Plaintiff Debbie Williams-Siraj claims to have been injured in an automobile accident on September 28, 2017, when the vehicle driven by defendant Lynne Schwartz collided with her. Although plaintiff claimed to have suffered significant injuries to her lower back including spinal disc herniations and fractures, she had been previously diagnosed with chronic and progressive lumbar disc disorder with radiculopathy. The issue in Williams-Siraj v. Schwartz, 2025 N.J. Super. Unpub. LEXIS 427 (App. Div. Mar. 19, 2025) was whether plaintiff’s bodily injury claim was subject to dismissal due to her failure to provide an expert report which included a comparative analysis of the plaintiff’s residuals prior to the accident with the injuries suffered in the automobile accident at issue.
Plaintiff alleged that she was injured when the defendant Schwartz operated her car in a reckless and negligent manner in changing lanes into the path of plaintiff’s vehicle, purportedly causing plaintiff to swerve onto the curb. Although the cars never actually collided, plaintiff claimed that the incident caused significant injuries to her lower back including spinal disc herniations and fractures.
However, two days before this incident, plaintiff’s pain management doctor told her that she was a likely candidate for spinal surgery because of her chronic and progressive lumbar disc disorder with radiculopathy.
About one month after the automobile accident, plaintiff for the first time sought treatment at a hospital emergency room. According to the records, plaintiff’s knee gave out, causing her to fall. However, plaintiff reported a history of a herniated disc and lower back pain. Although she was not admitted to the hospital, a few days later, she was admitted because her back condition had worsened. Two days after that, she underwent a lumbar fusion surgery.
Almost two years later, plaintiff filed a lawsuit against the defendant, claiming that the accident aggravated her existing condition in her back. Her automobile policy limited the coverage for which she could recover because she had elected the “verbal threshold” limitation. Discovery ensued and, prior to the end of discovery, plaintiff still had not retained any expert witnesses nor served any expert reports to substantiate her injury.
The defendant filed for summary judgment, arguing that plaintiff’s complaint should be dismissed because she alleged an aggravation of her pre-existing injury but had not provided expert testimony to compare plaintiff’s condition before the accident to the injuries suffered as a result of the accident. Thus, the defendant asserted that she had not established that the accident caused an aggravation of her pre-existing condition.
In opposition, plaintiff now submitted two expert reports. Although she did not move to reopen discovery to permit the proper consideration of these reports, the trial court nevertheless considered the substance of each report.
In the first expert report, the doctor concluded that plaintiff had “significant pathology” in her lower back and suffered a “new neurologic injury with motor and sensory deficit[s]” that were “causally related to her motor vehicle accident.” In the second expert report, that doctor noted that before the accident, plaintiff “had chronic back pain that was controlled with medications, [and] after the car accident she had significant injuries that made her disabled [and required her to walk] with a walker . . .” This expert also opined that her injuries were permanent and caused significant change in her life.
Nevertheless, the trial court granted summary judgment to defendant and concluded that plaintiff was obligated under the law to provide a Polk analysis of the medical records. To satisfy the verbal threshold requirement, Polk (case of Polk v. Daconceicao) necessitates that a comparative analysis showing aggravation of the pre-existing injury must be provided by an expert. Because plaintiff failed to do so, summary judgment was granted on behalf of the defendant. This appeal ensued.
The Appellate Division noted that plaintiff had elected the verbal threshold option in her insurance policy. Once that option is elected, the New Jersey law is triggered which provides that plaintiff may only recover for her pain and suffering if she suffers “a permanent injury with a reasonable degree of medical probability, other than scarring or disfigurement.” Further, the statute finds an injury is permanent “when the body part or organ, or both has not healed to function normally and will not heal to function normally with further medical treatment.” Plaintiff must also establish permanency with “objective clinical evidence.”
Because plaintiff was claiming an aggravation of a pre-existing condition, the Appellate Division noted that 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 analysis “must encompass an evaluation of the medical records of the patient prior to the trauma with the objective medical evidence existent post-trauma.” Further, the Court noted that without this 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. 39:6(a)-8 (the verbal threshold).
The Appellate Division concluded that the trial court did correctly determine that plaintiff was required to provide this comparative analysis, i.e., a Polk analysis to defeat summary judgment. She claimed that a pre-existing condition was aggravated by her injuries she purportedly suffered in this accident. However, she did have a substantial prior history of issues concerning issues to her back which was so significant that two days before this accident, her doctor recommended that she have surgery to address it. According to her MRI reports, plaintiff’s lower back was already compromised as early as 2013. She did not seek any initial emergency treatment. The only time she sought treatment following the accident was when she fell down one month later.
Additionally, the Appellate Division noted that plaintiff had failed to produce any expert reports before the close of discovery. The court noted that the trial court’s inquiry could have ended there and arguably should have.
Nevertheless, the Court also considered those expert reports that were submitted outside of discovery. In reviewing them, however, the Appellate Division agreed with the trial court that these reports did not meet the required Polk standard. Specifically, one of the experts failed to do any kind of comparative analysis and the other expert only made vaguely conclusory statements about the ultimate impact of the purported injuries.
Thus, the Court agreed that the plaintiff was unable to establish that defendant proximally caused the permanent injuries for which she sought recovery. Therefore, the Appellate Division did affirm the trial court’s decision to grant summary judgment and dismiss the lawsuit.
