Vivienne I. Allen v. Joseph Kane

• Court: New Jersey Superior Court Appellate Division
• Decided: October 21, 2024
• Docket: A-3842-22
• Status: Unpublished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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court ."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-3842-22

VIVIENNE I. ALLEN,

Plaintiff-Appellant,

v.

JOSEPH KANE,

Defendant/Third-Party Plaintiff-Respondent,

AJAY PATEL,

Third-Party Defendant. _________________________

Argued October 9, 2024 – Decided October 21, 2024

Before Judges Mayer and Rose.

On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5209-21.

Thomas T. Kim argued the cause for appellant. Mallary R. Hollander argued the cause for respondent (Voss Nitsberg DeCoursey & Hawley, attorneys; Mallary R. Hollander, of counsel and on the brief).

PER CURIAM

Plaintiff Vivienne I. Allen appeals from a March 31, 2023 order granting

summary judgment in favor of defendant Joseph Kane and a July 3, 2023 order

denying plaintiff's motion for reconsideration. We affirm both orders on appeal.

We recite the facts from the motion record. On August 14, 2019, the

parties were involved in a car accident. The same day as the accident, plaintiff

went to the hospital complaining of pain in her chest, arm, and back. At the

hospital, she had a CT scan of her chest and two x-rays of her sternum. The x-

rays indicated a non-displaced fracture of the sternum and the CT scan was

negative.

On August 22, 2019, plaintiff underwent an MRI of her spine at Cliffside

Park Imaging & Diagnostic Center (Cliffside). 1 Plaintiff's medical expert and

treating doctor stated he "interpreted and analyzed" Cliffside's reports and MRI

films from August 2019.

1 The record on appeal lacks any written reports from Cliffside indicating its MRI findings related to plaintiff's spine. A-3842-22 2 In August 2021, plaintiff filed a personal injury lawsuit against defendant

for injuries she allegedly suffered in the August 2019 accident. Plaintiff's

automobile insurance policy limited the injuries for which she could recover

because she elected the limitation on lawsuit option, also known as the verbal

threshold option.

After the accident, plaintiff treated with Dr. Andrew Rodgers, a

chiropractor. In addition to rendering treatment, Dr. Rodgers authored a March

29, 2021 narrative medical report opining plaintiff suffered a permanent back

injury. He rendered this opinion after examining plaintiff, administering range -

of-motion tests, and reviewing the hospital's x-rays and Cliffside's MRIs.

After performing the range-of-motion tests, Dr. Rodgers concluded

plaintiff displayed "abnormal[] . . . flexibility and mobility," along with "muscle

spasms" upon palpation. Dr. Rodgers noted plaintiff's x-rays did not reveal

"fractures or broken bones." Based on his physical examination of plaintiff,

discussion with plaintiff regarding her medical history, review of plaintiff's

MRIs, and range-of-motion testing, Dr. Rodgers concluded plaintiff's "condition

has not returned to normal function and her health will not return to normal

function with further treatment as a result of this accident."

In his report, Dr. Rodgers wrote:

A-3842-22 3 [Plaintiff] has sustained a significantly permanent injury from her accident. . . . This permanent injury is in the form of a significantly limited use of this once normal bodily function [and] a loss of range of motion, accompanied by pain. Other limitations include: pain and limitation during athletic events, household work[,] and chores; pain during sleep, resulting in loss of sleep; sitting or standing for extended periods of time causes pain and joint stiffness.

Dr. Rodgers also provided a "[c]ertification/[a]ffidavit of [p]ermanency"

pursuant to N.J.S.A. 39:6A-8 as part of his March 29, 2021 report.

Dr. Rodgers subsequently issued a June 27, 2022 written addendum

report. Dr. Rodgers maintained plaintiff's medical condition as of June 2022

was "directly related to injuries from [the] motor vehicle accident of August 14,

2019" and the accident "was and is the only cause of [plaintiff's] present injuries,

present conditions[,] and present impaired functional limitations."

Defense counsel deposed plaintiff in June 2022 before Dr. Rodgers issued

his written addendum report. When asked if she continued to experience pain

from the August 2019 accident, plaintiff responded, "No." At her deposition,

plaintiff stated she had "[n]o more pain from [her] chest . . . and [her] back."

