Domenica S. Nardone, Etc. v. John W. Ager, III

• Court: New Jersey Superior Court Appellate Division
• Decided: July 22, 2024
• Docket: A-2101-22
• Status: Unpublished

Opinion

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-2101-22

DOMENICA S. NARDONE,

Plaintiff-Appellant,

and

VITO J. BARONE,

Plaintiff,

v.

JOHN W. AGER, III,

Defendant-Respondent. ___________________________

Argued May 1, 2024 – Decided July 22, 2024

Before Judges Vernoia and Gummer.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-6415-17.

Richard A. Dunne argued the cause for appellant.

John A. Camassa argued the cause for respondent.

PER CURIAM In this verbal-threshold case, plaintiff Domenica S. Nardone appeals from

an order dismissing her case with prejudice, which the trial court entered on

defendant's motion after plaintiff and her counsel advised the court for the first

time at the beginning of the trial that plaintiff would not be presenting the

testimony of a medical expert witness. We affirm.

We take these undisputed facts from the limited record before us and the

amplification the trial judge submitted pursuant to Rule 2:5-1(d).

On October 30, 2017, plaintiff and her husband Vito J. Barone filed a

complaint against defendant John W. Ager III, alleging that on August 20, 2016,

he had "operated his motor vehicle in a negligent and careless manner, . . .

causing his vehicle to strike [her] vehicle," directly and proximately causing her

injuries. In his answer, defendant asserted, among other defenses, "[p]laintiff's

cause of action was barred by virtue of application of the 'Verbal Threshold ,'

N.J.S.[A]. 39:6A-8."

After the completion of the discovery period, which had been extended

A-2101-22 2 nine times and had lasted 1,799 days, and following eleven trial adjournments,1

the parties and their counsel appeared for trial on February 6, 2023.

After the presiding Civil Part judge was advised the case was ready for

trial, the judge assigned to try the case conducted a conference in chambers with

counsel, during which plaintiff's counsel advised the court and defense counsel

for the first time "they would not be paying for [p]laintiff's expert to testify."

The judge then conducted a hearing on the record, telling plaintiff she "just

want[ed] to make sure that you understand what's going to happen if we go

forward and the kinds of issues that you might potentially have." The judge told

plaintiff her attorney had revealed "that your expert is no longer going to be able

to testify; is not willing to testify any longer in terms of the injuries to your

wrist." Noting plaintiff's original treating physician had died, the judge asked

plaintiff if she understood "in order for [the new doctor] to come in and testify

1 The court adjourned the trial once in January 2022 to allow plaintiff to obtain a new medical expert witness after the death of her first expert. The new expert issued a report dated February 16, 2022, in which he opined that as a result of the accident, she had suffered permanent injuries to her spine and left knee. He described her as having disc herniations and bulges and a medial meniscal tear. Plaintiff also had submitted a report from a doctor who had treated her for "carpel tunnel" and "trigger thumb" issues and who opined her "symptoms [were] resultant from axial load injury sustained on 8/20/16." A-2101-22 3 it would cost a significant amount of money that the attorneys are not willing to

[pay] up front." Plaintiff replied that she understood. The judge stated:

So, . . . here is what that leaves. Really, that leaves your testimony and then whatever testimony is going to be presented on behalf of the defendant which could also include expert testimony on their end.

You might not even get that far in the case; it might be that the jury hears from you, there might be a motion and that might be the end of the case as well.

In this case, there's what's called a verbal threshold and that means you have to prove permanency of your injuries which without . . . medical testimony is incredibly hard to do. I'm not saying it's impossible, but it's [an] incredibly . . . high burden that usually requires medical testimony to be able to get past . . . .

So that being said, I want you to know that really it's going to be your testimony alone and I don't know how far that's going to get you in this trial.

The judge offered to address any questions plaintiff might have. Plaintiff

declined that offer. The judge gave plaintiff time to speak with her attorney and

her husband. After they had discussed the matter, her counsel reported plaintiff

wanted to proceed with the trial but that neither plaintiff nor her counsel were

willing to "set forth the monetary amount to pay to have [the expert] testify."

Defense counsel then moved for "an involuntary dismissal" of the case,

arguing plaintiff could not prove her verbal-threshold case by "objective,

A-2101-22 4 credible, medical evidence" without the testimony of a medical expert witness.

