November 20, 2009
MICHAEL PINTO, PLAINTIFF-APPELLANT,
BRUCE MORGAN AND LINDA MORGAN, DEFENDANTS-RESPONDENTS.
MICHAEL PINTO, PLAINTIFF-APPELLANT,
JANE MULLANEY, DEFENDANT-RESPONDENT.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket Nos. L-4527-04 and L-5416-04.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued November 2, 2009
Before Judges Lisa, Baxter and Alvarez.
Plaintiff, Michael Pinto, appeals from a March 14, 2008 order that granted the remittitur motion of defendant, Bruce Morgan, thereby reducing the jury's award of $1.5 million to $400,000, and from an April 28, 2008 order that denied his motion for reconsideration. We agree with plaintiff's argument that the trial judge: improperly substituted her opinion on damages for that of the jury; relied on an analysis of purportedly similar cases without ever determining whether the plaintiffs in question suffered injuries that were similar to plaintiff Pinto's; improperly considered verdicts from trials over which she had not presided, and based her conclusions about those trials on the squibs provided in a legal periodical; and concluded that the verdict was the result of the jury's desire to "punish" defendant Morgan because they were offended by his "lack of remorse" and vulgar language, even though the record is devoid of any objective evidence supporting the judge's conclusion that the jury was influenced by such factors. We reverse the order of remittitur and reinstate the jury's verdict. We also deny defendant Morgan's motion for temporary remand.*fn1
On the morning of July 4, 2002, plaintiff, then thirty years old, was riding his motorcycle when defendant Morgan suddenly pulled out in front of him. To avoid hitting Morgan's pickup truck or other vehicles, plaintiff swerved his motorcycle to the right, where it began to skid, ultimately hitting a curb. The impact with the curb caused plaintiff to crash into the windshield and mirror, shattering both, and to be thrown over the handlebars onto an adjacent lawn. Plaintiff was taken by ambulance to JFK Hospital in Edison, where he was evaluated and released. The next day, his fiancée took him to Rahway Hospital, where he remained overnight, and was discharged with a recommendation for follow-up care. After his discharge from Rahway, plaintiff came under the care of an orthopedist, who prescribed pain medication and physical therapy.
On August 15, 2002, while stopped at a traffic light, plaintiff was rear-ended by defendant, Jane Mullaney. He did not seek emergency room treatment and was not transported to a hospital, but continued his treatment with the orthopedist. Because physical therapy was not helpful, and in fact exacerbated the pain on his left side, plaintiff's physician referred him to an anesthesiologist, who administered a series of epidural injections in plaintiff's neck. Those injections were also not helpful.
To repair the extruded discs in his cervical spine, another specialist recommended that plaintiff undergo fusion surgery, which would have involved removing a piece of bone from plaintiff's hip and inserting it between two vertebrae to fuse the two together. Plaintiff decided to avoid the surgery because he had "seen too many people have more complications after having a procedure like that."
Because of plaintiff's continuing pain in his left shoulder, he was eventually referred for further testing, which disclosed a SLAP tear (superior labrum anterior posterior), for which he underwent surgery. Plaintiff also testified that although an earlier x-ray had not revealed it, a later x-ray showed he had sustained a fractured rib during the motorcycle accident involving Morgan. In addition to the extruded cervical disc, plaintiff was also advised by his treating physician that he had sustained herniated discs in his thoracic spine and bulging discs in his lumbar spine.
When asked to describe the impact of the injuries on his life, plaintiff commented that for quite a while following the motorcycle accident, he was in considerable pain, stating "[p]retty much the couch was my new home." He explained that he could not sleep in a bed because if he rolled over on his left side he would be awakened by the pain, so he chose to sleep on the couch "pretty much propped up." Plaintiff also described how his "life kind of changed in different ways." He testified that he was forced to give up saltwater fishing, which he had enjoyed, because pain from the jarring movement of the boat slapping on the waves caused "more . . . aggravation" than "enjoyment."
