New Jersey Supreme Court Significantly Weakens the Verbal Threshold Defense and the Appellate Division Puts Into Question Plaintiff's Burden of Proof
December, 2005
The Supreme Court of New Jersey recently held that following an automobile accident, Plaintiffs subject to the “Limitation on Lawsuit” or “Verbal” Threshold, no longer need to show that they have suffered a serious impact in their lives in order to recover non-economic damages. DiProspero v. Penn, 183 N.J. 477 (2005). In DiProspero, Plaintiff was involved in an automobile accident. As a result of the accident, Plaintiff was diagnosed with TMJ dysfunction and a strain/sprain injury that was accompanied by ligamentous instability, myofascitis and localized evidence of nerve root irritation. Plaintiff also underwent Magnetic Resonance Imaging (MRI) scans that showed that Plaintiff’s discs were bulging.
After the accident, Plaintiff’s lifestyle changed. She had difficulty chewing hard foods and had to reduce her vigorous three-day-a-week regimen at the gym to light workouts three times per month. She experienced soreness in her back and neck when exercising and pain while sitting in her college classes.
Plaintiff filed a Complaint against Defendants, driver and owner of the other vehicle involved in the accident. In the Complaint, Plaintiff alleged, among other things, pain and suffering as a result of permanent injuries that “had not healed to function normally and will not heal to function normally with further medical treatment.”
After the completion of discovery, Defendants moved for summary judgment on the ground that there was no evidence that Plaintiff’s injuries had a “serious impact” on her life and, therefore, her suit was barred by the Limitation on Lawsuit Threshold. The trial court agreed and granted Defendants’ motion.
Plaintiff appealed, arguing that since the passing of the Automobile Insurance Cost Reduction Act (AICRA), N.J.S.A. 39:6A-8(a), Plaintiffs no longer need to satisfy the “serious impact” test. In an unpublished decision with one Judge dissenting, the Appellate Division affirmed the grant of summary judgment citing James v. Torres, 354 N.J. Super. 586 (App. Div. 2002) and Rios v. Szivos, 354 N.J. Super. 578 (App. Div. 2002). The dissenting Judge, however, applied the analysis used in Compere v. Collins, 352 N.J. Super. 200 (Law Div. 2002), in which a Law Division Judge concluded that the language and legislative history of AICRA revealed that the “serious life impact” standard did not apply to the Limitation on Lawsuit Threshold.
Based on the dissenting opinion, Plaintiff appealed to the Supreme Court of New Jersey which reversed the Appellate Division. In making its decision, the New Jersey Supreme Court engaged in an extensive analysis of AICRA’s legislative history. The Court began its analysis with the plain language of the Statute. The Statute requires a Plaintiff to prove that the Defendant caused a “bodily injury which results in death; dismemberment; significant disfigurement or significant scarring; displaced fractures; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.” See N.J.S.A. 39:6A-8(a). The Statute further provides that “an injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment.” Id.
The DiProspero Court held that the statutory language was plain and unambiguous, it placed no burden on Plaintiff other than to prove that the injury met one of the six (6) threshold categories and did not include a serious life impact requirement. DiProspero at 506. The Court reasoned that based on the thoroughness of the Committee that had reviewed the different options for revising the Verbal Threshold, the Court could not presume that in developing a Threshold “with teeth,” the committee members did not consider the pre-existing serious life impact standard. DiProspero at 505.
Following the DiProspero decision, the defense bar began to concentrate its efforts on the “Polk Analysis” as a means to defeat Plaintiffs’ personal injury lawsuits. In Polk v. Daconceicao, 268 N.J. Super. 568 (App. Div. 1993), the Appellate Division held that “a diagnosis of aggravation of a pre-existing injury or condition must be based upon a comparative analysis of the plaintiff’s residuals prior to the accident with the injuries suffered in the automobile accident at issue.” Id. at 575.
While the Polk decision pre-dated the passage of AICRA, in Bennet v. Lugo, 368 N.J. Super. 466 (App. Div. 2004), the Appellate Division held that the Polk analysis was still required after AICRA. Moreover, even after the DiProspero decision, as recently as October 12, 2005, the Appellate Division in Lucky v. Holland, 380 N.J. Super. 566 (App. Div. 2005), continued to uphold the requirement of the Polk analysis. However, on October 20, 2005, a different three-Judge panel in the Appellate Division issued an opinion in Davidson v. Slater, 381 N.J. Super. 22 (App. Div. 2005), holding that the Polk analysis was no longer required under AICRA. In arriving at this conclusion, the Davidson Court relied on DiProspero holding that a Plaintiff is only required to prove one of the six (6) statutorily defined threshold categories.
Learning Point:
As long as Plaintiffs can show that they have sustained one of the six injuries listed in AICRA, they no longer need to show that the injury has caused a significant impact on their lives. In cases where a Plaintiff is alleging an aggravation of a pre-existing injury, the Appellate Division is divided as to the necessity of a comparative analysis. Until the New Jersey Supreme Court addresses this issue, the defense bar will continue to argue that the requirement of a Polk analysis is still a viable defense. •
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