How to lose a Verbal Threshold Case

The N.J. car accident facts 

N.J. car accident

Soft tissue injuries & the Verbal Threshold

On January 30, 2006, Raymondo was involved in a motor vehicle accident in Woolwich Township. He was taken from the scene of the accident to the CKHS Crozier-Chester Medical Center in Upland, Pennsylvania that same day. X-rays of his left knee and chest were taken, along with a CT scan of his head. No fractures or other abnormalities were detected. Minor treatment in the emergency room for a scalp hematoma in the frontal region was provided, along with a cardiology consultation because of Raymondo’s pre-existing cardiac condition. He was released after a few hours with instructions to follow-up with his primary care physician. The Emergency Department Report dated the same day as the accident states

‘[patient was] moving all [four] extremities equally with full strength. Pain and soft touch intact in all [four] extremities. Back examined on log rolling and the patient reveals no tenderness, full range of motion of back.’

Raymondo was next seen by Dr. Jon S. Heist, D.O. on the following day, but the summary judgment record is barren of information indicating the nature, if any of Dr. Heist’s treatment. Presumably, he provided Raymondo with a prescription for physical therapy because one week later, on February 6, 2006, Raymondo commenced such a regime with Roberto Yanez. The Initial Evaluation Report prepared by Yanez indicated that “X-rays were negative” but that Raymondo “has pain across his shoulders, right wrist, and left knee.” According to the summary judgment record, Yanez provided physical therapy treatments on only three occasions in February and March 2006.

On December 7, 2007, almost two years after the accident, Dr. Heist executed a cursory “Certification of Treating Physician, ” which opined that as a result of the accident, Raymondo “did suffer permanent injuries to the following areas: lumbar with b/l sciatica; l[eft] hip.” The fill-in-the-blanks certification further indicated that the medical testing that was considered by Dr. Heist in reaching his opinion included “physical therapy with Roberto Yanez, x-ray neck, films of head [at] E.R.” The record, however, does not reveal any that any x-rays of Raymondo’s neck were taken, and the motion judge noted —— without objection —— “there is no neck x-ray.”

The Arguments

Defendant moved for summary judgment, based upon the failure to satisfy the requirements of N.J.S.A. 39:6A-8(a). Defendant argued that Raymondo had failed to support his claim of a permanent injury with objective medical evidence. Furthermore, defendant argued that to the extent plaintiffs were asserting that the accident aggravated several of Raymondo’s pre-existing injuries, they had failed to provide a comparative analysis of how Raymondo’s harm was caused by the instant accident.

Plaintiffs opposed the motion by submitting a five-page combined brief and response to defendant’s statement of material facts. No additional certifications or expert reports besides Dr. Heist’s certification were presented to the motion judge. In an oral opinion, Judge Farrell granted the motion and dismissed all claims for non-economic damages for two reasons: (1) the absence of objective medical evidence of a permanent injury and (2) the failure to explain the nature of Raymondo’s theory of aggravation. After the parties settled Raymondo’s economic loss claim, this appeal followed.

The Court’s decision

In this case, the only potentially viable element of the verbal threshold is “a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.” N.J.S.A. 39:6A-8(a). That section further provides that an injury “shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment.” Ibid.

In order to carry on beyond a motion for summary judgment, a plaintiff need only demonstrate “by objective credible evidence” that he suffered a “permanent injury.” Juarez v. J.A. Salerno & Sons, Inc., 185 N.J. 332, 334 (2005). A plaintiff does not need to demonstrate a “serious life impact, ” DiProspero v. Penn, 183 N.J. 477, 481-82 (2005), or even a “serious injury.” Serrano v. Serrano, 183 N.J. 508, 510 (2005).

