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Davidson v. Slater

January 30, 2007

DANIELLE DAVIDSON, PLAINTIFF-RESPONDENT,
v.
RAYMOND A. SLATER, DEFENDANT-APPELLANT, AND DEANNA L. SLATER AND JOHN DOE(S), 1-5, ABC CORPORATION(S), 1-5, DEFENDANTS.



On certification to the Superior Court, Appellate Division, whose opinion is reported at 381 N.J. Super. 22 (2005).

SYLLABUS BY THE COURT

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).

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.

Plaintiff Danielle Davidson was involved in an automobile accident on August 2, 2001, when the vehicle in which she was a passenger was rear-ended by a car driven by Raymond Slater and owned by his wife, Deanna. The following day, Davidson went to the hospital emergency room where she was x-rayed, treated, and released. Two weeks after the accident, she was examined by her internist, Dr. Scott Dorfner, who treated her with anti-inflammatory medication, physical therapy, and medication for depression, explained to be caused by her "ongoing disabilities." Dr. Dorfner diagnosed lumbar disc protrusion at L5-S1, post-traumatic myofascitis and headache, lumbar radiculitis bilaterally, and post-traumatic cervical, dorsal (thoracic), and lumbar strain and sprain. He further concluded that the injuries were directly related to the August 2, 2001 accident and were permanent. Davidson was also examined by Dr. Nathan Zemel, an independent physician assigned by the no-fault carrier, and by defendant's physician, Dr. Gregory Maslow.

On July 18, 2003, Davidson filed a complaint against defendants, Raymond and Deanna Slater. Davidson sought damages for emotional, mental, and physical pain and suffering, and asserted compliance with the N.J.S.A. 39:6A-8(a) prerequisites for such non-economic damages. Defendants filed an answer denying the claims and asserting numerous affirmative defenses, including the "verbal threshold" defense. Defendants then filed two summary judgment motions. The first motion, filed on behalf of Deanna Slater, the vehicle owner, and unopposed by Davidson, was granted by the trial court, and left Raymond Slater as the sole defendant. We are here concerned with the second motion, which sought judgment based, in part, on Davidson's failure to show proximate causation by offering, as required by Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993), a comparative analysis of plaintiff's injuries to the same body parts involved in three separate accidents, one in 1997 and another in 2003, notwithstanding that Davidson was not alleging an aggravation to a pre-existing injury.

On the merits, the trial court granted summary judgment to defendant because Davidson had been injured in other accidents and did not provide a comparative-medical analysis distinguishing the alleged accident injuries from all other injuries to the same body parts. Moreover, the court observed that the only injury that might be attributed solely to the August 2001 accident was Davidson's disc protrusion and that a physician's report addressing her 2003 accident injuries did not mention any extant disc protrusion, yielding to the conclusion that there was no credible evidence of permanent injury. The Appellate Division reversed, holding that such an analysis was not required for Davidson's non-aggravation claim to vault the verbal threshold. Davidson v. Slater, 381 N.J. Super 22 (2005). The panel pointedly disagreed with other appellate decisions that had required a plaintiff to produce a Polk comparative analysis as part of an AICRA verbal threshold presentation and, further, that had required a comparative analysis in the context of a non-aggravation claim seeking damages for injury to a body part that previously had been injured.

The Supreme Court granted defendant's petition for certification. The Court also granted multiple amici applications.

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.

1. Before AICRA and its current iteration of the verbal threshold was enacted, an automobile-accident victim seeking to sue for bodily injury non-economic damages had to vault an earlier version of the threshold. Suit was permitted for nine enumerated categories of injuries. In Oswin v. Shaw, 129 N.J. 290 (1992) we held that a plaintiff had to demonstrate one of the statute's nine categories of injury and also prove that "the injury had a serious impact on the plaintiff and her life" -- Oswin's so-called "subjective prong." Oswin further required that verbal threshold cases follow a summary judgment model. The role of comparative-analysis evidence in a verbal threshold summary judgment motion was discussed in Polk, in which the Appellate Division found that Polk's physician "offered no objective medical basis whatsoever to substantiate plaintiff's complaints [or] to causally connect these complaints to the accident rather than to plaintiff's serious pre-existing prior medical condition." Polk, supra, 268 N.J. Super. at 576. Following Polk, courts have dismissed automobile accident actions alleging aggravation of pre-existing injuries when plaintiff failed to produce a comparative analysis. (Pp. 15-19)

2. AICRA revised the proof requirements for the verbal threshold and incorporated Oswin's objective prong. On the other hand, Oswin's subjective, "serious life impact" requirement was found by this Court to be incompatible with the plain language of AICRA's revised limitation-on-lawsuit standard and inconsistent with the Legislature's expressed intention to create a substantially new verbal threshold. DiProspero v. Penn, 183 N.J. 477 (2005). To vault AICRA's verbal threshold an accident victim need only prove an injury as defined in the statute. Serrano v. Serrano, 183 N.J. 508 (2005). The question of the continuing relevance of a Polk comparative analysis in connection with a plaintiff's verbal threshold demonstration has been the subject of much debate. Several appellate panels have affirmed the continuing vitality of Oswin's serious life impact requirement and one panel has expanded the Polk holding to require a comparative-analysis in non-aggravation claims. The Davidson panel found that Polk's comparative analysis requirement likely was no longer viable in the context of verbal-threshold motions in light of DiProspero and Serrano, whether aggravation of a prior injury is alleged or not. Davidson, supra, 381 N.J. Super. at 29. (Pp. 19-23)

