On certification to the Superior Court, Appellate Division, whose opinion is reported at
The opinion of the court was delivered by: Justice Hoens
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
Ming Yu He and Jinfang He v. Enilma Miller and Randy Miller
JUSTICE HOENS, writing for a majority of the Court.
In this appeal, the Court establishes a framework for considering grants and denials of remittitur and examines the propriety of the trial court's remittitur reducing the jury award.
Plaintiff Ming Yu He was in an automobile accident with defendant Enilma Miller. According to an MRI, plaintiff suffered spinal injuries and had a pre-existing degenerative disc disease. Although treatment only provided temporary relief, a neurosurgeon recommended that plaintiff forgo surgery in light of its risks. Plaintiff presented evidence that her injuries precluded her from returning to her housekeeper job and that her physical ailments, together with her lack of skills, combined to leave her without ability to return to other forms of work. In addition, plaintiff offered documentary proof of her past lost wages and testified that, prior to her accident, she expected to work another twenty years. Plaintiff also testified about the impact of the injuries on her life, explaining that pain causes her to drop items, her ability to do chores is limited, she has to rely on family-member assistance, and she feels useless. Finally, she and her husband testified about the detrimental impact of her injuries on their marriage.
A jury found that defendant was negligent and awarded plaintiff $110,000 for past lost wages and $500,000 for future lost wages. The jury also found that plaintiff had sustained a permanent injury and awarded $1,000,000 for pain and suffering and $100,000 for her husband's loss of consortium. Defendant moved for a new trial or, in the alternative, remittitur. The trial court granted the remittitur motion, reducing the pain and suffering award to $200,000 and the loss of consortium award to $20,000. The court's conclusion was based on plaintiff not appearing to be affected by her injuries during trial; the recommendation to forego surgery; her degenerative disc disease; and her ability to care for herself, drive a motor vehicle, and perform light housekeeping. The Appellate Division reversed. This Court granted certification, summarily reversed in part, and remanded to the trial court to conduct a searching analysis, including a factual analysis of how these awards compare to others. 199 N.J. 538 (2009).
On remand, the trial court explained its review of verdicts in other cases, its personal experiences, and its "feel of the case" observations, and concluded that the jury awards for pain and suffering and loss of consortium were shocking to the judicial conscience. The court set forth the facts and allegations of cases that it found factually comparable, including two over which it had presided and six that defendant had called to the court's attention. Although none of those cases were identical to plaintiff's accident or injuries, and the defendant-provided cases offered limited information about the plaintiffs' circumstances, the court compared them by evaluating the severity of the injuries and medical treatment. It concluded that the range of gross awards for similar serious injuries was significantly less. The judge also noted that during his lengthy experience as a trial attorney, he had not seen such a high damages award in similar cases, and that his observations of plaintiff during the trial supported remittitur.
The Appellate Division again reversed, concluding that the record fell short of what remittitur requires. He v. Miller, 411 N.J. Super. 15 (App. Div. 2009). In particular, the panel found the cases on which the trial court relied distinguishable; rejected the trial court's "feel of the case" observations; and found it inconsistent that the trial court remitted the pain and suffering and loss of consortium awards, but left the jury's sizeable awards for past and future lost wages undisturbed. The Court again granted certification. 201 N.J. 446 (2010).
HELD: The jury's award cannot stand because the trial court provided a sufficient explanation for remittitur and its decision was supported by the record.
