Comparative Analysis Is Critical When Plaintiff Alleges Aggravation Of A Pre-Existing Injury

In a recent decision, the New Jersey Appellate Division held that plaintiff, who allegedly sustained an aggravation of a pre-existing injury in a motor vehicle accident, was required to present a comparative analysis of her injuries at trial, and her failure to do so should have resulted in a directed verdict for the defendant.  Accordingly, the Appellate Division, in Lopez v. Larsen, 2016 N.J. Super. Unpub. LEXIS 199 (Super Ct App Div Feb. 2, 2016, No. A-0660-14T2), reversed the decision of the trial court and remanded the case for an entry of judgment in favor of the defendant.
Plaintiff alleged that she was injured in a motor vehicle accident on October 1, 2009.  Her claims were subject to the New Jersey verbal threshold statute.  Plaintiff stated that she sustained permanent injuries to her neck, resulting in disc herniations at C4-C5, C5-C6, a disc bulge at C5-C6, and cervical radiculopathy.  During the course of discovery, however, plaintiff disclosed that she was involved in prior motor vehicle accidents in 2004 and 2006, in which she sustained injuries to her neck, back and right shoulder.
At trial, plaintiff presented her pain management physician as the only medical expert to testify as to her injuries.  Plaintiff’s medical expert critically testified that there were “significant changes” between the 2004 MRI and 2009 MRI of her cervical spine. Accordingly, he opined that plaintiff’s injuries were causally related to the 2009 accident. Her physician further testified that plaintiff told him she was not involved in any prior accidents, and he formed his opinion, that she sustained a permanent injury causally related to the 2009 accident, based on this fact. The witness also admitted that the prior medical records pertaining to her 2004 and 2006 accidents could have caused him to change his opinion. 
After presentation of plaintiff’s case-in-chief, defendant moved for a directed verdict arguing that plaintiff’s expert failed to provide a comparative analysis of her pre- and post-accident injuries, which was denied by the trial judge. The jury returned a verdict in favor of plaintiff and awarded $90,000.
On appeal, defendant argued that her motion for a directed verdict should have been granted because plaintiff failed to present a comparative analysis of her injuries as required under Davidson v. Slater, 189 N.J. 166 (2007).  In Davidson, the Court held that a plaintiff who pleads an aggravation of a pre-existing injury must present comparative medical evidence in order to satisfy the causation element.  Plaintiff argued that she satisfied this burden because her medical expert testified that there were “significant” changes in the 2004 and 2009 MRIs and that these changes are objective evidence sufficient to permit the issue of causation to be decided by a jury.
The Appellate Division found that because plaintiff’s medical expert had not been given all of the applicable medical information pertaining to the prior injuries and treatment (and had merely been presented with two sets of films and asked to opine as to the differences), plaintiff evaded her burden and her expert could not provide an opinion as to the causation of her injuries following the 2009 accident. Therefore, the Court remanded the case to the trial court to enter a judgment for the defendant. This decision is significant because of the Court’s emphasis that a comparative analysis, through expert testimony is of paramount importance in cases involving aggravation of a pre-existing injury.  While causation may typically be an issue for the trier of fact, the Appellate Division’s holding makes clear that causation issues may not reach the jury until plaintiff satisfies the initial burden of providing a comparative analysis.