Prior Accident and Injuries: Understanding Causation and the Polk Analysis in New Jersey Personal Injury Claims
Many car accident victims have injuries involving the low back or neck. For many of these people, previous bouts of cervical and lumbar pain will be documented in their medical records. New Jersey has adopted specific rules to deal with personal injury lawsuits that involve claims of aggravation of pre-existing injuries or conditions. Whether it be a herniated disc, brain injury or any new injury on top of an old injury, understanding how New Jersey Courts deal with these claims is critical.
At its foundational level, there exist four (4) elements that must be proven as a prerequisite to monetary recovery in any negligence action: (1) a duty of care owed by the defendant to the plaintiff; (2) a breach of that duty by the defendant; (3) an injury proximately caused by the defendant's breach; and (4) damages. Townsend v. Pierre, 221 N.J. 36, 51 (2015); Jersey Cent. Power & Light Co. v. Melcar Utility Co., 212 N.J. 576, 594 (2013); Anderson v. Sammy Redd and Assoc., 278 N.J. Super. 50, 56 (App. Div. 1995). In a personal injury matter, it is the plaintiff who carries the burden of proving by a preponderance of the evidence each of these elements.
The first two elements of a basic negligence claim relate to fault. A plaintiff must prove that the defendant acted in a manner inconsistent with how a reasonably situated person (or entity) would have acted in similar circumstances, and that those unreasonable actions caused an accident to occur. For instance, the driver who is not paying full attention to the road and rear-ends the vehicle in front of him. The business that fails to plow its parking lot and apply ice melt following a snowstorm resulting in a slip-and-fall. The construction company that fails to ensure a safe work environment for its employees and subcontractors.
The fourth element requires a showing of damages: lost wages due to missed time from work; pain and suffering; wrongful death; medical bills; loss of earning capacity; damage to property; etc.
The third element is the bridge. It is the bridge that connects a defendant’s wrongful conduct with an award of money for damages sustained by the plaintiff. That bridge is causation. Stated differently, the defendant’s wrongful conduct must have actually caused the damages that are alleged to have flowed from such conduct. See, e.g., Townsend, supra, 221 N.J. at 51 (“Proximate cause consists of any cause which in the natural and continuous sequence, unbroken by an efficient intervening cause, produces the result complained of and without which the result would not have occurred.”) (internal quotations omitted); Mergel v. Colgate-Palmolive-Peet Co., 41 N.J. Super. 372, 378 (App. Div. 1956), certif. denied 22 N.J. 453 (1956) (“The law requires that the damages chargeable to a wrongdoer must be shown to be the natural and proximate effects of his delinquency.”); James v. Arms Technology, Inc., 359 N.J. Super. 291, 311 (App. Div. 2003); Perez v. Wyeth Lab., 161 N.J. 1, 27 (1999).
While it may seem obvious that a person can only recover for damages caused by a particular accident, the concept of causation is far from crystal clear in personal injury matters. Certainly, there are accidents that result in rather obvious injuries such as severe fractures, burning/scarring, dislocations, and even death. There are, however, an even greater number of cases where the injuries claimed bear a much less overt relationship to the accident in question. In this gray area, it is the plaintiff’s burden to prove that his or her claimed injuries were caused by the litigated accident and not pre-existing.
The concept of causation in personal injury cases as it relates to the plaintiff’s burden of proof has a well-developed, though at times difficult to navigate, history in our State’s jurisprudence. The most common situation in which issues of causation arise are in the context of an injury to the neck (cervical spine) and/or back (lumbar or thoracic spine) where a plaintiff’s claim is subject to the limitation on lawsuit. Very often the cause of intervertebral disc bulges or disc herniations that are visualized on an MRI performed after an accident are subject to dispute. Often the plaintiff will argue that the disc pathology is traumatically induced whereas the defendant will claim that the disc changes were longstanding and age-related arthritic changes. This dispute becomes even more prevalent in cases where the injured individual has a history of neck or back problems.
