Opinion
CIVIL NO. 98-CV-1378 (JBS).
December 10, 1999.
Thomas Bass, Esquire, Marlton, New Jersey, Attorney for Plaintiffs.
Jennifer A. Mullen, Esquire, Law Offices of Gregory J. Sutton, Marlton, New Jersey, Attorney for Defendants
OPINION
In this personal injury action, plaintiff Barbara Garretson, a Pennsylvania resident, has brought suit against New Jersey residents John Harmon Michael Harmon to recover for damages she suffered in a two-car accident that occurred on June 19, 1996 in Lower Township New Jersey. Presently before the Court is defendants' motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P. The primary issue to be decided is whether plaintiff has satisfied the verbal-threshold requirement of the New Jersey Automobile Reparations Act, N.J.S.A. 39:6A-8a, which limits recovery for non-economic losses to nine specific categories of harm. For reasons discussed herein, the Court finds that plaintiff has not satisfied this requirement, and will grant defendants' motion for summary judgment.
Plaintiff's parents Donna and Gary Garretson have settled their portion of the case and a partial stipulation of dismissal was filed in January 1999. (Def's Ex. C.)
I. BACKGROUND
This action arises from a June 19, 1996 head-on collision which occurred after defendants' car veered directly into the path of the van in which plaintiff was a passenger. (Pl's Ex. A at 11.) The van was a total loss, but everyone involved refused treatment at the scene from responding emergency medical personnel. (Def's Ex. A at 2) The following day, however, plaintiff went to the Roxborough Memorial Hospital emergency room, complaining of a stiff and sore neck, and a sore chest. (Pl's Ex. A at 27.) Plaintiff was diagnosed as having an "acute chest contusion and [an] acute cervical/trapezius strain" and released the same day. (Pl's Ex. B.)
Two weeks later, apparently still feeling back and neck pain, plaintiff began treatment with Larry Doroshow, D.O. In a report dated July 16, 1997, Dr. Doroshow noted plaintiff suffered from paraspinal spasms and tenderness and diagnosed plaintiff as suffering from "lumbrosacral strain, scoliosis and cervical strain". She received adjustments from July 2, 1996 to November 27, 1996. She was discharged on the latter date and encouraged to continue home stretching exercises. (Pl's Ex. C.) X-Rays taken during the course of her treatment with Dr. Doroshow were essentially normal. (Def's Ex. I.)
Even after Dr. Doroshow's discharge, however, plaintiff's complaints of back pain continued. In an effort to treat her back pain in December 1996, she consulted Mark D. Avart, D.O. an orthopaedic specialist in Philadelphia. Dr. Avart's initial examination, dated January 27, 1997, noted painful spasms and tenderness in her back, and diagnosed plaintiff with post-traumatic cervical, thoracic and lumbar strain, sprain with myofascitis, and possible post-traumatic disc herniation and radiculopathy. (Def's Ex. J at 1-2.) Dr. Avart's reports for 1997 consistently noted mid-thoracic and cervical spine pain and weakness. (Pl's Ex. D.)
After the onset of this litigation, on January 28, 1999 plaintiff was assessed by Robert Bachman, M.D. at the request of the defendant. Dr. Bachman reviewed plaintiff's medical records and found that Dr. Avart's reports were consistent with strain to the cervical, thoracic, and lumbar regions, but opined that she had recovered from the accident. (Def's Ex. N at 2.)
In her deposition testimony, plaintiff stated that although there was slight improvement in her neck, her back pain remained constant and still persists from her mid-back downward to just above her hips. (Pl's Ex. A at 38.) Plaintiff also testified that her injuries have had a substantial effect on her daily activities. At the time of the accident, plaintiff was a high school sophomore and was a cheerleader for her school. Ms. Garretson testified that after the accident, she could not continue cheerleading, and that she was limited in her ability to dance, drive, sit in class, and enjoy amusement park rides. She further testified that her grades fell and that her sleep was disturbed. (Pl's Ex. A at 52-59.) Although plaintiff did not miss work from her part-time job at a movie theater, she allegedly could not perform all tasks required of her at work, and also was limited in her ability to perform chores at home. (Pl's Ex. A at 67.) Currently, plaintiff is a full time student at Philadelphia Community College and a part-time salesperson at Old Navy, a clothing retailer. (Def's Ex. E at 61-63.)
