BEN TORRES VS. TIMOTHY DOHERTY (L-0383-18, SOMERSET 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NOT FOR PUBLICATION WITHOUT THE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-0554-19T1

BEN TORRES and
CHRISTINA TORRES,

Plaintiffs-Appellants,

v.

TIMOTHY DOHERTY and
TRACY FOWLER,

Defendants-Respondents.
__________________________

Submitted December 7, 2020 – Decided February 1, 2021

Before Judges Rothstadt and Mayer.

On appeal from the Superior Court of New Jersey, Law
Division, Somerset County, Docket No. L-0383-18.

Sacco & Fillas, LLP, attorneys for appellants (James R.
Baez, on the briefs).

Difrancesco Bateman, attorneys for respondent
Timothy Doherty (Richard J. Guss, on the brief).

PER CURIAM
 Plaintiffs Ben and Christina Torres appeal from a September 13, 2019

order granting defendant Timothy Doherty's motion for summary judgment,

dismissing their complaint and denying their motion to reopen and extend

discovery, and from a November 18, 2019 order denying plaintiffs' motion to

vacate. Plaintiffs filed their complaint seeking damages for injuries sustained

in an automobile accident with defendant. Judge Thomas C. Miller granted

summary judgment and dismissed plaintiffs' complaint because they did not

provide expert opinion evidence establishing that their injuries vaulted the

"Limitation on Lawsuits" verbal threshold under the Automobile Insurance Cost

Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35.

On appeal, plaintiffs argue that other medical evidence satisfied the

threshold, and, in any event, the judge should have granted their motion to

reopen and extend discovery because they established "exceptional

circumstances." Finally, they argue that Judge Miller erred by denying their

motion to vacate because a report from Christina's 1 treating doctor, obtained on

September 23, 2019, and their medical records regarding treatment in early

September 2019 constitute "newly discovered evidence" that would have altered

1
We refer to the individual plaintiffs by their first names for clarity and to avoid
any confusion caused by their common surname.
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the outcome of the September 13, 2019 order. We affirm both orders

substantially for the reasons stated by Judge Miller in his comprehensive written

decisions issued in support of the challenged orders.

We derive the following facts from the evidence submitted by the parties

in support of, and in opposition to, the summary judgment motion, viewed in the

light most favorable to plaintiffs, the parties who opposed entry of summary

judgment. Edan Ben Elazar v. Macrietta Cleaners, Inc., 230 N.J. 123, 135

(2017).

The accident occurred in November 2017 when defendant struck

plaintiffs' vehicle in the rear. At the time, Ben was driving and Christina,

plaintiffs' children, and their dog were passengers.2 The impact of the collision

caused plaintiffs' car to strike a vehicle in front of them that was being driven

by defendant Tracy Fowler.3

Plaintiffs allegedly sustained injuries in the accident for which they

received treatment. After the accident, Ben did not immediately feel pain, but

2
At the time, plaintiffs were New York residents, and their vehicle was
registered in that state. The complaint erroneously identified plaintiffs'
residence as Burlington County, New Jersey.
3
Defendant Tracy Fowler is not a party to this appeal. At some point, she was
dismissed from the litigation by stipulation of the parties.
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did start feeling pain in his lower back "once the adrenaline kind of calmed [him]

down." He spoke with a police officer at the scene and explained what

happened, and when he was evaluated after an ambulance arrived, he told the

response team that his lower back was hurting, but he did not want to go to a

hospital. When he left the accident scene, the pain in his lower back was "about

six" on a scale of one to ten. Ben never had lower back pain of that nature before

the accident.

Ben first sought chiropractic treatment two days after the accident for pain

in his lower back and neck, headaches, and tingling around his neck and shoulder

on the right side. A treatment plan was developed that included acupuncture,

chiropractic adjustments, and physical therapy. Ben initially went for treatment

three times per week but stopped in "January or February" 2018 because he did

not feel he was improving. He soon after started treatment with another medical

provider at Peak Performance and continued physical therapy there for "close to

a year."

Ben also underwent a nerve test and an MRI on his neck and back. He

understood from a conversation with one of his doctors about the MRI results

that he had "discs that were bulging" on his neck and lower back. The MRI

records indicated there were herniations and his treatment records stated that he

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had sprains and strains throughout his spine. Treating doctor's reports stated

Ben experienced restrictions to his range of motion in his neck and back.

