Burden of Proof for Personal Injury Lawsuits Involving Injuries from a Car Crash

Bakely v. Katz

Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.

This case reaffirms the need for anybody bringing a lawsuit for injuries sustained from a car crash to carry their “burden of proof” regarding permanent injury.  The law requires Injury law suit claimants must have their treating doctors communicate in a report:

  1. the “permanent” nature of the injuries under New Jersey’s Verbal Threshold statute,
  2. the causal relationship between the injury and a car accident,
  3. and if there is a exacerbation of a pre-existing condition the doctor has to lay out in clear detail the increased physical problem, the permanency of same, and how that aggravation is also causally related to the car accident.

Although these are long-standing legal theories and standards supported by the caselaw and statute it appears that this plaintiff was not able to carry the day at the summary judgment procedural level. The court dismissed plaintiff’s claim after the defense attorney filed a motion for summary judgment because the discovery window has closed and the evidence was not provided during the discovery time period.

The trial court rejected the plaintiff’s treating doctors certification, reviewed all plaintiff’s medical records, and concluded that no doctor provided an opinion ‘within a reasonable degree of medical probability’ that the claimant suffered a permanent injury proved by objective testing. The judge also found that because the plaintiff alleged a aggravation of a pre-existing condition, the doctor’s failure to outline the nature and extent of the aggravation of the pre-existing condition also was a fatal mistake which required the court to dismiss the case as a matter of law.

NJSA 39: 6A – 8(a) is the New Jersey automobile insurance statute that establishes the need for a claimant bringing a personal injury case to prove that his or her injuries are permanent by way of objective medical evidence and certification from a doctor.  Although this New Jersey automobile insurance law has been revised over the years the credible objective medical evidence standard was initially pronounced and Oswin v. Shaw, 129 NJ  290 (1992). See also the DiProspero V. Penn 183 NJ 477 (2005).   Both of these cases outline the necessity of a plaintiff to provide objective evidence “derived from acceptable diagnostic testing”  and cannot be based entirely upon the subject of plaintiff’s responses. In addition this objective evidence cannot be provided by diagnostic or medical testing which is experimental in nature or dependent entirely upon subjective patient responses.

After reviewing the plaintiff’s medical records and the physician’s certification the trial court found the plaintiff failed to overcome this evidentiary threshold. The appellate division affirmed and agreed with the trial judge’s evaluation.
Jeffrey S. Hark, Esq.
609-471-1959. Cell
856-354-0050 Office

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