H.K.S. VS. PAUL M. KENSEY (L-0531-17, UNION COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE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-1329-18T2
H.K.S.,1
Plaintiff-Appellant,
v.
PAUL M. KENSEY,
Defendant-Respondent,
and
CARMELA MORRIS and
WILLIAM MORRIS,
Defendants.
__________________________
Argued telephonically March 25, 2020 –
Decided May 18, 2020
Before Judges Koblitz, Whipple and Gooden Brown.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket No. L-0531-17.
1
Because plaintiff was a victim of sexual abuse as a child, we use initials to
protect her confidentiality. See R. 1:38-3(c)(9).
Melvin R. Solomon argued the cause for appellant
(Parsekian & Solomon, PC, attorneys; Melvin R.
Solomon, on the briefs).
Lauren M. Santonastaso argued the cause for
respondent (Cooper Maren Nitsberg Voss &
DeCoursey, attorneys; Lauren M. Santonastaso, on the
brief).
PER CURIAM
Plaintiff appeals from the October 29, 2018 summary judgment dismissal
of her auto accident related personal injury complaint filed against defendant
Paul Kensey. The complaint was dismissed on the ground that she failed to meet
the verbal threshold under N.J.S.A. 39:6A-8(a), which is part of the Automobile
Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35.
Under AICRA, to vault the verbal threshold's limitation
on the right to claim non-economic damages, a plaintiff
must establish that "as a result of bodily injury, arising
out of the . . . operation . . . or use of" an automobile,
she has "sustained a bodily injury which results in" one
of the enumerated categories of serious injury,
including "a permanent injury [2] within a reasonable
degree of medical probability."
[Davidson v. Slater, 189 N.J. 166, 186 (2007)
(alterations in original) (quoting N.J.S.A. 39:6A-8(a)).]
2
For purposes of AICRA, a permanent injury is "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).
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2
Based on our review of the record and the applicable legal principles, we affirm.
We derive the following facts from evidence submitted by the parties in
support of, and in opposition to, the summary judgment motion, viewed in the
light most favorable to plaintiff. Angland v. Mountain Creek Resort, Inc., 213
N.J. 573, 577 (2013) (citing Brill v. Guardian Life Ins. Co., 142 N.J. 520, 523
(1995)). On April 11, 2015, plaintiff was involved in an automobile accident
with a vehicle owned and operated by defendant, during which defendant's
Honda pick-up truck struck plaintiff's Honda Accord with such force that her
vehicle rear-ended the Ford Escape in front of her being driven by Carmella
Morris.3 On February 1, 2017, plaintiff filed a complaint, alleging she "suffered
severe and permanent injuries" as a result of defendant's negligence. Although
plaintiff initially asserted she sustained permanent physical and psychiatric
injuries from the accident, she recovered from the physical injuries but
maintained her claim for psychiatric injuries.
One month after the accident, on May 11, 2015, plaintiff, then fifty-seven
years old, began treating at Princeton House Behavioral Health Center
3
Carmella Morris and William Morris, owner of the Ford Escape, were also
named defendants in plaintiff's complaint, but they were granted summary
judgment dismissal of the claims and cross-claims against them on May 11,
2018.
A-1329-18T2
3
(Princeton House) based on a referral from her treating psychiatrist for a "higher
level of care due to increasing symptoms of depression, anxiety, and [post-
traumatic stress disorder (PTSD)]." Plaintiff had "a history of Bipolar Disorder
type II, polysubstance dependence, noted to be in full remission for over
[eighteen] years, Generalized Anxiety Disorder [GAD], and [PTSD]."
Previously, she had "multiple treatment episodes" at Princeton House, having
last treated there "in August 2012."
Plaintiff's medical records, including her treatment notes at Princeton
House, were reviewed on November 3, 2017, by Alain De La Chapelle, M.D., a
Board-certified psychiatrist retained by plaintiff's auto insurance carrier.
According to Dr. De La Chapelle, the treatment notes indicated that since the
accident, plaintiff expressed a "re-triggering of PTSD related to sexual abuse
while she was a child, including increased nightmares about being chased and
trapped, feelings of loss of control, being bothered by noises, erratic sleep,
increased isolation and lack of activity, and increasing depression." Plaintiff
was admitted to Princeton House's "partial hospital program" based on her report
of "depressed mood, social isolation, loss of interest, insomnia, nightmar es,
hypervigilance, intrusive memories, poor concentration, feelings of dread, panic
attacks, and suicidal ideation" resulting in "multiple functional impairments."
