New Jersey’s largest personal injury verdict, $166 million awarded last year to an infant who was beaten and permanently disabled after state child-protection agents left him with an abusive parent, has been truncated to $102 million.
Essex County Superior Court Judge James Rothschild Jr. on Wednesday refused to upend the Dec. 13 verdict against the Division of Youth and Family Services but granted the state’s motion for remittitur, finding the jury’s decision to apportion zero liability to the father “cannot stand.”
The judge reduced the $105 million award for 4-year-old Jadiel Velesquez’s future medical care to $75.9 million. He then assigned 25 percent of the fault to the abusive father, which dropped the total recovery to $102 million.
He left untouched awards of $57.7 million for pain and suffering, $1.9 million for a relative’s caretaking services, and $1.4 million for future lost wages.
The suit—lodged by Jadiel’s maternal grandmother, Neomi Escobar—claimed caseworker Felix Umetiti recognized the danger but failed to sufficiently investigate or alert law enforcement.
Jadiel, as an infant, was first hospitalized with signs of abuse in May 2009 but was never removed from the home.
On July 16, 2009, Velesquez severely beat Jadiel, who is blind and unable to walk or talk, experiences daily seizures, is fed through a stomach tube and requires full-time care.
After a two-week trial and about two hours of deliberation, the jury apportioned 100 percent of the fault to DYFS and rejected defenses claiming that the agency was entitled to immunity because it acted in good faith and reasonably.
The panel assigned no fault to Velesquez or to Vanessa Merchan, Jadiel’s mother.
Weeks after the verdict, DYFS’s counsel, John North of Greenbaum, Rowe, Smith & Davis in Woodbridge moved for a judgment notwithstanding the verdict—again raising immunity issues—or a new trial or remittitur.
He emphasized the apportionment of fault to Velesquez and pointed out that the $105 million medical award was $40 more than Escobar’s expert’s $64.9 million median estimate.
In Wednesday’s decision, Rothschild said he agreed with each jury determinations but two: the size of the future medical award and the apportionment of zero percent liability to Velesquez.
The $105 million future medical award “is undisputedly incorrect, both on the basis of the medical and scientific trial testimony, and simple arithmetic,” Rothschild said.
The award, which would cover Jadiel’s medical expenses to around age 130, had to be reduced to the highest possible figure supportable by the evidence, he said, using a 79-year life expectancy and the expert’s high figures to arrive at $75.9 million.
As for fault, Rothschild assigned 25 percent to Velesquez—leaving 25 percent each for three negligent DYFS agents, including Umetiti.
Velesquez “had the last clear chance to keep Jadiel safe,” the judge said. “Everything he did to harm Jadiel was done after the Division acted.”
“By analogy, under the doctrine of ‘intervening or superseding cause,’ if anyone were 100% liable for Jadiel’s injury, it would be Mr. Velesquez,” Rothschild wrote.
Rothschild acknowledged after reviewing dozens of cases that judicial authority to change apportionment of liability is unclear.
“To try to compare or apportion results in the risk of arbitrariness,” he said. “The only non-arbitrary apportionment the court can conceive…of in this case is per capita, making each of the four responsible parties 25% liable.”
In letting stand the $57.7 million pain and suffering award, the judge relied on Pellicer ex. rel. Pellicer v. St. Barnabas Hospital, 200 N.J. 22 (2009), where a child suffered injuries similar to Jadiel and was awarded $50 million in nonpecuniary damages.
Rothschild denied the request for a new trial, noting that North and Escobar’s lawyer, David Mazie of Mazie Slater Katz and Freeman in Roseland, comported themselves well and didn’t unduly sway the jury.
The judge also denied DYFS’s request to set up a court-supervised fund to pay medical expenses as needed.
DYFS didn’t dispute the future pay and past services awards.
Procedurally, each side now has a chance to accept or reject the adjustment. If rejected by Escobar, a new trial would follow. If accepted by Escobar and rejected by the state, both sides could immediately appeal.
Mazie, reached by phone, says he’s weighing his options. “No case has ever allowed a judge to ignore the jury’s allocation and assign his own percentage of liability to a tortfeasor.”
North declines comment.
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