July 13, 2009
PAULINO CANDELARIO, PLAINTIFF-APPELLANT/ CROSS-RESPONDENT, AND TERESITA CANDELARIO, HIS WIFE, PLAINTIFF,
RICHARD T. KOST, JERSEY CENTRAL POWER AND LIGHT COMPANY AND FIRST ENERGY CORPORATION, DEFENDANTS-RESPONDENTS/CROSS-APPELLANTS.
RICHARD T. KOST, JANET KOCIS-KOST, HIS WIFE, PLAINTIFFS,
PAULINO CANDELARIO, DEFENDANT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-7253-03 and L-6205-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued May 26, 2009
Before Judges Lisa, Reisner and Alvarez.
This is a personal injury case arising from an accident in which plaintiff Paulino Candelario was hit by a utility truck while crossing a highway. By leave granted, Candelario appeals from a March 14, 2008 order remitting a jury verdict in his favor from $2 million to $600,000, and a March 28, 2008 order denying his motion for reconsideration. Defendants Richard T. Kost,*fn1 Jersey Central Power & Light Company (JCP&L) and First Energy Corporation appeal from the January 23, 2008 jury verdict finding defendants fifty percent liable for the accident, and from the portion of the March 14, 2008 order denying defendants' motion for a new trial or judgment notwithstanding the verdict (JNOV).
On this appeal, defendants contend that plaintiff's accident reconstruction expert rendered a net opinion; that plaintiff was more negligent than Kost, the defendant driver, as a matter of law; and that the liability verdict was against the weight of the evidence and was the product of passion and prejudice. Finding no merit in any of these contentions, we affirm the liability verdict in its entirety.
Plaintiff contends that the trial judge erred in remitting the verdict. We agree. Because the trial court's stated reasons for granting the remittitur do not satisfy the applicable standards, as recently highlighted by the Supreme Court in Jastram v. Kruse, 197 N.J. 216 (2008), and because the record presented to us on this appeal cannot support remittitur, we reverse and remand for entry of an order reinstating the $2 million verdict.
Based on our review of the record, these are the most pertinent facts. The accident giving rise to this matter occurred on Route 9 in Toms River, just after midnight on August 28, 2003. Plaintiff, then thirty-eight years old, attempted to cross Route 9 on foot in order to reach his place of work, Green Acres Nursing Center, which had an entrance on the northbound side of the highway. Plaintiff crossed over the southbound lane and was struck just after crossing the center line into the northbound lane by a company pick-up truck operated by Kost and owned by JCP&L. The point at which plaintiff crossed was not near a crosswalk or intersection, but was roughly three steps from a bus stop sign on the southbound side of Route 9. The area was illuminated by lights from Green Acres and other street lighting which was "a little distant" from the point of plaintiff's crossing. Plaintiff wore a white polo shirt, black pants, and black shoes.
Before crossing the highway, plaintiff saw one car pass in front of him going southbound. Plaintiff then looked to his right and then to his left. When he looked right, he observed a light in the distance traveling "fast" in the northbound lane, which he estimated to be going over fifty miles per hour and roughly half a kilometer away. Plaintiff testified that he was "just walking regularly" and took five "normal steps" into the highway before stopping*fn2 at the center line for about five seconds while looking left. Thinking that the car in the northbound lane was "still far," plaintiff then took one step into the northbound lane without looking again to his right. After taking that step into the northbound lane, plaintiff recalled seeing a Jeep "near [his] feet" and did not recall what happened after that. He conceded on cross-examination that, if he had looked to his right a second time, he "would - maybe have avoided the accident."
On August 27, 2003, Kost worked his regular shift from 7:00 a.m. to 3:30 p.m. as a lineman chief doing electrical work for JCP&L. At the end of his shift, instead of going home, he and at least eight or nine co-workers traveled from their regular work location in Old Bridge to another location in Berkeley, where they stayed for three-and-a-half to four hours. The group then proceeded to a nearby restaurant in Berkeley or Toms River, where they stayed for an hour and fifteen minutes. Having already eaten, Kost stayed in his truck as his co-workers ate.
