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Porras v. Township of Irvington


May 7, 2009


On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-6499-03.

Per curiam.


Submitted March 10, 2008

Decided May 28, 2008.

Remanded by the Supreme Court January 26, 2009.

Resubmitted April 8, 2009

Before Judges S. L. Reisner, Gilroy and Baxter.

This is a supplemental opinion to our prior unreported consolidated decision, Porras v. Twp. of Irvington, Nos. A-0814- 06 and A-0855-06 (App. Div. May 28, 2008), certif. granted and summarily remanded, _____ N.J. _____ (2009). Because the procedural history and statement of facts were discussed at length in our prior opinion, it is unnecessary for us to detail them here. However, the following summary will place this opinion in context.

On August 5, 2001, plaintiff Chantel Porras suffered a severe electrical shock when she attempted to move an electrical water pump that had been left in the basement of her mother-in- law's home by members of defendant Township of Irvington Fire Department. Chantel, along with her husband, Roy Porras, filed a personal injury negligence/products liability complaint against defendants Township of Irvington, the Township of Irvington Fire Department, and unnamed officers and crew of Engine No. 43 (collectively, the "Township"); Eugenia Porras, Chantel's mother-in-law; and Prosser Industries, Inc., the manufacturer of the water pump.

On September 24, 2004, Eugenia Porras and Prosser Industries, Inc., were dismissed on summary judgment. On October 21, 2005, partial summary judgment was entered against the Township on the issue of liability. Tried to a jury, Chantel was awarded $5,000,000 against the Township, and the jury returned a verdict of no cause of action against her husband on his per quod claim.*fn1

On July 28, 2006, the Township filed a motion for judgment notwithstanding the verdict (JNOV), or in the alternative, for a new trial. On August 25, 2006, the trial court entered an order, supported by an oral decision, denying the motion for JNOV and for a new trial, but granting a remittitur of the jury verdict to $1,000,000. Following plaintiff's acceptance of the remittitur, an amended order of judgment was entered on September 28, 2006, in the remitted amount.

The Township appealed from the denial of its motion for JNOV, or in the alternative for a new trial. Plaintiff appealed from the grant of the remittitur. We affirmed the denial of the JNOV in the Township's appeal; reversed the grant of the remittitur, and reinstated the jury verdict of $5,000,000 in plaintiff's cross-appeal; and remanded to the trial court to enter an amended order of judgment in accordance with our opinion.

On a petition for certification, the Township raised the question of whether we "wrongfully exceeded the established standard of review" in reversing the trial court's grant of the remittitur by "undermining a trial court's settled authority to reduce excessive verdicts." On January 26, 2009, the Court granted the Township's petition and summarily remanded the matter for our reconsideration in light of the Court's recent decision in Jastram v. Kruse, 197 N.J. 216 (2008). On remand, we invited and received supplemental briefs from the parties addressing the issues of the quantum of damages and remittitur, to which we now turn.

The Township argues that we improperly exceeded our standard of review of the trial court's grant of the remittitur by weighing the evidence and by not giving the trial judge's "feel of the case" proper deference. We disagree and reaffirm our prior decision.

As directed by the Court, our reconsideration of the trial court's grant of the remittitur is informed by the Court's decision in Jastram, supra, where the Court reversed the decision of another panel of this court that remitted "a jury verdict from $500,000 to $50,000 after the trial judge, who had presided over the case, had ruled that the verdict was supported by the evidence and that it did not shock his conscience." Id. at 220. In rendering its decision, the Court did not enunciate any new principles of remittitur, but rather reviewed prior well established principles, providing a comprehensive guide to both trial and appellate courts on the issue.

In Jastram, a seventeen-year-old female plaintiff was injured in an automobile accident when the vehicle she was driving was struck by the defendant's vehicle. Id. at 220-21.

The plaintiff's claim was not subject to the verbal threshold, N.J.S.A. 39:6A-8(a); nor was the defendant's fault at issue for the happening of the accident. Ibid. The plaintiff suffered what is commonly referred to as "soft tissue" injuries, resulting in muscle spasms in her back, with pains "originating in her back that radiated down her left leg and left foot." Id. at 221.

