NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-5211-16T2
TIMOTHY J. KANE,
Plaintiff-Appellant,
v.
PETER ROBINSON, BERNETTA HIBBERT, and RUSSELL HIBBERT,
Defendants-Respondents. _____________________________
Argued May 24, 2018 – Decided June 25, 2018
Before Judges Gilson and Mitterhoff.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. DC-003847-16.
Timothy J. Kane, appellant, argued the cause pro se.
John P. Gilfillan argued the cause for respondents (Kennedy CMK, LLP, attorneys; Kersten Kortbawi, on the brief).
PER CURIAM
In this personal injury action, plaintiff Timothy J. Kane
appeals from a May 16, 2017 order granting summary judgment to
defendants because plaintiff failed to produce an expert report addressing the cause of his alleged injuries. We affirm in part
and reverse in part. We affirm the order to the extent that
plaintiff alleged permanent injuries or the need for corrective
surgery, because without an expert plaintiff could not establish
causation. We are constrained, however, to reverse the order to
the extent that plaintiff sought to recover the $4,815.06 he
certified he paid for medical treatment related to the alleged
incident. As to those medical costs, plaintiff presented
sufficient facts to allow a fact finder to rule on causation.
I.
We discern the facts from the summary judgment record, and
construe them in the light most favorable to plaintiff, the
non-moving party. Davis v. Brickman Landscaping, Ltd., 219 N.J.
395, 405-06 (2014). Plaintiff, who was sixty-nine years old at
the time, was walking on a public street near his home on October
31, 2014. He alleges that a pit bull attacked him. The dog did
not bite plaintiff, but it did knock him over. When plaintiff
fell, he felt pain in his left knee and right shoulder.
Accordingly, plaintiff went to the hospital that same day.
At the hospital, plaintiff reported that he had a prior injury
to his left knee. The hospital records state that plaintiff's
"[p]roblems" included "[c]ontusion of elbow," "superficial
abrasion," and "[c]ontusion of knee." The "[p]rimary [d]iagnosis"
2 A-5211-16T2 of the physician assistant and doctor who examined plaintiff at
the hospital was "[c]ontusion of knee." Plaintiff was informed
that he had a "knee sprain," and he was discharged with
instructions that included icing his knee and keeping his knee
elevated for twenty-four hours. The hospital also instructed
plaintiff to "[a]rrange for a follow up appointment with [his] own
Primary Care Provider." The hospital charged plaintiff $2177 for
his visit, which included charges for visiting the emergency room
and having an x-ray.
On November 10, 2014, plaintiff saw Dr. Norman Glassner, a
physician who had previously treated plaintiff. Dr. Glassner's
notes stated that plaintiff reported he was knocked over by a pit
bull, landed on his left knee, and injured his right shoulder.
The notes also reflect that "[plaintiff] immediately had a lot of
pain. He is having trouble sleeping. This was about ten days
ago." Dr. Glassner directed plaintiff to go to physical therapy
twice a week for eight weeks. Finally, Dr. Glassner, who was
retiring, recommended that plaintiff follow up with Dr. Michael
Pollack at Hunterdon Orthopedic Institute. Dr. Glassner charged
plaintiff $350 for that examination.
In November and December 2014, plaintiff went to physical
therapy at the Kessler Institute for Rehabilitation. He was
charged $2,288.06 for that physical therapy.
3 A-5211-16T2 Plaintiff did not follow up immediately with Dr. Pollack. On
March 10, 2017, however, plaintiff went to see Dr. Pollack, who
ordered a magnetic resonance imaging (MRI) of plaintiff's right
shoulder.1 According to plaintiff, Dr. Pollack contacted him on
March 13, 2017, and told him he would need arthroscopic surgery
to correct his right shoulder.
The same day that plaintiff was knocked over by the pit bull,
the police were contacted regarding the incident. The responding
police officer met with plaintiff after he was released from the
hospital on October 31, 2014. A township animal control officer
informed the investigating police officer that a white pit bull
was picked up on October 31, 2014. The dog had an expired license,
naming Peter Robinson as its owner and listing Robinson's address.
On October 28, 2016, plaintiff, representing himself, filed
a complaint in the Special Civil Part. As defendants, plaintiff
named Peter Robinson, and his parents, Bernetta and Russell
Hibbert, who allegedly lived with Robinson at the address listed
on the dog license. In his complaint, plaintiff alleged that the
pit bull was negligently allowed to run loose, attacked plaintiff,
1 Plaintiff represents that he visited Dr. Pollack on March 2, 2017, however, we were not provided with any documents relating to that visit. We only were given the MRI report dated March 10, 2017.
