The shakeout from a state Supreme Court precedent that set guidelines for handling remittitur motions is not good news for plaintiffs, as a pair of recent rulings illustrates.
In He v. Miller, 207 N.J. 230 (2011), the court held that the motion judge must allow each side to raise relevant precedents in similar cases for the purpose of comparison, and the judge must explain on the record which cases impacted the remittitur decision and how.
The court also said appellate courts must give "due deference" to a trial judge’s reliance on his or her "feel of the case" based on firsthand courtroom observation, so long as the record makes it clear the judge did not supplant the role of the jury.
Two Appellate Division opinions this past week came to pro-defense results in applying He‘s standards.
In Reilly v. Village of Ridgewood, A-5438-11, a panel upheld a Bergen County judge’s decision to remit $3.5 million in emotional distress damages on a whistleblower claim to $500,000.
In Newton v. Sam’s Club, A-4910-11, another panel required a Mercer County judge to explain his refusal to remit a $1 million personal injury verdict.
Tuesday’s per curiam Reilly decision, by Judges Clarkson Fisher Jr., Carmen Alvarez and George Leon, made no mention of He but substantially adopted the opinion of Superior Court Judge Menelaos Toskos, who cited He extensively.
Kevin Reilly, a Ridgewood firefighter, sued under the Conscientious Employee Protection Act, alleging he was repeatedly passed over for promotion in retaliation for complaints about the department’s violation of basic fire safety protocols and OSHA regulations.
By the time his case was tried in January 2012, his claims for economic and punitive damage had been dismissed, leaving only the emotional distress claim.
Reilly testified about his anxiety and depression because his career as a third-generation fireman, his dream job, was derailed and destroyed and it was the only career he knew. He stated he did not feel safe at his job because he could no longer trust his fellow firefighters to back him up when battling a blaze and he was apprehensive that he would be fired if he made even a minor mistake at work. Reilly described felling "awkward" when friends and colleagues asked why he was not promoted.
The jury awarded him $3.5 million.
When Ridgewood moved for remittitur, Toskos asked both sides for cases that supported their positions.
His opinion analyzed eight identified by Reilly and two from Ridgewood.
Reilly cited Shouldis v. Township of Teaneck, where a $4.5 million jury verdict included $1.5 million for emotional distress and pain and suffering. Toskos said the case was similar in that the plaintiff was a police officer who sued under CEPA over promotions he was denied, but different in that there was medical testimony supporting emotional distress.
Another case was Mehlman v. Mobil Oil Corp., 153 N.J. 163 (1998), where the jury awarded $875,000 for emotional distress to a plaintiff who felt embarrassed when questioned about promotions but also presented evidence about physical manifestations of his emotional distress, unlike Reilly.
For several cases cited by Reilly, there was not enough information, Toskos found. One was a summary judgment ruling that did not talk about the jury verdict. Another was a bare-bones denial of certification and still another did not break out the emotional distress component of an $800,000 retaliation verdict.
Toskos distinguished one of Ridgewood’s cases — where the Appellate Division remitted a $750,000 emotional distress award in a whistleblower case to $12,500 — because it lacked the "unique circumstances" of Reilly’s case, including his fear that his life was on the line and his family firefighting background.
He concluded that Reilly’s damages should not exceed the $625,000 in damages in a case he cited, Mancini v. Township of Teaneck, 179 N.J. 425 (2003), which had medical testimony.
Toskos’ "feel of the case" factored into his decision to cut damages to $500,000. "While Plaintiff did cry and show emotion during his testimony, he seemed very composed and competent throughout the trial both in and outside the presence of the jury," Toskos wrote, adding that Reilly’s wife and mother were present but did not testify and when Reilly interacted with them and his counsel, his behavior never indicated he was suffering from emotional distress.
Reilly’s lawyer, Christine Carey Lilore of Wyckoff, and Ridgewood’s, Christopher Botta of Ramsey, did not return a call for comment.
‘Feel of Case’ No Substitute for Analysis
The Newton case, decided Thursday, involved a $1 million personal injury verdict for a 72-year-old Hamilton woman. Patricia Newton was in the checkout area of the Princeton Sam’s Club on April 27, 2009, when another shopper, Yintak Chong of Queens, N.Y., pushed a flatbed cart into the back of her left leg, lacerating it, severing nerves and requiring more than 20 stitches to close the wound, which became infected.
Newton was left with a slight limp and numbness and throbbing in the leg, which allegedly interfered with caring for her wheelchair-bound husband.
Her expert testified that the injury and scarring were permanent.
Chong hit her because, with the help of a Sam’s Club employee, he stacked his cart so high with chicken wings that he could not see where he was going.
On March 13, 2012, the jury found Sam’s Club 70 percent at fault, making it liable for the entire verdict as a joint tortfeasor.
In denying remittitur, Superior Court Judge Pedro Jimenez Jr. referred to the "gory" photographs of Newton’s injury, her deformed leg and her "noticeable limp" as she walked to the witness stand.
Appeals judges Anthony Parrillo, Jack Sabatino and Harry Carroll did not throw out the verdict but they sent the case back to Jimenez, saying he "expressed no appreciation for the wide range of verdicts considered acceptable and appropriate in comparable cases" and "instead of stating those cases, experiences and views that informed [his] consideration, … failed to address the jury verdicts offered by the parties to show that, by comparison, the $1 million damage award at issue here was either grossly excessive or within the normal range."
They said Jimenez "largely justified his conclusion that ‘reasonable minds could differ’ as to whether the damages award was excessive on his own impression of the seriousness of plaintiff’s injury and its consequences."
Jimenez’s firsthand "feel" based on Newton’s limp was "no substitute for the need to engage in He‘s comparative analysis of cases the judge is personally aware of or brought to its attention by the parties challenging or supporting the verdict," an analysis that "will not only give content to its decision, but will facilitate meaningful appellate review as well," wrote the appeals court.
On remand, Jimenez was instructed to provide a "complete and searching analysis," including a factual analysis of how the award is different or similar to others to which it is compared.
Michael Furey of Riker Danzig Scherer Hyland & Perretti in Morristown, who represented Sam’s Club on the appeal, says the ruling "reflects recognition on the part of the Appellate Division that the Supreme Court wanted trial courts to engage in the detailed analysis of a damage verdict by a jury so that the appellate courts could better understand whether the award of damages was justified or not."
Newton’s lawyer, Robbinsville solo Edward Heyburn, did not respond to a request for comment.