(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the
convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in
the interests of brevity, portions of any opinion may not have been summarized).
Argued April 30, 2001 -- Decided July 25, 2001
LONG, J., writing for a unanimous Court.
The issues presented in this appeal concern the propriety of the remittitur ordered by the trial court and
whether a retrial on all issues was mandated.
On June 24, 1994, plaintiff, Marlene Fertile, was admitted to St. Michael's Medical Center in the early
morning hours experiencing labor pains. At 9 p.m., Dr. Holgado observed that Mrs. Fertile's cervix had stopped
dilating, probably because her pelvis could not accommodate the size of the baby. Dr. Holgado recommended to
Dr. Rosenzweig, the attending physician, that Mrs. Fertile deliver by caesarian section (c-section). When Dr.
Holgado was required to perfrom a c-section on another patient, however, he advised Dr. Buontempo to follow Mrs.
Fertile and of his plans to perform a c-section on Mrs. Fertile.
Dr. Buontempo reviewed Mrs. Fertile's charts and determined that the fetal monitor revealed prolonged
reduced heart rate and variability evidencing an impaired oxygen supply. At 9:40 p.m., however, Dr. Buontempo
concluded that a c-section was no longer an appropriate option because Mrs. Fertile was fully dilated and the baby's
head was at the vaginal opening. She sent a nurse to the operating room to inform Dr. Rosenzweig who was
engaged in another delivery with Dr. Holgado.
Mrs. Fertile's baby, plaintiff Danialie Fertile, was large, and her shoulder was wedged behind Mrs.
Fertile's pubic bone. Dr. Buontempo freed the baby by changing Mrs. Fertile's position, pressing on her pubic
bone, and enlarging the surgical incision to expand her vagina. In the course of birth, Danialie was injured,
resulting in an atrophied and partially paralyzed arm.
Plaintiffs filed a complaint alleging malpractice. Their experts testified that by delivering Danialie
vaginally, Dr. Buontempo deviated from acceptable standards. Defendants' expert testified that once Mrs. Fertile's
cervix had fully dilated and Danialie had begun to move through the birth canal, the necessity for a c-section was
eliminated. He interpreted the fetal monitor to reveal an environmental insult and fetal compromise, at which point
the physician's obligation is to attempt to relieve the distress or deliver the baby as quickly and expeditiously as
possible.
Danialie suffered a brachial plexus injury, paralyzing some of her arm muscles and weakening others. She
is unable to move her right hand, thumb or fingers but can place a light object in her right hand and hold it there.
Her condition will not improve. Mrs. Fertile testified that Danialie is disappointed and frustrated by her disability,
and needs assistance in engaging in the tasks of daily living. A career counselor testified for plaintiffs that Danialie
would have serious limitation as an adult because most of the fastest-growing job fields require two hands. The
counselor added that a disabled person like Danialie is more likely to encounter discrimination in hiring.
Defendants did not contest that Danialie suffered a brachial plexus injury, but disagree concerning its effects. Their
expert in rehabilitation testified that although Danialie has limitations imposed by her arm, nothing suggests she
could not pursue a higher education or qualify for a professional position, and predicted no income loss as a result
of the disability.
The jury awarded Danialie damages in the amount of $15 million and Mrs. Fertile damages in the amount
of $3 million on her emotional distress claim. Defendants filed a motion for a new trial or, in the alternative, a
remittitur. The trial court denied a new trial, concluding that no trial error had occurred. However, the trial court
stated that the verdict “took my breath away,” concluded it was excessive, and remitted $10 million of the award to
Danialie and all but $250,000 of the award to Mrs. Fertile, on condition that plaintiffs accept that amount -
otherwise, defendants would be entitled to a new damages trial. Plaintiffs agreed to the remittitur order.
Defendants appealed, arguing entitlement to a new trial on all issues. They based their claim on three
alleged trial errors: the exclusion of certain testimony of Dr. Rosenzweig; an allegedly prejudicial comment by
plaintiff's expert; and allegedly improper comments of plaintiffs' counsel in summation that skewed the jury
verdict. Defendants also argued that Mrs. Fertile's claim should not have been submitted to the jury; that the
quantum of damages awarded warranted a new trial on all issues; or in the alternative, that the remittitur amount
was excessive. Plaintiffs cross-appealed, arguing that the remittitur should not have been granted at all.
The Appellate Division ruled that Mrs. Fertile's emotional distress claim was insufficient as a matter of law
and should have been dismissed. In addition, it found that certain comments in plaintiffs' counsel's summation
constituted plain error, clearly capable of producing an unjust result. The panel concluded that the “grossly
excessive” verdict was indicative of the prejudicial effects of the misstatements and remanded for a new trial on all
issues.
Plaintiffs filed a petition for certification challenging the Appellate Division's remand for a new trial on all
issues. They did not challenge the vacation of the verdict in favor of Mrs. Fertile or the determination that the
verdict in favor of Danialie was excessive. Defendants did not file a protective cross-petition. Thus, the only
question properly before the Court is whether defendants are entitled to a new trial on all issues.
HELD: The statements of plaintiffs' counsel did not constitute plain error warranting a new trial. The excessive
damage award alone does not entitle defendants to a new trial on all issues. The remittitur order was reasonable and
did not constitute a manifest denial of justice.
1. Remittitur describes the power of a court to require the plaintiff to consent to a decrease in an award of damages
to a specified amount as a condition for denying a defendant's motion for a new trial due to excessive damages.