4 A-5211-16T2 and caused him damages, including "medical bills plus pain and
suffering[.]"
Defendants initially failed to respond, but eventually they
retained legal counsel and filed an answer in January 2017.
Defendants also sought discovery. In response to a request for
his damage claims, plaintiff produced a certified statement
listing his medical bills resulting from the "pit bull attack" as
St. Peter's Hospital 1,507.00 Emergency [Department] 595.00 X-ray October 31, 2014 visit 75.00 Dr. Glassner M.D. Orthopedic 350.00 Physical Therapy 1,016.72 Kessler Rehab, North Brunswick, NJ 1,271.34
Total $4,815.06
Plus additional monies for pain and suffering by the plaintiff which the jury shall award the [p]laintiff.
Also please find the [c]ertification of Timothy J. Kane.
In response to a follow up request from defense counsel,
plaintiff obtained and produced a February 13, 2017 letter from
the Center for Medicare and Medicaid Services (CMS). The CMS
letter attached a payment summary showing that Medicaid paid
$1,187.11 out of the $4,815.06 plaintiff was charged for his
hospital visit, examination by Dr. Glassner, and physical therapy.
The CMS letter also informed plaintiff that the $1,187.11 in
payments "are subject to reimbursement to Medicare from proceeds
5 A-5211-16T2 [he] may receive pursuant to a settlement, judgment, award, or
other payment."
Plaintiff also listed the witnesses he intended to call at
trial as the animal control officer, the responding police officer,
Dr. Glassner, and Dr. Pollack.
The case was first listed for trial on February 23, 2017, but
that date was adjourned. On March 23, 2017, defendant filed a
motion for summary judgment.2 Defendants contended that plaintiff
had no medical expert and that he needed such an expert to support
causation between the alleged negligence in allowing their dog to
knock over plaintiff and plaintiff's injuries. Plaintiff filed
opposition and cross-moved to transfer the case to the Law
Division.
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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-5211-16T2
TIMOTHY J. KANE,
Plaintiff-Appellant,
v.
PETER ROBINSON, BERNETTA HIBBERT, and RUSSELL HIBBERT,
Defendants-Respondents. _____________________________
Argued May 24, 2018 – Decided June 25, 2018
Before Judges Gilson and Mitterhoff.
On appeal from Superior Court of New Jersey, Law Division, Somerset County, Docket No. DC-003847-16.
Timothy J. Kane, appellant, argued the cause pro se.
John P. Gilfillan argued the cause for respondents (Kennedy CMK, LLP, attorneys; Kersten Kortbawi, on the brief).
PER CURIAM
In this personal injury action, plaintiff Timothy J. Kane
appeals from a May 16, 2017 order granting summary judgment to
defendants because plaintiff failed to produce an expert report addressing the cause of his alleged injuries. We affirm in part
and reverse in part. We affirm the order to the extent that
plaintiff alleged permanent injuries or the need for corrective
surgery, because without an expert plaintiff could not establish
causation. We are constrained, however, to reverse the order to
the extent that plaintiff sought to recover the $4,815.06 he
certified he paid for medical treatment related to the alleged
incident. As to those medical costs, plaintiff presented
sufficient facts to allow a fact finder to rule on causation.
I.
We discern the facts from the summary judgment record, and
construe them in the light most favorable to plaintiff, the
non-moving party. Davis v. Brickman Landscaping, Ltd., 219 N.J.
395, 405-06 (2014). Plaintiff, who was sixty-nine years old at
the time, was walking on a public street near his home on October
31, 2014. He alleges that a pit bull attacked him. The dog did
not bite plaintiff, but it did knock him over. When plaintiff
fell, he felt pain in his left knee and right shoulder.
Accordingly, plaintiff went to the hospital that same day.
At the hospital, plaintiff reported that he had a prior injury
to his left knee. The hospital records state that plaintiff's
"[p]roblems" included "[c]ontusion of elbow," "superficial
abrasion," and "[c]ontusion of knee." The "[p]rimary [d]iagnosis"
2 A-5211-16T2 of the physician assistant and doctor who examined plaintiff at
the hospital was "[c]ontusion of knee." Plaintiff was informed
that he had a "knee sprain," and he was discharged with
instructions that included icing his knee and keeping his knee
elevated for twenty-four hours. The hospital also instructed
plaintiff to "[a]rrange for a follow up appointment with [his] own
Primary Care Provider." The hospital charged plaintiff $2177 for
his visit, which included charges for visiting the emergency room
and having an x-ray.
