Jesenia Nunez v. Amanda C. Podczerwinski and County of Passaic

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION This opinion shall not "constitute precedent or be binding upon any court."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-0298-25 JESENIA NUNEZ, Plaintiff-Appellant, v. AMANDA C. PODCZERWINSKI and COUNTY OF PASSAIC, Defendants-Respondents. _____________________________ Argued September 15, 2026 – Decided September 25, 2026 Before Judges Gilson, Gummer, and DeAngelis. On appeal from the Superior Court of New Jersey, Law Division, Passaic County, Docket No. L-0038-23. Walter M. Luers argued the cause for appellant (Cohn Lifland Pearlman Herrmann & Knopf LLP, attorneys; Walter M. Luers and Christina N. Stripp, on the briefs). John S. Wisniewski argued the cause for respondents (Wisniewski & Associates, LLC, attorneys; Karilyn M. Ward and Matthew Forys, on the brief). PER CURIAM In this automobile-accident case, plaintiff Jesenia Nunez appeals orders barring the report and testimony of her treating chiropractor and evidence concerning her claim for unpaid medical bills, granting summary judgment in favor of defendants based on the trial court's conclusion she had not established she was entitled to relief under the Tort Claims Act (TCA), N.J.S.A. 59:1-1 to 12-3, and denying plaintiff's reconsideration motion. Based on the applicable standards of review, we reverse the orders and remand for proceedings consistent with this opinion. I. In a January 5, 2023 complaint, plaintiff alleged she had been injured when a car driven by defendant Amanda C. Podczerwinski collided with the rear of her car. Defendant County of Passaic employed Podczerwinski as a sheriff's officer and owned the car she was driving at the time of the accident. In answers to interrogatories, plaintiff asserted she had suffered injuries to her cervical and lumbar spine. She also identified her health-care providers, including: Clifton Spine & Rehab, LLC, where she had received treatment from January 13, 2021, through June 8, 2022, under the care of chiropractor Charles Mascenik; and Parkway Ambulatory Surgery Center, where she had undergone an "[a]nterior cervical discectomy and fusion" on July 29, 2022, during which A-0298-25 2 surgeon Paul M. Brisson inserted screws and artificial disc implants between the C4-C5 and C5-C6 levels of her spine and a plate spanning C5-C7. In response to an interrogatory asking her to provide "the amount paid and owed" to each health-care provider, she responded for each provider: "Total Billed: $ To be supplied" and "Total Owed: $ To be supplied." Although an "INDEX TO ATTACHMENTS" to the interrogatory answers indicated "[m]edical [b]ills" were attached, plaintiff's then-counsel did not include copies of medical bills with the answers. Plaintiff provided defendants with an authorization to disclose health information pursuant to the Health Insurance Portability and Accountability Act , 42 U.S.C. §§ 1320d-1 to -9. Defendants subsequently issued subpoenas to and received documents from State Farm Mutual Automobile Insurance Company, which was plaintiff's no-fault insurance carrier, and Parkway Ambulatory Surgery Center. In a June 6, 2024 report, Dr. Joseph W. Dryer, defendants' orthopedic expert witness, stated he had reviewed numerous documents in preparation of the report, including: answers to interrogatories; Dr. Brisson's consultation notes and operative report, in which Dr. Brisson described the fusion of plaintiff's vertebrae and the placement of screws, artificial disc implants, and A-0298-25 3 plate in plaintiff's spine during the July 29, 2022 surgery; and chiropractic notes dated January 13, 2021, through March 16, 2022. Dr. Dryer opined plaintiff's injuries were degenerative and not causally related to the accident. Dr. Mascenik prepared a July 22, 2024 report in which he found a "causal relationship" between the January 6, 2021 accident and plaintiff's spinal injuries. He also opined plaintiff had a "significant permanent limitation of the use of the spine due to damage to the spinal musculature/ligaments" and that her injuries would "significantly limit the function as well as the use of [her] body and will also restrict [her] customary and social activities in a permanent fashion ." Dr. Mascenik concluded plaintiff "ha[d] suffered partial permanent loss of the use of the cervical and lumbar spine." The court initially set June 9, 2024, as the discovery end date. The parties