Because the use of remittitur avoids the unnecessary expense and delay of a new trial, when confronted with
excessive verdicts New Jersey courts should, if possible, resort to an order of remittitur. (Pp. 11-14)
2. The comments in the summation of plaintiffs' counsel that were challenged by defendants concerned whether
Dr. Rosenzweig, Dr. Buontempo's superior, disagreed with Dr. Buontempo's determination to deliver Danialie
vaginally. Defense counsel had volunteered on opening that Dr. Rosenzweig “agreed” with Dr. Buontempo's
handling of the delivery. It was fair comment for plaintiffs' counsel to underscore that no evidence had been
presented to support that statement of defense counsel. Defense counsel did not object to the comments of
plaintiffs' counsel, and they do not satisfy the plain error standard. (Pp. 14-19)
3. Defendants contend that the decision of the Appellate Division can be sustained on another basis: that under
Taweel v. Starn's Shoprite Supermarket,
58 N.J. 227, 231 (1997) the gross excessiveness of the verdict, standing
alone, compels a new trial on all issues. Defendants' reliance on Taweel is misplaced. There is no logical reason
why the size of a damages award, standing alone, should invalidate an otherwise sound liability verdict. To the
extent that Taweel suggests otherwise, it is disapproved. In the absence of trial error, attorney misconduct or some
other indicia of bias, passion or prejudice impacting on the liability verdict, a trial court faced with an excessive
damages award can only order a new damages trial, whether or not conditioned on remittitur. (Pp. 19-24)
4. Defendants contend that the remitted verdict is still excessive. Because the process of remittitur is essentially to
lop off excess verdict amounts, and not to substitute the court's weighing and balancing for that of the jury,
remitting the award to the highest figure that could be supported by the evidence is the most analytically solid
approach. That approach also tampers least with the intentions of the jurors. The trial court fully and carefully
explained how it determined that the jury verdict was excessive and how it reached the remitted number. In so
doing, it properly relied on the evidence as well as its common knowledge and experience with other injury verdicts.
Having reviewed the trial record, the Court cannot say that this finding was wide of the mark or that the remittitur
order constituted a manifest denial of justice. (Pp. 24-28)
Judgement of the Appellate Division is REVERSED insofar as it ordered a new trial on all issues relating
to Danialie, the remittitur order of the trial court is REINSTATED with respect to Danialie, and the remainder of
the judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, and ZAZZALI join in JUSTICE
LONG's opinion. JUSTICES VERNIERO and LaVECCHIA.
SUPREME COURT OF NEW JERSEY
A-
49 September Term 2000
DANIALIE FERTILE, an infant,
by her Guardian Ad Litem,
MARLENE FERTILE, MARLENE
FERTILE, individually, and
ERNST FERTILE,
Plaintiffs-Appellants,
v.
ST. MICHAEL'S MEDICAL CENTER
and DR. ANGELA BUONTEMPO,
Defendants-Respondents,
and
DR. MICHAEL DOBRANSKY,
CHARLES OZOARU, M.D., JOHN
DOE, M.D. A-Z (said names
being fictitious and unknown)
and JANE ROE, R.N. A-Z (said
names being fictitious and
unknown),
Defendants.
Argued April 30, 2001 -- Decided July 25, 2001
On certification to the Superior Court,
Appellate Division, whose opinion is
reported at
334 N.J. Super. 43 (2000).
Cynthia A. Matheke argued the cause for
appellants (Lum, Danzis, Drasco, Positan &
Kleinberg, attorneys; Ms. Matheke and Dennis
J. Drasco, of counsel; Kevin J. O'Connor, on
the brief).
George J. Kenny argued the cause for
respondents (Connell Foley, attorneys).
The opinion of the court was delivered by
LONG, J.
The core issues presented on this appeal are rather
straightforward: in the face of a concededly excessive damages
award, when is the remedy of a new damages trial conditioned on
plaintiffs' acceptance of a remittitur order appropriate; when is
a new trial on all issues mandated; and by what standard is the
amount of a remittitur order to be assessed?
I
On April 4, 1996, plaintiffs, Danialie Fertile, an infant by
her guardian ad litem, Marlene Fertile, and Marlene Fertile,
individually, (collectively, plaintiffs) filed a complaint
against Dr. Angela Buontempo and St. Michael's Medical Center
(collectively, defendants).See footnote 11 The complaint alleged that Danialie
was severely injured as a result of Dr. Buontempo's malpractice
and that Mrs. Fertile suffered severe emotional distress as a
result. The gravamen of the complaint, as elucidated in
discovery, was that Dr. Buontempo delivered Danialie vaginally
when a caesarean (c-section) section was indicated.
A five day trial ensued at which the following evidence was
introduced. On June 24, 1994, Mrs. Fertile was admitted to St.
Michael's Medical Center in the early morning hours experiencing
labor. At approximately 6:45 p.m., Dr. Cecil Holgado, a second-
year resident, examined Mrs. Fertile and found her labor
progressing satisfactorily. At his 9 p.m. examination, Dr.
Holgado observed that Mrs. Fertile's cervix had stopped dilating,
probably because of fetal pelvic disproportion, a condition in
which the mother's pelvis cannot accommodate the size of the
baby. Because the baby showed no signs of distress, Dr. Holgado
recommended to Dr. Debra Rosenzweig, the attending physician,
that Mrs. Fertile deliver by c-section. At approximately 9:15
p.m., Dr. Holgado asked Dr. Buontempo (another second-year
resident) to follow Mrs. Fertile while he performed a c-section
on another patient. Dr. Holgado advised Dr. Buontempo of his
plans to perform a c-section on Mrs. Fertile.
After speaking to Dr. Holgado, Dr. Buontempo reviewed Mrs.
Fertile's charts. At the time, Mrs. Fertile was connected to a
fetal monitor that followed the baby's heart rate and assessed
the intensity of Mrs. Fertile's labor contractions, recording
both on fetal monitoring strips. Dr. Buontempo testified that
the fetal monitor revealed prolonged reduced heart rate and beat-
to-beat variability evidencing an impaired oxygen supply. At
9:40 p.m., because Mrs. Fertile was fully dilated and the baby's
head was at the vaginal opening, Dr. Buontempo concluded that a
caesarian section was no longer an appropriate option and that
the baby had to be delivered vaginally. Accordingly, she sent a
nurse to the operating room to inform Dr. Rosenzweig, who along
with Dr. Holgado, was engaged in another delivery.