1. The authority to apply remittitur springs from the court's power to grant a new trial, which may be exercised when there clearly was a miscarriage of justice. Remittitur, an alternative to ordering a new trial, is a device through which the court addresses a jury's excessive award by requiring the plaintiff to consent to a reduced award as a condition to its denial of a new trial motion. The trial should not disturb the jury's award unless it is so disproportionate to the injury and resulting disability as to shock the conscience and convince the court that to sustain the award would be manifestly unjust. The evidence must be viewed in the light most favorable to plaintiff, and there is a presumption that the verdict is correct. The purpose of remittitur is to reduce a verdict that is shocking and award in its place the highest figure that could be supported by the evidence. (pp. 21-26)
2. In detailing a framework for an appropriate remittitur analysis, several propositions are essential: (1) the jury's views of the facts and the credibility of the witnesses as expressed in its verdict are entitled to deference; (2) remittitur is reserved for the unusual case that meets the "shocking" criteria; (3) remittitur is not an opportunity for a reviewing court to impose its view of the case on the parties or to interfere with an award that is generous, albeit sustainable; (4) the decision to order a remittitur must spring from a certain belief that the award, in light of the facts and the evidence, falls outside the relatively wide range of one that is acceptable. (pp. 26-28)
3. The fourth proposition presupposes that the trial court has an appreciation for where the boundaries of the "wide range of acceptable" are found and demands that the trial court be generally cognizant of the parameters of similar cases and similar claims. The careful creation of a record of the court's basis for a grant of remittitur is central to any evaluation of that decision because all judges come to the bench with different backgrounds and experiences and no two plaintiffs or cases are identical for comparison. Four observations must guide the court's analysis in this respect: (1) litigants must be provided the opportunity to be heard and make a record, including the chance to bring to the court's attention relevant precedents that advance that party's view and an opportunity to rebut those offered by his or her opponent; (2) the court must identify, with precision, the basis for its decision; (3) the court may use its "feel of the case" to inform its reasoning; and (4) appellate panels must recognize that their mere disagreement with the trial court's evaluation will not suffice -- the appellate standard is 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." (pp. 29-33)
4. The reasons that supported the trial court's decision to use remittitur included the court's personal experiences, its review of verdicts in other cases, and its "feel of the case" observations. The trial court's extensive experience was significant because it informed the court's sense of where the "wide range of acceptable" ended. In addition, the two trials over which the court had presided, although hardly identical, were relevant in that they pointed out this jury's greatly disparate award. Moreover, the cases that defendant provided, while not involving injuries, treatment, or life circumstances identical to plaintiff's, helped inform what the "wide range of acceptable" was by fixing the highest known award in any case even remotely similar to plaintiff's. Finally, the judge's "feel of the case" observations, some of which the jury could not have made, also supported the court's decision. Pursuant to these bases, the trial court's decision to direct a remittitur was appropriate. (pp. 33-36)
5. The appellate panel's decision rejecting remittitur was in error because: (1) the panel's test for remittitur would demand that comparison cases be so closely similar as to be identical, thus fixing a new standard that would be impossible to meet; (2) the panel ignored the fact that plaintiff provided no comparative cases; (3) in addressing the trial court's references to its own experiences, the panel's approach was unduly restrictive; (4) by criticizing the trial court for finding only the non-economic damage awards, and not the economic awards, to be shocking, the panel failed to appreciate the different roles played by those separate categories of damages and the different proofs relevant to each; and (5) by disregarding the trial court's "feel of the case" observations, the appellate court overlooked the vantage point that the trial court enjoyed separate and apart from that of the jury. (pp. 36-39)
The judgment of the Appellate Division is REVERSED and the matter is REMANDED to the trial court for further proceedings consistent with this opinion.
JUSTICE ALBIN, DISSENTING, joined by CHIEF JUSTICE RABNER, concludes that the damages awards did not constitute a manifest miscarriage of justice necessitating a new trial or a remittitur, and expresses the view that the majority: failed to view the evidence in the light most favorable to the plaintiff; failed to give deference to the validity of a jury verdict; exalted the trial judge's courtroom observations above the jury's; permitted the judge's unspecified personal experiences as a trial attorney to inform his decision; and deferred to the judge's comparisons to other dissimilar or inadequately detailed cases.
JUSTICE RIVERA-SOTO and JUDGE WEFING (temporarily assigned) join in JUSTICE HOENS's opinion. JUSTICE ALBIN filed a separate, dissenting opinion in which CHIEF JUSTICE RABNER joins. JUSTICES LONG and LaVECCHIA did not participate.
JUSTICE HOENS delivered the opinion of the Court.
This appeal, and its complex procedural path, starkly illustrates the profound difficulties that our trial courts and appellate tribunals continue to encounter as they seek to understand and apply the concepts surrounding remittitur. As such, it challenges this Court to create a workable template to guide both the trial and appellate courts when they are called upon to apply the remittitur device. In addressing the issues on appeal, however, we endeavor to make plain the circumstances in which remittitur can and must operate, for only through that effort can we ensure that remittitur is reserved for the few cases in which it is appropriate and proceeds upon a record sufficient to withstand appellate scrutiny.
The complicated route the case has taken on its way to review by this Court bears brief recitation because it serves as an example of the inherent difficulties such disputes present. In short, a jury found in favor of an injured plaintiff, returning a verdict that included past and future lost wages and, significant to our appeal, an award for plaintiff's pain and suffering and for her spouse's loss of consortium. The trial court, for reasons set forth on the record and in writing, concluded that the awards for pain and suffering and for loss of consortium constituted a "miscarriage of justice under the law," and "shock[ed] the judicial conscience." On that basis, the trial court granted defendant's remittitur motion.