A-1329-18T2
4
From August 3 to 12, 2015, plaintiff was admitted for inpatient treatment at
Princeton House "for stabilization." The treatment notes specified that while
plaintiff "initially experienced an aggravation of her symptoms due to the
accident," hospitalization was required because plaintiff "shifted to a hypomanic
state, which [was] related to [her] bipolar condition." Following her discharge,
plaintiff continued to receive outpatient psychiatric therapy, including
psychotropic medications.
After filing the complaint, on June 1, 2018, plaintiff underwent an
independent medical evaluation conducted by Steven Lomazow, M.D., a
psychiatrist and neurologist. Dr. Lomazow opined that plaintiff's ongoing
psychiatric treatment, which she would receive "for the remainder of her life,"
was not related to the accident. According to Lomazow, plaintiff's psychiatric
treatment was of the same "frequency that she had prior to the [accident]" and
would have continued "whether or not she had had the intercurrent motor vehicle
accident."
On June 25, 2018, plaintiff was deposed. She testified that she "was
traumatized" as a result of the accident and "not functioning very well." She
explained that "[a] week" after the accident, she "[a]void[ed] driving," and had
"[p]anic attacks, night terrors, [and] depression." She also testified that she was
A-1329-18T2
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"not doing good self[-]care," such as bathing, and she was "not doing any normal
activities," such as frequent attendance at "[narcotics anonymous (NA)]
meeting[s]," volunteering for NA, socializing "with friends," participating in
"hobbies," "shopping" or "cleaning." She explained that when she had
experienced "these incidents of acute mental illness" in the past, she would
"bounce[] back" in "[t]hree" to "four months" after undergoing "inpatient" and
"outpatient" treatment. However, since the accident, she has not "gotten
substantially better."
Thereafter, on August 3, 2018, defendant moved for summary judgment 4
on the ground that plaintiff failed to provide any evidence of permanent injur y,
and failed to provide the requisite physician's "Certificate of Permanency,"
establishing that she sustained permanent injuries as a result of the accident. See
Casinelli v. Manglapus, 181 N.J. 354, 364-66 (2004) (explaining that the
physician certification requirement of AICRA "provide[s] evidence that a
plaintiff's claim is meritorious in that he or she has, in fact, sustained an injury
that qualifies for the recovery of non-economic damages under the revised
AICRA verbal threshold," and when "a plaintiff is unwilling or unable to
4
On May 11, 2018, plaintiff was granted summary judgment against defendant
on the issue of liability only.
A-1329-18T2
6
produce a physician certification . . . . the litigation cannot go forward and . . .
the complaint should be dismissed."). Further, defendant asserted that because
plaintiff had "documented psychological disorders, a Polk[5] [a]nalysis was
required to satisfy the requirements of . . . N.J.S.A. 39:6A-8(a)."
In the accompanying statement of material facts, defendant recounted
Lomazow's opinion and the Princeton House treatment notes, as well as
plaintiff's interrogatory responses, and deposition testimony. Defendant noted
that despite plaintiff's claim that the accident caused "a relapse and
exacerbation" of her prior psychiatric condition, the Princeton House records
indicated that plaintiff's complaints of nightmares were "related to the sexual
trauma," not the car accident. Further, in her deposition testimony, plaintiff
indicated that "panic attacks and nightmares/night terrors occurred prior to the
. . . accident," and her diagnosis of bipolar disorder and depression, to which she
"attributed her difficulties with activities," "dat[ed] back ten years."
Additionally, plaintiff "had anxiety related to driving as a result of [a] prior
accident" that occurred on July 21, 2011.
5
Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993) (holding that
"[a] diagnosis of aggravation of a pre-existing injury or condition must be based
upon . . . an evaluation of the medical records of the patient prior to the trauma
with the objective medical evidence existent post trauma.").
A-1329-18T2
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Plaintiff opposed the motion and submitted a physician certificate and
report dated September 14, 2018, prepared by Joel S. Federbush, M.D., a
psychiatrist, who examined plaintiff on September 12, 2018, at the request of
her attorney. In the certificate, Federbush stated "plaintiff presented with a
condition of depression and the inability to function as a result of the accident. "
"Upon [his] review of her past psychiatric history and [his] examination of her,"
he was of the opinion that plaintiff "sustained a chronic depressive condition as
a result of the accident," that plaintiff's "psychiatric injuries [were] causally
related to the . . . accident," and that plaintiff's injuries were "permanent."
