PATRICIANEWTON v. SAM'S CLUB and YINTAK CHONG
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-2060-16T3
PATRICIA NEWTON,
Plaintiff-Respondent,
v.
SAM'S CLUB,
Defendant-Appellant,
and
YINTAK CHONG,
Defendant.
____________________________
Argued January 10, 2018 – Decided February 22, 2018
Before Judges Alvarez and Geiger.
On appeal from Superior Court of New Jersey,
Law Division, Mercer County, Docket No.
L-0097-10.
Michael K. Furey argued the cause for
appellant (Day Pitney, LLP, attorneys; Michael
K. Furey, of counsel and on the brief;
Jennifer Gorga Capone, on the brief).
Edward Harrington Heyburn argued the cause for
respondent.
PER CURIAM
This is a personal injury action. Defendant Sam's Club appeals
for the third time from an order denying its motion for a new
trial on damages or remittitur. The facts of the underlying
accident are detailed in our opinion disposing of defendant's
first appeal, Newton v. Sam's Club, No. A-4910-11 (App. Div. May
2, 2013), and need not be repeated here. In that opinion, we
upheld the jury's liability verdict but "remand[ed] the matter of
damages to the Law Division for a complete and searching analysis,
including 'a factual analysis of how the award is different or
similar to others to which it is compared.'" Id., slip op. at 17
(quoting He v. Miller,
207 N.J. 230, 251 (2011)).
On remand, the trial court evaluated the damage award using
the comparative-verdict methodology required by the plurality in
He and again denied defendant's motion for a new trial or
remittitur.1 Defendant again appealed, contending the trial
court's He analysis was flawed.
While defendant's second appeal was pending, the Supreme
Court decided Cuevas v. Wentworth Group,
226 N.J. 480 (2016). In
Cuevas, the court concluded "a judge's reliance on personal
knowledge of other verdicts and on purportedly comparable verdicts
1
Defendant Yintak Chong did not participate in any of the appeals.
Unless otherwise stated, references to defendant include only
Sam's Club.
2 A-2060-16T3
presented by the parties in deciding whether to remit a pain-and-
suffering damages award . . . is not sound in principle or workable
in practice." Id. at 486. The Court held: "The standard is not
whether a damages award shocks the judge's personal conscience,
but whether it shocks the judicial conscience." Ibid. The Court
disapproved "of the comparative-verdict methodology that allows
parties to present supposedly comparable verdicts based on case
summaries." Ibid. The Court explained: "In the end, a thorough
analysis of the case itself; of the witnesses' testimony; of the
nature, extent, and duration of the plaintiff's injuries; and of
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.
In view of the Supreme Court's disapproval of the He
comparative-verdict methodology, we vacated the trial court's
December 1, 2014 order, denying defendant's motion for a new trial
or remittitur and remanded this matter a second time for
consideration of the jury's damage award to plaintiff Patricia
Newton under the principles set forth in Cuevas. Newton v. Sam's
E., Inc., No. A-2199-14 (App. Div. Sep. 23, 2016) (slip op. at 3).
Before the second remand, the trial judge was reassigned to
a different division in another county. As a result, another
judge was assigned to the matter. After reviewing the trial
3 A-2060-16T3
transcripts and further submissions of the parties and considering
their oral argument, the judge denied defendant's motion for a new
trial on damages or remittitur.
In his oral decision, the judge recounted and analyzed the
testimony of plaintiff, her husband, and plaintiff's expert, Dr.
David Lessing, an orthopedic surgeon, regarding plaintiff's
injuries and damages. This testimony described the pain,
suffering, disability, impairment, and loss of enjoyment of life
plaintiff sustained as a result of the accident.2 The testimony
also described plaintiff's prognosis and the permanency of her
injuries and scarring.
After canvassing the testimony, the judge recognized the
$1,000,000 verdict was at the high end for the damages plaintiff
suffered but did not find it to be "so far wide of the range [of]
verdicts that the [c]ourt should step in." The judge took into
account the permanency of the injuries, the impact on her
activities, and the constant significant pain plaintiff
experienced, as well as plaintiff's age at the time of the accident
and life expectancy of fourteen years. Noting the verdict awarded
plaintiff approximately $6000 per month for enduring "everyday
constant excruciating pain," the judge concluded the verdict did
2
Plaintiff asserted only non-economic damages and had no claim
for lost wages, lost income, or unpaid medical expenses.
