NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0326-13T3
JESSE L. MICKENS, JR.,
APPROVED FOR PUBLICATION
Plaintiff-Respondent,
January 7, 2015
v.
APPELLATE DIVISION
TIMOTHY S. MISDOM and CITY OF
ELIZABETH,
Defendants-Appellants.
_________________________________________________
Submitted November 5, 2014 – Decided January 7, 2015
Before Judges Fisher, Nugent and Accurso.
On appeal from the Superior Court of New
Jersey, Law Division, Union County, Docket
No. L-4050-10.
LaCorte, Bundy, Varady & Kinsella, attorneys
for appellants (Richard M. Brockway, of
counsel and on the brief).
Michael A. Percario, LLC, attorneys for
respondent (Christopher F. Struben, on the
brief).
The opinion of the court was delivered by
FISHER, P.J.A.D.
Plaintiff Jesse L. Mickens, Jr., was injured on January 8,
2010, when his automobile was struck by a pick-up truck owned by
defendant City of Elizabeth and operated by defendant Timothy
Misdom. The parties stipulated defendants' liability and, at
the trial's conclusion, the jury found a permanent injury, as
necessitated by N.J.S.A. 59:9-2(d), and awarded plaintiff
$2,400,000 in damages for his disability, impairment, loss of
enjoyment of life, and pain and suffering. The trial judge
later denied defendants' motion for a new trial or remittitur,
and defendants now appeal, arguing, among other things, the
award was so grossly excessive as to demonstrate a miscarriage
of justice. In deferring to the jury's assessment of the
evidence and the trial judge's "feel of the case," we affirm the
judge's determination that, although high, the verdict was not
shocking to "the judicial conscience," let alone the judge's own
conscience derived from his experiences as a trial judge and
practicing attorney.
I
In examining the issues presented, we first briefly
consider the evidence regarding the nature of the accident,
plaintiff's injuries, and their impact on his life.
The jury heard that plaintiff was forty years of age when
the accident occurred. Plaintiff was sitting in his parked
vehicle when, as he "leaned over as though to retrieve something
from the floor of the front passenger seat," he felt an impact
2 A-0326-13T3
caused by defendants' pick-up truck, which had backed into and
moved plaintiff's vehicle ten to fifteen feet from its former
stopped position. The trial judge noted in his thorough written
decision, which memorialized the denial of defendants' new trial
motion, that photographs admitted in evidence did not reveal
"severe damage" to either plaintiff's vehicle or defendants'
truck, although the photographs depicted "visible damage to
[plaintiff's] vehicle['s] rear end." When the police arrived,
plaintiff declined medical attention but later went to an
emergency room because of lower back pain. He was released the
same day.
Plaintiff consulted with a chiropractor a few days later.
Treatment provided no relief, and the chiropractor ordered an
MRI study, which was conducted on March 1, 2010, and which
revealed a herniated disc at L4-5. Plaintiff consulted a
physician for pain management, and a neurosurgeon soon
recommended disc-removal surgery, which was performed on August
5, 2010. According to the trial judge's written decision,
plaintiff testified "that the surgery helped somewhat," but "he
lives with persistent back pain and discomfort[.]" Plaintiff
also testified that: he is employed as "a warehouse worker which
[] involve[s] lifting and moving boxes around"; he missed four
weeks of work, but returned to work because he could not afford
3 A-0326-13T3
to miss any additional time; at the end of each work day "his
back bothers him significantly, and he cannot do the things he
used to do around the house or the things he did
recreationally"; and he "can do very little except rest on
evenings and weekends so he can try to keep working to support"
his wife and child. By the time of trial, three years had
elapsed from the date of the surgery with no change in
plaintiff's daily pain, discomfort and limitations.
Plaintiff's wife, chiropractor and neurosurgeon also
testified, the latter opining that accidents causing even "minor
physical damage," as suggested by the photographs of plaintiff's
vehicle, are not necessarily indicative of the extent of an
occupant's injuries; he concluded that plaintiff sustained a
permanent injury as a result of the collision. As described by
the trial judge, the neurosurgeon testified that "immediately
following the impact the herniated disc may not have been full
blown at that time, but [] the impact caused the physical injury
that evolved to the complete herniation depicted on the MRI less
than 60 days post impact."
