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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
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 ...