Articles

By: Courtney Todaro, Law Clerk
Edited By: Nuo (Norman) Jiang, Esq.

In its holding and opinion in Zavis v. NJM Ins. Co., the Appellate Division of the Superior Court of New Jersey clarified standards for an injured Plaintiff to demonstrate that her injuries were caused by a motor vehicle accident.

On February 1, 2019, then-74-year old Charlotte Zavis (hereafter “Plaintiff”) allegedly sustained personal injuries as a front passenger in a motor vehicle accident.  Plaintiff alleged she sustained injuries to her shoulders, neck, and back because of the accident.  Notably, Plaintiff did not assert a claim of aggravation or exacerbation of any pre-existing injuries.  After settling the third-party case, Plaintiff filed a claim for additional underinsured motorist (UIM) coverage against New Jersey Manufacturers Insurance Company (hereafter “Defendant”).

As part of her diagnosis and treatment, Plaintiff had MRIs taken of her lumbar and cervical spine on April 4, 2019.  According to Plaintiff’s treating expert Dr. Wayne Fleischhaker’s report, Plaintiff sustained herniations of the cervical spine at C3-4 and C5-6, bulging discs at C4-5 and C6-7, and bulging discs in the lumbar spine at L3-4 and L4-5 with lumbar radicular syndrome.  In Dr. Fleischhaker’s treatment and progress notes, he noted that Plaintiff had “cervical disc degeneration, mid-cervical region, [at an] unspecified level.”

Discovery of Plaintiff’s medical history revealed that she had a pre-existing back condition.  Specifically, Plaintiff had undergone at least two prior lumbar MRIs: one in 2000, which revealed diffuse disc bulges at L3-4 and L4-5 and “multilevel loss of the normal T2 disc signal consistent with multilevel degenerative disc disease;” and another in 2016 after a slip and fall injury which revealed lumbar disc bulges at L3-4 and L4-5.

In his May 14, 2023 report, Dr. Fleischhaker opined that Plaintiff “suffered permanent injuries to her cervical and lumbar spines and an aggravation of pre-existing asymptomatic degenerative changes in the spine” due to the 2019 accident.  Conspicuously, the expert did not provide an explanation of what parts of the spine the “degenerative changes” affected, or perform a comparative analysis of Plaintiff’s pre- and post-accident conditions.

Defendant moved for summary judgment, arguing that Plaintiff could not establish negligence due to the pre-existing condition in her spine, and could not prove causation without a comparative analysis.  Plaintiff opposed the motion, relying on Davidson v. Slater, 189 N.J. 166 (2007), to claim that no comparative analysis was required because she did not assert aggravation or exacerbation of a pre-existing injury.  The Superior Court was not convinced by Plaintiff’s argument and granted Defendant’s motion for summary judgment.  The Superior Court agreed with Defendant and did not find causation, and highlighted Plaintiff’s medical history and Plaintiff’s own expert report of her pre-existing and degenerative conditions as support.

In affirming the Superior Court’s granting of Defendant’s motion for summary judgment, the Appellate Division explained that while a plaintiff is not required to produce a comparative analysis when they do not claim aggravation of pre-existing injuries, a defendant “has the right to raise the issue of prior injuries and seek discovery on them.”  In this case, Defendant utilized this right to seek discovery and argued that Plaintiff could not prove causation.  Reiterating the standard established in Bowe v. N.J. Mfrs. Ins. Co., 367 N.J. Super. 128, 138 (App. Div. 2004), the Appellate Division asserted that Plaintiff had the burden of proving her injuries were “causally linked to either (1) an aggravation of that injury or condition, or (2) a new injury.”  Plaintiff herein could not prove either.  Without a comparative medical analysis, “the jury would be left to speculate” about the cause of Plaintiff’s injuries and effect of the accident.

Judge Bishop-Thompson partially dissented from the majority opinion.  While she concurred with the majority’s conclusion that a comparative analysis was necessary for Plaintiff’s lumbar injuries, Judge Bishop-Thompson disagreed from the majority’s requiring Plaintiff present a comparative analysis for the alleged “new” cervical spine injury.  She reasoned that no pre-existing condition affecting Plaintiff’s cervical spine was alleged, the previous MRIs were only of Plaintiff’s lumbar spine, and there was no specific record of a cervical degenerative condition prior to the accident, only multilevel degenerative disc disease.

Takeaway: New Jersey practitioners are advised to review this case as a reminder that causation is an essential element of any negligence case.  Even if plaintiffs do not raise the issue of aggravation or exacerbation of pre-existing injuries, defendants do have a right to raise prior injuries as a defense and are entitled to discovery into same.  As such, a comparative analysis remains the best method to solidify a causal link between a new accident and new symptoms, especially if juries are put in position to speculate on causation.

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Courtney Todaro is one of the firm’s 2025 Summer Law Clerks. She is a rising 3L at the Drexel University Thomas R. Kline School of Law in Philadelphia, PA. After serving with AmeriCorps, Courtney joined the law school as a Public Interest Scholar and has continued to fuel her passion for teaching by serving as a Dean Scholar for both Civil Procedure and Property. Last summer, she interned with the New Jersey Attorney General’s Office in the Education and Higher Education Division in Trenton, NJ. She also completed a project internship with the Cheshire Law Group, where she assisted with revising the fourth edition of Stern’s Pennsylvania Nonprofit Corporation Law Treatise. This past semester Courtney served as an intern at the Education Law Center in Philadelphia, PA. She was recently selected to participate in the Center for Public Research and Leadership’s Structural Change in Education Practicum next semester at Columbia Law School. After graduation, Courtney plans to pursue a career in School and Special Education Law.