8.11 DAMAGES
CHARGES — GENERAL
F. AGGRAVATION
OF THE PREEXISTING DISABILITY Civil Model Jury Charge
(Approved 1/97)
In this case, evidence has been
presented that [plaintiff] had an illness/injury(ies)/condition before
the accident/incident — that is [describe the alleged preexisting injury]. I will refer to this condition as the
preexisting injury.[1] There are different rules for awarding
damages depending on whether the preexisting injury was or was not causing
plaintiff any harm or symptoms at the time of this accident.
Obviously, the defendants in this case
are not responsible for any preexisting injury of [plaintiff]. As a result, you may not award any money in
this case for damages attributable solely to any preexisting
illness/injury(ies)/condition.
I will now explain what happens if the [plaintiff]
was experiencing symptoms of the preexisting condition at the time of the
accident. If the injuries sustained in
this accident aggravated or made [plaintiff’s] preexisting injury more
severe, then the [plaintiff] may recover for any damages sustained due
to an aggravation or worsening of a preexisting illness/injury(ies)/condition
but only to the extent of that aggravation.
Plaintiff has the burden of proving what portion of his/her condition is
due to his/her preexisting injury.[2] [Plaintiff] is entitled to damages
only for that portion of his/her injuries attributable to the accident.
If you find that [plaintiff's]
preexisting illness/injury(ies)/condition was not causing him/her any harm or
symptoms at the time of the accident, but that the preexisting condition
combined with injuries incurred in the accident to cause him/her damage, then [plaintiff]
is entitled to recover for the full extent of the damages he/she
sustained.
[Use the following
where a preexisting latent condition is involved].
I will now explain what happens if [plaintiff]
had a predisposition or weakness which was causing no symptoms or problems
before the accident but made him/her more susceptible to the kind of medical
problems he/she claims in this case. If
the injuries sustained in this accident combined with that predisposition to
create the plaintiff's medical condition, then plaintiff is entitled to recover
for all of the damage sustained due to that condition. You must not speculate that an individual
without such predisposition or latent condition would have experienced less
pain, suffering, disability and impairment.[3]
[1] This rule does not apply to medical
malpractice cases; there the defendant has the burden of segregating recoverable
damages from those solely incident to preexisting disease. Fosgate v. Corona, 66 N.J. 268
(1974). See also Scafidi v. Seiler,
119 N.J. 93 (1990) and Model Civil Charge 5.50E. The burden of proving which of plaintiff's
conditions were caused by preexisting events is shifted to the defendants
whenever defendants have vastly greater access than plaintiff to crucial
proofs. Blanks v. Murphy, 268 N.J.
Super. 152 (App. Div. 1993) citing Sholtis v. American Cyanamid Co.,
238 N.J. Super 8 (App. Div. 1989) (applying the same principal in the
area of asbestos exposure injuries). See also Thornton v. General Motors Corp., 280 N.J. Super 295
(Law Div. 1994) applying the Fosgate and Scafidi principal of
burden shifting to the defendant manufacturer in a crashworthy case.
[2] There may be cases where based on medical
testimony or other evidence there is no dispute that the preexisting injury was
quiescent in which case the second and third paragraphs of the charge might be
omitted.
[3] Quagliato v. Bodner,
115 N.J. Super. 133 (App. Div. 1971) contains detailed instructions for
how to handle the unusual circumstance where two separate tortious events such
as automobile accidents within a few months which cause overlapping or
invisible injuries are properly consolidated for a damage-only trial after a
finding of liability.