Dr. Buontempo summoned assistance. She recognized the
potential that Danialie would be a large baby, given Mrs.
Fertile's obesity and her substantial weight gain during
pregnancy. Such large babies present a risk of shoulder
dystocia, a condition that occurs when the baby's shoulder is
stuck against the mother's pubic bone and obstructed in its
passage from the vagina.
Danialie was large, and her shoulder was wedged behind Mrs.
Fertile's pubic bone. Dr. Buontempo freed the baby by changing
Mrs. Fertile's position, pressing on her pubic bone, and
enlarging the surgical incision to expand her vagina. In the
course of her birth, Danialie was injured, resulting in an
atrophied and partially paralyzed arm.
Both plaintiffs and defendants presented expert testimony.
Briefly, plaintiffs' expert, Dr. Stephen Leviss, testified that
by delivering Danialie vaginally Dr. Buontempo deviated from
acceptable standards. According to Dr. Leviss, the length of the
labor (18 hours) and the size and position of the baby required a
c-section and nothing in the fetal monitor tracing compelled a
different result. Indeed, Dr. Leviss stated that the changes in
fetal heart rate revealed on the monitoring strips just prior to
delivery resulted from the pressure Dr. Buontempo was exerting in
attempting to deliver Danialie vaginally. Dr. Leviss concluded
that Dr. Buontempo should have anticipated shoulder dystocia and
that a properly performed c-section would not only have been less
risky but also would have avoided Danialie's injuries.
Dr. Sidney Wilchins, defendants' expert obstetrician, agreed
that because labor was not progressing at 9:00 p.m., the earlier
decision to deliver Danialie by c-section was appropriate.
However, he stated that once Mrs. Fertile's cervix had fully
dilated and Danialie had begun to move through the birth canal,
the necessity for a surgical delivery was eliminated. Dr.
Wilchins interpreted the fetal monitor strips to reveal that the
baby was experiencing an environmental insult that caused her
heart rate to change and that she was incapable of overcoming the
insult to return to a normal heart rate. That environmental
insult could include such things as compression of the umbilical
cord or the baby's head. In the face of fetal compromise, Dr.
Wilchins testified that the physician's first obligation is to
attempt to correct the situation and, if those attempts do not
relieve the fetal distress, to deliver the baby as quickly and
expeditiously as possible.
Dr. Wilchins said that by 9:45 p.m. the hospital record
indicated that Danialie's head had reached the vaginal opening
and that Dr. Buontempo acted "by the book" in proceeding to
deliver Danialie vaginally. Defendants' second expert, Dr.
Richard Luciani, essentially supported the conclusions of Dr.
Wilchins.
A pediatric neurologist, Dr. Daniel Adler, testified for
plaintiffs that as a result of traction on her head during birth
Danialie suffered a brachial plexus injury, paralyzing some of
her arm muscles and weakening others, resulting in a limited
range of right arm motion. She is unable to move her right hand,
thumb or fingers but can place a light object in her right hand
and hold it there; her condition will not improve.
Danialie has seen various specialists and has undergone
therapy for her arm. According to her mother, Danialie's arm has
never moved. A five year old kindergartner at the time of trial,
Danialie is disappointed and frustrated by her disability. Mrs.
Fertile testified that Danialie needs assistance with tasks that
would ordinarily require the use of two hands, such as washing
herself and combing her hair. Her father attested that Danialie
requires assistance in engaging in the tasks of daily living.
Although she is doing well in school she has difficulty with
writing. The jury was shown a videotape of Danialie performing
her daily activities, that was entitled “Day in the Life of
Danialie Fertile.” That videotape showed the extent of
Danialie's impairment.
A social worker testified that Danialie is bright, self-
confident, exceptionally well spoken in both French and English,
but requires more opportunities for adaptation and
rehabilitation. She recommended counseling and education for
both Danialie and her parents to help them understand Danialie's
development and to encourage them to properly impose discipline
and normal limitations.
A career counselor testified for plaintiffs that, in her
opinion, Danialie would have serious limitations as an adult
because most of the fastest-growing job fields require two hands.
Assuming that Danialie completed high school, the counselor
opined that, with only one hand, any job would be frustrating.
Moreover, even if Danialie completed additional education, she
still would be unable to perform required tasks in a field such
as medicine. The counselor added that a disabled person such as
Danialie is more likely to encounter discrimination in hiring due
to the perception of reduced productivity.
Defendants do not contest that Danialie suffered a brachial
plexus injury, but disagree concerning its effects. Defendants'
expert in rehabilitation testified that although Danialie has
limitations imposed by her arm, she is intellectually, socially,
and physically able to attend regular school classes and that
nothing suggests that she could not graduate from high school or
pursue higher education to qualify her for a professional
position. He predicted no income loss as a result of her
disability.
A jury awarded Danialie damages in the amount of $15 million
and Mrs. Fertile damages in the amount of $3 million. Defendants
filed a motion for a new trial or, in the alternative, a
remittitur. The trial court denied a new trial concluding that
no trial error had occurred. However, stating that the verdict
“took my breath away,” the court concluded that it was excessive
and remitted $10 million of the $15 million dollar award to
Danialie and all but $250,000 of the award to Mrs. Fertile, on
the condition that plaintiffs accept that amount. Otherwise,
defendants would be entitled to a new damages trial. Plaintiffs
agreed to the remittitur order.
Defendants appealed, arguing entitlement to a new trial on
all issues. They based their claim on three trial errors bearing
on liability: that the trial court erred in excluding certain
testimony of Dr. Rosenzweig; that a prejudicial comment by
plaintiffs' expert, Dr. Stephen Leviss, about Dr. Buontempo's
mismanagement of the dystocia warranted a mistrial; and that
improper comments in plaintiffs' counsel's summation skewed the
jury verdict. Defendants also argued that Mrs. Fertile's
emotional distress claim should not have been submitted to the
jury; that the liability verdict was against the weight of the
evidence; that the mere quantum of damages awarded warranted a
new trial on all issues; or in the alternative, that the
remittitur amount was excessive. Plaintiffs cross-appealed,
arguing that the remittitur should not have been granted at all
and that the original damage award to Danialie was not excessive
in light of her injuries.
