He v. Miller, A-81 September Term 2009; Supreme Court; opinion by Hoens, J.; dissent by Albin, J.; decided May 12, 2011. On certification to the Appellate Division, 411 N.J. Super. 15 (App. Div. 2009). [Sat below: Judges Fisher, Sapp-Peterson and Espinosa in the Appellate Division; Judge Ironson in the Law Division.] DDS No. 05-1-xxxx [67 pp.]

Plaintiff was in an automobile accident with defendant. Plaintiff suffered spinal injuries and had a pre-existing degenerative disc disease. Although treatment only provided temporary relief, a neurosurgeon recommended that plaintiff forgo surgery. Plaintiff presented evidence that her injuries precluded her from returning to her housekeeper job and that together with her lack of skills, she was left without the ability to work. Plaintiff offered documentary proof of her past lost wages and testified that, prior to the accident, she expected to work another 20 years. Plaintiff also testified about the impact of the injuries on her life. Finally, she and her husband testified about the detrimental impact of her injuries on their marriage.

A jury found that defendant was negligent and awarded plaintiff $110,000 for past lost wages and $500,000 for future lost wages. The jury also found that plaintiff had sustained a permanent injury and awarded $1 million for pain and suffering and $100,000 for her husband’s loss of consortium. Defendant moved for a new trial or, in the alternative, remittitur. The trial court granted the remittitur motion, reducing the pain and suffering award to $200,000 and the loss of consortium award to $20,000. The court’s conclusion was based on plaintiff not appearing to be affected by her injuries during trial, the recommendation to forgo surgery, her degenerative disc disease, and her ability to care for herself, drive a motor vehicle, and perform light housekeeping. The Appellate Division reversed. The Court granted certification, reversed in part, and remanded to the trial court.

On remand, the court set forth the facts and allegations of cases that it found factually comparable, including two over which it had presided and six that defendant provided. Conceding that none was identical to plaintiff’s accident or her injuries, the court nevertheless drew comparisons by evaluating the severity of the injuries and medical treatment and concluded that the range of awards for similar injuries was significantly less. The judge noted that during his lengthy experience as a trial attorney, he had not seen such a high damages award in similar cases, and that his observations of plaintiff during the trial supported remittitur. Based on cases reviewed by the court, the court’s lengthy prior experience, and its articulation of the basis for its “feel of the case,” the trial court reiterated its conclusion that the verdict for noneconomic damages was shockingly high, and that remittitur was appropriate.

The Appellate Division again reversed, concluding that the record fell short of what remittitur requires. The panel found the cases on which the trial court relied distinguishable; rejected the trial court’s “feel of the case” observations as “an inappropriate yardstick by which to measure defendant’s claim of excessiveness”; and found it inconsistent that the trial court remitted the pain and suffering and loss of consortium awards, but left the jury’s awards for past and future lost wages undisturbed.

The Court again granted certification.

Held: The jury’s award cannot stand because the trial court provided a sufficient explanation for remittitur and its decision was supported by the record.

In this appeal, the Court establishes a framework for considering grants and denials of remittitur and examines the propriety of the trial court’s remittitur reducing the jury award.

Several propositions are essential to a remittitur analysis. First, the jury’s views of the facts and the credibility of the witnesses as expressed in its verdict are entitled to deference. Second, remittitur is reserved for the unusual case that meets the “shocking” criteria. Third, remittitur is not an opportunity for a reviewing court to impose its view of the case on the parties or to interfere with an award that is generous, albeit sustainable. Fourth, the decision to order a remittitur must spring from an overriding sense of injustice, a shock to the court’s conscience, a certain and abiding belief that the award, in light of the facts and the evidence, falls outside the relatively wide range of one that is acceptable and appropriate.

Four observations must guide the court’s analysis of where the boundaries of the “wide range of acceptable” are found: (1) litigants must be provided the opportunity to be heard and make a record, including the chance to bring to the court’s attention relevant precedents that advance that party’s view and an opportunity to rebut those offered by his or her opponent; (2) the court must identify, with precision, the basis for its decision; (3) the court may use its “feel of the case” to inform its reasoning; and (4) appellate panels must recognize that their mere disagreement with the trial court’s evaluation will not suffice. The appellate standard is substantially similar to that used at the trial level, except that the appellate court must afford due deference to the trial court’s “feel of the case.”

Here, the reasons that supported the trial court’s decision to use remittitur included the court’s personal experiences, its review of verdicts in other cases, and its “feel of the case” observations. The trial court’s extensive experience was significant because it informed the court’s sense of where the “wide range of acceptable” ended. In addition, the two trials over which the court had presided, although not identical, were relevant in that they pointed out this jury’s greatly disparate award. Moreover, the cases that defendant provided, while not identical to plaintiff’s, helped inform what the “wide range of acceptable” was by fixing the highest known award in any case even remotely similar to plaintiff’s. Finally, the judge’s “feel of the case” observations also supported the court’s decision. The Court finds the trial court’s decision to direct a remittitur was appropriate. The appellate panel’s decision rejecting remittitur was in error and is reversed.

Justice Albin , dissenting, joined by Chief Justice Rabner , states that review of the evidence in the light most favorable to plaintiffs shows that the damage awards were not grossly excessive and do not constitute a manifest miscarriage of justice necessitating a new trial or a remittitur.

Justice Rivera-Soto and Judge Wefing (temporarily assigned) join in Justice Hoens ‘s opinion. Justice Albin filed a separate, dissenting opinion in which Chief Justice Rabner joins. Justices Long and LaVecchia did not participate.

— By Debra McLoughlin

For appellant — Michael J. Marotte (Schenck, Price, Smith & King; Marotte and Sandra Calvert Nathans on the briefs). For respondents — August R. Soltis. For amici curiae: Insurance Council of New Jersey — William C. Carey (McElroy, Deutsch, Mulvaney & Carpenter); New Jersey Association for Justice — Amos C. Gern (Starr, Gern, Davison & Rubin; Gern and Robert C. Sanfilippo on the brief); New Jersey State Bar Association — Gerald H. Baker (Richard H. Steen, President; Baker and Steen on the brief).