Plaintiff Hellen Bayer was in an automobile accident with defendant Michael Roman on November 22, 2017. The parties contested the severity of the accident, but plaintiff alleged to have suffered injuries to her neck and back. The issue in Bayer v. Roman, 2024 N.J. Super. Unpub. LEXIS 2605 (App. Div. Oct. 25, 2024) was whether plaintiff’s personal injury claim should have been subject to a summary judgment dismissal due to her failure to present medical testimony apportioning her injuries between her preexisting condition, injuries suffered from the 2017 accident, as well as potential injuries suffered in a subsequent April 2018 automobile accident.
At her deposition, the plaintiff claimed that the force of the impact was a 9 out of 10. However, she acknowledged that the damage to her car was minimal, and it did not require repairs. It was her testimony at depositions that her head struck the back of the seat twice, really hard, and that she also felt the impact to her left leg. She was taken by ambulance to a local hospital where she complained of neck pain, radiating into her left arm with numbness and tingling into her left shoulder. It was noted that three months previously, she had spinal fusion surgery at L4-L5.
As it turned out, back in December 2014, plaintiff had been diagnosed with a disc herniation at L3-L4 with degenerative disc changes at L5-S1. Plaintiff had underwent lumbar spinal fusion in August 2017 before her auto accident with defendant Roman.
Plaintiff was also in a subsequent automobile accident in April 2018 when a car she was driving was struck from behind by a car traveling about 40-50 miles per hour. As a result of the impact, plaintiff struck her head on the seat back. She treated at a hospital with complaints of headache, neck pain, back pain and new right sided pain and tingling.
Plaintiff received medical treatment for both her neck and back, as well as treatment for TMJ. Her orthopedic surgeon, Dr. Meese, noted that plaintiff had been treating for her neck and back from a prior motor vehicle accident but that the 2017 accident exacerbated the pain in her neck and back, causing an acute exacerbation of cervical and lumbar radiculopathy.
Plaintiff also obtained treatment from a dentist, Dr. Robert Federman for TMJ syndrome. He noted that she had no preexisting history of dental injuries and concluded that the motor vehicle accident of 2017 was the probable cause for all of her injuries to her TMJ and related teeth.
Finally, plaintiff treated with Dr. Cohen, who summarized her prior medical records and related her problems to her November 2017 accident. He performed a Polk analysis (a comparison analysis of injuries from successive accidents) and opined that she had an aggravation and worsening of her preexisting lumbar fusion surgery after the 2017 accident and now suffered a new injury at the L4-5 level.
However, neither of the reports of Drs. Federman or Cohen referenced the April 2018 accident. But, Plaintiff only claimed personal injuries for the November 2017 accident and did not file a lawsuit regarding the April 2018 collision.
Defendant did not retain a medical expert. However, defendant did obtain an accident reconstruction expert and a biomechanical expert. The biomechanical expert opined that plaintiff’s “claims of injury or enhancement of any preexisting condition resulting from the November 22, 2017 accident are inconsistent with the minimal severity of this incident.”
At the end of discovery, defendant filed for a summary judgment, claiming that the record was devoid of any credible evidence that he caused the accident. He argued that his expert reports demonstrated that plaintiff’s injuries could not have occurred based upon the forces resulting from this type of accident. Further, he argued that plaintiff’s experts failed to apportion the injuries between the present accident and her preexisting condition, or the present accident and subsequent accident.
The trial court judge granted the motion, dismissing the lawsuit. The court “was persuaded plaintiff was unable to prove the accident was the proximate cause of her injuries.” The trial court judge relied upon the uncontested opinion of the defendant’s biomechanical expert that plaintiff’s injuries could not have been caused by this accident. Further, the trial court noted that the plaintiff’s medical experts failed to explain why the injuries could not have been caused by the later accident and it noted that a Polk analysis was required to prove causation at this stage of the litigation. Hence, the trial court granted summary judgment because “no rational fact finder could find in plaintiff’s favor on the issue of causation.”
The Appellate Division reversed. It noted that plaintiff bears the burden of proving defendant’s negligence and that the defendant’s negligence was the proximate cause of the plaintiff’s injury. It further noted that “a plaintiff seeking recovery for an injury caused by successive accidents must apportion damages between each responsible party.” The burden to allocate damages is placed on the party in the best position to present evidence. Hence, the Appellate Division found that “in successive accident cases where a plaintiff seeks to recover from the original tortfeasor, the plaintiff must prove comparative medical evidence ‘to isolate the physician’s diagnosis of the injury or injuries’ attributable to that tortfeasor’s negligent contact.”
But, the Court found that “whether a claimed injury is an aggravation of a preexisting injury, although possibly relevant on the issue of causation at the time of trial, is not an element of proof plaintiff must satisfy at the summary judgment stage.” The Appellate Division noted that where an aggravation of injuries is claimed, plaintiff’s own testimony may satisfy that burden of establishing sufficient evidence to present a jury question.
Applying these principles, the Appellate Division found that the trial court judge erroneously determined a Polk analysis was required to defeat summary judgment. Plaintiff had alleged that her injuries were attributable to the November 22, 2017 accident, which did not worsen after the April 2018 collision. The Court found that plaintiff could testify at trial about the injuries that she allegedly suffered in the November 22, 2017, accident and to the extent to which both accidents, if at all, exacerbated her preexisting condition. She does retain the burden of proving her injuries were attributable to the first accident. It would be up to a jury to decide the weight to ascribe the omission of the April 2018 accident from her experts’ reports.
Further, the Appellate Division also found that there were genuine issues of material fact which precluded summary judgment on medical causation. Plaintiff had testified at deposition as to the severity of the impact which caused her head to strike the seat back. Although the defendant presented a biomechanical expert that the force was minimal and caused little damage to plaintiff’s vehicle, plaintiff’s failure to proffer a biomechanical or accident reconstruction expert “may be considered by the jury when assessing plaintiff’s proofs, including her testimony.” However, the Court found that the facts were not so one-sided that defendant was entitled to prevail as a matter of law.
Hence, the Appellate Division reversed and remanded the matter back to the trial court for further proceedings.
