SAMANTHA WHITE VS. PEGGY RAMIREZ SAMANTHA WHITE VS. RICARDO A. OCAMPO (L-3947-16 AND L-1959-17, UNION COUNTY AND STATEWIDE)

NOT FOR PUBLICATION WITHOUT THE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-2338-18T2
SAMANTHA WHITE,
Plaintiff-Appellant,
v.
PEGGY RAMIREZ,
Defendant-Respondent.
_____________________________
SAMANTHA WHITE,
Plaintiff-Appellant,
v.
RICARDO A. OCAMPO and
RO COMPLETE SOLUTIONS,
CORPORATION,
Defendants-Respondents.
_____________________________
Argued November 20, 2019 – Decided December 16, 2019
Before Judges Koblitz, Gooden Brown and Mawla.
On appeal from the Superior Court of New Jersey, Law
Division, Union County, Docket Nos. L-3947-16 and
L-1959-17.
Daniel J. Williams argued the cause for appellant (John
J. Pisano, of counsel and on the brief).
Steven Ira Greenberg argued the cause for respondent
Peggy Ramirez (Law Offices of Debra Hart, attorneys;
Steven Ira Greenberg, of counsel and on the brief).
Harry D. Mc Enroe argued the cause for respondents
Richardo A. O'Campo and Ro Complete Solutions,
Corp. (Tompkins Mc Guire Wachenfeld & Barry LLP,
attorneys; Harry D. Mc Enroe, of counsel and on the
brief).
PER CURIAM
Plaintiff filed two Law Division complaints, related to two separate
automobile accidents, occurring four months apart. She appeals from a
December 7, 2018 order granting defendants Peggy Ramirez, Ricardo A.
Ocampo, and RO Complete Solutions, Corp. (RO) summary judgment, and a
January 25, 2019 order denying reconsideration. We affirm.
The first accident occurred October 20, 2016, involving plaintiff and
Ramirez. The day of the accident, plaintiff presented to the emergency room
complaining of neck and back pain, was treated, discharged, and instructed to
follow up with a primary care doctor. Dr. Alan Epstein, a chiropractor and
plaintiff's expert, commenced treating her on November 7, 2016. According to
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his treatment records, she complained of neck, back, left knee, and jaw pain.
Plaintiff also sought treatment from an orthopedist, Dr. Sheref Hassan,
beginning November 2016, for left knee and left shoulder pain. Dr. Hass an
determined her left knee injury was related to the October 20, 2016 accident and
referred her for MRI testing.
Plaintiff underwent MRIs of her cervical and lumbar spine, and left knee
in November 2016, which showed herniated discs with thecal sac compression
at the C5-6, C6-7, and L5-S1 levels; bulging discs at the L2-3, L3-4, and L4-5
levels; and a complex tear of the posterior horn of the left medial meniscus.
Plaintiff followed up with Dr. Hassan in January 2017, complaining of swelling
in her left knee, sharp pain, and "giving way" episodes. Dr. Hassan reviewed
the MRI of plaintiff's left knee and diagnosed a complex tear of the medial
meniscus.
On February 16, 2017, plaintiff was involved in a second automobile
accident with a vehicle Ocampo operated and RO owned. Plaintiff visited the
emergency room that day and was diagnosed with cervical and thoracic sprains.
Dr. Epstein continued treating her until August 17, 2017.
Although Epstein treated plaintiff after the second accident, his treatment
records do not reference the second accident. He issued a report in April 2017,
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which did not mention the second accident. A May 2017 report was the first
time he mentioned the February 2017 accident. Specifically, Epstein's report
addressed plaintiff's left knee injury from the first accident and reported plaintiff
injured her right knee in the second accident, namely, a complex tear of the
posterior horn of the right medial meniscus. However, plaintiff's emergency
room records from the second accident referenced no type of right knee pain,
discomfort, or injury.
Epstein's reports noted that plaintiff's past medical history included only
asthma. Plaintiff was deposed in May 2018, and testified that other than
suffering from lower back pain and sciatica in 2012 and 2013, she never suffered
pain or discomfort in any part of her back other than after the two car accidents
in question. However, plaintiff's hospital records detailed that from 2008 until
2015, she received treatment on at least eight occasions for complaints of back
or neck pain as follows: (1) January 9, 2008, cervical strain diagnosis after a
motor vehicle accident; (2) January 30, 2010, lower back strain diagnosis for
another motor vehicle accident; (3) June 24, 2013, X-ray conducted of lumber
spine due to history of "lumbago;" (4) July 21, 2013, clinical history of "back
pain for one month," and MRI of lumbar spine demonstrating disc herniation at
L5-S1; (5) August 7, 2013, physical therapy evaluation regarding low back pain;
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(6) July 6, 2015, complaints of mid back pain; (7) August 1, 2015, complaints
of upper back pain; and (8) October 24, 2015, complaints of "intermittent back
pain [for] several months."