4 A-2060-16T3
not meet the standard for granting a new trial on damages or a
remittitur.
Defendant appeals from that ruling. For the reasons that
follow, we affirm.
In Cuevas, the Court gave guidance to courts on the standards
governing review of a jury's damages in deciding a remittitur
motion.
226 N.J. at 499.
When a court is persuaded that a new
trial must be granted based solely 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. The plaintiff has
the choice either 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.
Courts, however, must exercise the power
of remittitur with great restraint. That is
so because in our constitutional system of
civil justice, the jury—not a judge—is charged
with the responsibility of deciding the merits
of a civil claim and the quantum of damages
to be awarded a plaintiff. The drafters of
our Constitution placed their trust in
ordinary men and women of varying experiences
and backgrounds, who serve as jurors, to
render judgments concerning liability and
damages.
[Ibid. (citations omitted).]
5 A-2060-16T3
The Court described the standard to be applied when deciding
a remittitur motion:
A jury's verdict, including an award of
damages, is cloaked with a presumption of
correctness. The presumption of correctness
that attaches to a damages award is not
overcome unless a defendant can establish,
clearly and convincingly, that the award is a
miscarriage of justice. In deciding whether
to grant a new trial or remittitur based on a
purportedly excessive damages award, the court
must give due regard to the opportunity of the
jury to pass upon the credibility of the
witnesses. A judge may not substitute his
judgment for that of the jury merely because
he would have reached the opposite conclusion;
he is not a . . . decisive juror.
Because a jury's award of damages is
presumed to be correct, when considering a
remittitur motion, a court must view the
evidence in the light most favorable to the
plaintiff.
[Id. at 501 (citations omitted).]
"Ultimately, a damages award cannot stand if it is so grossly
disproportionate to the injury suffered that it shocks the judicial
conscience." Id. at 510.
Our standard for reviewing a damages award that is claimed
to be excessive is the same as the trial court, however, "an
6 A-2060-16T3
appellate court must pay some deference to a trial judge's feel
of the case." Id. at 501 (citations omitted).3
We briefly summarize the pertinent facts and testimony
regarding plaintiff's injuries and damages. Plaintiff suffered a
laceration to her left leg, which left a thirteen-centimeter
horseshoe-shaped scar. She was taken by ambulance to the emergency
room at Robert Wood Johnson Hospital. The tendons in plaintiff's
wound were visible but apparently not severed. After the wound
was cleaned and sutured, plaintiff was discharged from the
hospital.
Dr. Lessing had not treated plaintiff but examined her and
reviewed the medical reports of her treating physicians. Dr.
Lessing observed that plaintiff walked with a limp and that the
nerve supply had been cut off to the wounded part of her leg by
surrounding scar tissue on three sides. He stated plaintiff has
"a defect in the . . . contra of her leg at about where the
Achilles tendon joins the calf muscle." He diagnosed her with a
"laceration to the posterior left calf or leg with altered
sensation and a defect of the muscle tendon junction."
Dr. Lessing's prognosis was "poor," opining that
3
Here, the judge on the second remand was not the trial judge.
However, the record includes the comments of the trial judge
regarding the nature of plaintiff's injuries.
7 A-2060-16T3
none of these conditions are going to get
better. The nerves are not going to penetrate
the scar tissue. The area within that u or
horseshoe is always going to feel abnormal.
The damage to the muscle that has healed
with that contracted scar making that little
defect when you feel the area is always going
to be scar tissue. It's not going to turn into
muscle over time.
So the deficits in the muscle and the
deficits in the nerve supply to that area are
forever so it's not going to get better over
time.
According to Dr. Lessing, plaintiff's injury was permanent
and her scar would not fade away or disappear.
