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Defendant Wins Dismissal of Personal Injury Suit Due to Plaintiff’s Inability to Apportion His Damages between Successive Accidents

By on April 8, 2016 in Uncategorized with 0 Comments

In a work related accident, plaintiff Alan Pickett fell on black ice at the defendant supermarket’s premises and injured his neck and back. About 8 months later, he suffered a second work related accident and severely aggravated his lower back injury. In Pickett v. ShopRite of East Norriton, 2016 N.J. Super. Unpub. LEXIS 442 (App. Div. March 1, 2016), the plaintiff appealed an order precluding his expert from testifying at trial and dismissing his personal injury case. The basis of the dismissal was the plaintiff’s inability to allocate his damages between the two accidents.

Following plaintiff’s first accident, he had an MRI of his lumbar spine as part of his treatment. Plaintiff received the only copy of the MRI film but later misplaced it. The radiology imaging center’s file was corrupted and no other films were available. Due to the unavailability of the film for defendant’s review, the trial court judge barred the plaintiff from introducing the MRI study into evidence.

At trial, the defendant moved to bar the plaintiff’s medical expert from testifying. The defendant argued that the doctor did not apportion the plaintiff’s injuries between the two accidents. Further, the defendant contended that, because the doctor relied on the 2010 MRI in his report, he would be unable to specify an apportionment of damages.

The trial court judge agreed and granted the defendant’s motion to preclude the doctor’s testimony. Without the doctor’s testimony, the court also granted the plaintiff’s motion to dismiss the case.

The Appellate Division ruled that the trial court’s decision to bar all references to the initial 2010 MRI was well within the trial court’s discretion. The court noted that the plaintiff’s doctor made only general statements indicating that the second accident caused most of the plaintiff’s injuries but failed to specify the percentage attributable to the first accident.

The Appellate Division pointed out that it is the plaintiff’s burden to prove the defendant’s negligence and that such negligence was the proximate cause of the plaintiff’s injury. To meet that burden, the plaintiff seeking to recover for an injury caused by successive accidents must apportion damages between each responsible party. The defendant should only be responsible for the harm he or she caused.

The court ruled that the plaintiff was in the best position to apportion responsibility between his two injuries suffered in these two accidents. Plaintiff, however, would normally need expert testimony for this apportionment. Because plaintiff’s expert was barred from testifying, plaintiff was unable to meet his burden of proving damages. Hence, the Appellate Division upheld the trial court’s dismissal of the suit.

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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.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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