subsequently agreed to extend the discovery period to August 8, 2024. On August 21, 2024, the court notified the parties it had scheduled arbitration to take place on October 18, 2024. Plaintiff's counsel provided defendants with a copy of Dr. Mascenik's report on August 22, 2024. He did not include with that production a certificate of due diligence, which is required under Rule 4:17-7 for late amendments to answers to interrogatories. On September 11, 2024, defendants moved to bar Dr. Mascenik's report A-0298-25 4 because the report was produced after the discovery end date. In a certification submitted in opposition to the motion, plaintiff's counsel conceded he had submitted the report to defendants about two weeks after the discovery end date and that the arbitration was scheduled to take place on October 18, 2024, but he asserted the report "w[as] not reasonably available or discoverable by the exercise of due diligence" and that defendants had not articulated any prejudice from the late production of the report. After hearing argument on October 16, 2024, the court placed a decision on the record and entered an order granting the motion and barring Dr. Mascenik's report and his testimony regarding "the subject matter, substance, and opinions contained in the report."1 The court found the two-week late production of the report was "a significant departure from the mandate of the [court] rules." During oral argument, the court questioned plaintiff's ability to meet the TCA's required showing of a "permanent loss of a bodily function" based solely on a chiropractor's report. See N.J.S.A. 59:9-2(d). Plaintiff's counsel asserted he had produced a post-surgery narrative report from Dr. Brisson on August 15, 1 The court also barred a report from psychologist Jordana Pepper. Plaintiff did not appeal that aspect of the October 16, 2024 order. A-0298-25 5 2024. Defense counsel denied receiving that report. Before oral argument ended, plaintiff's counsel emailed defense counsel a copy of Dr. Brisson's narrative report. Plaintiff's counsel did not submit a Rule 4:17-7 due-diligence certificate with that production. In that report, Dr. Brisson described his treatment of plaintiff and the July 29, 2022 surgery. He diagnosed plaintiff with having, among other things, "[t]raumatic cervical disc herniation with stenosis." He confirmed that after the surgery, she had had "a certain measure of reoccurrence regarding some symptoms," including "a moderate measure of numbness to her right hand." He concluded she "ha[d] evidence of myeloradiculopathy in association with severe cervical pain" and "present[ed] a poor prognosis taking into consideration the length of h[er] post traumatic recovery from date of accident to this examination date." He found she "still presents . . . with disabling active symptoms, complaints and physical signs attesting to a chronic unresolved post-traumatic condition." On October 17, 2024, defendants moved to bar Dr. Brisson's report. Plaintiff's attorney filed a certification in opposition to the motion, conceding plaintiff's late production of the report but asserting it did not prejudice defendants. A-0298-25 6 The arbitration took place on October 18, 2024. Plaintiff's counsel submitted plaintiff's arbitration statement that day. In that statement, he asserted plaintiff had $157,000 in outstanding medical bills and attached as an exhibit a Magnum Opus One, LLC (Magnum) invoice, itemizing the costs of the July 29, 2022 surgery performed at the Parkway Ambulatory Surgery Center. Plaintiff's counsel did not include a Rule 4:17-7 due-diligence certificate with that submission. Later that day, defendants moved to bar the invoice and plaintiff's claim for unpaid medical bills. In support of the motion, defense counsel certified plaintiff had not provided defendants with her claim for unpaid medical bills or the Magnum invoice until plaintiff's counsel included them in the arbitration statement. After hearing argument on December 4, 2024, the court placed a decision on the record and entered orders denying the motion regarding Dr. Brisson's report and granting the medical-bill motion. The court barred plaintiff from presenting evidence regarding her claim for unpaid medical bills, including the Magnum invoice. The court found plaintiff's "discovery violations . . . [to be] particularly egregious." The court believed "there should be flexibility" when "dealing with . . . discovery issues" but