II. DISCUSSION
The New Jersey Automobile Reparation Reform Act ("Act"), N.J.S.A. 39:6A-8, was enacted in 1989 in part to reduce the number of lawsuits based solely on subjective complaints of pain. Oswin v. Shaw, 129 N.J. 290, 319 (1992). The Act gives New Jersey motorists the option of purchasing traditional tort insurance, which allows unrestricted recovery of non-economic damages. The insured who elects that option pays a higher premium in return for the unlimited right to sue. Id. at 297. A less expensive alternative is the "verbal-threshold" option, which allows recovery for non-economic losses resulting only from automobile accident personal injuries that fit into one of nine specified categories set out in the margin. N.J.S.A. 39:6A-8a. Under N.J.S.A. 17:28-1.4, non-resident plaintiffs are automatically deemed to have elected the New Jersey verbal-threshold option in their automobile insurance policy. Thus, in the event of an automobile accident taking place in New Jersey, the verbal-threshold provision found in N.J.S.A. 39:6A-8a is "deemed" to be included in the insurance coverage of the out-of-state insured by statute even if it is not expressly stated in the written policy, so long as the policy was issued by an insurer licensed to do business in New Jersey. Here, plaintiff does not contest that she is subject to the verbal-threshold requirement.
a. Every owner, registrant, operator or occupant of an automobile to which section 4 of P.L. 1972, c. 70 (C.39:6A-4), personal injury protection coverage, regardless of fault, applies, and every person or organization legally responsible for his acts or omissions, is hereby exempted from tort liability for noneconomic loss to a person who is subject to this subsection . . . as a result of bodily injury, arising our of the ownership, operation, maintenance or use of such automobile in this State, unless that person has sustained a personal injury which results in [1] death; [2] dismemberment; [3] significant disfigurement; [4] a fracture; [5] loss of a fetus; [6] permanent loss of use of a body organ, member, function or system; [7] permanent consequential limitation of use of a body organ or member; [8] significant limitation of use of a body function or system; or [9] a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially of the material acts which constitute that person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.N.J.S.A. 39:6A-8a (emphasis enumeration supplied).
Defendants have moved for summary judgment based on plaintiff's failure to "cross the threshold" by presenting objective proof that she has suffered one of the specified types of injury. Plaintiff opposes defendants' motion, and argues that she suffered sufficient injuries as a result of the accident to satisfy the statute's demands. (Pl's Opp'n Br. at 5.)
When deciding whether plaintiff has satisfied the demands of the threshold statute, court must engage in a two-part test. First, the court must find that the injury alleged is supported by objective, credible medical evidence. Second, the court must find that plaintiff has shown that the injury had a serious impact on the her lifestyle. Oswin, 129 N.J. at 318. Thus, a defendant is entitled to summary judgment if he can demonstrate that plaintiff has failed to meet both the objective and subjective criteria of the statute. Dabal v. Sodora, 260 N.J. Super. 397, 400 (App.Div. 1992).
The first eight categories of injury in the threshold statute require a showing of permanency of harm. The ninth category, which allows recovery for
a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially of the material acts which constitute that person's usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment[,]
N.J.S.A. 39:6A-8a, is different, however, and does not require proof of permanency. Instead, a plaintiff may satisfy the threshold requirement of injuries of the ninth type by coming forward first with objective, credible evidence establishing a medically determined injury that prevented her from performing her daily activities, and second with subjective criteria showing that the impact of this disability on her lifestyle was severe. However, only evidence arising within 180 days of the accident may be considered. Jefferson v. Freeman, 296 N.J. Super. 54, 62-63 (App.Div. 1996).
A determination of the effects of a temporary soft tissue injury, such as an injury to the musculature of the back, naturally compels consideration of more subjective criteria than does an allegation of permanent injury. However, the New Jersey Supreme Court has rejected an approach that would "automatically vault all soft-tissue injuries over the verbal-threshold", and has required that even where plaintiffs allege soft-tissue injuries, objective proof is required. Oswin, 129 N.J. at 319. Once plaintiff has come forward with objective proof, the second prong of the threshold test is somewhat easier to meet. The New Jersey courts have broadly defined what constitutes sufficient subjective criteria to show that the injuries have had a serious impact on the plaintiff's life. For example, the Appellate Division has found sufficient subjective criteria present where plaintiffs have adduced evidence that their objectively proven injuries had a serious impact on their lives on account of an inability to continue in scholastic athletics, Brown v. Puente, 257 N.J. Super. 203 (App.Div. 1992), and on account of an inability to continue social dancing, Dabal, 260 N.J. Super. at 401. No matter how compelling the subjective criteria, however, in order for a plaintiff to survive a motion for summary judgment, the court first must make a finding of sufficient objective proof of injury.
Turning to a discussion of plaintiff's claims in this matter, the Court first notes that plaintiff has not come forward with any objective proof that her injuries are permanent. The reports of Dr. Doroshow, Dr. Avart, and the independent medical examiner state all note gradual improvement in plaintiff's condition. Significantly, the independent examiner, Dr. Bachman, found that plaintiff had made a full recovery. Based on these reports, the Court finds that plaintiff's injuries are non-permanent, and that plaintiff is therefore precluded from satisfying the verbal-threshold except insofar as she can establish a type nine injury, which allows recovery for harm of a non-permanent nature so long as such harm prevented the plaintiff from performing substantially all of her usual daily activities in the six months following the accident.Jefferson, 296 N.J. Super. at 63.