The Appellate Division ruled that Mrs. Fertile's emotional
distress claim was insufficient as a matter of law under Carey v.
Lovett,
132 N.J. 44, 58 (1993), and should have been dismissed
prior to submission of the case to the jury. In addition, it
found that certain comments in plaintiffs' counsel's summation
constituted plain error, clearly capable of producing an unjust
result. The panel concluded that the “grossly excessive” verdict
was indicative of the prejudicial effects of the misstatements
and remanded the case for a new trial on all issues regarding
Danialie. That ruling made it unnecessary for the court to
address any of defendants' other claims of trial error.
Plaintiffs filed a petition for certification challenging
that portion of the Appellate Division judgment that remanded the
case for a new trial on all issues. Plaintiffs did not challenge
the vacation of the verdict in favor of Mrs. Fertile or the
determination that the verdict in favor of Danialie was
excessive. Defendants did not file a protective cross-petition
pursuant to Rule 2:12-11. We granted certification. 165 N.J.
679 (2000). The only question properly before us is whether
defendants are entitled to a new trial on all issues.
II
Plaintiffs argue that there was no trial error in this case;
that the jury's finding of liability was not tainted by the
concededly excessive damages verdict; and that the remittitur
order should stand. Defendants counter that the summation
comments by plaintiffs' lawyer were “plain error”; that that
error, coupled with the gross excessiveness of the verdict,
bespoke passion and prejudice, warranting a new trial on all
issues; that the size of the verdict alone requires a new trial
on all issues; and alternatively, that the remitted amount is
still too high.
III
Rule 4:49-1 prescribes the standard applicable to a motion
for a new trial:
A new trial may be granted . . . . if, having given due
regard to the opportunity of the jury to pass upon the
credibility of the witnesses, it clearly and
convincingly appears that there was a miscarriage of
justice under the law.
[Rule 4:49-1(a).]
Once the trial court determines that a “manifest denial of
justice” has occurred, Baxter v. Fairmont Foods,
74 N.J. 588, 597-
98 (1977), a new trial is warranted. The scope of the new trial
depends on the nature of the injustice. Where trial error
affecting liability occurs, the new trial will encompass all
issues. See Carey, supra, 132 N.J. at 63, 68, 70 (verdict required
new trial on liability and damages where it resulted from trial
court's obvious impermissible bias toward plaintiffs throughout
trial). Where the quantum of damages is the sole source of the
court's determination that a denial of justice has taken place,
other remedies are available including remittitur and additurSee footnote 22.
Velop, Inc. v. Kaplan,
301 N.J. Super. 32, 42, 62-64 (App. Div.
1997) (allowing plaintiff to accept remittitur or submit to new
damages trial); Bishop v. Harski,
191 N.J. Super. 109, 112-114 (Law
Div. 1983) (allowing defendant to submit to additur or face new
damages trial).
Because it is conceded that the damages award in favor of
Danialie was excessive, our focus is on remittitur. 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.” Rayburn, supra,
43 Miss. L.J.
at 107. In other words, remittitur denies a defendant a new trial
if a plaintiff consents to a specified reduction in the jury award.
Henker v. Preybylowski,
216 N.J. Super. 513, 516 (App. Div. 1987).
Remittitur is designed to bring excessive damages awarded by
a jury to the level that the court knows is within the limits of a
proper verdict and thereby avoid the necessity of a new trial.
Rayburn, supra,
43 Miss. L.J. at 107. Remittitur has long been
employed by courts and legislatures to eliminate retrials for
excessive verdicts. Comment, Correction of Damage Verdicts by
Remittitur and Additur, 44 Yale L.J. 318 (1934). In fact, the
practice of remittitur began to take hold in America in the
nineteenth century. By the latter half of the 1800's most state
and federal courts accepted the doctrine. David Fink, Best v.
Taylor Machine Works, The Remittitur Doctrine, and the Implications
for Tort Reform,
94 N.W. U. L. Rev. 227, 234 (1999). Remittitur
was formally recognized by the United States Supreme Court in 1886
in Northern Pacific R.R. v. Herbert,
116 U.S. 642, 646,
6 S.Ct. 590, 592,
29 L.Ed. 755, 758 (1886). Ibid. Remittitur has been
attacked as an unconstitutional infringement on the guarantee of a
trial by jury. However, the United States Supreme Court in Dimick
v. Scheidt,
293 U.S. 474, 484-486,
55 S.Ct. 296, 300-301
79 L.Ed. 603, 610-611 (1935), recognized remittitur, although disapproving
additur, the difference being that the former is a calculation
within the jury's verdict whereas the latter is not.
Remittitur also has a long history in New Jersey. Baxter v.
Fairmont Food Co., supra,
74 N.J. 588, 595 (1977) (stating “[w]e
have no misgivings about the remittitur practice, long in effect in
[New Jersey.]”); Ekalo v. Constructive Serv. Corp. of Am.,
46 N.J. 82, 93 (1965)(“[T]here is of course no question as to the power of
New Jersey's trial and appellate courts to exercise [the power of
remittitur.]”). Fisch v. Manger,
24 N.J. 66, 76 (1957) (“The
remittitur practice has been recognized in New Jersey since early
days.”)
Because the use of remittitur avoids the unnecessary expense
and delay of a new trial, when confronted with excessive verdicts
New Jersey courts should, if possible, resort to an order of
remittitur. Caldwell v. Haynes,
136 N.J. 422, 443 (1994); Baxter,
supra, 74 N.J. at 595; Fritsche v. Westinghouse Electric Corp.,
55 N.J. 322, 330-31 (1970). That is the action the trial court took
in this case, and that the Appellate Division set aside.
