NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-0675-24
MARTCHELA V. POPOVA- MLADENOV,
Plaintiff-Appellant,
and
MLADEN MLADENOV,
Plaintiff,
v.
JASON M. COIGNE,
Defendant-Respondent,
NJM INSURANCE GROUP and/or NEW JERSEY MANUFACTURERS INSURANCE COMPANY,
Defendants. _________________________________
Argued January 5, 2026 – Decided February 12, 2026
Before Judges Walcott-Henderson and Bergman. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-0387-21.
Richard T. Astorino argued the cause for appellant (Kotlar Cohen, LLC, attorneys; Richard T. Astorino, of counsel and on the brief).
Amanda B. Tosk argued the cause for respondent (Law Office of Hilary M. Kolb, attorneys; Amanda B. Tosk, of counsel and on the brief).
PER CURIAM
In this personal injury action, plaintiff Martchela V. Popova-Mladenov
appeals from an October 28, 2024 order involuntarily dismissing her personal
injury complaint under Rule 4:37-2(b) following three days of trial. Plaintiff
primarily argues the court erred in concluding she failed to establish a permanent
injury to her low back, as required under the verbal threshold statute, N.J.S.A.
39:6A-8(a), caused by the motor vehicle accident at issue. We affirm.
There is no dispute plaintiff was involved in a motor vehicle accident on
January 23, 2019, when she struck a vehicle operated by Jason M. Coigne
(Coigne). According to plaintiff, she inadvertently struck defendant's vehicle
when he abruptly entered her lane of traffic on I-295 in Mount Laurel.
Defendant did not dispute the accident but asserted that he was forced into the
left lane after an unknown phantom car entered his lane. Following the accident,
plaintiff complained of neck pain but declined medical attention at the time. On
A-0675-24 2 February 9, 2019, plaintiff sought medical attention and diagnostic testing,
including x-rays of her spine, which revealed "mild degenerative disc disease."
Months later, on April 7, plaintiff received an MRI of her low back, which
showed "[p]ossible osteophyte extending into the lateral right neural foramen
without evidence of significant neural foraminal narrowing or spinal canal
stenosis at the level of T12-L1," and observed "[m]ild facet joint hypertrophy[]."
These results were confirmed by a radiologist who did not testify at trial.
On January 19, 2021, plaintiff and her spouse, Mladen Mladenov, filed a
six-count complaint, against defendants, including New Jersey Manufacturers
(NJM). The suit alleged torts against defendant and the phantom driver for
alleged permanent injuries to plaintiff's low back and a loss of consortium claim
by Mladen Mladenov.1
On August 4, plaintiff submitted to an Independent Medical Evaluation
(IME) with Joshua Landa, M.D., an orthopedic surgeon, who opined plaintiff
had "damage to her lumbar spine, including permanent aggravation degenerative
changes with resultant pain and functional limitations."
1 Plaintiff sued NJM, her uninsured motorist carrier, after defendant claimed a "phantom" driver had fled the scene. After jury selection, all claims against NJM were dismissed. A-0675-24 3 Three months later, plaintiff underwent an examination by defendant's
expert Steven Carl Hausmann, M.D., an orthopedic surgeon, who concluded
plaintiff had "facet degeneration and some disc abnormalities with osteophytes
projecting off the disc spaces in the upper lumbar spine," noting the findings
were "consistent with degenerative spondylosis, which is age-related and not
due to the [crash], and predated the [crash]." Dr. Hausmann further reported
that his findings were based on "the degeneration seen on the MRI scan," and
were not something that would have come on between the accident and the date
of the performance of the April 7, 2019 MRI."
Dr. Landa submitted a rebuttal report on February 16, 2022, agreeing with
Dr. Hausmann's diagnosis, but concluding "[i]t is likely that the pre-e[x]isting
degeneration in her facet joints would be susceptible to injury in a traumatic
event such as a motor vehicle accident, rendering them symptomatic. This pain
has not resolved in time and is therefore likely a permanent injury." (Emphasis
added).
