in the record, " Hammer v. Twp. of Livingston, 318 N.J.Super. 298, 305 (App. Div. 1999). Furthermore, "a plaintiff must prove by objective medical evidence that the injury is permanent." Brooks v. Odom, 150 N.J. 395, 402-03 (1997). A plaintiff cannot recover for "[t]emporary injuries, no matter how painful and debilitating, " nor "for mere 'subjective feelings of discomfort.'" Id. at 403 (quoting Ayers v. Twp. of Jackson, 106 N.J. 557, 571 (1987)). Accordingly, a plaintiff may not recover if the impact of his injury is limited to "lingering pain, resulting in a lessened ability to perform certain tasks because of the pain." Knowles, supra, 176 N.J. at 332.
The second prong imposes a substantiality requirement; the injury must be substantial. The test does not require a total loss of bodily function, but the loss must be more than a mere limitation. Brooks, supra, 150 N.J. at 406. There are no per se rules which "preclude finding a permanent and substantial loss of a bodily function merely because a claimant still is able to function reasonably well at work and at home, irrespective of the nature or degree of the impairment." Ponte v. Overeem, 171 N.J. 46, 53 (2002). Each case is fact-sensitive, focusing on the "'nature or degree of the ongoing impairment.'" Knowles, supra, 176 N.J. at 331 (quoting Ponte, supra, 171 N.J. at 53); Kahrar v. Borough of Wallington, 171 N.J. 3, 15 (2002) (identifying "the degree of injury and impairment" as the appropriate focus). Nevertheless, in every case, a plaintiff must be able to identify some physical manifestation of permanency. See Ponte, supra, 171 N.J. at 54.
Several cases have examined whether injuries should be classified as either "substantial" or "minor." Knowles, supra, 176 N.J. at 331. Injuries causing blindness, disabling tremors, paralysis, and loss of taste or smell meet both prongs as "such injuries, by their very nature, are objectively permanent and implicate the substantial loss of a bodily function (e.g., sight, smell, taste, and muscle control)." Gilhooley, supra, 164 N.J. at 541. An injury vaults the threshold when it permanently renders a limb or bodily organ "substantially useless but for the ability of 'modern medicine [to] supply replacement parts to mimic the natural function[.]'" Knowles, supra, 176 N.J. at 332 (quoting Gilhooley, supra, 164 N.J. at 542). Thus, the Court in Kahrar, supra, found substantial a severely torn rotator cuff requiring surgical repair that shortened the tendon and resulted in a forty percent reduction in range of motion in the arm. 171 N.J. at 15-16. Similarly, a fractured patella, impeding the plaintiff's ability to climb stairs, stand from and sit on a chair, and walk efficiently, was found to satisfy the second prong because the knee "could not function without permanent pins and wires to re-establish its integrity." Gilhooley, supra, 164 N.J. at 536, 541-42. In Knowles, supra, the plaintiff suffered a disc herniation causing severe back pain, "lack of feeling in his left leg and the inability to stand, sit, or walk comfortably for a substantial amount of time, engage in athletics, and complete household chores." 176 N.J. at 328, 333. The plaintiff was unable to sit or stand for longer than thirty minutes without experiencing pain, and was unable to walk more than a quarter mile. Id. at 328. Although the plaintiff was able to maintain his occupation as a teacher, the Court "declined to adopt the ability to work as a litmus test for recovery[.]" Id. at 333 (citing Kahrar, supra, 171 N.J. at 14-15).
On the other hand, the Court rejected claims of permanency in Brooks, supra, as the plaintiff's pain and limitation of motion in her neck and back did not preclude the plaintiff's ability to "function both in her employment and as a homemaker, " albeit with some difficulty performing basic household tasks such as vacuuming. 150 N.J. at 400, 406. In Ponte, supra, the plaintiff's evidence she underwent arthroscopic knee surgery, including a partial medial menisectomy, partial synovectomy, and chondroplasty of the patella, was found insufficient because she offered no objective evidence of a physical manifestation of permanent and substantial injury to the knee, and no evidence of a substantial restriction in the function of the knee, such as a limited range of motion, impaired gait, or restricted ability to ambulate. 171 N.J. at 49, 54. Finally, in Heenan v. Greene, this court concluded the plaintiff, who suffered a herniated cervical disc, failed to satisfy the substantiality requirement despite experiencing some restriction of neck movement, as she returned to teaching, albeit in a different capacity, without missing any work, and continued to play sports and perform household chores, taking appropriate breaks. 355 N.J.Super. 162 (App. Div. 2002).