not in "a situation where the rules are A-0298-25 7 essentially ignored, as they were in this particular case." The court concluded plaintiff had not produced the medical invoice until the arbitration and found "[a]bsolutely no excuse" for that delay. The court denied the motion regarding Dr. Brisson's report, finding it was "no big surprise to the defense" given that defendants' expert witness had "evaluated" the surgery performed by Dr. Brisson based on his notes and had considered the issues of "causality and permanency." On December 6, 2024, defendants moved for summary judgment. In support of their motion, defendants submitted, among other things, a copy of Dr. Brisson's narrative report and the transcript of plaintiff's deposition. Plaintiff testified that after the surgery, she had to leave a multi-day catering job after one day because she "was in a lot of pain" and "just physically couldn't" do the job. According to plaintiff, her pain initially decreased after the surgery, but "eventually it started coming back." Plaintiff testified she was able to perform her daily activities but had some limitations. For example, she testified that she "would always be in constant pain" while "cleaning [her] bathroom" and she has to "lay[] down the whole day after that and the next day" after cleaning her house. According to plaintiff, she is unable to lift heavy objects, she does not "have a lot of strength in her hand" and needs help "[e]ven to open a jar," she A-0298-25 8 has difficulty sleeping, she no longer goes to the gym, sitting at her office job for long periods is uncomfortable, and intimacy with her partner has changed. Plaintiff included in her opposition to the motion a copy of a Personal Injury Protection (PIP) insurance policy ledger, containing information as of June 21, 2023.2 In a reply certification, defense counsel asserted plaintiff had not produced a copy of the PIP ledger until she included it in her opposition to defendants' summary-judgment motion. Defendants subsequently moved to bar the PIP ledger, with a return date scheduled after the return date of the summary-judgment motion. During argument on the summary-judgment motion, the court asked what evidence demonstrated plaintiff could meet the TCA's "monetary threshold." In response, plaintiff's counsel referenced the PIP ledger and the Magnum invoice. Defense counsel pointed out the court had barred the Magnum invoice and defendants' motion to bar the PIP ledger was pending. The court declined to consider the monetary-threshold issue, concluding "the case should not turn on that [issue]. The case should turn on the . . . pain threshold." 2 "PIP coverage is no-fault insurance in that it reimburses persons injured in automobile accidents without regard to fault for, among other things, medical expenses incurred and wage loss sustained as a result of such accidents." New Jersey Mfrs. Ins. Co. v. Hardy, 178 N.J. 327, 332 (2004) (citing N.J.S.A. 39:6A- 1.1). A-0298-25 9 On April 7, 2025, the court entered an order and placed a decision on the record granting defendants' summary-judgment motion and dismissing the complaint with prejudice. The court held plaintiff had suffered a "severe" and "objective permanent injury" but had not demonstrated she had experienced a substantial, permanent loss of a bodily function under the TCA. The court found post-surgery "residual impairment" was "minimal or inconsequential in the eyes of this [c]ourt." The court determined the "evaluations performed by Dr. Brisson" showed "some evidence of injury and perhaps some limitation, did not reveal any substantial loss of a bodily function." The court found it "telling that . . . plaintiff has had no medical treatment or intervention since her second evaluation by Dr. Brisson" and "no plans to seek any further medical treatment." Plaintiff, represented by new counsel, moved for reconsideration of the October 16, 2024 order barring Dr. Mascenik's report and testimony, the December 4, 2024 order barring plaintiff's claims for unpaid medical bills and the Magnum invoice, and the April 7, 2025 summary-judgment order. During argument, the court stated it was "going to concentrate essentially on the summary judgment motion, because obviously that . . . is the key right now. Because quite frankly if the court were to not deny this application, and the Appellate Division were to affirm the court's decision, then the other issues . . . A-0298-25 10 become moot." The