MARLENE MORGAN VS. PROGRESSIVE INSURANCE COMPANY, ETC. (L-4987-13, CAMDEN COUNTY AND STATEWIDE)
A-2964-15T2
| N.J. Super. Ct. App. Div. | Nov 8, 2017Background
- On Nov. 28, 2008, Morgan (passenger) was injured in a collision caused by Das; she settled with Das for $15,000 and sued her insurer Progressive for UIM benefits (policy limit $50,000).
- Parties stipulated Das’s sole liability; dispute concerned whether Morgan proved a permanent injury meeting AICRA’s limitation-on-lawsuit threshold (N.J.S.A. 39:6A-8(a)).
- Morgan testified to neck/upper-back pain, treatment (chiropractor, MRIs, orthopedist), activity limitations, and declined surgery; Dr. Gary Goldstein (plaintiff’s expert) testified to a cervical disc herniation made symptomatic by the 2008 accident.
- Progressive’s IME doctor, Dr. Brian Zell, attributed plaintiff’s condition to preexisting degenerative disease and found no radiculopathy; both experts agreed on preexisting cervical disease but disagreed on causation/ permanency.
- Jury found a permanent injury proximately caused by the 2008 accident and awarded $60,000; judge molded to UIM limits and credited $15,000 settlement, awarded plaintiff fees/costs under an Offer of Judgment, and denied Progressive’s post-trial/new-trial relief. Appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Admissibility of plaintiff statements in third-party medical reports | Morgan relied on her own testimony and expert; statements in Dr. Cataldo reports reflect plaintiff’s complaints and are admissible as party-opponent statements | Progressive sought to impeach using plaintiff’s statements in Dr. Cataldo workers’ comp reports as party-opponent admissions under N.J.R.E. 803(b)(1) | Trial court properly excluded the out-of-court statements as hearsay because defendant failed to lay a business-record foundation; no abuse of discretion |
| Jury charge on aggravation of preexisting condition | Morgan preserved and her expert put Progressive on notice that injury was produced or made symptomatic by the 2008 accident; an aggravation instruction was appropriate | Progressive argued no notice of aggravation claim and that Davidson requires a comparative analysis by plaintiff’s expert, which was lacking | Court held defendant had notice (interrogatory responses and Goldstein’s report) and Goldstein’s testimony supplied sufficient comparative analysis; charge was proper |
| Range-of-motion tests as objective proof under AICRA | Morgan’s proof included MRI and other objective evidence; ROM tests were not sole basis | Progressive contended Davidson prohibits reliance on ROM and subjective complaints to meet permanency threshold | Court found instruction on objective credible evidence sufficed; Goldstein relied also on MRIs, so denying special ROM instruction was not error |
| Adverse inference for lost workers’ comp litigation file (spoliation) | Morgan said records were stored off-site and missing; no intentional/negligent destruction | Progressive argued lost file warranted an adverse inference instruction | Court found no evidence of intentional/negligent loss and that elements of spoliation inference were not met; refusal to give adverse inference proper |
| Motion for judgment n.o.v. / sufficiency of evidence under AICRA | Morgan presented objective evidence (MRI, expert testimony) sufficient for reasonable jurors to find permanency and causation | Progressive argued plaintiff lacked objective credible medical proof of permanency caused by the 2008 accident | |
| Jury verdict sustainable | The record afforded sufficient evidence and reasonable inferences to support the jury’s finding; judgment n.o.v. not warranted |
Key Cases Cited
- Davidson v. Slater, 189 N.J. 166 (2007) (AICRA permanency standard and need for comparative analysis when claiming aggravation)
- Jerista v. Murray, 185 N.J. 175 (2005) (spoliation doctrine and adverse inference principles)
- Rosenblit v. Zimmerman, 166 N.J. 391 (2001) (spoliation remedies and adverse inference guidance)
- Hahnemann Univ. Hosp. v. Dudnick, 292 N.J. Super. 11 (App. Div. 1996) (business-records foundational requirements)
- Lanzet v. Greenberg, 126 N.J. 168 (1991) (standard for denying judgment notwithstanding the verdict)
- Verdicchio v. Ricca, 179 N.J. 1 (2004) (appellate standard and inferences on motions for judgment)