In considering plaintiff's alleged type nine injuries, the Court first must determine whether there is objective evidence supporting her claim of injury, and whether such evidence arose within six months of the accident. Because plaintiff was injured on June 19, 1996, the relevant time period lasted until approximately December 19, 1996. During this time period, plaintiff was seen by Emergency Medical personnel at the scene of the accident, by Emergency Room staff at Roxborough Hospital, and by Dr. Doroshow. The reports of the other treating physicians, including those of Dr. Avart, begin in January 1997 and thus fall outside the six month window. The Court therefore considers only the emergency reports and those of Dr. Doroshow.
Although plaintiff testified that Dr. Avart first saw her in December 1996, (Pl's Ex. A at 34), the record before the court does not include any of Avart's observations prior to January 1997. By that time, the relevant time period of 180 days post-accident had already closed.
This narrows the Court's inquiry to whether the reports of Dr. Doroshow, or the emergency reports, supply credible, objective proof that plaintiff suffered an injury that prevented her from performing substantially of the material acts which constitute her usual and customary daily activities during the relevant time period. A review of these reports reveals no such proof of disability. First, all parties refused treatment at the scene, thus no salient observations were made at that time. Next, the emergency room reports found that plaintiff had a bruised chest and a strained back, but staff made no observations consistent with a severe or lasting injury. Finally, Dr. Doroshow's report, which presents the most complete set of observations during the relevant time period, states that upon plaintiff's initial visit on July 2, 1996, plaintiff had a full range of motion, albeit with some spasms and tenderness. His report indicates an overall upward trend, and states that by the time of plaintiff's last visit on November 27, 1996, plaintiff had a normal range of motion, and minimal spasms. Her final diagnosis was simple back strain and scoliosis. Dr. Doroshow's report does not state that plaintiff was even temporarily disabled from performing her daily activities, nor does he note that plaintiff complained of such disability. Thus, Dr. Doroshow's report does not support plaintiff's claim that her back injury seriously affected her ability to perform her daily activities. Based on this lack of evidence establishing a medically determined back injury that significantly limited her daily activities in the 180 days following the accident, the Court concludes that plaintiff has not produced any objective proof of type nine injury.
Scoliosis is not a trauma-induced condition, but is an intrinsic spinal deformity present essentially since birth. "Scoliosis" may be defined as "an appreciable lateral deviation in the normally straight vertical line of the spine." R. Sloane, Sloane-Dorland Annotated Medical-Legal Dictionary (1994) at 663.
Because plaintiff has not provided objective proof of a type nine injury, she cannot satisfy the verbal-threshold test. The Court finds that plaintiff's proffered medical reports noting simple back strain, full range of motion, and minimal spasms, without more, do not meet the requirement of objective, credible evidence of injury required by the New Jersey courts. See Oswin, 129 N.J. 298 320 (tenderness, muscle spasms, and slight limitation of motion are not injuries of type "that the Legislature contemplated would survive its verbal threshold test");Sherry v. Buonansonti, 287 N.J. Super. 518, 521 (App.Div. 1996) (CAT scan "suggestive of degeneration" insufficient to support subjective complaints of pain); Phillips v. Phillips, 267 N.J. Super. 305, 317-18 (limited range of motion and tenderness not enough to overcome verbal-threshold).
Even in a type nine injury, an analysis of plaintiff's inability to perform daily activities comes after an initial finding of objective evidence sufficient to pass the threshold. Plaintiff's many allegations of inability to perform daily activities are not enough to overcome this objective shortcoming. Moreover, the cases plaintiff cites as presenting subjective criteria similar to this case, Brown and Dabal, supra, are inapposite. Although the plaintiffs in those cases did allege sufficient subjective criteria to demonstrate that their injuries had a severe impact on their lifestyle, they had at that point already come forward with objective proof of injury. Here, there is no objective evidence present allowing the Court to consider the overall impact of plaintiff's purported back injuries. In sum, the Court holds that, because plaintiff has not come forward with any objective proof of serious injury beyond her subjective complaints of pain within the six-month onset period required by N.J.S.A. 39:6A-8a, supra, she has not satisfied the New Jersey Legislature's verbal threshold test. Accordingly, the defendants' motion for summary judgment will be granted .
CONCLUSION
For the reasons discussed herein, defendants' motion for summary judgment will be granted. The accompanying Order is entered.O R D E R
This matter having been brought before the Court on defendants' motion for summary judgment, pursuant to Rule 56, Fed.R.Civ.P., and this Court having considered the submissions of the parties; and for the reasons stated in the Opinion of today's date;
IT IS on this ___ day of December, 1999, hereby
ORDERED that defendants' motion for summary judgment be, and hereby is, GRANTED; and that plaintiff's case be, and hereby is, DISMISSED.