Sometime just before midnight, the group left the restaurant and began their trip back to Old Bridge, traveling in a convoy northbound on Route 9. Four bucket trucks went first, and Kost followed alone in his white 1997 Chevrolet pick-up truck. He was unfamiliar with the area. Kost estimated that he drove roughly five miles or ten minutes from the restaurant to the point where the accident occurred. That stretch of Route 9 consists of one lane in each direction, with a posted speed limit of fifty miles per hour. It was a nice night with light, sporadic traffic, though there was "not much lighting," except for some halogen lights past the entranceway to the Green Acres complex on the northbound side of the highway. Kost traveled forty miles per hour with his low beams on. He testified that he could see the closest of the four trucks maybe 300 or 400 hundred feet ahead of him. However, on cross-examination he admitted it could have been 500 feet ahead.
On direct examination, Kost described the accident as follows:
I was traveling north on 9, and this - this person come running right in front of the pickup truck and I swerved the wheel to the right, applied my brakes, not standing on them with two feet. I just applied them, and I'm looking and I see this person he comes - hits the front . . . and hits the windshield, then the side of the truck and that was it.
Kost testified that plaintiff "appeared right there in front of [his truck]" such that he "had no time to - to do anything." According to Kost, the time between when he first saw plaintiff and when his truck hit plaintiff "was instantaneous." Kost pulled over and saw plaintiff lying in the road. When police arrived, Kost gave a signed written statement at the scene in which he wrote that plaintiff "walked" in front of his vehicle in the dark and he could not see him. In describing plaintiff's movement at trial, Kost remained adamant that "[i]t was a jog, a run, and that's it." When asked on cross-examination whether he would have seen plaintiff had he been walking rather than running, Kost responded, "Probably. If he was walking, I might have seen him. Might have seen him."
The defense called Toms River Police Officers Christopher Dudzik and Gary Flynn. Dudzik drew a diagram of the scene and testified that there were no skid marks in the area of the accident. Flynn, the primary investigator at the scene, took Kost's written statement. According to Flynn, the area was "pretty well" lit by lighting to the south from a twenty-four-hour Wawa store with a gas pump and other businesses.
Flynn confirmed that there was no evidence of skid marks or debris from the truck at the scene. He testified that the accident scene provided no physical evidence, nor did Kost tell him, that Kost had done anything to avoid the accident before hitting plaintiff, such as braking or swerving. He confirmed that, in the written statement Kost provided him, Kost wrote that he "could not see" the plaintiff. After the accident, Kost refused medical attention and was driven from the scene by one of his supervisors from JCP&L. There is no dispute that Kost's JCP&L supervisors debriefed him at some length before permitting him to go home.
Kost's friend and co-worker, Daniel Clare, was called as a defense witness. Clare testified that he was a passenger in one of the JCP&L trucks traveling ahead of Kost's truck. He claimed that as they traveled north on Route 9, he saw a man staggering down the road on the right hand side. However, on cross-examination, Clare admitted that he was not even sure he saw this person on Route 9, and admitted that after discussing his observations with Kost and another employee, Clare had concluded the man could not have been the plaintiff. On cross-examination, Clare also admitted that Kost had told him details about the accident, something Kost had denied in his testimony. Clare further testified on cross-examination that Kost told him plaintiff was walking, not running, across the road at the time of the accident.
At trial, plaintiff called James R. Eastmond, who was qualified over defense objection in the area of accident reconstruction. Eastmond had an associate go to the accident scene, but did the majority of reconstruction analysis and calculations based upon average numbers from various published reports of other experts in the field.*fn3 His colleagues who went to the scene measured that each lane of Route 9 was approximately eleven feet wide and had a ten foot wide paved shoulder on either side.
Eastmond explained to the jury that perception reaction time "is the actual time from when you first perceive a hazard to when you actually react to it." Perception reaction time involves four phases: detection, identification, decision, and response. Eastmond testified that, based upon studies in the field, the average perception reaction time for a motorist responding to an unexpected event is 1.5 seconds. In order to take into account the friction from the tires upon the road surface, he used an average coefficient of friction for dry, traveled asphalt of 0.7. Using these two figures, and assuming that Kost was traveling as he testified at forty miles per hour, Eastmond calculated that the total stopping distance for Kost to bring his vehicle to a halt before impact with someone or something in his lane would be 164 feet.
