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Chiropractor’s Report Barred in Automobile Accident Case Due to Inability to Distinguish Between Lumbar Permanency Plaintiff Suffered in Two Different Accidents

By on March 18, 2019 in Permanency with 0 Comments

Plaintiff Abigail Perdomo claimed to have suffered a lumbar injury causing two disc bulges at L4-5 and L5-S1 in a December 2010 automobile accident. Thereafter, in November 2013, plaintiff was again in an automobile accident and testing showed that she had the same two bulging discs. In Perdomo v. Orgacki, 2018 N.J. Super. Unpub. LEXIS 1013 (App. Div. May 1, 2018), the case involving the second accident, the issue was whether the report of her chiropractor, who treated her for both accidents, was a net opinion due to his failure to adequately explain how the second accident caused “more” permanency.

The plaintiff underwent an MRI after the 2010 accident, which showed that she suffered lumbar disc bulges as L4-5 and L5-S1, which were attributable to that accident.  Plaintiff’s treating chiropractor, Dr. Wayne Petermann, issued a report opining that the 2010 accident caused her to suffer a permanent injury.

Three years later, after being involved in another automobile accident, that plaintiff had another MRI which had the same finding.  Dr. Petermann again treated plaintiff and issued a report that acknowledged his prior diagnosis of plaintiff’s low back injury “with some degree of permanency” from the 2010 accident and, then relying on the MRI results following the second accident, opined that plaintiff “suffered a further permanent partial impairment of her lower back that is [seventy percent] attributable to” her 2013 accident.

After discovery was completed, the defendant filed a motion for summary judgment, arguing that plaintiff, who was subject to the verbal threshold under N.J.S.A. 39:6A-8(a)(requiring a permanent injury as one of the basis to pursue a pain and suffering claim in an automobile accident), “failed to establish credible objective medical evidence that she sustained a permanent injury because of the accident.”  As an alternative argument, the defendant claimed that Dr. Petermann’s expert report should be barred as a “net opinion.”

Although the motion judge declined to dismiss the plaintiff’s complaint, he did determine that Dr. Petermann’s report was a net opinion and, hence, barred his report. The trial court judge noted that the doctor did no objective diagnostic testing, nor did he explain how he arrived at a 70 percent permanent injury that he concluded was caused by the 2013 accident. Also, the judge pointed out that the doctor stated that was his conclusion “until additional evidence or medical records become available,” which the judge interpreted to mean that the doctor had not reviewed anything upon which he based this opinion.

The Appellate Division recited the well-established rules concerning the basis of an expert opinion, that they must be “grounded in ‘facts or data derived from (1) the expert’s personal observations, or (2) evidence admitted at the trial, or (3) data relied upon by the expert which is not necessarily admissible in evidence but which is the type of data normally relied upon by experts.” The net opinion rule bars “admission into evidence of an expert’s conclusions that are not supported by factual evidence or other data.” The experts must “give the why and wherefore of their opinions, not mere conclusion[s].”

The Appellate Division agreed with the trial court judge that Dr. Petermann’s report was a net opinion. His opinion was not supported by his examination of the plaintiff. Dr. Petermann tried to overcome his prior opinion that plaintiff suffered a permanent back injury from the 2010 accident by opining that her back was 70% permanently injured from the 2013 accident. However, he failed to explain the basis of that opinion. His report did not include the “why and wherefore” necessary to substantiate his opinion.

Further, the Court agreed that the plaintiff failed to affirmatively plead that her prior injury was aggravated by the subsequent accident. Even if she had, the Court found that she failed to submit proof of an aggravation. Based upon prior case law (Polk v. Daconceicao), an aggravation of a pre-existing injury or condition “must be based upon … an evaluation of the medical records of the patient prior to the trauma with the objective medical evidence existent post trauma.”

Even if an aggravation is not alleged, a Polk analysis is required to differentiate a subsequent injury to a body part that was previously injured. The plaintiff would need to submit comparative medical evidence “to isolate the physician’s diagnosis of the injury or injuries that are allegedly permanent as a result of the subject accident.”

Because the plaintiff failed to submit such proofs, the Appellate Division agreed with the motion judge’s ruling that Dr. Petermann’s opinion was inadmissible because it was a net opinion. Accordingly, it affirmed the motion judge’s ruling barring Dr. Petermann’s report.

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Betsy G. Ramos

About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

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