Although x-rays and an MRI of the back were negative for any damage to the spinal discs, the plaintiff "testified that she had continuous, daily pain from the date of the accident up through the date of trial, which she treated using over-the- counter pain medication." Id. at 221-22. According to the plaintiff, the injuries caused her to abandon her avocation to ride horses, where previously she had "participat[ed] annually in approximately 120 riding events in approximately thirty separate competitions." Id. at 222-23. In addition, the injuries severely restricted her personal life because she could not go dancing with her friends, could not stand for long periods of time, and had extreme difficulty sleeping. Id. at 223.

The plaintiff's medical expert opined that she "sustained a '[s]ignificant ligamentous injury [to her] lumbar spine and damage to the spinal column which has produced lumbar spinal instability.'" Id. at 224. According to the expert, the plaintiff's injuries were "'permanent in nature,' that they 'got [as] better as they're going to get,' and that the 'scar tissue will not allow her to ever return to her pre-injury state.'" Id. at 225. At conclusion of the trial, the jury returned an award in favor of the plaintiff in the amount of $500,000.

Defendant filed a motion for a new trial. Although the trial judge was surprised by the verdict, believing that it was not going to be that high, the judge denied the motion determining that the verdict had not shocked his judicial conscience because there was sufficient evidence in the record to support the verdict. Id. at 226. On appeal, the panel reversed, determining that "the verdict was clearly and shockingly-excessive." Ibid. Accordingly, the panel remitted the award "to $50,000 plus prejudgment interest, and gave [the plaintiff] the option of accepting the remitted verdict, or suffering a new damages trial." The Court granted the plaintiff's petition for certification. Id. at 226-27.

In reversing the Appellate Division's decision, the Court reviewed the general principles governing personal injury compensatory damages, and the right of a plaintiff to have the issue decided by a jury. Id. at 227-29. In so doing, the Court described the purpose of remittitur as:

Where the jury's verdict regarding liability is supported by the record, but the damages award is excessive, courts are encouraged to invoke remittitur to avoid a new trial. A court utilizing remittitur should remit the award to the highest figure that could be supported by the evidence because the process of remittitur is essentially to lopoff excess verdict amounts, and not to substitute the court's judgment for that of the jury.

[Id. at 231 (citations, internal quotations and internal alterations omitted).]

The Court explained the standard of review of the trial court in ruling on a motion for a remittitur and the appellate court's standard of review when reviewing the grant or denial of such a motion. As to the trial court, the Court stated:

In analyzing whether a damages award is excessive, a trial judge's review must be grounded substantially in the totality of the evidence in the record . . . which is viewed in a light most favorable to the plaintiff. . . . In particular, the judge is to evaluate the nature and extent of the injury, the medical treatment that the plaintiff underwent and may be required to undergo in the future, the impact of the injury on the plaintiff's life from the date of injury to the date of trial, and the projected impact of the injury on the plaintiff in the future. The court may look beyond the record to judicial experience with other injury verdicts. . . . However, if it does so, it must give a factual analysis of how the award is different or similar to others to which it is compared.

So analyzed, where an award, even if generous, has reasonable support in the record, the jury's evaluation should be regarded as final.

[Id. at 229-30 (citations, internal quotations and internal alterations omitted).]

As to appellate review, the Court stated:

Further, under Rule 2:10-1, an appellate court only can reverse a trial judge's decision to deny a motion for new trial where "it clearly appears that there was a miscarriage of justice under the law." That inquiry requires employing a standard of review 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,'" with regard to the assessment of intangibles, such as witness credibility. Feldman v. Lederle Labs., 97 N.J. 429, 463 (1984).

The "feel of the case" is not just an empty shibboleth -- it is the trial judge who sees and hears the witnesses and the attorneys, and who has a first-hand opportunity to assess their believability and their effect on the jury. It is the judge who sees the jurors wince, weep, snicker, avert their eyes, or shake their heads in disbelief. Those personal observations of all of the players is "the feel of the case" to which an appellate court defers. Obviously, insofar as the trial judge's decision rests on "'determination[s] as to worth, plausibility, consistency or other tangible considerations apparent from the face of the record,'" an appellate court need not defer. Caldwell[ v. Haynes], 136 N.J. 442, 432 (1994) (quoting Dolson v. Anastasia, 55 N.J. 2, 7 (1969)).