IV
We turn first to plaintiffs' claim that the Appellate Division
erred in concluding that the excessive damages verdict was
indicative of the prejudicial effect of trial error. Defendants
challenged the following comments in plaintiffs' counsel's
summation as leaving the jury with a misimpression of the evidence:
Those decelerations are a smoke screen and a _
and one that has such appeal that I ask you to
consider it carefully. But I also ask you to
consider those _ compare the decelerations,
not numbered, not identified, not listed in
Dr. Buontempo's post note, post-event note
that she was instructed to write by Dr.
Rosenzweig after, according to her testimony,
Dr. Rosenzweig said didn't you know we wanted
to do a section, please write it up. And,
ladies and gentlemen, I must submit to you
that there was never any testimony from Dr.
Rosenzweig, as was alleged in opening
statement, that Dr. Rosenzweig told Dr.
Buontempo she did the right thing.
* * *
And then count those seconds up and ask if
you, knowing what you now know _ as I
indicated from the beginning what you're going
to know about birthing and so on, that that is
such an ominous sign, or is it the only exit
way out of this case for the defendants
because it's clear from Dr. Rosenzweig's
testimony that she came out of there preparing
to section this woman and found a baby whose
arm was hanging like this and said nothing
more except document it for the record, an
hour later.
No objection was advanced by defendants when the comments were
made. Thus the standard by which they are to be tested is that of
plain error. Rule 1:7-2. Under that standard, the issue is
whether the comments had the “clear capacity for producing an
unjust result.” State v. Melvin,
65 N.J. 1, 18 (1974); Rule 2:10-
2. The Appellate Division held that the comments met the plain
error standard:
The relevant testimony does not justify the
comment that following Dr. Rosenzweig's
completion of the other caesarian section Dr.
Rosenzweig admonished Dr. Buontempo saying,
"Didn't you know we wanted to do a section,
please write it up." Nothing in the record
supports a statement that Dr. Rosenzweig made
any observation regarding the planned
caesarean delivery. To the contrary, Dr.
Rosenzweig maintained that she had no
recollection of Marlene's labor or delivery
other than instructing Dr. Buontempo to "write
a chronology of the course of the delivery" in
light of the complications associated with
Danialie's birth. Dr. Buontempo did not
testify to the contrary. Nor was there any
testimony that Dr. Rosenzweig saw Danialie
contemporaneously with her post-delivery
conference with Dr. Buontempo or that, if she
had seen Danialie, Dr. Rosenzweig would have
observed her "arm hanging like this."
In the context of this close case on liability
these misstatements as to Dr. Rosenzweig's
testimony had great potential to mislead and
inflame the jury because they suggested that
Dr. Rosenzweig, Dr. Buontempo's superior,
disagreed with the decision to carry out a
vaginal delivery. Moreover, the
representation that Dr. Rosenzweig admonished
Dr. Buontempo supported plaintiffs' theory
that Dr. Buontempo committed malpractice in
not carrying out the previously planned
caesarian section.
[Fertile v. St. Michael's Hospital,
334 N.J. Super. 43, 61 (App. Div. 2000).]
We disagree with that analysis.
In his opening statement, defense counsel told the jury that
Dr. Buontempo sent a nurse to Dr. Rosenzweig,
who was doing the other c-section, and told
her what had occurred and what Dr.
Buontempo's plan was and what she was going to
do. And, in fact, she talked with Dr.
Rosenzweig after this occurred, and Dr.
Rosenzweig did not disagree with her at all.
By that statement, counsel left the jury with the impression that
Dr. Rosenzweig concurred in Dr. Buontempo's handling of the case.
When he tried to elicit that conclusion from Dr. Rosenzweig,
however, the trial court properly precluded her from offering an
opinion regarding Dr. Buontempo's conduct. Dr. Rosenzweig was not
entitled to give either a fact opinion regarding matters that took
place out of her presence or an expert opinion for which she was
not proffered as a witness. Thus, on that point, it was fair
comment in summation for plaintiffs' counsel to underscore that
defense counsel's statement, volunteered on opening, that Dr.
Rosenzweig “agreed” with Dr. Buontempo's handling of Mrs. Fertile's
delivery was not supported by the evidence.
Other than instructing Dr. Buontempo to write a chronology of
the course of the delivery in light of the complications, Dr.
Rosenzweig did not recall Mrs. Fertile's labor or delivery. During
cross-examination, Dr. Buontempo testified:
Q. Now doctor, you got no answer from Dr.
Rosenzweig when you sent in word that there
was going to be a delivery.
A. No.
Q. You got _ that's correct, you got no
answer.
A. I didn't get any answer.
Q. And did Dr. Rosenzweig indicate to you
after _ ask you after the delivery whether you
were aware that they were planning to do a
caesarian section?
A. Yes.
Although Dr. Rosenzweig did not say to Dr. Buontempo “please
write it up because you performed a vaginal delivery in
contravention of the c-section that had been anticipated” (the
inference plaintiffs obviously wanted drawn), it is uncontroverted
that Dr. Rosenzweig asked Dr. Buontempo to “please write it up” and
additionally inquired of Dr. Buontempo whether she was “aware” that
they had planned to do a c-section. In light of that evidence, the
inference that there was a connection between the statements was a
legitimate one and plaintiffs' summation was not erroneous on that
point.
Moreover, it cannot be disputed that Dr. Rosenzweig asked Dr.
Buontempo to document her conduct for the record because of the
complications in the delivery. Dr. Rosenzweig testified to that
directly. Although Dr. Rosenzweig did not say specifically that
she contemporaneously saw Danialie post-delivery, she did testify
that she instructed Dr. Buontempo to document the delivery after
she “walked into” the labor room and it became clear that there
were “complications.” It is true that there is no testimony out of
Dr. Rosenzweig's mouth that she directly observed Danialie's
injury. However, her presence in the labor room, her
acknowledgement of complications, and the testimony from Mr.
