Denial of Defendant’s Motion for Remittitur and Motion for a New Trial

Submitted by Personal Injury lawyer, Jeffrey Hark

MICKENS VS. MISDOM

The issue in this case is the Judge’s denial of defendant’s Motion for Remittitur and Motion for a New Trial as a result of the significant high jury verdict.  The judge denied the defendant’s motion and the Appellate Division affirmed the trial court’s deal based on court’s “feel of the case” comments.  Factually, the jury heard:

  1. Plaintiff was forty years of age when the accident occurred,
  2. Parked vehicle when, as he “leaned over as though to retrieve something from the floor of the front passenger seat,” he felt an impact caused by defendants’ pick-up truck, which had backed into and moved plaintiff’s vehicle ten to fifteen feet from its former stopped position,
  3. That photographs admitted in evidence did not reveal “severe damage” to either plaintiff’s vehicle or defendants’ truck, although the photographs depicted “visible damage to [plaintiff’s] vehicle[‘s] rear end”,
  4. When the police arrived, plaintiff declined medical attention but later went to an emergency room because of lower back pain,
  5. Plaintiff consulted with a chiropractor a few days later. Treatment provided no relief, and the chiropractor ordered an MRI study, which was conducted on March 1, 2010, and which revealed a herniated disc at L4-5.

Plaintiff consulted a physician for pain management, and a neurosurgeon soon recommended disc-removal surgery, which was performed on August 5, 2010. According to the trial judge’s written decision, plaintiff testified “that the surgery helped somewhat,” but “he lives with persistent back pain and discomfort[.]” Plaintiff also testified that: he is employed as “a warehouse worker which [] involve[s] lifting and moving boxes around”; he missed four weeks of work, but returned to work because he could not afford to miss any additional time; at the end of each work day “his back bothers him significantly, and he cannot do the things he used to do around the house or the things he did recreationally”; and he “can do very little except rest on evenings and weekends so he can try to keep working to support” his wife and child. By the time of trial, three years had elapsed from the date of the surgery with no change in plaintiff’s daily pain, discomfort and limitations.

Issue:  Motion to Reduce the Jury Verdict of $2.4 Million

In this case the defendant appealed the significant verdict based primarily on the ‘light impact’ and “limited” physical car damages revealed by the photographs the defense attempted to introduce to the jury.  The key to this part of the case and the result, I believe, is the backlash the defendant and his attorney suffered as a result of their ‘over’ defense of the case.  Because the plaintiff underwent a spinal cord surgical procedure and three years of pain and suffering given the ‘alleged ‘light impact’ the defendant employed a biomechanics expert to dispute the injury and its relation to the crash.

The Appellate Division provided the following opinion:

The legal principles that guide consideration of the quantum of a jury award were recently thoroughly examined by our Supreme Court. Although these principles are easily restated, their application – as the Court observed in He v. Miller, 207 N.J. 230, 235 (2011) – presents “profound difficulties that our trial courts and appellate tribunals continue to encounter as they seek to understand and apply the concepts surrounding remittitur.” The matter at hand presents an interesting counterpoint to the result ultimately reached in He v. Miller.sufficient evidence from which the jury could have found the collision caused a substantial permanent injury.  Of course, there has yet to be an “ultimate” conclusion in He v. Miller. A jury previously returned a verdict of $1,000,000 for the plaintiff’s pain and suffering, but the trial judge determined that any award beyond $200,000 would be excessive and ordered a remittitur to that amount which, if rejected by the plaintiff and her husband, whose per quod claim was also reduced, would result in a new trial. We reversed and reinstated the jury verdict, 411 N.J. Super. 15 (App. Div. 2009), but a closely-divided Supreme Court reversed, concluding we “misappli[ed] . . . settled precedents.” 207 N.J. at 236. Thereafter, the plaintiffs rejected the remittitur, and the matter was again tried. This time the jury awarded $500,000 in pain and suffering — far above what the earlier trial judge had found to be the outermost limit — and a different trial judge with more than thirty years’ experience on the bench rejected the argument that this verdict was excessive, stating, “I wasn’t the least bit shocked by the verdict, not in the least”; we affirmed. He v. Miller, No. A-1599-12 (App. Div. Sept. 2, 2014)  We first turn to the legal principles outlined in He v. Miller:

The power of remittitur is not to be exercised lightly . . . because we repose enormous faith in the ability of juries to equate damages with dollars to “make the plaintiff whole, so far as money can do.” We rely on juries to perform that task while recognizing that “[a]ssigning a monetary value to pain-and-suffering compensation is difficult because that kind of harm is ‘not gauged by any established graduated scale.'” But a jury’s authority is not unbounded and we have explained that “[o]ur role in assessing a jury verdict for excessiveness is to assure that compensatory damages awarded to a plaintiff ‘encompass no more than the amount that will make the plaintiff whole[.]'”  [207 N.J. at 248-49 (citations omitted).  In light of these important policies, the Court reiterated the familiar test that a trial judge should not disturb a jury award unless “‘so disproportionate to the injury and resulting disability as to shock the conscience.'” Id. at 249 (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 604 (1977)). These principles continue to guide our courts but they represent only a starting point in answering the difficult question about when a verdict is “so disproportionate” or “shock[ing] [of] the conscience” as to warrant a trial judge’s intervention because no two plaintiffs and no two juries are the same. A trial judge must begin “with the presumption that [the] verdict is correct” and “view the evidence in the light most favorable to plaintiff in evaluating whether remittitur is appropriate.” Id. at 249; see also Johnson v. Scaccetti, 192 N.J. 256, 281 (2007); Baxter, supra, 74 N.J. at 598. In addition, the trial judge must be mindful that the task “is not to bring a generous, but manifestly supportable, verdict down into a range more to [the judge’s] liking,” but only “to reduce a verdict that is ‘shocking’ and award in its place ‘the highest figure that could be supported by the evidence.'” He v. Miller, supra, 207 N.J. at 250 (quoting Fertile v. St. Michael’s Med. Ctr., 169 N.J. 481, 500 (2001)).