We now turn to the analysis of the facts at hand, considering whether plaintiff's case should have been submitted to the jury because it included sufficient "objective medical evidence" of a permanent and substantial injury caused by defendants' conduct. We note plaintiff stipulated his cervical injury and headaches had resolved, limiting examination to his lumbar spine injury. The trial judge found the proofs were deficient. Plaintiff suggests this finding was error, reciting the testimony offered by his experts. Following our review, we distil the issue to this: whether plaintiff, who proved he had one and possibly two herniated discs in 2009, introduced evidence to link those injuries to the February 21, 2007 motor vehicle accident? The answer is no.
Dr. Orlikowski testified the April 11, 2007 MRI revealed "a good size[d] hernia[, ] . . . pinch[ing] on the L5 nerves on the left and the right[, ]" which he opined was caused by the accident. However, Dr. Orlikowski never viewed the MRI films; rather, he only read the radiologist's report. Thus, he could not verify the radiologist's findings, which were inadmissible hearsay.
Dr. Rosenbaum's October 14, 2010 evaluation included EMG/NCV and other objective testing. His evaluation showed some sign of injury, specifically nerve inflammation, at L5-S1 on the left side. He was permitted to testify regarding the MRI findings based on a proffer that the findings would be introduced through Dr. Klempner, who reviewed the actual films. Dr. Rosenbaum admitted he did not review either set of MRI films, but merely considered the radiologists' reported findings. He noted the 2007 report revealed a "mild central bulge at C4-5[, ]" a condition we need not consider based on plaintiff's stipulation, and the 2009 film showed a "relatively recent" lumbar herniation at L5-S1. Dr. Rosenbaum discussed plaintiff's current conditions, including the lumbar herniation, and the results of the nerve conduction tests, evincing a problem permanent in nature, but he could not link these conditions to the 2007 accident. As the trial judge stated: "The problem with the EMG findings is that no one tells me that the nerve compression is caused by the herniation and the herniation is caused by the motor vehicle accident."
Dr. Nasiek provided pain management to alleviate the symptoms of plaintiff's current left-side radiculopathy. He too never reviewed the MRI films.
Dr. Klempner was the only expert who reviewed the 2007 and 2009 MRI films, in the course of conducting his personal evaluation of plaintiff's condition. During trial, he detailed his review and conclusions from the 2009 MRI, which unmistakably revealed one or possibly two herniated discs, along with structural spine disease, for which he recommended surgical intervention. However, he did not provide the same analysis regarding his review of the imaging studies conducted on April 11, 2007; nor did he compare the two MRI studies to show how the conditions presented in 2009 were related to or emanated from those revealed shortly following the accident in 2007.
Discussing the 2007 MRI, Dr. Klempner simply stated the films showed a desiccated disc, as the disc material was darkened, which he stated "was not normal." He also noted some impingement of the L5 nerve roots. However, he did not reveal which disc was desiccated, nor did he mention a herniation, as suggested by Dr. Orlikowski.
Dr. Klempner conceded he could not say plaintiff suffered the herniations visible in the 2009 MRI as a result of the 2007 motor vehicle accident. He could only surmise they were related to the accident based on plaintiff's historical account of symptoms and treatment. However, he never testified he observed any lumbar disc bulges or herniations on the April 2007 films; nor did he identify the location of the observed disc desiccation.
The various experts concluded the herniations and other conditions observed were related to the automobile accident, but those opinions were not based on objective medical evidence. Under these facts, plaintiff cannot prove the accident caused his claimed permanent lumbar injury or substantial loss of bodily function, visible in 2009, absent submission of testimony by the radiologist who performed the 2007 MRI and concluded plaintiff suffered a herniation, or a doctor who reviewed the MRI films. Plaintiff merely supplied the hearsay radiology reports, and his experts linked them to the current lumbar conditions. This is insufficient. See Moreno v. Greenfield, 272 N.J.Super. 456, 463-64 (App. Div. 1994) (explaining in the context of the verbal threshold requirements of N.J.S.A. 39:6A-8a, an expert's opinion as to the causal relationship between a patient's subjective complaints and a traumatic event must be supported by some objective data).
Although Dr. Klempner viewed the 2007 MRI, his testimony failed to identify a medical condition objectively visible on that MRI and link that condition to his 2009 findings. Plaintiff's proofs did not establish causation, as there is no nexus between the accident and his conditions.
Next, plaintiff asserts he properly satisfied the threshold's second prong, requiring proof of substantial loss of bodily function. He argues the accident caused a "significant[ly] adverse impact . . . on his ability both at work and at home. He has a loss of feeling in his leg, cannot exercise, play soccer[, ] complete household projects, drive long distances[, ] or lift samples in his sales work." Plaintiff also focuses on Dr. Klempner's medical recommendation of surgical intervention, suggesting that alone satisfies the test. We are not persuaded.
