Plaintiff appealed from summary judgment in favor of Defendants in her personal injury case. The motion judge found that Plaintiff failed to demonstrate a permanent condition satisfying the requirements of the verbal threshold statute in New Jersey or a causal relationship between that condition and the accident that was the subject of suit.
Plaintiff was involved in a motor vehicle accident but didn’t immediately seek medical attention. A week later, she was found unresponsive at her home and was transported by ambulance to a hospital. She was then diagnosed with a pulmonary embolism. The hospital progress notes stated that Plaintiff “apparently suffered a closed head injury, TBI [(traumatic brain injury)], and may be suffering from post-concussive, intermittent delirium with disorientation.” After being discharged from the hospital, she was transferred to a rehabilitation facility where it was recommended that she undergo a neuropsychological evaluation to determine if the TBI was contributing to “her loss of memory and behavioral aberrancies.” However, the evaluation was ever performed.
The judge stated, “there is not sufficient objective credible medical evidence to reach a jury on the question of whether Plaintiff suffered a brain injury causing permanent ‘mental decline.’” In addition, the judge held that there were no medical records that “specifically diagnose Plaintiff with TBI.”
None of Plaintiff’s specialists opined that she suffered the requisite permanent injury. It was only her family physician—who treated her for 10 years and examined her shortly before the accident—who opined generally that, “Plaintiff suffered a severe decline in mental status; that in his professional opinion the decline in mental status was caused by the car accident; and that ‘[t]his injury has not healed to function normally and will not heal to function normally with further medical treatment.’”
The motion judge concluded that this constituted a “net opinion.” A net opinion is “an expert’s bare opinion that has no support in factual evidence or similar data…” An expert witness’s opinions that are not reasonably supported by the factual record and an explanatory analysis from the expert may be excluded as net opinion.
Plaintiff argued that the order should be reversed because sufficient, objective medical evidence was presented to show that plaintiff sustained a permanent injury as defined in N.J.S.A. § 39:6A-8(a) because her mental acuity tests showed a “mild cognitive impairment” and “mental decline” that satisfied the verbal threshold. Further, Plaintiff argued that her family physician was in a better position to opine as to her mental decline because he treated her for nearly a decade and he evaluated her a month before the accident.
In a per curiam decision before Judges Suter and Firko, the New Jersey Superior Court, Appellate Division, explained that a plaintiff who is subject to the limitation on lawsuit threshold in N.J.S.A. 39:6A-8(a) must present “objective clinical evidence” that the injury falls within one of the categories of injuries enumerated in the statute. To “vault” the threshold, a physician must certify that, “the automobile accident victim suffered from a statutorily enumerated injury.”
Under that standard, which is a critical element of the cost-containment goals of New Jersey’s Automobile Insurance Cost Reduction Act, the necessary objective evidence must be “derived from accepted diagnostic tests and cannot be ‘dependent entirely upon subjective patient response.’”
A physician opining on the permanency of a plaintiff’s injury must make such a determination through the use of objective medical evidence, the Court said. If the objective evidence depends on diagnostic and medical testing, those tests “may not be experimental in nature or dependent entirely upon subjective patient response.” The Legislature intended these rigorous standards to ensure that a plaintiff could use only honest and reliable medical evidence and testing procedures to prove that an injury met the threshold.
The judges found that the report prepared by Plaintiff’s family physician was based only upon his own general observations of plaintiff’s behavior. The doctor didn’t perform any objective testing on her, as required by statute. In fact, no medical tests were performed on Plaintiff in accordance with N.J.S.A. 39:6A-4.7, and no neurological exam was conducted. Likewise, the Court found that the doctor’s permanency certification simply stated that the accident caused Plaintiff’s mental decline—no medical records established a TBI diagnosis either.
Plaintiff failed to present any evidence of a causal connection through objective, credible medical evidence that her apparent mental decline resulted from the accident, the Court held. In her certified answers to interrogatories, the only injury Plaintiff claimed by was a “significant decline in her mental status.” There were no depositions taken, and the only proffer made to the motion judge in opposition was the doctor’s physician certification. That judge aptly found that he offered a net opinion because no records or medical tests substantiated his bare conclusions.
The Court explained that a court must ensure that the proffered expert doesn’t offer a mere net opinion.
Here Plaintiff’s family physician offered a net opinion because it was based upon speculation and therefore, not reliable. In light of these circumstances, the Court held that Plaintiff failed to satisfy the required showing of a permanent injury sufficient to withstand summary judgment.