In Pickett v Shoprite of East Norriton, the New Jersey Appellate Division recently upheld the trial court’s preclusion of plaintiff’s medical expert resulting in the dismissal of plaintiff’s case with prejudice. Alan Picket slipped and fell on black ice at a grocery store while making a delivery. After the accident, plaintiff underwent a course of “conservative treatment. He had an MRI of his lumbar spine and took possession of the films. In an unlucky course of events, plaintiff suffered a second accident severely aggravating his prior lower back injury. Plaintiff’s bad luck continued when the only copy of the MRI films went missing.
Defendant’s counsel filed a pre-trial motion in limine to bar plaintiff’s medical expert’s testimony on two grounds: (1) the expert opinion did not apportion plaintiff’s injuries between the two accidents; and (2) the expert could not rely on plaintiff’s MRI because defendant’s expert did not have the opportunity to review them. The trial court agreed and barred all reference to the initial MRI.
On appeal, the Court explained, “In successive accident cases where a plaintiff seeks to recover from the original tortfeasor, the plaintiff must provide comparative medical evidence to isolate the physician’s diagnosis of the injury or injuries that are attributable to that tortfeasor’s negligent conduct.” Plaintiff’s expert needed to distinguish between the two back injuries. This would require him to comment on the initial MRI studies. The expert report did not satisfy the first requirement, and to compound the issue, he could not reference the MRI that was missing in action.
Thanks to Ann Marie Murzin for her contribution.