On November 10, 2014, plaintiff saw Dr. Norman Glassner, a
physician who had previously treated plaintiff. Dr. Glassner's
notes stated that plaintiff reported he was knocked over by a pit
bull, landed on his left knee, and injured his right shoulder.
The notes also reflect that "[plaintiff] immediately had a lot of
pain. He is having trouble sleeping. This was about ten days
ago." Dr. Glassner directed plaintiff to go to physical therapy
twice a week for eight weeks. Finally, Dr. Glassner, who was
retiring, recommended that plaintiff follow up with Dr. Michael
Pollack at Hunterdon Orthopedic Institute. Dr. Glassner charged
plaintiff $350 for that examination.
In November and December 2014, plaintiff went to physical
therapy at the Kessler Institute for Rehabilitation. He was
charged $2,288.06 for that physical therapy.
3 A-5211-16T2 Plaintiff did not follow up immediately with Dr. Pollack. On
March 10, 2017, however, plaintiff went to see Dr. Pollack, who
ordered a magnetic resonance imaging (MRI) of plaintiff's right
shoulder.1 According to plaintiff, Dr. Pollack contacted him on
March 13, 2017, and told him he would need arthroscopic surgery
to correct his right shoulder.
The same day that plaintiff was knocked over by the pit bull,
the police were contacted regarding the incident. The responding
police officer met with plaintiff after he was released from the
hospital on October 31, 2014. A township animal control officer
informed the investigating police officer that a white pit bull
was picked up on October 31, 2014. The dog had an expired license,
naming Peter Robinson as its owner and listing Robinson's address.
On October 28, 2016, plaintiff, representing himself, filed
a complaint in the Special Civil Part. As defendants, plaintiff
named Peter Robinson, and his parents, Bernetta and Russell
Hibbert, who allegedly lived with Robinson at the address listed
on the dog license. In his complaint, plaintiff alleged that the
pit bull was negligently allowed to run loose, attacked plaintiff,
1 Plaintiff represents that he visited Dr. Pollack on March 2, 2017, however, we were not provided with any documents relating to that visit. We only were given the MRI report dated March 10, 2017.
4 A-5211-16T2 and caused him damages, including "medical bills plus pain and
suffering[.]"
Defendants initially failed to respond, but eventually they
retained legal counsel and filed an answer in January 2017.
Defendants also sought discovery. In response to a request for
his damage claims, plaintiff produced a certified statement
listing his medical bills resulting from the "pit bull attack" as
St. Peter's Hospital 1,507.00 Emergency [Department] 595.00 X-ray October 31, 2014 visit 75.00 Dr. Glassner M.D. Orthopedic 350.00 Physical Therapy 1,016.72 Kessler Rehab, North Brunswick, NJ 1,271.34
Total $4,815.06
Plus additional monies for pain and suffering by the plaintiff which the jury shall award the [p]laintiff.
Also please find the [c]ertification of Timothy J. Kane.
In response to a follow up request from defense counsel,
plaintiff obtained and produced a February 13, 2017 letter from
the Center for Medicare and Medicaid Services (CMS). The CMS
letter attached a payment summary showing that Medicaid paid
$1,187.11 out of the $4,815.06 plaintiff was charged for his
hospital visit, examination by Dr. Glassner, and physical therapy.
The CMS letter also informed plaintiff that the $1,187.11 in
payments "are subject to reimbursement to Medicare from proceeds
5 A-5211-16T2 [he] may receive pursuant to a settlement, judgment, award, or
other payment."
Plaintiff also listed the witnesses he intended to call at
trial as the animal control officer, the responding police officer,
Dr. Glassner, and Dr. Pollack.
The case was first listed for trial on February 23, 2017, but
that date was adjourned. On March 23, 2017, defendant filed a
motion for summary judgment.2 Defendants contended that plaintiff
had no medical expert and that he needed such an expert to support
causation between the alleged negligence in allowing their dog to
knock over plaintiff and plaintiff's injuries. Plaintiff filed
opposition and cross-moved to transfer the case to the Law
Division. Thereafter, on May 12, 2017, the trial court heard oral
arguments.