Once there was "not much more they could do" through physical therapy,

Ben saw a pain management doctor and received three injections under the care

of that doctor. He received one injection for his neck and one for his back in

2018. He later had a second injection for his back. These injections did not

completely relieve the pain, but Ben felt they helped him improve and relieved

some of the pain. According to Ben his pain went from an "eight or nine" to

about "a four and a half." He did not receive any other treatment. Ben's last day

of treatment before resuming in September 2019 was March 22, 2019.

After the accident, Ben typically had lower back pain every day that

impacted everything he did. Depending upon his level of activity, he would get

numbness and tingling in his right arm, and if his pain got too strong , he would

have headaches from the pain. Also, after the accident, he was unable to finish

projects around the house and was unable to play sports with his children as

much as he had in the past. Ben took over-the-counter analgesics and topical

pain relievers, and used a heating pad for the pain as needed. He was still able

to work, drive, and take care of himself.

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 When the accident occurred, Christina felt nauseous, and told a

responding medic her head was hurting badly and that she felt dizzy, but she did

not want to go to the hospital. Once she returned home, Christina had a bad

headache and her neck and her upper back began to hurt.

Before the accident, Christina was healthy, and she had no limitations.

Christina, who worked as an air traffic controller, had to miss work for a few

doctor's appointments, but did not have any problems performing her job

because of the injuries she sustained in the accident. She did have difficulty

doing physical exercises, bathing her child, doing laundry and other personal

and household tasks. In order to relieve her pain, Christina took anti-

inflammatory medication.

Christina began treatment two days after the accident at the same place

that treated Ben. Although she was unsure if she had ever been treated by an

orthopedic doctor prior to the accident, she had never been treated by a

chiropractor or neurologist. After the accident, she was treated from "end of

November, beginning of December, to February-ish." During that time, she

received electro heat and physical therapy, as well as two treatments with the

chiropractor.

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 In February 2018, Christina left that treatment provider along with Ben,

and went to Peak Performance as well, where she received treatment until June

2018. When Peak Performance told her they could not do more for her, she was

treated by a pain management provider. She also had three injections in her

neck between October and December that helped her for the first seven days

after each one, but then they wore off and the pain was worse than before.

Christina's last date of treatment prior to September 2019 was October 22, 2018.

Christina also underwent a cervical MRI that she understood revealed one

of the discs in her neck was herniated and another one was bulging. The record

of the results of the MRI confirmed her understanding.

Plaintiffs filed their complaint in March 2018. Defendant filed an answer,

and twenty separate defenses, including that plaintiffs' claims were barred

because they failed to "pierce the verbal threshold" under N.J.S.A. 39:6A-8.

Thereafter the parties pursued discovery. The original discovery end date,

February 18, 2019 was first extended by consent to April 19, 2019 and then by

order to June 3, 2019.

The discovery served included plaintiffs' answers to defendant's

interrogatories. The only expert witnesses identified in their answers were their

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treating medical providers, none of whom provided a narrative report as to

plaintiffs' injuries being permanent or arising from the accident.

After the discovery end date, the parties filed motions for summary

judgment. Plaintiff sought partial summary judgment as to defendant's liability

and defendant sought judgment "on the issue of the verbal threshold."

Defendant did not oppose plaintiffs' motion. Plaintiffs filed opposition to

defendant's motion for summary judgment along with a cross-motion to extend

discovery. As part of their supporting submissions, plaintiffs included copies of

their medical treatment records.

On August 16, 2019, Judge Miller granted plaintiffs' unopposed partial

summary judgment motion as to defendant's liability. Thereafter, the parties

participated in an unsuccessful arbitration that resulted in the court assigning a

trial date of October 28, 2019 as well as defendant's motion and plaintiffs' cross-

motion proceeding to oral argument.

According to defendant's motion, plaintiffs were subject to the verbal

threshold because they resided outside of New Jersey and their insurance carrier

did business in New Jersey. Moreover, plaintiffs could not vault the threshold

because they had not produced "medical evidence in the form of a narrative

report specifically addressing the issues of the threshold," which required

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"medical expert reports indicating a diagnosis of injuries sustained in the motor

vehicle accident and addressing the issues of causation and permanency."

Relying on their medical treatment records, plaintiffs argued that "it [was] clear

that there [were] genuine issues of fact as to whether plaintiffs suffered

permanent injuries as a result of the underlying accident."

