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A jury is permitted to reject an uncontested expert’s opinion regarding the plaintiff’s “permanent” injuries in reaching the verbal threshold for awarding noneconomic damages.

January 1, 2010
Ganguly v. Vitabile, 2009 N.J. Super. Unpub. LEXIS 3070 (N.J. Super. Ct. App. Div. December 18, 2009)

The plaintiff sued for damages resulting from an automobile rear-end collision. Under New Jersey’s Automobile Insurance Cost Reduction Act, N.J.S.A. § 39:6A-8(a), a plaintiff cannot recover non-economic damages unless he overcomes the verbal threshold requirement of sustaining a “permanent” injury as defined by the statute. The plaintiff argued that the court should have granted his motion for a directed verdict because his expert opined that the plaintiff sustained a permanent injury to his right knee and the defendant's expert did not address the issue of permanency. The plaintiff argued that this presented undisputed evidence, no factual issue for a jury, and grounds for a directed verdict. The appellate panel found that a jury is free to reject expert testimony where facts in record permitted the jury to conclude that the injury to the plaintiff's right knee was not permanent because the knee "healed to function normally" after the automobile accident. Therefore, the motion for a directed verdict was properly denied.

Case Law Alert - 1st Qtr 2010

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