Plaintiff Tony Polite was involved in two automobile accidents within thirty days. The first accident occurred on May 15, 2019, and the second one occurred on June 16, 2019. Plaintiff claimed to have injured his neck, back, left shoulder, and right knee in the first accident and alleged that those injuries became significantly worse following his second accident. The issue in Polite v. Kahn, 2024 N.J. Super. Unpub. LEXIS 1699 (App. Div. July 18, 2024) was whether plaintiff had provided sufficient proofs to show that the second accident aggravated his pre-existing injuries from his first accident.
In plaintiff’s May accident, he was t-boned from the driver’s side, causing his vehicle to hit a telephone pole. He suffered injuries to his cervical spine, lumbar spine, left shoulder, and right knee. He filed a lawsuit against the driver Estell Norman. One month later on June 16, 2019, he was in a second car accident in which he was injured by defendant Airshad Kahn’s vehicle. It caused his chin to strike the steering wheel and his right knee to strike under the steering wheel. He filed the within lawsuit against defendant Kahn. These two lawsuits were consolidated and discovery ensued. He claimed that his symptoms from the first accident became significantly worse following his second accident.
Plaintiff treated with a chiropractor (Dr. Funiciello) who prepared a narrative report. The chiropractor attributed a direct causal link between plaintiff’s injuries and the May accident. He also opined that his exacerbations were due solely to the severe injuries to his neck and back following the accident in May 2019. Thereafter, he settled the Norman matter (the first accident).
Plaintiff then obtained chiropractic treatment with Dr. Wael Elkholy for the injuries suffered in the June accident. His complaints were of his neck, left shoulder, lower back and right knee.
Following the close of discovery, defendant Kahn filed a motion for summary judgment, arguing that plaintiff had not established his injuries were caused by the June accident or that the June accident exacerbated his injuries from the May accident. Plaintiff relied on the treatment records from Dr. Elkholy and opposed the motion.
Before the motion was heard, plaintiff returned to Dr. Elkholy to treat his persistent low back pain. He obtained a second MRI which now showed a new disc herniation at L4-5 and L5-S1 and a new thecal sac decompression at L4-5 was recommended and was subsequently performed in July 2022. Plaintiff provided a supplemental certification with these additional medical records. However, the treatment records from Dr. Elkholy did not causally relate plaintiff’s injuries to the June accident, nor did they state that there was exacerbation of his injuries from the May accident.
The trial court judge granted the defendant’s motion for summary judgment. The judge found that there was a “complete absence of any report showing either causation or exacerbation from the second accident.” The injuries from the first accident were severe and the judge found they were still severe when the second accident occurred. He held that the “lack of any reference to a causal connection between the second accident to the plaintiff’s injuries is fatal to the plaintiff’s case.”
This decision was appealed. Plaintiff argued that there should be a reversal because of the inference of fact weighed in his favor, which would permit a jury to find his injuries were caused by the June accident.
The Appellate Division rejected that argument. It found that there can be no inference drawn from the plaintiff’s treatment records and diagnostic tests related to the June accident. The progress notes did not state that the June accident was the cause of plaintiff’s injuries. Further, plaintiff submitted no expert report or proof that the injuries he suffered were caused by the June accident.
Even though there was a lack of proof, plaintiff argued that the June accident aggravated his pre-existing injuries from the May accident. He pointed to the June 2022 MRI which showed two new disc herniations when compared to the May 2019 MRI. However, neither Dr. Elkholy’s treatment records, nor Dr. Funiciello’s narrative report attributed any portion of plaintiff’s injuries to the June accident.
Hence, the Appellate Division found that plaintiff failed to show an aggravation of pre-existing injuries. The Court further noted that plaintiff failed to produce any comparative evidence regarding his injuries from the May and June accidents.
In conclusion, the Appellate Division found that the plaintiff could not show the causation element of his negligence claim concerning the June accident. Because plaintiff failed to establish proximate causation, defendant was entitled to summary judgment. Thus, the Appellate Division affirmed the trial court decision dismissing the lawsuit.
