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Civil Model Jury 5.33A Verbal Threshold

5.33A Verbal Threshold (Type 6, 7, 8 or 9 Injuries)1 (3/10)

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 or any combination of them, depending on the proofs in each case.

1. Permanent loss of use of a body organ, member, function or system (Type 6);

2. Permanent consequential limitation of use of a body organ or member. (Type 7); or,

3. Significant limitation of use of a body function or system (Type 8). If the injuries caused by the accident do not come within these categories, your verdict must be for defendant.

In cases with two or more defendants, some of whom have available the Limitation on Lawsuit Option defense and others who do not, charge the following:


The jury should answer two specific interrogatories as to each defendant: (1) was this defendant negligent; (2) if so, did the negligence proximately cause plaintiffs injuries? If more than one defendant was negligent and their negligence proximately caused plaintiffs injuries, the jury has to find what percentage of the total negligence or fault is attributable to each defendant. Once the jury answers those questions, it should then determine whether or not plaintiff satisfied the applicable threshold which applies to a defendant. Then the jury should affix damages. Bolz v. Bolz, 400 N.J. Super. 154 (App. Div. 2008).

B. Permanent Loss of Use of a Body Organ, Member, Function or System (Type 6)

The first category is permanent loss of use of a body organ, member, function or system. In this case, the plaintiff alleges permanent loss of use of [insert body organ, member, function or system]. In order to prevail, the plaintiff must prove all three of the following elements:

1. That he/she sustained a loss of use of his/her [insert body organ, member, function or system].

In order to find that plaintiff sustained a loss of use of his [insert body organ, member, function or system], you must find either that the [insert body organ, member, function or system] no longer operates at all, or that it operates only in some limited way.[2] It is not necessary that there be a total loss of use of [insert body organ, member, function or system].

Plaintiff must show proof of the injury by objective, credible evidence; that is, the proofs must be both objective and credible. Objective means that the evidence must be verified by physical examination and observation and cannot be based solely on plaintiffs complaints. Credible means that the evidence is believable.

2. That the loss of use of [insert body organ, member, function or system] is permanent.

3. That the injury has had a serious impact on the plaintiffs life. This means that the plaintiff must prove that the injury has seriously affected one or more activities which were a significant and important component of the plaintiffs way of life.[3]

C. Permanent Consequential Limitation of Use of a Body Organ or Member (Type 7)

The second category is permanent consequential limitation of use of a body organ or member. In this case, the plaintiff alleges permanent consequential limitation of use of [insert body organ or member].

In order to prevail, the plaintiff must prove all three of the following elements:

1. That he/she sustained a consequential limitation of use of [insert body organ or member].

The phrase consequential limitation of use of a body organ or member means that the limitation of use of a body organ or member must be significant.

In order to fall into this category, the limitation of use cannot be merely mild or minor. Rather, it must be important, significant, and of some consequence.

It is not necessary that there be a total loss of use of [insert body organ or member]. You must find that the [insert body organ or member] has been limited or restricted in its operation in some significant way. A minor, mild or slight limitation is not consequential. Thus, in order for you to find that any of the plaintiffs injuries fall within this category, the plaintiff must prove that he/she has a limitation of use of his [insert body organ or member] that is of consequence and important in nature.

Plaintiff must show proof of the alleged injury by objective, credible evidence. That is, the proofs must be both objective and credible. Objective means that the evidence must be verified by physical examination and observation and cannot be based solely upon plaintiffs complaints. Credible means that the evidence is believable.

2. That the limitation of use of [insert body organ or member] is permanent.

3. That the injury has had a serious impact on the plaintiffs life. This means that the plaintiff must prove that the injury has seriously affected one or more activities which were a significant and important component of the plaintiffs way of life.[4]

D. Significant Limitation of Use of a Body Function or System

(Type 8)

The third category is significant limitation of use of a body function or system. In this case, the plaintiff alleges a significant limitation of use of [insert body function or system].

In order to prevail, the plaintiff must prove:

1. That he/she sustained a significant limitation of use of his [insert body function or system].

The phrase significant limitation of use of a body function or system means that the use of a body function or system is limited in a serious manner.


It is not necessary that there be a total loss of use of (insert body function or system). You must find that there is a limitation of use of the [insert body function or system] which is significant, important or meaningful. A minor, mild or slight limitation of use is not sufficient. For this category, the limitation of use of [insert body function or system] need not be permanent.

Plaintiff must show proof of the alleged injury by objective, credible evidence. That is, the proofs must be both objective and credible. Objective means that the evidence must be verified by physical examination and observation and cannot be based solely upon plaintiffs complaints. Credible means that the evidence is believable.

