<i>He, Cuevas</i> and the Law of Remittitur in New Jersey

The He Decision

The New Jersey Supreme Court thoroughly analyzed the application of the remittitur remedy in the case of He, where the court took “the opportunity to explain in more detail both the basis on which a trial court may rely in ordering remittitur and the level of detail that the court must include in its explanation of the reasons for its decision to grant that remedy.” The He court stated that, generally, a jury verdict is presumed to be correct and is entitled to substantial deference. Therefore, on review, the trial record must be viewed in the light most favorable to the plaintiff, and the trial judge should not overturn an award for damages that falls within an acceptable range that accounts for the fact that different juries might return very different awards even in the same case. However, when a jury's award is so patently excessive and shocks the judicial conscience, remittitur is appropriate.

The He court set forth a list of criteria for trial courts to analyze when considering a motion for remittitur:

1. Relevant precedents, in order to create a record;
2. The specific bases for the courts' decisions in those precedents; and
3. The trial judge's feel of the case.”

He, supra, 207 N.J. 248, 254-255 (2011). 254-255 (citations omitted).

At first blush, each of these factors appears to be worthy of consideration and, for approximately five years, each of these factors was generally considered by a trial judge when exercising his/her discretion in ruling on remittitur motions. But, on Sept. 19, 2016, New Jersey's Supreme Court decided Cuevas and, suddenly, the landscape of remittitur has changed.

The Cuevas Decision

The New Jersey Supreme Court decision in Cuevas was delivered by Justice Barry T. Albin. It examines the relief of remittitur and, in part, overturns He. The He decision teaches that the court “must give guidance to courts on the standards that will govern review of a jury's award of emotional-distress damages in deciding a remittitur.” Cuevas, 226 N.J. at 499.

It bears noting that the Cuevas decision makes clear that it does not disturb the fundamental principles of remittitur. and that remittitur should be granted in those cases where “the jury's award is so patently excessive, so pervaded by a sense of wrongness, that it shocks the judicial conscience.” Cuevas, 226 N.J. at 485-486. “The shock-the-judicial-conscience standard is objective.” Id. at 503, citing Baxter, 74 N.J. at 597-59. In fact, the Cuevas court expressly states that “remittitur remains a judicial remedy to correct a grossly disproportionate damages award, which, if left intact, would constitute a miscarriage of justice.” Id. at 487.

The Cuevas court briefly touched on the option of a new trial as to damages insofar as it is firmly reinforced that “[w]hen a court is persuaded that a new trial must be granted solely based on the excessiveness of the jury's damages award, it has the power to enter a remittitur reducing the award to the highest amount that could be sustained by the evidence.” Id. at 499, citing Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 500 (2001). The “plaintiff has the choice to accept the award as remitted by the court or to proceed with a new damages trial before another jury. A damages award that is so grossly excessive that it shocks the judicial conscience cannot stand, and therefore remittitur allows the parties the option of avoiding the unnecessary expense and delay of a new trial.” Id. at 499, citing Fertile, 169 N.J. at 491-492 (2001). When such a situation occurs, and is recognized by the judiciary, “remittitur remains a judicial remedy to correct miscarriages of justice caused by grossly excessive damages award.” Id. at 510.

In Cuevas, the only issue before the court was whether the trial court properly denied the remittitur motion. Plaintiffs — brothers Ramon and Jeffrey Cuevas — were employed by defendant Wentworth Property Management Corp. (Wentworth). During their employment at Wentworth, plaintiffs claimed that they were routinely subjected to racially disparaging and humiliating remarks by company executives. The plaintiffs further claimed that, after complaining about the allegedly debasing treatment, they were terminated from their employment. Thereafter, the plaintiffs filed an action under New Jersey's Law Against Discrimination (LAD), advancing claims of race-based discrimination, hostile work environment and retaliatory firings. Ramon additionally claimed that Wentworth failed to promote him based on his race in violation of the LAD.

Ultimately, following the jury trial, there was a verdict against the defendants on all claims (aside from Ramon's failure-to-promote claim). The jury awarded overall damages in the amount of $2.5 million to the plaintiffs, including $800,000 in emotional distress damages to Ramon and $600,000 in emotional distress damages to Jeffrey. Of note is that the plaintiffs did not advance any expert testimony to support the claims alleging emotional distress. Faced with this award, the defendants moved for a remittitur of the emotional distress award.

The trial court denied the defendants' remittitur motions to reduce the jury's award of emotional-distress damages. In ruling on the remittitur motions, the trial judge did not rely on personal experience or comparable verdicts presented by the parties, but simply on the record before the trial court. Still, the trial judge's ruling on remittitur was upheld by the Appellate Division and affirmed by the New Jersey Supreme Court. Id. at 487.