court subsequently denied the motion in a September 16, 2025 order and oral decision. On appeal, plaintiff argues the court erred in granting defendants ' summary-judgment motion, contending genuine issues of material fact warrant submission of the case to a jury. Plaintiff also argues the court misapplied its discretion in denying her reconsideration motion and in granting defendants' motions to bar Dr. Mascenik's report and testimony and plaintiff's evidence regarding her claims for unpaid medical bills. Having reviewed the record and applicable law, we agree. II. We review a trial court's summary-judgment order de novo and apply the same standard the trial court used. Boyle v. Huff, 257 N.J. 468 , 477 (2024). "In ruling on a summary judgment motion, a court does not 'weigh the evidence and determine the truth of the matter'; it only 'determine[s] whether there is a genuine issue for trial.'" C.V. ex rel. C.V. v. Waterford Twp. Bd. of Educ., 255 N.J. 289 , 305-06 (2023) (alteration in original) (quoting Rios v. Meda Pharm., Inc., 247 N.J. 1 , 13 (2021)). Summary judgment is proper only if the record demonstrates "no genuine issue as to any material fact challenged and that the moving party is entitled to A-0298-25 11 a judgment or order as a matter of law." Friedman v. Martinez, 242 N.J. 449 , 471-72 (2020) (quoting R. 4:46-2(c)). "To decide whether a genuine issue of material fact exists, the trial court must 'draw[] all legitimate inferences from the facts in favor of the non-moving party.'" Id. at 472 (alteration in original) (quoting Globe Motor Co. v. Igdalev, 225 N.J. 469, 480 (2016)). A court should grant summary judgment "[o]nly 'when the evidence is so one-sided that one party must prevail as a matter of law . . . .'" Petro-Lubricant Testing Labs., Inc. v. Adelman, 233 N.J. 236, 257 (2018) (quoting Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995)) (internal quotation marks omitted). The trial court's legal analysis is "not entitled to any special deference." Rowe v. Bell & Gosset Co., 239 N.J. 531 , 552 (2019) (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995)). In enacting the TCA, the Legislature determined "that public entities could only be held liable for negligence 'within the limitations of [the TCA].'" Stewart v. N.J. Tpk. Auth., 249 N.J. 642 , 655-56 (2022) (alternation in original) (quoting N.J.S.A. 59:1-2). The TCA bars the award of damages "against a public entity or public employee for pain and suffering resulting from any injury" except "in cases of permanent loss of a bodily function, permanent disfigurement or A-0298-25 12 dismemberment where the medical treatment expenses are in excess of $3,600.00." N.J.S.A. 59:9-2(d). Interpreting that statutory language, the Supreme Court established a two-pronged test a plaintiff seeking to recover pain and suffering damages against a public entity must satisfy. Toto v. Ensuar, 196 N.J. 134, 145 (2008). In addition to presenting evidence of medical expenses that exceed $3,600 and meet N.J.S.A. 59:9-2(d)'s definition, a plaintiff must show: "(1) an objective permanent injury, and (2) a permanent loss of a bodily function that is substantial." Ibid. (quoting Knowles v. Mantua Twp. Soccer Ass'n, 176 N.J. 324, 329 (2003)). Applying that test, the court determined plaintiff had met the first prong, showing she suffered a "severe" and "objective permanent injury," but had not demonstrated under the second prong she experienced a substantial, permanent loss of a bodily function under the TCA. The court reasoned plaintiff's post-surgery "residual impairment" was "minimal or inconsequential in the eyes of this [c]ourt." Based on that determination, the court granted defendants' summary-judgment motion. On appeal, plaintiff argues she provided sufficient evidence to demonstrate a genuine issue of material fact existed as to whether she had experienced a substantial, permanent loss of a bodily function under the A-0298-25 13 second prong and the court erred in granting defendants' summary-judgment motion. We agree and, accordingly, reverse. We recognize "a mere limitation on a bodily function would [not] suffice" to qualify as a permanent and substantial loss of a bodily function. Brooks v. Odom, 150 N.J. 395, 406 (1997). However, viewing the evidence in a light most favorable to plaintiff as we must in this summary-judgment context, we conclude a reasonable fact-finder could determine plaintiff's post-surgery impairment was more