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Plaintiff’s Expert Report Barred Due to Failure to Distinguish Permanent Injury Suffered in Two Consecutive Car Accidents

By on October 23, 2020 in Discovery with 0 Comments

Plaintiff Abigail Perdomo appealed the trial court’s decision barring the expert report of her treating physician, Dr. Wayne Petermann, a chiropractor, as a net opinion.  Plaintiff had been in two different motor vehicle accidents in December, 2010 and, three years later, in November, 2013.  The issue in Perdomo v. Orgacki, 2018 N.J. Super. Unpub. LEXIS 1013 (App. Div. May 1, 2018) was whether Dr. Petermann’s expert report should be barred because he failed to satisfactorily explain how the 2013 accident could have caused plaintiff a 70% permanent injury to her lower back when he had previously opined that the 2010 accident caused the same permanent injury. 

Plaintiff had been a passenger in an automobile accident in December, 2010.  Three months later, she came under Dr. Petermann’s care and an MRI exam showed that she had suffered disc bulges at L4-5 and L5-S1 that were attributable to her accident.  Three years later, in November, 2013, she was in another automobile accident in which she was driving and she was rear-ended by the automobile driven by defendant Orgacki. 

A subsequent lumbar MRI showed disc bulging at L4-5 and L5-S1.  Dr. Petermann, again treated the plaintiff and issued an expert report that acknowledged the prior diagnosis of a lower back injury “with some degree of permanency” from the 2010 accident, and relied upon the 2013 MRI results, to opine that she “suffered a further permanent partial impairment of her lower back (70%) attributable to” the 2013 accident. 

At the completion of discovery, the defendant Orgacki moved for summary judgment, arguing that the plaintiff, whose claim was subject to the verbal threshold, “failed to establish credible objective medical evidence that she sustained a permanent injury because of the accident.”  In the alternative, the defendant requested that Dr. Petermann’s expert report be barred as a net opinion.

The trial court judge did not dismiss plaintiff’s complaint but instead determined that Dr. Petermann’s report was a net opinion and, therefore, barred.  The judge found that his report was vague.  Dr. Petermann had concluded that Plaintiff had suffered a permanent partial impairment that is 70% attributable to the 2013 motor vehicle accident.  This finding took into account that she had suffered a permanent injury to her lumbar spinal disc as evidenced by the MRI findings and that her activities of daily living had been affected to some degree.  However, the trial court judge noted that there was no other objective testing performed by Dr. Petermann.  There was no explanation as to how he arrived at the 70% permanent injury opinion.  Dr. Petermann had stated that “until additional evidence or medical records became available, it’s my opinion that it’s a [seventy] permanent injury from this accident.”  That statement said to the Judge that the expert had not reviewed anything else.

Upon appeal, the Appellate Division noted that the standard under Rule of Evidence 703 to recognize an expert opinion was as follows: it must be “be grounded from facts or data derived from (1) 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 normally the type of data relied upon by experts.”   From this standard, the net opinion rule developed to “forbid the admission into evidence of an expert’s conclusions that are not supported by factual evidence or other data.”  The Appellate Division noted that an expert must explain the causal connection between the act or incident complained of and the injury or damages resulting from that incident.  Further, expert testimony cannot be “based merely on unfounded speculation and unquantified possibilities”.  Finally, the Appellate Division noted that the experts must “give the why and wherefore of their opinions, not mere conclusions.”

Using these principles, the Appellate Division found no merit to the plaintiff’s argument that Dr. Petermann’s expert report was not a net opinion.  Dr. Petermann’s opinion that the plaintiff’s back injury was 70% permanently injured due to the 2013 accident was a baseless conclusion because he failed to state the “why and wherefore” of this opinion.

Although the plaintiff had not affirmatively plead an aggravation to her prior injury, the Appellate Division stated that a diagnosis of aggravation of a pre-existing injury or condition had to be based upon “an evaluation of the medical records of the patient prior to the trauma with the objective medical evidence existent post-trauma.”  This analysis was required to differentiate a subsequent injury to a body part that was previously injured whether aggravation of the prior injury is alleged or not. Here the Appellate Division found that there was also no proof of aggravation.            

Accordingly, the Appellate Division found no reason to disturb the motion judge’s prior determination that Dr. Petermann’s opinion was inadmissible because it was a net opinion.  Thus, the Appellate Division affirmed the trial court’s decision, barring the expert report of the treating physician. Realistically, without an expert report available to opine as to a permanent injury to meet the verbal threshold standard, the next step would be a dismissal of the lawsuit.

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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.

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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