He also described limitations on his ability to ride a motorcycle. We quote that portion of his testimony in its entirety because plaintiff's ability to ride a motorcycle became the subject of a post-trial motion, which we describe later. Regarding his ability to ride his motorcycle, plaintiff testified:
The other thing was, too, I didn't ride a motorcycle all the time but that was something that I enjoyed because you could ride a bike -- that was my tranquility in a way where I could ride a bike and I would enjoy it. It's like different people have different hobbies and that was my hobby. I liked riding bikes. And I would do it once in a while when things got stressed out or if it was a nice day I'd just like to take a ride for an hour or two. And then -- and that would relax me.
Plaintiff also described difficulty in going to the movies with his wife, as well as problems with reaching, pulling, or lifting objects. He also testified that his left arm is sometimes numb and frequently "gets a tingly feeling . . . like it's asleep." He added that the problems with his left arm had caused him to twice drop an object he had been holding. More important, he explained, the weakness in his left arm had interfered with holding his newborn daughter, who liked being bounced on his knee when she was "colicky." Afraid that he might drop her, plaintiff consequently holds and plays with his daughter less frequently.
Last, he described an adverse impact on sexual relations with his wife because afterward his whole body "tenses up really bad." He explained that because his wife felt "guilty" about the pain he experienced after sexual relations, they were intimate far less frequently. Plaintiff concluded his discussion of that subject by saying, "it bothers me . . . not being with my wife as much."
Plaintiff's direct testimony ended with his identification of a large piece of shattered glass with jagged edges from the windshield of his motorcycle that had shattered on impact with his body.
Plaintiff also produced the testimony of his wife, Christine Pinto,*fn2 who explained the impact of the two accidents on her husband and on their life together. She described her husband having difficulty breathing for the first two months after the July motorcycle accident because of the broken rib, and explained that his back and arm were very painful and interfered with his ability to sleep. Plaintiff's wife also explained that there were many things that her husband "couldn't do around the house that he used to do before," such as mowing the lawn, shoveling snow, helping her put the groceries away, reaching up to remove an object from a shelf, and carrying the laundry basket. She also echoed her husband's description of his difficulty holding their daughter, and underscored the impact that her husband's injuries had had on "the frequency of [their] intimacy."
When asked whether her husband's shoulder had improved after the shoulder surgery of January 2007, she answered:
I don't know that I could say that there was improvement. He was still in pain. He couldn't move his arm. He had a loss of movement in his arm from the surgery, the range of the motion. So to me there -- there was no improvement. He was still in pain and he could move his arm le[ss] than he was able to before [the] surgery.
Mrs. Pinto also testified that her husband tried to avoid complaining about the pain, but because she had known him for fourteen years, she was able to tell "when he's in pain and when . . . he's not." She added, "I think he's kind of come to terms with the fact that he's going to be in pain and he just tries to be as comfortable as possible and not do those things that are going to cause him pain."
Her direct testimony concluded with a discussion of whether her husband currently owns a motorcycle. She explained that her husband's friends bought him a new motorcycle in the fall of 2005 "as a gift in the hopes that he would be able to ride with them in the future. They're all friends that he's known for a long time." She explained that after he received that gift, her husband tried to ride the motorcycle but was forced to "return very shortly after" because "[i]t hurt his neck too much. He had to come home." However, her husband did not want "to get rid of [the motorcycle] because his friends bought it for him. It meant a lot that they were nice enough to do that." She added that "I think he feels like they would be offended if he . . . g[o]t rid of it because it was something that they went out of their way to do for him."
Plaintiff's final witness was David Lessing, M.D., whose videotaped de bene esse deposition was played for the jury. Lessing testified as an expert in the field of orthopedic surgery, and described plaintiff's injuries and treatment. Lessing opined that plaintiff suffered the following injuries as a result of the motorcycle accident of July 4, 2002: the SLAP tear we have already described, which required surgical intervention; three vertebral compression fractures, T11, T12 and L1; a right eighth rib fracture; lumbar disc bulges at levels L3-4 and L4-5, and a cervical sprain.
In contrast, Lessing attributed the cervical herniation at C5-6 to the second accident in August 2002. He explained that after an electromyelogram and a discogram were performed, a neurosurgeon had recommended surgical fusion, which plaintiff had declined to undergo. Lessing testified that the only way to repair an extruding disc is the spinal fusion surgery that plaintiff's neurosurgeon recommended.
Lessing opined that the SLAP tear, vertebral compression fractures, rib fracture, cervical herniation, lumbar bulges, cervical radiculopathy, and sequelae of the shoulder surgery were all permanent injuries.
