NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ." Although it is posted on the internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-0554-19T1
BEN TORRES and CHRISTINA TORRES,
Plaintiffs-Appellants,
v.
TIMOTHY DOHERTY and TRACY FOWLER,
Defendants-Respondents. __________________________
Submitted December 7, 2020 – Decided February 1, 2021
Before Judges Rothstadt and Mayer.
On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Docket No. L-0383-18.
Sacco & Fillas, LLP, attorneys for appellants (James R. Baez, on the briefs).
Difrancesco Bateman, attorneys for respondent Timothy Doherty (Richard J. Guss, on the brief).
PER CURIAM Plaintiffs Ben and Christina Torres appeal from a September 13, 2019
order granting defendant Timothy Doherty's motion for summary judgment,
dismissing their complaint and denying their motion to reopen and extend
discovery, and from a November 18, 2019 order denying plaintiffs' motion to
vacate. Plaintiffs filed their complaint seeking damages for injuries sustained
in an automobile accident with defendant. Judge Thomas C. Miller granted
summary judgment and dismissed plaintiffs' complaint because they did not
provide expert opinion evidence establishing that their injuries vaulted the
"Limitation on Lawsuits" verbal threshold under the Automobile Insurance Cost
Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35.
On appeal, plaintiffs argue that other medical evidence satisfied the
threshold, and, in any event, the judge should have granted their motion to
reopen and extend discovery because they established "exceptional
circumstances." Finally, they argue that Judge Miller erred by denying their
motion to vacate because a report from Christina's 1 treating doctor, obtained on
September 23, 2019, and their medical records regarding treatment in early
September 2019 constitute "newly discovered evidence" that would have altered
1 We refer to the individual plaintiffs by their first names for clarity and to avoid any confusion caused by their common surname. A-0554-19T1 2 the outcome of the September 13, 2019 order. We affirm both orders
substantially for the reasons stated by Judge Miller in his comprehensive written
decisions issued in support of the challenged orders.
We derive the following facts from the evidence submitted by the parties
in support of, and in opposition to, the summary judgment motion, viewed in the
light most favorable to plaintiffs, the parties who opposed entry of summary
judgment. Edan Ben Elazar v. Macrietta Cleaners, Inc., 230 N.J. 123, 135
(2017).
The accident occurred in November 2017 when defendant struck
plaintiffs' vehicle in the rear. At the time, Ben was driving and Christina,
plaintiffs' children, and their dog were passengers.2 The impact of the collision
caused plaintiffs' car to strike a vehicle in front of them that was being driven
by defendant Tracy Fowler.3
Plaintiffs allegedly sustained injuries in the accident for which they
received treatment. After the accident, Ben did not immediately feel pain, but
2 At the time, plaintiffs were New York residents, and their vehicle was registered in that state. The complaint erroneously identified plaintiffs' residence as Burlington County, New Jersey. 3 Defendant Tracy Fowler is not a party to this appeal. At some point, she was dismissed from the litigation by stipulation of the parties. A-0554-19T1 3 did start feeling pain in his lower back "once the adrenaline kind of calmed [him]
down." He spoke with a police officer at the scene and explained what
happened, and when he was evaluated after an ambulance arrived, he told the
response team that his lower back was hurting, but he did not want to go to a
hospital. When he left the accident scene, the pain in his lower back was "about
six" on a scale of one to ten. Ben never had lower back pain of that nature before
the accident.
Ben first sought chiropractic treatment two days after the accident for pain
in his lower back and neck, headaches, and tingling around his neck and shoulder
on the right side. A treatment plan was developed that included acupuncture,
chiropractic adjustments, and physical therapy. Ben initially went for treatment
three times per week but stopped in "January or February" 2018 because he did
not feel he was improving. He soon after started treatment with another medical
provider at Peak Performance and continued physical therapy there for "close to
a year."
Ben also underwent a nerve test and an MRI on his neck and back. He
understood from a conversation with one of his doctors about the MRI results
that he had "discs that were bulging" on his neck and lower back. The MRI
records indicated there were herniations and his treatment records stated that he
A-0554-19T1 4 had sprains and strains throughout his spine. Treating doctor's reports stated
Ben experienced restrictions to his range of motion in his neck and back.
