July 17, 2007
VINCENT GALGANO, PLAINTIFF-APPELLANT,
JEFFREY SOVERN AND HAL LEVY, DEFENDANTS-RESPONDENTS,
On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, L-98-03.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted June 19, 2007
Before Judges Stern and Coburn.
In this personal injury automobile accident case, a jury found defendant Jeffrey Sovern liable and awarded plaintiff $5,000 Plaintiff appeals, arguing that the trial judge erred by refusing to instruct the jury on the concept of aggravation of a pre-existing injury. Plaintiff never claimed aggravation of a pre-existing injury and neither he nor his expert provided any evidence of aggravation of a pre-existing injury. The defendant's expert opined that MRI testing revealed only degenerative changes that pre-existed the accident, and provided no evidence that plaintiff's herniated disc was an asymptomatic pre-existing injury that was aggravated by the accident. The burden of proving an aggravation claim rests on plaintiff. Reichert v. Vegholm, 366 N.J. Super. 209, 214 (App. Div. 2004). Since there was no evidence of aggravation from any witness, the judge rightly refused the requested charge.
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