Cuevas v. Wentworth Group, 226 N.J. 480 (2016). In He v. Miller, 207 N.J. 230 (2011), the Supreme Court addressed issues of remittitur at length and in detail. Among other things, the Court there “endorsed the use of comparable verdicts in remittitur motions,” as Justice Albin stated in his unanimous opinion today. But in today’s opinion, the Court announced that “the comparison of supposedly similar verdicts to assess whether a particular damages award is excessive is ultimately a futile exercise that should be abandoned.”
This case arose under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-2 et seq. (“LAD”). Plaintiffs are brothers who had been employed by defendant Wentworth Group in management positions. Plaintiffs are of Hispanic descent. They alleged that they encountered a hostile work environment, with multiple comments being made by defendants’ executives and others that demeaned plaintiffs because of their Hispanic background. Sometimes those remarks were made in the presence of persons whom plaintiffs supervised.
One plaintiff was terminated by defendant just four weeks after having received a substantial performance-based raise. The other plaintiff was terminated roughly one month later, after he complained about the termination of his brother. Plaintiffs sued, and a jury returned a compensatory and punitive damages verdict of several million dollars in their favor. Plaintiffs were also awarded roughly $500,000 in attorneys’ fees.
Defendants sought remittitur, but the Law Division judge denied that application. That judge declined to apply her own “feel of the case” because she was relatively new to the bench, so she did not accept or consider other verdicts. Defendants appealed the denial of remittitur and other issues, but the Appellate Division affirmed. Defendants sought Supreme Court review, which the Court granted, but only on the remittitur issue. Today, the Court affirmed the rulings below.
After outlining the governing law regarding remittitur, Justice Albin noted that a jury verdict, including a damage award, is “cloaked with a presumption of correctness” that can be overcome only by “clearly and convincingly” showing that the award represents a “miscarriage of justice.” Appellate courts are required to give deference to the trial judge’s “feel of the case” in this context. Justice Albin explained that this refers to the fact that the judge sees the witnesses, the parties, and the jury, which the appellate courts do not. Here, though disclaiming reliance on her “feel of the case,” the Law Division judge observed that the jury had been “extremely attentive throughout the trial,” and that plaintiffs had “presented extremely well” and appeared “genuine, earnest, and credible.” The jury’s findings were to be accorded deference.
Defendants, however, contended that a review of purportedly “comparable” jury verdicts showed that the verdict here “shock[ed] the judicial conscience,” the applicable standard. Justice Albin addressed that issue in two parts. First, he ruled that other verdicts of which a trial judge is aware, from his or her own experiences as a lawyer or a judge, cannot be considered. Such verdicts are not part of the record, “are not subject to testing through the adversarial process,” and may not be representative of verdicts as a whole. “The grant or denial of a remittitur motion cannot depend on the happenstance of the personal experiences of the trial or appellate judges assigned to a particular case.”
Second, Justice Albin turned to the verdicts that defendants had offered as “comparable.” He noted that, like the first category, it could not be shown that cases adduced by a party were representative, factually similar, or involved “similarly constituted plaintiffs.” Summaries of cases from published sources, “and even unreported decisions of the Appellate Division,” were not superior to the jury’s care and attention, and the unique position that the jury had in assessing credibility and other in-person aspects in particular cases such as this one.
Justice Albin concluded: “We do not believe that having our trial courts review snippets of information about cases that are not truly comparable is a worthwhile use of judicial resources or likely to bring greater justice to either plaintiffs or defendants. We therefore disapprove of the comparative-case analysis in deciding remittitur motions. We are confident that the instances in which a remittitur should be granted will be glaring and obvious from the record,” without the need to search for supposedly “comparable” cases.
The damage awards here, though “probably on the high end,” were affirmed. They were not so “pervaded by a sense of wrongness” as to shock the conscience. And since the Law Division judge, in denying remittitur, had not relied on her own experience or defendants’ cited verdicts, there was no basis to overturn the jury verdict.
This opinion made frequent and favorable reference to Mickens v. Misdom, 438 N.J. Super. 531 (App. Div. 2015). That case was discussed here. There, the Appellate Division wrestled with the majority and dissenting opinions in He v. Miller. Today’s decision, however, opens an important new chapter in remittitur law.