While having prior neck or back conditions that are aggravated in an accident does not necessarily preclude an individual from seeking damages, pursuing such a claim requires the expertise of an attorney who is well versed in identifying the proofs that must be submitted and in properly preparing the case during the pre-trial process. Specifically, the plaintiff must come forward with competent expert opinion that provides a comparative review of the pre-accident records with the records related to treatment rendered after the accident at issue. The expert must differentiate between the injuries that were caused by the accident versus those that were pre-existing.
The seminal case in New Jersey that explored the need for this type of comparative analysis was decided in 1993 by the Appellate Division in Polk v. Daconceicao, 268 N.J. Super. 568, 570 (App. Div. 1993). In Polk, the plaintiff claimed that he suffered injuries during a motor vehicle accident, including a lower back strain/sprain and aggravation of a pre-existing permanent hip injury. The defendant challenged the sufficiency of proofs adduced by plaintiff insofar as plaintiff failed to provide an expert opinion delineating between plaintiff’s serious pre-existing medical conditions and injuries claimed as a result of the motor vehicle collision. The trial court granted defendant’s motion for summary judgment based upon the plaintiff’s failure to meet the then-existing verbal threshold provisions of N.J.S.A. 39:6A-8(a), and the Appellate Division affirmed. Without determining whether plaintiff’s injuries had a “serious impact” on his life, the court found that plaintiff’s expert “offered no objective medical basis whatsoever to substantiate plaintiff's complaints nor to causally connect these complaints to the accident rather than to plaintiff's serious preexisting prior medical condition.” Id. at 576. The appellate court rejected plaintiff's physician's report as evidence of his permanent injury because the report failed to delineate between pre-existing residual injuries and the effect of the trauma on those residual injuries. Ibid. The court stated:
A diagnosis of aggravation of a pre-existing injury or condition must be based upon a comparative analysis of the plaintiff's residuals prior to the accident with the injuries suffered in the automobile accident at issue. This must encompass an evaluation of the medical records of the patient prior to the trauma with the objective medical evidence existent post trauma. Without a comparative analysis, the conclusion that the pre-accident condition has been aggravated must be deemed insufficient to overcome the threshold of N.J.S.A. 39:6A-8a.
[Id. at 575 (emphasis added).]
Subsequent cases have adhered to the rationale in Polk by espousing the need to have a “Polk Analysis,” i.e., a comparative review and pre-accident and post-accident records, in cases where plaintiff alleges an aggravation injury. For instance, in Sherry v. Buonansonti, 287 N.J. Super. 518 (App. Div.), certif. denied, 144 N.J. 588 (1996), the Court granted defendant's motion for summary judgment because the plaintiff failed to produce sufficient evidence to meet the verbal threshold requirements. The court held that the plaintiff “failed to present sufficient evidence that the [subject] car accident . . . caused plaintiff's condition” because “[t]here was no comparative analysis which could attribute plaintiff's present condition to either or both of the two accidents as required by Polk v. Daconceicao, 268 N.J.Super. 568 (App. Div.1993).” Id. at 522.
Similarly, following the adoption of the Automobile Insurance Cost Reduction Act (AICRA), Polk continues to be, on the whole, good law. In Bennett v. Lugo, 368 N.J. Super. 466, 469 (App. Div. 2004), the Court noted that “to survive summary judgment, it was incumbent upon plaintiff to present a comparative analysis, based upon medical records prior to this accident with objective medical evidence after this accident, in order to compare plaintiff's residual injuries prior to the accident with those suffered in the accident.” Ibid. Although ultimately finding that plaintiff had presented sufficient evidence to survive summary dismissal of his case, the court held:
Although Polk predated AICRA, a Polk analysis continues to be required in cases governed by AICRA. Ostasz v. Howard, 357 N.J. Super. 65, 67 (App. Div. 2003). Further, a Polk analysis is required to differentiate a subsequent injury to a body part that was previously injured whether aggravation of the prior injury is alleged or not. Sherry v. Buonansonti, 287 N.J. Super. 518, 521-23, (App. Div.), certif. denied, 144 N.J. 588 (1996). Comparative analysis is required whenever previous injury to the same body part is involved. Loftus-Smith v. Henry, 286 N.J. Super. 477, 491 (App. Div.1996). Thus, plaintiff is required to submit a sufficient Polk analysis here.
