Napolitano v. MSS Vending, Inc., DOCKET NO. A-3119-17T4

CourtSuperior Court of New Jersey
Writing for the CourtPER CURIAM
PartiesMARIA NAPOLITANO, Plaintiff-Respondent, v. MSS VENDING, INC., and TONY HUDSON, Defendants-Appellants, and GIUSEPPE NAPOLITANO, Defendant-Respondent.
Docket NumberDOCKET NO. A-3119-17T4
Decision Date07 November 2019

MARIA NAPOLITANO, Plaintiff-Respondent,
MSS VENDING, INC., and TONY HUDSON, Defendants-Appellants,
GIUSEPPE NAPOLITANO, Defendant-Respondent.

DOCKET NO. A-3119-17T4


Argued September 10, 2019
November 7, 2019


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.

Before Judges Messano, Ostrer and Vernoia.

On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket Nos. L-5330-14 and L-3916-14.

Jeffrey John Czuba argued the cause for appellants (Hoagland Longo Moran Dunst & Doukas, attorneys; Jeffrey John Czuba, of counsel and on the briefs).

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Nicholas P. Scutari argued the cause for respondent Maria Napolitano (Nicholas P. Scutari and Fruhschein & Steward, LLC, attorneys; Nicholas P. Scutari, of counsel and on the briefs; Carleen M. Steward, on the brief).

Eric G. Kahn argued the cause for amicus curiae New Jersey Association for Justice (Javerbaum Wurgaft Hicks Kahn Wikstrom & Sinins, attorneys; Eric G. Kahn and Annabelle Moskol Steinhacker, of counsel and on the brief).

Stephen Jospeh Foley, Jr. argued the cause for amicus curiae New Jersey Defense Association (Campbell Foley Delano & Adams, LLC, attorneys; Stephen Joseph Foley, Jr., on the brief).


Plaintiff Maria Napolitano was a passenger in a car driven by her father, Giuseppe Napolitano, when it was struck in the rear by a truck driven by defendant Tony Hudson and owned by MSS Vending, Inc. Defendant claimed that after stopping partially in an intersection for a red light, Giuseppe Napolitano placed his car in reverse and backed into defendant's vehicle.1 Plaintiff sought damages for pain and suffering based on alleged injuries to her knees, shoulders, and spine. Additionally, plaintiff was insured under a standard automobile insurance policy that included a $50,000 limit for personal injury

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protection (PIP) benefits. Plaintiff also sought more than $765,000 in medical expenses that allegedly exceeded policy limits.

Following the close of discovery, defendant moved to bar plaintiff's medical expense claim, asserting she failed to identify any witness who possessed expertise or training in evaluating medical bills and who was competent to testify as to their reasonableness. Defendant further argued that the PIP fee schedule adopted by the Department of Banking and Insurance (DOBI) should be applied to all medical bills, and any recovery should be limited to the fee schedule amounts for services provided. Although the motion was opposed, and defendant sought oral argument, the judge denied the motion without granting argument or issuing any written or oral decision.

Defendant moved for reconsideration, plaintiff filed opposition, and defendant again requested oral argument. The judge denied the motion without argument and, in a brief written statement of reasons, concluded defendant failed to establish any grounds for reconsideration. Relying on our decision in Haines v. Taft, 450 N.J. Super. 295 (App. Div. 2017), the judge wrote plaintiff's "medical expenses exceeding PIP limits were not inadmissible under N.J.S.A. 39:6A-12."

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The parties took the de bene esse deposition of Dr. Matthew Garfinkel, a board-certified orthopedic surgeon, who operated on both of plaintiff's knees and both of her shoulders. Plaintiff's counsel questioned Dr. Garfinkel about the medical bills associated with his treatment, and defense counsel objected, noting the bills contained amounts for the anesthesiologist and use of the surgical facility. Immediately before trial, defendant moved in limine to exclude those portions of Dr. Garfinkel's testimony regarding the medical bills. The trial judge, who was not the pre-trial motion judge, denied defendant's request.

In addition to her own testimony and Dr. Garfinkel's videotaped deposition, plaintiff produced the expert testimony of Dr. Paresh Rijsinghani, a radiologist; Dr. Michael Robinson, a chiropractor; Dr. Wayne Fleischhacker, a board-certified anesthesiologist and pain management specialist; and Dr. Marc Cohen, a board-certified spine surgeon. Defendant testified and also offered the videotaped deposition of Dr. Steven Fried, an orthopedic doctor.2

The jury concluded defendant was negligent, Giuseppe Napolitano was not, and defendant's negligence was a proximate cause of the accident. It

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awarded plaintiff $75,000 in damages for pain, suffering and loss of enjoyment of life, and $383,000 for unpaid medical expenses, half the amount plaintiff claimed. Defendant moved for a new trial, which the judge denied. This appeal followed.