Fertile that Danialie's injury was visible and that her arm was
limp from the moment of birth, are persuasive circumstantial
evidence for the inference that Dr. Rosenzweig saw her when she
walked into the labor room.
In short, given the latitude counsel are afforded in
summation, State v. Bogen,
13 N.J. 137, 140-141, cert. denied,
346 U.S. 825,
74 S.Ct. 44,
98 L.Ed. 350 (1953), the statements at issue
were not unjustified. In that connection, we view the failure of
defendants' experienced counsel to place on the record any
objection to the summation as speaking volumes about the accuracy
of what was said. State v. Wilson,
57 N.J. 39, 51 (1970). We
presume that when a lawyer observes an adversary's summation, and
concludes that the gist of the evidence has been unfairly
characterized, an objection will be advanced.
We turn finally to the three issues raised by defendants in
the Appellate Division briefs but not directly confronted in that
court's opinion. Although defendants raised those issues at oral
argument here, in the absence of a protective cross-petition they
are not properly before us. However, in the interest of
completeness we choose to address them. Regarding the weight of
the evidence, this was a hotly contested case involving a
proverbial battle of experts. Although the verdict could have gone
either way, there was evidence in the record that, if believed by
the jury, amply supported the liability determination against
defendants. Further, as we have indicated, the trial court's
refusal to allow Dr. Rosenzweig to render an opinion regarding Dr.
Buontempo's conduct was entirely proper given that she was not
present during the delivery of Mrs. Fertile and had not been
proffered as an expert witness. Finally, regarding Dr. Leviss's
statement that Dr. Buontempo mismanaged the dystocia, the trial
court quickly and forcefully gave a fully remedial curative
instruction. In sum, no error, let alone plain error, occurred
during the trial of this case.
We thus reverse the Appellate Division's determination that a
new trial on all issues is required because the excessive verdict
resulted from the prejudicial effect of trial error.
V
We turn next to defendants' contention that the decision of
the Appellate Division can be sustained on another basis: that
under Taweel v. Starn's Shoprite Supermarket,
58 N.J. 227, 231
(1971) the gross “excessiveness” of the verdict, standing alone,
compels a new trial on all issues.
In Taweel, this Court stated:
When there is adequate support for the jury's
finding on liability and it appears only that
the damages awarded were excessive, the
remittitur device may be used and its use is
encouraged to avoid a new trial. Fritsche v.
Westinghouse Electric Corp.,
55 N.J. 322, 330,
331,
261 A.2d 657 (1970). The term is used to
describe an order denying defendant's
application for a new trial on condition that
the plaintiff consent to a specified reduction
in the jury's award. Fisch v. Manger,
24 N.J. 66, 72,
130 A.2d 815 (1957). It may be
employed only in cases where, if the plaintiff
declines the reduction, the separate issue of
liability having been clearly and properly
decided, he must submit to a new trial as to
damages. If, however, the award of damages
is so grossly excessive as to demonstrate
prejudice, partiality or passion and thus to
generate the feeling that the entire verdict
was tainted, a remittitur is improper. The
correct procedure in such a case is an order
for a new trial on all issues.
[Taweel, supra, 58 N.J. at 231 (emphasis
added).]
Defendants' reliance on Taweel is misplaced. First, the cited
language is dictum insofar as the Court in Taweel ultimately held
that that verdict was not excessive and reinstated it. Id. at 236-
37. Likewise, although the underscored language in Taweel has been
cited in our reported civil case law a number of times, not one
single post-Taweel case has ever ordered a new trial on all issues
based solely on a grossly excessive damages award. Several cases
ordered a new liability trial, but only did so because of trial
error or attorney misconduct in addition to the excessiveness of
the damages verdict.See footnote 33 A number of the cases approved remittitur or
additurSee footnote 44, still others ordered a new damages trialSee footnote 55, and many simply
left the original damages verdict undisturbedSee footnote 66.
The refusal of any trial or appellate court to invalidate an
otherwise justifiable liability verdict based solely on the award
of grossly excessive damages in the thirty years since Taweel is
not a coincidence. In our view, it is an implicit repudiation of
the essentially standardless exercise of distinguishing between
excessive and grossly excessive damages awards to determine whether
a liability verdict has been impaired by passion, prejudice, or
bias. Given that excessive damages in themselves must shock the
judicial conscience, Baxter, supra, 74 N.J. at 595, 603, 604, there
is simply no principled distinction between those damages and
grossly excessive ones. Moreover, there is no logical reason why
the size of a damages award, standing alone, should invalidate an
otherwise sound liability verdict. A “feeling” that something is
amiss is an inadequate basis to upend an otherwise untainted
verdict.
To the extent that Taweel suggests the contrary, it is
disapproved. Our guiding principle is that passion, prejudice , or
bias warranting a new trial on liability generally cannot be
established merely by the excessiveness of a damages award,
regardless of its size. See Brodbeck v. N.R.A., No. CIV. A.
98-5361, 1
999 WL 722815, at *4 (E.D. Pa. Sept. 14, 1999) (citing
Dunn v. Hovic,
1 F.3d 1371, 1383 (3d Cir. 1993)), for proposition
that no amount of damages is per se proof of passion, prejudice or
bias warranting new liability trial); Callahan v. Cardinal Glennon
Hosp.,
863 S.W.2d 852, 872 (Mo. 1993) (size of verdict alone will
not establish passion and prejudice by jury, and some other error
must be shown to require new trial on all issues). To justify a
new trial on all issues, what is required is trial error, attorney
misconduct or some other indicia of bias, passion or prejudice,
impacting on the liability verdict. In the absence of such
indicia, a trial court faced with an excessive damages award can
only order a new damages trial, whether or not conditioned on
remittitur.See footnote 77 Defendants therefore are not entitled to a new trial
on all issues based on the size of the damages award.
VI
We turn finally to defendants' contention that the remitted
verdict is still excessive. Although technically that issue was
not properly preserved by a cross-petition, we choose to address it
because it resonates throughout the case.