2. That the injury has had a serious impact on the plaintiffs life. This means that the plaintiff must prove that the injury has seriously affected one or more activities which were a significant and important component of the plaintiffs way of life.[5]

E. Verbal Threshold (Type 9 Injuries) N.J.S.A.39:6A-8a

In order to recover damages in this case, plaintiff must prove by a preponderance (greater weight) of the evidence that the injury he/she sustained is:


A medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute that persons usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.[6]

In order to prevail, the plaintiff must prove all three of the following elements:

1. Plaintiff must satisfy you of the injury or impairment [describe] by objective, credible medical evidence; that is, the proofs must be both objective and credible. Objective means that the evidence must be verified by physical examination and/or testing and cannot be based solely on plaintiffs complaints. Credible means that the evidence is believable.

2. That the injury or impairment [describe] prevented the plaintiff from performing substantially all of the material acts which made up the plaintiffs usual and customary daily activities.

In determining plaintiffs usual and customary daily activities you are to consider all of the activities which were a significant part of the plaintiffs usual daily routine. While you may find the plaintiffs employment to be a usual activity, you must give equal attention to the details of the plaintiffs other usual and customary activities such as marital, household, social, athletic or recreational activities.[7] You are to consider all of the plaintiffs usual activities, not just a primary one.[8]

3. Once you have determined what material acts constituted the plaintiffs usual and customary daily activities before the injury or impairment,[9] you must decide whether the plaintiff presented sufficient objective evidence showing that his/her injury or impairment [describe] prevented him/her from performing substantially all of these activities during at least 90 of the 180 days following the occurrence of the injury. The impact of the injury or impairment on these activities must have been to a great extent rather than a slight curtailment.[10]

If you find that the plaintiff has established these three elements, then your verdict must be in favor of the plaintiff on this verbal threshold issue and you will answer the question yes.

If you find that plaintiff has not proved each of these elements then you must answer the question no.[11]

F. Sample Interrogatories (Verbal Threshold Types 6, 7, 8 & 9)

1. Has the plaintiff sustained an injury, caused by this accident, consisting of a permanent loss of use of a body organ, member, function or system?

 Yes  No

2. Has the plaintiff sustained an injury, caused by this accident, consisting of a permanent consequential limitation of use of a body organ or member?[12]

 Yes  No

3. Has the plaintiff sustained an injury, caused by this accident, consisting of the significant limitation of use of a body function or system?

 Yes  No

4. Has the plaintiff sustained an injury, caused by this accident, which prevented the plaintiff from performing substantially all of his/her customary daily activities for at least 90 of the first 180 days following the accident?

 Yes  No

IF YOU ANSWERED ANY OF THE ABOVE FOUR QUESTIONS YES, CONTINUE TO QUESTION 5. IF YOU ANSWERED, ALL OF THE ABOVE QUESTIONS NO, CEASE DELIBERATIONS AND INFORM THE COURT YOU HAVE REACHED A VERDICT.

5. What amount of money will fairly and reasonably compensate plaintiff for the injuries proven to be proximately caused by this accident?

$______________________

NOTE TO JUDGE

The court may add negligence and proximate cause questions to these interrogatories to make up a verdict sheet.



[1] See N.J.S.A. 39:6A-8a. Though not numbered in the statute, the categories are: (1) death; (2) dismemberment; (3) significant disfigurement; (4) fracture; (5) loss of a fetus; (6) permanent loss of use of a body organ, member, function or system; (7) permanent consequential limitation of use of a body organ or member; (8) significant limitation of use of a body function or system; (9) a medically determined injury or impairment of a non-permanent nature which prevents the injured person from performing substantially all of the material acts which constitute that persons usual and customary daily activities for not less than 90 days during the 180 days immediately following the occurrence of the injury or impairment.

[2] Bassett v. Romano, 511 NYS 2d 298 (1987). Permanency may include persistent pain, operation of an organ in a limited way, or only with pain.

[3] Oswin v. Shaw, 129 N.J. 290, 318 (1992); Dabal v. Sodora, 260 NJ Super. 397, 401 (App. Div. 1992).

[4] Oswin v. Shaw, supra at 318; Dabal v. Sodora, supra at 401.

[5] Oswin v. Shaw, supra at 318 (1992); Dabal v. Sodora, supra at 401.

[6] N.J.S.A. 39:6A-8a.

[7] See Jefferson v. Freeman, 296 N.J. Super. 54, 66 (App. Div. 1996) (holding that jury instructions which focused the jurys attention on the time plaintiff was absent from work to the exclusion of other aspects of plaintiffs daily activities were erroneous).

[8] See Jefferson v. Freeman supra at 63-64. See generally, Duffy v. OConnell, 279 N.J. Super. 672 (App. Div. 1995).

[9] See Duffy v. OConnell, supra at 677 (noting that the cataloging plaintiffs usual and customary daily activities is an obvious part of plaintiffs case).

[10] Jefferson v. Freeman, supra at 63.

[11] A jury questionnaire must be submitted to the jury on this issue: Did the plaintiff sustain an injury or impairment which prevent him/her from performing substantially all of the material activities which constitute his/her usual and customary daily activities for not less than 90 days during the 180 days immediately following the injury or impairment yes or no?