Lessing described, in considerable detail, the shoulder surgery that was performed to repair the SLAP tear. He began by explaining that the labrum is "sort of like a cup of soft tissue that deepens the socket that the [shoulder] bone . . . fits into." Using a series of exhibits and colorized drawings, Lessing explained that the shoulder repair surgery was performed by Dr. Charles Rizzo in April 2006. The surgery involved removal of a bone spur, removal of a portion of the synovial membrane in the shoulder, and removal of the bursa, which is a fluid-filled sac between the tendon and bone.
Lessing explained why the injuries were permanent, commenting that a broken bone can "mend" and "heal," but will "never be the same as an unbroken bone." For that reason, there would be permanency "associated with the fractures of the one rib and the three vertebrae." Lessing further opined that the damage to plaintiff's discs would also be permanent because the herniation and bulges "are distortions and disruptions of the dis[c] anatomy," and a disc "doesn't unherniate." Similarly, the radiculopathy at C5-6 is permanent because "nerve tissue heals poorly," causing "loss of nerve function in the future." Lessing explained that when a disc becomes herniated, it causes a "compressing, impinging and indenting" of the spine, which results in pain.
As to the shoulder surgery, Lessing opined that "of course he has permanent residuals related to the surgery. He's had bone removed, he's had bursa removed, he's had synovium removed, there's been permanent changes to the shoulder anatomy. So the shoulder won't be the same anymore either." Lessing concluded his testimony by opining:
I do not believe he will be able to function normally; to function at the level that he was capable of functioning before the accident.
Well, he's had four years of elapsed time for nature to try to heal; he's had interventions by pain management people; he's had physical therapy. If it hasn't healed by now, in my experience it's not going to. That he will have permanent residuals ongoing.
During Lessing's last examination of plaintiff on February 28, 2006, he found plaintiff to still be suffering from "reduced motion in the shoulder, some reduction of motion in the neck, [and] some stiffness and loss of motion in his low back."
Defendant Morgan testified, explaining in considerable detail his version of the happening of the accident. Morgan also testified that after plaintiff landed on the lawn, he stood up "and said 'fuck.' And that's what he said, 'you mother fucker.'" On another occasion, Morgan testified that plaintiff called him "'mother fucker' several times." A moment later, Morgan testified that "[he] was called 'mother fucker' . . . during this exchange" with plaintiff. The record demonstrates that on each occasion Morgan used foul language, he was merely quoting the statements plaintiff had allegedly made. The judge never interrupted Morgan, never instructed him to calm down, never issued a curative instruction to the jury, and never, until the hearing on the remittitur motion, made any specific comment about Morgan's choice of words.
Morgan also presented the testimony of Dr. Bernard Rhineberg, who was board-certified in orthopedic surgery. Rhineberg testified that as a result of the two accidents, plaintiff "may have had strains and contusions," but that the "left shoulder pain is not causally related to the accidents." Rhineberg also opined that the MRI of plaintiff's shoulder showed degenerative change to the labrum, suggestive of "wear and tear" and not traumatic injury. He also disagreed with Lessing's opinion that plaintiff sustained a herniated disc in his cervical spine. Rhineberg concluded his testimony by opining that plaintiff had suffered no permanent injuries. On cross-examination, Rhineberg conceded that he had never reviewed plaintiff's MRI films, had not performed any surgery in fifteen years, had never personally treated a patient who had sustained a SLAP tear, and had never witnessed surgical repair of a SLAP tear.
The jury returned a verdict finding that defendant Morgan was 100% responsible for the July 4, 2002 accident. After answering "yes" to the question on the verdict sheet that asked whether plaintiff had suffered a permanent injury as a result of that accident, the jury awarded plaintiff $1,500,000 in damages. As to defendant Mullaney, liability had been stipulated, and the jury was therefore required to consider only whether plaintiff had suffered any injury as a result of that accident. The jury answered "no" to that question.