The standard applicable to such a claim is similar to that
governing a new trial. Baxter, supra, 74 N.J. at 596 (1977); Rule
4:49-1. Obviously, assessing the amount of a remittitur is a
slightly more complicated function than merely determining
entitlement to a new damages trial. It not only involves the
conclusion that the damages award cannot stand because it
constitutes a manifest denial of justice but also a determination
that the remitted amount is what a reasonable jury, properly
instructed, would have awarded.
Different approaches have developed for determining the proper
amount of a remittitur order: one is to award the lowest amount
supported by the record, Meissner v. Pappas,
35 F.Supp. 676, 677
(E.D. Wis. 1940), modified on other grounds,
124 F.2d 720 (7th Cir.
1941); a second is to award the highest amount supported by the
record, Osburn v. Anchor Laboratories,
825 F.2d 908, 919 (5th Cir.
1987) cert. denied
485 U.S. 1009,
108 S.Ct. 1476,
99 L.Ed.2d 705
(1988); and a third is to award damages in between the highest and
lowest amounts supported by the record, Lanfranconi v. Tidewater
Oil Co.,
376 F.2d 91, 97 (2d Cir.), cert. denied,
389 U.S. 951,
88 S.Ct. 334,
19 L.Ed.2d 361 (1967). Because the process of
remittitur is essentially to “lop-off” excess verdict amounts,
Dimick v. Scheidt, supra, 293 U.S. at 486, 55 S.Ct. at 301, 79
L.Ed. at 611, and not to substitute the court's weighing and
balancing for that of the jury, remitting the award to the highest
figure that could be supported by the evidence is the most
analytically solid approach. Indeed, commentators have concluded
that such an approach “tampers least with the intentions of the
jurors, who by implication wanted to fully compensate the
plaintiffs . . . .” Irene Deaville Sann, Remittiturs (and
Additurs) in the Federal Courts: An Evaluation With Suggested
Alternatives, 38 Case W. Res. L. Rev. 157, 191 (1987/88); Moore's
Federal Practice, §59.26 [4][b](3d ed.1997); see also Slade v.
Whitco Corp., 811 F.Supp 71, 77 (N.D. N.Y.) (noting that, of the
three alternative methods for computing remittitur, method that
reduces verdict only to maximum that would be upheld by trial court
if not excessive is least intrusive standard), aff'd by,
999 F.2d 537 (2d Cir. 1993).
We have carefully reviewed this record in light of the
aforementioned standards, and find no reason to interfere with the
remittitur order. The trial court fully and carefully explained
how it determined that the jury verdict was excessive and how it
reached the remitted number. In so doing, it properly relied on
the evidence it saw and heard. Tronolone v. Palmer,
224 N.J. Super. 92, 104 (App. Div. 1988). In addition, it based the decision on
its own common knowledge, as well as its experience with other
injury verdicts, and particularly on Danialie's extended life
expectancy. The court stated:
When it comes to the dollar amount of the
verdict and this becomes hard too and I direct
the question am I constrained with what my
responsibility is, is just to use my common
knowledge experience and knowledge vis-a-vis
one injury or do I do it in comparison to
others, and I think what I have to do is do in
the totality of the circumstances as what this
means to a particular individual in a
particular case.
What's devastating to one is so so to another.
So, it has to be an individual situation.
Certainly we know that we have, it's certainly
no solace to the parents of this child that we
have much more severely injured children with
brain damage babies etc. It doesn't give any
solace that, oh, well, it's only, you know a
brachioplexis injury as opposed to a brain
damage. That doesn't do the plaintiff in this
case any good. But I have to look at it all
around, the quality of life, and what's
available there because as I say everybody is
a little bit different.
* * *
And I looked at that and I say that in good
conscience I can't let the dollar amount stand
and it's a hard place to put and I look at it
all, yes, there is a young woman who certainly
is precocious, is bright, intellectually has
the world open to her, but yet there are still
some everyday things that are going to cause
some problems that you think very simply is
how easy it is to do certain things that we
take for granted for everyday with two arms
that you can't do with only one. It is
something that goes on and on and on, and I do
have to consider the life expectancy overall.
Remember we do have as of this time she was
just short of five and the life expectancy of
a little over 70, so you're talking 75 years
and hopefully and god willing she'll have
longevity longer than that because we know as
we get older that it extends, but the jury
looked at it from that point of view. In
evaluating I've even watched her again today,
a charming young lady but with a very
noticeable injury that is not something that's
going to take a discerning eye to see. It's
something that is going to, you know, jump up
and hit anybody who sees it. It is something
that is going to if you don't need a
psychiatrist or anybody on that basis to say
that it's always to be some sort of a problem
to someone to adapt with it and all, but in
this court's opinion the 15 million dollars
just is a bit of an overreach and somewhat
interlaced with the motion.
The court ultimately concluded that $5,000,000 was an appropriate
and just award, underscoring that Danialie's injury “is devastating
and visible and with [her] for a lifetime.” Having reviewed the
trial record and the videotape, we cannot say that the court was
wide of the mark or that the remittitur order constituted a
manifest denial of justice.
VII
The judgment of the Appellate Division is reversed insofar as
it ordered a new trial on all issues relating to Danialie; the
remittitur order of the trial court is reinstated with respect to
Danialie; the remainder of the judgment of the Appellate Division
is affirmed.
CHIEF JUSTICE PORITZ and JUSTICES STEIN, COLEMAN, and ZAZZALI join in JUSTICE LONG's opinion. JUSTICES VERNIERO and LaVECCHIA did not participate.
NO. A-49 SEPTEMBER TERM 2000
ON APPEAL FROM
ON CERTIFICATION TO Appellate Division, Superior Court
DANIALIE FERTILE, an infant,
by her Guardian Ad Litem,
MARLENE FERTILE, MARLENE
FERTILE, individually, and
ERNST FERTILE,
Plaintiffs-Appellants,
v.