Plaintiff's primary care physician's records revealed complaints of
persistent back pain during August and October of 2013. Plaintiff's treatment
records from 2015, showed continuing complaints of "severe back pain" and
referenced a 2012 MRI, showing a herniated disc.
Defendants filed motions for summary judgment, which the motion judge
denied without prejudice. The judge granted plaintiff additional time to serve
any and all medical reports she intended to rely upon at trial, because plaintiff's
expert report lacked a comparative analysis of her injuries. In response, plaintiff
furnished an additional report from Epstein dated September 17, 2018, which
stated:
By way of a comparative analysis, when comparing the
injuries [plaintiff] received in her accident[s] of
10/26/16 and 2/16/17, please review the following.
In the accident of 10/26/16 she suffered injuries
that were objectively documented to include MRI
examination of the cervical spine, lumbar spine and left
knee. The injuries related to this accident included
central subligamentous disc herniation with thecal sac
compression at C5/6 and C6/7; annular disc bulging
with thecal sac compression at L2/3, L3/4 and L4/5 and
central subligamentous disc herniation with thecal sac
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compression at L5/S1; and left knee complex tear of the
posterior horn of the medial meniscus.
In the accident of 2/16/17 she suffered injuries
that were objectively documented to include MRI
examination of the right knee which revealed a complex
tear of the posterior horn of the medial meniscus.
By way of comparative analysis, the central
subligamentous disc herniation with thecal sac
compression at C5/6 and C6/7; annular disc bulging
with thecal sac compression at L2/3, L3/4 and L4/5 and
central subligamentous disc herniation with thecal sac
compression at L5/S1; and left knee complex tear with
a posterior horn of the medial meniscus were solely
caused by the accident of 10/20/16. The second
accident of 2/16/17 caused an exacerbation of the prior
noted spinal disc injuries; however, the right knee
complex tear of the posterior horn of the medial
meniscus is solely caused by the accident of 2/16/17.
The report did not address any of plaintiff's pre-existing conditions prior to the
first accident.
Defendants renewed their motions for summary judgment, which the
motion judge granted. The judge held:
[B]ecause of deficiencies, this [c]ourt allowed
additional time and entered an order stipulating . . .
[p]laintiff's counsel had [thirty] days from the date of
that order to serve any and all medical reports he
intended to rely upon at the time of trial. . . .
. . . Epstein, the plaintiff's treating chiropractor
submitted a supplemental report . . . less than a page in
length and devoid of a comprehensive analysis. The
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report makes conclusionary statements as to the cause
of the plaintiff's injuries without discussing plaintiff's
prior medical history, as she had complained of back
and neck issues well before the 2016 accident. The
report does not perform a sufficient Polk[1] analysis as
although it does attempt to link injuries between the
[20]16 and [20]17 accident, it ignores plaintiff's
medical history prior to 2016.
This was one of the reasons that the [c]ourt had
previously given to plaintiff's counsel to have [an]
additional [thirty] days to make that connection and
obtain a Polk analysis from Epstein or one of the
plaintiff's other treating physicians, which this [c]ourt
finds has failed.
The knee injuries, plaintiff is solely relying on
Epstein's chiropractic report.
. . . [T]he chiropractor, in this case, attempts to give a
statement on the knee but it appears somewhat
conclusionary and beyond the scope of what the
opinion attempts to portray. It should be barred as a net
opinion, this chiropractic report.
Taking all facts, most favorable to the non-
moving party, this [c]ourt finds that [defendants] are
entitled to summary judgment. The matter arises out of
two automobile accidents, one in [20]16, one in [20]17.
Plaintiff was given an opportunity after . . . summary
judgment to submit additional medical reports in order
to connect causation as well as the opportunity to
perform a sufficient . . . Polk analysis. Plaintiff did not
avail [herself] of that opportunity. Instead submitting
a conclusionary expert report from a chiropractor . . .
that does not connect the injury suffered in the accident
1
Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993).
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with the back injuries complained [of] prior thereto.
The September 17, [20]18, expert report makes no
mention of how plaintiff's injuries affected any . . . of
the back issues that she was complaining [of] prior to
2016. Plaintiff failed to perform the required Polk
analysis and defendants should be entitled . . . to
summary judgment.
