New Jersey
“AUTOMOBILE INSURANCE LAW UPDATE”

Summer Edition 2007

The New Jersey Supreme Court has held that a plaintiff is under no obligation to produce, in a cause of action in which plaintiff is not alleging an aggravation of a pre-existing injury, a comparative analysis of her injuries which pre-existed the accident at issue with her injuries after the accident at issue in order to satisfy the verbal threshold proof requirements. Davidson v. Slater, 189 N.J. 166 (2007). When an aggravation of a pre-existing injury is pled by a plaintiff, comparative medical evidence is necessary as part of plaintiff’s prima facie verbal threshold demonstration in order to isolate the physicians diagnosis of the injury or injuries that are allegedly permanent as a result of the subject accident.; An issue arises when a plaintiff does not plead aggravation of pre-existing injuries but has had other prior injuries to the body part at issue. The defendants in Davidson argued that the plaintiff has the initial burden to produce comparative-analysis evidence excluding all other injuries from being the cause of the permanent injury on which the verbal threshold action is based. The Supreme Court rejected defendants’ argument to place such a burden on the plaintiff in a case where plaintiff is not alleging an aggravation of pre-existing injury.

In short, if a plaintiff alleges that injuries from a pre-existing condition have been aggravated by the accident at issue, the plaintiff must still present comparative medical analysis. If plaintiff does not plead an aggravation of a pre-existing injury, even if there is a pre-existing injury to the body part at issue, the plaintiff does not have to present comparative medical analysis in order to survive a motion for summary judgment on the verbal threshold.

In Soto v. Scaringelli, 2007 WL 836907 N.J. (March 21, 2007) the New Jersey Supreme Court defines what scarring or disfigurement is sufficiently “significant” to vault the verbal threshold. In Soto, the plaintiff underwent surgery which left her with three scars and a metal plate and screw in her shoulder. The plaintiff claimed that one of the scars, approximately 7 centimeters long, constituted a “significant scarring” and that the plate and screw constituted a “significant disfigurement,” each sufficient to vault the verbal threshold. The New Jersey Supreme Court held that the significant disfigurement/significant scarring threshold is satisfied only if an objectively, reasonable person will regard the scar or disfigurement as substantially detracting from the accident victim’s appearance, or so impairing her beauty, symmetry or appearance as to render her unsightly, misshapen or imperfect. The court noted a number of factors are relevant in that determination, including appearance, coloration, location and size of the scar, as well as shape, characteristics of the surrounding skin, remnants of the healing process, and any other cosmetically important matters. As to plaintiff’s scar, the motion judge explained that from a distance of three feet it “took some looking” before the scar was visible. As to the disfigurement claim, the motion judge could not see a deformity in her shoulder. The Supreme Court noted that the motion judge’s descriptions justify the conclusion that neither the metal plate or screw nor the scar constituted disfigurement or scarring “significant” enough to vault the verbal threshold.

For more information on the articles noted above please feel free to contact Glendon Danks, Esquire at danks@bbs-law.com