On November 15, 2022, defendant moved for summary judgment on all
counts, asserting plaintiff failed to establish that she had suffered a permanent
injury, within a reasonable degree of medical certainty through objective
credible evidence as required by the verbal threshold statute, N.J.S.A. 39:6A-
A-0675-24 4 8(a). Plaintiff opposed the motion, supporting her claim of permanency with a
July 2, 2020 certification from Arik Mizrachi, M.D., a pain medicine and
rehabilitation specialist, who identified himself as plaintiff's treating physician.2
The court denied defendant's motion for summary judgment and stated
both parties "indicate that Dr. Landa states that [plaintiff] has permanent
aggravation of degenerative changes as a direct result of the accident," and
therefore "a reasonable fact finder could find that [plaintiff] has demonstrated
through objective, credible medical evidence that her alleged injuries are both
permanent and related to this accident as required by the lawsuit threshold."
Prior to trial, the court addressed various in limine motions filed by the
parties, the result of which was: to bar Dr. Landa's recorded testimony that
relied on the report and opinions of the non-testifying radiologist; Dr. Landa's
testimony in which he offered an opinion as to the cost of future medical
expenses, as PIP benefits had not yet been exhausted; and Dr. Alexeev's
testimony and opinion regarding causation and permanency due to plaintiff's
failure to submit Dr. Alexeev's report prior to the expiration of the discovery
end date. The court likely made its ruling in part due to plaintiff's consent to
2 Neither Dr. Mizrachi's expert report nor certification were presented during discovery and thus were not presented at trial.
A-0675-24 5 certain redactions to exclude Dr. Alexeev's testimony as to causation and
permanency.
During trial, plaintiff presented testimony from Dr. Landa, who opined
that plaintiff suffered a "permanent aggravation of degenerative changes"
causing pain and functional limitations, while also acknowledging that her disc
degeneration was pre-existing and that his conclusion of permanency was based
on her reports of persistent pain.
Following the conclusion of plaintiffs' case in chief, defendant moved for
an involuntary dismissal of the case under Rule 4:37-2(b)3, arguing:
[Plaintiff's] proof [does not] satisfy the requirements of the verbal threshold as a matter of law. There is no expert that gave an opinion that there was a permanent injury based on objective credible evidence." You heard the testimony, Dr. Aleveev said that there was spasm, which he says can be permanent. But he gives no opinion as to permanency and causation.
Defendant further argued Dr. Landa's testimony and opinion is permanent
aggravation of degenerative changes, that is not based on anything that is
objective. And, Dr. Landa "testified that the MRIs which were the only
objective evidence discussed in his testimony were the same as they were – or
3 Defendant also moved to dismiss the per quod claim, arguing it was the first time he had a per quod claim "where the spouse didn't testify." A-0675-24 6 the arthritis or the facets that were on the MRIs were pre-existing," so the
standard had not been met.
Prior to the conclusion of plaintiff's response, the court, outside the
presence of the jury, inquired whether plaintiffs would be inclined to accept a
final offer from the defense prior to its ruling on the motions. The judge next
heard plaintiffs' argument and stated he would take some time to review the
record. Prior to ruling on the motions, however, the judge explained "[i]f I grant
the motion for an involuntary dismissal, that's the end of your case. I mean, you
can always seek Appellate relief . . . but as far as this trial, the trial would be
over."
After a brief recess to consider the parties' respective arguments, the court
again inquired into whether plaintiff wanted to accept the offer to resolve the
case or have him rule on the motion. After explaining the governing law and
the applicable standard under Rule 4:37-2, and affording plaintiffs all favorable
inferences, the court turned to the ultimate question for the jury: whether
plaintiff had proven that she sustained a permanent injury by credible, objective
medical evidence proximately caused by this accident, the answer is "no, there
is not." In a corresponding written decision issued on December 5, 2023, the
court stated:
A-0675-24 7 This was an auto negligence/verbal threshold trial. The case was dismissed at the conclusion of plaintiff's case because no objective evidence (as opposed to only subjective evidence—i.e., reports of pain or no pain) was presented to support a finding of a permanent injury. As a matter of law[,] [p]laintiff could not vault the verbal threshold.
On December 19, 2023, plaintiff moved for reconsideration of the order
granting involuntary dismissal and for a new trial, pursuant to Rule 4:49-2.