In reference to the knee, the September 17, 2018
report fails to link the knee injuries with the spine.
Fails to link it other than a net conclusionary opinion to
the accident. As Bedford [2] holds chiropractors are able
to treat injuries if the injury is causally related to that
of the spine. Giving the benefit of the doubt and saying
that because it is a joint that the chiropractor can treat
that and I'll [o]pine on that, his report fails to make the
critical link in anything other than a net opinion
regarding the knee injury. . . .
The reports would be inadmissible under
[N.J.R.E.] 703 as a net opinion and the motions for
summary judgment are both granted.
Plaintiff moved for reconsideration. She argued Dr. Hassan could testify
to her lack of right knee symptoms prior to the second accident. The judge
denied the motion and reiterated that pursuant to Bedford, Epstein was not
qualified to opine or treat a knee injury unless it was causally related to the
spine, and plaintiff failed to furnish any expert report or testimony linking her
knee injury to her spine. The judge also found plaintiff failed to provide
2
Bedford v. Riello, 195 N.J. 210 (2008).
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treatment records from Dr. Hassan dated after the second accident. Therefore,
plaintiff had insufficient evidence to establish causation for her knee injuries.
I.
Appellate review of summary judgment is "de novo, applying the same
standard as the trial court. The court considers whether the competent evidential
materials presented, 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." Branch v. Cream-O-Land Dairy, 459
N.J. Super. 529, 540-41 (App. Div. 2019) (internal citations and quotation
omitted). "Reconsideration should be granted only where 'either 1) the [c]ourt
has expressed its decision based upon a palpably incorrect or irrational basis, or
2) it is obvious that the [c]ourt either did not consider, or failed to appreciate the
significance of probative, competent evidence[.]'" Branch, 459 N.J. Super. at
541 (App. Div. 2019) (alterations in original) (quoting Cummings v. Bahr, 295
N.J. Super. 374, 384 (App. Div. 1996)). We review the denial of a motion for
reconsideration for an abuse of discretion. Cummings, 295 N.J. Super. at 389.
Plaintiff argues the motion judge erred when he concluded she was
required to proffer a Polk analysis because the temporal proximity of her
accidents placed the burden on defendants to apportion the cause of the injuries
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sustained from each accident. She asserts the judge also erred in requiring her
to furnish a comparative analysis for the first accident and her prior conditions
because she did not plead an aggravation of a pre-existing injury. She contends
summary judgment was improper because a reasonable fact-finder could
conclude defendants' negligence caused the plaintiff permanent injuries.
Plaintiff argues she met the burden of proof on causation because the first
accident injured her, and the second exacerbated her injuries and caused an
entirely new injury to her right knee.
A.
A personal-injury plaintiff bears the burden of proving defendant's
negligence proximately caused the alleged injuries and damages. Paxton v.
Misiuk, 34 N.J. 453, 463 (1961). Apportionment based on causation is favored.
See, e.g., Poliseno v. Gen. Motors Corp., 328 N.J. Super. 41, 55 (App. Div.
2000); Reynolds v. Gonzalez, 172 N.J. 266, 282 (2002). We have stated:
It is generally plaintiff's burden to prove not only
that defendant was negligent, but also that defendant's
negligence was a proximate cause of the injuries and
damages suffered. . . . [P]laintiff, generally, must
apportion or relate damages to defendant's wrongful
acts. If proofs establish that plaintiff's injuries, for
example, pre-existed and were unconnected with
defendant's negligence, then defendant is not
responsible for the pre-existing injuries. A defendant
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should be responsible only for the value of the interest
he [or she] destroyed.
[O'Brien (Newark) Cogeneration, Inc. v. Automatic
Sprinkler Corp. of Am., 361 N.J. Super. 264, 274 (App.
Div. 2003) (second alteration in original) (citations and
quotations omitted).]
"When a plaintiff alleges aggravation of pre-existing injuries [or
conditions] as the animating theory for the claim, then plaintiff must produce
comparative evidence to move forward with the causation element of that tort
action." Davidson v. Slater, 189 N.J. 166, 170 (2007). "This must encompass
an evaluation of the medical records of the patient prior to the trauma with the
objective medical evidence existent post trauma. Without a comparative
analysis, the conclusion that the pre-accident condition has been aggravated
must be deemed insufficient to overcome the threshold of N.J.S.A. 39:6A-8a."
Polk, 268 N.J. Super. at 575. However, "[w]hen a plaintiff does not plead
aggravation of pre-existing injuries, a comparative analysis is not required."
