October 4, 2019
In an unpublished decision the New Jersey Appellate Division held in Mark Ragnacci v. Medhat Ghaba, a verbal threshold motor vehicle accident case, that the defense was permitted to cross-examine Plaintiff’s medical expert regarding a report he authored in Plaintiff’s prior workers’ compensation action. More specifically, the Appellate Division held that there was no reversible error by the trial court in permitting the defense to cross-examine Plaintiff’s expert on his opinion as to the percentage of permanent disability Plaintiff had suffered in the workers’ compensation action.
Prior to trial, the Defendant stipulated to liability for a November 2012 motor vehicle accident. At trial, the parties mostly disputed the cause and extent of Plaintiff’s alleged injuries to the left shoulder and cervical and lumbar spine. Plaintiff conceded that he was subject to the verbal threshold. Under the verbal threshold, N.J.S.A. 39:6A-8, a Plaintiff can only recover non-economic or pain and suffering damages upon proof of a permanent injury. Defendant asserted at trial that Plaintiff could not establish that he suffered a permanent injury from the relevant motor vehicle accident.
Plaintiff’s medical expert in the motor vehicle case, Dr. Barry Douglas Fass, had also authored a narrative report for Plaintiff in 2010 in connection with a workers’ compensation action. In the 2010 report Dr. Fass concluded that Plaintiff had suffered a 55 percent permanent partial disability of the cervical spine and left upper extremity and a 50 percent permanent partial disability of the lumbar spine. The trial court denied Plaintiff’s motion in limine seeking to bar Defendant from questioning Dr. Fass regarding those opinions. Accordingly, on cross-examination Dr. Fass testified regarding his conclusions in the 2010 narrative report. The jury ultimately returned a no cause verdict finding that Plaintiff failed to establish that he suffered a permanent injury in the motor vehicle accident.
On appeal, Plaintiff argued that the trial court erred in permitting the aforementioned testimony because it was misleading and confusing to the jury and was unduly prejudicial to Plaintiff under N.J.R.E. 403. The Appellate Division affirmed the trial court’s decision, finding that Plaintiff failed to demonstrate manifest error, injustice, or a clear error of judgment. The Appellate Division concluded that the testimony’s probative value was not outweighed by the risks of confusion or undue prejudice. However, the Appellate Division did note that the better course would have been to bar questions regarding the percentages of disability that were arrived at, and to confine the testimony to the physician’s opinion that Plaintiff had previously suffered permanent injuries. Furthermore, the Appellate Division found that even if admission of the testimony was in error, it was harmless because the experts provided clear explanations regarding the differences between the standards in this case and the workers’ compensation action.
Although an unpublished decision, the Appellate Division’s dicta regarding the “better course” in this action is instructive for future trial court decisions when prior workers’ compensation claims reveal potential pre-existing injuries. For more information on this topic, please contact MKC&I’s Derrick Grant at (973) 822-1110 or at dgrant@mcgivneyandkluger.com.