Defendants called a biomechanical engineer who testified
that the herniated disc did not result from the collision, which
4 A-0326-13T3
he viewed as minor.1 The engineer was not a physician and lacked
the expertise to make a medical diagnosis. Moreover, as the
trial judge noted, the engineer "conceded on cross-examination
that studies he relied upon to support his opinion [about the
impact] did not involve individuals who were stretched over to
the side as [plaintiff] was in this collision," and the engineer
conceded "different body types will respond differently to
trauma."
In addition, defendants elicited testimony from an
orthopedic surgeon, who recognized plaintiff had a herniated
disc and sustained a permanent injury. This expert also
testified that the surgery was necessary and plaintiff will have
problems with which he will have to live. Although the expert
testified it was "unlikely" the herniated disc resulted from the
collision in question, he could not otherwise account for how it
occurred and acknowledged plaintiff had no history of prior back
injuries.
1
The engineer relied in part on his belief that plaintiff's
vehicle was in neutral at the time of impact – a fact in
dispute, since plaintiff testified the vehicle was in gear when
the collision occurred. Because the jury undoubtedly found
plaintiff credible, as did the trial judge, we will assume the
jury also decided this factual question in plaintiff's favor.
5 A-0326-13T3
II
In appealing the $2,400,000 judgment entered in plaintiff's
favor and the order denying their motion for a new trial or
remittitur, defendants argue:
I. THE TRIAL COURT'S INSTRUCTION TO THE JURY
ON THE AWARD OF DAMAGES FOR PRE-EXISTING
CONDITION CONSTITUTED REVERSIBLE ERROR.
II. THE JURY VERDICT AWARDING [PLAINTIFF]
$2.4 MILLION DOLLARS IS SO GROSSLY EXCESSIVE
AS TO DEMONSTRATE PREJUDICE[,] PARTIALITY OR
PASSION AND CONSTITUTES A MISCARRIAGE OF
JUSTICE.
III. THE JURY'S DETERMINATION THAT [PLAIN-
TIFF] SUSTAINED SUBSTANTIAL PERMANENT INJURY
WAS AGAINST THE WEIGHT OF THE EVIDENCE.
We find insufficient merit in Points I and III to warrant
further discussion in a written opinion. R. 2:11-3(e)(1)(E).2
We also reject Point II for the reasons that follow.
2
We agree with the trial judge's comments in denying the post-
trial motion as to Point I. The pre-existing-condition jury
instruction was necessary because defense counsel had argued the
possibility that plaintiff had a pre-existing condition in his
opening statement and then cross-examined plaintiff about his
days of playing cornerback for Rahway High School as well as his
employment history, which included lifting heavy items in a
warehouse. We affirm on this point substantially for the
reasons set forth by the trial judge in his written opinion. We
also reject defendant's Point III not only because the argument
that the verdict was against the weight of the evidence was not
urged in the post-trial motion and thus not cognizable on
appeal, see R. 2:10-1, but also because there was more than
(continued)
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III
A
The legal principles that guide consideration of the
quantum of a jury award were recently thoroughly examined by our
Supreme Court. Although these principles are easily restated,
their application – as the Court observed in He v. Miller, 207
N.J. 230, 235 (2011) – presents "profound difficulties that our
trial courts and appellate tribunals continue to encounter as
they seek to understand and apply the concepts surrounding
remittitur." The matter at hand presents an interesting
counterpoint to the result ultimately3 reached in He v. Miller.
(continued)
sufficient evidence from which the jury could have found the
collision caused a substantial permanent injury.
3
Of course, there has yet to be an "ultimate" conclusion in He v.