In his report, Federbush stated that plaintiff "described the same
psychiatric symptoms to [him]" as those documented in the Princeton House
medical records, which symptoms were also "consistent with [her] deposition
testimony." In that regard, Federbush stated that during his examination of
plaintiff:
We discussed her past history of bi-polar disorders and
anxiety[] depressions. [Plaintiff] told me that the . . .
accident had been traumatic and caused her great
psychiatric harm. She had prior incidents of depression
some of which required brief hospitalization but on
each prior occasion she has . . . recovered quickly from
the depression and had significant periods of normalcy
during which she lived a relatively stable life. She said
that she has yet to "bounce back" from the . . .
[accident]. She reported night terrors, lack of sleep or
A-1329-18T2
8
motivation, the inability to concentrate when reading,
and lack of interest in her past activities such as visiting
museums and botanical gardens. . . . She also noted that
she was active in [NA], playing a leadership role. . . .
She has very little interest in attending or becoming
involved in these meetings. She even finds normal
daily activities such as showering, bathing or eating to
be stressful. [Plaintiff] also noted that she found
[driving] a car to be very stressful and is reluctant to
travel long distances.
Based upon his examination and review of plaintiff's "psychiatric record
and history," Federbush opined "within a reasonable medical certainty, that
[plaintiff] suffered a severe and permanent psychiatric injury as a result of the
. . . accident." Federbush found that plaintiff
has developed chronic long lasting depression. It is
now three years and five months since the accident and
there has been little improvement in her depressive
state. The psychiatric injuries as a result of the . . .
accident are more severe than previous admissions. In
all of the other instances, [plaintiff] "bounced back"
from bi-polar depressive episodes. Those instances
lasted three or four months. Her chronic depressive
state from this incident has lasted three year[s] and five
months and continues[.] In all medical probability it is
a permanent condition that did not exist before. Based
upon the lengthy period after the . . . [accident] during
which [plaintiff] has been suffering . . . depression
related symptoms, within a reasonable degree of
medical certainty this condition is permanent.
During oral argument, defendant argued that even with Federbush's report,
which was provided "well after the discovery end date," there was "no objective
A-1329-18T2
9
evidence of any permanent injury" and no "[Polk] [a]nalysis." In support,
defendant pointed out that "to form his conclusions," the doctor "relie[d]
completely on . . . plaintiff's own subjective complaints," failed to "perform any
. . . testing," and failed to "perform an analysis of her condition before the
accident as well as after the accident." Plaintiff countered that Federbush
provided objective evidence of plaintiff's psychiatric injury by reviewing her
records, examining her, and discussing her symptoms with her. Plaintiff's
counsel conceded that Federbush failed to perform a Polk analysis but indicated
"that could be done at a future time."
In an October 29, 2018 order, the motion judge granted defendant
summary judgment. In an accompanying written opinion, after applying the
governing principles, the judge concluded that "[e]ven granting all favorable
inferences to [p]laintiff" as required, plaintiff "has failed to raise a genuine issue
of material fact that the tort threshold was satisfied." The judge explained that
plaintiff relied on Federbush's "Certification of Permanency" and "narrative
report" as well as De La Chapelle's "review of medical records" "as objective
evidence of her lasting psychological harm." However, Federbush's "opinions
were based solely on his psychiatric examination of [p]laintiff, which involved
A-1329-18T2
10
only a discussion with [p]laintiff of her complaints and the review of [p]laintiff's
medical records." Further, "a [Polk] [a]nalysis was required and was not done."
According to the judge, as a result, plaintiff
failed as a matter of law to meet AICRA's requirement
of objective, credible evidence to support her claims of
a permanent injury because the documents provided by
her doctors rely solely on [p]laintiff's subjective
complaints. The record is devoid of any evidence of
any testing performed which reflects any objective
proofs to support plaintiff's claim of permanent injury.
On appeal, plaintiff argues Federbush's "objective examination of
[plaintiff's] psychiatric injuries along with assessing her history" as reflected in
his report and certification provided "sufficient evidence to prove that [plaintiff]
suffered severe and permanent injuries as a result of [defendant's] negligence ."
Plaintiff asserts "[t]here is no objective testing that [plaintiff] could have
undergone to determine the severity and permanency of the psychiatric injuries
caused from the motor vehicle accident" and the judge erred in finding otherwise
and granting summary judgment on that basis.
We review a grant of summary judgment de novo, applying the same
standard used by the trial court. Steinberg v. Sahara Sam's Oasis, LLC, 226 N.J.
344, 366 (2016). That standard is well-settled.
[I]f the evidence of record—the pleadings, depositions,
answers to interrogatories, and affidavits—"together
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11
with all legitimate inferences therefrom favoring the
non-moving party, would require submission of the
issue to the trier of fact," then the trial court must deny
the motion. On the other hand, when no genuine issue
of material fact is at issue and the moving party is
entitled to a judgment as a matter of law, summary
judgment must be granted.