The standard for reviewing a damages award that is claimed to be excessive is the same for the trial and appellate courts, with one exception: An appellate court “must pay some deference to a trial judge's 'feel of the case.'” Id. at 501, quoting Johnson, 192 N.J. at 282. This is the law because “it is the judge who sees the jurors wince, weep, snicker, avert their eyes, or shake their heads in disbelief.” Id. at 501. Notably, in approving the trial court's ruling, both the unpublished Appellate Division decision and Supreme Court decision explained that the “standard of proof for recovering emotional-distress damages in discrimination cases is less stringent than the standard of recovering such damages in a common-law intentional-infliction-of-emotional-distress case.” Id. at 495, citing Tarr v. Ciasulli, 181 N.J. 70 (2004).

The trial court determined that, given the evidence presented, the emotional distress award did not shock the conscience and was not a case of a runaway jury. In upholding the jury award, the trial court found that the jury “was extremely attentive throughout the trial” and “fully understood their charge.” Id. at 483-484. It found that the jury was reasonable in failing to find in favor of Ramon for his failure-to-promote claim and in fixing an amount for punitive damages.

The trial court found that both plaintiffs “presented very well. They appeared genuine, earnest, and credible in their presentation of their testimony. They were articulate and extremely well spoken.” In addition, the trial court accepted that the verdict indicated that “the jury found plaintiffs to be more likely than not credible.” Id. at 484.

The State Supreme Court determined that the trial judge acted appropriately in not relying on her own experience or “comparable” verdicts. Ultimately, the Cuevas court overturned He to the extent that, when deciding on a remittitur motion, a trial judge should not rely on both his/her personal knowledge of verdicts as a practicing attorney and jurist, and should not rely on “comparable” verdicts presented by the parties. Id. at 486. “Rather, courts should focus their attention on the record of the case at issue in determining whether a damages award is so grossly excessive that it falls outside of the wide range of acceptable outcomes.” Id. at 505. More specifically, to the extent possible, the Cuevas court found that a review of the case itself, including the witnesses' testimony, the nature, extent and duration of the injuries, and the impact of those injuries on the plaintiff's life will “yield the best record on which to decide a remittitur motion.” Id. at 510.

As to personal experience, the Cuevas court explained that such reliance is an unsound principle since:

1. It is information outside the scope of the record and is not subject to the typical scrutiny evidence receives in the adversarial process;
2. The cohort of cases within a judge's personal knowledge may not be statistically relevant, and the reliability of that knowledge cannot be easily tested;
3. The standard is whether the award shocks the judicial conscience, not the judge's conscience; and
4. The judge's recollection cannot be examined for accuracy.

As to “comparative” verdicts, the Cuevas court explained that reliance on such is an unsound principle since the particular facts and plaintiffs in different cases that lead to varying awards are not easily comparable. In articulating this decision, New Jersey's Supreme Court stated that the information from other verdicts or settlements is limited, and a true comparative analysis would require a statistically satisfactory cohort of cases and detailed information about the facts and plaintiffs. Such detailed information is unlikely to be available.

Conclusion

As set forth above, Cuevas reinforces general principles of remittitur, but simply changes those factors that a trial court may rely on or consider on ruling on a remittitur motion. Now, Cuevas represents the explicit law in New Jersey as it relates to remittitur, and any attorney involved with the issue of remittitur should be well-versed in same.

*****
Robert E. Spitzer, a member of this newsletter's Board of Editors, is a partner with MacNeill, O'Neill & Riveles, LLC, where he concentrates his practice on defending claims of medical malpractice, as well as nursing home negligence.

It is well accepted and recognized by New Jersey's courts that compensatory damages should encompass no more than the amount that will make a plaintiff whole, which is the actual loss. Fair compensatory damages should neither reward a plaintiff nor punish a defendant, but should be commensurate with a plaintiff's loss. Caldwell v. Hayes , 136 N.J. 422, 433 (1994). Despite the established purpose of a compensatory damage award, there are occasions when a verdict is so excessive it could only have been arrived at in an effort to punish, rather than to compensate. In those instances of a “runaway” jury award, there are two generally recognized forms of relief available to address the excessive verdict: a new trial as to damages only, or remittitur.