Miller. A jury previously returned a verdict of $1,000,000 for
the plaintiff's pain and suffering, but the trial judge
determined that any award beyond $200,000 would be excessive and
ordered a remittitur to that amount which, if rejected by the
plaintiff and her husband, whose per quod claim was also
reduced, would result in a new trial. We reversed and
reinstated the jury verdict, 411 N.J. Super. 15 (App. Div.
2009), but a closely-divided Supreme Court reversed, concluding
we "misappli[ed] . . . settled precedents." 207 N.J. at 236.
Thereafter, the plaintiffs rejected the remittitur, and the
matter was again tried. This time the jury awarded $500,000 in
pain and suffering -- far above what the earlier trial judge had
found to be the outermost limit -- and a different trial judge
with more than thirty years' experience on the bench rejected
the argument that this verdict was excessive, stating, "I wasn't
the least bit shocked by the verdict, not in the least"; we
affirmed. He v. Miller, No. A-1599-12 (App. Div. Sept. 2, 2014)
(continued)
7 A-0326-13T3
We first turn to the legal principles outlined in He v.
Miller:
The power of remittitur is not to be
exercised lightly . . . because we repose
enormous faith in the ability of juries to
equate damages with dollars to "make the
plaintiff whole, so far as money can do."
We rely on juries to perform that task while
recognizing that "[a]ssigning a monetary
value to pain-and-suffering compensation is
difficult because that kind of harm is 'not
gauged by any established graduated scale.'"
But a jury's authority is not unbounded and
we have explained that "[o]ur role in
assessing a jury verdict for excessiveness
is to assure that compensatory damages
awarded to a plaintiff 'encompass no more
than the amount that will make the plaintiff
whole[.]'"
[207 N.J. at 248-49 (citations omitted).]
In light of these important policies, the Court reiterated the
familiar test that a trial judge should not disturb a jury award
unless "'so disproportionate to the injury and resulting
disability as to shock the conscience.'" Id. at 249 (quoting
Baxter v. Fairmont Food Co., 74 N.J. 588, 604 (1977)).
These principles continue to guide our courts but they
represent only a starting point in answering the difficult
question about when a verdict is "so disproportionate" or
"shock[ing] [of] the conscience" as to warrant a trial judge's
(continued)
(slip op. at 5, 10). A petition for certification is pending in
the Supreme Court.
8 A-0326-13T3
intervention because no two plaintiffs and no two juries are the
same. A trial judge must begin "with the presumption that [the]
verdict is correct" and "view the evidence in the light most
favorable to plaintiff in evaluating whether remittitur is
appropriate." Id. at 249; see also Johnson v. Scaccetti, 192
N.J. 256, 281 (2007); Baxter, supra, 74 N.J. at 598. In
addition, the trial judge must be mindful that the task "is not
to bring a generous, but manifestly supportable, verdict down
into a range more to [the judge's] liking," but only "to reduce
a verdict that is 'shocking' and award in its place 'the highest
figure that could be supported by the evidence.'" He v. Miller,
supra, 207 N.J. at 250 (quoting Fertile v. St. Michael's Med.
Ctr., 169 N.J. 481, 500 (2001)).
When concluding a verdict is excessive, a trial judge must
explain how that conclusion and the remitted amount were derived
from the record. Ibid.; Fertile, supra, 169 N.J. at 501. In
this regard, the Supreme Court has endorsed a trial judge's
consideration of "other verdicts" while cautioning "that in
doing so '[the trial judge] must give a factual analysis of how
the award is different or similar to others to which it is
compared.'" He v. Miller, supra, 207 N.J. at 251 (quoting
Johnson, supra, 192 N.J. at 281).
9 A-0326-13T3
The Court in He v. Miller also expounded on the role played
by appellate courts in reviewing a remittitur order. Ibid. The
Court emphasized that "the jury is the bedrock of our system of
justice," ibid., but that the trial judge has the limited power
to intervene when comparable verdicts and the judge's own "feel
of the case" – because "trial judges see much that juries do
not" – move "[t]he court's own informed conscience" to the
belief that the verdict is disproportionate and shocking. Id.
at 254. Consequently, the Court emphasized that appellate
panels "must . . . recognize that their mere disagreement" with
the judge's evaluation "will not suffice," and they "must"
instead "pay deference to the trial court's 'feel of the case.'"