The Appellate Division granted plaintiff's motion for leave to appeal, reversed the remittitur order, and directed that the jury's verdict be reinstated. Upon defendant's petition, this Court then summarily reversed in part and remanded to the trial court with instructions to conduct a "complete and searching analysis," after which the Appellate Division was ordered to "reconsider its judgment in light of the findings developed on remand." He v. Miller, 199 N.J. 538, 539 (2009). Complying with those instructions, the trial court issued an amplified statement of reasons, describing the cases to which it had looked for comparison and again concluding that the awards for pain and suffering and loss of consortium could not stand. The Appellate Division again disagreed, however, concluding that the record fell short of what the remittitur rule requires.
The competing views expressed by the trial and appellate courts, stated at each step with increasing conviction, cry out for this Court to make clear how the remittitur rule is to be applied and the circumstances in which its application is appropriate. Those circumstances, as we have long held, are not the common ones in which a trial or appellate court might have evaluated damages in a manner less generous than the award that the jury chose, but are the unusual ones in which the jury's damage award is indeed shocking to the judicial conscience.
In establishing the framework for consideration of a grant of remittitur, however, we again remind our trial courts that if they conclude that remittitur should be applied, their reasoning must be carefully explained and their decision supported by a record sufficient for review on appeal. Moreover, we reiterate that the appellate court, in performing its review, likewise must refrain from merely substituting its differing opinion without appropriate deference to the trial court and an equally careful articulation of reasons.
In the end, we conclude that this jury's award cannot stand because the trial court's explanation of its reasons for reaching that conclusion and the factual basis on which it acted were sufficient, and the appellate panel's contrary view was based on a misapplication of our settled precedents.
We derive the facts from the record created during the trial of plaintiffs' claims, but our recitation is bounded by the narrow focus of the issue presented in this appeal. In particular, in light of the applicable standard of review, we need not describe the evidence produced by defendant that tended to cast doubt on plaintiffs' claims, but instead we only set forth the proofs in the light most favorable to plaintiffs. See Johnson v. Scaccetti, 192 N.J. 256, 281 (2007).
Plaintiff Ming Yu He*fn1 was injured in an automobile accident with defendant Enilma Miller*fn2 on October 28, 2003. Plaintiff testified that the impact caused her to "pass out," that the airbags deployed, and that her vehicle traveled off of the roadway and came to rest "in front of some trees." She could not recall if she hit her head during the collision, but testified that after she was "awake again" her head, neck and hands were aching. She described her pain as having been "serious" and she was transported to the hospital, where she was examined and released the same day.
Starting the next day, plaintiff had, by her estimation, two or three visits with a chiropractor. He treated her with over-the-counter medications and physical therapy, which did not alleviate her pain. She next came under the care of a physiatrist who also attempted conservative therapies before ordering MRI studies to better assess plaintiff's condition. The MRI films, taken two months after the accident, revealed two herniated discs in her cervical spine, one of which impinged on the spinal cord, and three herniations in her lumbar spine, accompanied by evidence of pre-existing degenerative disc disease.
The physiatrist also referred plaintiff to a pain management doctor who, plaintiff estimated, performed thirty to forty acupuncture treatments. In addition, both of these health care providers treated plaintiff with epidural injections of cortisone into her cervical and lumbar spine. Because all these forms of treatment provided only temporary relief, plaintiff was referred to a neurosurgeon. Following his review of additional MRI studies, the neurosurgeon recommended that plaintiff forgo surgery, in light of its risks. At the time of trial, plaintiff was continuing to be treated by the physiatrist with prescription narcotics for pain relief.
At trial, plaintiff testified about how her injuries affected her life. She explained that she had previously been employed as a housekeeper in a New York City hotel, but had been unable to return to that job because her injuries impaired her ability to do the heavy physical work it involved. She offered documentary proofs that her past lost wages, representing approximately four and one-half years, were $110,194.55 and testified that, prior to her accident, she expected to work until reaching age sixty-seven, a period of twenty years. Plaintiff also expressed her feelings about not being able to return to her job, describing it as a job she "kind of like[d]" and "treasure[d]," and saying that "a job like that is not easy to find."
In addition, plaintiff presented the testimony of an expert occupational therapist and vocational evaluator who had performed an assessment of plaintiff's ability to secure employment. That expert testified that the physical limitations plaintiff had because of the injuries she sustained in the car accident precluded her from returning to her job as a hotel housekeeper. In addition, the expert opined that plaintiff's physical ailments, together with her limited English language skills, her lack of formal education beyond high school, and the fact that she had no other transferable job skills, combined to leave her without the ability to return to other forms of unskilled labor.
