Remittitur, “Feel of the Case,” and “Shocks the Conscience”

Mickens v. Misdom, 438 N.J. Super. 531 (App. Div. 2015).  Today’s opinion, by Judge Fisher, affirms the ruling of a Union County trial judge (apparently, Judge Hely, based on a lengthy quotation from the Law Division judge that describes that judge’s background) that denied a motion for remittitur of a $2.4 million plaintiff’s verdict in an auto accident case.  Much of the panel’s discussion of the issue draws on the majority and dissenting opinions in He v. Miller, 207 N.J. 230 (2011), which addressed this same subject.

Intending no disrespect to Judge Fisher, much of the panel’s opinion in this case could be characterized almost as a meditation on He, and on the concepts of the trial judge’s “feel of the case” and the “shocks the conscience” standard, both of which play important roles in the remittitur context.  Those parts of the opinion represent a valuable attempt to illuminate the “profound difficulties that our trial courts and appellate tribunals continue to encounter as they seek to understand and apply the concepts surrounding remittitur.”  It is an opinion well worth reading by anyone who tries cases or who may handle on appeal any issues involving remittitur, “feel of the case,” or “shocks the conscience.”  The latter two concepts show up in contexts other than remittitur as well, so the value of this opinion is not limited to the remittitur setting.