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New Jersey Lawyer - October 2005:

Verbal threshold
Appellate split could send issue to justices

By Robert G. Seidenstein

A split between two Appellate Division panels has created the possibility that a key verbal threshold issue may go to the New Jersey Supreme Court.

The issue centers on the so-called Polk comparative analysis under which a plaintiff's medical expert parses the degree to which a previous accident is responsible for the victim's injuries.
In Davidson v. Slater, decided last week, one panel said that in light of recent Supreme Court rulings, a Polk analysis was not required to meet the verbal threshold under which plaintiffs may sue for pain-and-suffering damages.

In Lucky v. Holland, decided the week before, the other panel required the comparative analysis.

Steven J. Jozwiak of Cherry Hill, the plaintiff's lawyer in Davidson, said the decision in his case means there is a greater chance plaintiffs could survive summary judgment motions made by defense counsel.

He said defense lawyers have focused on Polk analyses as a way to get cases dismissed ever since the Supreme Court decisions earlier this year in DiProspero v. Penn and Serrano v. Serrano.

Under those rulings, plaintiffs do not have the additional requirement of either showing a serious life impact or that their injury was serious in order to meet the verbal threshold.
In Davidson, Judge Erminie L. Conley wrote, "In our view, the comparative analysis requirement of Polk and its progeny engrafts an additional element upon [the] causation aspect of the verbal threshold standard."

The full texts of Davidson, Facts-on-Call Order No. 92701, and Lucky, Facts-on-Call No. 92688, can be ordered from NJL Online or by calling 800-670-3370. See digest of Lucky, Page 15. She added, "We recognize that another panel apparently views Polk as having continued viability in the context of verbal threshold summary judgment motions. We do not agree."

Polk v. Daconceicao was decided in 1993 before enactment of the Automobile Insurance Cost Reduction Act of 1998, which the Supreme Court said did not carry over the court-created verbal threshold requirements discussed in DiProspero and Serrano.
William J. Markwardt of Kent & McBride in Cherry Hill represented the defendant in Davidson.

In Lucky, Edward M. Colligan of Colligan & Colligan in Newark represented the plaintiff, while Brian G. Steller of Connell Foley in Roseland was the defendant's counsel.

Comments about this story may be sent to robert.seidenstein@njlnews.com

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