Closings and Jury Charge — Time Unit Measurement — What is it and how to use it! New Jersey Model Civil Jury Charge 8.11Gi and ii.

Don v. Edison Car Company, New Jersey Appellate Division May 9, 2019  (Not Approved for Publication)

Submitted by New Jersey Civil Lawyer, Jeffrey Hark.

In this case the plaintiff’s attorney asked the court to give the following ‘time unit measurement jury charge based on past and future pain and suffering—

  1. (i) LIFE EXPECTANCY (Approved 02/1996)

If you make an award for future pain and suffering, disability and impairment, loss of enjoyment of life, medical expenses, and loss of future earnings, you may consider the plaintiff’s life expectancy. Plaintiff’s life expectancy today (at the time of the accident) is _______ years. That is an estimation of his/her probable length of life based upon statistical data. Since it is a general estimate, you should use it with caution in an individual case. The plaintiff may live a longer or shorter period than the estimated figure. You should exercise your sound judgment in applying the life expectancy figure without treating it as a necessary and fixed rule.

Cases:  Dalton v. Gesser, 72 N.J. Super. 100 (App. Div. 1962); Housen v. Olesky, 71 N.J.Super. 95 (App. Div. 1961); Kappovich v. LeWinter, 43 N.J. Super. 528 (App. Div. 1957); Dickerson v. Mutual Grocer Co., 100 N.J.L. 118 (E. & A. 1924).

(ii) TIME UNIT RULE (Approved 04/2015)

[The following charge may be given where appropriate and with proper notice by counsel and in keeping with Rule 1:7-1(b)]

“Our Rules of Court permit counsel to argue to the jury the appropriateness of applying a time unit calculation in determining damages for pain and suffering, disability, impairment and loss of enjoyment of life. Counsel are not permitted tomention specific amounts of money for the calculation of such damages. They are permitted, however, to argue that you may employ a time unit calculation, that is, to consider an amount of money in relation to an amount of time, when determining such damages. .

I charge you, Ladies and Gentlemen, that the argument of counsel with reference to calculation of damages on a time-unit basis is argument only and is not to be considered by you as evidence. Counsel’s statements are a suggestion to you as to how you might determine damages for pain and suffering, disability, impairment and loss of enjoyment of life. You are free to accept or reject this argument as you deem appropriate. I remind you that you are to make a determination on the amount of damages based on the evidence presented and the instructions I have given you on damages. ”

Here is the practical effect of that Jury Charge and how the court handled same in this case.  The key is what the plaintiff’s attorney stated in his closing which is key!

In this regard, we uphold the trial judge’s finding that the jury’s award of damages does not shock the judicial conscience. The time-unit rule, Rule 1:7- 1(b), permits an attorney to “suggest to the trier of fact, with respect to any element of damages, that unliquidated damages be calculated on a time-unit basis without reference to a specific sum.”

Accordingly, in summation, plaintiff’s counsel pointed out that plaintiff had a life expectancy of 23.9 years, or 209,364 hours, and asked the jury to use its “collective wisdom [to] com[e] up with what is the value of one hour of the pain, suffering, loss of enjoyment of life and issues that [plaintiff] has faced up until now and will fact for the rest of his life knowing he has that syrinx.” When calculated to an hourly rate, the jury’s award of $75,000 for past pain and suffering amounts to $5.63 per hour for an eight-hour day,5 and the jury’s award of $280,000 for future pain and suffering equals only $4.01 per hour for an eight-hour day.6 Viewing the evidence in the light most favorably to plaintiff, we see no reason to disturb the trial court’s finding that the amount of the award did not shock the judicial conscience.

5 The date of the accident, August 7, 2013, to the last day of trial February 27, 2018, spans 1665 days. $75,000 ÷ 1,665 days = $45.04 per day. $45.04 ÷ 8 hours = $5.63 per hour.

6 23.9 years life expectancy equals 8,733 days. $280,000 ÷ 8733 days = $32.06 per day. $32.06 ÷ 8 hours = $4.01 per hour.

As a practical matter the jury listened and followed the jury instruction and believed the plaintiff and his experts and entered a verdict in his favor and his wife’s.


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Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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