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Katz v. Rooney

United States District Court, D. New Jersey, Camden Vicinage

November 29, 2017

SEYMOUR KATZ and DOROTHY KATZ Plaintiffs,
v.
WILLIAM ROONEY, JR. and PLANTATION BAY RESORT & CC, LLC et. al. Defendants.

          OPINION

          ROBERT B. KUGLER UNITED STATES DISTRICT JUDGE.

         This matter arises out of an automobile accident between Defendant William Rooney, Jr. (“Defendant”) and Plaintiffs Seymour Katz (“Mr. Katz”) and Dorothy Katz (“Mrs. Katz”), husband and wife (“Plaintiffs”). Pending before the Court are two motions: Defendant's Motion for Summary Judgment as to Counts One and Two of Plaintiffs' Complaint (Doc. No. 47), and Defendant's Motion for Summary Judgment as to Counts Three and Four of Plaintiffs' Complaint (Doc. No. 30). For the reasons set forth in the opinion below, Defendant's Motion for Summary Judgment as to Counts One and Two is DENIED, and Defendant's Motion for Summary Judgment as to Counts Three and Four is GRANTED.

         I. BACKGROUND

         On July 31, 2015, Mr. and Mrs. Katz were traveling from their home in Margate, New Jersey when their vehicle was rear-ended by a vehicle driven by Defendant. Pl.'s Br. at 1. The accident occurred at the intersection of Atlantic Avenue and Wyoming Avenue in Ventnor City, New Jersey. Id. At the time of the accident, Mr. Katz was operating the vehicle and Mrs. Katz was the passenger. Id. As a result of the accident, Plaintiffs allege that they sustained personal injuries. Compl. at 2-3. At the time of the accident, Plaintiffs, Florida residents, were insured by Liberty Mutual Insurance Company. Pl.'s Br. at 10. By virtue of the Deemer statute, Plaintiffs are subject to New Jersey's verbal threshold statute codified at N.J. Stat. Ann. § 39:6A-8a. See N.J. Stat. Ann. § 17:28-1.1.

         Following the accident, Mrs. Katz drove their vehicle home. Pl.'s Br., Ex. B. Mrs. Katz did not go to the emergency room after the accident or anytime thereafter. Id. Mrs. Katz alleged in her answers to Defendant's interrogatories that she sustained “headaches, anxiety, and myalgia, ” but she has not produced any medical reports to support these allegations. Def.'s MSJ No. 1 at 8. She has not provided the statutorily mandated certification required by N.J. Stat. Ann. § 39:6A-8a. Id. Furthermore, she testified at her deposition that she was not injured in the July 31, 2015 accident and that she did not have any permanent injuries. See Pl.'s Dep. at 9.

         Mr. Katz, on the other hand, was treated following the accident. Pl.'s Br., Ex. D-2. First, he was treated by Dr. Gerald R. Williams of the Rothman Institute in Bryn Mawr, PA on August 11, 2015, approximately two weeks after the accident. Id. Dr. Williams reported that Mr. Katz complained of pain in his right shoulder. Id. Dr. Williams' assessment was that Mr. Katz suffered from localized primary osteoarthritis of the right shoulder region and pain in the shoulder. Id. Additionally, Dr. Williams recommended that if Mr. Katz's pain worsened he should undergo an injection. Id. Dr. Williams further suggested that if Mr. Katz reached the point where he “absolutely could not live with his present condition, ” then Dr. Williams would consider performing a shoulder replacement procedure. Id.

         Dr. Williams subsequently referred Mr. Katz for physical therapy at Rasansky Physical Therapy (“Rasansky”) in Bala Cynwyd, PA. Pl.'s Br. at 3. A therapist at Rasansky performed an initial evaluation on August 17, 2016. He concluded that Mr. Katz suffered from shoulder osteoarthritis. Id. at Ex. D-3. Mr. Katz visited Rasansky fourteen times over a two-month period. He was discharged from physical therapy on October 21, 2015. Id.