Plaintiff claimed "the court erred in disregarding the entire testimony of
[p]laintiff's treating doctor [,] [Dr. Alexeev] [who] provided key testimony as to
objective evidence of permanent injury - spasm upon palpation."
Plaintiff additionally argued:
"[T]he court erred in rejecting the objective evidence of permanent injury in [Dr. Landa's] testimony as to the MRI results and diagnostic aspect of the facet joint injections. [Dr. Landa] also testified that the injections confirm that the facet joints are the source of the pain. . . . [Dr.] Landa finds permanent injury in [p]laintiff's low back, causally related to the subject accident."
Plaintiff further asserted that the court erred by deciding the motion at the
conclusion of her case, that the motion should have been held in abeyance until
after the jury returned a verdict, and that the court's failure to do so infringed on
her constitutional right to a jury trial and constituted a miscarriage of justice
requiring a new trial.
A-0675-24 8 Finally, plaintiff contended that a new trial was warranted as the court's
inquiry surrounding settlement before deciding the motion had "arguably
coercive effects," although plaintiff did not specify how she was negatively
affected.
The court denied plaintiff's motion for reconsideration, stating "[plaintiff]
points to nothing that the Court overlooked when the original decision was
made. Counsel is simply reiterating that he feels the [c]ourt's decision was
wrong." The court concluded:
The problem with plaintiff's case was that the basis of the plaintiff's expert opinion [(referring to Dr. Landa)] was what the plaintiff told him. That was what she said, i.e. that she was in pain. Such evidence[] obviously is subjective. However[,] the law requires objective proof in order to vault the verbal threshold. The record on [N]ovember 30th, 2023 is clear on its face as to the [c]ourt's findings of fact and conclusions of law. The [c]ourt finds no basis for error.
This appeal followed, with plaintiff rehashing many of the same
arguments raised before the trial court.
We review a trial court's grant of a reconsideration motion for an abuse of
discretion. Cummings v. Bahr, 295 N.J. Super. 374, 389 (App. Div. 1996). An
abuse of discretion occurs "when a decision is 'made without a rational
explanation, inexplicably departed from established policies, or rested on an
A-0675-24 9 impermissible basis.'" U.S. Bank Nat'l Ass'n v. Guillaume, 209 N.J. 449, 467-
68 (2012) (quoting Iliadis v. Wal-Mart Stores, Inc., 191 N.J. 88, 123 (2007)).
Reconsideration should be granted where "1) the [c]ourt has expressed its
decision based upon a palpably incorrect or irrational basis, or 2) it is obvious
that the [c]ourt either did not consider, or failed to appreciate the significance
of probative, competent evidence." Dennehy v. E. Windsor Reg'l Bd. of Educ.,
469 N.J. Super. 357, 363 (App. Div. 2021) (alterations in original) (quoting
Palombi v. Palombi, 414 N.J. Super. 274, 288 (App. Div. 2010)).
"However, we owe no deference to a trial court's interpretation of the law,"
and review such issues de novo. Cumberland Farms, Inc. v. N.J. Dep't of Env't
Prot., 447 N.J. Super. 423, 438 (App. Div. 2016).
Likewise, we review a trial court's grant of a motion for involuntary
dismissal of a negligence claim, Rule 4:37-2(b), by applying the same standard
as the trial court. ADS Assocs. Grp., Inc. v. Oritani Sav. Bank, 219 N.J. 496,
511 (2014). We apply "the same evidential standard: if, accepting as true all
the evidence which supports the position of the party defending against the
motion and according [them] . . . the benefit of all inferences which can
reasonably and legitimately be deduced therefrom, reasonable minds could
A-0675-24 10 differ, the motion must be denied." Ibid. (internal quotations omitted) (quoting
Verdicchio v. Ricca, 179 N.J. 1, 30 (2004)).
A motion for involuntary dismissal is premised "'on the ground that upon
the facts and upon the law the plaintiff has shown no right to relief,'" and "[t]he
'motion shall be denied if the evidence, together with the legitimate inferences
therefrom, could sustain a judgment in plaintiff's favor.'" Id. at 510 (quoting R.