than "minimal or inconsequential," and that plaintiff had experienced a substantial, permanent loss of a bodily function and not just a "mere limitation," ibid. We base that conclusion on plaintiff's testimony about the lasting impacts her permanent injuries have had on her life and Dr. Brisson's findings regarding plaintiff's "[t]raumatic cervical disc herniation[s]," the discectomy and multiple-level fusion surgery he performed, the post-surgical reoccurrence of symptoms including numbness to plaintiff's right hand, "evidence of myeloradiculopathy in association with severe cervical pain," and plaintiff's "poor prognosis" and "disabling active symptoms" as demonstrated by "physical signs attesting to a chronic unresolved post-traumatic condition." Defendants focus on plaintiff's return to work. But our Court "declined to adopt the ability to work as a litmus test for recovery of pain and suffering A-0298-25 14 damages under the TCA." Knowles, 176 N.J. at 333 . Defendants emphasize what plaintiff is able to do. However, "a plaintiff's eligibility to recover pain and suffering damages will not be defeated merely because [a plaintiff] can perform some routine functions almost as well as she could prior to her injury. " Id. at 334 (quoting Kahrar v. Borough of Wallington, 171 N.J. 3, 15 (2002)). Defendants rely on Brooks and Heenan v. Greene, 355 N.J. Super. 162 (App. Div. 2002), but the plaintiffs in those cases did not undergo body-altering surgeries or present evidence of post-surgical loss of bodily function. See Brooks, 150 N.J. at 398-400 ; Heenan, 355 N.J. Super. at 163-64 . In contrast, a reasonable fact-finder in this case could conclude plaintiff suffered a substantial, permanent loss of a bodily function, having undergone "significant surgical intervention, which changed the structure of the vertebral bodies and normal bodily function." Leopardi v. Township of Maple Shade, 363 N.J. Super. 313, 333-34 (App. Div. 2003), abrogated on other grounds by DelaCruz v. Borough of Hillsdale, 183 N.J. 149 (2005). The court based its decision in part on the fact that plaintiff had not had any medical treatment since her last evaluation by Dr. Brisson and had no plans to seek any further treatment. That fact, however, is not dispositive. In Gilhooley v. County of Union, the plaintiff returned to work and sought no A-0298-25 15 further treatment after undergoing surgical reconstruction of her knee that involved the installation of "fixation devices" that "were necessary to 're- establish the integrity' of [her] patella." 164 N.J. 536 -37 (2000). The Court held: We have absolutely no doubt that the Legislature intended that pain and suffering damages could be awarded to such persons even if their ability to use their bodily parts efficiently is restored through pins, wires, lenses or any other artificial mechanisms or devices. Defendants' essential claim is that, after her surgery, [the plaintiff] was as good as new. Not so. She now requires pins and wires inside her body in order for her knee to function. .... We are satisfied that the Legislature intended to include within the notion of aggravated cases those involving permanent injury resulting in a permanent loss of normal bodily function even if modern medicine can supply replacement parts to mimic the natural function. As is the case with dismemberment and disfigurement, when pins, wires, mechanisms and devices are required to make the plaintiff normal, the statutory standard is met. The fact that a physician has jury-rigged the knee to function with pins and wires in no way inhibits the characterization of that injury as the permanent loss of a bodily function. The same would be true of a plaintiff whose vision is restored with a lens, one whose hearing is restored with a hearing aid, and one whose heart is operating efficiently with a pacemaker or implanted valve. We conclude that those are all aggravated cases within the contemplation of the Legislature when it enacted the "permanent loss of bodily function" A-0298-25 16 language and that they fall squarely within the "substantial" requirement of Brooks. [Id. at 542-43.] Relying on Ponte v. Overeem, 171 N.J. 46 (2002), and Hammer v. Township of Livingston, 318 N.J. Super. 298 (App. Div. 1999), defendants contend surgery, even surgery involving the installation of hardware, does not enable a plaintiff to satisfy automatically the requirements of N.J.S.A. 59:9-2(d). We do not disagree. As the Court held in Knowles, "there can be no per se rule that would be decisive in all cases." 