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NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION DOCKET NO. A-4479-07T24479-07T2 DANIEL J. SCHNEIDER, Plaintiff-Appellant, v. THE ESTATE OF GEORGE THULLSEN, Defendant-Respondent. _______________________________

Argued January 5, 2009 - Decided Before Judges Lisa and Reisner. On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, L-7155-05. David L. Wikstrom argued the cause for appellant (Javerbaum, Wurgaft, Hicks, Kahn, Wikstrom & Sinins, attorneys; Mr. Wikstrom, of counsel and on the brief). Owen C. McCarthy argued the cause for respondent (Connell Foley, LLP, attorneys; Mr. McCarthy, of counsel and on the brief). PER CURIAM By leave granted, plaintiff Daniel J. Schneider appeals from a trial court order dated March 12, 2008, reducing a $200,000 verdict in plaintiff's favor to $125,000, and a second order, dated April 11, 2008, denying plaintiff's motion for reconsideration. Because we conclude that the trial court's stated reasons for granting the remittitur do not satisfy the applicable standards, as recently highlighted by the Supreme Court in Jastram v. Kruse, ___ N.J. ___ (2008), and because the record presented to us on this appeal cannot support remittitur, we reverse and remand for entry of an order reinstating the $200,000 verdict.
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I Although the parties have not provided us with the trial transcripts, we infer from the briefs and counsel's concessions at oral argument that the following evidence was presented at the trial. This case arises from an automobile accident that occurred on January 5, 2004, when defendant's vehicle struck plaintiff's vehicle from the rear. Defendant conceded liability. At the trial, the jury heard testimony from plaintiff, his expert Dr. Farber, and defendant's expert Dr. Gross. Plaintiff began receiving treatment shortly, but not immediately, after the accident. He went through two years of medical treatment, including injections in his neck to try to relieve his headaches. His doctors eventually told him that further treatment would not be helpful. Therefore, at the time of the trial in November 2007, he had not had any treatment for his condition for almost two years. Both doctors agreed that plaintiff has a herniated disc in his neck at C-4, C-5. Plaintiff's doctor testified that the injury was caused by the accident; defendant's doctor testified that it was not caused by the accident. In response to a question from the jury, plaintiff's doctor testified that plaintiff's neck will not return to normal function even with further treatment. He explained that plaintiff has an unusually long neck, and that a combination of lack of support from the shoulder muscles and scar tissue from the injury makes plaintiff's herniated disc particularly difficult to remedy. According to plaintiff, he experiences neck pain, as well as shooting pains down his shoulders and arms, on a regular basis. He regularly takes over-the-counter pain medications. He has continuing limitations on the range of motion of his neck, which causes him to have difficulty in performing household chores or caring for his infant daughter. He had a very active lifestyle before the accident, but now cannot engage at all in skiing and swimming and is limited in his ability to engage in other activities such as golf. Plaintiff did not miss time from his work as a salesman. Plaintiff is relatively young, and his counsel argued the time-unit rule to the jury. See R. 1:7-1(b). By a vote of seven to one, the jury found that plaintiff suffered a permanent injury caused by the accident. The jury unanimously awarded him $200,000 for pain and suffering. Defendant filed a motion for a new trial or in the alternative for remittitur. In an oral opinion, placed on the record on February 15, 2008, the trial judge denied the new trial motion: [T]here really is no manifest injustice here in a verdict in favor of the plaintiff.

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. . . The plaintiff as I recall was a very sympathetic, credible young man who did not exaggerate his symptoms, he did not seek overwhelming medical treatment. As [defense counsel] points out it was in effect a two year period before he really attended to the pain and discomfort that he felt. However, the judge granted the remittur motion, based on his conclusion that $125,000 was a "fair" verdict in light of the evidence: The argument that the valuation that the jury place[d] on permanence and to some extent as [defense counsel] points out, this verdict seems somewhat the product of . . . sympathy on the part of the jury for a very attractive plaintiff and a very credible and pleasant plaintiff. Now of course [plaintiff's counsel] is right. Once the jury finds permanence the value is not something to be -- in other words the jury has the -- the jurisdiction of determining any value at all. But I'm satisfied that in this case given the limitations on athletic activity that the plaintiff has suffered, given the lack of the lost wage claim and the lack of any adverse effect on employment that a remittitur to $125,000, that is a remittitur of $75,000 is absolutely fair. I do not choose that figure under any standards except those set forth in the case of [Taweel v. Starn's Shoprite Supermarket, 58 N.J. 227 (1971)], and I believe that the annotations in the rulebook talk about the maximum figure that is sustainable by a jury verdict in a case like this giving all consideration to the points raised by the defendant, which I believe is $125,000. I do not reach this decision based on the fact that [defendant] offered zero dollars. I do not base this decision . . . on the experience of any judge in this courthouse with respect to verbal threshold cases, nor with respect to the various verdicts that come out of this jury box or any other jury box in the State of New Jersey. We don't have a verdict file, we don't know what the average experience is. . . . I'm satisfied that under the doctrine of [Taweel] that the verdict should be remitted to $125,000. In a motion for reconsideration, plaintiff's counsel argued that the judge had been unfairly influenced by a conversation with the jurors after the verdict was rendered. Plaintiff's counsel filed a certification attesting that after the verdict, the judge had "asked permission to interview the jury" and counsel had agreed. After fifteen minutes, the judge emerged from the jury room and told counsel that "[t]he jury liked the plaintiff" and thought both the plaintiff and his doctor were credible. The jury did not like or believe the defense expert. And "[t]he jury was impressed with the plaintiff[s'] doctor's explanation as to why the plaintiff's injury would not heal to normal function and, therefore, was permanent." The jurors also said that the attorneys did a "fine job." Plaintiff's counsel expressed concern that defense counsel's motion had not argued that the verdict was the product of juror sympathy, and that the judge's reasoning on the original motion had been based on his conversation with the jury. At oral argument on the reconsideration motion, the judge indicated that his only purpose in talking to the jurors was to find out general information such as "whether they were treated well by the court personnel, [and]

