Xinan Yan v. Phyllis M. Chase ( 2024 )

NOT FOR PUBLICATION WITHOUT THE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-3319-22
XINAN YAN and XIAOYING
WU,
Plaintiffs-Appellants,
v.
PHYLLIS M. CHASE,
Defendant-Respondent.
____________________________
Argued November 6, 2024 – Decided November 18, 2024
Before Judges Smith and Chase.
On appeal from the Superior Court of New Jersey, Law
Division, Mercer County, Docket No. L-0618-21.
Xinan Yan and Xiaoying Wu, appellants, argued the
cause pro se.
John J. Gentile argued the cause for respondent.
PER CURIAM
Plaintiffs Xinan Yan and Xiaoying Wu, pro se, appeal the trial court's
order granting summary judgment dismissing their complaint. The trial court
found plaintiffs failed to meet their burden to sustain a personal injury lawsuit
for non-economic loss sustained in a motor vehicle accident because they
presented no evidence of an enumerated injury or permanent injury as required
by N.J.S.A. 39:6A-8(a). Plaintiffs appealed, arguing that the trial court
misapplied the law in granting summary judgment. We affirm.
I.
We obtain the salient facts from the record. On March 29, 2019, at 2:26
p.m., plaintiffs were driving southbound on Route 27 in Franklin Township.
Xiaoying Wu was a passenger in a car operated by her husband, Xinan Yan.
Defendant Phyllis Chase attempted a right turn onto Route 27 from a commercial
parking lot, striking plaintiff's vehicle, which had the right of way. Plaintiffs
were named insureds in an automobile policy which was subject to the limitation
on lawsuit, or "verbal" threshold. The verbal threshold requires a plaintiff to
prove a permanent injury under N.J.S.A 39:6A-8(a) to recover damages.
Plaintiffs sued defendant for damages, each alleging permanent injury.
Xinan Yan also brought a per quod claim.
In discovery, the only medical report plaintiffs produced was the report of
Dr. Ari Cohn, D.C. Dr. Cohn treated plaintiffs between July 19, 2019 to March
A-3319-22
2
16, 2020.1 Dr. Cohn's report stated in pertinent part, "[i]t is my professional
opinion that with a reasonable degree of medical certainty that due to the chronic
nature and the recurring nature of [plaintiffs'] condition that [his/her] condition
is permanent."
After discovery, defendant moved for summary judgment, contending
plaintiffs' complaint should be dismissed as a matter of law because plaintiffs
failed to show permanent injuries under N.J.S.A. 39:6A-8(a). The trial court
issued an order granting the motion over plaintiffs' written opposition, making
findings. The court stated:
[E]ven when all . . . competent evidence in the motion
record is viewed in the light most favorable to
[p]laintiffs, the [c]ourt finds that [p]laintiffs cannot
demonstrate as a matter of law that either plaintiff
sustained a permanent injury within a reasonable
degree of medical probability. Accordingly, the [c]ourt
grants summary judgment to [defendant] and dismisses
[p]laintiffs' [c]omplaint with prejudice.
Plaintiff appealed, contending the trial court erred in its application of our
summary judgment standard and in its interpretation of our well-settled verbal
threshold jurisprudence.
1
Plaintiffs were also treated for their injuries by two other medical providers:
Dr. Zhuping Chang and the Jersey Rehabilitation Clinic. Treatments by Dr.
Chang and the clinic took place between June 16 and November 8 of 2021.
Plaintiffs produced no report from them in opposition to summary judgment.
A-3319-22
3
II.
We review a grant of summary judgment de novo, Gilbert v. Stewart, 247
N.J. 421, 442 (2021), applying "the same standard as the trial court," State v.
Perini Corp., 221 N.J. 412, 425 (2015); see also Statewide Ins. Fund v. Star Ins.
Co., 253 N.J. 119, 124-25 (2023). Summary judgment is proper if the record
demonstrates "'no genuine issue as to any material fact challenged and that the
moving party is entitled to a judgment . . . as a matter of law.'" Burnett v.
Gloucester Cnty. Bd. of Chosen Freeholders, 409 N.J. Super. 219, 228 (App.
Div. 2009) (quoting R. 4:46-2(c)). A court must view the motion record in a
light most favorable to the non-moving party, here plaintiff. Brill v. Guardian
Life Ins. Co. of Am., 142 N.J. 520, 528-29 (1995). We employ a summary
judgment analysis when we consider verbal threshold cases where defendant
alleges that plaintiff's injuries "do not fit any of the verbal threshold categories."
Oswin v. Shaw, 129 N.J. 290, 294 (1992).
III.
N.J.S.A. 39:6A-8(a) states in pertinent part:
[T]he plaintiff shall . . . provide the defendant with a
certification from the licensed treating physician or a
board-certified licensed physician to whom the plaintiff
was referred by the treating physician. The
certification shall state, under penalty of perjury, that
the plaintiff has sustained an injury described above.
A-3319-22
4
The certification shall be based on and refer to
objective clinical evidence, which may include medical
testing, except that any such testing shall be performed
in accordance with medical protocols . . . .
Dr. Cohn's report does not satisfy the express terms of N.J.S.A. 39:6A-
8(a). Because we view the summary judgment motion record in the light most
favorable to plaintiff as required by Rule 4:46-2 and Brill,2 we only consider
Dr. Cohn qualified as a licensed treating physician authorized to write a report
under the statute for purposes of our analysis. Dr. Cohn's nearly identical
thirteen-line report for each plaintiff contains: a short recitation of their pain
symptoms on presentation; a brief description of the nature and duration of the
treatment provided; and the observation that, for each plaintiff, pain symptoms
returned after initial rounds of treatment. Our review of Dr. Cohn's two medical
reports, the only portions of the record which could support plaintiffs' claims,
reveal no objective clinical evidence to support their allegations of permanency
as defined by the statute. 3
2
Brill, 142 N.J. at 540.
3
N.J.S.A. 39:6A-8(a) defines permanent injury this way: "[a]n injury shall be
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." At oral argument, the pro se plaintiffs carefully described their
injuries in detail, describing ongoing pain and discomfort. Because we intend
A-3319-22
5
We conclude, after a thorough review of the record, that the trial court
correctly applied the law and properly dismissed plaintiffs' complaint for failure
to meet the lawsuit limitation threshold under N.J.S.A. 39:6A-8(a).
Affirmed.
no disrespect and understand that pro se parties may not distinguish between
evidence submitted to the trial court in opposition to summary judgment and
their argument before us, we remind the parties that our decision is grounded in
the record before the trial court. See R. 2:5-4.
A-3319-22
6