Defendant argues that the judge's failure to grant oral argument on his motion to bar plaintiff's claim for medical expenses, and the judge's failure to provide a statement of reasons for her decision, requires reversal. Defendant also contends that the actual testimony adduced at trial on the claim for medical expenses was incompetent because it lacked "a [p]roper [f]oundation" and was supported by only "[n]et [o]pinions[.]" As a corollary, defendant argues DOBI's fee schedule provided a "[c]onclusive [r]easonableness [m]ethodology[,]" and the trial court erred by refusing to limit plaintiff's claim to the amounts payable to providers pursuant to the fee schedule. Lastly, defendant contends the judge's decision to tell the jury defendant was insured was prejudicial and requires reversal. We permitted the New Jersey Association for Justice (NJAJ) and the New Jersey Defense Association (NJDA) to appear as amici curiae.

While the appeal was pending, the Court issued its decision in Haines v. Taft, 237 N.J. 271 (2019). At the time, N.J.S.A. 39:6A-12 provided in relevant

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part: "Nothing in this section shall be construed to limit the right of recovery, against the tortfeasor, of uncompensated economic loss sustained by the injured party." "Economic loss" was and remains defined as "uncompensated loss of income or property, or other uncompensated expenses, including, but not limited to, medical expenses." N.J.S.A. 39:6A-2(k) (emphasis added). In reversing our earlier judgment, the Court held that "interpreting [N.J.S.A. 39:6A-12] to allow the admission of evidence of medical expenses falling between the insured's PIP policy limit and the $250,000 PIP statutory ceiling transgresses the overall legislative design of the No-Fault Law to 'reduc[e] court congestion[,] . . . lower[] the cost of automobile insurance[,]' and most importantly, avoid fault-based suits in a no-fault system[.]" Id. at 292 (first four alterations in original) (citing Roig v. Kelsey, 135 N.J. 500, 516 (1994)). We asked the parties to address the impact of the Court's holding on the issues in this case.

The landscape shifted again before we heard oral argument. The Legislature passed, and the Governor signed, Senate Bill No. 2432 on August 15, 2019, which took effect immediately and "appl[ied] to causes of action pending on that date or filed on or after that date." L. 2019, c. 244 § 2 (Chapter 244). Chapter 244 was a direct response to the Court's decision in Haines, and amended N.J.S.A. 39:6A-12 by providing:

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Nothing in this section shall be construed to limit the right of recovery, against the tortfeasor, of uncompensated economic loss as defined by [N.J.S.A. 39:6A-2(k)], including all uncompensated medical expenses not covered by the personal injury protection limits applicable to the injured party and sustained by the injured party. All medical expenses that exceed, or are unpaid or uncovered by any injured party's medical expense benefits [PIP] limits, regardless of any health insurance coverage, are claimable by any injured party as against all liable parties, including any self-funded health care plans that assert valid liens.

[L. 2019, c. 244, § 1 (emphasis added).]

On the same day, the Legislature passed, and the Governor signed, Senate Bill No. 3963, L. 2019, c. 245 (Chapter 245), with an effective date of August 1, 2019. Chapter 245 amended N.J.S.A. 39:6A-4.6(a), by requiring DOBI to "promulgate medical fee schedules . . . for the reimbursement of health care providers . . . for payment of unreimbursed medical expenses that are admissible as uncompensated economic loss pursuant to [N.J.S.A. 39:6A-12]." L. 2019, c. 245 § 1. In relevant part, Chapter 245 also further amended N.J.S.A. 39:6A-12 by subjecting any claim for "unreimbursed medical expenses[,]" as opposed to uncompensated medical expenses, "not covered by the [PIP] limits applicable to the injured party and sustained by the injured party, including the value of any deductibles and copayments incurred through a driver's secondary insurance coverage and medical liens asserted by a health insurance company related to

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the treatment of injuries sustained in the accident . . . to the current automobile medical fee schedules established pursuant to [N.J.S.A. 39:6A-4.6]." Id. at § 2. Chapter 245 applies to all automobile accidents that occurred on or after August 1, 2019. Id. at § 3.

At oral argument, defendant clarified that he was not relying on the Court's decision in Haines, and he, along with NJDA, agreed with plaintiff and NJAJ that Chapter 244 applies, since this action was "pending" direct appeal on August 15, 2019. The parties and amici also do not dispute that by its terms Chapter 245 does not apply, since the accident occurred before August 1, 2019.

Defendant, however, reiterates his primary arguments that the motion judge's failure to provide oral argument and adequate reasons for denying his pre-trial attempt to bar plaintiff's claim for medical expenses requires reversal, plaintiff's evidence of unpaid medical expenses was premised on the inadmissible net opinions of the various treating doctors and...

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