Plaintiff Hector Reyes claimed to have suffered personal injuries as a result of an automobile accident with defendant John Stanley. Plaintiff’s automobile insurance policy contained the limitation on lawsuit option (i.e., “verbal threshold”) which limited his ability to sue for noneconomic damages (i.e., his pain and suffering) under the Automobile Insurance Cost Reduction Act, specifically N.J.S.A. 39:6A-8(a). To satisfy this provision, he attempted to prove that he had a permanent injury, relying on the opinions of his treating orthopedist and his expert. In Reyes v. Stanley, 2019 N.J. Super. Unpub. LEXIS 141 (App. Div. Jan. 18, 2019), the Appellate Division was asked to overturn the trial court’s decision, barring the testimony of these doctors on the basis that their opinions constituted inadmissible net opinions.
If a person selects the verbal threshold option in their insurance policy, to be able to sue for their noneconomic loss incurred due to an auto accident, the person must prove that his or her injuries meet one of 6 types of injuries: death, dismemberment, loss of fetus, significant disfigurement or scarring, displaced fracture, or permanent injury. In Reyes, plaintiff contended that he met the last category – permanent injury.
He relied upon the opinions of two physicians – his treating physician, Dr. Richard Islinger, through testimony in a de bene esse deposition (videotaped deposition for use at trial in lieu of live testimony) and the report of his expert, Dr. John Gaffney. The defendant filed a motion to bar the testimony of both physicians on the basis that their opinions constituted inadmissible net opinions. The defendant argued that their opinions were not based upon objective diagnostic tests, as required to establish permanency under N.J.S.A. 39:6A-8(a).
The defendant successfully moved to bar the testimony of both physicians as net opinions. Thereafter, he filed a motion for summary judgment to dismiss the case, arguing that the plaintiff was unable to establish evidence of permanency. The motion was granted and the complaint was dismissed.
On appeal, the plaintiff argued that the trial court judge should not have barred the testimony of the two physicians. As for Dr. Islinger, plaintiff argued that, as his treating physician, he should have been able to testify as to plaintiff’s permanency. However, the Appellate Division pointed out that his testimony was not barred because plaintiff did not name him as his expert. Rather, his testimony was barred because “his opinion concerning permanency was not based on objective clinical evidence as required under N.J.S.A. 39:6A-8(a).”
The Court noted that “[p]roof of a permanent injury cannot be based solely on an injured party’s subjective complaints” and that permanency must be certified by a licensed physician whose “opinion must be based on objective clinical evidence derived from accepted diagnostic tests and cannot be dependent entirely upon subjective patient response.” Under prior case law, the Supreme Court has held that “subjective complaints of pain may suffice if verified by physical examination and observation… [of] objectively demonstrable conditions such as swelling, discoloration, and spasm,…a physician’s observations of a patient’s subjective responses [cannot be transmuted] into objective clinical evidence.” Further, the Supreme Court stated that “[t]hus, subjective tests, such as those that evaluate range of motion, shall not suffice.”
When the Appellate Division measured Dr. Islinger’s testimony against these standards, it found that the trial court properly barred his testimony concerning permanency. The Court noted that Dr. Islinger’s opinion concerning permanency was solely based upon plaintiff’s subjective complaints. It was not based upon any objective clinical evidence.
As for Dr. Gaffney’s opinions, he had issued three separate opinions quantifying the plaintiff’s permanency in terms of percentage disability suffered as to his left shoulder, left hip, and cervical spine. He based his opinion on his examination of plaintiff and records received, including a report of plaintiff’s CT scan. However, the Court noted that Dr. Gaffney could not rely on the CT scan report because he did not actually review the CT film.
Further, the Appellate Division found that Dr. Gaffney’s report was lacking because he failed to describe or explain “the why or wherefore for his opinions” to support his conclusion that the plaintiff’s alleged injuries were permanent. The Court stated that “[h]is report was bereft of any explanation concerning the methodology he used to determine that the information he gleaned from his physical examination and review of the records supports his conclusion that plaintiff’s alleged injuries constitute permanent/partial disabilit[ies].” Hence, the Appellate Division also agreed with the trial court that Dr. Gaffney’s testimony should be barred as well.
As a result, plaintiff was left with no competent evidence proving he suffered a permanent injury under N.J.S.A. 39:6A-8(a). Thus, the Appellate Division affirmed the trial court’s order, dismissing the lawsuit.