Remittitur is designed to bring excessive damages awarded by a jury to the level the court knows is within the limits of a proper verdict, thereby avoiding the necessity of a new trial. Fertile v. St. Michael ' s Medical Center , 169 N.J. 481, 491 (2001). A trial court is permitted to order a remittitur when it determines that a jury's award is disproportionate to the injuries and the award rises to the level of shocking the court's conscience. Hinojo v. New Jersey Manufacturers Insurance Co. , 353 N.J. Super. 261, 277 (App. Div. 2002). A jury's verdict may be reduced when the trial court determines that the verdict is “wide of the mark.” Johnson v. Scaccett i, 192 N.J. 256, 281 (2007). “The goal is not for the judge to substitute his or her judgment for that of the jury, but to correct the jury's clear error or mistake.” Baxter v. Fairmont Food Company , 74 N.J. 588, 597 (1977). Moreover, a jury's damages verdict is not sacrosanct and can be reduced when affirming the award would arise to a miscarriage of justice. Id.

This article addresses the concept of remittitur and the current state of the law in New Jersey, and, in particular, how the trial courts are to analyze applications for remittitur since New Jersey's Supreme Court decided Cuevas v. Wentworth , 226 N.J. 480 (2016), on Sept. 19, 2016. Prior to Cuevas , Ming Yu He v. Miller , 207 N.J. 230, 248 (2011), was controlling, and provided guidance as to what a trial court could consider when determining whether a jury award should be remitted. Cuevas abrogated two of those areas of consideration.

The He Decision

The New Jersey Supreme Court thoroughly analyzed the application of the remittitur remedy in the case of He, where the court took “the opportunity to explain in more detail both the basis on which a trial court may rely in ordering remittitur and the level of detail that the court must include in its explanation of the reasons for its decision to grant that remedy.” The He court stated that, generally, a jury verdict is presumed to be correct and is entitled to substantial deference. Therefore, on review, the trial record must be viewed in the light most favorable to the plaintiff, and the trial judge should not overturn an award for damages that falls within an acceptable range that accounts for the fact that different juries might return very different awards even in the same case. However, when a jury's award is so patently excessive and shocks the judicial conscience, remittitur is appropriate.

The He court set forth a list of criteria for trial courts to analyze when considering a motion for remittitur:

1. Relevant precedents, in order to create a record;
2. The specific bases for the courts' decisions in those precedents; and
3. The trial judge's feel of the case.”

He, supra, 207 N.J. 248, 254-255 (2011). 254-255 (citations omitted).

At first blush, each of these factors appears to be worthy of consideration and, for approximately five years, each of these factors was generally considered by a trial judge when exercising his/her discretion in ruling on remittitur motions. But, on Sept. 19, 2016, New Jersey's Supreme Court decided Cuevas and, suddenly, the landscape of remittitur has changed.

The Cuevas Decision

The New Jersey Supreme Court decision in Cuevas was delivered by Justice Barry T. Albin. It examines the relief of remittitur and, in part, overturns He. The He decision teaches that the court “must give guidance to courts on the standards that will govern review of a jury's award of emotional-distress damages in deciding a remittitur.” Cuevas, 226 N.J. at 499.

It bears noting that the Cuevas decision makes clear that it does not disturb the fundamental principles of remittitur. and that remittitur should be granted in those cases where “the jury's award is so patently excessive, so pervaded by a sense of wrongness, that it shocks the judicial conscience.” Cuevas, 226 N.J. at 485-486. “The shock-the-judicial-conscience standard is objective.” Id. at 503, citing Baxter, 74 N.J. at 597-59. In fact, the Cuevas court expressly states that “remittitur remains a judicial remedy to correct a grossly disproportionate damages award, which, if left intact, would constitute a miscarriage of justice.” Id. at 487.

The Cuevas court briefly touched on the option of a new trial as to damages insofar as it is firmly reinforced that “[w]hen a court is persuaded that a new trial must be granted solely based on the excessiveness of the jury's damages award, it has the power to enter a remittitur reducing the award to the highest amount that could be sustained by the evidence.” Id . at 499, citing Fertile v. St. Michael's Med. Ctr. , 169 N.J. 481, 500 (2001). The “plaintiff has the choice to accept the award as remitted by the court or to proceed with a new damages trial before another jury. A damages award that is so grossly excessive that it shocks the judicial conscience cannot stand, and therefore remittitur allows the parties the option of avoiding the unnecessary expense and delay of a new trial.” Id. at 499, citing Fertile, 169 N.J. at 491-492 (2001). When such a situation occurs, and is recognized by the judiciary, “remittitur remains a judicial remedy to correct miscarriages of justice caused by grossly excessive damages award.” Id. at 510.

In Cuevas, the only issue before the court was whether the trial court properly denied the remittitur motion. Plaintiffs — brothers Ramon and Jeffrey Cuevas — were employed by defendant Wentworth Property Management Corp. (Wentworth). During their employment at Wentworth, plaintiffs claimed that they were routinely subjected to racially disparaging and humiliating remarks by company executives. The plaintiffs further claimed that, after complaining about the allegedly debasing treatment, they were terminated from their employment. Thereafter, the plaintiffs filed an action under New Jersey's Law Against Discrimination (LAD), advancing claims of race-based discrimination, hostile work environment and retaliatory firings. Ramon additionally claimed that Wentworth failed to promote him based on his race in violation of the LAD.

