06
Nov
DISC HERNIATION AND THE VERBAL THRESHOLD
In a recent opinion, the Appellate Division of New Jersey addressed the verbal threshold as it relates to disc herniations. As you can see an in depth analysis of what the verbal threshold, or limitation on lawsuit, in a prior post, I will not go to in depth in this post. Suffice it to say that if you have the verbal threshold, or limitation on lawsuit, you must show that you have a permanent injury, as shown by objective medical evidence (eg MRI, EMG, or some other test that a doctor can read without relying on your complaints) that was caused by your accident. Again, this is a very simplistic explanation, and I encourage you to read the post entitled “How does the Verbal or Lawsuit Threshold Affect a Claim for Injury”.
In Kalra v. Garcia, et al, A-4198-05T1, the Appellate Division acknowledged that a disc herniation is a permanent injury.
Now, it may be a good idea to digress for a moment …
Just as background, here in New Jersey, as in most legal systems, we have several levels of “Courts”. When we are talking about an automobile negligence case, generally it all begins in the trial courts, or the Superior Court of New Jersey, Civil Division. Your attorney files a complaint on your behalf, the case proceeds through discovery, arbitration, and, if need be, trial. You have the right to a jury trial. If some issues at the time of trial are decided incorrectly, or the verdict is against “the great weight of the evidence”, you have the right to appeal. The first level of appeal is the Appellate Division, or the Superior Court of New Jersey, Appellate Division. If one of the Judges at the appeal disagrees with the others and files a dissenting opinion, you may seek a review by the Supreme Court of New Jersey. Additionally, you may petition the Supreme Court of New Jersey if you feel that the Appellate Division has rendered an opinion that is incorrect. If all of the Appellate Judges agreed, then the Supreme Court may hear the matter at their own discretion.
Back to Kalra v. Garcia, et al, as I said above, this is an Appellate Division opinion. We know that, if we are in the Appellate Division, the case is already “over”, either by way of trial or dismissal. In this case, we are talking about a trial with a verdict in favor of the plaintiff. As in all cases, the trial Judge gave a jury charge. After hearing the testimony of the doctors, both of whom agreed that the plaintiff had herniations and that herniations are permanent, “charged” the jury with the following language:
Now, in this matter, if you find that this accident was a substantial factor in causing a herniated disc in the cervical or the neck area of the patient as claimed, if you decide that there is a herniation that was caused by this accident, then that is a permanent injury under the statute [and] she would be entitled to non-economic damages.
Essentially, this is what the law has been. In Pardo v. Dominquez, 382 N.J. Super. 489, 494 (App. Div. 2006), the Appellate Division stated “the existence of a herniated disc [is] sufficient to satisfy the verbal threshold.” Karla, at p. 6. However, the fact that the jury charge was upheld on appeal may be helpful in a verbal threshold or limitation on lawsuit case.
What does this mean? It does not mean that a verbal threshold case involving a disc herniation is automatically successful. It does mean that if there is no dispute regarding the fact that you have a herniated disc, the Judge may use the language above to explain to the jury that it is a permanent injury. If you can prove to the jury that the herniated disc is related to the automobile accident at issue in the case, then you have a better chance of winning your case.