         Dr. Pradeep Lothe, an internal medicine specialist in Wynnewood, PA, also treated Mr. Katz. Dr. Lothe treated Mr. Katz on August 3, 2015, September 2, 2015, and September 17, 2015. Pl.'s Br., Ex. D-4. Dr. Lothe noted that Mr. Katz complained of pain in his right shoulder. Id. Dr. Lothe concluded that Mr. Katz's pain stemmed from the accident and myalgia. Id.

         Dr. Lothe referred Mr. Katz to Dr. Steven E. Sachs, a neurological consultant. Pl.'s Br. at 4. Dr. Sachs observed Mr. Katz on August 25, 2015. Id. Dr. Sachs noted that as a result of the accident, Mr. Katz injured his right shoulder. Id. Dr. Sachs concluded that Mr. Katz had significant structural and mechanical injuries to his right shoulder and shoulder blade area as a result of the accident. Id. Dr. Sachs also noted that Mr. Katz had limited range of motion in his right shoulder and showed a degree of discomfort in his right arm. Id.

         On September 17, 2015, doctors from West Boca Medical Center ordered a Magnetic Resonance Imaging test (“MRI”) of Mr. Katz's right upper extremity. Pl.'s Br. at 5. The results showed a full thickness tear of the distal supraspinatus tendon which measured 2.5 by 1.2 centimeters. Id. There was atrophy of the supraspinatus muscle. Id. The infraspinatus muscle demonstrated diffuse increased signal edema consistent with tendinopathy. Id. Partial high-grade articular surface tearing was also noted. Id. Mr. Katz's bicep tendon also appeared to be subluxed from the bicipital groove through the partial subscapularis tear. Id. Additionally, the MRI revealed that Mr. Katz had full thickness and partial thickness rotator cuff tears. Pl.'s Br., Ex. D-6.

         On October 19, 2015 and July 6, 2016, Mr. Katz was evaluated by Dr. Norman B. Stempler. Pl.'s Br. at 5. Dr. Stempler determined that Mr. Katz's medical history was non-contributory. Id. Ex. D-7. Dr. Stempler's examination revealed evidence of subacromial and subdeltoid tenderness with a considerable loss of abduction. Id. On July 6, 2016, Dr. Stempler conducted a second MRI of Mr. Katz and reported that “it is likely that he is in need of a shoulder replacement.” Id.

         On November 9, 2016, Dr. Stempler issued a certification pursuant to N.J. Stat. Ann. § 39:6A-8a and maintained that as a result of the accident on July 31, 2015, Mr. Katz sustained significant injuries to his right shoulder and neck, including a right sided cervical sprain and strain. Pl.'s Br. at 5. Dr. Stempler also determined that Mr. Katz had aggravated degenerative cervical disk disease, peritendinitis and bursitis with impingement, and adhesive capsulitis and frozen shoulder. Id. In addition, Mr. Katz had internal derangement with aggravated advances, degenerative joint disease, and osteoarthritic changes of the right shoulder. Id. at Ex. E. Dr. Stempler stated that the injuries to Mr. Katz's neck and right shoulder were permanent. They had not healed to function normally and would not heal to function normally without further medical treatment. Id.

         On August 24, 2016, Mr. and Mrs. Katz brought a four-count Complaint (Doc. No. 1) against Defendant. Mr. Katz alleged permanent injuries as a result of the accident (Count One) and loss of consortium and companionship of his wife, Mrs. Katz, due to her permanent injuries as a result of the accident (Count Four). Similarly, Mrs. Katz alleged permanent injuries as a result of the accident (Count Three) and loss of consortium and companionship of her husband, Mr. Katz, due to his permanent injuries as a result of the accident (Count Two). Defendant moved for summary judgment (Doc. No. 47) on September 6, 2017 as to Counts One and Two, and moved for summary judgment (Doc. No. 30) on April 3, 2017 as to Counts Three and Four.

         II. ...


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