The New Jersey Appellate Division recently issued an unpublished yet informative opinion in a matter involving a claim of aggravation of significant pre-existing injuries. The matter, Nichols v. Duke Linden, LLC, 2023 WL 4553463 (App. Div. July 17, 2023), involved a simple set of facts. Plaintiff slipped and fell on prevailing snowy conditions while making a delivery to a premises owned by Defendant Duke Linden, LLC and leased to Defendant Wayfair. Duke had retained BrightView Landscapes, LLC for snow removal services at the premises and BrightView, in turn, subcontracted the snow remediation work to Caruso Landscaping.
After the Discovery End Date passed, the Court set both an arbitration and trial date. The defendants, with the exclusion of the already dismissed Wayfair defendant, filed Motions for Summary Judgment. These Motions emphasized that dismissal was proper based upon the purported failure of the Plaintiff’s orthopedic medical expert to provide a “sufficient comparative analysis” of Plaintiff’s documented past medical history with the injuries that he claimed to have suffered in the subject fall. Each Defendant argued that this lack of comparative analysis rendered Plaintiff’s expert opinion an inadmissible “Net Opinion” under applicable precedent thereby entitling Defendants to Summary Judgment.
The Trial Judge initially found that Plaintiff’s expert report was insufficient, based upon Davidson v. Slater, 189 N.J. 166, 186 (2007). However, rather than granting Defendants’ Motions for Summary Judgment, the Judge denied the Motions without prejudice and ultimately provided Plaintiff with ninety (90) days to provide an “updated” medical expert report including a comparative analysis. Meanwhile, Defendants filed a Motion seeking Leave to Appeal, which the Appellate Division granted, “remanding for the judge to decide the summary judgment motions on the record as it stood on the return date.” Slip. Op. at 1.
Upon remand, the Judge then granted the defense Motions for Summary Judgment. In so deciding, the Judge rejected Plaintiff’s argument that a comparative analysis was not required. Relying on the Supreme Court’s decision in Davidson, the Judge noted “the need for a plaintiff to produce a comparative medical analysis remains dependent on traditional principles of causation and burden allocation applicable to tort cases generally.” Davidson, 189 N.J. at 184.
Thus, after finding that Plaintiff was required to provide a comparative analysis, the Judge held that Plaintiff’s expert reports were “devoid of any comprehensive analysis of plaintiff’s extensive medical history concerning the pre-existing conditions in his left knee and lower back[,] which plaintiff specifically allege[d] were ‘aggravated’ by the slip and fall accident.” Slip. Op. at 2. Accordingly, since Plaintiff’s expert reports contained no more than “conclusory statements as to the cause of the Plaintiff’s injuries without discussing Plaintiff’s prior medical history,” they constituted an inadmissible “Net Opinion,” leaving Plaintiff unable to rely on the reports in attempting to establish a prima facie case of negligence. Slip Op. at 1.
Plaintiff then appealed the Trial Court’s decision by arguing that a comparative analysis was not required and even if it was required, the submitted expert reports were sufficient for the purposes of establishing a prima facie case of negligence. In the alternative, Plaintiff argued that the Court should have held a hearing pursuant to New Jersey Rule of Evidence 104 so that the admissibility of the report could have been argued prior to the decision to dismiss Plaintiff’s claims.
However, as the Appellate Division noted, Plaintiff never requested such a hearing and continued only by “insist[ing] his expert did not need to conduct a comparative analysis.” Slip. Op. at 2. The Appellate Division agreed with the Trial Court’s holding that since Plaintiff was pursuing a claim of aggravation of documented pre-existing injuries, Plaintiff was required to “medically segregat[e] a claimed aggravation of a pre- existing injury from the fresh injury.” See Davidson, 189 N.J. at 187. Plaintiff failed to document what the Appellate Division described as a “decades-long history of complaints and injuries to his left knee, including… two prior arthroscopic surgeries to that knee…” Slip. Op. at 2. Accordingly, the Appellate Division held that the opinion of Plaintiff’s medical expert that the need for total knee replacement was causally related to the fall at issue here was a “classic” example of an inadmissible “Net Opinion,” “[t]hat is, an expert’s bare opinion that has no support in factual evidence or similar data.” Pomerantz Paper Corp. v. New Community Corp., 207 N.J. 344, 372 (2011). Thus, Summary Judgment was properly granted to the Defendants.
Significantly, the Appellate Division concluded its opinion in the instant matter as follows:
The (New Jersey Supreme) Court warned sixteen years ago that ‘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.’
Slip. Op. at 2 (citing Davidson, 189 N.J. at 188).
It is clear from this conclusion that while this opinion is neither published nor precedential, it is insightful as to how Courts will assess aggravation claims in the absence of a comparative analysis. While a Trial Court could potentially overlook less significant past medical histories as not needing a comparative analysis, at minimum, the argument that all aggravation claims require a detailed and definitive comparative analysis should be considered and raised by the defense.