On February 12, 2008, defendant Morgan filed a motion for a new trial, with an alternative remedy of remittitur, which was heard on March 14, 2008. The judge began by discussing the requirements for remittitur, acknowledging that the standard "is necessarily high" and that remittitur should be granted only when the damage award is "so clearly disproportionate to the injury and its sequel[ae] that it may be said to shock the judicial consci[ence]. It must be wide of the mark. And it must have a sense of wrongness." The judge then reviewed the evidence from four trials over which she had presided. Next, she summarized verdicts that were reported in the publication "New Jersey Jury Verdict Review and Analysis."
We turn first to the judge's discussion of the four trials over which she had presided. Describing the first trial, the judge merely remarked that after an accident in a parking lot, the plaintiff "experienced pain in his shoulder, pain in his back. Surgery was recommended because there was clearly an impingement . . . of the left shoulder . . . [and] a partial tear of the tendon." The verdict was $10,000. The judge did not explain whether the injuries were permanent or what effect, if any, those injuries had on the plaintiff's life. Nor did she explain whether she viewed plaintiff Pinto's injuries as identical to those of the other plaintiff.
In the second trial, without specifying what injury the plaintiff had sustained, the judge referred to the thirty-five year old plaintiff's "neck and shoulder pain," which resulted in "several epidural injections" that provided no relief. Despite "extensive physical therapy," the plaintiff continued to suffer from tingling in her hand, a "very heavy feeling" in her arms, and daily neck and shoulder pain, all of which "impacted her work and she had daily headaches." The verdict was $120,000.
In the third trial, a thirty-nine year old female plaintiff experienced "pain radiating down her shoulder to her hands." The plaintiff "also had jaw problems," although "there was no TMJ expert testimony." As with the second trial, the judge did not specify the precise injury the plaintiff had sustained, but merely described the symptoms. The verdict was $20,000.
In the fourth trial, a thirty year old male experienced "lower back pain and leg pain, as well as left shoulder pain," interfering with his ability to exercise and causing him difficulty in sitting and in holding objects in his hand. Again, the judge did not specify the precise injury the plaintiff sustained. The verdict was $110,000.
Next, the judge discussed three matters she had conferenced that resulted in settlements: herniated lumbar discs and bulging cervical discs, settling for $115,000, without any surgery; a $175,000 settlement for a sixty year old male who underwent two unsuccessful shoulder surgeries; and a forty year old male who underwent fusion surgery of the cervical spine and settled his case for $250,000, which included a $12,000 wage loss.
The judge then provided a summary of verdicts reported in the publication "New Jersey Jury Verdict Review and Analysis." The verdicts included a seventy-three year old passenger who sustained a "small rotator cuff tear," apparently underwent no surgery and was awarded $150,000; a female of an unspecified age who sustained a fractured clavicle, shoulder bursitis, an aggravation of her pre-existing arthritis, and "probably sustained a rotator cuff tear," and who underwent a series of steroid injections, and received a jury award of $170,000; a male whose age was unspecified who suffered a herniated disc, was forced to give up his hair styling business, and was awarded $250,000.
After concluding her discussion of the verdicts and settlements she considered to be comparable, the judge discussed the second factor she believed necessitated remittitur, namely the conduct and demeanor of defendant Morgan. The judge made the following findings:
In this case, Mr. Morgan, in my opinion evoked an instant dislike from the jury. He was rude to [plaintiff's counsel] . . . and Mr. Morgan, I recall vividly, standing toe to toe with [plaintiff's counsel], hands on his hips, striking a defiant posture, saying, counsel, you've got it all wrong. . . . [H]e was very disrespectful to [plaintiff's counsel].
That was done right in front of the jury box. [Plaintiff's counsel] was simply trying to show the witness something and Mr. Morgan got out of the jury [sic] box and I was afraid he was going to actually strike a blow at [plaintiff's counsel] at one point. That's how close he got to [him].
[Mr. Morgan also demonstrated a] lack of sensitivity to the plaintiff and his injuries. I mean to this very day I don't think Mr. Morgan has any care in the world for whatever happened to [plaintiff]. In fact, if [Morgan] used the f-word one more time I thought the jury was going to jump up and get him, because he must have said it three times.