As to the impact of this injury on plaintiff's day-to-day
life, Dr. Lessing opined
the sensory problems will be there all the
time. Every time water hits it in the shower
or you dry the area with a towel, it's going
to be a problem.
If you wear anything that rubs up against
it, possibly, you know, maybe some nylon
stockings or knee socks, calf-high boots, all
of these will be a problem. There's a cosmetic
concern in the summertime when people wear
shorts and like knee-length clothing.
The muscle on that side has been
compromised so the leg is likely to tire out
sooner than it would have ordinarily and
sooner than the other leg will tire. This in
turn will produce a limp at least towards the
end of the day if not sooner.
8 A-2060-16T3
Dr. Lessing further opined that plaintiff would have trouble
cleaning the scarred area, which he characterized as a "big, ugly
scar."
Plaintiff's testimony supported Dr. Lessing's expert opinion.
According to plaintiff, after the accident she experienced
constant pain and if she "stood on [her] leg for any length of
time [she] would get excruciating pains in that area and a
tightness." Plaintiff's husband stated plaintiff favors her leg
at all times.
At one point, plaintiff's leg was so numb and painful she
went to a pain management specialist for relief. She described
her symptoms as "shooting pains . . . as if the muscles were
cramping up on [her]." Plaintiff also testified that, due to the
pain, she would have to pull over and stretch her leg if "[she]
drove for any length of time." Plaintiff still experiences
problems with her leg when she goes to bed at night.
At the time of trial, plaintiff was experiencing constant
pain. Plaintiff described the pain in her leg as "a numbing,
throbbing feeling," and said that to up to and including the day
of trial, she was "always in pain." Plaintiff took over-the-
counter medication to help with the pain, but it had not been
completely effective.
9 A-2060-16T3
Although she continued to experience pain, plaintiff did not
resume a pain management or rehabilitation program. She ceased
going to the gym and has limited her activities with her
grandchildren, such as attending their soccer games. She can no
longer wear heels or boots. Plaintiff's scar remains conspicuous,
but she admitted she was "happy with the way the outside [of her
leg] turned out."
Plaintiff's husband has difficulty walking and with mobility
generally. He testified plaintiff was responsible for his care
due to a medical condition and described the types of things
plaintiff did in caring for him, but it is unclear whether
plaintiff's leg injury has affected her ability to assist him on
a daily basis. We note, however, plaintiff testified she provided
the following assistance to her husband before the accident because
of his disability:
I did really everything. I helped him
when he had to get washed, his shower, I would
have to help. And then I would have to help
him in bed. I helped him get dressed.
And just there is a number of things that
he did around the house and outside the house
that he no longer can do and I tried to do it
but I couldn't, I couldn't take care of
everything.
But anyway as far as my husband, he
depends on me every day and I have to drive
and as a result of the vehicle that we've had
he had major problems trying to get into it
10 A-2060-16T3
which I would have to try to help him to get
in and out.
Based on this testimony, the jury could infer plaintiff's injuries
impaired her ability to assist her husband. The jury may consider
the probable consequences of plaintiff's injury. See Model Jury
Charges (Civil), 8.11E, "Disability, Impairment and Loss of the
Enjoyment of Life, Pain and Suffering" (approved December 1996)
(stating the jury may consider plaintiff's "age, usual activities,
occupation, family responsibilities and similar relevant facts in
evaluating the probable consequences of any injuries [the jury]
find[s] [he or she] has suffered").
In his decision denying defendant's motion for a new trial
or remittitur, the trial judge stated:
The plaintiff's injury had every
appearance of being serious and painful to
anyone viewing the photographs in evidence.
I, myself, saw the photographs as they were
being introduced. They were in color, and to
describe them as gory is being charitable.
. . . .
The testimony was clear. [Plaintiff]'s
leg tires more quickly now as a result of the
injury. I saw the injury, the jury saw the
injury at trial. Regardless of the fact that
it was stitched, regardless of the fact that
the injury had occurred some time ago, the one
thing remains clear [plaintiff] has a deformed
leg. Plain and simple. It required twenty-
six stitches. And even as she walked from her
chair at plaintiff's table, to the witness
stand, she walked with a noticeable limp. The
11 A-2060-16T3
jury saw what they saw. They ultimately came
to the determination that . . . this injury
was significant enough to warrant the verdict
that it did . . . .