3. There presently is no longer any need for a plaintiff to make a life-impact showing. That said, to the extent the parties have focused their attention on a pre- versus post-AICRA substantive requirement for comparative medical evidence, their arguments are wide of the mark. 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. (Pp. 24-25)

4. 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. (Pp. 25-30)

5. Davidson 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. Moreover, 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. In that respect, we affirm the Appellate Division judgment. As to the issue of permanency, however, defendant asserts that the Appellate Division improperly relied on Dr. Dorfner's certification of permanency exclusively when reversing the trial court's grant of summary judgment. As defendant notes, a court is not bound to rely solely on a physician's certification to vault a plaintiff over the verbal threshold. However, that does not appear to be what happened here. The record before us is unclear on the question of permanency. We remand for further explication of this record by the Appellate Division in light of the proof requirements for objective medical evidence of permanency. (Pp. 30-34)

The judgment of the Appellate Division is AFFIRMED with modification and the matter is REMANDED to the Appellate Division for further proceedings consistent with this opinion.

The opinion of the court was delivered by: Justice LaVECCHIA

Argued September 12, 2006

JUSTICES LONG, ZAZZALI, ALBIN, WALLACE, and RIVERA-SOTO join in JUSTICE LaVECCHIA's opinion.

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. We have 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. See Polk v. Daconceicao, 268 N.J. Super. 568, 575 (App. Div. 1993) (requiring plaintiff to produce comparative-medical analysis for pre-AICRA verbal threshold claim based on aggravation of pre-existing injury or condition).

In this matter, plaintiff does not allege aggravation of pre-existing injuries. However, because she had been injured in other accidents and did not provide a comparative-medical analysis distinguishing the alleged accident injuries from all other injuries to the same body parts, the trial court dismissed her complaint on a motion for summary judgment. The Appellate Division reversed, holding that such an analysis was not required for plaintiff's non-aggravation claim to vault the verbal threshold. Davidson v. Slater, 381 N.J. Super. 22, 29 (2005). We granted defendant's petition for certification. 186 N.J. 243 (2006).

We agree with the Appellate Division's conclusion that plaintiff's non-aggravation cause of action should not have been dismissed based on the failure to provide a comparative-medical analysis. Although the parties present their dispute as one focused on the current verbal threshold standard, our determination in this matter turns ultimately on the application of basic tort principles of causation and burden allocation as between plaintiffs and defendants. When a plaintiff alleges aggravation of pre-existing injuries as the animating theory for the claim, then plaintiff must produce comparative evidence to move forward with the causation element of that tort action.

When a plaintiff does not plead aggravation of pre-existing injuries, a comparative analysis is not required to make that demonstration. AICRA does not impose on plaintiff any special requirement for a comparative--medical analysis in respect of causation in order to vault the verbal threshold.

In this matter, plaintiff can 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. If defendant raises a genuine factual issue about the causation of plaintiff's claimed injuries by pointing to other injuries the plaintiff may have experienced, that disputed issue of causation is for the fact-finder to decide, except in those unusual instances when no reasonable fact-finder could conclude that the permanent injury was caused by the subject accident.

I.

A.

The facts in the motion record reveal that plaintiff Danielle Davidson was involved in an automobile accident in the early morning hours of August 2, 2001, when the vehicle in which she was a passenger was rear-ended by a car driven by Raymond Slater and owned by his wife, Deanna. Davidson declined treatment at the scene.

The next day, however, after experiencing lower back and neck pain, she went to the hospital emergency room. She was xrayed, treated, and released. In answers to interrogatories, she described her symptoms from the accident as rib pain, right knee pain, neck pain and headache, upper and lower back pain, and a tingling sensation in her hands and feet. In deposition testimony taken in February 2004, she similarly described the injuries to her back and neck, and complained of having muscle spasms and "pins and needles" sensations in her feet and hands. Notably, an interrogatory specifically asked Davidson about previous injuries exacerbated by the August 2001 accident. She did not identify any.

The medical information obtained from plaintiff during discovery came largely from her internist, Dr. Scott Dorfner, who had examined her two weeks after the accident and treated her with anti-inflammatory medication, physical therapy, and medication for depression, explained to be caused by her "ongoing disabilities." Dr. Dorfner summarized his findings in a report dated December 19, 2002. Davidson had reported experiencing neck and back spasms, lower back and leg pain, dizziness, and cephalgia (headache) since the accident. Dr. Dorfner found a decreased range of motion (seventy percent of normal) in her cervical and lumbar spine. An MRI of the middle and lower spine revealed a "mild" disc protrusion between the L5 and S1 vertebrae, but no herniated disc. An MRI of plaintiff's cervical spine revealed "mild degenerative changes" at C4-C5 and C5-C6, as well as "minimal" or "small" disc protrusions at those vertebrae. Dr. Dorfner's ...


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