Submitted by Personal Injury lawyer, Jeffrey Hark
MICKENS VS. MISDOM – Second of two issues
Judge’s Comments Regarding his “Feel for the Case”
The second issue in this case is the Judge’s comments regarding his “feel for the case” when he denial of defendant’s Motion for Remittiur and Motion for a New Trial. The judge denied the defendant’s motion and the Appellate Division affirmed the trial court’s deal based on court’s “feel of the case” comments. Factually, the jury heard: 1) plaintiff was forty years of age when the accident occurred, 2) parked vehicle when, as he “leaned over as though to retrieve something from the floor of the front passenger seat,” he felt an impact caused by defendants’ pick-up truck, which had backed into and moved plaintiff’s vehicle ten to fifteen feet from its former stopped position, 3) that photographs admitted in evidence did not reveal “severe damage” to either plaintiff’s vehicle or defendants’ truck, although the photographs depicted “visible damage to [plaintiff’s] vehicle[‘s] rear end”, 4) when the police arrived, plaintiff declined medical attention but later went to an emergency room because of lower back pain, 5) Plaintiff consulted with a chiropractor a few days later. Treatment provided no relief, and the chiropractor ordered an MRI study, which was conducted on March 1, 2010, and which revealed a herniated disc at L4-5. Plaintiff consulted a physician for pain management, and a neurosurgeon soon recommended disc-removal surgery, which was performed on August 5, 2010. According to the trial judge’s written decision, plaintiff testified “that the surgery helped somewhat,” but “he lives with persistent back pain and discomfort[.]” Plaintiff also testified that: he is employed as “a warehouse worker which [] involve[s] lifting and moving boxes around”; he missed four weeks of work, but returned to work because he could not afford to miss any additional time; at the end of each work day “his back bothers him significantly, and he cannot do the things he used to do around the house or the things he did recreationally”; and he “can do very little except rest on evenings and weekends so he can try to keep working to support” his wife and child. By the time of trial, three years had elapsed from the date of the surgery with no change in plaintiff’s daily pain, discomfort and limitations.
Issue: Motion to Reduce the Jury Verdict of $2.4 Million
In describing his “feel of [this] case,” the judge described the considerable educational background of the jury, his view that the jurors were not “rustic[s] in the style of Norman Rockwell,” citing DeHanes v. Rothman, 158 N.J. 90, 99 (1999), and that there were no “slackers” on the jury. He also referred to plaintiff as the personification of the “perfect” or “ideal” plaintiff in that he “dressed respectfully,” was “always prompt and quietly courteous,” was “in obvious discomfort, but he made efforts not to display that discomfort,” and “testified with dignity, humility and modesty.” The judge found plaintiff’s testimony to be “understated and straightforward”; “[i]n terms of his credibility and general appeal,” the judge “categorize[d] him in the 99th percentile.” The judge also noted that plaintiff did not appear to be “in any way exaggerating the impact this injury has had on his life,” and he “responded to excellent cross-examination forthrightly and honestly,” concluding it was “not at all a surprise that the jury accepted the testimony of this extraordinarily credible witness.” Accordingly, the judge determined “there was a potential for a very sizable plaintiff’s verdict” once the jury determined – as it obviously did – that the so-called “low- impact” collision caused the herniated disc.
Judge’s Disclosure of his “Subjective, Personal Experiences”
These observations certainly fall into the “feel of the case” rubric to which our appellate courts have always deferred. Based on these observations, and others set forth in the judge’s thorough opinion, he recognized the verdict was “high” and “perhaps at the far end of the bell[-]shaped curve used in statistical analysis” but “not shock[ing] [to] the judicial conscience.” If the analysis were to stop here, we would merely state our agreement that the verdict is very high and near the point of being disproportionately high, but we cannot conclude – in light of our requirement to defer to both the jury’s view of the evidence and the judge’s feel of the case – that it is shocking to the judicial conscience. Indeed, this analysis alone is sufficient to compel our affirmance.
Even though the above discussion compels our conclusion, we add the following comments regarding the judge’s disclosure of his “subjective, personal experiences” that also supported his denial of the new trial motion. Considering the license provided by the majority opinion in He v. Miller, the trial judge provided the following information: I have been sitting as a civil trial judge for the last year, during which I have presided over [forty-one] trials. [Twelve] of those cases settled after jury selection. [Nineteen] were defense verdicts, and only [eight] verdicts awarded damages to a plaintiff. Some of the plaintiff verdicts involved extremely modest damage awards. There were also two mistrials. . . .
Before serving as a civil trial judge, I was a judge in the family division for three years. Before that I was engaged for [twenty-nine] years as a trial attorney, and for my last [twenty] years as a lawyer I did almost exclusively plaintiff’s injury cases. I did try two cases in defense of injury claims, but I believe I had more than 100 civil injury trials as plaintiff’s counsel where a jury was selected. I have been asked to do continuing legal education lectures more than [forty] times by various organizations. I have been asked several times by the New Jersey Defense Association to speak at their annual daylong trial seminar. I was [c]ertified by the Supreme Court as a Civil Trial Attorney. I serve on the Supreme Court Committee on the Rules of Evidence and am just now completing my third two-year term on that Committee. I wrote two books for New Jersey lawyers in the injury field. One of [the] books is updated and reissued annually. Researching and writing the annual revision has kept me current with the law and with verdict trends.
The judge also described a case over which he presided that he found had some similarities; that case settled for $2,500,000 prior to the commencement of the jury’s deliberations. The judge recognized the many differences – including that plaintiff suffered a fractured ankle which, after surgery, caused her “substantial residual pain labeled as complex regional pain syndrome.” We have no ability to examine further this purported. Although a slim majority of the Supreme Court has held that this information is relevant, we conclude that, to the extent it has any bearing, the trial judge’s subjective personal experiences – while different from or obviously at odds with those of the original trial judge in He v. Miller– support his determination that the verdict was not excessive. With or without the trial judge’s personal experiences and subjective view, we would affirm the order denying a new trial or remittitur because of our obligation to honor the jury’s assessment of the evidence and our deference to the trial judge’s “feel of the case.” In objectively reviewing the evidence and the judge’s description of what he observed throughout the trial, we conclude that although very high, this verdict cannot be said to be shocking to the judicial conscience.