Ultimately, following the jury trial, there was a verdict against the defendants on all claims (aside from Ramon's failure-to-promote claim). The jury awarded overall damages in the amount of $2.5 million to the plaintiffs, including $800,000 in emotional distress damages to Ramon and $600,000 in emotional distress damages to Jeffrey. Of note is that the plaintiffs did not advance any expert testimony to support the claims alleging emotional distress. Faced with this award, the defendants moved for a remittitur of the emotional distress award.

The trial court denied the defendants' remittitur motions to reduce the jury's award of emotional-distress damages. In ruling on the remittitur motions, the trial judge did not rely on personal experience or comparable verdicts presented by the parties, but simply on the record before the trial court. Still, the trial judge's ruling on remittitur was upheld by the Appellate Division and affirmed by the New Jersey Supreme Court. Id. at 487.

The standard for reviewing a damages award that is claimed to be excessive is the same for the trial and appellate courts, with one exception: An appellate court “must pay some deference to a trial judge's 'feel of the case.'” Id. at 501, quoting Johnson, 192 N.J. at 282. This is the law because “it is the judge who sees the jurors wince, weep, snicker, avert their eyes, or shake their heads in disbelief.” Id. at 501. Notably, in approving the trial court's ruling, both the unpublished Appellate Division decision and Supreme Court decision explained that the “standard of proof for recovering emotional-distress damages in discrimination cases is less stringent than the standard of recovering such damages in a common-law intentional-infliction-of-emotional-distress case.” Id . at 495, citing Tarr v. Ciasulli , 181 N.J. 70 (2004).

The trial court determined that, given the evidence presented, the emotional distress award did not shock the conscience and was not a case of a runaway jury. In upholding the jury award, the trial court found that the jury “was extremely attentive throughout the trial” and “fully understood their charge.” Id. at 483-484. It found that the jury was reasonable in failing to find in favor of Ramon for his failure-to-promote claim and in fixing an amount for punitive damages.

The trial court found that both plaintiffs “presented very well. They appeared genuine, earnest, and credible in their presentation of their testimony. They were articulate and extremely well spoken.” In addition, the trial court accepted that the verdict indicated that “the jury found plaintiffs to be more likely than not credible.” Id. at 484.

The State Supreme Court determined that the trial judge acted appropriately in not relying on her own experience or “comparable” verdicts. Ultimately, the Cuevas court overturned He to the extent that, when deciding on a remittitur motion, a trial judge should not rely on both his/her personal knowledge of verdicts as a practicing attorney and jurist, and should not rely on “comparable” verdicts presented by the parties. Id. at 486. “Rather, courts should focus their attention on the record of the case at issue in determining whether a damages award is so grossly excessive that it falls outside of the wide range of acceptable outcomes.” Id. at 505. More specifically, to the extent possible, the Cuevas court found that a review of the case itself, including the witnesses' testimony, the nature, extent and duration of the injuries, and the impact of those injuries on the plaintiff's life will “yield the best record on which to decide a remittitur motion.” Id. at 510.

As to personal experience, the Cuevas court explained that such reliance is an unsound principle since:

1. It is information outside the scope of the record and is not subject to the typical scrutiny evidence receives in the adversarial process;
2. The cohort of cases within a judge's personal knowledge may not be statistically relevant, and the reliability of that knowledge cannot be easily tested;
3. The standard is whether the award shocks the judicial conscience, not the judge's conscience; and
4. The judge's recollection cannot be examined for accuracy.

As to “comparative” verdicts, the Cuevas court explained that reliance on such is an unsound principle since the particular facts and plaintiffs in different cases that lead to varying awards are not easily comparable. In articulating this decision, New Jersey's Supreme Court stated that the information from other verdicts or settlements is limited, and a true comparative analysis would require a statistically satisfactory cohort of cases and detailed information about the facts and plaintiffs. Such detailed information is unlikely to be available.

Conclusion

As set forth above, Cuevas reinforces general principles of remittitur, but simply changes those factors that a trial court may rely on or consider on ruling on a remittitur motion. Now, Cuevas represents the explicit law in New Jersey as it relates to remittitur, and any attorney involved with the issue of remittitur should be well-versed in same.

*****
Robert E. Spitzer, a member of this newsletter's Board of Editors, is a partner with MacNeill, O'Neill & Riveles, LLC, where he concentrates his practice on defending claims of medical malpractice, as well as nursing home negligence.