Once there was "not much more they could do" through physical therapy,
Ben saw a pain management doctor and received three injections under the care
of that doctor. He received one injection for his neck and one for his back in
2018. He later had a second injection for his back. These injections did not
completely relieve the pain, but Ben felt they helped him improve and relieved
some of the pain. According to Ben his pain went from an "eight or nine" to
about "a four and a half." He did not receive any other treatment. Ben's last day
of treatment before resuming in September 2019 was March 22, 2019.
After the accident, Ben typically had lower back pain every day that
impacted everything he did. Depending upon his level of activity, he would get
numbness and tingling in his right arm, and if his pain got too strong , he would
have headaches from the pain. Also, after the accident, he was unable to finish
projects around the house and was unable to play sports with his children as
much as he had in the past. Ben took over-the-counter analgesics and topical
pain relievers, and used a heating pad for the pain as needed. He was still able
to work, drive, and take care of himself.
A-0554-19T1 5 When the accident occurred, Christina felt nauseous, and told a
responding medic her head was hurting badly and that she felt dizzy, but she did
not want to go to the hospital. Once she returned home, Christina had a bad
headache and her neck and her upper back began to hurt.
Before the accident, Christina was healthy, and she had no limitations.
Christina, who worked as an air traffic controller, had to miss work for a few
doctor's appointments, but did not have any problems performing her job
because of the injuries she sustained in the accident. She did have difficulty
doing physical exercises, bathing her child, doing laundry and other personal
and household tasks. In order to relieve her pain, Christina took anti-
inflammatory medication.
Christina began treatment two days after the accident at the same place
that treated Ben. Although she was unsure if she had ever been treated by an
orthopedic doctor prior to the accident, she had never been treated by a
chiropractor or neurologist. After the accident, she was treated from "end of
November, beginning of December, to February-ish." During that time, she
received electro heat and physical therapy, as well as two treatments with the
chiropractor.
A-0554-19T1 6 In February 2018, Christina left that treatment provider along with Ben,
and went to Peak Performance as well, where she received treatment until June
2018. When Peak Performance told her they could not do more for her, she was
treated by a pain management provider. She also had three injections in her
neck between October and December that helped her for the first seven days
after each one, but then they wore off and the pain was worse than before.
Christina's last date of treatment prior to September 2019 was October 22, 2018.
Christina also underwent a cervical MRI that she understood revealed one
of the discs in her neck was herniated and another one was bulging. The record
of the results of the MRI confirmed her understanding.
Plaintiffs filed their complaint in March 2018. Defendant filed an answer,
and twenty separate defenses, including that plaintiffs' claims were barred
because they failed to "pierce the verbal threshold" under N.J.S.A. 39:6A-8.
Thereafter the parties pursued discovery. The original discovery end date,
February 18, 2019 was first extended by consent to April 19, 2019 and then by
order to June 3, 2019.
The discovery served included plaintiffs' answers to defendant's
interrogatories. The only expert witnesses identified in their answers were their
A-0554-19T1 7 treating medical providers, none of whom provided a narrative report as to
plaintiffs' injuries being permanent or arising from the accident.
After the discovery end date, the parties filed motions for summary
judgment. Plaintiff sought partial summary judgment as to defendant's liability
and defendant sought judgment "on the issue of the verbal threshold."
Defendant did not oppose plaintiffs' motion. Plaintiffs filed opposition to
defendant's motion for summary judgment along with a cross-motion to extend
discovery. As part of their supporting submissions, plaintiffs included copies of
their medical treatment records.
On August 16, 2019, Judge Miller granted plaintiffs' unopposed partial
summary judgment motion as to defendant's liability. Thereafter, the parties
participated in an unsuccessful arbitration that resulted in the court assigning a
trial date of October 28, 2019 as well as defendant's motion and plaintiffs' cross-
motion proceeding to oral argument.
According to defendant's motion, plaintiffs were subject to the verbal
threshold because they resided outside of New Jersey and their insurance carrier
did business in New Jersey. Moreover, plaintiffs could not vault the threshold
because they had not produced "medical evidence in the form of a narrative
report specifically addressing the issues of the threshold," which required
A-0554-19T1 8 "medical expert reports indicating a diagnosis of injuries sustained in the motor
vehicle accident and addressing the issues of causation and permanency."
Relying on their medical treatment records, plaintiffs argued that "it [was] clear
that there [were] genuine issues of fact as to whether plaintiffs suffered
permanent injuries as a result of the underlying accident."