At trial, plaintiff also testified about the impact that her injuries have had on her life. She explained that she has pain in her neck and back that sometimes travels to her head or to her hands, causing her to drop items. She testified that she can perform self-care tasks, but her ability to do household chores is limited. Plaintiff testified that she was particularly affected by her increased need to rely on her parents for help, because she had brought them from China to reside with her family, expecting that they would be able to rest and enjoy life while she cared for them. She described herself as "feel[ing] kind of useless" because she had to depend on family members to help her. Finally, she and her husband testified about the impact of her injuries on their marriage, explaining that they were no longer able to engage in sexual relations because of the pain she felt when trying to do so.
Plaintiff's claims were tried over the course of four days in February 2008. After deliberations, the jury found that defendant was negligent and was the sole proximate cause of the accident. It then awarded plaintiff $110,000 in damages for her past lost wages and $500,000 for her future lost wages. The jury also found that plaintiff had sustained a permanent injury in the accident and returned a non-economic award in the amount of $1,000,000 for plaintiff and an award in the amount of $100,000 for her husband, the co-plaintiff, on his per quod claim.
Defendant moved for a new trial or, in the alternative, remittitur. After hearing from the parties, the court granted that alternative form of relief, reducing the non-economic award to $200,000 and the per quod award to $20,000. The trial court expressed the basis for its conclusion, commenting in relevant part:
During the course of the trial, the court had the opportunity to observe Miss He.
Miss He was able to sit for long periods of time and her gait did not appear to [be] affected by her injuries. Further, Miss He did not outwardly display any signs that she was experiencing pain or discomfort. . .
Based upon the fact that surgery was never recommended for Miss He, that she has degenerative disc disease, that she is able to care for herself, drive a motor vehicle and perform light housekeeping, as well as the fact that she did not appear to be experiencing pain and suffering during the course of the trial and was able to sit for long periods of time during the trial, I find that the jury award of $1M to Miss He for her injuries constitutes a manifest injustice that shocks the judicial conscience.
The trial court subsequently amplified its oral opinion in writing, see R. 2:5-1(b), explaining why the economic damages were not "fairly separable" from the non-economic damages, and that, if plaintiff rejected the remittitur, a new trial on all damages would be required. See Caldwell v. Haynes, 136 N.J. 422, 442 (1994) (requiring new trial on all issues after remittitur rejected because remitted award was not "fairly separable" from lost wage awards).
Plaintiff was unwilling to accept the remittitur or proceed with a new trial on damages, instead electing to seek leave to appeal. The Appellate Division granted that motion and, for reasons expressed in an unpublished opinion, reversed the trial court's order and directed that the original verdict be reinstated. The appellate court quoted a number of decisions of this Court that set forth the essential principles governing remittitur before turning to criticize two aspects of the trial court's analysis.
First, the panel concluded that factual evidence on which the trial court relied was inadequate, commenting that the sole basis for the court's decision to remit the pain and suffering and per quod awards is the fact that no doctor recommended that plaintiff undergo surgery, she was still able to care for herself, drive a vehicle, had degenerative disc disease, did not visibly appear to be experiencing pain and suffering during the course of the trial, and was able to sit for long periods during the trial.
Pointing out that the jury was free to accept or reject plaintiff's evidence and testimony, and relying on a recitation from the jury charge that instructs jurors about how to evaluate the evidence in arriving at a just verdict, see Model Jury Charge (Civil) 8.11E, the panel found that the trial court had invaded the jury's proper province.
Second, the appellate panel criticized the basis on which the trial court had made its comparative analysis. In particular, the panel pointed out that although the trial court had reviewed several recent jury verdicts that defendant's counsel had called to the court's attention in support of its motion, the court "made no reference to any of the verdicts referenced, or to the court's particular experience in presiding over similar cases from which vastly different verdicts emerged." The appellate panel repeated this Court's admonition that "[a]lthough the [trial] court may rely on its knowledge of other injury verdicts, 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." Johnson, supra, 192 N.J. at 281 (citing Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 500-01 (2001)).
The appellate court remarked as well on the difference between the trial court's approach to the jury's awards for past and future wage loss and its analysis of the non-economic awards. The panel commented: "we find it difficult to understand that the court could accept the jury's award for past and future lost earnings but not its award for pain and suffering and the per quod verdict." In summary, the court found the trial court's expression of reasons inadequate to support its order remitting the awards, and directed that the jury's verdict be reinstated.