Based upon Kost's deposition and the testimony of the officers as to the absence of any skid marks, Eastmond concluded that Kost brought his vehicle to a "controlled stop," meaning he "didn't slam on his brakes and just scream to a stop, he drove it over to the side of the road." Eastmond then focused his testimony on whether Kost could have seen plaintiff prior to the 164-foot mark, which Eastmond characterized as the "point of no return" after which Kost could not have brought his vehicle safely to a stop before hitting plaintiff. He testified that, in his calculations, he also factored in plaintiff's conspicuity - that is, the ability to been seen or visible to others.
Working back from the point of impact, Eastmond attempted to estimate how far away Kost's vehicle was at the time plaintiff began to cross the highway. For the purposes of his analysis, Eastmond applied to plaintiff the average walking gait of a thirty-nine-year-old male pedestrian, which is 5.8 feet per second. He calculated that it took plaintiff 4.13 seconds to cross the ten-foot shoulder, cross the eleven-foot southbound lane, and enter the northbound lane, in which time plaintiff would have traveled twenty-four feet from the edge of the pavement. Multiplying this 4.13 seconds by forty miles per hour or 58.6 feet per second, Eastmond put Kost's vehicle at 242 feet from the point of impact at the time when plaintiff first entered the highway. He testified that it took Kost 1.33 seconds to close the distance between 242 feet and 164 feet from the point of impact.
Eastmond did his calculations assuming that Kost had his low beam headlights on. Eastmond testified that New Jersey law requires low beam headlights to make an object discernable to a distance of 100 feet, but that the Uniform Motor Vehicle Code requires them to illuminate objects to a distance of 600 feet. Eastmond also assumed, based on Kost's deposition, that Kost had a clear, unobstructed view of the highway to a distance of between 300 and 500 feet. Citing a study in the field, Eastmond opined that, when the main low beam lights illuminate to 400 feet down the road, a driver should be able to see a little over 200 feet to the left of the road. Thus, Eastmond concluded that, at 164 feet away, Kost's headlights "would definitely have illuminated [plaintiff]."
Based upon these calculations, Eastmond concluded that Kost could have recognized that there was a pedestrian in the roadway before the 164-foot point of no return, and that his failure to do so and either brake or take evasive action was a proximate cause of the accident. Eastmond concluded that plaintiff's failure to look to the right a second time before crossing into the northbound lane was also a "causative factor" in the accident. Thus, Eastmond testified that both Kost and Candelario were at fault for the accident. Eastmond further testified that, because a motor vehicle operator "is required to keep their vehicle under control" and "to be alert and focused," and because plaintiff would have had to turn his head to see Kost's truck, while Kost was looking forward toward plaintiff, "the majority of the causation of this particular accident rested . . . on Mr. Kost."
On cross-examination, Eastmond acknowledged that the difference in whether or not Kost could have avoided this accident was a matter of seconds or split seconds depending upon the point at which he was able to detect plaintiff and upon even the slightest of variations in his reaction time. He conceded that he could not say for certain whether Kost could have detected plaintiff in the roadway before the 164 foot mark, and that it would not have been unreasonable to adopt a 1.6 or 1.7 second perception reaction time, which would have put the point of no return at approximately 190 to 200 feet. On redirect, Eastmond reiterated his overall conclusion:
Mr. Kost had the opportunity to and should have seen the pedestrian at some point at or before the hundred-and-sixty-four mark and could have stopped his vehicle short of impact.
If he went inside the hundred-and-sixty-four mark by a little bit at some point, he still could have reacted, hit his brakes and the impact speed would have been less than forty miles an hour, the severity of injuries would have been far less.
Defendant's liability expert, John A. Desch, opined that Kost could not have stopped in time to avoid the accident. Desch also based his figures and calculations on Kost's testimony that he was going forty miles per hour. He testified that the total stopping distance required to bring a vehicle at that speed to a halt would be the sum of the distance due to perception reaction time added together with the distance due to minimum braking time, which is the time distance covered from the driver's first application of the brakes until the vehicle comes to a stop. He testified that perception reaction time is affected by such things as brightness and glare, as well as whether an object in the field of vision is moving or motionless.