When defense counsel asked if plaintiff still suffered pain from the August 2019

accident, plaintiff replied, "No, not that I can say." Further, when defense

counsel asked if plaintiff had difficulty doing any activities as a result of the

A-3842-22 4 August 2019 accident, plaintiff stated, "I don't have any physical [pain] that I

can say it's because of the accident." Further, plaintiff testified she had no

restrictions on her activities of daily living attributable to the August 2019

accident and agreed the care and treatment she received from Dr. Rodgers

"helped" her condition.

In March 2023, defendant moved for summary judgment, arguing plaintiff

failed to vault the verbal threshold to recover non-economic damages.

Defendant asserted Dr. Rodgers' expert report lacked "objective data and

discussion" to conclude plaintiff suffered a permanent injury . Additionally,

defendant cited plaintiff's deposition testimony, which confirmed she did not

suffer a permanent injury. Plaintiff filed a brief in opposition to the motion but

did not submit an opposing certification.

On March 31, 2023, the motion judge heard argument on defendant's

application and immediately thereafter granted summary judgment for the

reasons stated on the record. The judge found:

[P]laintiff has not satisfied the verbal threshold here, [and] has not provided legitimate evidence of a permanent injury. And, has in fact, provided information that indicates she doesn't have a permanent injury resulting from this accident.

[Dr. Rodgers'] findings or notations, the [c]ourt finds is merely a parroting of the language of the

A-3842-22 5 statute. And, as the [c]ourt has repeatedly held, that does not sustain . . . plaintiff's ability to vault the verbal threshold as established under the statute.

The [c]ourt finds nothing in the record that indicates . . . plaintiff has any objective findings of a permanent injury. And, in fact, quite the opposite is what the record shows. So, I am going to grant the motion as filed and grant summary judgment dismissing the matter. The plaintiff has not satisfied the criteria . . . under the verbal threshold statute.

Several weeks after the judge granted summary judgment, plaintiff signed

a certification "in support of [her] [m]otion for [r]econsideration." According

to plaintiff's April 12, 2023, certification,2 she claimed she "still suffer[ed] and

experience[d] excruciating pain on a regular basis" and "limits and restrictions

to [her] range of motion includ[ing] cervical muscle, tendons[,] and ligaments."

In her newly minted certification, and contrary to her prior sworn deposition

testimony, plaintiff claimed she experienced intermittent pain and movement

restrictions since the August 2019 accident.

The judge denied the reconsideration motion. The judge explained he

disregarded plaintiff's post-summary judgment certification because she could

have provided such a certification in opposition to defendant's summary

2 Plaintiff's certification post-dated the summary judgment order by almost two weeks. A-3842-22 6 judgment motion, but failed to do so. Additionally, the judge stated he "did not

overlook or fail to give enough weight to any fact or argument" in granting

summary judgment to defendants. The judge again recited plaintiff's own

deposition testimony indicating she had no pain or restrictions as of the date of

her deposition.

On appeal, plaintiff argues the judge erred in granting summary judgment

to defendant because her expert report provided objective clinical evidence of a

permanent injury sufficient to vault the verbal threshold. Additionally, plaintiff

contends the judge erred in disregarding her April 2023 certification in support

of her reconsideration motion. We reject these arguments.

We first address plaintiff's argument the judge erred in granting summary

judgment to defendant. We review the grant of a summary judgment motion de

novo. Samolyk v. Berthe, 251 N.J. 73, 78 (2022). A court must grant summary

judgment when the record "show[s] that there is no genuine issue as to any

material fact challenged and that the moving party is entitled to a judgment or

order as a matter of law." R. 4:46-2(c). No genuine issue of material fact exists

where the record "is so one-sided that one party must prevail as a matter of law."

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995) (quoting

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986)).

A-3842-22 7 In reviewing a summary judgment motion, "an appellate court is bound by

the summary judgment factual record developed before the trial court." Est. of

Hanges v. Metro. Prop. & Cas. Ins. Co., 202 N.J. 369, 378 n.3 (2010) (citing

Liberty Surplus Ins. Corp. v. Nowell Amoroso, P.A., 189 N.J. 436, 445-46

(2007)). Accordingly, a court must consider "whether the competent evidential

materials presented [in the summary judgment record], when viewed in the light

most favorable to the non-moving party, are sufficient to permit a rational

factfinder to resolve the alleged disputed issue in favor of the non-moving

party." Brill, 142 N.J. at 540. The trial court's legal analysis, however, is "not

entitled to any special deference." Rowe v. Bell & Gossett Co., 239 N.J. 531,

552 (2019) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140

N.J. 366, 378 (1995)).