Defendant next sought relief from this Court, which resulted in our order directing that: the matter is remanded to the Law Division for a complete and searching analysis under Johnson, supra, including "a factual analysis of how the award is different or similar to others to which it is compared[,]" id. at 281, and, thereafter, the Appellate Division is to reconsider its judgment in light of the findings developed on remand.
[He, supra, 199 N.J. at 539.]
On remand, the trial court prepared a written opinion that explained the basis for its decision to grant the remittitur motion in greater detail. In relevant part, the court set forth the facts and allegations of the trials that it had concluded were factually comparable, but that had resulted in far lower verdicts for pain and suffering than the jury had awarded these plaintiffs. Those other cases included two over which the court had presided and six others that the defendant had called to the court's attention. Candidly conceding that none was identical to plaintiff's accident or her injuries, the court nevertheless was able to draw some comparisons.
The cases taken to verdict and over which the trial court had presided included*fn3 Morales v. Keith, MRS-L-1496-05, which involved a younger plaintiff, also injured in a car accident, and who also had same-day treatment at a hospital, followed by orthopedic and chiropractic treatment for a lumbar herniation and a cervical disc bulge. That plaintiff's accident was dissimilar to the extent that it caused bilateral carpal tunnel syndrome, which required surgery. It was similar, however, because that plaintiff continued to experience neck and back pain and remained disabled to the extent of significant limitations on his ability to work and drive. The jury in that trial returned a damages award of $2500, which the parties agreed to increase by approximately $46,000.
The second trial over which the trial court had presided, and to which it pointed in comparison, was Ziza v. Romanelli, MRS-L-2080-05, in which a middle-aged woman fell, injuring her ankle and later developing reflex sympathetic dystrophy. After numerous physical therapy sessions, pain injections, and nerve block procedures that gave her little relief, she had a spinal cord stimulator surgically implanted into her back. At the time of trial, the stimulator was operating twenty-four hours each and every day, but she was still experiencing pain. The injury forced her to stop working in her family's bakery business and her lifestyle and marital relations were impaired. The gross jury award in that trial was $200,000, together with a $25,000 per quod award.
On remand, the trial court also referred to reports of six trials that defendant offered for comparison, two of which were also venued in the Morris/Sussex vicinage and four of which were tried elsewhere. As the trial court had not personally presided over them, its knowledge was less detailed, but the court set forth the available facts and drew comparisons based on those facts. The two Morris County cases included: (1) a plaintiff who, after being hit by a car, suffered two lumbar disc herniations, underwent back surgery, and to whom the jury awarded $200,000; and (2) a car accident plaintiff who had two cervical disc herniations that were treated without surgery and to whom the jury awarded $150,000. The four out-of-vicinage matters were described as: (1) a plaintiff who underwent surgery for two lumbar disc herniations and was awarded $50,000; (2) a plaintiff who had cervical and lumbar disc herniations at multiple levels, along with a disc protrusion, and who was awarded $100,000; (3) a car accident plaintiff who underwent epidural injections for a lumbar disc herniation, was forced to give up his job as a taxi driver, and was awarded $50,000; and (4) a plaintiff who suffered three cervical disc herniations and a cervical disc bulge, was treated with non-surgical orthopedic interventions and epidural injections, and was awarded $40,000 by the jury.
Conceding that the facts and circumstances of the particular plaintiffs in the examples provided by defendant were "limited," the trial court explained the methodology it used in making its comparison. In relevant part, that explanation and reasoning was summarized as follows:
Specifically, in each case plaintiff suffered spinal injuries following an accident. In addition, the course of treatment which the plaintiffs underwent, to varying degrees, is akin to that which Plaintiff received in this matter. The cases establish a spectrum of jury awards which ranges between $40,000.00 and $200,000.00. Notably, even in those cases where major invasive surgery was indicated and/or performed, the jury award did not exceed $200,000.00. In making its comparative analysis, the [c]court could not help but recognize the great disparity between the award in this matter and those rendered in the cited cases where the plaintiffs sustained similarly serious injuries and, in several cases, required surgery.
In short, the trial court compared the other cases by evaluating the severity of those injuries, in part using as a yardstick the type of medical intervention or treatment required, and concluding that the range of gross awards for "similarly serious injuries" was significantly less than the non-economic award here.
In addition to its explanation of that specific data, the trial court referred to "its own knowledge and experience as a trial attorney for approximately twenty-two years [and as] a Certified Civil Trial Attorney, [during which time the court had] focused . . . largely on plaintiffs' personal injury matters venued in Morris County." Moreover, the court explained that as a result of that experience it had both worked on and become aware of "countless" verdicts and arbitration awards returned in favor of plaintiffs. Although those plaintiffs had injuries, treatment, ...