Rather than using average figures as Eastmond had, Desch based the variables in his calculations of stopping distances upon the results of field testing he and his associates conducted with the actual accident vehicle at the accident site under similar conditions, albeit several years after the accident. By doing two braking tests with the vehicle, Desch determined Kost's pick-up truck to have a maximum rate of deceleration between 0.63 and 0.64 Gs.*fn4 Based upon a 0.64 deceleration rate, Desch concluded that minimum stopping distance of the pick-up truck when traveling at forty miles per hour would be 84 feet, apart from reaction time.
Using a perception reaction time of 1.5 seconds, Kost would have covered just under 88 feet in that time. Thus, Desch added the minimum breaking distance of 84 feet and the perception reaction distance of 88 feet and concluded that the total stopping distance for Kost to bring his vehicle to a complete stop would be 171 feet. Desch further testified that, if a 2.0 second reaction time is used, then the perception reaction distance increases to 118 feet, and the maximum total stopping distance, or point of no return, would have been about 200 feet.
In order to try to determine the distance at which a driver of the pick-up truck would have been able to see a pedestrian on or near the roadway, Desch and his associates conducted field testing at the site at night with orange traffic cones every fifty feet and a pedestrian wearing the same clothing as plaintiff, a white shirt, black shoes, and black pants, positioned along the left side of the roadway. Four testing runs were made with the pick-up driven at forty miles per hour with its low beams on, and some of the runs involved opposing vehicle headlights while some did not. Desch's tests revealed that, if a vehicle had recently passed, the driver could observe the pedestrian at approximately 100 feet. If no vehicle had passed and there was therefore no glare from opposing headlights, the driver could observe the pedestrian at approximately 150 feet.
Desch testified that these numbers were for a driver who expected to see a pedestrian and knew what he was looking for. He opined that "[f]or an unsuspecting motorist surprised by the sudden appearance of a pedestrian at a location where they would necessarily not expect a pedestrian, it would be considerably less." Thus, according to Desch's "conservative approach," whether Kost could have seen the plaintiff at 100 feet or at 150 feet, he could not have avoided the accident because both of those observation points are still well within either of his two points-of-no-return, 171 feet or 200 feet, after which Kost could not have stopped in time to avoid the accident. He opined, "[M]athematically, no, you wouldn't have time to even make it to the brake before impact. . . . And that's with knowing someone is there."
Following the accident on August 28, 2003, plaintiff was taken to Jersey Shore University Medical Center (Jersey Shore) where he remained in a coma for a month. At the time of his admission to the emergency room at Jersey Shore, plaintiff had sustained a left orbital or eye-bone fracture, a nasal fracture, an ulnar fracture in his right forearm with dislocation of the right elbow joint, right forearm soft tissue wounds, a laceration of the superior mesenteric vein in his abdomen, a Grade 2 liver laceration, a pancreatic fracture, and traumatic brain injury resulting in his loss of consciousness.
In order to explain the injuries he sustained, plaintiff presented the testimony of Dr. Anthony V. Coletta, a general surgeon, via de bene esse deposition, which was read to the jury on January 8, 2008. Coletta described plaintiff's initial diagnosis based upon his review of the records from Jersey Shore and elaborated on plaintiff's extensive internal injuries. Plaintiff also called Dr. David Weiss, who was qualified as an expert in orthopedics and impairment and disability. Weiss confirmed the above initial diagnosis, also based upon his review of the records from Jersey Shore, and elaborated upon plaintiff's orthopedic injuries. Both Coletta and Weiss testified that plaintiff's injuries were due to blunt trauma as a result of being hit by defendants' pick-up truck.