Plaintiff's counsel responded plaintiff "still wish[ed] to proceed to be able to tell

her story" but acknowledged "we do not have a medical doctor." She did not

argue the motion was procedurally improper, did not ask for an adjournment of

the trial, did not ask for more time to respond to the motion, did not contend that

plaintiff at some future time would be willing and able to present an expert

witness, and did not dispute defense counsel's assertion that even if she testified,

the case would be dismissed "without that needed medical testimony."

The judge placed her decision on the record, noting the procedural status

of the case: "we are here for a trial and that means that at this point in time the

plaintiff needs to be prepared to present all of [her] proofs at trial over . . . the

course of the next few days." She recognized "dispositive [motions] on the eve

of trial are typically not allowed but those are situations where the information

is known ahead of time with sufficient time to file a motion that's in accordance

with the rules." The judge indicated she was treating defendant's motion "sort

of as a summary judgment motion on the basis that there isn't sufficient medical

testimony to meet the elements of the verbal threshold."

The judge held plaintiff in this verbal-threshold case had to "prove by

objective credible medical evidence that she has a permanent injury within a

A-2101-22 5 reasonable degree of medical probability and that requires some sort of medical

testimony in order to be able to prove those elements." She found plaintiff in

her testimony "could describe certainly the pain that she's having" and the

treatment she has received but "could not provide medical diagnosis . . . . [A]

doctor needs to come in and describe what the diagnoses are; what, if any,

reviews of x-rays or MRIs were conducted as well as any other related

information." The judge held "plaintiff's testimony alone cannot meet the

requirement of objective, credible, medical evidence within a reasonable degree

of medical probability" and "no rational fact-finder could find otherwise." She

"grant[ed] the motion for a dismissal because we are here for trial and [she's]

unable to . . . proceed" and entered an order the next day dismissing the

complaint with prejudice.

A different attorney filed a notice of appeal on plaintiff's behalf. On

appeal, plaintiff argues she was "blameless" because her retainer agreement with

her trial counsel required her counsel to pay for the expert and the dismissal of

her case was "too harsh and drastic" and procedurally improper. In response,

defendant disputes plaintiff's interpretation of the retainer agreement and

contends the trial judge properly dismissed the case when plaintiff failed to

produce a medical expert witness at trial.

A-2101-22 6 Under New Jersey's Automobile Insurance Cost Recovery Reduction Act

(AICRA), N.J.S.A. 39:6A-1.1 to -35, individuals seeking automobile liability

insurance must select one of two tort options: the "[l]imitation on lawsuit

option" or the "[n]o limitation on lawsuit option." N.J.S.A. 39:6A-8. Those

covered by an insurance policy with the limitation-on-lawsuit option, also

known as the verbal threshold, have "a limited right of recovery" for

noneconomic damages sustained in an automobile collision. DiProspero v.

Penn, 183 N.J. 477, 486 (2005). They may recover in tort for noneconomic

damages only if the injuries "vault" the verbal threshold. Davidson v. Slater,

189 N.J. 166, 189 (2007).

Pursuant to N.J.S.A. 39:6A-8(a), an insured under the verbal threshold

may maintain an action for noneconomic losses only if she "has sustained a

bodily injury which results in death; dismemberment; significant disfigurement

or significant scarring; displaced fractures; loss of a fetus; or a permanent injury

within a reasonable degree of medical probability, other than scarring or

disfigurement." A "permanent injury" is one that "has not healed to function

normally and will not heal to function normally with further medical treatment."

Ibid.; see also Sackman v. N.J. Mfrs. Ins. Co., 445 N.J. Super. 278, 290 (App.

Div. 2016) (quoting N.J.S.A. 39:6A-8(a)).

A-2101-22 7 A plaintiff is required to prove the existence of a permanent injury based

on "objective clinical evidence." Escobar-Barrera v. Kissin, 464 N.J. Super.

224, 234 (App. Div. 2020); DiProspero, 183 N.J. at 505-06. Additionally, a

plaintiff must show the injuries were proximately caused by the defendant's

negligence. Davidson, 189 N.J. at 185. "[T]he necessary objective evidence

must be 'derived from accepted diagnostic tests and cannot be dependent entirely

upon subjective patient response.'" Agha v. Feiner, 198 N.J. 50, 60 (2009)

(quoting Davidson, 189 N.J. at 181) (internal quotation marks omitted). A

doctor's testimony can be "essential to 'permit[] the case to go to the jury.'"