Id. at 255 (quoting Johnson, supra, 192 N.J. at 282).
Interesting is the difference of opinion as to the
application of the trial judge's "feel of the case" and the
judge's subjective, personal experiences found in the majority
and dissenting opinions in He v. Miller. Justice Albin, whose
dissenting opinion was joined by the Chief Justice, observed
that the majority had "exalt[ed] the trial judge's 'feel of the
case' above the jury's duty to decide for itself the quantum of
damages . . . [and] undermines" the obligation of appellate
courts "to review remittitur motions . . . on the objective
evidence of record." Id. at 267 (dissenting opinion). And,
10 A-0326-13T3
with respect to the use of "subjective, personal experiences,"
the Court's dissenting members referred to Chief Justice
Hughes's opinion in Baxter in observing that "however much trial
and appellate judges are affected by their subjective prejudices
and predispositions and life experiences, those 'individualized
propensities of mind' must somehow be merged into 'an amalgam of
common judicial experience related to the doing of justice,'"
and they must "'resist the natural temptation to substitute
their judgment for that of the jury.'" Id. at 268 (quoting
Baxter, supra, 74 N.J. at 596-97). In a nutshell, it is not the
trial judge's conscience but a collective "judicial conscience"
that guides a trial judge's examination of a jury's damage
award.
This, however, was a minority view, and the majority
opinion makes clear that the trial judge's experience – in He v.
Miller, the trial judge had been on the bench "for only a few
months" but was an experienced practitioner of twenty-two years,
id. at 256 (majority opinion) – outweighed the many more decades
of collective experience of the appellate judges who objectively
reviewed the remittitur order. That is, the majority determined
that the trial judge's subjective view that he "had never
encountered a like" verdict for such a case – which included the
judge's identification of two other trials over which he had
11 A-0326-13T3
presided since being appointed to the bench within the year –
was entitled to "significant" weight, ibid., and apparently the
greater experience of three appellate judges entitled to little
or no weight. Thus, the trial judge's decision in He v. Miller
– that the case was more akin to "a spectrum of jury awards
. . . rang[ing] between $40,000.00 and $200,000.00," 207 N.J. at
243 – was dispositive4 apparently because he presided over the
trial, even though the judge's past experiences cannot possibly
be what our courts have long referred to as a trial judge's
"feel of the case."5 The utilization of the trial judge's past
personal experiences and subjective views is quite problematic,
not only because judges differ,6 and not only because no two
4
Although endorsed by the majority in He v. Miller, the trial
judge there – after advising the jury that there was no
"yardstick" by which to assess pain and suffering – then used a
$200,000 yardstick to measure the jury verdict.
5
"Feel of the case" comes from what the judge perceived had
occurred in the courtroom during the trial, even at times when
the jury was not present. See He v. Miller, supra, 207 N.J. at
254-55 (recognizing that trial judges "see plaintiffs entering
and leaving the courtroom each day, observe them when the jury's
attention is on another witness or exhibit, and are privy to
their interactions and behaviors when the jury is absent from
the courtroom during colloquy, conferences, and breaks during
proceedings").
6
The He v. Miller majority acknowledged this, stating "all judges
come to the bench with different backgrounds, experiences,
perceptions, and views," and recognizing that "judges who have
gained experience on the bench in similar trials will have a
different, and perhaps better, basis on which to determine
(continued)
12 A-0326-13T3
similar experiences are quite the same,7 but also because the
process of using these personal experiences defies greatly
valued attributes of our judicial system, namely, a party's
right to discovery and the right to confront and cross-examine
information used to adjudicate the dispute. Because of He v.
