aggravation of prior injuries

The Burden of Proof in Aggravation of Preexisting Injury Cases

The back story

I find preexisting injuries difficult to apportion, and a real “crap shoot” for juries. When a new client sits down in my office, and explains she was the victim of prior and subsequent accidents, I know my Mother was right; I should have been an architect.

Model Civil Jury Charges

Here is what the Model Civil Jury Charges, CHARGE 8.11F, has to say about preexisting injuries:

“In this case, evidence has been presented that [plaintiff] had an illness/injury(ies)/condition before the accident/incident — that is [describe the alleged preexisting injury]. I will refer to this condition as the preexisting injury.1 There are different rules for awarding damages depending on whether the preexisting injury was or was not causing plaintiff any harm or symptoms at the time of this accident. Obviously, the defendants in this case are not responsible for any preexisting injury of [plaintiff]. As a result, you may not award any money in this case for damages attributable solely to any preexisting illness/injury(ies)/condition.

I will now explain what happens if the [plaintiff] was experiencing symptoms of the preexisting condition at the time of the accident.

If the injuries sustained in this accident aggravated or made [plaintiff’s] preexisting injury more severe, then the [plaintiff] may recover for any damages sustained due to an aggravation or worsening of a preexisting illness/injury(ies)/condition but only to the extent of that aggravation.

If you find that [plaintiff’s] preexisting illness/injury(ies)/condition was not causing him/her any harm or symptoms at the time of the accident, but that the preexisting condition combined with injuries incurred in the accident to cause him/her damage, then [plaintiff] is entitled to recover for the full extent of the damages he/she sustained.

                                     [Use the following where a preexisting latent condition is involved].

I will now explain what happens if [plaintiff] had a predisposition or weakness which was causing no symptoms or problems before the accident but made him/her more susceptible to the kind of medical problems he/she claims in this case. If the injuries sustained in this accident combined with that predisposition to create the plaintiff’s medical condition, then plaintiff is entitled to recover for all of the damage sustained due to that condition. You must not speculate that an individual without such predisposition or latent condition would have experienced less pain, suffering, disability and impairment.3


1    This rule does not apply to medical malpractice cases; there the defendant has the burden of segregating recoverable damages from those solely incident to preexisting disease. Fosgate v. Corona, 66 N.J. 268 (1974). See also Scafidi v. Seiler, 119 N.J. 93 (1990) and Model Civil Charge 5.50E. The burden of proving which of plaintiff’s conditions were caused by preexisting events is shifted to the defendants whenever defendants have vastly greater access than plaintiff to crucial proofs. Blanks v. Murphy, 268 N.J. Super. 152 (App. Div. 1993) citing Sholtis v. American Cyanamid Co., 238 N.J. Super 8 (App. Div. 1989) (applying the same principal in the area of asbestos exposure injuries). See also Thornton v. General Motors Corp., 280 N.J. Super 295 (Law Div. 1994) applying the Fosgate and Scafidi principal of burden shifting to the defendant manufacturer in a crashworthy case.

2    There may be cases where based on medical testimony or other evidence there is no dispute that the preexisting injury was quiescent in which case the second and third paragraphs of the charge might be omitted.

3    Quagliato v. Bodner, 115 N.J. Super. 133 (App. Div. 1971) contains detailed instructions for how to handle the unusual circumstance where two separate tortious events such as automobile accidents within a few months which cause overlapping or invisible injuries are properly consolidated for a damage-only trial after a finding of liability.”

Does the Plaintiff always have the burden of apportioning damages?

No, thank G-D. Blanks v Murphy, 268 N.J. Supra. (App.Div. 1993) is very enlightening on the issue of which party must apportion damages.

Here are three points clarified by the Court:

  • “The innocent plaintiff should not be required to establish what expenses, pain, suffering, disability or impairment are attributable solely to the malpractice or tortious act, but that the burden of proof should be shifted to the culpable defendant who should be held responsible for all damages unless he can demonstrate that the damages for which he is responsible are capable of some reasonable apportionment and what those damages are. Fosgate v. Corona, 66 N.J. 268, 272-73, 330 A.2d 355 (1974
  • We held In Tisdale v. Fields, 183 N.J. Super. 8, 9-10, 443 A.2d 211 (App.Div. 1982), that, “[i]n the usual negligence case” — of which Tisdale was an instance — “plaintiff has the burden of establishing all the elements of his cause of action, including damages,” and we observed, “[w]e do not think that Fosgate has changed the usual rule in every negligence case.” Id. at 10-11, 443 A.2d 211. To the same effect, see Goodman v. Fairlawn Garden Assoc., 253 N.J. Super. 299, 305, 601 A.2d 766 (App.Div.) (plaintiff who suffered successive injuries has the burden of apportioning damages), certif. denied, 130 N.J. 7, 611 A.2d 647 (1992)
  • Fosgate, Tisdale, Goodman and Sholtis, however, mark out the rule which is applicable to this case. In Fosgate and Sholtis, a particular characteristic of the case required the defendants, in the interest of justice, to suffer the consequences of an inability to disprove their responsibility for some or all of the plaintiffs’ injuries. The defendant in Fosgate, because he was the treating physician, was in a substantially better position than the plaintiffs to offer proof “separating that part of the harm caused by the malpractice from the preexisting disease and its normal consequences.” Fosgate, supra, 66 N.J. at 272, 330 A.2d 355. The rule enunciated in that case was not limited to medical malpractice cases; it extends to all cases to which its rationale applies, i.e., where defendants have vastly greater access than plaintiffs to crucial proofs.[1] The special feature of Sholtis was that if the burden were not shifted to the defendants, asbestos plaintiffs who were indisputably injured would never be able to recover. Tisdale and Goodman, on the other hand, lacked any characteristic that would warrant shifting the ordinary burden of apportioning damages. 162*162 In both of those cases, the plaintiff was in the best position to gather and present the evidence, through her own testimony and that of her experts, to show what part of the conditions of which she complained had been caused by the accident for which defendant was responsible. Justice therefore required that in those cases plaintiff bear the burden on the apportionment issue.”
N.J. property tax cap, waiver, and referendum

Ssssh....Im thinking


It is absolutely, positively incumbent upon a plaintiff’s personal injury lawyer to understand these issues; and to have a facility in applying the proper apportionment strategy from case to case. Just because you have a plaintiff with pre-existing injuries, it does not mean you have an “aggravation” case.  Will a jury believe your presentation? Here is an interesting case involving the pitfalls of “aggravation” cases in an BARBARA DEDEAR v SHELTON-aggravation case unpublished


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 in NYC

No comments yet... Be the first to leave a reply!

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )


Connecting to %s