verbal threshold and comparative medical analysis

The Verbal Threshold and the Evil Comparative Medical Analysis

Prior injury nightmare

Joe Superstar is an experienced N.J. personal injury lawyer with a thriving N.J. car accident practice.  However, with the advent of the verbal threshold, there are no longer any slam dunk cases; even when liability is uncontested. Joe has to think of creative, new ways to vault the verbal threshold.

Making matters worse, most clients have injuries to the same part of their body from prior car accidents. The defense bar loved the Polk decision [ Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993) ], requiring plaintiff’s provide a comparative medical analysis between the prior and present injuries.

Comparative Medical Analysis

Joe was hoping the N.J. Supreme Court would make things a little less cumbersome and expensive for a plaintiff with prior injuries  trying to vault the verbal threshold. Voila,   Danielle Davidson v. Raymond A. Slater, et al. 189 N.J. 166 (2007)

This personal injury action involves the limitation-on-lawsuit or “verbal” threshold of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35. The Court has been asked whether, in order to vault the verbal threshold, a plaintiff must produce a comparative analysis segregating injuries suffered in the subject automobile accident from all previous injuries to the same body part, regardless of whether the plaintiff has pled a cause of action premised on the aggravation of pre-existing injuries.

HELD: Plaintiff was under no obligation under the Automobile Insurance Cost Reduction Act (AICRA) to produce, as part of her prima facie presentation in this non-aggravation cause of action, a comparative analysis in order to satisfy the verbal threshold proof requirements. As between defendant’s medical proofs and those presented by plaintiff, the trial court was obliged to determine whether a genuine issue of proximate cause had been presented. As to the issue of permanency, the matter is remanded for further explication of this record by the Appellate Division in light of the proof requirements for objective medical evidence of permanency.

The need for a plaintiff to produce a comparative medical analysis remains dependent on traditional principles of causation and burden allocation applicable to tort cases generally. Those principles are what determine the need for comparative evidence. The question that we now answer is one that transcends the AICRA verbal threshold setting in which it has arisen.

When aggravation of a pre-existing injury is pled by a plaintiff, comparative medical evidence is necessary as part of a plaintiff’s prima facie and concomitant verbal threshold demonstration in order to isolate the physician’s diagnosis of the injury or injuries that are allegedly “permanent” as a result of the subject accident. The rub comes when a plaintiff does not plead aggravation of pre-existing injuries, but there have been other injuries to the body part. Defendant seeks to burden Davidson with an initial obligation to produce comparative-analysis evidence excluding all other injuries from being the cause of the permanent injury on which the verbal threshold action is based. We reject the invitation to place such a burden of production on plaintiff in her AICRA non-aggravation-pled case. There is no such requirement to be found in AICRA. In Oswin, supra, the Court established that verbal threshold cases should follow the summary judgment model. That summary judgment framework still applies to AICRA’s refined standard for vaulting the verbal threshold

N.J. car accident lawyer

Ssssh....I'm thinking

Commentary

One small step for plaintiffs…This is an important decision to have in your plaintiff’s toolkit. It provides a blueprint  to prepare a verbal threshold case with prior injuries for trial. Here is a link to the complete decision.

Weep not for the defense bar because plaintiff’s still must provide a comparative medical analysis when there is a claim for aggravation; or when trying to separate out the present permanent injury to the same part of the body previously injuries.

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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 and beating NYC parking tickets for the driving community

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