Taking Dr. Heist’s certification and the medical reports in the record, and giving Raymondo the benefit of the favorable inferences arising from them, we are satisfied that Raymondo has not met his burden of demonstrating that there is objective credible evidence that he suffered a permanent injury. The doctor’s reliance —— without specificity and explanation —— upon the fact that Raymondo attended physical therapy is, as Judge Farrell indicated, “not [] a basis for an objective finding.” Moreover, the diagnostic studies performed in the emergency room on the day of the accident do not disclose any objective findings of permanent injury. In short, the record presented to the motion judge fully justified his grant of summary judgment dismissing Raymondo’s claim for non-economic damages.

C.

Because “[c]ausation is germane to the plaintiff’s theory of aggravation of a pre-existing injury[, ]” a comparative analysis is required in aggravation-pled cases to show, as a necessary element, that the aggravation was proximately caused by the accident. Davidson v. Slater, 189 N.J. 166, 185 (2007). A comparative analysis reveals the damages defendant actually caused, and because plaintiffs are in the better position to know “how a defendant’s tort has affected or is related to prior or subsequent injuries or conditions[, ]” it is plaintiffs’ burden to provide one. Reichert v. Vegholm, 366 N.J.Super. 209, 214 (App. Div. 2004).

Although plaintiffs’ initial pleadings did not clearly allege an aggravation of a prior injury, Judge Farrell treated plaintiffs’ interrogatory answers indulgently, recognizing that those discovery materials obliquely suggested that they were pursuing such a claim. We agree with Judge Farrell’s conclusion that plaintiffs failed to demonstrate sufficient evidence of causation “to establish the condition of [Raymondo before] the most recent accident, the conditions after, and what exactly was aggravated and what aggravation can be attributed to this accident.”

Affirmed.

———

Notes:

[1] At oral argument of the summary judgment motion, plaintiff’s attorney confirmed the sparse factual record when he noted, “[a]ll we have is the emergency room and a couple of doctor’s notes. That’s all we have, Your Honor.” The motion judge indicated his appreciation for counsel’s candor.

[Bredell v. Palischak, A-1554-09T2, on appeal from Salem County Superior Court, Docket No. L-381-07]

——-

 

N.J. trip & fall lawyer

Ssssh....I'm thinking

Commentary

There are many obstacles to overcome to win a soft tissue injury case for a person involved in a N.J. car accident, who is covered by the verbal threshold. A client visits your office a few days after sustaining painful injuries in a N.J. car accident, and complains of severe pain in the neck and back. You do not have a crystal ball, nor can you see into the future about how your client will fare with his injuries. You cannot determine with certainty whether your potential client will comply with his doctor’s treatment recommendations; or will submit to diagnostic testing.

Do you have a policy in your office about whether to represent a  plaintiff with what appear to be soft tissue injuries, who is covered by the N.J. Verbal Threshold, a.k.a. Limitation of Lawsuit Threshold?  As a general rule, I decline to  represent clients with soft tissue injuries, who have selected  the verbal threshold. In my opinion, it is a lethal mix. If the defense carrier is resistant to settlement, which they usual are, how can you or your client afford to pay a doctor to come to court?

I have spoken to other plaintiff’s lawyers who recommend taking the case, and explaining to a prospective client, you may be forced to abandon the case at a later date; if you cannot establish a permanent soft tissue injury.

Yea, right.  Who, amongst us hasn’t felt the wrath of a client we scorn after one year of chiropractic treatment, and no objective evidence of a herniated disc. Why build up a client’s hopes? Do you think a client really believes a bright plaintiff’s lawyer like us will take a case on a contingency unless the lawyer really believes she will win?

What action do you recommend when faced with a potential client, great liability, soft tissue injuries, and the evil verbal tort threshold? Please comment. Your opinion matters to us.

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About Lawrence "Larry" Berezin

I retired from the private practice of law after a 35-year legal career and fight parking tickets for people like you and me. I love sharing valuable information, tips and tricks to help drivers beat NYC parking tickets.

2 Responses to “How to lose a Verbal Threshold Case”

  1. Hi this topic is very interesting. Keep it going fellow !

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  1. » 5 Tips to Avoid Losing a Personal Injury Client to another Lawyer - June 14, 2011

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