When a plaintiff pleads in her Complaint that an accident aggravated a pre-existing injury, it is the plaintiff’s burden to provide a comparative analysis of the two injuries – the prior injury and the aggravation – in order to succeed on her claim that the accident caused the aggravation. The Appellate Division in Blocker v. DeLoatch, 2022 N.J. Super. Unpub. LEXIS 1059 (App. Div. June 14, 2022) held that when a plaintiff had a pre-existing injury but did not allege an accident caused an aggravation of that injury, it is the defendant’s burden to establish that the injury had multiple different causes.
In Blocker, the plaintiff’s medical history indicated she sustained a workers’ compensation injury to her lower back in 2015. Thereafter she was involved in two motor vehicle accidents about two years apart from one another: a three-car accident in Franklin Township in April 2016, and another motor vehicle accident in New Brunswick in March 2018. Plaintiff filed a complaint in April 2018, asserting a negligence claim against all of the other drivers in both of the 2016 and 2018 accidents seeking damages for “permanent injuries” sustained because of those two accidents. Plaintiff, however, did not allege that either the 2016 and 2018 accidents aggravated any previously sustained injuries. Plaintiff’s expert provided a report that indicated the plaintiff sustained a permanent injury caused by the 2016 accident, that was aggravated by the 2018 accident. She had no complaints prior to the 2016 accident.
Prior to the close of discovery, the defendants filed a motion for summary judgment arguing that, (1) the plaintiff’s failure to submit a comparative analysis of the injuries sustained prior to the 2016 accident; (2) the injuries suffered in the 2016 accident; (3) the injuries sustained in the 2018 accident; and (4) how those accidents may have aggravated or exacerbated the pre-existing lower back injuries, was fatal to her complaint. In response, the plaintiff provided her expert’s report from a doctor she claimed rebutted the defendants’ claims. The motion judge granted summary judgment, agreeing with defendants that the plaintiff’s expert’s report failed to provide any analysis as to whether or how the injuries from the 2016 accident were aggravated by the 2018 accident and that there was no review of anything concerning plaintiff’s pre-2016 injuries.
The Appellate Division reversed, holding that, in a non-aggravation case, a plaintiff need only show she sustained a permanent injury arising from the claimed accident to carry her burden without having to exclude all prior injuries to the same body part. The court determined that plaintiff only had to present proof of aggravation by way of a comparative analysis when she pled aggravation. Conversely, they held that a plaintiff is not required to present such an analysis when she does not plead aggravation. It follows that in such a circumstance the defense has the burden to show that the alleged injury existed at the time of the causal accident.
If it is fully incumbent on a defendant to bear the burden of establishing a plaintiff had a pre-existing injury to the same body part injured in a subsequent accident, a logical conclusion from the above appears to question the practice of alleging a plaintiff had an aggravation of a pre-existing injury at all. The strategy appears to be that, since it is the defendant’s burden to prove aggravation, a plaintiff’s attorney would anticipate that strategy, prepare a comparative analysis on the side and, in the event that a defendant does (a) discover a pre-existing injury and (b) provide the proofs to establish same, produce the comparative analysis to rebut the claims made by a defendant. On the other hand, to carry their own burden, the defendant should investigate a plaintiff’s medical history to uncover prior injuries, have their expert establish the aggravation and prepare for the showdown with the plaintiff.