Davidson, 189 N.J. at 170. "[P]laintiff can carry her burden of moving forward
in her non-aggravation case by demonstrating the existence of a permanent
injury resulting from the automobile accident without having to exclude all prior
injuries to the same body part." Ibid.A-2338-18T2
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Plaintiff's first accident was not subject to the verbal threshold, whereas
the second accident was a threshold case. Regardless, a comparative analysis
was necessary because plaintiff had experienced neck and back problems prior
to the first accident, which she alleged injured those areas and were also injured
in the second accident. Indeed, "to pass the verbal threshold for permanent
injury, plaintiff must establish, within a reasonable degree of medical
probability and through a physician's certification," "qualifying injury,"
"permanency," "causation," and "objective clinical evidence." Jacques v.
Kinsey, 347 N.J. Super. 112, 117 (Law Div. 2001).
The cases plaintiff relies upon for the proposition that the burden of proof
shifted to defendants to provide a comparative analysis on causation, are
inapposite. Indeed, the cases cited involved a successive-impact involving
multiple parties in one crash, a crash where a defendant caused the injuries , but
plaintiff's own negligence allegedly exacerbated the injuries, and a c ase where
a plaintiff alleged the injuries were a result of both the collision and a product
defect in the car. See Campione v. Soden, 150 N.J. 163, 167-68 (1997);
Schwarze v. Mulrooney, 291 N.J. Super. 530, 533, 539-40 (App. Div. 1996);
Thornton v. Gen. Motors Corp., 280 N.J. Super. 295, 296-97 (Law. Div. 1994).
The motion judge did not err in determining plaintiff had the burden of proof on
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causation. A comparative analysis of plaintiff's neck and back injuries from
each accident was necessary to apportion each defendant's responsibility for her
damages.
B.
We reject plaintiff's argument that Epstein's expert report was sufficient
evidence of her injuries and survive summary judgment. Epstein's report was a
net opinion that would cause the jury to speculate on the alleged permanency of
plaintiff's injuries and causation. As a general proposition, "[t]he net opinion
rule . . . mandates that experts 'be able to identify the factual bases for their
conclusions, explain their methodology, and demonstrate that both the factual
bases and methodology are reliable.'" Townsend v. Pierre, 221 N.J. 38, 55
(2015) (emphasis added) (quoting Landrigan v. Celotex Corp., 127 N.J. 404,
417 (1992)).
Chiropractors may "diagnose, adjust and treat the articulations of the
spinal column and other joints, articulations and soft tissue and . . . order and
administer physical modalities and therapeutic rehabilitative and strengthening
exercises." N.J.A.C. 13:44E-1.1A. In Bedford, the Supreme Court stated
"whether the adjustment of a structure beyond the spine properly falls within the
scope of chiropractic practice is dependent on whether the adjustment bears a
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nexus to a condition of the spine." 195 N.J. at 223-26. "[I]nterpretation of an
MRI may be made only by a physician qualified to read such films." Brun v.
Cardoso, 390 N.J. Super. 409, 421-22 (App. Div. 2006). Where, as here, a
chiropractor is not relying upon an MRI report, rather the MRI itself—he must
be qualified to read the MRI. Ibid.Epstein's report was speculative because it did not contain reliable
information. He did not consider plaintiff's prior medical records indicating she
had long-standing back and neck issues. Plaintiff had numerous hospital visits
from 2008 until 2015, relating to neck and back complaints. In late 2015,
plaintiff's primary care physician noted her persistent back pain complaints; due
to "recurrent attacks of low back pain," somedays plaintiff "[could not] even get
up from bed." Epstein's report referenced none of this history. His treatment
records after the second accident omitted any reference to the second accident
during nearly three months of treatment.
Although plaintiff argued her knee injuries were uniquely tied to distinct
accidents and unrelated to her pre-accident medical history, she failed to adduce
the necessary proofs to survive summary judgment. Indeed, there is no evidence
Epstein was qualified to read the MRIs of plaintiff's knees, yet his report cited
the MRIs and, without discussion, posited the accidents were the cause of her
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injuries. Furthermore, he did not link plaintiff's knee injuries with his
chiropractic treatment of her spine. Even though, on reconsideration plaintiff
maintained she could call Dr. Hassan to testify about the lack of right knee
symptoms prior to the second accident, she never furnished Dr. Hassan's
treatment records dated after the second accident.
Plaintiff could prove neither proximate causation nor apportion damages.
For these reasons, summary judgment in favor of defendants was appropriate ,
and the denial of reconsideration was not an abuse of discretion.
Affirmed.
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