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Plaintiffs lawyers are beginning to avail themselves of a New Jersey Supreme Court ruling that allows them to propose specific percentages when asking juries to apportion liability among multiple tort defendants. What is still not clear, at least after a major trial where the option was used, is how suggestible jurors are when lawyers urge specific outcomes. Nor is it clear whether defense lawyers will embrace the right to play the numbers game, too. On Oct. 25, in the retrial of the automobile injury case that prompted the new rule, a Morris County, N.J., jury returned a verdict worth $2.3 million after the plaintiff’s lawyer urged an 80-20 apportionment of liability in his opening and closing arguments. The apportionment was crucial because one of the drivers blamed was bankrupt and had no insurance and the other — who will end up paying the entire verdict — had $5 million in coverage. Asking the jury for a specific percentage apportionment became legal on Aug. 10, when a unanimous court ruled jurors are capable of digesting complex evidence and won’t necessarily be overawed if lawyers made numerical suggestions about apportionment in openings and closings. The justices, in Brodsky v. Grinnell Haulers Inc., 181 N.J. 102, reversed a lower court ruling that said it was just as wrong to request a specific percentage apportionment of liability as it was to violate the decades-old ban on attaching a dollar number to a plaintiff’s pain and suffering. “Juries are required to make fine distinctions, and we do not restrict counsel in their opening and closing arguments from assisting them in making those distinctions,” Justice Barry Albin wrote for the court. “We expect a jury to discern between an argument that comports with the evidence and one that does not.” The ruling was important for plaintiffs lawyers who want to trumpet the liability of a defendant who has insurance and draw attention away from a defendant or dismissed former defendant who has little or no coverage. That was the case in Brodsky itself. On remand, plaintiffs’ lawyers Bruce Nagel and Adam Slater of Livingston’s Nagel Rice & Mazie sought to avoid a Pyrrhic victory — having the blame put on a bankrupt driver — by giving a jury a specific number to hang its verdict on. Ironically, after years of appeal, the outcome in the second trial was the same as in the first trial: 60 percent liability on the defendant with deep pockets. Bernard and Gloria Brodsky were driving on Route 80 in Paterson, N.J., in February 1998 when their car was hit by a truck owned by Grinnell Haulers Inc. and propelled into oncoming traffic. Two oncoming vehicles swerved and avoided the couple, but another car didn’t stop. Bernard Brodsky was killed and Gloria Brodsky was injured. The original trial court granted summary judgment in favor of the Brodskys on liability, leaving only damages and apportionment of liability between the two other drivers. The claim against John Horsman, the driver of the car that hit them, was dismissed because he had no coverage and was bankrupt. His chair was empty at the defense table, leaving Grinnell and its $5 million in coverage as the plaintiff’s sole hope. If Nagel could win a verdict apportioning 60 percent of the blame to Grinnell, he could win 100 percent of the damages under the Comparative Negligence Act. If Grinnell’s share of the verdict dipped below 60 percent, the plaintiff would win that percentage and the remainder would be uncollectible. During the original trial, Nagel argued that the evidence showed that Horsman was 5 percent or 10 percent liable, but Superior Court Judge Barbara Zucker-Zarett sustained a defense objection to the use of actual numbers and issued a curative instruction. On the other hand, Zucker-Zarett did grant Nagel’s request for a so-called ultimate outcome charge. She told the jury what would happen if they apportioned less than 60 percent of the liability to the remaining defendant. It worked out well for the plaintiff. The jury apportioned 60 percent of the blame to Grinnell, making it possible for the plaintiff to collect the entire $1.64 million verdict plus interest. In last August’s ruling, however, the court ordered a new trial, saying the judge was wrong to give the ultimate outcome charge because that might have planted a seed of sympathy with the jury. The judge also was wrong to bar Nagel from suggesting a percentage, the justices ruled. On remand, liability and negligence were not an issue. It was all about apportionment between the two drivers. And as it turned out — after years of appellate practice — the second jury came back with exactly the same apportionment as the first: 60-40. Superior Court Judge Stephen Smith Jr. presided at the new trial that