Escobar-Barrera, 464 N.J. Super. at 235 (quoting Klimko v. Rose, 84 N.J. 496,

505 (1980)).

Plaintiff does not dispute her claim is subject to the verbal threshold, she

had to produce a medical expert witness to prove her injuries by "objective

clinical evidence," and she was not going to produce a medical expert witness

at trial because neither she nor her attorney would pay the expert.

In Seoung Ook Cho v. Trinitas Regional Medical Center, 443 N.J. Super.

461, 467-68 (App. Div. 2015), on the second day of trial before jury selection

began, the defendant moved to dismiss the plaintiffs' wrongful-death claim,

arguing, among other things, the proofs of economic loss were "too speculative."

A-2101-22 8 We held a motion in limine "is not a summary judgment motion that happens to

be filed on the eve of trial," id. at 471, and found "due process requires an

opportunity to be heard at a meaningful time and in a meaningful manner ," id.

at 472-73 (quoting Doe v. Poritz, 142 N.J. 1, 106 (1995)). However, "we d[id]

not hold that the summary judgment rules establish rigid requirements that must

be met in every case for due process demands to be satisfied." Id. at 474. Under

the circumstances of that case, we concluded the plaintiffs had been deprived of

a meaningful opportunity to respond to the motion in violation of their

due-process rights. Id. at 474-75.

This case is not Cho. The dismissal motion in this case was not based on

an argument the evidence was "too speculative" but on the complete and

admitted absence of critical evidence. Id. at 468. And this isn't Escobar-Barrera,

464 N.J. Super. at 229-30, in which the plaintiff's doctor inexplicably had failed

to show up at trial despite his counsel's efforts and the trial judge denied the

plaintiff's request to adjourn the trial one day to give him a chance to address

the issue; Kosmowski v. Atlantic City Medical Center, 175 N.J. 568 (2003), in

which the trial judge dismissed the case after denying a first adjournment request

based on the purported unavailability of an expert witness; Rabboh v. Lamattina,

312 N.J. Super. 487, 490-91 (App. Div. 1998), in which the trial judge dismissed

A-2101-22 9 the case when the plaintiff's counsel unilaterally decided to call the plaintiff's

expert witness on a Monday instead of the previously agreed-upon day; or

Klimko, 84 N.J. at 500, in which the plaintiffs made a "good faith attempt" to

compel the reappearance of their expert witness, who had failed to return to

court for cross-examination.

Unlike the plaintiffs in the cases on which plaintiff relies, plaintiff did not

identify any good-faith efforts she was making to present an expert witness

necessary to prove her case and did not express any intention of ever presenting

one. Under the circumstances of this case, we perceive no due-process violation.

Plaintiff did not ask the trial court for more time to address the motion and has

not articulated what evidence or argument she would have presented, if given

more time, that would have made any difference in the outcome.

Plaintiff argues the trial judge erred in dismissing the case because "an

application for dismissal pursuant to Rule 4:37-2(b) is properly made after a

plaintiff has presented all the evidence and rested in his or her case." Thus,

according to plaintiff, the judge should have allowed her to present her case,

such as it was, and then address defendant's motion under Rule 4:37-2(b). The

problem with that argument is that plaintiff did not make it to the trial judge;

she did not argue consideration of the motion was premature under

A-2101-22 10 Rule 4:37-2(b). See Alloco v. Ocean Beach & Bay Club, 456 N.J. Super. 124,

145 (App. Div. 2018) (applying "well-settled" principle that appellate court will

not consider an issue that was not raised before the trial court). And under

certain circumstances, consideration of a dismissal motion before the

completion of the plaintiff's case is appropriate. See, e.g., Ritondo by Ritondo

v. Pekala, 275 N.J. Super. 109 (App. Div. 1994) (affirming order granting a Rule

4:37-2(b) dismissal motion made before the end of the plaintiff's case but after

the plaintiff's sole expert witness on the standard of care had failed to support

plaintiff's case in his testimony). There's no dispute that had the judge waited

to decide the motion until after plaintiff testified and ended her case, the result

would have been the same: without a medical expert to present objective clinical

evidence, plaintiff could not prove her case and her verbal-threshold claim could

not be sustained as a matter of law.

Affirmed.

A-2101-22 11