When did judges become jurors? Or put a better way, when did the New Jersey Supreme Court overrule Brill and empower trial judges to become the deciders of the facts, obviscating the need for jury trials?

On any given Friday in any courthouse throughout this State, trial judges are usurping the function of our juries, dismissing meritorious cases, ruling that a given plaintiff has failed to meet either one or both of the present prongs of the verbal threshold. It was bad enough when the Appellate Division usurped the role of the Legislature, ignored established legal maxims and reinstated the subjective prong of the verbal threshold, despite the fact that the Legislature intentionally omitted the statutory phrase upon which the Supreme Court in Oswin v. Shaw, grafted onto the old verbal threshold statute, the significant impact requirement. Now, trial and appellate judges have created a higher and more stringent test to overcome the verbal threshold and then act as jurors in deciding whether certain injuries and certain medical opinions expressed by plaintiff’s treating physicians are sufficient to satisfy the objective prong and whether the complaints and limitations on a plaintiff’s activities of daily living are sufficient to satisfy the subjective prong.

In James v. Torres, the Appellate Division held that despite the change in language under AICRA, the Legislature intended that the Oswin standards was still applicable to cases covered under AICRA. Following Oswin, the Appellate Division in Dabal v. Sodora, made clear, implicitly if not explicitly, that the subjective prong of the verbal threshold was a question of fact for a jury to decide. In James, the Appellate Division simply held that that standard still applied. Most interesting is the fact that in James, the Appellate Division cited with approval the earlier decision in Dabal. Yet, decision after decision, trial and appellate courts have held that under James there is a new, more stringent standard. This just isn’t so. James continued the Oswin standard only.

The standard for deciding a summary judgment motion is covered by R.4:46-2(c) which states that a summary judgment motion shall be granted if the pleadings, depositions, etc show that there is no genuine issue as to any material fact challenged and that the moving party’s entitled to a judgment or order as a matter of law. In Brill v. Guardian Life Ins. Co. of America, 142 N.J. 520 (1995) the New Jersey Supreme Court held that the standard for summary judgment is that a movant must show on the full motion record, that the adverse party, who is entitled to have the facts and inferences viewed most favorably to it, has not demonstrated the existence of a dispute whose resolution in his favor will ultimately entitle him to judgment. The Supreme Court in Brill instructed that the motion judge was to consider whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party were sufficient to permit a rational fact finder to resolve the alleged disputed issue in favor of the non-moving party. Id at 540. The court cautioned however that the judge’s function is not to weigh the evidence and determine the truth of the matter, but determine whether there is a genuine issue for trial. Id at 540. The court, quoting from Bell v. Eastern Beef Co, 42 N.J. 126 stated that if reasonable minds could differ, the motion should be denied. Brill, 142 N.J. at 536. In Oswin v. Shaw, the New Jersey Supreme Court specifically and explicitly rejected the insurance carriers argument that verbal threshold motions should be decided by the trial judge, specifically noting that courts follow the summary-judgment standard in deciding verbal threshold motions. The court concluded that once a court determines that evidence bearing on a plaintiff’s injuries could, if believed by the fact finder, satisfy the statutory verbal-threshold requirement, any disputed issues regarding the nature and extent of those injuries must be decided by the jury. 120 N.J. at 313.

In arguing verbal threshold motions throughout this State and witnessing trial courts deciding motions of other litigants, it is clear that whether or not a party is successful or unsuccessful in defending against a summary judgment motion depends upon the trial judge in front of whom the case is heard. For every factual scenario in which one trial court has dismissed a case, one can find a similar case where the verbal threshold motion was denied. Cases which would survive verbal threshold motions in one county are routinely dismissed in others. Making matters worse, there is no consistency in a specific county. In one county, a trial judge routinely dismisses verbal threshold cases while in another courtroom in the same building, another judge has held that the subjective prong of the verbal threshold is always a jury question.

Having recognized the arbitrariness of our trial courts, how then can any court dismiss a case on the verbal threshold where plaintiff presents proofs from his/her treating or examining physician that there is objective proof of permanent injury and there is a certification or sworn testimony of the plaintiff outlining the significant impact that the specific injury has had on his or her life. If the standard enunciated in Brill is that motion for summary judgment must be denied where reasonable minds could differ, how can any trial judge find that a plaintiff has failed to sustain his/her burden, having been given all the reasonable inferences, when a different judge under the same facts would deny that motion? Are judges that deny motions for summary judgment unreasonable or unrational or are the judges granting such motions simply disregarding the appropriate standard?

I recently sat in a courtroom and heard a judge rule in favor of a defendant on a verbal threshold motion. The trial court held that a bulging disc did not satisfy the objective prong, nor did an EMG. When did the Rules of Evidence permit trial judges to take judicial notice of medical issues? R. Evid.201 outlines those facts upon which a court can take judicial notice. How can a court take judicial notice that a bulging disc was not traumatically caused when plaintiff’s treating doctor has given the medical opinion that it was? When did the opinions of the defendant’s hired guns, those radiologists who continually testify in our courts that plaintiff’s bulging discs, protruding discs, and herniated discs cannot be traumatically induced become a matter of law. Where does a court draw the power to decide as a matter of law that an EMG is not objective proof of a nerve injury?

The role of the trial judge is to be the decider of the law while the function of the jury is to be the decider of fact. If there is no material dispute of fact, then summary judgment is appropriate. But where a plaintiff presents testimony from a qualified treating or examining physician that plaintiff has sustained an objectively documented permanent injury and where a plaintiff demonstrates that he or she is unable to engage in one or more activities of daily living that he or she did and participated in before the injury, then the decision as to whether or not a plaintiff satisfied the requirements of the verbal threshold should be left for the jury, the constitutional fact finder, and not for the trial court.