How do I prove I suffered a permanent injury by way of credible competent medical evidence during discovery or at the time of trial?
KRZAK, v. FASO, SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION Decided March 5, 2019 (Unreported Appellate Division Case)
Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.
There are several serious issues in this case. The first and foremost is one of credibility and being prepared. What is credibility in the personal injury setting?? It is having your client or witness prepared for his testimony, have your doctor review ALL the pre and post crash medical records of the person s/he is examining, and preparing your client for truthful and direct testimony a) in his/her interrogatories, b) during any and all medical examinations, and c) at the time of any deposition testimony. This appellate division case goes through all the inconsistencies plaintiff made during all of his medical appointments, his expert examination (by his own doctor) as well as the doctor’s own mistakes!!! This witness was just not properly prepared for his case.
On the other hand, the defense doctor(s), who are all paid handsomely by the insurance companies, took the time to painstakingly go through all of the plaintiff’s current and pre-crash medical records. The doctor was well prepared with all those prior and post crash medical records when he examined the plaintiff in his office. As a result, between the doctor being thoroughly prepared, and the plaintiff NOT being prepared at all, the plaintiff’s inconsistencies became glaring problems that doomed his credibility.
The other primary failure of this crash case was that the plaintiff did not suffer any permanent injury. There was no objective medical evidence presented which Dr. Barr testified, and the jury believed, which was permanent a related to the date of loss within a reasonable degree of medical certainty. As a result, the jury’s verdict will stand.
What is the “Verbal Threshold”
The verbal threshold “is a cost-containment measure that provides lower premium payments in exchange for a limitation on the insured’s right to sue for noneconomic damages.” Agha v. Feiner, 198 N.J. 50, 60 (2009) (citing DiProspero v. Penn, 183 N.J. 477, 480-81 (2005)). Plaintiffs subject to the verbal threshold are not eligible to recover noneconomic damages such as pain and suffering, impairment, disability, and loss of enjoyment of life, unless they have “sustained 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” as a result of an automobile accident. N.J.S.A. 39:6A-8(a). An injury is permanent if it “has not healed to function normally and will not heal to function normally with further medical treatment.” Ibid. In order to vault the threshold, plaintiff must prove he suffered a permanent injury through objective, credible medical evidence. Agha, 198 N.J. at 60-61. Objective proof means the injury must be verified by physical examination or medical testing and cannot be based solely upon the plaintiff’s subjective complaints. Ibid. “Thus, subjective tests, such as those that evaluate range of motion, will not suffice.” Id. at 60 (citing Davidson v. Slater, 189 N.J. 166, 190 (2007)).
What is a Motion in Lmine?
A Motion in Limine is a motion filed prior to trial requesting the trial judge make a ruling on a piece of evidence either party intends to present to the jury. These motions usually deal with photographs, or materials to be presented to the jury as evidence. Obviously a party filing a motion to bar certain evidence may believe it is too prejudicial to their position. Often times parties will file Motions in Limine to Bar another party’s expert from testifying at the time of trial on the eve of trial because their expert opinion is a Net Opinion. I have written numerous blogs on recent cases which have been addressing the net opinions decisions in the courts in New Jersey. However, the issue this case address is the timing of such motion.
This appellate panel states:
“It is well-established that “in limine” motions that are summary judgment motions in disguise have been repeatedly condemned. Seoung Ouk Cho v. Trinitas Reg’l Med. Ctr., 443 N.J. Super. 461, 470-74 (App. Div. 2015). “Our court rules simply do not countenance the practice of filing dispositive motions on the eve of or at the time of trial.” L.C. v. M.A.J., 451 N.J. Super. 408, 411 (App. Div. 2017). A motion in limine filed on the eve of trial “is permissible only when it addresses preliminary or evidentiary issues.” Ibid. Even in that instance, those applications are disfavored and should be heard only sparingly. Ibid. (citations omitted). A motion in limine is not a “summary judgment motion that happens to be filed on the eve of trial. When granting a motion will result in . . . the suppression of a defendant’s defenses, the motion is subject to Rule 4:46, the rule that governs summary judgment motions.” Cho, 443 N.J. Super. at 471. The motion must comply with all of the timelines applicable to summary judgment motions. Ibid. Motions made pursuant to Rule 4:40 will be granted “only if, accepting as true all evidence supporting the party opposing the motion and according that party the benefit of all favorable inferences, reasonable minds could not differ.” Edwards v. Walsh, 397 N.J. Super. 567, 571 (App. Div. 2007) (citing Dolson v. Anastasia, 55 N.J. 2, 5 (1969)). “The point is that the judicial function here is quite a mechanical one. The trial court is not concerned with the worth, nature or extent (beyond a scintilla) of the evidence, but only with its existence, viewed most favorably to the party opposing the motion.”