176 N.J. at 331 . Instead, "it is the nature or degree of the ongoing impairment that determines whether a specific injury meets the threshold requirement under the [TCA]." Ibid. (quoting Ponte, 171 N.J. at 53 ). Thus, "[t]he determination of whether a plaintiff's injury satisfies the 'permanent loss of a bodily function that is substantial' threshold under the TCA depends on a fact-sensitive analysis." Ibid. (quoting Gilhooley, 164 N.J. at 541 ). Given the evidence in the record in this case, that determination should be made by a jury. Because genuine issues of material fact exist regarding whether plaintiff has experienced a substantial, permanent loss of bodily function, we conclude a jury determination is required and summary judgment was inappropriate. Accordingly, we reverse the April 7, 2025 summary-judgment order. A-0298-25 17 We review a "trial court's evidentiary determination . . . for an abuse of discretion." Schwartz v. Menas, 251 N.J. 556 , 570 (2022). We also apply that standard when reviewing a trial court's order on a reconsideration motion. Branch v. Cream-O-Land Dairy, 244 N.J. 567 , 582 (2021). "A court abuses its discretion when its 'decision is made without a rational explanation, inexplicably depart[s] from established policies, or rest[s] on an impermissible basis.'" State v. Chavies, 247 N.J. 245 , 257 (2021) (quoting State v. R.Y., 242 N.J. 48 , 65 (2020)) (internal quotation marks omitted). Rule 4:17-7 sets forth the procedure to be followed when supplementing answers to interrogatories after the discovery end date. Plaintiff admittedly did not follow that procedure. In 2000, the Supreme Court adopted amendments to our court rules, including Rule 4:17-7, that became known as the "Best Practices" rules. Tucci v. Tropicana Casino & Resort, Inc., 364 N.J. Super. 48, 51 (App. Div. 2003). "The Best Practices rules were 'designed to improve the efficiency and expedition of the civil litigation process and to restore state-wide uniformity in implementing and enforcing discovery and trial practices.'" Id. at 53 (quoting Vargas v. Camilo, 354 N.J. Super. 422 , 425 n.1 (App. Div. 2002)). "They were not designed to do away with substantial justice on the merits or to preclude rule relaxation when necessary to 'secure a just determination.'" Ibid. A-0298-25 18 (quoting R. 1:1-2). In Tucci, we reversed an order dismissing a claim with prejudice "by reason of plaintiffs' service of their expert report on defendants thirty-nine days after its due date." Id. at 50. Plaintiff served Dr. Mascenik's report fourteen days after the discovery end date, which had been extended only once based on the parties' consent. The court granted defendants' motion to bar that report but denied their motion to bar Dr. Brisson's report, which plaintiff's counsel had served weeks after he served Dr. Mascenik's report. In denying defendants' motion to bar Dr. Brisson's report, the court found the contents of the report were "no big surprise to the defense" given that defendants' expert witness knew about Dr. Brisson's treatment of plaintiff and had reviewed his notes and operative report. That analysis applies equally to the earlier-produced Mascenik report. Defendants' expert witness also was aware of Dr. Mascenik's treatment of plaintiff and had reviewed his notes. On that record, we conclude the court misapplied its discretion when it barred Dr. Mascenik's report and testimony and, accordingly, we reverse that aspect of the October 16, 2024 order. Defendants also had obtained information regarding plaintiff's medical bills before the discovery end date. In her answers to interrogatories, plaintiff identified her health-care providers and indicated she "[o]wed" them money, A-0298-25 19 although she did not provide the amount owed. Defendants then served subpoenas on and received documents from those providers as well as plaintiff's no-fault insurance carrier. Considering those circumstances, we reverse the December 4, 2024 medical-bill order. In sum, we reverse the April 7, 2025 summary-judgment order, the December 4, 2024 medical-bill order, and the October 16, 2024 order as to Dr. Mascenik's report and testimony. Given those reversals, we also reverse the September 16, 2025 reconsideration-motion order. We remand for further proceedings consistent with this opinion. Reversed and remanded. We do not retain jurisdiction. A-0298-25 20