As to their cross-motion to extend discovery, plaintiffs submitted a

certification from their attorney that stated plaintiffs underwent "final narrative

evaluations" with their physicians in August 2019. Counsel also certified that

after the discovery end date was set for June 3, 2019, "diligent steps were taken

to complete the plaintiffs' deposition, have narrative evaluations performed and

to exchange said narrative reports as soon as possible." Yet, "despite these

diligent efforts with several follow-ups, the exchange of the final narratives is

still outstanding."

Counsel also stated that he failed to request an extension of discovery due

to "unforeseeable issues regarding attorney staffing [in his office] during the

time period of March 2019 through June 2019," specifically, "between five and

six" attorneys left the firm. He certified that he appeared for court and "signed

off on multiple disclosures" in this matter but was not formally assigned it until

June 2019, after the last day for filing a motion to extend discovery had passed.

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 Defendant filed a reply to plaintiffs' opposition, in which defendant 's

attorney explained that plaintiffs' opposition acknowledged that they failed to

serve the necessary narrative expert reports, and therefore, did not "establish

that they had sustained a permanent injury which would satisfy the verbal

threshold," and by "attaching all discovery" previously provided, did "not

address the issue." In his response, plaintiffs' counsel asserted that he took

diligent steps to complete discovery, but due to understaffing at the time, he was

unable to submit narrative reports regarding plaintiffs' injuries. He also added

that plaintiffs underwent "additional surgical procedures," namely, Christina

had a "cervical facet branch block injection" and Ben had a "cervical epidural

injection" on September 6 and September 9, 2019.

After considering the parties' submissions and oral arguments on

September 13, 2019, Judge Miller entered his order granting defendant summary

judgment. The judge set forth his reasons in a comprehensive, detailed written

decision issued the same day.

In his decision, the judge explained it was undisputed that plaintiffs'

claims were "subject to a Limitation on Lawsuit Threshold, pursuant to N.J.S.A.

39:6A-8(a)," which meant, under AICRA, plaintiffs were "prohibited from

pursuing a claim" unless they sustained a permanent injury as a result of th e

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accident. Under AICRA, a "permanent injury is defined as an injury in which a

body part or organ, or both, that has not healed to function normally and will

not heal to function normally with further medical treatment." The judge found

it was "uncontradicted that the [p]laintiffs have not supplied any narrative

medical report indicating a diagnosis of injuries in the motor vehicle accident

that addresses issues of causation and permanency." Nor did plaintiffs reference

any specific portions of the medical records and instead, they "simply provided

the [c]ourt with the records in what can be described as [the] '[k]itchen [s]ink

[a]pproach' so that presumably the [c]ourt will review the relevant portions of

the discovery in this matter in order to glean whether [p]laintiffs have a cause."

The judge then methodically reviewed in detail plaintiffs' "mass of

medical records," and their deposition transcripts to determine whether they met

the verbal threshold by demonstrating their injuries were permanent and caused

by the car accident. He concluded that none of the records included any mention

of permanency or causation of the injury, and also observed that plaintiffs

identified treating physicians as experts but did not provide any narrative reports

to address the "requisite elements of proof" in order to make out a prima facie

case. Thus, "[b]ased on the fact that the plaintiffs as a matter of law must proffer

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medical expert opinions based upon objective medical proof," and failed to do

so, they did not satisfy the verbal threshold as a matter of law.

The judge also addressed plaintiffs' reliance on their intention to serve an

expert report to detail the treatment they had on September 6 and September 9,

2019 and observed that although plaintiffs may have received those treatments,

there was no medical opinion evidence indicating the treatments were medically

necessary or related to permanent injuries caused by the accident.

As to their cross-motion to extend discovery, Judge Miller found that

plaintiffs "fail[ed] to set forth the requisite exceptional circumstances" that

apply whereas here, an arbitration date passed and the matter was scheduled for

trial. He found that plaintiffs' counsel's certification "reveal[ed] numerous

excuses and no explanations to justify exceptional circumstances," and failed to

even include the dates when several attorneys left the firm causing the alleged

delay in obtaining expert reports. Moreover, in any event, the certifying attorney

appeared at plaintiffs' depositions in May 2019, as well as the arbitration hearing

in July 2019, and according to the judge, "[i]t can be reasonably inferred that

the file, at least at the time of the depositions, was reviewed to determine what,

if any, additional discovery was needed and move forward with the same." The

judge noted that plaintiffs' counsel could have moved to extend discovery at that

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time in order to obtain the required reports. The judge entered his order that

day.