The judge concluded that the jury "punish[ed]" defendant for his unpleasant attitude and vulgar language during the trial. When combined with the results of the judge's comparison of plaintiff's injuries to jury verdicts in other trials, she concluded that the $1.5 million award "does shock the consci[ence]." On appeal, plaintiff argues that the trial court's interference with the jury's verdict must be reversed because: 1) the judge's analysis is contrary to the standards established by applicable case law; 2) her analysis of the record was flawed; 3) she unfairly applied information she learned during settlement discussions to her analysis of defendant's remittitur motion, thereby violating plaintiff's right to an impartial analysis; and 4) her determination that plaintiff would not be entitled to a new trial as to both defendants, if he rejected the remittitur, was error. Defendant Morgan maintains that the grant of the remittitur application was supported by the record, was in compliance with applicable case law, was not influenced by information learned during settlement conferences and should be affirmed. Defendant Mullaney contends that although the decision to reduce the jury's verdict was improper, the court did not err when it limited any new trial on damages to defendant Morgan.
"[A] civil plaintiff has a constitutional right to have a jury decide the merits and worth of her case." Johnson v. Scaccetti, 192 N.J. 256, 279 (2007) (citing N.J. Const. art. I, ¶ 9). Jury verdicts are generally upheld, but there is "limited" authority, under the concept of remittitur, to set aside damages on grounds of excessiveness. Carey v. Lovett, 132 N.J. 44, 66 (1993). Furthermore, when a "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." Jastram v. Kruse, 197 N.J. 216, 231 (2008).
In determining whether damages are excessive, the judge's review should be grounded in the "totality of the evidence," Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977), with the judge evaluating 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. [Jastram, supra, 197 N.J. at 229.]
The court may also look "beyond the record to judicial 'experience with other injury verdicts.'" Ibid. (quoting Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 501 (2001)). When "'it does so, it must give a factual analysis of how the award is different or similar to others to which it is compared.'" Id. at 229-30 (quoting Johnson, supra, 192 N.J. at 281). If after this analysis, the judge finds that the jury award is "wide of the mark," "pervaded by a sense of wrongness," represents "a plain miscarriage of justice," Jastram, supra, 197 N.J. at 229 (internal citations omitted), or "shock[s] the judicial conscience," Johnson, supra, 192 N.J. at 281, then judicial interference is justified.
Although judges may use remittitur to decrease damage awards, the standard for granting remittitur is "necessarily high." Johnson, supra, 192 N.J. at 281. "[W]here an award, 'even if generous[,] has reasonable support in the record, the jury's evaluation should be regarded as final.'" Jastram, supra, 197 N.J. at 230 (quoting Taweel v. Starn's Shoprite Supermarket, 58 N.J. 227, 236 (1971)). Indeed, even when the "jury's award is undoubtedly high, [and] perhaps overly generous[,]" the award will be respected, and not reduced, if the trial judge "failed to articulate sufficient reasons to justify a remittitur" because such remedy "is reserved to correct only a 'manifest miscarriage of justice.'" Johnson, supra, 192 N.J. at 283 (quoting Baxter, supra, 74 N.J. at 598).
Further, "[i]n a close case, the tie must go to the jury," ibid., because "[i]n the American system of justice the presumption of correctness of a verdict by a jury has behind it the wisdom of centuries of common law merged into our constitutional framework." Baxter, supra, 74 N.J. at 598. "'[T]he judge must 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.'" Ibid. (quoting Dolson v. Anastasia, 55 N.J. 2, 6 (1969)).
In our analysis of a jury award or of a trial judge's grant of remittitur, we "must afford due deference to the trial court's feel of the case," because "[i]t is the [trial] judge who sees the jurors wince, weep, snicker, avert their eyes, or shake their heads in disbelief." Jastram, supra, 197 N.J. at 230. Where, however, the 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." Id. at 230-31 (internal citations and quotations omitted).
The Law Division judge was wide of the mark in her assessment of the verdict. We so conclude for several reasons. First, rather than view plaintiff's injuries in the light most favorable to him as she was required to do, Jastram, supra, 197 N.J. at 229, the judge trivialized the impact of plaintiff's injuries on his life. For example, in response to plaintiff's argument that the weakness in his left arm interfered with holding his newborn daughter and playing with her, the judge commented, referring to babies, "they don't break." A moment later, the judge stated that while she was able to understand plaintiff's concern about holding his daughter, "there was nothing that indicated that he had ever dropped the baby."