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talking about whether they had any insight to how we can improve the system." He specifically indicated that he never asked jurors to explain their verdict and did not do so in this case. However, he also stated that "I actually don't remember that the jury said what you said it did, but I have no reason ---- I don't remember otherwise either. . . . But I'm willing to accept that what you said was correct." He indicated that he did not base his decision on what the jurors told him, but that he had intended to remit the verdict to "the highest potential verdict that a jury could reach on the facts of the case." II Remittitur is a mechanism for correcting an excessive jury verdict and avoiding the need to order a new trial: Remittitur "describes the power of a court upon a motion for a new trial due to excessive damages rendered by a jury to require the plaintiff to consent to a decrease in the award to a specified amount as a condition for denial of the motion." In other words, remittitur denies a defendant a new trial if a plaintiff consents to a specified reduction in the jury award. [Fertile v. St. Michael's Med. Ctr., 169 N.J. 481, 491 (2001)(citations omitted).] However, remittitur is only properly applied where the verdict is so clearly excessive as to constitute a miscarriage of justice. The Court summarized the applicable principles as follows: Because a jury is given wide latitude in determining pain and suffering damages, the standard for granting a new trial or remittitur is necessarily high. The "'judge may not substitute his judgment for that of the jury merely because he would have reached the opposite conclusion; he is not a thirteenth and decisive juror.'" A trial court should not order a new trial or remit a jury's damages award unless it is so clearly disproportionate to the injury and its sequela (here plaintiff's pain and suffering and loss of enjoyment of life) that it may be said to shock the judicial conscience. The verdict must be "'wide of the mark'" and pervaded by a sense of "'wrongness.'" In other words, the trial court must be "clearly and convincingly" persuaded that it would be manifestly unjust to sustain the award. [Johnson v. Scaccetti, 192 N.J. 256, 281 (2007)(citations omitted).] In considering a remittitur motion, the trial judge must view the evidence in the light most favorable to the plaintiff, and cannot grant the motion without making specific findings as to the evidence on which the remittitur is based. "In deciding whether to grant a remittitur, the court must accept the evidence in the light most favorable to the plaintiff, and must articulate its reasons for reducing a damages award by reference to the trial record." Ibid. See also Jastram v. Kruse, supra, slip op. at 2 n.2; Taweel, supra, 58 N.J. at 236. In its recent decision in Jastram, supra, the Court emphasized the deference due the jury's judgment as to damages, and the limited circumstances in which remittitur is appropriate: [T]he evaluation of damages is a matter uniquely reposed in the jury's good judgment, and to justify judicial interference, "[t]he verdict must be 'wide of the mark' and pervaded by a sense of 'wrongness.'"
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In analyzing whether a damages award is excessive, a trial judge's review must be grounded substantially in the "totality of the evidence" in the record, which is viewed in a light most favorable to the plaintiff. In particular, the judge is to evaluate the nature and extent of the injury, the medical treatment that the plaintiff underwent and may be required to undergo in the future, the impact of the injury on the plaintiff's life from the date of injury through the date of trial, and the projected impact of the injury on the plaintiff in the future. So analyzed, where an award, "[] even if generous[,] has reasonable support in the record, the jury's evaluation should be regarded as final." [Id. at 26-28 (citations omitted).] The Court emphasized that a remittitur decision must be supported by a close and detailed analysis of the evidence on which it is based, and cannot be premised on the judge's mere disagreement with the verdict. "'[T]he judge may not substitute his judgment for that of the jury merely because he would have reached the opposite conclusion; he is not a thirteenth and decisive juror.'" Id. at 28 (quoting Baxter v. Fairmont Food Co., 74 N.J. 588, 598 (1977)). Notably, in Jastram the Court reversed our decision, in which we had reversed a trial judge's denial of remittitur and we had ordered remittitur of a $500,000 verdict to $50,000. Id. at 10. Like the case before us here, the youthful plaintiff in Jastram had suffered soft tissue injuries. The Court summarized our remittitur decision with which it disagreed: In support of its decision to remit, the Appellate Division relied on the following: that Tiffany did not see a health care provider until two weeks after the accident; that she received only sporadic treatment; that she had no bone injuries and that her spasms were "unquantified"; that her doctors did not restrict her activities; that she might not have satisfied the "objective proof" standard had AICRA applied; that the case is indistinct from "garden-variety lumbar strain and sprain" cases that settle for sums well under $50,000; that the verdict compared unfavorably to several specific verdicts to which the court adverted; and that Tiffany made a $12,500 offer of judgment under Rule 4:58-1 reflecting her assessment of the case. [Id. at 30-31.] In explaining why our decision was in error, the Court analyzed the evidence supporting the verdict, emphasizing that the evidence was to be viewed in the light most favorable to the plaintiff. Recapping, Tiffany [Jastram] did not seek professional treatment immediately after the accident because she optimistically but erroneously hoped the pain would go away. She subsequently consulted many doctors to relieve her pain and spasms, to no avail. Dr. Dennis stated that lumbar injuries range from "minimal" to "severe" and that Tiffany suffered a "moderate to severe" injury. He described what happened to Tiffany as a "[s]ignificant ligamentous injury [to her] lumbar spine and damage to the spinal column which has produced lumbar spine instability" that was entirely consistent with the limitations on Tiffany's life to which she testified. He also stated that her condition was "permanent," had improved as much as it ever would, and would continue to inhibit her life in the future as in the present. Tiffany, in turn, testified regarding what she lost as a result of her injury. First in that