When plaintiff arrived in the emergency room, active bleeding in his abdomen caused doctors to perform an exploratory surgery of the area called a laparotomy. This revealed the source of the bleeding to be a tear in plaintiff's mesenteric vein, which Coletta explained was one of the primary veins in the abdomen that drains blood from the majority of the small intestine and a portion of the large intestine. Without emergency medical treatment, a person cannot survive a lacerated mesenteric vein and would bleed to death. Plaintiff suffered a Grade 2 laceration of the surface of the liver, meaning it was not deep enough to jeopardize the major blood vessels within the liver and required no treatment. Coletta described plaintiff's pancreatic fracture as "severely contused" but not broken in half, which caused doctors to drain plaintiff's pancreas to prevent pancreatic enzymes from causing "auto digestion of [plaintiff's] own organs." During this first operation, doctors also inserted a feeding tube into plaintiff's abdomen.
On September 5, 2003, doctors performed a tracheotomy, in which a tube was inserted through the base of plaintiff's neck to enable him to be put on a ventilator because he could not breathe for a period of time. Coletta testified that patients who suffer multiple injuries and lose a lot of blood often develop "ventilatory failure." Plaintiff had to be weaned off of the ventilator over the course of about a month, most of which time he was unconscious. Plaintiff also had a Greenfield filter, which Coletta described as resembling a bird cage or badminton net, inserted into his abdomen to prevent any blood clots from going up the legs and into his lungs.
In terms of orthopedic injuries, x-rays revealed that plaintiff suffered a "comminuted fracture of the proximal ulna with radial displacement." Weiss explained that this meant plaintiff sustained a fracture of the ulna or forearm bone, with multiple bone fragments broken off, which was close to the elbow and caused dislocation of that joint. On August 29, 2003, doctors performed a fasciotomy, to relieve the pressure on plaintiff's forearm muscle. The doctors corrected the dislocation, stabilized the ulna fracture with the insertion of a plate and screws, repaired the lacerations, and closed the flap of skin. Plaintiff had an MRI done on October 29, 2003, which revealed a small loose bone fragment within his left knee. He also suffered "patella femoral arthralgia to the right knee."
On September 29, 2003, plaintiff was transferred to JFK Medical Center, where he fully regained consciousness for the first time since the accident. He had been told he was in and out of consciousness while at Jersey Shore, though he could not remember it. When plaintiff first awoke at JFK, he was crying because he was worried about how he would support his wife and children back in his native Philippines. All parts of his body were in pain, and he could not move. He did not initially recognize friends who visited him. While at JFK, plaintiff received inpatient therapy every half hour to strengthen his hands and "help [him] practice how to walk again." After a month at JFK, plaintiff could once again walk without assistance.
On October 30, 2003, plaintiff was transferred to Green Acres, his prior and current place of employment, where he received sub-acute inpatient rehabilitation. Plaintiff remained a patient at Green Acres for another month, during which time he received occupational therapy of an hour per day for his hands and thirty minutes per day to help him walk, as well as speech therapy to correct a stammering problem. As a result of the accident, plaintiff was out of work from August until about January 15, 2004, when he returned to his job as a prep cook in the kitchen at Green Acres.
For the first four months after he returned, plaintiff was put on "light duty" and was not allowed to lift anything heavier than twenty pounds. When asked how the injury affected him at work, plaintiff stated that he has become more forgetful and slower. While plaintiff was eventually promoted to cook, his limitations continued to affect him. Though he used to complete all his tasks on time, ever since his promotion, he now reports to work two hours earlier in order to accomplish his required tasks. Plaintiff testified that he is not compensated for the extra time.
Stephen Bulaun, the food service manager at Green Acres, has been plaintiff's friend and supervisor at all times relevant to this case. He hired plaintiff and knew him for more than five years prior to trial. He visited him almost every day in the hospital. He testified that, despite plaintiff's promotion, since he returned to work his workload is the same, but plaintiff can no longer finish his duties on time. According to Buluan, plaintiff has slowed overall and now requires assistance to lift heavy items such as the six-gallon soup pot. Buluan observed that plaintiff's handshake is softer and "a bit weaker" than before the accident. Plaintiff no longer plays basketball or softball, which he used to do recreationally with Buluan.