New Jersey law provides automobile insurance policyholders may elect

one of two choices for personal injury coverage: a "[l]imitation on lawsuit

option" and a "[n]o limitation on lawsuit option." N.J.S.A. 39:6A-8(a) and (b).

The "limitation on lawsuit threshold"—also known as the "verbal threshold"—

prevents an insured from recovering damages "for pain and suffering unless the

plaintiff suffers an injury that results in 1) 'death'; 2) 'dismemberment'; 3)

'significant disfigurement or significant scarring'; 4) 'displaced fractures'; 5)

A-3842-22 8 'loss of a fetus'; or 6) 'a permanent injury within a reasonable degree of medical

probability, other than scarring or disfigurement.'" DiProspero v. Penn, 183 N.J.

477, 488 (2005) (quoting N.J.S.A. 39:6A-8(a)). An injury is considered

permanent "when the body part or organ, or both, has not healed to function

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

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

Verbal threshold plaintiffs must prove a statutorily enumerated injury by

referencing "objective clinical evidence." N.J.S.A. 39:6A-8(a); Escobar-

Barrera v. Kissin, 464 N.J. Super. 224, 234 (App. Div. 2020). Objective clinical

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 v. Slater, 189 N.J. 166, 181 (2007)). The

objective medical evidence cannot "amount to little more than a paraphrasing,

in the most conclusory language, of the statutory requirements." Oswin v. Shaw,

129 N.J. 290, 320 (1992), superseded by statute, Automobile Insurance Cost

Reduction Act, L. 1998, c. 21, § 11. Further, plaintiffs subject to the verbal

threshold must "file a certification by a physician attesting, 'under penalty of

perjury,' that the injury satisfies one of the threshold categories." Serrano v.

Serrano, 183 N.J. 508, 514 (2005) (quoting DiProspero, 183 N.J. at 488-89).

A-3842-22 9 On a motion for summary judgment based on a plaintiff's failure to vault

the verbal threshold, the motion judge must determine whether there is "a

material dispute of fact regarding the nature and extent of the plaintiff's

injuries." Davidson, 189 N.J. at 179 (quoting Oswin, 129 N.J. at 307).

Specifically,

If on a summary-judgment motion the court decides, from whatever medical reports and other evidence submitted in support of and in opposition to the motion, that the injuries do not, as a matter of law, carry the plaintiff's case across the verbal threshold, then the defendant will prevail on the motion. If however the plaintiff's medical proofs survive that initial test and the court discovers, from all the information presented on the motion, a legitimate factual dispute over the nature and extent of the injuries, then resolution of that dispute is of course for the jury.

[Ibid.]

Here, based on her automobile insurance policy, plaintiff was subject to

the verbal threshold. As such, plaintiff was required to satisfy one of the six

categories enumerated under N.J.S.A. 39:6A-8(a) to recover for her injuries. In

this case, plaintiff alleged she suffered a permanent injury entitling her to

recovery under the statute.

Plaintiff's expert, Dr. Rodgers, concluded plaintiff suffered a

"significant[] permanent injury" based on his range-of-motion testing and

A-3842-22 10 review of plaintiff's MRIs. However, plaintiff's range-of-motion test results

were not objective clinical evidence of a permanent injury. Objective clinical

evidence must be "derived from accepted diagnostic tests and cannot be

'dependent entirely upon subjective patient response.'" Agha, 198 N.J. at 60

(quoting Davidson, 189 N.J. at 181). "[S]ubjective tests, such as those that

evaluate range of motion, will not suffice." Ibid.

Moreover, Dr. Rodgers relied on his own analysis and interpretation of

Cliffside's MRI films and reports to conclude plaintiff suffered a permanent

injury. However, such conclusions are inadmissible unless Dr. Rodgers is

qualified to analyze and interpret MRIs. "[I]nterpretation of an MRI may be

made only by a physician qualified to read such films, and . . . [an] MRI report

[cannot] be bootstrapped into evidence through [a chiropractor's] testimony."

Brun v. Cardoso, 390 N.J. Super. 409, 421 (App. Div. 2006).

Here, plaintiff failed to establish Dr. Rodgers had the requisite medical

training and expertise to review Cliffside's MRIs of plaintiff's spine. Without

training and experience in the reading of radiological images, Dr. Rodgers was

not competent to interpret plaintiff's MRI films.

