Aggravated Preexisting Condition Award Requires Reasonable Medical Probability
Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark
36-2-3756 Yavuz v. Drury, App. Div.
A jury awarded plaintiff Bulent Yavuz $30,000 and plaintiff Samiye Gulderen Yavuz $80,000 in damages.
Aggravation of a Preexisting Condition
Defendants had conceded liability and the matter was tried on the issue of damages only. Both plaintiffs appeal, contending the trial judge erred in failing to charge on aggravation of a preexisting condition.
Plaintiff wanted the court to give the jury the Model Jury Charge 8.11(F) addressing the aggregation of a preexisting medical condition. However, the trial court and the appellate court ruled, because plaintiff did not provide to the jury medical evidence regarding any exacerbation of any preexisting medical condition proximately related to the accident the charge would be in appropriate. Both courts found neither plaintiff’s doctors nor defendant’s medical expert witnesses testified, within a reasonable degree of medical probability, the accident caused one or both plaintiffs to suffer an aggravation of a preexisting condition.
Reasonable Medical Probability
The appellate panel affirms the judgment memorializing the jury verdict and denying plaintiffs’ motion for a new trial. When an expert provides an opinion about medical causation, his testimony “must be couched in terms of reasonable medical probability; opinions as to possibility are inadmissible.” Eckert v. Rumsey Park Associates, 294 N.J. Super. 46, 50 (App.Div. 1996), certif. denied, 147 N.J. 579 (1997) (citing Johnesee v. Stop & Shop Cos., 174 N.J. Super. 426 (App. Div. 1980)).
While we recognize it is not necessary for a medical expert to use the “talismanic” or “magical words” represented by the phrase “reasonable degree of medical certainty,” Eckert, supra, 294 N.J. Super. at 51 (citing Aspiazu v. Orgera, 205 Conn. 623, 632 (1987)), nevertheless, a party must provide testimony that establishes the necessary medical causal relationship between a preexisting condition and an accident before a court can charge aggravation of a preexisting condition.