As to their cross-motion to extend discovery, plaintiffs submitted a
certification from their attorney that stated plaintiffs underwent "final narrative
evaluations" with their physicians in August 2019. Counsel also certified that
after the discovery end date was set for June 3, 2019, "diligent steps were taken
to complete the plaintiffs' deposition, have narrative evaluations performed and
to exchange said narrative reports as soon as possible." Yet, "despite these
diligent efforts with several follow-ups, the exchange of the final narratives is
still outstanding."
Counsel also stated that he failed to request an extension of discovery due
to "unforeseeable issues regarding attorney staffing [in his office] during the
time period of March 2019 through June 2019," specifically, "between five and
six" attorneys left the firm. He certified that he appeared for court and "signed
off on multiple disclosures" in this matter but was not formally assigned it until
June 2019, after the last day for filing a motion to extend discovery had passed.
A-0554-19T1 9 Defendant filed a reply to plaintiffs' opposition, in which defendant 's
attorney explained that plaintiffs' opposition acknowledged that they failed to
serve the necessary narrative expert reports, and therefore, did not "establish
that they had sustained a permanent injury which would satisfy the verbal
threshold," and by "attaching all discovery" previously provided, did "not
address the issue." In his response, plaintiffs' counsel asserted that he took
diligent steps to complete discovery, but due to understaffing at the time, he was
unable to submit narrative reports regarding plaintiffs' injuries. He also added
that plaintiffs underwent "additional surgical procedures," namely, Christina
had a "cervical facet branch block injection" and Ben had a "cervical epidural
injection" on September 6 and September 9, 2019.
After considering the parties' submissions and oral arguments on
September 13, 2019, Judge Miller entered his order granting defendant summary
judgment. The judge set forth his reasons in a comprehensive, detailed written
decision issued the same day.
In his decision, the judge explained it was undisputed that plaintiffs'
claims were "subject to a Limitation on Lawsuit Threshold, pursuant to N.J.S.A.
39:6A-8(a)," which meant, under AICRA, plaintiffs were "prohibited from
pursuing a claim" unless they sustained a permanent injury as a result of th e
A-0554-19T1 10 accident. Under AICRA, a "permanent injury is defined as an injury in which a
body part or organ, or both, that has not healed to function normally and will
not heal to function normally with further medical treatment." The judge found
it was "uncontradicted that the [p]laintiffs have not supplied any narrative
medical report indicating a diagnosis of injuries in the motor vehicle accident
that addresses issues of causation and permanency." Nor did plaintiffs reference
any specific portions of the medical records and instead, they "simply provided
the [c]ourt with the records in what can be described as [the] '[k]itchen [s]ink
[a]pproach' so that presumably the [c]ourt will review the relevant portions of
the discovery in this matter in order to glean whether [p]laintiffs have a cause."
The judge then methodically reviewed in detail plaintiffs' "mass of
medical records," and their deposition transcripts to determine whether they met
the verbal threshold by demonstrating their injuries were permanent and caused
by the car accident. He concluded that none of the records included any mention
of permanency or causation of the injury, and also observed that plaintiffs
identified treating physicians as experts but did not provide any narrative reports
to address the "requisite elements of proof" in order to make out a prima facie
case. Thus, "[b]ased on the fact that the plaintiffs as a matter of law must proffer
A-0554-19T1 11 medical expert opinions based upon objective medical proof," and failed to do
so, they did not satisfy the verbal threshold as a matter of law.
The judge also addressed plaintiffs' reliance on their intention to serve an
expert report to detail the treatment they had on September 6 and September 9,
2019 and observed that although plaintiffs may have received those treatments,
there was no medical opinion evidence indicating the treatments were medically
necessary or related to permanent injuries caused by the accident.
As to their cross-motion to extend discovery, Judge Miller found that
plaintiffs "fail[ed] to set forth the requisite exceptional circumstances" that
apply whereas here, an arbitration date passed and the matter was scheduled for
trial. He found that plaintiffs' counsel's certification "reveal[ed] numerous
excuses and no explanations to justify exceptional circumstances," and failed to
even include the dates when several attorneys left the firm causing the alleged
delay in obtaining expert reports. Moreover, in any event, the certifying attorney
appeared at plaintiffs' depositions in May 2019, as well as the arbitration hearing
in July 2019, and according to the judge, "[i]t can be reasonably inferred that
the file, at least at the time of the depositions, was reviewed to determine what,
if any, additional discovery was needed and move forward with the same." The
judge noted that plaintiffs' counsel could have moved to extend discovery at that
A-0554-19T1 12 time in order to obtain the required reports. The judge entered his order that
day.