Defendant raises the following arguments on appeal: (1) a new
trial should be granted because the verdict shocks the judicial
conscience, is against the weight of the evidence, and was a
product of sympathy, prejudice, and partiality; and (2) the trial
court erred in denying a remittitur. We are unpersuaded by these
arguments and affirm. Defendant further argues that because the
trial judge lacked experience in personal injury litigation, this
court should not defer to the trial judge's "feel of the case."
"[T]o arrive at a fair and reasonable award of compensation
requires a high order of human judgment." Model Jury Charges
(Civil), 8.11E. "Determining just compensation for an accident
victim, particularly when the damages are not susceptible to
scientific precision, as in the case of pain and suffering damages,
necessarily requires a high degree of discretion." Jackowitz v.
Lang,
408 N.J. Super. 495, 503 (App. Div. 2009) (quoting Johnson
v. Scaccetti,
192 N.J. 256, 279 (2007)). "Judges also know that,
among different juries, there will be a wide range of acceptable
damages awards." Cuevas,
226 N.J. at 510.
Because civil plaintiffs have a constitutionally guaranteed
right to have a jury decide the merits and value of a case,
12 A-2060-16T3
judicial interference with a jury award must clear a high hurdle.
Jackowitz,
408 N.J. Super. at 503-04. "The trial court should not
disturb the jury's award unless it is 'so disproportionate to the
injury and resulting disability as to shock the conscience and
[convince the court] that to sustain the award would be manifestly
unjust.'" He,
207 N.J. at 250-51 (alteration in original) (quoting
Baxter v. Fairmont Food Co.,
74 N.J. 588, 604 (1977)).
Viewed in the light most favorable to plaintiff, the evidence
makes clear plaintiff suffered disfiguring scarring, numbness,
ongoing constant pain, and impairment of the use of her leg. The
testimony established the injuries were permanent, disabling, and
have materially impaired her ability to undertake certain
activities, resulting in a significant loss of enjoyment of life.
Taking into account plaintiff's life expectancy and lifestyle, we
do not find the damages award to be "so grossly disproportionate
to the injuries suffered that it shocks the judicial conscience."
Cuevas,
226 N.J. at 510. Defendant has not clearly and
convincingly established that the damage award is a miscarriage
of justice. To be sure, this was a high verdict, but that does
not mean it was excessive. See Jastram v. Kruse,
197 N.J. 216,
235 (2008).
In light of the applicable standards, we find no error in the
court's decision denying the motion for a new trial on damages or
13 A-2060-16T3
remittitur. The judge engaged in "a thorough analysis of the case
itself; the nature of the witnesses' testimony; of the nature,
extent, and duration of the plaintiff's injuries; and of the impact
of those injuries on the plaintiff's life." Cuevas,
226 N.J. at
510. His findings and conclusions are supported by the record.
Defendant claims because the trial judge lacked experience
in personal injury litigation, this court should not defer to his
"feel of the case." Cuevas explicitly rejects reliance on a
judge's personal experience, stating the standard for remittitur
"is not whether a damage award shocks the judge's personal
conscience, but whether it shocks the judicial conscience." Id.
at 486. However, a trial judge is afforded "some" deference for
his "feel of the case" "because '[i]t is the judge who sees the
jurors wince, weep, snicker, avert their eyes, or shake their
heads in disbelief,' who may know 'whether the jury's verdict was
motivated by improper influences,' and who may be privy to
observations that could not have been made by the jury." Id. at
501-02 (alteration in original) (citations omitted). Nonetheless,
"[a] judge's 'feel of the case' based on observing a party or a
witness in the courtroom is entitled to minimal weight if the jury
had the same opportunity to make similar observations." Id. at
502 (citing Baxter,
74 N.J. at 600). Our decision is based on an
14 A-2060-16T3
independent review of the trial record and not the trial judge's
"feel of the case."
Defendant's remaining arguments lack sufficient merit to
warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
Affirmed.
15 A-2060-16T3
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