Likewise, the judge minimized the significance of plaintiff's testimony about the impact of his injuries on sexual relations with his wife. The judge commented that "there was some brief mention of sexual difficulty after sex. Not engaging in it, but the aftermath." That summary is at odds with the record because, as both plaintiff and his wife made clear, plaintiff's pain after engaging in intercourse had resulted in a marked decrease in the frequency of such intimacy.
The judge's discussion of plaintiff's injuries also ignored the severe pain that plaintiff has experienced as a result of the extruded cervical disc, pain that could conceivably last for the rest of his life if he remains unwilling to undergo the considerable risk such surgery entails. We view the judge's characterization of the record as at odds with the favorable light in which a plaintiff's proofs must be viewed. Ibid.
Second, the judge's comparison of the jury's award to verdicts rendered in other trials over which she had presided was flawed, and fails to satisfy the requirement the Court imposed in Johnson, when it insisted that judge's must provide "a factual analysis of how the award is different or similar to others to which it is compared." Johnson, supra, 192 N.J. at 281. The most glaring defect in the judge's description of those four verdicts was her omission in all but the first trial she discussed, of any description of the actual injury those plaintiffs had sustained. Although in her discussion of the first ostensibly similar trial, the judge did refer to "an impingement of the left shoulder" and "a partial tear of the tendon," she did not, as Johnson requires, make any effort to compare the severity of that plaintiff's injuries to the injuries plaintiff suffered here. While the judge referred to symptoms such as neck and shoulder pain as well as a tingling in the hand and a heavy feeling in the plaintiff's arms in the second trial; radicular pain and jaw problems in the third trial; and low back and shoulder pain in the fourth, the judge never once, for any of those three trials, mentioned any of the diagnoses or the actual injuries those plaintiffs had sustained. This superficial listing of symptoms falls woefully short of the "factual analysis of how the award is different or similar to others to which it is compared" that the Court required in Johnson, supra, 192 N.J. at 281, whenever a judge relies on his or her knowledge of other injury verdicts.
Third, from the meager information the judge provided about those four verdicts, it appears that the injuries sustained, and the treatment incurred, by those four plaintiffs bears no resemblance to the injuries and treatment of plaintiff Pinto. None of the four appear to have had even a single herniated disc, whereas plaintiff Pinto sustained a severe herniation of a cervical disc, for which fusion surgery was recommended, as well as three bulging discs, three vertebral compression fractures and a broken rib, as well as the labrum tear for which he underwent surgery. Unlike plaintiff, none of those four plaintiffs underwent surgery. The four injuries the judge mentioned are so dissimilar to plaintiff's injuries as to render them useless for purposes of comparison.
Fourth, to the extent that the judge bolstered her conclusion that remittitur was warranted by relying on settlements and on squibs in the "New Jersey Jury Verdict Review and Analysis," such reliance was wholly improper. In Johnson, the Court authorized judges to rely on their knowledge of injury verdicts, ibid., not settlements. Thus, reliance on settlements was improper. As to the judge's reliance on the published squibs, the authorization in Johnson to compare other verdicts to the verdict in question presupposes that the judge has actual, first-hand knowledge of those other trials. Ibid. Reliance on squibs in a legal periodical strikes us as a poor, and indeed an insufficient, substitute for actually presiding over the trial and hearing the testimony.
Fifth, in her evaluation of the quantum and quality of plaintiff's medical proofs, the judge ignored the enormous amount of detail Dr. Lessing provided. As is evident from the jury's affirmative response to the question on the verdict sheet asking whether plaintiff had sustained any permanent injuries, the jury accepted Dr. Lessing's opinions and rejected those offered by Dr. Rhineberg.
Thus, it is apparent that the jury accepted Dr. Lessing's explanation that plaintiff's injuries are permanent because a broken bone that has healed will "never be the same as an unbroken bone"; "nerve tissue heals poorly," causing "loss of nerve function in the future"; a herniated disc causes a "compressing, impinging and indenting" of the spine, resulting in pain; and because of the removal of bone, bursa and synovium during the SLAP repair surgery, plaintiff's shoulder "won't be the same anymore." As a result of Dr. Lessing's use of colorized diagrams and other visual aids during his testimony, the jury had the opportunity to develop a considerable understanding of the extremely invasive surgery plaintiff was forced to undergo for the repair of his shoulder. The judge's discussion of the record understates the significance of Lessing's graphic and comprehensive testimony. Moreover, the judge's summary of the record ignored plaintiff's and his wife's testimony that the shoulder surgery was far from successful because plaintiff continued to experience considerable pain and significant limitations in the use of his shoulder.
