DeHanes v. Rothman: An Anniversary

On this date in 1999, the Supreme Court decided DeHanes v. Rothman, 158 N.J. 90 (1999).  There, in a unanimous opinion by Justice O’Hern, the Court held that it was proper for an attorney to suggest to a jury an aggregate sum of a proposed damage award where the basis for the suggested aggregate sum was established by competent expert testimony.  In so ruling, the Court abrogated its contrary ruling in Tenore v. Nu Car Carriers, Inc., 67 N.J. 466 (1975). 

Tenore had approved the use of expert testimony to “establish the effect of inflation on future wage losses in a wrongful death aciton, but prohibited the expert from testifying about the aggregate damages for two reasons.  First, the Court found that the expert’s tables reflecting aggregate damages assumed findings of fact outside the expert’s scope of expertise.  Second, the Court found that the ‘[experts’s] projection of a gross figure … tends to exert an undue psychological impact leading to the danger of its uncritical acceptance by the jury in the place of its own function in evaluation the proofs.'”  The first Tenore consideration was not present in DeHanes, and Justice O’Hern found the second concern outmoded:

“We have learned much about the ability of jurors to digest complex evidence.  New Jersey jurors do not now, if they ever did, fit the portrait of rustics, in the style of Norman Rockwell, who have come to court to be entertained by lawyers.  Jurors today are far more sophisticated.  They bring many suppositions into the courtroom sufficient to counter the influence of ‘undue psychological impact’ exerted by the words of an expert witness.”  Citing evidence that many jurors do not trust civil litigants or their paid expert witnesses, Justice O’Hern concluded that “[i]t is hard to imagine that this genre of jurors will be psychologically lulled into unquestioning acceptance of an expert’s testimony.”

This view of a jury’s integrity typified Justice O’Hern’s confidence in the “common man.”  [Disclosure:  I clerked for Justice O”Hern during the 1982-83 Term and wrote an article to commemorate his retirement, Justice Daniel O’Hern:  A Law Clerk’s Tribute, 30 Seton Hall L. Rev. 1062 (2000), that displayed my immense admiration for him].  The contrary view expressed in Tenore seems overly paternalistic or patronizing of lay jurors now, as it may also have seemed to the Court in 1999.   

In the light of the Court’s more favorable views of juror independence and competence, it was easy for the Justices to conclude in DeHanes that “[h]aving an attorney summarize [an expert’s] net figures is not an undue intrusion upon the jury’s function….  It strikes us that there is nothing so intrinsically unique aobut economic losses that the subject should cause us to refrain from following the regular rules regarding the introduction of expert testimony.”  That conclusion, Justice O’Hern noted, was in accord with a decision of the Third Circuit. 

Justice O’Hern was not naive, however.  He cautioned that expert testimony about aggregate damages should be prefaced by an instruction that the jury “is about to hear expert opinion testimony concerning the economic losses claimed in the case and that any aggregate figures offered by the expert are necessarily based on the reliability of the assumptions that the expert may have made as to future economic trends.”  He even sketched out a more detailed possible jury instruction, “[s]ubject to a better formulation by our Model Civil Jury Charge Committee.” 

DeHanes represented the wise evolution of the law.  Fourteen years later, that remains so.