began on Oct. 18. The plaintiff had rejected a $1.1 million settlement offer and there was nothing to stop Nagel from arguing in his opening and closing that Grinnell was 80 to 90 percent responsible for the accident. Grinnell’s lawyer, Donald McCord Jr. of Morristown’s O’Donnell, McCord & DeMarzo, did not suggest a percentage but did say the evidence showed Horsman, who struck the Brodskys, was “overwhelmingly” at fault. The truck driver’s testimony suggested Horsman may have had an opportunity to stop. The jury deliberated for about an hour and a half before returning the 60-40 split. That’s good enough to make Grinnell’s carrier pay all $1.64 million in damages set at the first trial plus interest that will bring the judgment to $2.2 million. Plaintiffs’ co-counsel Slater calculates that if the jury had found the defendant 59 percent liable this time, the plaintiff would have collected only $1.3 million, including interest. Slater says it’s impossible to know whether the jury was swayed by Nagel’s urgings. But he adds that because Nagel argued for 80 percent or more at both trials and got 60 percent at both, it was the evidence — not the request for a number — that counted. By Nagel’s reckoning, the 60-40 split by both juries, including one that heard the ultimate outcome charge, means the Supreme Court should not be so concerned that the ultimate outcome charge will sway juries. Says Slater: “I think juries try to do the right thing. How else can you explain no causes in these tragic medical malpractice cases?” Remarks by Slater, McCord and two lawyers outside the case suggest future trials of this type will be similar to Brodsky, with plaintiffs lawyers willing to give numbers and defense lawyers reluctant to do so. “For a plaintiff’s lawyer, it’s always better to be able to give some sort of concrete guidance to the jury because the jury gets so little guidance from the jury charge,” Slater says. Defense lawyers, he says, “don’t like to give anything up,” which they would have to do if they conceded there was any liability on their part. “Defense lawyers are notorious for not giving closing arguments on damages,” he says. “They ordinarily address liability and spend little on damages because they don’t want to talk about something they don’t want the jury to be thinking about.” Defense lawyer McCord says he feels it is presumptuous for a lawyer to suggest a percentage, particularly in an opening statement. He says Nagel actually used varying percentages. “In his closing he even upped it to 95 percent,” he says. “I personally think that when you do that, you’re losing credibility with a jury,” McCord says. “You are better off recognizing that it’s their province.” Amos Gern, a plaintiffs lawyer who argued in Brodsky on behalf of the Association of Trial Lawyers of America-New Jersey for a rule allowing jurors to hear percentages and the ultimate outcome charge, says he was prepared to use a percentage in a multi-defendant auto case heading for trial after Labor Day. Best-practices rules require lawyers to alert courts and adversaries about potential legal issues likely to arise at a trial. Gern says he announced that he planned to argue for an 80 percent or 90 percent apportionment against one of the defendants. “One had a big policy and one had a little policy,” he says. The case settled so he never got a chance to see whether giving a percentage would work. Gern says he believes defense lawyers will use the option, too. In a case like Brodsky where it’s clear the plaintiff had no liability, “why not bite the bullet and say, ‘the plaintiff didn’t do anything wrong but the co-defendant did this and did that and bears the bulk of the responsibility?” says Gern, of Starr, Gern, Davison & Rubin in Roseland. Stephen Foley Jr. of the defense firm Campbell Foley Lee Murphy & Cernigliaro in Asbury Park still doesn’t think it’s right, from a legal standpoint, to use numbers. “In my mind once you start suggesting percentage of liability, it’s the same as suggesting what the dollar figure on the damages ought to be,” he says. As for post- Brodsky defense tactics, Foley says he agrees with the proposition that during a trial at which liability of any kind remains an issue, defense lawyers would be reluctant to get into a numbers game that could suggest their client has any blame. There are cases in which defendants are going to be divided, but even in those cases it can be dangerous to be too openly divided before a jury. “Defendants walk a fine line because they don’t want to appear before a jury to be ganging up on a plaintiff,” Foley says. “At the same time, they don’t want to argue too heavily against each other lest they prove the plaintiff’s case against each one of them.”

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