Plaintiffs then filed a Rule 4:50-1 motion to vacate the September 13,

2019 orders. In support of the motion, they submitted a report from Dr. Robert

Iadevaio, Christina's treating physician that stated Christina had a left-sided

cervical facet injection at various levels on September 9, 2019, and that they

were waiting for "her follow-up from this injection." The report also stated her

"pain and treatment" for pain "appear clearly causally related to the accident as

described."

At the November 15, 2019, oral argument on plaintiffs' motion, plaintiffs'

counsel advised that since the entry of the earlier order, he received additional

medical records and the report, "which show[ed] that Christina . . . suffered an

injury that is causally related to the accident and would meet [the] verbal

threshold" and that Christina "also underwent additional injection and

treatment . . . right around the time that the motion was returnable and that she

continued treatment with [her doctor] afterwards." Defendant's attorney

contended that there was no new evidence to warrant vacating the September

order as Christina had been treating with the same doctor since 2018 and the

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opinion he was now offering could have been determined prior to the discovery

end date. He also noted that there still was no report about Ben's injuries.

Judge Miller denied plaintiffs' motion on November 18, 2019 and issued

another thorough written decision stating his reasons. In rejecting plaintiffs'

claim that the summary judgment order should be vacated because of new

evidence, the judge found that there was no newly discovered evidence to

change his previous ruling. The judge cited to the New Jersey Supreme Court's

opinions in DEG, LLC v. Twp. of Fairfield, 198 N.J. 242, 264 (2009) and Quick

Chek Food Stores v. Springfield Twp., 83 N.J. 438 (1980) that set forth the

criteria for new evidence that warrants the vacating of an earlier order and

concluded that the information supplied by plaintiffs did not meet those

requirements.

Judge Miller found there was no new evidence regarding Ben, and as to

Christina, the judge noted that it was "undisputed" that despite the "voluminous"

pages of medical records, there was nothing in the record to prove her injuries

were permanent or caused by the accident. He stated that although the new

report was obtained on September 23, 2019, and "indicated, for the first time,

that [Christina's] injuries were permanent injuries and that her injuries were

caused by the accident," "there [was] no indication why the medical opinions . . .

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obtained were not obtained earlier." He also noted that previous records from

Christina's doctor did not address whether she suffered a permanent injury , and

the new report "indicated that although [Christina] had been a patient of his for

over a year . . . no indication was given as to whether he could have issued his

opinions earlier in time, or even whether he had been asked to do so."

Judge Miller also addressed plaintiffs' cross-motion to extend. He

reiterated that there was no basis to extend discovery because plaintiffs' counsel

had to establish exceptional circumstances and "understaffing and overworked

attorneys is not [an] exceptional circumstance." This appeal followed.

We review a trial court's order granting summary judgment de novo,

applying the same standard as the trial court. RSI Bank v. Providence Mut. Fire

Ins., 234 N.J. 459, 472 (2018) (citing Bhagat v. Bhagat, 217 N.J. 22, 38 (2014)).

Under that standard, summary judgment will be granted when "'the competent

evidential materials submitted by the parties,' [viewed] in the light most

favorable to" the non-moving party, show that there are no "genuine issues of

material fact" and that "the moving party is entitled to summary judgment as a

matter of law." Grande v. Saint Clare's Health Sys., 230 N.J. 1, 24 (2017)

(quoting Bhagat, 217 N.J. at 38); accord R.4:46-2(c).

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 "To defeat a motion for summary judgment, the opponent must 'come

forward with evidence that creates a genuine issue of material fact.'" Cortez v.

Gindhart, 435 N.J. Super. 589, 605 (App. Div. 2014) (quoting Horizon Blue

Cross Blue Shield of N.J. v. State, 425 N.J. Super. 1, 32 (App. Div. 2012)). "An

issue of material fact is 'genuine only if, considering the burden of persuasion at

trial, the evidence submitted by the parties on the motion, together with all

legitimate inferences therefrom favoring the non-moving party, would require

submission of the issue to the trier of fact.'" Grande, 230 N.J. at 24 (quoting

Bhagat, 217 N.J. at 38). "If there are no genuine issues of material fact, we must

then decide whether the trial court correctly interpreted the law." Dickson v.

Cmty. Bus Lines, Inc., 458 N.J. Super. 522, 530 (App. Div. 2019). In this

review, the appellate court owes "no special deference" to the motion judge's

legal analysis. RSI Bank, 234 N.J. at 472.