The evidence reveals plaintiff resumed working shortly after the accident, driving long distances and carrying all samples, including the thirty-pound ceramic tiles. He told Dr. Nasiek he received relief from the pain injections but wanted to stop treatment and go on with his life. Plaintiff described a need to "calculate everything in [his] life" or modify his behavior, such as when faced with the need to carry samples up several flights of steps or perform activities such as household chores with some pain. However, at no point did he or any of his experts identify a bodily function he was physically incapable of performing as a result of his injuries. Plaintiff's lumbar injury did not substantially prevent him from walking, carrying heavy objects, standing, driving, climbing stairs, working, washing dishes, cleaning, or engaging in other instances of daily living. Perhaps he experienced pain at times, such as when engaged in certain activities, and he admittedly modified his conduct to avoid such a consequence. Nevertheless, the existence of pain represents "mere 'subjective feelings of discomfort[, ]'" which does not satisfy the statute. Gilhooley, supra, 164 N.J. at 540 (quoting Brooks, supra, 150 N.J. at 403).
We reject the suggestion that Dr. Klempner's surgical recommendation alone satisfies the test. Plaintiff chose not to undergo surgery, showing it was one of the available alternatives to mitigate his discomfort, but certainly not the only available recourse. These facts are distinguishable from those in Gilhooley, supra, where the plaintiff's fractured patella resulted in complete loss of quadriceps power, leaving her unable to walk or engage in other normal activities such as climbing stairs and standing up from a sitting position. 164 N.J. at 536. The plaintiff required an open reduction internal fixation, wherein wires and pins were inserted into her knee to re-establish its integrity. Id. at 536-37. In concluding the plaintiff satisfied the second prong of the TCA threshold, the court explained: "[T]he accident caused [her] to lose forever the normal use of her knee that, thereafter, could not function without permanent pins and wires to re-establish its integrity." Id. at 541-42. See also Kahrar, supra, 171 N.J. at 6-7 (finding substantial loss of bodily function where the plaintiff's massive rotator cuff tear was surgically reattached, but the procedure removed a portion of the shoulder bone and consequently "shortened the length of the tendon which reduced the function of the [plaintiff]'s arm movement"). As the Court noted in Kahrar, supra, the degree of injury and impairment must be the focal point of the analysis. 171 N.J. at 15. Here, none of plaintiff's limbs or organs were rendered "substantially useless but for the ability of modern medicine to supply replacement parts." Knowles, supra, 176 N.J. at 332 (internal quotation marks and citations omitted). Plaintiff cannot demonstrate a substantial loss of any bodily function. Moreover, he continues the events of daily living and working without the benefit of surgery.
We also find untenable plaintiff's suggestion that his claim for non-economic damages would not have been the subject of involuntary dismissal had the trial judge permitted Dr. Amoroso to testify or allowed a de bene esse deposition of Dr. Lang. Our determination that plaintiff failed to fulfill the requirements of N.J.S.A. 59:9-2d obviates the need to discuss at length plaintiff's challenge to the judge's exercised discretion in denying his request to substitute Dr. Amoroso for the absent Dr. Lang. See Rivers v. LSC P'ship, 378 N.J.Super. 68, 80 (App. Div.) (holding this court defers to the trial court's disposition of discovery matters unless presented with an abuse of discretion or a determination based on a mistaken understanding of the applicable law) (citation omitted)), certif. denied, 185 N.J. 296 (2005). The broken link in plaintiff's proofs, precluding any causal nexus between the motor vehicle accident and his lumbar injuries, was the absence of evidence of lumbar injury in the 2007 MRI linked to the accident. Even if Dr. Amoroso testified regarding the results of the 2009 MRI, evidence tying those results to the accident remained absent.
Further, plaintiff ignored the discovery deadlines imposed by Rules 4:24-1 and 4:17-7. Dr. Amoroso's report should have been produced at least twenty days prior to the end of discovery, not one day prior to the commencement of trial. R. 4:17-7. Once a trial date is set, discovery extensions are permitted only upon a showing of "exceptional circumstances." R. 4:24-1(c). If an extension is sought, it must be filed in writing and supported by an affidavit of due diligence, R. 4:17-7, a step also omitted by plaintiff. Despite these procedural lapses, the trial judge considered the circumstances precluding Dr. Lang's presence at trial, as advanced by plaintiff, rejecting them as less than exceptional and concluding plaintiff had not otherwise exercised due diligence.
Finally, the comparative negligence challenge asserted by defendants in their cross-appeal is found to lack sufficient merit to warrant discussion in our opinion. R. 2:11-3(e)(1)(E). We note defendants did not present sufficient evidence from which the jury could reasonably conclude plaintiff's conduct was a proximate cause of the accident. Watson acknowledged the accident was entirely his fault, and no evidence was offered evincing negligence on the part of plaintiff Accordingly instructing the jury as to comparative negligence would not have been justified