Opinion
DOCKET NO. A-4244-11T3
05-10-2013
KATHLEEN CAMPANELLA, Plaintiff-Appellant, v. GEORGE M. PUSHKAL, Defendant-Respondent.
Charles E. Woolson, Jr. argued the cause for appellant. Donald R. Chierici argued the cause for respondent (Chierici, Chierici & Smith, attorneys; Mr. Chierici, on the brief).
NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
Before Judges Grall and Accurso.
On appeal from Superior Court of New Jersey, Law Division, Atlantic County, Docket No. L-1485-10.
Charles E. Woolson, Jr. argued the cause for appellant.
Donald R. Chierici argued the cause for respondent (Chierici, Chierici & Smith, attorneys; Mr. Chierici, on the brief). PER CURIAM
Plaintiff Kathleen Campanella appeals from a summary judgment in this non-verbal threshold case dismissing her complaint for failure to "satisfy her burden of proof on the issue of proximate cause." Because the trial judge erred in concluding that the reports and progress notes from plaintiff's treating physicians, considered in the light most favorable to her, were insufficient to establish injury proximately caused by the accident, we reverse.
Plaintiff was a passenger in a car rear-ended by defendant. She went to the emergency room several hours later and was diagnosed with neck pain and vertigo. She claimed the accident left her with constant neck pain, dizziness, numbness on her right side, pain in her left arm and shoulder, and constant headaches. Plaintiff initially treated with her family physician but eventually came under the care of physicians at the Rothman Institute. She was sixty-eight years old at the time of the accident and had been injured in at least three prior car accidents. She has not asserted an aggravation claim.
Throughout discovery and even at arbitration, the case proceeded as if plaintiff were subject to the verbal threshold. Indeed, defendant thereafter moved for summary judgment on that basis. Relying on Jacques v. Kinsey, 347 N.J. Super. 112, 117-18 (Law Div. 2001), he asserted that plaintiff's failure to provide a certificate of permanency and "a narrative report from a treating doctor opining that she [] sustained any permanent injury to a reasonable degree of medical certainty," entitled him to summary judgment.
Two days before the return date, plaintiff filed a copy of the declarations page of plaintiff's auto policy, in effect the year before the accident, showing that she had not selected the verbal threshold. The motion was adjourned and several additional rounds of briefing ensued. Plaintiff finally produced the applicable policy conclusively demonstrating she was not subject to the verbal threshold. Defendant objected to the court's consideration of the late submission and contended that the motion should be decided as if plaintiff had selected the verbal threshold. Alternatively, defendant contended, again relying on Jacques, that plaintiff's failure to produce a narrative report in which her treating doctor expressed his opinion that plaintiff had sustained an injury in the accident, to a reasonable degree of medical probability, left her unable to prove her case to a jury.
The judge agreed. Noting plaintiff's several prior accidents, the judge found that she had failed to present an expert report stating what specific injuries she sustained in the present accident. "Without any such report, Ms. Campanella cannot satisfy her burden of proof on the issue of proximate causation. Given her storied medical history arising from a multitude of auto accidents, no reasonable jury could possibly find in her favor." This appeal followed.
Plaintiff concedes that she did not suffer a permanent injury in the accident. As she did not select the verbal threshold, however, this is no impediment to her claims as she may sue for noneconomic damages without limitation. N.J.S.A. 39:6A-8. Further, she is not claiming that any of her pre-existing injuries was aggravated by this accident. Accordingly, she need not produce comparative-analysis evidence as part of her prima facie case. Davidson v. Slater, 189 N.J. 166, 170 (2007) ("When a plaintiff alleges aggravation of pre-existing injuries as the animating theory for the claim, then plaintiff must produce comparative evidence to move forward with the causation element of that tort action. When a plaintiff does not plead aggravation of pre-existing injuries, a comparative analysis is not required to make that demonstration.").
The only legitimate issue presented on summary judgment was whether the reports and progress notes from plaintiff's treating physicians raised a genuine issue of material fact with respect to causation sufficient to permit a rational fact-finder to resolve the dispute in her favor. See Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 523 (1995). We conclude they did, and that resolution of this motion became unnecessarily complicated by it first being presented and briefed as if the verbal threshold applied.
Defendant argued in the trial court, and continues to maintain on appeal, that Jacques applies and required plaintiff as part of her prima facie case to produce a narrative report from her treating physicians that she suffered some injury as a direct and proximate result of this accident to a reasonable degree of medical probability. This is not our understanding of the law. Jacques is a verbal threshold case and relates entirely to the requirements for proving permanent injury facing plaintiffs subject to the threshold. Jacques, supra, 347 N.J. Super. at 115 ("In this motor vehicle accident case, defendant has moved for summary judgment contending that plaintiff has failed to meet the verbal threshold under the new Automobile Insurance Cost Reduction Act N.J.S.A. 39:6A-8 (hereinafter AICRA).").
Defendant cites to no other case than Jacques for his proposition that plaintiff's failure to produce a narrative report from her treating physician was fatal on summary judgment. Treating physicians are generally treated as fact witnesses. Stigliano v. Connaught Labs., 140 N.J. 305, 314 (1995). While the doctor's file is normally produced in discovery, we are aware of no requirement that a treating doctor prepare a narrative report containing all of the doctor's opinions and the bases therefore, as is required of experts retained for purposes of litigation. Moreover, it is well-settled that "[b]ecause the determination of the cause of a patient's illness is an essential part of diagnosis and treatment, a treating physician may testify about the cause of a patient's disease or injury," ibid., regardless of whether called by plaintiff or defendant.
Here, several progress notes from plaintiff's treating doctors at the Rothman Institute about their treatment of plaintiff in connection with the accident were made part of the summary judgment record. Those notes record plaintiff's symptoms as they relate to that accident and her pre-existing injuries and the doctors' planned course of treatment. In addition, because defendant had initially briefed the motion as if it were a verbal threshold case, he had placed in the record the report of his own expert. That doctor opined on the basis of his examination that plaintiff had not sustained a permanent injury in the accident but instead "a cervical and thoracic muscular strain" which he characterized as "soft tissue injuries that have a good prognosis within a reasonable degree of medical certainty." Viewing the competent evidence in the record in the light most favorable to plaintiff, acknowledging that she need not prove permanency nor produce any comparative analysis evidence as part of her prima facie case, and giving her the benefit of all legitimate inferences from that evidence, we conclude that a rational fact-finder could determine that she suffered temporary cervical and thoracic muscular strain as a result of the accident. That is enough in this non-verbal threshold case to get her to a jury.
Reversed.
I hereby certify that the foregoing is a true copy of the original on file in my office.
CLERK OF THE APPELLATE DIVISION