Defense Digest

A Comparative Analysis Is Not Required Under AICRA Unless Aggravation Of Pre-Existing Injuries Is Pled As A Cause Of Action

On January 30, 2007, the New Jersey Supreme Court released its decision in Davidson v. Slater, 189 N.J. 166, thereby resolving a split in the Appellate Division regarding the continued validity of the comparative analysis requirement following the enactment of AICRA.

Before AICRA and its current iteration of the verbal threshold was enacted, an automobile accident victim seeking to sue for bodily injury non-economic damages had to vault an earlier version of the threshold. Suit was permitted for nine enumerated categories of injuries. To prevail, a plaintiff was required to show "objective, credible evidence" of an injury enumerated in the statute and that the injury was the cause of a serious impact on the plaintiff's life. Oswin v. Shaw, 250 N.J. 290 (1992).

In Polk v. Daconceicao, 268 N.J. Super. 568 (App.Div. 1993), the plaintiff claimed that his pre-existing hip injury and arthritic condition were aggravated in an automobile accident. The trial court granted the defendant's motion for summary judgment on the basis that the plaintiff failed to clear the No-Fault Act's verbal threshold, and the Appellate Division affirmed.

Following Polk, courts had dismissed automobile accident actions alleging aggravation of pre-existing injuries when the plaintiff failed to produce a comparative analysis. Sherry v. Buonansonti, 287 N.J. Super. 518 (App.Div.1996). Following the court's decisions in DiProspero and Serrano, several different panels addressed the continued viability of Polk.

In Lucky v. Holland, 380 N.J. Super. 566 (App. Div. 2005), an appellate panel held that Polk's comparative analysis remains necessary post-AICRA whenever a plaintiff alleges injuries to body parts that previously had been injured. The court in Lucky argued that the plaintiff failed to provide sufficient comparative analysis as required by Polk, comparing the residual injuries prior to the present accident with those suffered in the present accident.

Several days after Lucky, another appellate panel held in Davidson v. Slater, 381 N.J. Super. 22 (App. Div. 2005) that a comparative analysis was never required, whether aggravation of a prior injury is pled or not. The Davidson panel found that Polk's comparative analysis requirement likely was no longer viable in the context of verbal threshold motions in light of DiProspero and Serrano, whether aggravation of a prior injury is alleged or not.

A third panel then held in Hardison v. King, 381 N.J. Super. 129 (App.Div.2005) that, while AICRA's elimination of a "serious impact" requirement undercut the validity for a comparative analysis in most situations, there would be certain times when a comparative analysis is required to demonstrate objective proof of a permanent injury. The panel found that requiring a plaintiff, in a non-aggravation pled case, invariably to produce a comparative analysis in response to a defendant's verbal threshold motion "represented an expansion of a plaintiff's obligations under normal summary judgment requirements."

In Davidson, the Supreme Court resolved the split by holding that when a plaintiff alleges aggravation of a pre-existing condition as the vehicle for recovery, then the plaintiff will be required to provide a comparative analysis to proceed. Where, however, a plaintiff does not plead aggravation of a pre-existing injury, a comparative analysis is not required to survive a defense motion for summary judgment, unless no reasonable fact-finder could conclude that the plaintiff sustained a permanent injury in the accident at issue.

While it may appear at first blush that this is a remarkably pro-plaintiff ruling, the Court added several important caveats. Acknowledging that "the rub comes when a plaintiff does not plead aggravation of pre-existing injuries, but there have been other injuries to the body part," the Court held that 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 the plaintiff's alleged permanent injury; therefore, a 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. Moreover, at the very least, the plaintiff will be forced to address causation before the fact finder and will be held to the theory of the case as pled.

Lastly, the Court noted that parties are ordinarily limited in their proofs at trial to issues as set forth in pleadings and pre-trial orders and that courts generally disfavor late attempts by plaintiffs to change the theory of the cause of action.

The Supreme Court, therefore, has taken the middle road between the Appellate Division's decisions in Lucky and Davidson. Rather than require a comparative analysis from every automobile accident plaintiff who has a prior injury to the body part allegedly injured, the Court requires the plaintiff to produce a comparative analysis as an element of the cause of action only when aggravation is alleged. When the plaintiff does not allege aggravation, he does so at his peril, as the Court's holding recognizes the defendant's right to allege, as an affirmative defense, that the plaintiff's claimed injuries were not caused by the defendant's negligent conduct. If the defendant can demonstrate in a summary judgment motion that there was no demonstrable difference between the plaintiff's objective medical evidence before and after the accident, the case will be dismissed.

Lastly, the Court's ruling makes clear that a plaintiff who does not plead aggravation in order to avoid the requirement of producing a comparative analysis will not be permitted to allege aggravation at trial – thereby greatly weakening the credibility of the plaintiff and his medical experts when confronted with evidence of prior injuries to the same body part.

This case is certain to generate future litigation on how specifically a plaintiff must plead his cause of action. Although New Jersey is a Notice Pleading state, the Court's holding appears to indicate that a plaintiff must now plead with specificity. Additionally, the scope of permissible testimony at trial will become an issue likely to be litigated, as courts will certainly be faced with plaintiffs who testify in a manner inconsistent with that which they pled. From a defense standpoint, it will be in the interests of practitioners to lock plaintiffs in to the theory of the case initially, but also to establish that the plaintiff's claimed injuries were not caused by the defendant's negligence. While this ruling may make it easier for a plaintiff to advance to a jury, it restricts the latitude a plaintiff previously enjoyed at trial in cases involving injury to a previously injured body part.

*Kevin is an associate in the firm's Cherry Hill, New Jersey, office and can be reached at (856) 414-6406 or kmmcgoldrick@mdwcg.com.