Personal Injury Law: In A Case of Preexisting Injury, A Plaintiff Is Required to Prove Exacerbation

In Sim Hwang v. Saune Gordon

Docket No.: A-3434-19

Decided January 14, 2022

Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark

In a recent unpublished decision, the Appellate Division reversed a dismissal of plaintiff’s complaint on summary judgment for an alleged failure to plead exacerbation and then provide evidence of the exacerbation.

In Hwang., Plaintiff has been involved in four motor vehicle accidents: one in 1997 (the 1997 accident), one in 2011 (the 2011 accident), one on February 22, 2017 (the subject accident), and one on December 16, 2017 (the later accident).

Plaintiff alleges that on February 22, 2017, while driving southbound on Route 9W in Piermont, New York, a car driven by defendant Shaune M. Gordon (defendant), and owned by defendant Financial Pacific LSN, Inc., struck plaintiff’s stopped car from behind, pushing her vehicle “approximately 100 [to] 150 feet from [the] point of impact.”

While plaintiff acknowledged she previously received “treatment for injuries, and had surgery, to her lumbar and cervical spine,” she did not assert a claim that the subject accident aggravated any previously sustained injuries.

During discovery, plaintiff produced reports from two doctors: Dr. Marc S. Arginteanu, a neurosurgeon, and Dr. Sanford R. Wert, an orthopedic surgeon. Dr. Arginteanu addressed plaintiff’s spinal injuries, while Dr. Wert described plaintiff’s shoulder injuries.

Defendant produced no report of their own. Instead, they moved for summary judgment, arguing plaintiff failed to plead and prove exacerbation of her injuries. The trial court agreed and dismissed plaintiff’s complaint.

Plaintiff appealed and the Appellate Division reversed, finding that plaintiff did not plead exacerbation and thus did not have to prove that her conditions worsened. Instead, her reports submitted showed that she suffered new injuries and required new surgeries as a result of the crash. What’s more, even if plaintiff could not prove and differentiate injuries from two separate accidents, the innocent plaintiff is not barred from recovery, especially when defendant did not provide a report of their own arguing such differentiation.

This case is important to understand that in a case of pre existing injury, a plaintiff is required to prove exacerbation. That is, show, via expert medical opinion, that by review of medical records previously obtained from the first accident that the plaintiff’s condition has significantly worsened as a result of the subsequent accident.

This was not the case here, however, as although the plaintiff was injured previously, she claimed a new permanent injury as a result of the subsequent crash and not an exacerbation. Therefore, no comparative review was necessary. What’s more defense counsel produced no expert report of their own to rebut the plaintiff’s, so summary judgment was improper and the case is to be heard by a jury.

If you or someone you know has been, injured in a car accident, truck crash, or slip and fall, call the experienced personal injury attorneys at Hark & Hark today. For personal injury matters, no money is paid up front, and fees are only collected if a recovery is made. At Hark & Hark, we represent clients for any case in any county in New Jersey Atlantic County, Bergen County, Burlington County, Camden County, Cape May County, Cumberland County, Essex County, Gloucester County, Hudson County, Hunterdon County, Mercer County, Middlesex County, Monmouth County, Morris County, Ocean County, Passaic County, Salem County, Somerset County, Sussex County, Union County, and Warren County and any town including Newark, Jersey City, Paterson, Elizabeth, Edison, Woodbridge, Lakewood, Toms River, Hamilton, Trenton, Clifton, Camden, Brick, Cherry Hill, Passaic, Middletown, Union City, Old Bridge, Gloucester Township, East Orange, Bayonne, Franklin Township, North Bergen, Vineland, and Union.


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Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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