Plaintiffs then filed a Rule 4:50-1 motion to vacate the September 13,
2019 orders. In support of the motion, they submitted a report from Dr. Robert
Iadevaio, Christina's treating physician that stated Christina had a left-sided
cervical facet injection at various levels on September 9, 2019, and that they
were waiting for "her follow-up from this injection." The report also stated her
"pain and treatment" for pain "appear clearly causally related to the accident as
described."
At the November 15, 2019, oral argument on plaintiffs' motion, plaintiffs'
counsel advised that since the entry of the earlier order, he received additional
medical records and the report, "which show[ed] that Christina . . . suffered an
injury that is causally related to the accident and would meet [the] verbal
threshold" and that Christina "also underwent additional injection and
treatment . . . right around the time that the motion was returnable and that she
continued treatment with [her doctor] afterwards." Defendant's attorney
contended that there was no new evidence to warrant vacating the September
order as Christina had been treating with the same doctor since 2018 and the
A-0554-19T1 13 opinion he was now offering could have been determined prior to the discovery
end date. He also noted that there still was no report about Ben's injuries.
Judge Miller denied plaintiffs' motion on November 18, 2019 and issued
another thorough written decision stating his reasons. In rejecting plaintiffs'
claim that the summary judgment order should be vacated because of new
evidence, the judge found that there was no newly discovered evidence to
change his previous ruling. The judge cited to the New Jersey Supreme Court's
opinions in DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 264 (2009) and Quick
Chek Food Stores v. Springfield Twp., 83 N.J. 438 (1980) that set forth the
criteria for new evidence that warrants the vacating of an earlier order and
concluded that the information supplied by plaintiffs did not meet those
requirements.
Judge Miller found there was no new evidence regarding Ben, and as to
Christina, the judge noted that it was "undisputed" that despite the "voluminous"
pages of medical records, there was nothing in the record to prove her injuries
were permanent or caused by the accident. He stated that although the new
report was obtained on September 23, 2019, and "indicated, for the first time,
that [Christina's] injuries were permanent injuries and that her injuries were
caused by the accident," "there [was] no indication why the medical opinions . . .
A-0554-19T1 14 obtained were not obtained earlier." He also noted that previous records from
Christina's doctor did not address whether she suffered a permanent injury , and
the new report "indicated that although [Christina] had been a patient of his for
over a year . . . no indication was given as to whether he could have issued his
opinions earlier in time, or even whether he had been asked to do so."
Judge Miller also addressed plaintiffs' cross-motion to extend. He
reiterated that there was no basis to extend discovery because plaintiffs' counsel
had to establish exceptional circumstances and "understaffing and overworked
attorneys is not [an] exceptional circumstance." This appeal followed.
We review a trial court's order granting summary judgment de novo,
applying the same standard as the trial court. RSI Bank v. Providence Mut. Fire
Ins., 234 N.J. 459, 472 (2018) (citing Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)).
Under that standard, summary judgment will be granted when "'the competent
evidential materials submitted by the parties,' [viewed] in the light most
favorable to" the non-moving party, show that there are no "genuine issues of
material fact" and that "the moving party is entitled to summary judgment as a
matter of law." Grande v. Saint Clare's Health Sys., 230 N.J. 1, 24 (2017)
(quoting Bhagat, 217 N.J. at 38); accord R.4:46-2(c).
A-0554-19T1 15 "To defeat a motion for summary judgment, the opponent must 'come
forward with evidence that creates a genuine issue of material fact.'" Cortez v.
Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (quoting Horizon Blue
Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App. Div. 2012)). "An
issue of material fact is 'genuine only if, considering the burden of persuasion at
trial, the evidence submitted by the parties on the motion, together with all
legitimate inferences therefrom favoring the non-moving party, would require
submission of the issue to the trier of fact.'" Grande, 230 N.J. at 24 (quoting
Bhagat, 217 N.J. at 38). "If there are no genuine issues of material fact, we must
then decide whether the trial court correctly interpreted the law." Dickson v.
Cmty. Bus Lines, Inc., 458 N.J. Super. 522, 530 (App. Div. 2019). In this
review, the appellate court owes "no special deference" to the motion judge's
legal analysis. RSI Bank, 234 N.J. at 472.
