Plaintiff Glenn Hughes allegedly suffered injuries as a result of an October 17, 2017 automobile accident with defendant Jason Worthington. On that date, defendant Worthington rear ended the plaintiff. At trial, the defendant stipulated as to liability with the only issue to be decided at trial was whether plaintiff’s injuries were permanent and causally related to the accident. The issue in Hughes v. Worthington, 2022 N.J. Super. Unpub. LEXIS 2655 (App. Div. Dec. 30, 2022) was whether the plaintiff’s subjective complaints of pain sufficed to constitute a permanent injury under the verbal threshold.
The case was tried before a jury and the defendant Worthington moved for a directed verdict based upon plaintiff’s failure to present objective, credible medical evidence to support his claim that he suffered a permanent injury. That motion was granted and this appeal ensued.
The plaintiff alleged to have suffered injuries to his neck as a result of the accident. Plaintiff’s doctor, Dr. Norman Stempler, testified that plaintiff lost range of motion in his neck as a result of the accident. Further, he testified that an MRI taken two months after the accident supported his diagnosis that plaintiff suffered an aggravation of pre-existing degenerative disc disease. However, upon cross examination, Dr. Stempler admitted that the degenerative disc disease of the plaintiff’s cervical spine pre-dated the accident and he could not observe an aggravation of this pre-existing condition of plaintiff’s MRI. Further, he conceded that his opinion concerning the aggravation of the degenerative disc disease was derived from plaintiff telling him that he was asymptomatic before the accident but that, after the accident, he experienced a decreased range of motion in his neck.
Moreover, Dr. Stempler admitted that he could not determine if the findings on plaintiff’s MRI were acute or chronic. He agreed that the range of motion testing had a subjective component.
At trial, the defendant moved for a directed verdict, arguing that plaintiff failed to demonstrate – with objective, credible medical evidence – that he suffered a permanent injury as a result of the accident. The trial court noted that the plaintiff’s doctor formed his opinion based upon the plaintiff’s subjective complaint and, therefore, determined that Dr. Stempler improperly relied on subjective evidence. Finally, the trial court concluded that, as a result, the plaintiff failed to establish by objective, credible evidence, a nexus between his alleged injuries and his automobile accident, as required by the New Jersey verbal threshold statute.
Upon appeal, the plaintiff claimed that his subjective complaints, i.e. his restricted range of motion, was sufficient to support Dr. Stempler’s opinion that there was a permanent injury. The Appellate Division rejected that argument.
The Court noted that under the verbal threshold of the New Jersey automobile law, AICRA, N.J.S.A. 39:6A-8, lawsuits are restricted for damages from automobile accidents unless the victim “sustains a bodily injury which results in death; dismemberment; significant disfigurement or significant scarring; displaced fracture; loss of a fetus; or a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.” Further, the Court noted that under this statutory provision “an injury shall be considered permanent when the body part or organ or both has not healed to function normally and will not heal to function normally with further medical treatment.”
The Appellate Division cited to prior case law that to vault this “threshold,” a physician must certify that the automobile accident victim suffered from a statutorily enumerated injury. This opinion must be based on “objective clinical evidence.” Further, the necessary objective evidence must be derived from accepted diagnostic tests and cannot be dependent entirely upon subjective patient response. Thus, subjective tests alone, such as range of motion tests, will not suffice to meet this standard.
The Court further noted that “plaintiff was required to prove through expert testimony there was objective clinical evidence his injuries were permanent and causally related to the automobile accident.” The Appellate Division found that his physician’s testimony concerning permanency was based solely on the plaintiff’s subjective claims concerning a diminished range of motion. Hence, plaintiff failed to provide the requisite objective proofs that were required to meet the threshold.
Dr. Stempler had based his opinion on plaintiff’s current complaints, which purportedly did not exist prior to the accident, that he had suffered a permanent injury. However, Dr. Stempler also acknowledged that he was unable to determine if the degenerative disc disease of the cervical spine observed on the MRI was acute or chronic. Thus, the Appellate Division found that “his testimony was not based on credible, objective evidence obtained from accepted diagnostic tests, and is, therefore insufficient to fault the threshold under N.J.S.A. 39:6A-8.” Accordingly, the Appellate Division found that the trial court did properly grant the motion for a directed verdict, dismissing the lawsuit.
