Plaintiff’s Complaint Was Almost Dismissed with Prejudice Because the Attorney Did Not Arrange for Plaintiff to Receive Adequate Treatment and Reporting
Docket No.: A-3510-20
Decided July 8, 2022
Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.
In a recent unpublished decision, the Appellate Division overturned a dismissal of a personal injury complaint because the plaintiff’s expert report was sufficient to overcome summary judgment, albeit without clarity.
In Krishnankutty v. Kolb, In a complaint filed on May 2, 2019, plaintiff alleged he had sustained injuries on March 9, 2017, when defendant’s vehicle collided with his vehicle. Plaintiff had selected “Limitation on Lawsuit” as his “tort option” in the policy that insured him at the time of the accident.
On January 28, 2020, plaintiff served with his answers to interrogatories a “Comprehensive Health Report,” dated April 4, 2019, “concerning [plaintiff’s] injuries.” Chiropractor Dr. Marie de Stefan, who prepared the report, had examined plaintiff on August 11, 2017. During the examination, Dr. de Stefan performed a foraminal compression test, a Soto-Hall test, a Goldthwait test, a Lesague straight leg raising test, a Braggard test, a Gaenslen test, a Faber-Patrick test, a Kemp sign test, and a Whartenberg neurological instrument test
Dr. de Stefan summarized the MRI and opined plaintiff “did receive an injury as a result of the accident,” specifically “trauma to the cervical and lumbar spine causing vertebrae to be misaligned, discs to herniate, tear and/or bulge, ligaments to be stretched and nerves to be irritated, giving rise to [plaintiff’s] symptoms.” She found “formation of scar tissue at the injury site has caused a permanent loss of elasticity, which is evident in the examination findings.” Dr. de Stefan concluded: “as a result of the above evidence, as well as other continuing objective, orthopedic, and neurological findings, it is my professional opinion that [plaintiff] has suffered a significant limitation of use of the affected areas of the spine as a result of this accident.”
Defendant filed summary judgment arguing plaintiff had elected the limitation-on lawsuit tort option in his insurance policy, plaintiff had to prove he had sustained a permanent injury as a result of the accident. Defendant asserted plaintiff had failed to “offer any experts who diagnose him with the requisite permanent injury mandated by N.J.S.A. 39:6A-8(a).” Defendant did not include in his motion a copy of plaintiff’s discovery responses or any pre-trial submissions identifying trial witnesses.
After the summary judgment motion was filed, Plaintiff served on defendant a report of Dr. Ross Nochimson, an osteopath attributing plaintiff’s injuries permanent as they relate to the motor vehicle accident.
The judge granted defendant’s motion for summary judgment, finding the chiropractic report grossly insufficient and the late report was not considered. Plaintiff’s complaint was dismissed with prejudice.
Plaintiff appealed, and the Appellate Division found that, at this stage, giving every reasonable inference to the plaintiff, the chiropractic report can withstand summary judgment because the doctor opines permanency as a result of the crash and no evidence as submitted as to whether the doctor was deposed, or full answers to discovery interrogatories. Because there were several answers to questions unknown to the Appellate Division, they reversed, reinstating plaintiff’s complaint as sufficient to demonstrate permanency for summary judgment purposes.
This case is important to understand plaintiff’s complaint was almost dismissed with prejudice simply because the attorney did not arrange for plaintiff to receive adequate treatment and for an expert to prepare an appropriate report demonstrating plaintiff’s permanency. The attorney attempted to submit a better report late, but that was not considered. In personal injury cases, it is vital to hire an experienced attorney who can help put the plaintiff on a care path and hire an expert known to produce correct reports demonstrating permanent injury. Without the correct report, the result would be a dismissal of the complaint and no right to recovery.
If you or someone you know has been injured in a car accident, truck crash, or slip and fall, call the experienced personal injury attorneys at Hark & Hark today. For personal injury matters, no money is paid up front, and fees are only collected if a recovery is made. At Hark & Hark, we represent clients for any case in any county in New Jersey Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Newark, Jersey City, Paterson, Elizabeth, Edison, Woodbridge, Lakewood, Toms River, Hamilton, Trenton, Clifton, Camden, Brick, Cherry Hill, Passaic, Middletown, Union City, Old Bridge, Gloucester Township, East Orange, Bayonne, Franklin Township, North Bergen, Vineland, and Union.