January 3, 2008
JAYESH M. RAVAL AND ALPA RAVAL, PLAINTIFFS-APPELLANTS,
DANIEL R. JHOCSON, MARIA L. JHOCSON, AND PAULO C. SILVA, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-6340-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued December 5, 2007
Before Judges Parker, R. B. Coleman and Lyons.
Plaintiffs Jayesh M. Raval and Alpa Raval appeal from a judgment of dismissal entered on December 12, 2006, in favor of defendants Daniel R. Jhocson, Maria L. Jhocson, and Paulo C. Silva. The judgment granted defendants' motions for directed verdicts at the end of plaintiffs' case. Because we find that plaintiffs failed to put forth sufficient evidence to permit a rational fact-finder to resolve what injuries were, in fact, caused to plaintiff Jayesh M. Raval in each of two separate accidents, we affirm.
The facts pertinent to this matter are as follows. Plaintiff Jayesh M. Raval was involved in five motor vehicle accidents over the course of thirty months.*fn1 Two of these five accidents, the December 26, 2002, and the January 27, 2003, accidents, are the basis for this lawsuit.
The first of the five accidents occurred on January 9, 2002, when plaintiff's stopped vehicle sustained two impacts to the rear. Plaintiff testified that he suffered a neck and back injury from that accident. He treated with his personal physician, Dr. Mehta, for approximately one year following this accident. As a result of the accident, he missed three or four weeks of work. Dr. Mehta testified that her presumptive diagnoses were acute lumbar radiculopathy, as noted in her progress notes, and acute cervical radiculopathy.
On December 26, 2002, plaintiff was involved in a motor vehicle accident with defendant Jhocson. Again, this accident was a rear impact collision. Following the accident, plaintiff was treated by Dr. Mehta for complaints of neck pain, headaches, back pain radiating to both of his extremities, left wrist pain, and left jaw pain. Plaintiff described the injuries from that accident as "worse than from the first accident." He also testified that "this accident made the January 9, 2002, symptoms worse." Dr. Mehta treated plaintiff. She conducted an EMG study and stated that it revealed the presence of L5-S1 radiculopathy. The doctor diagnosed cervical pain syndrome, lumbosacral pain syndrome, and left temporomandibular joint syndrome. Plaintiff missed approximately one month and one day of work following the December 26, 2002, accident.
On January 27, 2003, plaintiff was again involved in a rear impact collision, this time with defendant Paulo C. Silva. Plaintiff suffered loss of consciousness, a concussion, lower back, neck, and knee injuries. He lost approximately one-andone-half months of time from work following the accident. Plaintiff again treated with Dr. Mehta, who noted neck pain, headache, and back pain. She diagnosed plaintiff with cerebral concussion, acute cervical and lumbosacral pain syndrome, lumbar disc herniation, right knee, and cervical sprain. In April 2003, an MRI study done at the direction of Dr. Mehta showed an L5-S1 herniation, and a further MRI in September 2003 showed an L4-L5 annular tear.
On October 5, 2003, plaintiff's vehicle was again involved in an accident. This accident was a hit-and-run accident in which plaintiff was not in the car and suffered no personal injuries. On July 28, 2004, plaintiff was involved in another automobile accident, which caused injuries to his upper and lower back. He testified that he returned to Dr. Mehta and that she administered the same treatments that he had received earlier.
In December 2004, plaintiff filed a complaint against defendant Jhocson for the December 26, 2002, accident, and defendant Silva for the January 27, 2003, accident. His complaint did not allege an aggravation or exacerbation of any prior injuries.
At trial, plaintiff's counsel introduced testimony from plaintiff and his wife, and the videotaped testimony of Dr. Mehta. At the close of plaintiff's case, defendants moved for directed verdicts, arguing that plaintiff's complaint must be dismissed as a matter of law based on plaintiff's failure to provide a comparative analysis of plaintiff's physical condition before and after each of the accidents as mandated by Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993).
The trial court granted the motion, stating that it was convinced that a reasonable jury could not, under the factual construct of this case, be expected to ascribe plaintiff's alleged permanent injuries to any of the five accidents in this case. In particular, the trial court found that, based upon Dr. Mehta's testimony, any permanent injury to plaintiff could not be specifically found to have been caused by the December 26, 2002, accident or the January 27, 2003, accident. This appeal ensued.