ST. MICHAEL'S MEDICAL CENTER
and DR. ANGELA BUONTEMPO,
Defendants-Respondents.
DECIDED July 25, 2001
Chief Justice Poritz PRESIDING
OPINION BY Justice Long
CONCURRING OPINION BY
DISSENTING OPINION BY
Footnote: 1 1 The complaint of Ernst Fertile, Danialie's father, was
dismissed as were all claims against Drs. Michael Dobransky and
Charles Ozoaru.
Footnote: 2 2Additur refers to “[t]he power of a court, on motion for a
new trial due to inadequate damages rendered by jury verdict, to
require the defendant to consent to an increase to a stipulated
amount of the award as a condition for denial of the motion for a
new trial . . . .” S.T. Rayburn, Statutory Authorization of
Additur and Remittitur,
43 Miss. L. J. 107 (1972).
Footnote: 3 3 Carey, supra, 132 N.J. at 63, 68-70 (1993); Von Borstel v.
Campan,
255 N.J. Super. 24, 30-32 (App. Div. 1992); Grassis v.
Johns-Manville Corp.,
248 N.J. Super. 446, 450, 452-57 (App. Div.
1991); McDonough v. Jorda,
214 N.J. Super. 338, 346-48 (App. Div.
1986). See also Sherry v. Buonansonti,
287 N. J. Super. 518, 523
(App. Div. 1996) (although dismissing on verbal threshold
grounds, recognizing that excessiveness of jury verdict combined
with trial error would justify new trial on all issues).
Footnote: 4 4 Inter Medical Supplies Ltd. v. EBI Med. Systems, Inc., 975
F.Supp. 681, 701-02(D.N.J. 1997); Ianco v. St. Peter's Med. Ctr.,
334 N.J. Super. 547, 554-556 (App. Div. 2000); Velop, supra, 301
N.J. Super. at 42, 62-64 (App. Div. 1997); Wolfe v. Chateau
Renaissance,
141 N.J. Super. 59,66 (App. Div. 1976); Bishop,
supra, 191 N.J. Super. at 112-114 (Law Div. 1983).
Footnote: 5 5 Bell Atl. Network Serv., Inc. v. P.M. Video Corp.,
322 N.J. Super. 74, 115-116 (App. Div. 1999); Brown v. Kennedy Mem'l
Hosp.-Univ. Med. Ctr.,
312 N.J. Super. 579, 589-93 (App. Div.
1998); Maiorino v Schering-Plough Corp.,
302 N.J. Super. 323,
356, 358 (App. Div. 1997); Jadlowski v. Owens-Corning Fiberglass
Corp.,
283 N.J. Super. 199, 213-14, 222 (App. Div. 1995), certif.
denied,
143 N.J. 326 (1996); Caldwell v. Haynes,
136 N.J. 422,
443 (1994); Tronolone v. Palmer,
224 N.J. Super. 92, 104 (App.
Div. 1988); Jackson v. Consolidated Rail Corp.,
223 N.J. Super. 467, 479, 483-85 (App. Div. 1988); Henker v. Preybylowski,
216 N.J. Super. 513, 516-518 (App. Div. 1987); Law v. Newark Bd. of
Ed., supra,
175 N.J. Super. 26, 37-39 (App. Div. 1980); Correa
v. Maggiore,
196 N.J. Super. 273, 283, 286 (App. Div. 1978);
Lemaldi v. De Tomaso of Am., Inc.,
156 N.J. Super. 441, 450 (Law
Div. 1978).
Footnote: 6 6 McKenna v. Pac. Rail Serv.,
817 F.Supp. 498, 503, 511-12,
514-515, 518-19 (D.N.J. 1993); Carrino v. Novotny,
78 N.J. 355,
366-67 (1979); Baxter v. Fairmont Food Co.,
74 N.J. 588, 603
(1977); Leimgruber v. Claridge Assoc. Ltd.,
73 N.J. 450, 459, 461
(1977); Sweeney v. Pruyne,
67 N.J. 314, 315 (1975); Rose v. Port
of N.Y. Auth.,
61 N.J. 129, 140 (1972); Dombroski v. City of
Atlantic City,
308 N.J. Super. 459, 473-74 (App. Div. 1998);
Adams v. Cooper Hosp.,
295 N.J. Super. 5,14 (App. Div. 1996),
certif. denied,
148 N.J. 463 (1997); Crego v. Carp,
295 N.J.
Super. 565, 577-78 (App. Div. 1996); Monheit v. Rottenberg,
295 N.J. Super. 320, 327-28 (App. Div. 1996); Nowacki v. Comm. Med.
Ctr.,
279 N.J. Super. 276, 292-93 (App. Div. 1995); Goss v. Am.
Cyanamid, Co.,
278 N.J. Super. 227, 239, 242, 245 (App. Div.
1994); Glowacki v. Underwood Mem'l Hosp.,
270 N.J. Super. 1, 14
(App. Div. 1994); Lesniak by Lesniak v. Bergen County,
219 N.J.
Super. 468, 477 (App. Div. 1987), reversed and remanded for new
damages trial by,
117 N.J. 12 (1989); Tonsberg v. VIP Coach
Lines, Inc.,
216 N.J. Super. 522, 531-32 (App. Div. 1987); Amaru
v. Stratton,
209 N.J. Super. 1, 20-22 (App. Div. 1985); Ackerman
v. Kramer Chemical Co.,
158 N.J. Super. 128, 130 (App. Div.
1978); Zalewski v. Gallagher,
150 N.J. Super. 360, 371 (App. Div.
1977).
Footnote: 7 7Obviously, that governing principle must yield in cases
where the issue of damages for some reason is so interrelated
with liability that one cannot be retried alone without working
an injustice. See Ahn v. Kim,
145 N.J. 423, 434-435 (1996)
(holding that whether issues are separable so as to warrant
partial retrial is fact sensitive).