4:37-2(b)). The standard governing a motion for involuntary dismissal under
Rule 4:37-2(b) is the same as that governing a motion for summary judgment
under Rule 4:46-2(c). Schneider v. Simonini, 163 N.J. 336, 360 (2000). "If the
court, accepting as true all the evidence which supports the position of the party
defending against the motion and according him the benefit of all inferences
which can reasonably and legitimately be deduced therefrom, finds that
reasonable minds could differ, then the motion must be denied." ADS Assocs.
Grp., Inc., 219 N.J. at 510-11 (citation omitted). The "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."
Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969).
By way of background, under New Jersey's Automobile Insurance Cost
Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, enacted in 1998, the
A-0675-24 11 Legislature requires "every standard automobile liability insurance policy issued
or renewed" to "contain personal injury protection (PIP) benefits" for persons
"who sustain bodily injury as a result of an accident while occupying, entering
into, alighting from or using an automobile." N.J.S.A. 39:6A-4. 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). In other words, they may recover for
noneconomic damages only if the injuries meet the verbal threshold. See
Davidson v. Slater, 189 N.J. 166, 189 (2007). An insured subject to the verbal
threshold may, therefore, maintain an action for noneconomic losses only if he
or 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." N.J.S.A. 39:6A-8(a).
A-0675-24 12 Moreover, a plaintiff must establish the existence of a permanent injury
based on "objective clinical evidence," N.J.S.A. 39:6A-8(a), which "must be
'derived from accepted diagnostic tests and [not] be dependent entirely upon
subjective patient response'" Escobar-Barrera v. Kissin, 464 N.J. Super. 224,
234 (App. Div. 2020) (quoting Agha v. Feiner, 198 N.J. 50, 60 (2009))
(additional citations omitted); see also DiProspero, 183 N.J. at 495 (equating
AICRA's "objective clinical evidence" standard with that of "credible, objective
medical evidence" as articulated in Oswin v. Shaw, 129 N.J. 290, 314 (1992)).
Lastly, because this is a negligence claim, a plaintiff must establish that the
injury was proximately caused by the defendant's negligence. Davidson, 189
N.J. at 185.
Before us, plaintiff primarily asserts that reversal of the court's order is
warranted and a new trial must be granted because: (1) she has met the standard
for denial of defendant's motion for involuntary dismissal pursuant to Rule 4:37-
2(b); (2) the court erred in interpreting the verbal threshold law as to the proof
required to establish a permanent injury and overlooked the testimonial
evidence; (3) it clearly and convincingly appears there was a miscarriage of
justice under Rule 4:49-2; and (4) the court pressured her to settle when the
ruling on the dismissal motion was imminent.
A-0675-24 13 As to plaintiff's first argument she met the standard necessary for the court
to deny defendant's motion for involuntary dismissal of her complaint and the
court erred in disregarding the "entire testimony of [her] treating doctor, [Dr.
Alexeev]" who "provided key testimony as to objective evidence of permanent
injury – spasm upon palpitation." She further asserts that Dr. Landa's opinion
on permanency was improperly excluded, as he "reviewed the lumbar MRI and
testified that the facet joints were enlarged at multiple levels," the "injections
confirm that the facet joints are the source of the pain," and that "[Dr.] Landa
[found] permanent injury in [p]laintiff's low back, causally related to the subject
accident."
As a preliminary matter, we reject plaintiff's arguments the court erred in
deciding the Rule 4:37-2(b) motion prior to the conclusion of the trial and could
have reserved its decision pending the outcome of the jury verdict. Rule 4:37-
2(b) applies to matters at trial, following the presentation of plaintiff's evidence
and the announcement to the court that plaintiff has rested, it provides defendant,
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. . . . [S]uch motion shall be denied if the evidence, together with the legitimate inferences therefrom, could sustain a judgment in plaintiff's favor.
[Rule 4:37-2(b).]
A-0675-24 14 Moreover, we have consistently held that a motion made at the conclusion
of a plaintiff's case is required to be then decided since the rule, unlike a Rule
4:40-2 motion, provides no authorization for reserving a decision.4 Castro v.
Helmsley Spear, Inc., 150 N.J. Super. 160, 163-65 (App. Div. 1977). Thus, we
are satisfied the court timely and properly ruled on defendant's motion.