On appeal, plaintiff argues that the trial court erred in granting the motions for directed verdicts because there was no medical evidence in the record that plaintiff had suffered a prior injury to the same body part or parts injured in the December 26, 2002, and January 27, 2003, accidents. Plaintiff further argues that the trial court erred in requiring a comparison of the injuries without that medical evidence. Plaintiff asserts that he had proved a "permanent injury" and was entitled to present his case to a jury. Lastly, plaintiff argues that he did not plead an aggravation, which also would militate against the need for a comparative study with respect to the causation of injuries. Defense counsel argue that plaintiff failed to present expert medical testimony to apportion plaintiff's neck and back injuries among the four accidents occurring from January 9, 2002, through July 28, 2004, and consequently, no rational jury could resolve what accident, in fact, caused what injury to plaintiff.
We begin our consideration of these issues by restating applicable legal principles. The standard of review, when determining whether a directed verdict was proper at the trial level, is the same as that which governs the trial court on a motion for directed verdict or a motion for summary judgment.
The Supreme Court has stated that a directed verdict is governed by the following standard:
[I]f, accepting as true all the evidence which supports the position of the party defending against the motion and according him the benefit of all inferences which can reasonably and legitimately be deduced therefrom reasonable minds could differ, the motion must be denied. [Potente v. County of Hudson, 187 N.J. 103, 111 (2006) (quotation omitted).]
The standard enunciated in Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995), is "whether the evidence presents a sufficient disagreement to require submission to the jury or whether it is so one-sided that one party must prevail as a matter of a law."
"Upon appellate review of summary judgment, we apply the same standard as the trial court, and, in effect, exercise de novo review." Bennett v. Lugo, 368 N.J. Super. 466, 479 (App. Div.) (citing Prudential Property Ins. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998)), certif. denied, 180 N.J. 457 (2004). Consequently, a "trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference." Manalapan Realty, L.P. v. Twp. Comm., 140 N.J. 366, 378 (1995).
N.J.S.A. 39:6A-8(a) provides that an individual who was in an automobile accident and is subject to the limitation on lawsuit option may recover non-economic losses if he or she suffers a "permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement." The statute provides that an injury is considered permanent "when the body part or organ, or both, have not healed to function normally and will not heal to function normally with further medical treatment." Ibid. A complaint for relief under this statute requires an accompanying certification from a physician that the plaintiff has suffered a permanent injury and this certification must be based on or refer to objective clinical evidence.
Prior to the adoption of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-1.1 to -35, a plaintiff was required to produce comparative medical analysis for claims based on aggravation of a pre-existing injury or condition. See Polk, supra, 268 N.J. Super. 568.
In Davidson v. Slater, 189 N.J. 166, 184 (2007), the Supreme Court addressed the issue of whether a Polk comparative analysis in connection with a plaintiff's verbal threshold demonstration has continuing relevance following the amendments to N.J.S.A. 39:6A-8(a). The Court concluded "[t]he 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." Ibid. "It is fundamental that in order to impose tort liability upon a defendant, a plaintiff must prove the defendant's wrongful conduct, injury and proximate cause." Thorn v. Travel Care, Inc., 296 N.J. Super. 341, 346 (App. Div. 1997). In this case, both defendants have conceded they were negligent, but have not conceded proximate cause and damages. Plaintiff then "has the burden of proving by a preponderance of the evidence that a defendant's negligent conduct is a cause-in-fact of plaintiff's injury." Ibid.
In Reynolds v. Gonzales, 172 N.J. 266, 284 (2002), the Court explained that
[o]ne of the underlying principles of tort law is that "an actor's conduct must not only be tortious in character but also must be the legal cause of the invasion of another's interest." Restatement (Second) of Torts § 9 comment a (1965). It follows from that principle that the issue of a defendant's liability cannot be presented to the jury simply because there is some evidence of negligence. "There must be evidence or reasonable inferences therefrom showing a proximate causal relation between defendant's negligence, if found by the jury," and the resulting injury. Germann v. Matriss, 55 N.J. 193, 205 (1970).
In Fedorczyk v. Caribbean Cruise Lines, Ltd., 82 F.3d 69, 75 (3rd Cir. 1996), the court in reviewing the evidence presented in a negligence action, and in particular the cause of the incident stated:
Without such evidence, the jury is left to speculate whether [defendant's] negligence was the cause in fact of [plaintiff's] injury. "A mere possibility of causation is not enough; and when the matter remains one of pure speculation or conjecture, or the probabilities are at best evenly balanced, it becomes the duty of the court to direct a verdict for the defendant." Restatement (Second) of Torts § 433B (1965).