Maria Lapid, one of the owners of Green Acres, confirmed that plaintiff was not compensated for the time that he was out of work from November 28, 2003 to January 15, 2004. She visited plaintiff at Jersey Shore a few days after the accident and observed him unconscious, on the respirator, and "thrashing" in bed so badly that he had to be sedated. She visited him three times per week at JFK and twice a day when making her rounds at Green Acres. Since his return to work, she testified that he "continues to be a very good employee," but needs additional time to complete his normal duties. Buluan and Lapid both testified that plaintiff never regained consciousness while at Jersey Shore.
Plaintiff testified that, aside from his limitations at work, his injuries continue to cause pain in his right arm and pain in his stomach when he eats heavy food. He lost strength in his right hand, which he attempted to quantify by stating that before the accident he could do thirty pushups, but now he struggles to do ten. He testified that, due to the accident, he can no longer do the activities he used to enjoy, such as basketball, jogging, and practicing martial arts self-defense, though he still does "basic" martial arts exercises.
When Dr. Weiss examined plaintiff on September 1, 2004, plaintiff complained of persistent right elbow and forearm pain, decreased grip strength in his right hand, postural difficulties and difficulties lifting, kneeling, and squatting, as well as pain, stiffness, and instability in his left knee, which would swell depending upon changes in the weather. On a scale of one to ten, ten being excruciating, plaintiff rated his pain at a four. Weiss testified that plaintiff's range of motion in his right elbow had been limited from 145 degrees to 125 degrees. When examined by Coletta on October 25, 2004, plaintiff appeared to be well-healed and in no acute distress or pain, but complained of stomach reflux and occasional rectal bleeding.
Both Coletta and Weiss described plaintiff's thickened keloid-type scars*fn5 as well-healed but permanent in nature. As a result of the laparotomy, plaintiff has a long, thick scar the length of the abdomen from his breast bone to his belly button. He has another long, thick scar nearly the length of his right forearm as a result of the fasciotomy, and another prominent scar at the base of his throat from the tracheotomy. In addition, plaintiff has several smaller scars on his abdomen, back, arms, neck and eyebrow. Plaintiff showed his scarring to the jury. He testified that he was "embarrassed to use short sleeves because people could see the scars on my arms."
Having reviewed the factual record, we address the legal issues on appeal. Turning first to the issue of liability, we find no error in the judge's decision, placed on the record on January 14, 2008, denying defendants' motion to strike Eastman's testimony under the net opinion rule. Nor do we find any error in the judge's decision to deny defendants' motions for a new trial or for JNOV. Defendants' appellate arguments on those issues are not supported by the factual record,*fn6 are otherwise without merit, and except as addressed below, do not warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Pursuant to N.J.R.E. 703, an expert's opinion must "be supported by facts or data either in the record or of a type usually relied on by experts in the field." Scully v. Fitzgerald, 179 N.J. 114, 129 (2004). Consequently, "[t]he net opinion rule reflects the well-established notion 'that an expert's bare conclusions, unsupported by factual evidence, [are] inadmissible.'" Ibid. (quoting Buckelew v. Grossbard, 87 N.J. 512, 524 (1981). "Under this doctrine, expert testimony is excluded if it is based merely on unfounded speculation and unqualified possibilities.'" Vuocolo v. Diamond Shamrock Chems. Co., 240 N.J. Super. 289, 300 (App. Div.), certif. denied, 122 N.J. 333 (1990).
Based on our review of the record including the trial transcript, we find no merit in defendants' contention that Eastman rendered a net opinion. To the contrary, Eastman testified in considerable detail to the facts and the scientific bases supporting his opinions. Defendants' objections go to the weight to be given those opinions, a matter within the province of the jury. See Espinal v. Arias, 391 N.J. Super. 49, 58-59 (App. Div.), certif. denied, 192 N.J. 482 (2007). It was the jury's prerogative to decide what testimony to believe concerning the facts surrounding the accident and, based on those facts as well as their evaluation of the experts' credibility, to accept or reject either or both parties' experts. Ibid.
On a related point, we agree with the trial judge that there was no basis to set aside the liability verdict. Viewed in the light most favorable to plaintiff, there was ample evidence to support a verdict that Kost was fifty-percent liable for the accident. See Dolson v. Anastasia, 55 N.J. 2, 5-6 (1969); R. 4:40-2. Moreover, giving "due regard to the opportunity of the jury to pass upon the credibility of the witnesses" in this case, we cannot conclude "'that there was a miscarriage of justice.'" Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 490 (2001) (quoting R. 4:49-1(a)); Dolson, supra, 55 N.J. at 6-7.