On May 16, 2017, the court granted summary judgment to
defendants and issued a written statement of reasons. The trial
court ruled that plaintiff needed an expert to establish causation
between defendants' negligence and the injuries and damages
2 Counsel for defendant represents that at the trial call on February 23, 2017, counsel moved, apparently orally, to dismiss plaintiff's complaint because plaintiff had not produced a medical expert. According to defense counsel, the court directed plaintiff to file an expert report by March 16, 2017. We were not provided, however, with the February 23, 2017 transcript, nor the order directing plaintiff to produce an expert report.
6 A-5211-16T2 plaintiff suffered. The court then examined the medical records
submitted by plaintiff. In particular, the court focused on three
documents: (1) a March 2, 2017 letter from Dr. Pollack;3 (2) a
March 10, 2017 MRI report; and (3) the November 10, 2014 office
notes of Dr. Glassner. The court ruled that none of those
documents "provide[d] an expert opinion/report to a reasonable
degree of medical certainty that Plaintiff's alleged injuries were
proximately caused by Defendant's alleged negligence."
Consequently, the court granted summary judgment to defendants and
dismissed plaintiff's complaint with prejudice.
II.
Plaintiff appeals and argues that (1) defendants were
negligent in allowing their pit bull to run loose; (2) defendants'
motion for summary judgment did not meet the requirements of Rule
4:46-2; (3) his complaint should be reinstated; and (4) his
injuries and damages were established by his medical records.
Alternatively, plaintiff contends that we should reinstate his
complaint under Rule 2:10-2.
We will focus on plaintiff's alleged damages and injuries.
We use a de novo standard to review a summary judgment order and
apply the same standard employed by the trial court. Davis, 219
3 The record does not contain the March 2, 2017 letter.
7 A-5211-16T2 N.J. at 405. Accordingly, we determine whether, viewing the facts
in the light most favorable to the non-moving party, the moving
parties have demonstrated that there are no genuine disputes as
to any material facts and they are entitled to judgment as a matter
of law. R. 4:46-2(c); Davis, 219 N.J. at 405-06; Brill v. Guardian
Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).
To establish negligence, a plaintiff must prove: "(1) a duty
of care, (2) a breach of that duty, (3) actual and proximate
causation, and (4) damages." Davis, 219 N.J. at 406 (quoting
Jersey Cent. Power & Light Co. v. Melcar Util. Co., 212 N.J. 576,
594 (2013)). "[P]laintiff bears the burden of establishing those
elements 'by some competent proof.'" Townsend v. Pierre, 221 N.J.
36, 51 (2015) (quoting Davis, 219 N.J. at 406).
To be entitled to an award of damages a plaintiff must prove
that he or she suffered some loss or injury. Nappe v.
Anschelewitz, Barr, Ansell & Bonello, 97 N.J. 37, 41 n.1 (1984).
"Compensatory damages are designed to compensate a plaintiff for
an actual loss or injury." Id. at 48. To demonstrate actual loss
or injury, a plaintiff must provide the fact finder with "some
information from which to estimate the amount of damages, even if
[plaintiff] is unable to prove the exact measure of his [or her]
damages[.]" Id. at 41 n.1. Indeed, calculation of damages should
be left "to the good sense of the jury [or fact finder] . . . to
8 A-5211-16T2 form, from the evidence, the best estimate that can be made under
the circumstances as a basis for compensatory damages." Ibid.
(quoting Jenkins v. Pa. R.R. Co., 67 N.J.L. 331, 334 (E. & A.
1902)).
In some cases, expert testimony is necessary to prove
negligence. N.J.R.E. 702 permits expert testimony "[i]f
scientific, technical, or other specialized knowledge will assist
the trier of fact to understand the evidence or to determine a
fact in issue." Thus, expert testimony must "relate[] to a
relevant subject that is beyond the understanding of the average
person of ordinary experience, education, and knowledge." State
v. Sowell, 213 N.J. 89, 99 (2013) (quoting State v. Odom, 116 N.J.
65, 71 (1989)). Expert testimony is not needed where the fact
finder's "common knowledge as [a] lay person[] is sufficient to
enable [him or her], using ordinary understanding and experience,
to determine a defendant's negligence without the benefit of the
specialized knowledge of experts." Hubbard v. Reed, 168 N.J. 387,
394 (2001) (quoting Estate of Chin v. St. Barnabas Med. Ctr., 169
N.J. 454, 469 (1999); see also Brenman v. Demello, 191 N.J. 18,
35 (2007) (holding that expert testimony is not necessary to prove
the relationship between an accident and the extent of any
resulting injuries).