In Davidson, the Court discussed the need for comparative medical evidence where a plaintiff has pled aggravation of an injury to the same body part. The Court stated clearly that under general principles of negligence, plaintiff would have the burden of demonstrating, through comparative medical evidence, the injuries that are allegedly permanent as a result of the subject accident. Davidson, supra, 189 N.J. at 185.
The Court also recognized that there will be times when a plaintiff does not plead aggravation of pre-existing injuries, but there have been earlier injuries to the same body part. Id. at 186. In those situations, the Court stated "a plaintiff need not produce affirmative medical evidence segregating what plaintiff considers to be non-causes of the alleged injury in order to avoid a directed verdict under N.J.S.A. 39:6A-6(a)'s express standards." Id. at 187. However, the Court also went on to warn plaintiffs that:
[w]e presume that defendants routinely will inquire during discovery about a plaintiff's prior injuries. In respect of the element of causation specifically, a plaintiff will risk dismissal on summary judgment if the defendant can show that no reasonable fact-finder could conclude that the defendant's negligence caused plaintiff's alleged permanent injury. Thus, the plaintiff who does not prepare for comparative medical evidence is at risk of failing to raise a jury-worthy factual issue about whether the subject accident caused the injuries. At the very least, plaintiff will be forced to address causation before the fact-finder and properly may be held to the theory of the case as pled. [Id. at 188 (internal citations omitted).]
We perceive no reason why the Court's warning concerning summary judgment is not equally applicable to motions for a directed verdict.
Applying these principles to plaintiff's argument, we find, first of all, that there was medical evidence that plaintiff suffered a prior injury to the back and neck, in the January 9, 2002, accident. Dr. Mehta testified that plaintiff in the January 9, 2002, accident suffered acute lumbosacral and cervical radiculopathy, and plaintiff himself testified that his neck and back were injured in that accident. Plaintiff alleges his back and neck were injured in the December 26, 2002, and January 27, 2003, accident as well. All parties acknowledge that the December 26, 2002, and January 27, 2003, accidents involve claimed injuries to the neck and back. Consequently, the general principles of tort law and the analysis in Davidson must be reviewed to determine whether a comparative analysis was necessary.
Plaintiff argues that because he did not specifically plead an aggravation or exacerbation case, that Davidson does not require a comparative analysis. Davidson makes it clear, however, that general tort principles apply in these cases. It is a well-settled principle that cause-in-fact is not presumed, nor may it be the subject of speculation. In order to successfully oppose a directed verdict motion, there must be competent proof such that a jury could, after giving plaintiff all reasonable inferences from the proofs submitted, conclude that the accident at issue caused a specific injury.
Moreover, the Davidson Court clearly advised plaintiffs to anticipate the need for comparative analysis in multiple accident cases when it stated that a plaintiff will risk dismissal on summary judgment if defendant can show no reasonable fact-finder could conclude that defendant's negligence caused plaintiff's alleged permanent injury. Davidson, supra, 189 N.J. at 188. The same risk is assumed in a motion for a directed verdict setting.
We agree with the analysis in Hardison v. King, 381 N.J. Super. 129, 137 (2005), that the need for a plaintiff to put forth comparative evidence when aggravation is not being claimed, should not be dependent on any automatic application of Polk or the pleadings. "Instead, the necessity for comparative evidence should depend upon whether the factual construct by the moving papers calls into question whether any reasonable jury could find that plaintiff incurred a permanent injury resulting from the subject automobile accident." Ibid.
That is the exact situation that we face in this case. Plaintiff has not specifically pled aggravation, but the factual construct is such that plaintiff clearly had an injury to the same body parts, apparently arising from four separate accidents. Unfortunately for plaintiff, plaintiff's doctor at trial was not able to perform a comparative analysis to demonstrate what injuries to plaintiff's neck and back were attributable to each of the accidents at issue. Consequently, at the end of plaintiff's case, there was no proof of cause-in-fact as to what injuries plaintiff sustained from the two accidents at issue. The jury, therefore, would have been purely speculating or conjecturing as to what injury was caused by each accident.
Claims under N.J.S.A. 39:6A-8 are founded on traditional principles of causation. Given the factual construct in this case, traditional principles of causation require a comparative analysis, for without such an analysis, a rational fact-finder could not resolve which, if any, of plaintiff's alleged injuries for which defendant is responsible. Therefore, we affirm the directed verdict entered in this case in favor of defendants.