Further, we are satisfied plaintiff's deposition testimony foreclosed her

ability to demonstrate she suffered a permanent injury. Plaintiff gave deposition

A-3842-22 11 testimony on June 22, 2022.3 During her deposition testimony, plaintiff stated

she no longer experienced pain or difficulty with activities of daily living

attributable to the August 2019 accident. Plaintiff's sworn testimony directly

contradicted Dr. Rodgers' medical opinion that plaintiff's injuries had not healed

to function normally and would not heal to function normally with further

treatment. Based on her own sworn deposition testimony, plaintiff cannot vault

the verbal threshold, and the judge properly entered summary judgment for

defendant.

We next consider plaintiff's argument that the judge erred in denying her

motion for reconsideration. Under Rule 4:49-2, "the decision to grant or deny a

motion for reconsideration rests within the sound discretion of the trial court."

Pitney Bowes Bank, Inc. v. ABC Caging Fulfillment, 440 N.J. Super. 378, 382

(App. Div. 2015). We review a "trial court's denial of plaintiff's motion for

reconsideration for abuse of discretion." Branch v. Cream-O-Land Dairy, 244

N.J. 567, 582 (2021) (citing Kornbleuth v. Westover, 241 N.J. 289, 301 (2020)).

Abuse of discretion "arises when a decision is made without a rational

explanation, inexplicably departed from established policies, or rested on an

3 Plaintiff's deposition took place after Dr. Rodgers rendered his initial March 2021 narrative medical report and five days before Dr. Rodgers issued his June 27, 2022 addendum report. A-3842-22 12 impermissible basis." Kornbleuth, 241 N.J. at 302 (quoting Pitney Bowes Bank,

440 N.J. Super. at 382).

A motion for reconsideration "is primarily an opportunity to seek to

convince the court that either 1) it has expressed its decision based upon a

palpably incorrect or irrational basis, or 2) it is obvious that the court either did

not consider, or failed to appreciate the significance of probative, competent

evidence." Id. at 301 (quoting Guido v. Duane Morris LLP, 202 N.J. 79, 87-88

(2010)). "[T]he magnitude of the error cited must be a game-changer for

reconsideration to be appropriate." Palombi v. Palombi, 414 N.J. Super. 274,

289 (App. Div. 2010). "Said another way, a litigant must initially demonstrate

that the [c]ourt acted in an arbitrary, capricious, or unreasonable manner, before

the [c]ourt should engage in the actual reconsideration process." D'Atria v.

D'Atria, 242 N.J. Super. 392, 401 (Ch. Div. 1990). "A litigant should not seek

reconsideration merely because of dissatisfaction with a decision of the [c]ourt."

Ibid.

Moreover, "[r]econsideration cannot be used to expand the record and

reargue a motion." Capital Fin. Co. of Del. Valley v. Asterbadi, 398 N.J. Super.

299, 310 (App. Div. 2008). "[I]f a litigant wishes to bring new or additional

information to the [c]ourt's attention which it could not have provided on the

A-3842-22 13 first application, the [c]ourt should, in the interest of justice (and in the exercise

of sound discretion), consider the evidence." D'Atria, 242 N.J. Super. at 401.

Having reviewed the record, we are satisfied the judge did not abuse his

discretion in denying plaintiff's reconsideration motion. While we understand

plaintiff's dissatisfaction with the judge's decision, she failed to proffer any

evidence that the judge's determination was arbitrary, capricious, or erroneous.

Further, the judge did not abuse his discretion in declining to consider

plaintiff's post-summary judgment certification. Nothing prevented plaintiff

from proffering a certification in opposition to defendant's summary judgment

motion. Between the date of plaintiff's deposition and defendant's motion for

summary judgment, plaintiff had nine months to submit a certification

correcting her deposition testimony, if necessary. Plaintiff only presented a

certification claiming she suffered continuing pain and limitations after the

judge dismissed her case. On these facts, the judge correctly declined to

consider plaintiff's post-summary judgment certification which contradicted her

earlier sworn deposition testimony. See Shelcusky v. Garjulio, 172 N.J. 185,

201-02 (2002) (holding courts may reject a contradictory affidavit as a sham

where contradiction is not "reasonably explained," the affidavit "patently and

A-3842-22 14 sharply" contradicts earlier deposition testimony, and no "confusion or lack of

clarity existed at the time of the deposition questioning").

Affirmed.

A-3842-22 15