Appellate Division—Defense Bears the Burden of Differentiating the Cause of Injury
On June 14, 2022, the Appellate Division reversed a trial judge’s dismissal of a case involving a woman who brought an action for injuries from two separate car accidents. Blocker v. Deloatch (A-1422-20). In the unpublished opinion, the court held that the burden is on the defense to demonstrate that the injuries alleged by the plaintiff had multiple causes. Id. at *17.
On April 22, 2016 (“2016 accident”), the plaintiff was involved in a three-car accident resulting in low back pain. Id. at *3. Two years later, on March 31, 2018 (“2018 accident”), the plaintiff was in a second accident, which resulted in a low back injury that “significantly worsened” her pain. Ibid. Further, she had previously suffered a work injury in 2015 (“2015 accident”), which was not subject to the instant lawsuit. Id. at *4.
During discovery, the plaintiff offered expert reports from several physicians. Id. at *3-8. The first of which was Dr. David Weiss, who diagnosed the plaintiff with “an aggravation of pre-existing lumbar spine pathology,” among other diagnoses. Id. at *3-4. Dr. Weiss, however, had only reviewed the plaintiff’s August 15, 2016, lumbar MRI. Id. at *4. He did not review any of the plaintiff’s medical records or MRI films related to the 2015 injury and did not treat the plaintiff for damages following the 2018 accident. Ibid.
After the 2018 accident, Dr. Bercik performed an orthopedic medical exam and prepared an April 12, 2019, narrative report. Ibid. He reviewed the plaintiff’s August 15, 2016, lumbar MRI and the May 22, 2018 lumber MRI studies, which he noted showed a disc protrusion and degenerative changes. Id. at *5. He also compared the 2016 MRI films to the 2015 films and found the 2016 films to be unchanged from the 2015 films. Id. at *6.
The plaintiff’s third expert, Dr. Wael Elkholy, reviewed the plaintiff’s lumbar MRIs performed on May 22, 2018, and October 21, 2019, and her medical records from the 2016 accident. He opined that the plaintiff’s “[i]njuries and need for surgical intervention were caused by the accident of [April 22, 2016] and were aggravated by the second accident of [March 31, 2018.].” Id. at *6. Dr. Elkholy concluded that the plaintiff’s “low back pain significantly worsened after being involved in the most recent [motor vehicle accident].” Id. at *7-8.
Thereafter, the plaintiff filed a Complaint in April 2018, asserting a negligence claim. Id. at *9. She sought damages for permanent injuries alleged to have been sustained in both the 2016 and 2018 accidents. Ibid. However, she did not allege that the 2016 and 2018 accidents aggravated any previously sustained injuries. Ibid.
In turn, the defendants moved for Summary Judgment before the expiration of discovery, arguing that the plaintiff failed to serve an expert report containing a comparative analysis, or a so-called Polk Analysis, “of the injuries sustained prior to the 2016 accident, the injuries suffered in the 2016 accident, and the injuries sustained in the 2018 accident; and how those accidents may have aggravated or exacerbated the injuries that pre-existed.” Id. at *9.
At oral argument, the plaintiff served an additional report of Dr. Elkholy, and the motions were adjourned to allow the defendants to file a responsive pleading. Ibid. On March 13, 2020, the motion judge granted the motions and dismissed the plaintiff’s complaint. Ibid. The judge found that “the report of Dr. Elkholy [was] deficient under Davidson v. Slater, 189 N.J. 166 (2007), and [was] also nothing more than a mere net opinion.” Id. at *9-10. The plaintiff later moved for reconsideration, supplying an additional addendum report by Dr. Elkholy, which the trial judge found to be “improper” and declined to revisit the prior ruling. Id. at *11.
On appeal, the plaintiff argued that “she was not required to present a comparative analysis pursuant to Davidson regarding the injuries sustained prior to the 2016 accident, from the 2016 and 2018 accidents, and whether those accidents may have aggravated or exacerbated her 2015 injury.” Ibid. The plaintiff also argued that Summary Judgment was improper as her injuries from the 2016 accident met the verbal threshold, or alternatively that the trial judge should have dismissed only her noneconomic damages. Ibid.
In considering the plaintiff’s arguments, the Appellate Division first noted that “[i]n New Jersey, the holder of every standard automobile liability insurance policy must select one of two tort options: the ‘[l]imitation on lawsuit option’ or the ‘[n]o limitation on lawsuit option. N.J.S.A. 39:6A-8.” Id. at *13. As the plaintiff was subject to the verbal threshold, the Appellate Division noted that the plaintiff “must show that  her injuries were proximately caused by defendants’ negligence.” Davidson v. Slater, 189 N.J. 166, 185 (2007). Consequently, the Supreme Court in Davidson found that a plaintiff “could carry her burden of moving forward in her non-aggravation case by demonstrating the existence of a ‘permanent’ injury resulting from the automobile accident without having to exclude all prior injuries to the same body part.” Id. at 170.
The Appellate Division, therefore, reversed the trial court, concluding “since [the] plaintiff did not plead aggravation, she was not required to provide a comparative analysis of her past, present, and subsequent injuries in accordance with Davidson.” Id. at *16. Instead, the Appellate Division held the “[d]efendants, as opposed to plaintiff, should have been assigned the burden to differentiate the causative effect of the respective collisions. A ‘defendant, in response to an allegation that his or her negligence has caused injury, possess the right of demonstrating by competent evidence that that injury ‘could’ have been caused, wholly or partly, by an earlier accident or by a pre-existing condition.’” Id. at *17 (citing Davidson supra at 187.).
Therefore, where a plaintiff has suffered a prior injury that is not plead in aggravation, the plaintiff is not required to provide a Polk Analysis. Instead, the burden rests with the defense to differentiate the cause of the injury before the fact-finder.
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