9 A-5211-16T2 Moreover, a plaintiff may offer testimony from his or her
treating physician to support a claim for negligence. Our Supreme
Court has held "that a treating physician may be permitted to
testify as to the diagnosis and treatment of his or her patient,
pursuant to N.J.R.E. 701." Delvecchio v. Twp. of Bridgewater, 224
N.J. 559, 577-78 (2016). Under N.J.R.E. 701,
[w]hen treating physicians are called to testify about their observations, diagnosis and treatment of an injured or ailing plaintiff, they are not testifying as expert witnesses, even though they may possess the requisite qualifications. This is so even when they are asked for their opinions concerning the cause of the plaintiff's condition.
[Biunno, Weissbard & Zegas, Current N.J. Rules of Evidence, cmt. 4 on N.J.R.E. 701.]
In such cases, the treating physician's testimony is "limited to
issues relevant to the diagnosis and treatment of the individual
patient." Delvecchio, 224 N.J. at 579.
Here, viewed in the light most favorable to plaintiff, he has
asserted two types of damage claims: (1) the medical expenses he
incurred as a result of being knocked down by the pit bull, and
(2) ongoing pain and suffering, including an alleged need for
corrective surgery to his right shoulder. We agree with the trial
court that plaintiff's allegations about permanent injuries and
the need for corrective surgery to his shoulder require expert
10 A-5211-16T2 medical testimony to establish causation between being knocked
down and those injuries. Plaintiff has not produced an expert
report and, thus, he cannot pursue those claims. Accordingly, we
affirm summary judgment as to plaintiff's claims for permanent
injury, including the need for corrective surgery to his right
shoulder.
We reverse, however, as to plaintiff's claims for recovery
of the $4,815.06 in medical expenses. In reviewing a summary
judgment order, we must view the facts in the light most favorable
to plaintiff. Plaintiff has identified and produced his medical
records. Assuming that plaintiff can submit authenticated records
at trial, he can show that he was charged $2177 for his hospital
visit on October 31, 2014. Dr. Glassner then charged plaintiff
$350 for his follow-up visit on November 10, 2014. Finally,
plaintiff was charged $2,288.06 for physical therapy. Obviously,
plaintiff will have to prove that he paid all those costs beyond
the $1,187.11 paid by Medicare. If plaintiff did not pay any
costs beyond what was covered by Medicare, then his recovery would
be limited to the $1,187.11, which then would have to be reimbursed
to Medicare.
Plaintiff does not need an expert to allow a fact finder to
find causation between defendants' alleged negligence and the
$4,815.06 in medical expenses. It is not beyond the ken of an
11 A-5211-16T2 average fact finder to understand that if plaintiff was knocked
over by defendants' pit bull and felt pain in his knee and shoulder
that it was reasonable for him to go to the hospital. The hospital
records support plaintiff's contention that he had at least a knee
sprain that required treatment that cost $2177.
A fact finder also could understand that plaintiff would
reasonably follow up with another physician, Dr. Glassner, as
directed by the hospital. Thus, a fact finder could conclude that
the $350 charged by Dr. Glassner was an expense directly related
to plaintiff being knocked over by defendants' pit bull.
Finally, a fact finder could understand that Dr. Glassner
recommended physical therapy and find that being knocked over by
defendants' pit bull was a proximate cause of plaintiff's physical
therapy. Indeed, here plaintiff was prepared to call Dr. Glassner,
who could have testified concerning his diagnoses and recommended
treatment. N.J.R.E. 701; Delvecchio, 224 N.J. at 577-78.
Accordingly, a fact finder could, if he or she finds causation,
award $2,288.06 for physical therapy.
In summary, we affirm the order to the extent that it granted
summary judgment on plaintiff's claims of permanent injuries or
the need of further treatment or surgery. Those damage claims
required proof of medical causation and plaintiff had no expert
to establish causation. We reverse the order to the extent it
12 A-5211-16T2 precluded plaintiff from seeking to prove causation as to the
$4,815.06 he incurred in medical costs. Plaintiff presented
sufficient evidence to allow a fact finder to determine if those
costs were proximately caused by being knocked over by defendants'
pit bull. On remand the trial court also can address plaintiff's
motion to transfer the case to the Law Division, since that motion
was deemed moot when summary judgment was granted to defendants.
We express no view on the merits of that motion.
Affirmed in part, reversed in part, and remanded for further
proceedings consistent with this opinion. We do not retain
jurisdiction.
13 A-5211-16T2