We conclude from our de novo review that, for the reasons stated in Judge
Miller's thorough written decision, he correctly determined that plaintiffs did
not satisfy their burden on summary judgment to come forward with evidence
to vault the verbal threshold. Specifically, plaintiffs failed to provide "objective
clinical evidence that [their] injuries were permanent and causally related to the
automobile accident," as required by AICRA. Escobar-Barrera v. Kissin, 464
A-0554-19T1 16 N.J. Super. 224, 234 (App. Div. 2020). Simply dropping plaintiffs' medical
records in the judge's and defendant's lap did not meet the requirement to provide
expert medical evidence. 4 See N.J.S.A. 39:6A-8 (addressing a plaintiff's burden
under AICRA and defining a "permanent injury"); see also Davidson v. Slater,
189 N.J. 166, 181 (2007) ("To vault AICRA's verbal threshold an accident
victim need only prove an injury as defined in the statute.").
Moreover, we conclude the judge did not abuse his discretion by not
extending discovery to allow for the late filing of expert reports. Quail v. Shop-
Rite Supermarkets, Inc., 455 N.J. Super. 118, 133 (App. Div. 2018). Plaintiffs
did not establish the "exceptional circumstances" required once the arbitration
had been completed and a trial date scheduled. See R. 4-24-1(c); see also
Szalontai v. Yazbo's Sports Café, 183 N.J. 386, 396-97 (2005) (strictly
construing Rule 4:24-1(c) to require an exceptional circumstance showing
4 Relying on Delvecchio v. Twp. of Bridgewater, 224 N.J. 559 (2016), and Stigliano v. Connaught Labs, Inc., 140 N.J. 305 (1995), plaintiffs correctly argue that treating physicians may "offer medical testimony regarding the diagnosis and treatment of their patients," and "[t]hat testimony can include opinions on causation of the injury to a patient." However, under the court rules, a party seeking to present treating physician testimony at trial must disclose the substance of the witness's anticipated testimony, and the basis for that testimony, if requested to do so in discovery. Delvecchio, 224 N.J. at 579. As Judge Miller determined, that was not done here.
A-0554-19T1 17 particularly after the arbitration had already occurred); Rivers v. LSC P'ship,
378 N.J. Super. 68, 79 (App. Div. 2005) (stating the four conditions that warrant
a finding of exceptional circumstances) (citing Vitti v. Brown, 359 N.J. Super.
40, 51 (Law Div. 2003)). Under the circumstances presented here, the staffing
issues that allegedly prevented timely service of expert reports did not estab lish
the "exceptional circumstances" that warranted an extension of discovery. 5 See
Rivers, 378 N.J. Super. at 79.
Finally, we find no merit to plaintiffs' contention that Judge Miller should
have vacated his summary judgment order under Rule 4:50-1 based upon "newly
discovered evidence" in the form of Dr. Iadevaio's report and plaintiffs'
September 2019 treatment records. Suffice it to say there was no evidence that
5 In reliance on O'Donnell v. Ahmed, 363 N.J. Super. 44 (Law Div. 2003), plaintiffs allege they showed exceptional circumstances. In O' Donnell, the Law Division set forth a non-exhaustive list of examples of what could constitute exceptional circumstances and included that ''[t]he disclosure of a disruption of one's office by partners or associates having health problems or leaving, especially if they had responsibilities for the matter before the court, would probably be persuasive.'' Id. at 51. It also provided that ''facts must be shown in a detailed certification to the court, making clear that the reasons were beyond the reasonable control of the party seeking relief.'' Id. at 52. Judge Miller did not abuse his discretion by finding those circumstances did not exist here. See Rivers, 378 N.J. Super. at 80-81 (addressing the plaintiff's reliance on O'Donnell and concluding there was no abuse of discretion where counsel provided ''no valid explanation'' for his lack of due diligence prior to a family member's death at the end of the discovery period).
A-0554-19T1 18 the doctor's opinion that Christina's injuries were caused by the accident and
permanent in nature was "unobtainable by the exercise of due diligence for use
at the trial," before the close of discovery, DEG, LLC, 198 N.J. at 261, where
the doctor treated Christina from early 2018 through September 2019 and never
issued a report. Also, the September 2019 treatment records would not have
changed the fact that plaintiffs never met their burden to produce the necessary
medical opinion evidence before the close of discovery.
Affirmed.
A-0554-19T1 19