A. Introduction
In order to recover damages in this case, plaintiff must prove by a preponderance of the evidence that [he] [she] sustained injuries which fit into one or more of the following categories:
Note to Judge
Charge 1, 2, 3, 4, 5, 6 or any combination of them, depending on the proofs in each case.
1. Death;
2. Dismemberment;
3. Significant disfigurement or significant scarring;
4. Displaced fracture;
5. Loss of a fetus;
6. A permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.
If you find the injuries caused by the accident do not come within one of these categories, your verdict must be for the defendant. If you find the injuries caused by the accident do come within one of these categories, your verdict must be for the plaintiff.
B. Permanent Injury (Type 6)
In this case, the plaintiff alleges that [he] [she] suffered a permanent injury as a result of the motor vehicle accident. An injury shall be considered permanent when the body part or organ, or both, has not healed to function normally and will not heal to function normally with further medical treatment.[2]
Plaintiff must prove this claim through objective, credible medical evidence. Objective proof means the injury must be verified by physical examination or medical testing and cannot be based solely upon the plaintiff’s subjective complaints. Credible evidence is evidence you find to be believable.
C. Sample Interrogatories (Limitation on Lawsuit Option)
(Category 1) Has the plaintiff proven by a preponderance of the credible evidence that the decedent [insert name] died as a proximate result of the accident?
_____ Yes _____ No _____ Vote
(Category 2) Has the plaintiff proven by a preponderance of the credible evidence that [he] [she] sustained a dismemberment that was proximately caused by the accident?
_____ Yes _____ No _____ Vote
(Category 3) Has the plaintiff proven by a preponderance of the credible evidence that [he] [she] sustained a significant disfigurement or significant scarring that was proximately caused by the accident?
_____ Yes _____ No _____ Vote
(Category 4) Has the plaintiff proven by a preponderance of the credible evidence that [he] [she] sustained a displaced fracture that was proximately caused by the accident?
_____ Yes _____ No _____ Vote
(Category 5) Has the plaintiff proven by a preponderance of the credible evidence that she lost a fetus as a proximate result of the accident?
_____ Yes _____ No _____ Vote
(Category 6) Has the plaintiff proven by a preponderance of the credible evidence that [he] [she] sustained a permanent injury that was proximately caused by the accident?
_____ Yes _____ No _____ Vote
(Damages) What amount of money will fairly and reasonably compensate the plaintiff for all injuries that were proximately caused by the accident?
$______________________ _____ Vote
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[1] See N.J.S.A. 39:6A-8a. Though not numbered in the statute, the Limitation on Lawsuit Option within the Automobile Insurance Cost Reduction Act of 1998 (L.1998, c. 21 and c. 22) (“AICRA”), the categories are: (1) death; (2) dismemberment; (3) significant disfigurement or significant scarring; (4) displaced fractures; (5) loss of a fetus; (6) a permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement. The effective date of this provision of AICRA is March 22, 1999. Therefore, the Limitation on Lawsuit Option shall apply to individuals who, at the time of the accident, were insured under automobile liability insurance policies issued after March 22, 1999. By way of example, if an individual was involved in a motor vehicle collision on March 23, 1999, but was still covered under a policy issued before the effective date of the statute (March 22, 1999), he or she will be subject to the verbal threshold charge applicable to L.1988, c.119 effective January 1, 1989.
[2] This definition of “permanent injury” is taken directly from the Automobile Insurance Cost Reduction Act of 1998 (“AICRA”), N.J.S.A. 39:6A-8. In DiProspero v. Penn, 183 N.J. 477 (2005), the New Jersey Supreme Court held that the Legislature did not intend to require a plaintiff with a Type 6 injury to prove a “serious or substantial impact” on his or her life in order to pierce the verbal threshold. Therefore, a plaintiff need only prove a permanent injury, as defined in the statute, to recover for non-economic damages.
