Degenerative And Pre-Existing Conditions

In Sherry v. Buonansonti, 287 N.J. Super. 518, 521-523 (App. Div.), certif. denied, 144 N.J. 588 (1996), a pre-AICRA case, there is a suggestion that a subsequent injury may require a Polk analysis. The Appellate Division also extended the comparative analysis requirement. In Sherry, the Appellate Division held that a comparative analysis is triggered by the mere existence of a prior injury, not by a specific claim of aggravation to that injury. Ibid.; affirmed by Bennett v. Lugo, 368 N.J. Super. 473 (App. Div. 2004), certif. denied, 180 N.J. 457 (2004). In Bennett, the Court stated that “a Polk analysis is required to differentiate a subsequent injury to a body part that was previously injured whether aggravation of the prior injury is alleged of not. Comparative analysis is required whenever previous injury to the same body part is involved.” Ibid. A comparative analysis consists of “an evaluation of the medical records of the patient prior to the trauma with the objective medical evidence existent post-trauma.” Ibid at 472.

But, a physician’s bare conclusion without knowledge of all of the medical facts is not enough to vault plaintiffs over the lawsuit threshold. As the court explained in Polk, “An expert opinion needs supporting objective data and discussion where the expert claims a cause-and-effect relationship between a patient’s subjective complaints and a traumatic event.” Polk 268 N.J. Super. at 575 citing Buckelew v. Grossbard 87 N.J. 512, 524 (1981).

The comparative analysis requirement has continued application to claims filed under the AICRA-amended verbal threshold. A comparative analysis goes to the proof of causation of the alleged injuries, when injuries are alleged to a body part previously or affected by degenerative disease.

In a case where a plaintiff has a pre-existing condition or prior accident, it is axiomatic that she must then prove that the claimed injuries were the result of the defendant’s negligence. The Court in Davidson v. Slater, 189 N.J. 166, explained as follows:

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.

We reviewed proximate cause-of-injury principles in Reynolds v. Gonzalez, 172 N.J. 266 (2002), and explained the fundamental aspects of the burden of production that a plaintiff bears.

One of the underlying principles of tort law is that “an actor’s conduct must not only be tortious in character but it must also be a legal cause of the invasion of another’s interest.” Restatement (Second) of Torts  § 9 cmt. a (1965) (Restatement). 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,  260 A.2d 825 (1970). 

Similarly, Prosser and Keeton on the Law of Torts states that:

[t]he plaintiff must introduce evidence which affords a reasonable basis for the conclusion that it is more likely than not that the conduct of the defendant was a cause in fact of the result. A mere possibility of such 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.

[W. Page Keeton et. al., Prosser & Keeton on the Law of Torts, § 41, at 269 (5th ed. 1984) (Prosser & Keeton).] [Id. at 284.]

As to how a plaintiff can prove a permanent injury, the Davidson Court explained:

Medical tests on which plaintiff’s objective medical proofs can rest “may not be experimental in nature or dependent entirely upon subjective patient response,” and any diagnostic tests must be “administered in accordance with” N.J.S.A. 39:6A-4.7. See N.J.A.C. 11:3-4.5. The provisions requiring valid diagnostic procedures “were intended to ensure that only honest and reliable medical evidence and testing procedures would be introduced to prove that an injury meets the threshold.” DiProspero, 83 N.J. at 489.

With respect to 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. See Brill, 142 N.J. at 540; Hardison, 381 N.J. Super. at 137. Davidson v. Slater, 189 N.J. 166 (2007).

In Sherry, the Court stated:

In our view, a sign "suggestive of degeneration" does not meet the requirement of objective, credible evidence of injury … and is insufficient to support plaintiff's subjective complaints.

The Court in Sherry ruled that the plaintiff’s Complaint should have been dismissed based on failure to satisfy the verbal threshold, since the plaintiff’s doctor failed to base a diagnosis of aggravation of a pre-existing or subsequent injury upon a comparative analysis of the plaintiff’s residuals prior to and subsequent to the accident with the injuries suffered in the accident at issue. Sherry, 287 N.J. Super. at 522-23.