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Tomaino v. Burman

November 20, 2003

JOSEPH TOMAINO, PLAINTIFF-RESPONDENT,
v.
SHELDON BURMAN AND THE MALE SEXUAL DYSFUNCTION INSTITUTE, DEFENDANTS-APPELLANTS.



On appeal from the Superior Court of New Jersey, Law Division, Monmouth County, Docket No. L-5104-94.

Before Judges Newman,*fn1 Parrillo and Hoens.

The opinion of the court was delivered by: Parrillo, J.A.D.

Argued September 29, 2003

Defendants Sheldon Burman, M.D. and The Male Sexual Dysfunction Institute appeal from an order of the Law Division, entered after our remand, remitting the amount of the jury's $3 million damage award, which we previously found to be excessive, by one cent to $2,999,999.99. We reverse.

Some background is in order. In the underlying medical malpractice lawsuit, the jury awarded plaintiff Joseph Tomaino $3 million in damages, which verdict was molded to reflect a finding by the jury allocating twenty percent fault to plaintiff. Consequently, judgment was entered in the amount of $2.4 million, plus $545,128.73 in pre-judgment interest.

On appeal, we affirmed the liability verdict, reversed the damage award, and remanded for a new trial on damages only. As to the damage award, we said:

In this case, the worth or plausibility of the evidence necessary to evaluate the damage verdict is apparent from the face of the record. Thus, we are entitled to make an independent review of the record to resolve the excessiveness claim. In doing so, we are clearly convinced that the $3 million damage award is so disproportionate as to shock the court's conscience and to clearly convince us that, to sustain the verdict, would constitute a miscarriage of justice.

[Tomaino v. Burman, No. A-5963-98T3 (App. Div. January 16, 2001) (slip op. at 14).]

In our remand, we expressly encouraged the trial court to consider a motion for remittitur under Rule 4:49-1 as an alternative to a new trial on damages. Id. at 16.

In its order granting plaintiff's petition for certification, the Supreme Court summarily remanded the matter to us for reconsideration in light of its recent decision in Fertile v. St. Michael's Med. Ctr., 169 N.J. 481 (2001). Tomaino v. Burman, 169 N.J. 603 (2001). On remand, we said that"[w]e do not read Fertile as suggesting we revisit our holding that the $3,000,000 damage verdict is not sustainable on the facts," and instead assumed that"the remand order directs that we consider the remittitur issue." Tomaino v. Burman, No. A-5963-98T3 (App. Div. December 17, 2001) (slip op. at 2). We did, and declined defendants' invitation to exercise original jurisdiction by entering a remittitur order"lop[ping]-off" the excessive verdict amount, Fertile, supra, 169 N.J. at 500, deciding to leave that"complicated function," ibid., to the trial court which has a"feel of the case," heard the witnesses, and is in the best position to assess the evidence and determine the highest figure that could be supported by the evidence. Ibid. Accordingly, in a brief per curiam opinion of December 17, 2001, we reaffirmed our opinion and order of January 16, 2001 affirming in part and reversing in part, and remanding for the trial court to consider remittitur or, if necessary, a new trial on damages only. Tomaino v. Burman, No. A-5963-98T3 (App. Div. December 17, 2001) (slip op. at 4).

Subsequently, on May 15, 2002, plaintiff moved in the Law Division for remittitur in an appropriate amount and defendants cross-moved for remittitur in the amount already paid to plaintiff*fn2, or in the alternative, a new trial on damages. At argument on these motions, the trial judge noted his disagreement with our decision that the jury award was excessive and stated that"[the Appellate Division] know[s] how I feel about this case. I've already told them. I didn't think $3 million was enough." Consistent with that view, on June 7, 2002, the trial judge entered an order remitting the $3 million damage amount by one cent to $2,999,999.99.

Inevitably this, defendants' second, appeal follows. Defendants argue that the trial judge's one-cent remittitur order ignored both our finding that the $3 million damage award was excessive and our directive that on remand the amount be meaningfully reduced or a new trial on damages be held. Defendants urge us to exercise original jurisdiction and determine that the $1,262,834.31 sum already paid plaintiff in partial satisfaction of judgment reflects a proper remittitur amount or, alternatively, order a new trial on damages before another judge.

Although we clearly explained our directive that the trial court consider remittitur in our December 7, 2001 remand order, we feel constrained to explicate further in light of the action taken by the judge below.

Remittitur"describes the power of a court upon a motion for a new trial due to excessive damages rendered by a jury to require the plaintiff to consent to a decrease in the award to a specified amount as a condition for denial of the motion." Fertile, supra, 169 N.J. at 491. In other words, remittitur denies a defendant a new trial if a plaintiff consents to a specified reduction in the jury award. Henker v. Preybylowski, 216 N.J. Super. 513, 516 (App. Div. 1987). Remittitur is designed to bring excessive damages awarded by a jury to the level ...


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