Miller, a judge may simply rely on past experiences without
permitting the parties the right to inquire further or test the
sufficiency or accuracy of those experiences. In that way, the
process was transformed from an objective to a subjective
examination. This interesting problem essentially boils down to
Justice Albin's criticism in his dissent when, in referring to
Johnson, supra, 192 N.J. at 281, he emphasized that "[i]t is not
the [trial] judge's personal conscience but the judicial
conscience that controls." He v. Miller, supra, 207 N.J. at 269
(dissenting opinion) (emphasis added).8
(continued)
whether a particular award is beyond the acceptable to such a
degree that it calls for remittitur." 207 N.J. at 253.
7
The He v. Miller majority also recognized this. See 207 N.J. at
253 (observing that "no two plaintiffs are identical and no two
cases are identical").
8
Indeed, as noted earlier, the first He v. Miller trial judge,
who had been on the bench less than a year, found anything over
$200,000 shockingly disproportionate, while the second He v.
Miller trial judge, who has been a judge for more than thirty
years, found nothing remotely shocking about a $500,000 pain and
suffering award in the same case.
13 A-0326-13T3
In any event, the He v. Miller majority opinion is that
which guides our disposition of this appeal, and we view that
decision as commanding deference to the trial judge's
"subjective, personal experiences." With this as the framework
to which we are bound, we turn to the trial judge's decision,
although we first examine what traditionally constituted the
judge's "feel of the case" before considering his subjective
view and personal past experiences.
B
In describing his "feel of [this] case," the judge
described the considerable educational background of the jury,
his view that the jurors were not "rustic[s] in the style of
Norman Rockwell," citing DeHanes v. Rothman, 158 N.J. 90, 99
(1999), and that there were no "slackers" on the jury. He also
referred to plaintiff as the personification of the "perfect" or
"ideal" plaintiff in that he "dressed respectfully," was "always
prompt and quietly courteous," was "in obvious discomfort, but
he made efforts not to display that discomfort," and "testified
with dignity, humility and modesty." The judge found
plaintiff's testimony to be "understated and straightforward";
"[i]n terms of his credibility and general appeal," the judge
"categorize[d] him in the 99th percentile." The judge also
noted that plaintiff did not appear to be "in any way
14 A-0326-13T3
exaggerating the impact this injury has had on his life," and he
"responded to excellent cross-examination forthrightly and
honestly," concluding it was "not at all a surprise that the
jury accepted the testimony of this extraordinarily credible
witness." Accordingly, the judge determined "there was a
potential for a very sizable plaintiff's verdict" once the jury
determined – as it obviously did – that the so-called "low-
impact" collision caused the herniated disc.
These observations certainly fall into the "feel of the
case" rubric to which our appellate courts have always deferred.
Based on these observations, and others set forth in the judge's
thorough opinion, he recognized the verdict was "high" and
"perhaps at the far end of the bell[-]shaped curve used in
statistical analysis" but "not shock[ing] [to] the judicial
conscience." If the analysis were to stop here, we would merely
state our agreement that the verdict is very high and near the
point of being disproportionately high, but we cannot conclude –
in light of our requirement to defer to both the jury's view of
the evidence and the judge's feel of the case – that it is
shocking to the judicial conscience. Indeed, this analysis
alone is sufficient to compel our affirmance.
C
15 A-0326-13T3
Even though the above discussion compels our conclusion, we
add the following comments regarding the judge's disclosure of
his "subjective, personal experiences" that also supported his
denial of the new trial motion. Considering the license
provided by the majority opinion in He v. Miller, the trial
judge provided the following information:
I have been sitting as a civil trial
judge for the last year, during which I have
presided over [forty-one] trials. [Twelve]
of those cases settled after jury selection.
[Nineteen] were defense verdicts, and only
[eight] verdicts awarded damages to a
plaintiff. Some of the plaintiff verdicts
involved extremely modest damage awards.
There were also two mistrials. . . .
Before serving as a civil trial judge,
I was a judge in the family division for
three years. Before that I was engaged for
[twenty-nine] years as a trial attorney, and
for my last [twenty] years as a lawyer I did
almost exclusively plaintiff's injury cases.
