What did my attorney do to get my case dismissed?
Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.
The second key part of this case (New Jersey Peek v Luo) is the attorney not knowing that he did not have the proper objective credible medical evidence during the discovery time period.
The Importance of Objective Credible Medical Evidence
In other words, why didn’t the attorney’s office communicate on a regular basis with his client about the nature and extent of his treatment, recovery, and expert’s opinions regarding permanency based on New Jersey case law.
The attorney argued in his appeal and his initial motion to reconsider that this was his first verbal threshold case. As a result, he was not aware of the need for “credible medical evidence” of a “permanent injury”. The court reviewed the case law regarding this issue. The court found that the plaintiff’s attorney did not provide an adequate argument to be relieved from the final order or judgment, in this case the Motion for Summary Judgment. The attorney did not provide the court with “mistake or inadvertence”, “newly discovered evidence, fraud, or any other reason justifying relief from the operation of the judgment.” There is also a catchall equity argument that could be made to protect plaintiffs from their attorneys’ mistakes. The court did not except this argument either. In other words, this attorney did not provide the court with exceptional circumstances which could not but will be easily categorized as any of the following issues.
The appellate court reviewed the judge’s denial of the motion to reconsider and concluded that the lower court was correct to not allow the plaintiff to survive the summary judgment motion. The appellate court ruled the attorney was attempting to seek a “second bite of the apple” due to his attorney’s initial error. The error being the deficient verbal threshold certification and failure to obtain the proper medical documentation from the treating doctor during the discovery time. The appellate court was not going to allow the attorney to supplement the record with new wholly discoverable evidence after the discovery window had closed!
I would argue at this time that the plaintiff’s attorney failed to properly communicate with his client, monitor his medical treatment and recovery, and failed to adequately communicate with the doctor’s office concerning the legal and medical proof required pursuant to the case law and New Jersey statute all during the time period of the discovery period and/or two-year Statute of Limitations time.
Another argument which could be made which caused case to be dismissed was the lack of any permanent injury. The medical records are what they are, the objective testing via the x-rays and a CT scan were read by the appropriate radiological experts and there was no permanent injury. As a result, no matter how many times the attorney communicated with his client the medical experts did not find permanent injury, and as a result plaintiff was not entitled to any economic or non-economic recovery under New Jersey law. This is not malpractice or mistake on the attorney’s part. If there is no permanent injury according to the doctors who treated him, and there was no need for additional treatment, then the case was ripe for dismissal and should not have been brought in the first place.
If the attorney had communicated with his client on a more regular basis, discuss the matter with the medical experts, maybe he would have realized that it was not one of those cases to bring in the first place.
Jeffrey S. Hark, Esq.