We conclude from our de novo review that, for the reasons stated in Judge

Miller's thorough written decision, he correctly determined that plaintiffs did

not satisfy their burden on summary judgment to come forward with evidence

to vault the verbal threshold. Specifically, plaintiffs failed to provide "objective

clinical evidence that [their] injuries were permanent and causally related to the

automobile accident," as required by AICRA. Escobar-Barrera v. Kissin, 464

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N.J. Super. 224, 234 (App. Div. 2020). Simply dropping plaintiffs' medical

records in the judge's and defendant's lap did not meet the requirement to provide

expert medical evidence. 4 See N.J.S.A. 39:6A-8 (addressing a plaintiff's burden

under AICRA and defining a "permanent injury"); see also Davidson v. Slater,

189 N.J. 166, 181 (2007) ("To vault AICRA's verbal threshold an accident

victim need only prove an injury as defined in the statute.").

Moreover, we conclude the judge did not abuse his discretion by not

extending discovery to allow for the late filing of expert reports. Quail v. Shop-

Rite Supermarkets, Inc., 455 N.J. Super. 118, 133 (App. Div. 2018). Plaintiffs

did not establish the "exceptional circumstances" required once the arbitration

had been completed and a trial date scheduled. See R. 4-24-1(c); see also

Szalontai v. Yazbo's Sports Café, 183 N.J. 386, 396-97 (2005) (strictly

construing Rule 4:24-1(c) to require an exceptional circumstance showing

4
Relying on Delvecchio v. Twp. of Bridgewater, 224 N.J. 559 (2016), and
Stigliano v. Connaught Labs, Inc., 140 N.J. 305 (1995), plaintiffs correctly argue
that treating physicians may "offer medical testimony regarding the diagnosis
and treatment of their patients," and "[t]hat testimony can include opinions on
causation of the injury to a patient." However, under the court rules, a party
seeking to present treating physician testimony at trial must disclose the
substance of the witness's anticipated testimony, and the basis for that testimony,
if requested to do so in discovery. Delvecchio, 224 N.J. at 579. As Judge Miller
determined, that was not done here.

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particularly after the arbitration had already occurred); Rivers v. LSC P'ship,

378 N.J. Super. 68, 79 (App. Div. 2005) (stating the four conditions that warrant

a finding of exceptional circumstances) (citing Vitti v. Brown, 359 N.J. Super.

40, 51 (Law Div. 2003)). Under the circumstances presented here, the staffing

issues that allegedly prevented timely service of expert reports did not estab lish

the "exceptional circumstances" that warranted an extension of discovery. 5 See

Rivers, 378 N.J. Super. at 79.

Finally, we find no merit to plaintiffs' contention that Judge Miller should

have vacated his summary judgment order under Rule 4:50-1 based upon "newly

discovered evidence" in the form of Dr. Iadevaio's report and plaintiffs'

September 2019 treatment records. Suffice it to say there was no evidence that

5
In reliance on O'Donnell v. Ahmed, 363 N.J. Super. 44 (Law Div. 2003),
plaintiffs allege they showed exceptional circumstances. In O' Donnell, the Law
Division set forth a non-exhaustive list of examples of what could constitute
exceptional circumstances and included that ''[t]he disclosure of a disruption of
one's office by partners or associates having health problems or leaving,
especially if they had responsibilities for the matter before the court, would
probably be persuasive.'' Id. at 51. It also provided that ''facts must be shown
in a detailed certification to the court, making clear that the reasons were beyond
the reasonable control of the party seeking relief.'' Id. at 52. Judge Miller did
not abuse his discretion by finding those circumstances did not exist here. See
Rivers, 378 N.J. Super. at 80-81 (addressing the plaintiff's reliance on O'Donnell
and concluding there was no abuse of discretion where counsel provided ''no
valid explanation'' for his lack of due diligence prior to a family member's death
at the end of the discovery period).

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the doctor's opinion that Christina's injuries were caused by the accident and

permanent in nature was "unobtainable by the exercise of due diligence for use

at the trial," before the close of discovery, DEG, LLC, 198 N.J. at 261, where

the doctor treated Christina from early 2018 through September 2019 and never

issued a report. Also, the September 2019 treatment records would not have

changed the fact that plaintiffs never met their burden to produce the necessary

medical opinion evidence before the close of discovery.

Affirmed.

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