ROBERT B. SPAWN reports on a recent unpublished decision from the Superior Court of New Jersey, Appellate Division.
In a recent New Jersey case, a Defendant stipulated to liability for causing a November 2012 rear-end collision in which a Plaintiff was injured. Plaintiff conceded that he was subject to New Jersey’s “verbal threshold” law (N.J.S.A. 39:6A-8(a)), meaning that, in order to recover, Plaintiff would have to prove, by a preponderance of the evidence, that he sustained a permanent injury caused by the November 2012 collision. Accordingly, during trial, the parties disputed the cause and extent of the injuries to Plaintiff’s cervical spine, left shoulder, and lumbar spine. Plaintiff expectedly claimed that his injuries were caused by the November 2012 accident (and were permanent), and further claimed that his injuries “had not healed to function normally and would not heal to function normally with further medical treatment.” Defendant, on the other hand, claimed that he (Defendant) was exempt from liability for noneconomic loss because Plaintiff had suffered no permanent injuries as a result of the collision.
Although Plaintiff claimed at trial that the injuries he had suffered to his neck and lower back in a 2007 work accident were not affecting him at the time of the November 2012 motor vehicle accident, the trial court nonetheless ruled that Defendant’s attorney could cross-examine Plaintiff’s medical expert (who was also Plaintiff’s treating physician) about the 2007 work accident and the corresponding workers’ compensation claim. More specifically, Plaintiff’s medical expert had previously written a report for the 2007 claim in which he opined as to the percent of partial permanent disability Plaintiff had suffered to his cervical and lumbar spine as a result of the work accident, and the trial court ruled that the prior report was a proper subject for cross-examination.
On cross-examination, Plaintiff’s medical expert explained that, in workers’ compensation cases, he was required to opine on a percentage of injury to a specific body part. Plaintiff’s expert also explained that he was not required to make a similar percentage determination in vehicular accident cases (i.e., the instant matter). Plaintiff’s expert then testified that he had found a fifty-five percent permanent partial disability of Plaintiff’s cervical spine, left shoulder, and lumbar spine as a result of the 2007 workers’ compensation accident. Based largely on this testimony regarding the permanency of Plaintiff’s 2007 injuries, the jury found that Plaintiff did not sustain a permanent injury as a result of the November 2012 collision.
Plaintiff appealed, and argued that the testimony regarding percentages of partial permanent disability in connection with the 2007 workers’ compensation claim misled and confused the jury. Plaintiff further contended that the percentages of disability applicable to a workers’ compensation claim had no bearing on the verbal threshold issue the parties were litigating at trial. The Appellate Division disagreed, and found that the partial permanent disability Plaintiff had suffered to his neck and back in the work accident arguably had probative value that outweighed the risk of undue prejudice. The Appellate Division noted that, while it would have been preferable for the trial court to bar Defendant’s attorney from asking Plaintiff’s expert about specific percentages of partial permanent disability related to the 2007 accident, the admission of such testimony was a harmless error that did not affect the outcome of the case. Indeed, the Appellate Division stated that, while the better course would have been to confine questioning to the expert’s opinion that Plaintiff had previously suffered permanent injuries (without any reference to percentages), the expert had nonetheless provided the jury with a clear explanation of the difference in terminology and criteria between workers’ compensation cases and verbal threshold cases. As such, the Appellate Division upheld the jury verdict of “no cause,” and Plaintiff’s personal injury claim was dismissed.
Please contact Robert B. Spawn if you have any questions or need assistance in connection with this subject.