[Id. at 473.]
Likewise, the court in Ostasz v. Howard, 357 N.J. Super. 65 (App. Div. 2003), acknowledged that “[n]othing in the language or history of AICRA suggests a legislative aim to modify the proof requirements for a verbal threshold case.” Id. at 67. The Ostasz case, like Bennet, supra, represents the adoption of a comparative analysis requirement for post-AICRA plaintiffs who are alleging injury to a body party previously damaged.
In Davidson vs. Slater, 381 N.J. Super. 22 (App. Div. 2005), the Appellate Division diverged from prior law and found that a Polk analysis requirement was not required under AICRA, in cases where no aggravation of injury was claimed. Relying on the New Jersey Supreme Court’s rulings in DiProspero v. Penn, 183 N.J. 477 (2005) and Serrano v. Serrano, 183 N.J. 508 (2005), the panel focused on the verbal threshold’s explicit requirement that a plaintiff is only required to prove, “‘by objective clinical evidence, supported by a physician certification, under penalty of perjury, an injury [caused by the subject accident] fitting into one of the six statutorily defined threshold categories.’” Davidson, supra, 381 N.J. Super. at 27 (quoting Serrano, supra, 183 N.J. at 27). According to the Davidson panel, “the comparative analysis requirement of Polk and its progeny engrafts an additional element upon th[e] causation aspect of the verbal threshold standard.” Id. at 29.
On appeal, the New Jersey Supreme Court attempted to reconcile the divergence among the appellate panels regarding Polk comparative analysis post-AICRA. In large part, the Supreme Court affirmed the Davidson appellate panel. Davidson v. Slater, 189 N.J. 166, 187-90 (2007). In doing so, however, the court distinguished between cases where aggravation of a prior injury is alleged and those in which it is not. Regarding cases involving aggravation of a prior injury, the Court held:
[C]omparative medical evidence is necessary as part of a plaintiff's prima facie and concomitant verbal threshold demonstration in order to isolate the physician's diagnosis of the injury or injuries that are allegedly "permanent" as a result of the subject accident. Causation is germane to the plaintiff's theory of aggravation of a pre-existing injury or new independent injury to an already injured body part.
[Id. at 185.]
Furthermore, the court held that, even where an aggravation is not alleged, it is incumbent upon a plaintiff to prove a causal relationship between the subject incident and injury complained of:
In respect of the element of causation specifically, a plaintiff will risk dismissal on summary judgment if the defendant can show that no reasonable fact-finder could conclude that the defendant's negligence caused plaintiff's alleged permanent injury. Thus, the plaintiff who does not prepare for comparative medical evidence is at risk of failing to raise a jury-worthy factual issue about whether the subject accident caused the injuries.
[Id. at 188 (emphasis added).]
In short, where a plaintiff in a personal injury case has a significant prior history of injury or dysfunction to the same body part that is alleged to have been re-injured or aggravated in the accident giving rise to his or her lawsuit, he or she must come forward with an expert opinion that provides a Polk Analysis. That analysis should include a comparative review of the pre-accident and post-accident records and an opinion as to what injuries were caused by the litigated trauma versus pre-existing conditions. As pointed out by the Supreme Court in Davidson v. Slater, this requirement is not something novel that has recently been engrafted upon a personal injury claim but is rather part of the longstanding requirement that a plaintiff prove the third element of a negligence claim, namely, causation. While the requirement of a Polk analysis is theoretically confined to cases in which the plaintiff is alleging an aggravation of a prior condition, practitioners must keep in mind that even if an aggravation is not alleged, a case can be summarily dismissed for failure to provide a comparative analysis if the evidence of prior injury is so one-sided that no reasonable jury could find that the defendant’s negligence caused the complained of damages.
At Weir Attorneys we have prosecuted and defended thousands of cases involving aggravation injuries. If you have been injured in an accident but have a prior condition/injury to that same body part and want to know whether you still have a case, please do not hesitate to contact us at weirlaw@weirattorneys.com or (609) 594-4000.