We similarly reject plaintiff's substantive challenges to the involuntary
dismissal of her complaint. Plaintiff maintains the court erred by granting
defendant's motion for a directed verdict due to its disregard of Dr. Alexeev's
testimony. A review of this record, however, makes abundantly clear that
another judge had granted a pre-trial motion barring Dr. Alexeev's testimony
and opinion regarding causation and permanency; two critical aspects of
plaintiff's case, due to the failure to provide a timely narrative report. Moreover,
the record shows that plaintiff consented to certain of those redactions.
Significantly, Dr. Alexeev also admitted that "what he didn't do and . . . couldn't
do, was say that that spasm was causally related to this accident," and "it would
be too speculative, . . . it could be from anywhere." Having consented to
4 Rule 4:40-2 provides that the court may reserve decision on a motion for judgment notwithstanding the verdict made at the close of all of the evidence, submit the case to the jury and then decide the motion either before or within ten days after the verdict. A-0675-24 15 redactions, including Dr. Alexeev's testimony regarding permanency and
causation, we conclude there is no merit to plaintiff's argument the court erred
in finding the record devoid of objective evidence of a permanent injury to her
low back, which was causally related to the subject accident.
As to Dr. Landa, he testified plaintiff had "permanent aggravation of
degenerative changes with resultant pain," and agreed that pain was subjective
in nature, and all other findings on the MRI were pre-existing. Dr. Landa based
his findings as to permanency on plaintiff's unresolved pain, concluding that
because her pre-existing degeneration had become symptomatic following the
accident, and her pain had not resolved, the injury was "likely permanent."
The court engaged in a thorough analysis of the testimony and plaintiff's
arguments, noting in particular that plaintiff "very candidly streamlined things
. . . by saying look this case turns on Joshua Landa’s testimony not Dr. Alexeev."
And, further that "even though Dr. Alexeev mentions spasm, . . . and spasm can
certainly be considered objective evidence, what he didn’t do and I guess
couldn’t do, was say that that spasm was causally related to this accident." Next,
in reviewing Dr. Landa's testimony, the court explained that Dr. Landa's
determination that the accident aggravated plaintiff's degenerative changes and
she "likely" had a permanent injury and based his opinion on plaintiff's
A-0675-24 16 subjective complaints of pain, rather than presenting objective medical evidence
to the jury "from which they can 'hang their hat,'" which is insufficient as a
matter of law to satisfy the verbal threshold. See Agha, 198 N.J. at 60.
In Agha, our Supreme Court made clear that subjective complaints of pain,
standing alone, are insufficient to satisfy the verbal threshold; a plaintiff must
present objective clinical evidence from accepted diagnostic tests establishing a
permanent injury within a reasonable degree of medical probability. Id. at 60-
61.
Because plaintiff failed to present such objective, credible medical
evidence linking a permanent low-back injury to the subject accident, and even
affording plaintiff all reasonable inferences based on her testimony and evidence
of low back injury, the court properly granted defendant's motion. In reaching
this conclusion, we considered, as the court did, that there is no dispute the
accident occurred or even that plaintiff was injured as a result of the accident.
Nevertheless, Dr. Landa, plaintiff's IME expert, opined that the MRI results
showed evidence of pre-existing disc degeneration, which was aggravated due
to the accident based solely on plaintiff's subjective complaints of pain. Stated
differently, the court found Dr. Landa's finding the accident caused permanent
aggravation of degenerative changes resulting in pain and functional limitations
A-0675-24 17 was unsupported by the evidence. We concur with the court's determination
there was no objective medical evidence such as an MRI or other diagnostic test
showing plaintiff's condition pre-accident for comparison purposes, and
subjective complaints of pain arising after the accident are insufficient to vault
the verbal threshold.
Finally, we conclude plaintiff's contentions the court's "encouragement"
to consider settlement before ruling on the motion was prejudicial and its
assessment of her credibility should have precluded dismissal, are without merit.
On the contrary, the record shows the court explained the motion, defendant's
final offer and the consequences of a decision to grant an involuntary dismissal.
The court also took special care to ensure that plaintiff and her counsel had
sufficient time to discuss the motion with each other and with plaintiff's
husband, who was not present in court at the time. Under these circumstances,
we observe no abuse of discretion by the court.
Affirmed.
A-0675-24 18