Personal Injury Law and Proof of Permanent Injuries Though Objective and Medical Evidence

Paul and Steve Yoon v. Issac Effah

Superior Court Of New Jersey Appellate Division July 10, 2019

(Not For Publication)

Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.

Paul was driving his father’s car when this accident occurred, Paul was a student at a college in Rhode Island. Paul did not have his own car insurance and testified that he lived with his father and other family members. Defendant through his insurance company contended Paul was subject to the verbal threshold (requiring the plaintiff suffer a permanent injury as defined by the statute as a resident and immediate family member of his father, who had an automobile insurance policy that included the verbal threshold. Steve, Paul’s cousin was a passenger during the accident. Steve lived with his mother who was insured by a separate car insurance policy that also included the verbal threshold.

In February 2016, Paul Yoon, filed a personal injury lawsuit against defendant Issac Effah. Both plaintiffs claimed they suffered permanent back and neck injuries from the accident. Defendants argued plaintiffs failed to satisfy the verbal threshold statute. On April 11, 2018 the discovery window closed and the plaintiffs had not served any liability or medical causation expert reports. The day before arbitration, the plaintiffs served two reports from Dr. He, regarding her examinations of Paul and Steve. The date of the reports were dated two months prior and the reports find neck and back sprain and strain, lumbar radiculitis and spondylosis all related to the accident. The case did not settle at the court mandated arbitration an as a result defendant filed a motion to bar Dr. He’s report arguing they were served outside the discovery window. Plaintiff’s never responded to the motion. The trial court barred the expert from testifying or using reference to the medical records at trial.

On the trial date, both parties filed in limine motions. Defendants asked for an order ruling Paul’s claim was subject to the verbal threshold because he resided with his father in New jersey and was subject to his insurance choose as a resident relative. The defendants argued there was no question of fact since Paul went to college in Rhode Island but testified he lived with his Dad. The court viewed college as a temporary relocation and the verbal threshold applies since Paul did not have his own insurance and was residing with his father; an immediate family member.

The plaintiff’s made an in limine application to vacate the May 25, 2018 order that barred them from presenting their expert testimony at trial. The plaintiffs claimed they never received notice of the motion because of an error on the e-filing system. The court vacated the motion based on lack of service.

Defendant immediately moved in limine to dismiss plaintiff’s noneconomic claims, arguing based on Dr. He’s report. Defendant contends the reports did not state the plaintiffs sustained permanent injuries within a reasonable degree of medical certainty based upon objective evidence from the accident. Plaintiffs argue the MRI findings and plaintiffs’ medical treatment indicated they had suffered permanent injuries based upon the MRI findings and any permanent injury question should be decided by a jury. The trial court dismissed the noneconomic claims, finding plaintiffs had not satisfied the verbal threshold. The court found there was no proof of permanent injuries though objective and medical evidence.

Plaintiffs appeal and argue the trial court erred by ordering Paul had to satisfy the verbal threshold and defendant’s motion should not have been in limine is a “pretrial request that certain inadmissible evidence not be referred to or offered at trial.” Cho, 443 N.J. Super. at 470 (quoting Black’s Law Dictionary 1109 (9th ed. 2009)). The appellate court found the plaintiffs should have had time to show the court evidence before the trial court determined the verbal threshold applied. The appellate court vacated and remanded this case for further proceeding consistent to their opinion.