[Id. at 230-31.]

In reconsidering the propriety of the trial court's grant of the remittitur in light of Jastram, we are satisfied that our prior decision reversing the grant of remittitur was correct.

The present matter presents the opposite side of the coin from the case before the Court in Jastram. In Jastram, the trial judge did not interfere with the jury's award, although he was surprised by the verdict, believing that it was not going to "be that high." Id. at 226. Rather, it was another panel of this court that interfered with the jury's award. Id. at 226- 27. Here, contrary to Jastram, the trial judge did interfere with the jury's award, granting a remittitur from $5,000,000 to $1,000,000. For reasons previously stated in our prior opinion, we are satisfied that the interference was a mistaken exercise of the trial judge's discretion:

After carefully examining the record, we conclude that the trial judge improperly interfered with the jury's verdict. As described in Part III of this opinion, the record supports the jury's determination that plaintiff suffered a severe, permanent loss of a bodily function, that is, she suffers from a constant tremor of her upper right extremity, which is noticeable from a distance. Because plaintiff is right-hand dominant and the tremor continues throughout each day, the injury affects all aspects of plaintiff's life. The tremor, together with its associated pain, affects her ability to sleep and care for herself, and her relationship with her husband. The injury affects her career in the United States Air Force, to where she has been ordered not to perform normal functions of an active-duty nurse or an emergency technician, but rather has been restricted to performing paperwork and watching medical monitors, and is now awaiting a decision from the Surgeon General concerning her future military active duty status.

In addition, plaintiff's pre-existing migraine headaches have increased in frequency, duration, and intensity, and she also suffers from right carpal tunnel syndrome. Moreover, because of possible adverse effects of the various medications that she is required to take to control the tremor, and reduce the pain and discomfort of the tremor and the migraine headaches, she has been instructed by her physicians not to become pregnant for fear of injury to the fetus. Plaintiff was twenty-six years of age at time of trial, and had a life expectancy of forty-eight years. The injury continued from when she received the electrical shock to the time of trial. The jury could have reasonably inferred that the tremor and the increase in the frequency and duration of the migraine headaches were permanent, and would last for the remainder of her life.

Against these facts, we discern that the trial judge should not have interfered with plaintiff's "constitutional right to have a jury decide the merits and worth of her case." Johnson [v. Scaccetti, 192 N.J. 256, 279 (2007)]. The judge determined that the verdict was excessive by comparing it to infant brachial plexus injury cases, without stating the exact nature of the residual injuries suffered by the children in those other cases, besides what may be gleaned from the reported decision in Fertile [v. St. Michael's Med. Ctr., 169 N.J. 481 (2001)]. The comparison to brachial plexus injuries is especially problematic in light of the likelihood that plaintiff will be forced to forego having children because of the teratogenic effects of the needed pain medication. The loss of her ability to become a parent is significant; that loss is not shared by those with brachial plexus injuries.*fn2

Although we too may not have awarded the same amount of the verdict as the jury did if we were sitting on the jury, that is not the standard for overthrowing a jury verdict and granting a remittitur. Neither we nor the trial judge should act as the thirteenth juror. The verdict must be so excessive as to "clearly and convincingly appear[] that there was a miscarriage of justice under the law." R. 4:49-1. Although we defer to the trial judge's "feel of the case," we are satisfied that his interference with the jury verdict constituted a "miscarriage of justice under the law." R. 2:10-1. Accordingly, we reverse the grant of the remittitur, and reinstate the jury verdict to $5,000,000.

[Porras, supra, (slip op. at 37-39).]

We conclude Jastram does not require a different determination.

We reaffirm our decision of May 28, 2008, and find no cause to modify the conclusions we reached in A-0814-06 and A-0855-06.

We remand to the trial court to enter an amended order of judgment in accordance with our prior opinion.

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