A personal injury case that led the New Jersey Supreme Court to allow trial judges to remit jury verdicts based on comparable awards and their own “feel of the case” has been retried to a new verdict.
On Oct. 4, a Morris County jury awarded $1.23 million in damages in He v. Miller, MRS-L-2270-05, for back and neck injuries resulting from an automobile accident.
The plaintiff won $1.71 million at the original trial in 2008, but the judge, David Ironson, remitted it to $830,000, slashing $800,000 from the $1 million pain and suffering damages, and $80,000 from the $100,000 per quod award.
The new verdict, following trial before retired Judge Donald Coburn, serving on recall, includes $500,000 for pain and suffering and the same $100,000 per quod award.
The damages for lost wages remained essentially the same: $227,000 in back pay and $403,000 in front pay for a total of $630,000. At the 2008 trial, the respective sums were $110,000 and $500,000, for a total of $610,000.
Ming Yu He sued Enilma Miller over an Oct. 28, 2003, crash that herniated discs in her neck and lower back, leaving her unable to return to her job as a hotel housekeeper or care for her family and her elderly mother.
Following the Feb. 22, 2008, verdict, Miller moved for a new trial or remittitur based in part on 13 much lower verdicts that allegedly proved the award was excessive. Except for a $200,000 award, none of the others exceeded $100,000.
Ironson remitted the pain and suffering and per quod awards on the grounds that no doctor recommended surgery; He was still able to care for herself and drive a vehicle; she had pree-xisting degenerative disc disease and she did not appear to be in pain during the trial.
The plaintiff obtained leave to appeal and won reversal in March 2009. Appellate Division Judges Joseph Lisa and Paulette Sapp-Peterson held that Ironson failed to accord the plaintiff all reasonable favorable inferences and, had he done so, he would not have concluded the verdict was a miscarriage of justice.
They said Ironson did not conduct the analysis required when comparing verdicts for remittitur purposes and called it inexplicable — given that the plaintiff’s inability to work was “inextricably linked” to the nature of her injuries — that he remitted the noneconomic damages but not the economic ones.
On Miller’s petition for certification, the justices in June 2009 remanded to Ironson so he could explain why he viewed the verdict as excessive. They said an analysis of how it was “different or similar to others to which it is compared” was “an indispensable condition precedent to meaningful appellate review.”
Once Ironson provided “a complete and searching analysis,” the Appellate Division was to reconsider its judgment, the court ordered.
Ironson responded with a statement that his decision to remit was based on his experience in presiding over other cases, on a comparison with other verdicts, on his own experience as a trial attorney, and “in light of the totality of the evidence in this matter.”
He noted that the comparison verdicts raised by the defense involved spinal injury resulting from car accidents, some in Morris County. Although the cases were not identical and he was provided with only “limited factual details,” Ironson viewed them as valid basis for comparison and remarked that the plaintiff had not cited any contrary verdicts.
Ironson said he could not recall an award as high as the $1.71 million verdict, either from his time as a lawyer working both sides of the personal injury aisle or from the two similar matters he had tried during his time on the bench.
Ironson also spoke of his observation during trial that He could sit for long periods without visible discomfort and could enter and exit the courtroom without apparent difficulty.
The Appellate Division reversed again, finding Ironson did not have enough information about the other cases to support his finding that the verdict was excessive. It also questioned the use of such a yardstick as well as Ironson’s reliance on his “feel of the case.”
“Comparing injuries to people is not the same as comparing damages to automobiles,” wrote Judge Clarkson Fisher Jr., adding that a trial judge’s decision to rely on comparable verdicts raises due process concerns that require notice and an opportunity to be heard.
Fisher, along with Judges Sapp-Peterson and Marianne Espinosa, remanded for reinstatement of the original verdict.
On Miller’s second petition for review, the Supreme Court heard the case. In a May 12, 2011, decision, the sharply split court held that Ironson acted correctly in lopping off 80 percent of He’s noneconomic damages.
Justice Helen Hoens, joined by Justice Roberto Rivera-Soto and Appellate Division Judge Dorothea Wefing, cited Ironson’s experience as a litigator and said that although the comparison verdicts were not from identical cases, no two cases are ever alike.
Justice Barry Albin, joined by Chief Justice Stuart Rabner, filed a dissent that accused the majority of “substitut[ing] itself as the decisive juror, thus diminishing the right to a civil jury trial and breaking with the deferential principles of our remittitur jurisprudence.”
Justices Virginia Long and Jaynee LaVecchia did not participate.
He’s lawyer, Pompton Lakes solo August Soltis, says the similar second-time verdict highlights the problem with remittitur. “You just can’t compare each case,” he says. “Even though you can lump it into a disc injury, they’re just not all the same.”
Gerald Baker, who represented the amicus New Jersey State Bar Association, says the second verdict shows that the He decision is wrong as a matter of public policy and should be reversed. Baker is with Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom & Sinins in Hoboken.
Amos Gern of Starr Gern Davison & Rubin in Roseland, the attorney for another amicus, the New Jersey Association for Justice, agrees that the Supreme Court got it wrong and that a jury is in a better position than a judge to assess the value of an injury.
Michael Marotte and Brian Lehrer of Schenck Price Smith & King in Florham Park, who represent Miller, could not be reached for comment.
Nor could William Carey of McElroy, Deutsch, Mulvaney & Carpenter in Morristown, counsel for the Insurance Council of New Jersey, also an amicus.