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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, obviating the need for jury trials? New Jersey trial judges are usurping the function of juries, dismissing meritorious verbal threshold cases. First, in reinstating the subjective prong of the verbal threshold, the Appellate Division usurped the role of the Legislature and ignored established legal maxims. Now, trial and appellate judges act as jurors, deciding whether injuries and medical opinions by plaintiffs’ physicians satisfy the objective prong and whether the plaintiffs’ complaints satisfy the subjective prong. In James v. Torres, 354 N.J. Super. 586 [App. Div. 2002], the Appellate Division held that the standard in Oswin v. Shaw, 129 N.J. 290 (1992), was still applicable to cases that occurred after passage of the Automobile Insurance Cost Reduction Act of 1998. Following Oswin, the Appellate Division in Dabal v. Sodora, 260 N.J. Super. 397 [App. Div. 1992], a case cited with approval in James, made clear, implicitly if not explicitly, that the subjective prong of the verbal threshold was a jury question. In James, the Appellate Division simply held that the Oswin standard still applied. Yet, in decision after decision, trial and appellate courts have held that under James there is a new, more stringent standard. The standard for deciding a summary judgment motion is covered by R.4:46-2(c). In Brill v. Guardian Life Ins. Co. of America, the Supreme Court instructed that if reasonable minds could differ, the motion should be denied. In Oswin, the Supreme Court specifically rejected the insurance carriers’ argument that verbal threshold motions should be decided by the trial judge, noting that courts follow the summary-judgment standard in deciding verbal threshold motions. The Supreme 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. Whether a party is successful in defeating a summary judgment motion depends on the trial judge. For every factual scenario where one trial court has dismissed a case, there is a similar case where the motion was denied. Cases that survive motions in one county are routinely dismissed in others. There is not even any consistency in a specific county. How can a court dismiss a case where a plaintiff presents proofs from his or her treating or examining physician, objective proof of permanent injury and the plaintiff’s certification or sworn testimony outlining the injury’s significant impact on his or her life? If the Brill standard requires that a motion for summary judgment be denied where reasonable minds could differ, how can a trial judge find that a plaintiff has failed to sustain his or her burden, having been given all the reasonable inferences, when a different judge under the same facts would deny that motion? Are judges who deny motions for summary judgment unreasonable or not rational or are the judges granting such motions simply disregarding the appropriate standard? When did the Rules of Evidence permit trial judges to take judicial notice of medical issues? R. Evid. 201 outlines those facts on 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? The role of the trial judge is to be the decider of the law, the function of the jury is to be the decider of fact. If there is no material dispute of fact, summary judgment is appropriate. But where a plaintiff presents testimony from a qualified treating or examining physician about a permanent injury and demonstrates an inability to engage in one or more activities of daily living that were possible before the injury, the decision on whether the verbal threshold has been met should be left to the jury, the constitutional fact finder, not the trial court. Stern is a partner and certified civil trial attorney at Stark & Stark in Princeton, where he concentrates on representing clients with traumatic brain and catastrophic injuries.

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