[Ibid. (quoting R. 4:46-2(c)).]
If there is no genuine issue of material fact, we must "decide whether the
trial court correctly interpreted the law." DepoLink Court Reporting & Litig.
Support Servs. v. Rochman, 430 N.J. Super. 325, 333 (App. Div. 2013) (citation
omitted). We review issues of law de novo and accord no deference to the trial
judge's legal conclusions. Nicholas v. Mynster, 213 N.J. 463, 478 (2013).
Applying these principles, we agree with the judge that plaintiff failed to provide
competent objective medical evidence from which a jury could reasonably find
that she suffered a permanent psychiatric injury caused by the accident of April
11, 2015.
"The practical effect of [Rule 4:46-2(c)] is that neither the motion court
nor an appellate court can ignore the elements of the cause of action or the
evidential standard governing the cause of action." Bhagat v. Bhagat, 217 N.J.
22, 38 (2014). Pertinent to this appeal, N.J.S.A. 39:6A-8(a) neither includes nor
excludes permanent psychiatric or psychological injury in its definition of
A-1329-18T2
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"bodily injury" or "permanent injury." However, our Supreme Court has
construed similar "bodily injury" language in other statutes to encompass
permanent psychological or psychiatric injury. In Collins v. Union County Jail,
150 N.J. 407, 420-23 (1997), the Court held that the verbal threshold provision
in the Tort Claims Act (TCA), N.J.S.A. 59:9-2(d), which limits a plaintiff's right
to recover pain and suffering damages in a suit against a public entity or
employee for "permanent loss of a bodily function," did not bar recovery for "a
claim of permanent psychological harm in the form of post-traumatic stress
disorder" resulting from a corrections officer's rape of a prison inmate. Collins,
150 N.J. at 409.
Similarly, in Saunderlin v. E.I. DuPont Co., 102 N.J. 402 (1986), the Court
interpreted the provision of the Workers' Compensation Act, N.J.S.A. 34:15-36,
permitting coverage for a "'[d]isability permanent in quality and partial in
character . . . which restricts the function of the body or of its members or
organs,'" to encompass "claims of psychiatric disability." Saunderlin, 102 N.J.
at 405 (quoting N.J.S.A. 34:15-36). In reaching that result, the Court explicitly
rejected "the argument that [the statutory] language excludes from compensation
injuries that restrict the function of the mind as distinguished from the body. "
Id. at 408 n.4.
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Because "the Legislature is presumed to be aware of judicial construction
of its enactments," DiProspero v. Penn, 183 N.J. 477, 494 (2005) (citation
omitted), we may conclude that at the time of AICRA's enactment in 1998, the
Legislature consciously omitted from AICRA's lawsuit threshold any language
limiting "bodily injury" and "permanent injury" to physical injury, so as to
exclude permanent psychiatric injury from the purview of the statute. Thus,
psychiatric injury may constitute a qualifying injury under N.J.S.A. 39:6A-8(a).
See also Granowitz v. Vanvickle, 264 N.J. Super. 440, 445 (Law Div. 1993)
(finding psychological injuries compensable under the prior no-fault statute).
However, the injury must be established by "'objective clinical evidence' derived
from accepted diagnostic tests and cannot be 'dependent entirely upon subjective
patient response.'" Davidson, 189 N.J. at 181(quoting Serrano v. Serrano, 183
N.J. 508, 515 (2005)).
Additionally,
[w]hen aggravation of a pre-existing injury is
pled by a plaintiff, comparative medical evidence is
necessary as part of a plaintiff's prima facie and
concomitant verbal threshold demonstration in order to
isolate the physician's diagnosis of the injury or injuries
that are allegedly "permanent" as a result of the subject
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accident. . . .[6] In such matters, a plaintiff generally
bears the burden of production in respect of
demonstrating that the accident was the proximate
cause of the injury aggravation or new permanent injury
to the previously injured body part. Such evidence
provides essential support for the pled theory of a
plaintiff's cause of action and a plaintiff's failure to
produce such evidence can result in a directed verdict
for defendant.
[Davidson, 189 N.J. at 185-86 (citations omitted).]
In Saunderlin, the Court set forth guidelines for determining whether
psychiatric injuries satisfy the "demonstrable objective medical evidence"
standard prescribed by N.J.S.A. 34:15-36 for workers' compensation claims.