[12] The court, when going over this interrogatory with the jury, may want to state as follows: If you find permanent limitation of use, and that the limitation is consequential, as I have defined it, you must answer the question Yes. If you find that there is no permanent limitation, or the limitation is not consequential, you must answer the question No.

Source https://www.judiciary.state.nj.us/civil/civindx.htm

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Since 1985, KENNETH VERCAMMEN has worked as a personal injury attorney, working for injury victims and their families. By taking a hard-hitting, aggressive approach toward the insurance companies, KENNETH VERCAMMEN and our co-counsel have consistently obtained outstanding results for many injured clients over the years I am proud to have worked on cases in various capacities, small and large. While obviously prior results cannot guarantee the outcome of future cases, I can guarantee that you case will receive the same degree of dedication and hard work that went into each of these prior cases.

In direct contrast to the hard-hitting approach we take toward the insurance companies is the soft approach we take toward our clients. I am proud of my compassionate staff as I am of the outstanding financial results they have achieved. For many years, I have watched them treat our clients with patience, dignity and respect. I would have it no other way.

Many years ago, I attended a seminar sponsored by the American Bar Association on Law Practice Management. This was to help insure that each of our clients is always treated like a person -- not a file! We recognize that you are innocent victims and that you have placed your trust in us. Please understand that we understand what you are going through. Feel comforted that we are here to help you.

If you retain KENNETH VERCAMMEN to represent you, we will give you the same advice we give each of our clients -- concentrate on your life, you family and your health. We will take care of everything else. Leave all of the work and worry about your legal rights to us. Trust us. Believe in us. Have faith in us as your attorneys. Understand that we will always to do what we believe is best for you and your case. Helping you is our job. In fact, it is our only job -- guiding injury victims like you through one of the most difficult times of your lives, with care and concern -- while fighting aggressively to the limits of the law to obtain compensation and justice for each of you!

Print our Personal Injury Questionnaire on our Website, Fill it out and Fax back, so we can determine if we can help you obtain an injury settlement. We would welcome an opportunity to prove to you what we have proven to thousands of injured clients -- that you can feel comfortable and secure in the fact that KENNETH VERCAMMEN - Trial Attorney We Fight To Win.

When you have been injured in an accident or collision, you are worried about who is going to pay your medical bills, lost wages, and other damages. The last thing you want is to be taken advantage of by an insurance company. If you dont protect your rights, you may not be able to make a claim.

Insurance companies have attorneys and adjusters whose goal is to pay you as little as they can. You need a New Jersey personal injury lawyer to fight for you. I am dedicated to helping your recover as much money as possible under the law.

You need an attorney who will work hard to protect your rights, maximize your insurance settlement and minimize the hassles of dealing with the insurance companies. You need an experienced and aggressive New Jersey trial lawyer with PROVEN RESULTS who will fight for you. Having an experienced personal injury lawyer can make the difference between getting what you deserve and getting nothing.

Without the threat of a lawyer who is willing to go to trial and seek a big jury verdict, why would an insurance company pay you what your claim is really worth? Lawsuits can be expensive, and many people do not have the money to pursue their claim. In every case, I advance all costs associated with pursuing your case and I do not ask you for a penny until we recover from the other side.

I am an experienced aggressive trial lawyer and a 3rd degree Black Belt. I am not afraid to take your case to trial if that is what it takes to maximize the amount of money your recover for your personal injury. I offer one-on-one service, and I will not hand your case off to an inexperienced lawyer or a paralegal.

Reduce the stress of making a claim.

Personal injury accidents can turn your life upside down. Making a personal injury claim can be difficult and time consuming. Once I take your case, you can stop worrying about dealing with the insurance companies and focus on recovering from your injuries. I take care of all of the paperwork, phone calls, and negotiations, so you can get on with your life.

p.s. For those clients who are afraid or reluctant to go to Court, KENNETH VERCAMMEN also offers a special -- For Settlement Only -- program. This means that if we are unable to settle with the insurance company, we will not go any further -- unless you want us to. You have my personal assurance that there will be absolutely no pressure and no obligation.

We handle personal injury cases on a contingency fee basis.

This means: YOU DONT OWE ME A LEGAL FEE UNLESS I RECOVER MONEY FOR YOU.

Call our office to schedule a "confidential" appointment 732-572-0500

Kenneth A. Vercammen is the Managing Attorney at Kenneth Vercammen & Associates in Edison, NJ. He is a New Jersey trial attorney has devoted a substantial portion of his professional time to the preparation and trial of litigated matters. He has appeared in Courts throughout New Jersey each week on personal injury matters, Criminal /Municipal Court trials, and contested Probate hearings.

Mr. Vercammen has published over 125 legal articles in national and New Jersey publications on criminal, elder law, probate and litigation topics. He is a highly regarded lecturer on litigation issues for the American Bar Association, NJ ICLE, New Jersey State Bar Association and Middlesex County Bar Association. His articles have been published in noted publications included New Jersey Law Journal, ABA Law Practice Management Magazine, and New Jersey Lawyer. He is the Editor in Chief of the American Bar Association Tort and Insurance Committee Newsletter.

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