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category was her ability to ride horses -- a "passion" to which she devoted herself and that she sacrificed for and worked to pursue from the time she was eight or nine years old. She cannot go dancing with her friends, exercise, or even help much with the household chores. She also testified, as did her mother, to continuing chronic pain that makes her unable to sleep through the night. She was seventeen years old at the time of the accident and had a projected life expectancy of fifty-five more years. That evidence was what the trial judge, who saw and heard the witnesses, was referring to when he said there "was testimony in the record" to support the verdict and that it did not shock his conscience. [Id. at 31-33.] In light of the well-established legal standards governing remittitur, we conclude that the trial judge's decision here must be reversed. The judge's stated reasons for remitting the verdict are inadequate and inconsistent with the principles articulated in Jastram and prior decisions. Absent a miscarriage of justice, in the form of a verdict shocking to the conscience, the trial judge was obligated to respect the jury's verdict. Id. at 25. The judge's view that the jury was sympathetic to plaintiff, or that a lower verdict would have been more "fair," is insufficient to justify remittitur. The judge may not act as an additional and decisive juror. Baxter, supra, 74 N.J. at 597-98. Moreover, instead of viewing the evidence in the light most favorable to plaintiff, the judge considered the evidence in a light that favored the defense. In that process, the judge also mistakenly concluded that plaintiff did not seek medical treatment for two years after the accident when, in fact, he sought treatment promptly. Further, as in Jastram, the fact that plaintiff was able to continue working should not have been treated as a decisive factor undercutting the verdict. Like Ms. Jastram, plaintiff was a relatively young person who suffered a permanent injury (here, a herniated disc) that prevented him from engaging in life activities that were important to him. See Jastram, supra, slip op. at 14-15. His medical expert testified that the injury would not heal and would cause him lifelong pain and discomfort. Even acknowledging the deference we owe to the trial judge's "feel" for the case, id. at 29, nothing cited by the trial judge or by the defense remotely suggests that the $200,000 verdict shocks the conscience or is beyond the highest verdict that the evidence could support if viewed most favorably to plaintiff. Therefore, we reverse the remittitur and remand for entry of an order reinstating the $200,000 verdict. Finally, while we are not concluding that the judge was improperly influenced here, we note the potential problems which may arise when a judge speaks to jurors outside the presence of counsel and off the record. Even where the trial is concluded, there may be post-trial motions which the judge must decide. While a judge may intend merely to thank the jurors for their service and allow them to comment on the process in general, the jurors may spontaneously comment on the trial. Moreover, if the judge has spoken to the jurors outside the presence of counsel and off the record, the litigants may speculate as to what was said and may believe, rightly or wrongly, that the conversation influenced the judge's decision of the post-trial motions.

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Reversed and remanded.

Jastram was decided December 23, 2008. Plaintiff's counsel represented that plaintiff testified to daily pain. Defense counsel contended that he testified to weekly pain. (continued) (continued) 13 A-4479-07T2 January 23, 2009 0x01 graphic

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