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UNITED STATES SUPREME COURT
No. 12-1051

Walter C. Anderson, Petitioner v. Commissioner of Internal Revenue

Docketed: February 26, 2013
Lower Ct: United States Court of Appeals for the Third Circuit
Case No. 11-1704
Decision Date: September 7, 2012
Rehearing Denied: December 6, 2012

Feb 19 2013 ~ Petition for a writ of certiorari filed.

Steven J. Jozwiak, Esquire
Counsel of Record for Petitioner

Read Supreme Court Petition here.

Read Supreme Court Reply Brief here.

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
Case No. 11-1704

WALTER C. ANDERSON, Appellant v. COMMISSIONER OF INTERNAL REVENUE

On Petition for Review of an Order of the United States Tax Court
Argued on May 7, 2012
Before SLOVITER and ROTH, Circuit Judges and POLLAK*, District Judge
Opinion filed: September 7, 2012

Steven J. Jozwiak, Esquire (Argued)

601 Longwood Avenue Suite 300 Cherry Hill, NJ 08002
Counsel for Appellant

Read 3rd Circuit opinion here.

New Jersey Lawyer - October 2005:

Verbal threshold
Appellate split could send issue to justices

By Robert G. Seidenstein

A split between two Appellate Division panels has created the possibility that a key verbal threshold issue may go to the New Jersey Supreme Court.

The issue centers on the so-called Polk comparative analysis under which a plaintiff's medical expert parses the degree to which a previous accident is responsible for the victim's injuries.
In Davidson v. Slater, decided last week, one panel said that in light of recent Supreme Court rulings, a Polk analysis was not required to meet the verbal threshold under which plaintiffs may sue for pain-and-suffering damages.

In Lucky v. Holland, decided the week before, the other panel required the comparative analysis.

Steven J. Jozwiak of Cherry Hill, the plaintiff's lawyer in Davidson, said the decision in his case means there is a greater chance plaintiffs could survive summary judgment motions made by defense counsel.

He said defense lawyers have focused on Polk analyses as a way to get cases dismissed ever since the Supreme Court decisions earlier this year in DiProspero v. Penn and Serrano v. Serrano.

Under those rulings, plaintiffs do not have the additional requirement of either showing a serious life impact or that their injury was serious in order to meet the verbal threshold.
In Davidson, Judge Erminie L. Conley wrote, "In our view, the comparative analysis requirement of Polk and its progeny engrafts an additional element upon [the] causation aspect of the verbal threshold standard."

The full texts of Davidson, Facts-on-Call Order No. 92701, and Lucky, Facts-on-Call No. 92688, can be ordered from NJL Online or by calling 800-670-3370. See digest of Lucky, Page 15. She added, "We recognize that another panel apparently views Polk as having continued viability in the context of verbal threshold summary judgment motions. We do not agree."

Polk v. Daconceicao was decided in 1993 before enactment of the Automobile Insurance Cost Reduction Act of 1998, which the Supreme Court said did not carry over the court-created verbal threshold requirements discussed in DiProspero and Serrano.
William J. Markwardt of Kent & McBride in Cherry Hill represented the defendant in Davidson.

In Lucky, Edward M. Colligan of Colligan & Colligan in Newark represented the plaintiff, while Brian G. Steller of Connell Foley in Roseland was the defendant's counsel.

Comments about this story may be sent to robert.seidenstein@njlnews.com

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