United States District Court, D. New Jersey, Camden Vicinage
B. KUGLER UNITED STATES DISTRICT JUDGE.
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
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.
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.
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
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.
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.
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.
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.
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.
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
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.