Plaintiff Jeffrey Wichot sued Defendant for emotional injuries suffered from a car kidnapping that occurred in 2012. Plaintiff had previously suffered a horrific injury as a young boy in 2002 which resulted in a traumatic brain injury. One of the issues in Wichot v. Allstate N.J. Prop. & Cas. Ins. Co., 2021 N.J. Super. Unpub. LEXIS 1020 (App. Div. May 27, 2021), was whether Plaintiff needed to provide a comparative analysis of his injuries suffered in the two incidents to be able to establish causation of his injuries incurred in the second incident.
In 2002, Plaintiff’s traumatic brain injury resulted in a severe closed-head injury, from which he continued to suffer and resulted in him being legally incapacitated. He had been riding a motorized scooter when he was struck by a van and propelled 20 feet, striking his head on the concrete road.
In 2012, the subject of this lawsuit, Plaintiff was kidnapped from his own car, driven around, slapped around, and threatened with a gun. Ultimately, there was an accident in which the driver hit a wall and Plaintiff escaped from the car. Plaintiff’s treating doctor opined that he suffered PTSD from this assault incident, which worsened Plaintiff’s pre-existing cognitive and emotional injuries from his brain injury suffered from the 2002 incident. Further, his doctor opined that the assault caused permanent emotional damage to his functioning, which was qualitatively and quantitatively different than his symptoms before the assault.
Defendant filed for a summary judgment, arguing that Plaintiff had failed to provide a comparative analysis of the injuries between the two incidents, so as to “give the jury guidance… as to what … psychological and emotional injuries [were] attributable to this accident.” The trial court judge granted the motion and dismissed the lawsuit, finding that Plaintiff’s treating doctor failed to provide a proper allocation of injuries suffered between the two accidents and, thus, the jury’s decision would be “purely speculative as to what psychological and emotional injuries are attributable to this accident.”
The Plaintiff appealed this decision to the Appellate Division, arguing that he did not plead aggravation of a pre-existing injury in his complaint and, therefore, to establish causation of injuries caused by the second accident, he was not required to provide a comparative analysis of injuries suffered in the two incidents to survive a summary judgment motion. While Defendant conceded that aggravation was not pled in the Complaint, Defendant argued that it was acknowledged through Plaintiff’s response to interrogatories and in his treating doctor’s report.
The Appellate Division noted that, Plaintiff’s claim was subject to the verbal threshold, N.J.S.A. 39:6A-8(a). Under prior case law (referred to as a “Polk” analysis), when a plaintiff alleges an aggravation of a pre-existing injury or condition, he must produce comparative evidence to move forward with the causation element of his tort claim. However, when Plaintiff does not plead aggravation of a pre-existing injury, this comparative analysis is not required.
Here, Plaintiff’s claim was that the assault caused “a separate and distinct injury,” and Plaintiff did not plead an aggravation from the 2002 incident. His treating doctor opined that he suffered PTSD from his 2012 incident. However, his doctor’s report did mention an exacerbation of his prior traumatic brain injury and Plaintiff’s response to Defendant’s interrogatory as to prior disability stated that the assault “severely exacerbated” his prior injury.
The Appellate Division found those statements made in his doctor’s report and in answers to discovery were insufficient to trigger a Polk analysis. Regardless, the Court found that the Defendant may produce evidence that the Plaintiff’s injury was caused, wholly or in part, by an earlier accident or pre-existing condition. Based on the treating doctor’s report, there were disputed issues of fact about whether this accident caused Plaintiff’s permanent injury. Further, the Court held that “even if defendant is correct that aggravation of a prior injury is part of this case – which plaintiff contends is inaccurate – then that aspect of the proofs would become a matter of proximate cause for the jury.”
Hence, the Appellate Division reversed the trial court’s grant of summary judgment and remanded the matter back for trial.