102 N.J. at 411. That standard is sufficiently similar to the "objective medical
evidence" standard governing proof in limitation on lawsuit or verbal threshold
cases to be instructive. See DiProspero, 183 N.J. at 495 (holding that the
Legislature adopted the "objective medical evidence" standard applied to the
prior no-fault insurance law under Oswin v. Shaw, 129 N.J. 290 (1992), by
requiring "objective clinical evidence" in N.J.S.A. 39:6A-8(a)); see also Agha
v. Feiner, 198 N.J. 50, 60-61 (2009).
6
"Although Polk predated [amendments to N.J.S.A. 39:6A-8(a)], a Polk
analysis continues to be required in cases governed by [the statute]." Bennett v.
Lugo, 368 N.J. Super. 466, 473 (App. Div. 2004) (citations omitted).
A-1329-18T2
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When dealing with a psychiatric injury, objective medical evidence is
viewed more broadly than when dealing with physical injury. Saunderlin, 102
N.J. at 411-14. To fit within this paradigm, the "'diagnostic criteria' of mental
disorders" as described in the Diagnostic and Statistical Manual of Mental
Disorders (DSM), published by the American Psychiatric Association, must be
followed. Id. at 413. "These diagnostic criteria typically include not only
physical manifestations observable independently of the patient's statement but
also descriptions of states of mind discoverable only through that statement. "
Ibid. By following the DSM framework, which includes consideration of
"diagnostic criteria manifestations of physical symptoms or descriptions of [the
patient's] states of mind," objective medical evidence, as conceived by the
profession of psychiatry, will be demonstrated. Id. at 415. Such evidence
"might suffice to interpose a professional psychiatric judgment between the
subjective statement of the [claimant]" and the ability to recover non-economic
loss, within the parameters set by the Legislature. Id. at 415-16.
However, the component of such "objective" psychiatric evidence that
consists of subjective statements by the patient must include a professional
analysis of those statements. Id. at 416. The "mere 'parroting' of the patient's
statement [will never] be sufficient." Ibid. Courts will rely to some extent "upon
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the psychiatrist's professionalism in deploying the clinical method to insure that
his or her analysis meaningfully exceeds parroting the subjective statement of
the patient." Ibid. Because "[t]he psychiatrist is perfectly aware of the fact that
the clinical history obtained from the patient is distorted and self-serving," and
the "reports of other physicians are not the whole story of the case, " the clinical
method requires the psychiatrist "to assimilate information from a wide variety
of sources, to evaluate each fact, to discount some, to emphasize others, and to
ignore still others." Id. at 416 n.11 (citing Diamond and Louisell, "The
Psychiatrist as an Expert Witness: Some Ruminations and Speculations," 63
Mich. L. Rev. 1335, 1353-54 (1965)).
Combined with "personal observations of [the] patient," the psychiatrist
then "puts everything together, and arrives at a conclusion." Ibid. The
psychiatrist must explain what information was accepted and what was rejected,
what information was given great weight and what was minimized, and explain
why the clinical material was evaluated in a particular way. Id. at 416-17. See
also Patterson v. Bd. of Trs., State Police Ret. Sys., 194 N.J. 29, 49 (2008)
(finding that within the medical profession, there are objective standards for
determining both the existence and cause of a psychiatric illness, such as post -
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traumatic stress disorder. (citing Diagnostic and Statistical Manual of Mental
Disorders Text Revision 466 (4th ed. 2000) (DSM-IV-TR))).
Here, Federbush's analysis did not employ the clinical method
contemplated in Saunderlin. His opinion, based entirely on parroting plaintiff's
statements and the reports of other physicians, presented no objective medical
evidence of permanent psychiatric injury, no objective comparative analysis of
plaintiff's pre- and post-accident condition, and is nothing more than an
inadmissible net opinion. See Townsend v. Pierre, 221 N.J. 36, 53-54 (2015)
("The [net opinion] rule requires that an expert give the why and wherefore that
supports the opinion, rather than a mere conclusion" and "forbids the admission
into evidence of an expert's conclusions that are not supported by factual
evidence or other data." (citations and internal quotation marks omitted));
Hisenaj v. Kuehner, 194 N.J. 6, 23-24 (2008) (explaining in a verbal threshold
case that a medical expert must provide the "why and wherefore" of his or her
opinion).
Federbush provided no discussion of the DSM diagnostic criteria, no
analysis of plaintiff's statements, and no observations of the physical
manifestations of any symptoms subjectively claimed by plaintiff. Federbush
provided no explanation of what information was accepted, what was rejected,
A-1329-18T2
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what was given great weight, and what was minimized, and failed to explain
why the clinical material was evaluated in a particular way. Thus, plaintiff
failed as a matter of law to meet AICRA's objective clinical evidence
requirement to withstand summary judgment dismissal.
Affirmed.
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