In particular, reasonable jurors could have found that Kost was not a credible witness. He gave several inconsistent versions of the accident, and his testimony was contradicted in significant respects by other defense witnesses, such as his co-worker Daniel Clare. The jury could also reasonably have concluded that Kost was probably fatigued after working a double shift; that being the last vehicle in a convoy of trucks on an unfamiliar road at midnight, he was probably paying more attention to the vehicle ahead of him than he was to anything else on the road; and that he should have seen plaintiff in time to stop his vehicle.
We next address the issue of remittitur, focusing first on the applicable law. Remittitur is a mechanism for correcting an excessive jury verdict and avoiding the need to order a new trial:
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." In other words, remittitur denies a defendant a new trial if a plaintiff consents to a specified reduction in the jury award.
[Fertile, supra, 169 N.J. at 491 (citation omitted).]
However, remittitur is only properly applied where the verdict is so clearly excessive as to constitute a miscarriage of justice. The Court summarized the applicable principles as follows:
Because a jury is given wide latitude in determining pain and suffering damages, the standard for granting a new trial or remittitur is necessarily high. The "'judge may not substitute his judgment for that of the jury merely because he would have reached the opposite conclusion; he is not a thirteenth and decisive juror.'" A trial court should not order a new trial or remit a jury's damages award unless it is so clearly disproportionate to the injury and its sequela (here plaintiff's pain and suffering and loss of enjoyment of life) that it may be said to shock the judicial conscience. The verdict must be "'wide of the mark'" and pervaded by a sense of "'wrongness.'" In other words, the trial court must be "clearly and convincingly" persuaded that it would be manifestly unjust to sustain the award. [Johnson v. Scaccetti, 192 N.J. 256, 281 (2007) (citations omitted).]
In considering a remittitur motion, the trial judge must view the evidence in the light most favorable to the plaintiff, and cannot grant the motion without making specific findings as to the evidence on which the remittitur is based. "In deciding whether to grant a remittitur, the court must accept the evidence in the light most favorable to the plaintiff, and must articulate its reasons for reducing a damages award by reference to the trial record." Ibid. See also Jastram v. Kruse, supra, 197 N.J. at 220 n.2; Taweel v. Starn's Shoprite Supermarket, 58 N.J. 227, 236 (1971).
In its recent decision in Jastram, the Court emphasized the deference due the jury's judgment as to damages, and the limited circumstances in which remittitur is appropriate:
[T]he evaluation of damages is a matter uniquely reposed in the jury's good judgment, and to justify judicial interference, "[t]he verdict must be 'wide of the mark' and pervaded by a sense of 'wrongness.'"
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 through the date of trial, and the projected impact of the injury on the plaintiff in the future. . . .
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 omitted).]
The Court emphasized that a remittitur decision must be supported by a close and detailed analysis of the evidence on which it is based, and cannot be premised on the judge's mere disagreement with the verdict. "'[T]he judge may not substitute his judgment for that of the jury merely because he would have reached the opposite conclusion; he is not a thirteenth and decisive juror.'" Id. at 230 (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977)).
We now consider the trial judge's decision in light of the legal standard. To put our analysis in context, we quote the judge's remittitur decision in its entirety:
I am satisfied, however, that the level of -- the award here is -- cannot stand. This was a $2 million verdict. I will -- I -- I reject the analysis that says somebody who was comatose for five weeks suffers no pain and suffering during the time and therefore you can't really consider damages. My legal response to that based on a -- I believe a Latin phrase that I learned in law school is hogwash, that is not appropriate.
Obviously Mr. Candelario was substantially injured. However, the residuary impact of these injuries are -- do not sustain a verdict of $2 million. I agree with Mr. Moran to that extent. While there may have been cases in other jurisdictions or other circumstance where people were comatose for a lesser period of time and got more money, I don't really think that we're dealing with a matter that's a science rather than an art and that I'm compelled to accept what another jury might have done or another judge might've done.