Sixth, the judge's conclusion that the jury awarded plaintiff an excessive verdict to "punish" Morgan is not supported by the record. While we recognize that we are obliged to "afford 'due deference' to the trial court's feel of the case," Jastram, supra, 197 N.J. at 230, the record does not provide adequate support for the judge's conclusions. Notably, her description of defendant's use of the "f-word" would lead one to believe that Morgan gratuitously cursed and used foul language in the courtroom. A reading of the record, however, demonstrates that each time defendant used that word, he was merely quoting the language he attributed to plaintiff.
Moreover, although the judge commented that if defendant "used the f-word one more time," she believed the jury would "jump up and get him," she provides no facts from the record to support such a conclusion. Missing from the judge's comments is any description of anything in the jury's behavior, its facial expressions, or any of the other tangible reactions the Court referred to in Jastram, supra, 197 N.J. at 230, that would support the judge's conclusion that the jury was so offended by Morgan that it returned a runaway verdict.
Further, the judge's comment that Morgan adopted a confrontational tone with plaintiff's lawyer, stepped out of the witness box and stood too close to him, while not an instance of model behavior, ignores the fact that emotions become heated during trials. We do recognize, however, that we, unlike the trial judge, were not present in the courtroom. Nonetheless, the record demonstrates that the judge never interrupted Morgan, never instructed him to calm down, never directed him to return to the witness stand, never issued a curative instruction to the jury, and never, until the hearing on the remittitur motion, made any specific comment about Morgan's behavior or choice of words. For all of these reasons, despite our obligation to defer to a trial judge's feel of the case, the judge's conclusion here that the jury awarded plaintiff excessive damages to "punish" defendant is not supported by a discussion of the record sufficient to warrant our deference.
In conclusion, having carefully considered the judge's statement of reasons in light of the record and applicable precedent, we are left with an abiding sense that the trial judge substituted her opinion of the value of plaintiff's case for the verdict rendered by the jury, without ever establishing that the verdict was excessive, and without properly substantiating her conclusion that the jury's damage award was grounded in bias and emotion, rather than a proper evaluation of the evidence. We therefore reverse the grant of remittitur and reinstate the jury's verdict.
Last, we turn to defendant Morgan's motion for temporary remand to permit the trial judge to consider newly-discovered evidence in the form of a tape recorded statement from a neighbor of plaintiff, Bradford Gifol. Gifol asserts that he contacted Morgan's trial attorney because he was aware of plaintiff's jury verdict and had observed plaintiff engaging in activities in the summer of 2009 -- eighteen months after the trial concluded -- that were the same activities plaintiff testified at trial he was no longer able to enjoy. In particular, Gifol asserts that he has seen plaintiff riding his motorcycle and carrying a satellite dish, all without any apparent discomfort. Morgan's attorney arranged for the preparation of a surveillance videotape, which, according to counsel, shows plaintiff riding his motorcycle, and using his left arm, with no apparent limitations.
We deny the motion for temporary remand for two reasons. First, as plaintiff correctly argues, defendant has mischaracterized plaintiff's trial testimony, and that of Mrs. Pinto, on the subject of riding a motorcycle. Neither one definitively stated that plaintiff had never ridden his motorcycle. Plaintiff certifies, in his opposition to defendant's remand motion, that he has ridden his motorcycle on only two occasions, once to honor the memory of a friend killed in a motorcycle accident, and the second, to relieve the stress caused by Gifol's constant harassment. Regardless of the extent to which plaintiff has ridden his motorcycle subsequent to the trial, such conduct does not demonstrate that plaintiff's or Mrs. Pinto's testimony was false. Second, there must be finality to verdicts. As plaintiff correctly argues, if he ultimately decides to undergo the recommended cervical fusion, or a second shoulder surgery, he will have no right to reopen the verdict. Consequently, in the absence of fraud, which does not exist, defendant should have no right to do so either. The motion for temporary remand is denied.
Reversed and remanded for the entry of an order reinstating the jury verdict. The motion for temporary remand is denied.