When concluding a verdict is excessive, a trial judge must explain how that conclusion and the remitted amount were derived from the record. Ibid.; Fertile, supra, 169 N.J. at 501. In this regard, the Supreme Court has endorsed a trial judge’s consideration of “other verdicts” while cautioning “that in doing so ‘[the trial judge] must give a factual analysis of how the award is different or similar to others to which it is compared.'” He v. Miller, supra, 207 N.J. at 251 (quoting Johnson, supra, 192 N.J. at 281).  The Court in He v. Miller also expounded on the role played by appellate courts in reviewing a remittitur order. Ibid. The Court emphasized that “the jury is the bedrock of our system of justice,” ibid., but that the trial judge has the limited power to intervene when comparable verdicts and the judge’s own “feel of the case” – because “trial judges see much that juries do not” – move “[t]he court’s own informed conscience” to the belief that the verdict is disproportionate and shocking. Id. at 254. Consequently, the Court emphasized that appellate panels “must . . . recognize that their mere disagreement” with the judge’s evaluation “will not suffice,” and they “must” instead “pay deference to the trial court’s ‘feel of the case.'” Id. at 255 (quoting Johnson, supra, 192 N.J. at 282).

Interesting is the difference of opinion as to the application of the trial judge’s “feel of the case” and the judge’s subjective, personal experiences found in the majority and dissenting opinions in He v. Miller. Justice Albin, whose dissenting opinion was joined by the Chief Justice, observed that the majority had “exalt[ed] the trial judge’s ‘feel of the case’ above the jury’s duty to decide for itself the quantum of damages . . . [and] undermines” the obligation of appellate courts “to review remittitur motions . . . on the objective evidence of record.” Id. at 267 (dissenting opinion). And with respect to the use of “subjective, personal experiences,” the Court’s dissenting members referred to Chief Justice Hughes’s opinion in Baxter in observing that “however much trial and appellate judges are affected by their subjective prejudices and predispositions and life experiences, those ‘individualized propensities of mind’ must somehow be merged into ‘an amalgam of common judicial experience related to the doing of justice,'” and they must “‘resist the natural temptation to substitute their judgment for that of the jury.'” Id. at 268 (quoting Baxter, supra, 74 N.J. at 596-97). In a nutshell, it is not the trial judge’s conscience but a collective “judicial conscience” that guides a trial judge’s examination of a jury’s damage award.

This, however, was a minority view, and the majority opinion makes clear that the trial judge’s experience – in He v. Miller, the trial judge had been on the bench “for only a few months” but was an experienced practitioner of twenty-two years, id. at 256 (majority opinion) – outweighed the many more decades of collective experience of the appellate judges who objectively reviewed the remittitur order. That is, the majority determined that the trial judge’s subjective view that he “had never encountered a like” verdict for such a case – which included the judge’s identification of two other trials over which he had presided since being appointed to the bench within the year – was entitled to “significant” weight, ibid., and apparently the greater experience of three appellate judges entitled to little or no weight. Thus, the trial judge’s decision in He v. Miller – that the case was more akin to “a spectrum of jury awards . . . rang[ing] between $40,000.00 and $200,000.00,” 207 N.J. at 243 – was dispositive  apparently because he presided over the trial, even though the judge’s past experiences cannot possibly be what our courts have long referred to as a trial judge’s “feel of the case.” The utilization of the trial judge’s past personal experiences and subjective views is quite problematic, not only because judges differ,and not only because no two similar experiences are quite the same, but also because the process of using these personal experiences defies greatly valued attributes of our judicial system, namely, a party’s right to discovery and the right to confront and cross-examine information used to adjudicate the dispute. Because of He v. Miller, a judge may simply rely on past experiences without permitting the parties the right to inquire further or test the sufficiency or accuracy of those experiences. In that way, the process was transformed from an objective to a subjective examination. This interesting problem essentially boils down to Justice Albin’s criticism in his dissent when, in referring to Johnson, supra, 192 N.J. at 281, he emphasized that “[i]t is not the [trial] judge’s personal conscience but the judicial conscience that controls.” He v. Miller, supra, 207 N.J. at 269 (dissenting opinion) (emphasis added). whether a particular award is beyond the acceptable to such a degree that it calls for remittitur.” 207 N.J. at 253.I n any event, the He v. Miller majority opinion is that which guides our disposition of this appeal, and we view that decision as commanding deference to the trial judge’s “subjective, personal experiences.” With this as the framework to which we are bound, we turn to the trial judge’s decision, although we first examine what traditionally constituted the judge’s “feel of the case” before considering his subjective view and personal past experiences.

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