It seems to me taking everything, looking at it from the perspective of the plaintiff, considering the residual effects that Mr. Moran described and to some extent that Mr. Garelick described too without all of the adjectival modification -- there was healing with keloid tissue, I remember Mr. Candelario lifting up his shirt and there was a scar that went up from the -- the omphalus -- omphalos to the area between the nipples. It was an operating scar, it was -- it did not appear to this Court to be particularly grotesque. That's not to say that it's not uncomfortable, but I don't think it's uncomfortable to the extent of $2 million. I will therefore under the authority of [Taweel] and the other cases dealing with remittitur, which held me to reduce an unjustifiable verdict to the maximum level that a jury could reach, reduce this verdict to $600,000.
We also consider the judge's opinion on the reconsideration motion. Plaintiff filed a motion for reconsideration of the remittitur, which the judge denied, after a discussion with counsel of previous settlement efforts and non-binding arbitration in the case. The judge also adverted to the number of plaintiffs who receive no cause verdicts and asked whether that should in some way be figured into the remittitur decision. Again, we quote the judge's decision in its entirety:
Now, I am satisfied, as I said before, that the injuries suffered by Mr. Candelario were substantial. He was comatose for four weeks or something like that. There was an argument made that, because he was comatose, -- it wasn't made by Mr. Moran. But there was an argument somewhere that appeared that, because somebody is comatose, they have no pain and suffering to which I say, phooey. That is a ridiculous argument. This was a serious injury.
But Mr. Candelario has made a very substantial recovery. I was satisfied that a $2 million verdict based on that was simply inappropriate and I have not been convinced that I erred in reducing it to the $300,000 figure.
Now, I, therefore have reconsidered the matter and I re-affirm my prior decision. I don't consider these jury verdicts that I've been shown necessarily to be helpful or binding on the Court simply because it seems to me that we don't know how many cases are no cause. We don't know what impression Mr. Candelario may have made or not made on the jury.
In light of the well-established legal standards governing remittitur, we conclude that the trial judge's decision must be reversed. The judge's stated reasons for remitting the verdict are inadequate and inconsistent with the principles articulated in Jastram and prior decisions. Remittitur cannot be based on a judge's ballpark sense of what a reasonable verdict might be. Absent a miscarriage of justice, in the form of a verdict shocking to the conscience, a trial judge is obligated to respect the jury's verdict. Johnson, supra, 192 N.J. at 281. The judge may not act as an additional and decisive juror. Baxter, supra, 74 N.J. at 597-98.
While, in some situations, it may be appropriate to consider verdicts rendered in other cases involving similar injuries, Jastram, supra, 197 N.J. at 229-30, prior settlement discussions between the parties may not be considered. See N.J.R.E. 408. The numbers of "no cause" verdicts handed down in other cases is utterly irrelevant and likewise may not be added into the equation. The judge's apparent consideration of these factors was misguided.
Based on our review of the trial transcript, as well as the photographic evidence of plaintiff's extensive scars, we find nothing shocking in the $2 million verdict which will, of course, be molded to a $1 million judgment. That the scars are the result of surgery to repair plaintiff's injuries does not make them any less disfiguring. Plaintiff will have to live with that disfigurement for the rest of his life. Further, the jury might have been legitimately influenced by the extent of plaintiff's internal injuries, which put him in a coma for more than a month and required extensive surgery to repair. According to his testimony, plaintiff experienced severe physical suffering when he awoke from the coma, and he continues to suffer pain as a result of his injuries.
The jury also might fairly have considered plaintiff's residual physical limitations as a result of the accident and the impact of those limitations on his work. In particular, plaintiff testified that in order to accomplish his job duties, with his limitations, he needed to report to work two hours early every day. He was not paid for these extra hours; they represented his efforts to stay employed despite his physical difficulties.
In summary, we conclude that the record supports the verdict and, even factoring in the trial judge's feel for the case, Jastram, supra, 197 N.J. at 230-31, there is no basis for remittitur. Accordingly, we reverse the remittitur order and remand for entry of an order reinstating the $2 million verdict and entering an appropriate molded judgment.
Affirmed in part, reversed and remanded in part.