In proving damages in bodily injury claims, most states require expert support to provide objective evidence of a plaintiff’s subjective complaints of pain. In a recent New Jersey appellate case, the Court address the necessity of expert support for plaintiff’s claimed residual erectile dysfunction after a motor vehicle accident.
In Chetney v. NJM Re-Insurance Company, plaintiff was working as a paramedic when his ambulance was struck by a vehicle operated by an uninsured driver. Plaintiff claimed that the accident caused permanent injury to his lumbosacral spine. Plaintiff had a long history of prior accidents which included three motor vehicle accidents, one slip and fall, and four subsequent non-motor vehicle accidents. Despite the plethora of accidents, plaintiff claimed that he suffered from chronic pain, and that this accident was the principal cause of his permanent injury.
Plaintiff and his wife testified that the injury from this accident caused him to limit various recreational and family-related activities and negatively affected his quality of life. Plaintiff and his wife testified that he lived an active lifestyle which included sports, hunting, tumbling with his two toddlers and maintaining his lawn. Plaintiff built furniture as a hobby and participated in snow removal for himself and his neighbors. The aforementioned activities were severely restricted or eliminated entirely as a result of this accident.
In particular, plaintiff and his wife testified that he suffered from erectile dysfunction after the subject accident. His wife testified that she was pregnant at the time of the accident but had a miscarriage shortly after. Plaintiff’s wife testified that as a result of this accident, they were unable to conceive a third child or engage in intimacy. The salient point on the appeal pertained to the testimony about erectile dysfunction.
Defendant NJMRe filed a pre-trial motion to bar any testimony about the condition, contending that it was not adequately disclosed during discovery and that expert witness testimony was required to establish that plaintiff suffered from the condition. Further, NJMRe sought to redact portions of plaintiff’s orthopedic expert’s testimony in which he explained how nerve impingement in the lumbosacral spine could affect urologic function.
The trial court granted the motion as to expert’s testimony, concluding that he lacked the expertise to address urologic conditions, but denied it as to the testimony of plaintiff and his wife regarding erectile dysfunction. The court reasoned that expert testimony was not necessary to establish what plaintiff experienced himself. Although the appellate court agreed that the specific diagnosis of erectile dysfunction is outside the expertise of a lay witness, it noted that plaintiff and his wife avoided medical nomenclature and instead described in lay terms what he experienced and what she observed. As such, the appellate court found no issue with the testimony.
However, the appellate court found that expert testimony was required to establish causation. Quoting J.W. v. L.R., the appellate court held that competent expert testimony would be required to establish causation of a current medical or psychological condition. Based on this premise, the appellate court reversed and remanded the matter to the trial court.
It remains unclear, objectively, whether 1) plaintiff truly suffered from ED, and 2) if so, whether the ED was causally related to the accident. To put that claim before a jury, expert support would have been required. Thanks to Steve Kim for his contribution to this post. Please email Brian Gibbons with any questions.