I did try two cases in defense of injury
claims, but I believe I had more than 100
civil injury trials as plaintiff's counsel
where a jury was selected. I have been
asked to do continuing legal education
lectures more than [forty] times by various
organizations. I have been asked several
times by the New Jersey Defense Association
to speak at their annual daylong trial
seminar. I was [c]ertified by the Supreme
Court as a Civil Trial Attorney. I serve on
the Supreme Court Committee on the Rules of
Evidence and am just now completing my third
two-year term on that Committee. I wrote
two books for New Jersey lawyers in the
injury field. One of [the] books is updated
and reissued annually. Researching and
writing the annual revision has kept me
16 A-0326-13T3
current with the law and with verdict
trends.
The judge also described a case over which he presided that
he found had some similarities; that case settled for $2,500,000
prior to the commencement of the jury's deliberations.9 The
judge recognized the many differences – including that plaintiff
suffered a fractured ankle which, after surgery, caused her
"substantial residual pain labeled as complex regional pain
syndrome." We have no ability to examine further this purported
9
The trial judge also noted that neither plaintiff nor defendants
cited comparable verdicts until defendants submitted their reply
brief. Finding a lack of authentication, the judge refused to
consider defendants' "anecdotal information." The record on
appeal does not disclose the authentication problem. We would
note, however, that we are troubled by the use of reports of
jury verdicts in the New Jersey Law Journal or other similar
publications, or citations to our unpublished opinions, as
evidence of comparable jury verdicts. The former are based on
hearsay or multiple levels of hearsay. And, in many instances,
reports contained in the New Jersey Law Journal's weekly
"Verdict Search" section, are one-sided. See, e.g., 218
N.J.L.J. 1099 (Dec. 22, 2014) (advising that the report of the
verdict and the underlying circumstances was "based on
information provided by plaintiff's counsel" and "[d]efense
counsel declined to contribute"); 218 N.J.L.J. 31 (Oct. 6, 2014)
(same); 216 N.J.L.J. 843 (June 23, 2014) (same); 216 N.J.L.J.
275 (Apr. 28, 2014) (same). The use of unpublished opinions, by
Rule 1:36-3, are not precedential and "shall [not] be cited by
any court"; we assume that the prohibition on citation also
limits a court's use of unpublished opinions as a source of
comparable verdicts. In any event, defendants have not argued
in this appeal that the judge's refusal to consider whatever
information was provided to him (this information is not in the
record on appeal) was erroneous.
17 A-0326-13T3
"comparable" because all we know of it is what is stated in the
judge's written decision.
Although a slim majority of the Supreme Court has held that
this information is relevant, we conclude that, to the extent it
has any bearing, the trial judge's subjective personal
experiences – while different from or obviously at odds with
those of the original trial judge in He v. Miller10 – support his
determination that the verdict was not excessive.
IV
With or without the trial judge's personal experiences and
subjective view, we would affirm the order denying a new trial
or remittitur because of our obligation to honor the jury's
assessment of the evidence and our deference to the trial
judge's "feel of the case." In objectively reviewing the
10
We cannot help but observe that the version of "the judicial
conscience" applied by the first trial judge in He v. Miller
would undoubtedly have led to the issuance of a remittitur here,
and the version applied by the trial judge here would
undoubtedly have led to a rejection of a remittitur in He v.
Miller. The one difference, however, is that we do not view the
trial judge here as having allowed his prior experiences to
dominate his view of this verdict as we believe occurred in He
v. Miller. Instead, before even discussing his own past
experiences and background, the judge described the injuries,
the plaintiff's great jury appeal, and his own "feel of the
case" as warranting a denial of defendants' post-verdict motion
before providing his experiences as further support for his
order. As we have said, those observations are sufficient, and
they convincingly demonstrate the verdict should be upheld.
18 A-0326-13T3
evidence and the judge's description of what he observed
throughout the trial, we conclude that although very high, this
verdict cannot be said to be shocking to the judicial
conscience.
Affirmed.
19 A-0326-13T3