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Appellate Division Reverse $2 Million Verdict Due to Multiple Evidential Trial Rulings

By on January 29, 2016 in Blog with 0 Comments

In the recent published decision of Berkowitz v. Soper, 2016 N.J. Super. LEXIS 13 (App. Div. 2016), the Appellate Division reversed a $2 million jury verdict due to multiple errors made by the trial judge. This case involved a rear end collision between the plaintiff Joseph Berkowitz and Susan Soper. The plaintiff alleged back pain due to lumbar disc compression and bulges.

The defendant appealed the verdict, claiming that the trial judge committed multiple reversible errors in the course of deciding a series of evidential issues during the trial. The first error claimed was the failure to adjourn the trial due to an unforeseen medical emergency of the defendant which landed her in the hospital just prior to trial.

The trial had been adjourned 5 times previously. On the trial date, the defense counsel advised the court that 4 days previously, the defendant had been hospitalized for a heart issue and requested a brief adjournment to allow her to testify. Although this accident was a rear end collision, she would have been able to testify to the nature of the impact and identify photographs depicting the lack of damage to her car.

Despite the legitimate reasons offered to justify an adjournment, the trial judge mistakenly believed that only the Presiding Judge of the Civil Division had the authority to adjourn the trial date. However, the Appellate Division pointed out that the pertinent court rule does not limit this authority to only the Presiding Judge. The denial of this adjournment under the circumstances was inconsistent with “the fundamental principles of the justice and fairness that must guide all judicial decisions.”

Moreover, the court also disagreed with the trial judge’s assessment as to the lack of prejudice to the defendant. Due to her inability to attend the trial, she was unable to present an alternative account as to what caused the accident and, in particular, the severity of the impact. Given the excessiveness of the compensatory damage award, the court concluded that it is reasonable to assume that the jury may have been influenced by such a one-sided version of the collision.

Other trial errors consisted of the plaintiff and his attorney making multiple comments to the jury concerning his need for surgery, despite the lack of medical testimony on this point. In the plaintiff’s opening statement, he specifically made reference to the plaintiff’s neurologist having told the plaintiff that his choices were either to live with the pain or have surgery. However, the plaintiff’s attorney knew that he would not be calling the neurologist to testify. The Appellate Division found that such a deliberate misrepresentation of the evidence violated the attorney’s duty of candor.

Additionally, the plaintiff, in his testimony, continued to refer to advice he received from his doctors that he would need surgery – despite the trial judge’s admonition to the plaintiff that he should not refer to advice given to him by his doctors.

The appeals court also found that the jury verdict was excessive. This accident was the plaintiff’s third accident in 9 years. The plaintiff’s expert witness testified that this accident exacerbated the preexisting injuries from his other accidents and that the plaintiff now had radiculopathy consisting of pain radiating down from the lumbar region of his spine to his right leg.

The Appellate Division reviewed the standard the trial judges are to follow in determining whether a verdict is excessive. The judge is not to substitute his or her judgment for the jury. On an appellate level, the court must defer to the trial court judge who has the “feel of the case.” To determine whether the verdict is legally sustainable, the trial court judge must review a representative sampling of jury awards involving similar cases. This information would guide the trial judge in deciding whether the award was so wide of its mark that it constituted a miscarriage of justice.

Here, the trial judge did not follow this approach. The trial judge was candid in admitting that he did not know “of any of the cases or the people involved in them that were cited by either party” in terms of the analysis. He solely based his decision on the plaintiff’s life expectancy and his socioeconomic status.

Despite the lack of an economic claim, the trial court found that in considering the plaintiff’s lifestyle, an award of $2 million was “not an absurd amount.”  When considering how the injury would affect the plaintiff’s religious practices and his responsibility as a parent and spouse, the trial judge found that the award was generous but “did not shock the conscience.”

The Appellate Division overturned the verdict. It found that the trial was “saturated” with incompetent, inadmissible testimony from the plaintiff that irreparably tainted the jury’s verdict. Further, the defendant’s involuntary absence from the trial compounded this prejudice. Allowing the verdict to stand would be a miscarriage of justice. Hence, the Appellate Division reversed and remanded for a new trial on both liability and damages.

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About the Author

About the Author:

Ms. Ramos is an Executive Committee Member and Co-Chair of the Litigation Department at Capehart Scatchard, P.A. located in Mount Laurel, New Jersey. She is an experienced litigator with over 25 years experience handling diverse matters. Practice areas include tort defense, business litigation, estate litigation, tort claims and civil rights defense, construction litigation, insurance coverage, employment litigation, shareholder disputes, and general litigation.

For the years 2020 and 2021, Ms. Ramos was selected for inclusion in The Best Lawyers in America© in the practice area of Litigation - Insurance. The attorneys on this list are selected based upon the consensus opinion of leading lawyers about the professional abilities of their colleagues within the same geographical area and legal practice area. A complete description of The Best Lawyers in America© methodology can be viewed via their website at: https://www.bestlawyers.com/methodology.

In 2021, Capehart Scatchard and Ms. Ramos received the “Best Law Firm” ranking in the area of Litigation – Insurance (Metro, Tier 3) published by U.S. News & World Report and Best Lawyers®. Law firms included on the list are recognized for professional excellence with consistently impressive ratings from clients and peers. To be eligible for a ranking, a firm must have at least one attorney who has been included in the current edition of Best Lawyers in America, which recognizes the top five percent of practicing lawyers in the United States. Betsy Ramos (Litigation – Insurance) was recognized for this prestigious award in the 2021 edition. For a description of the “Best Law Firm” selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

“Best Law Firms” is published by Best Lawyers in partnership with U.S. News & World Report. For a description of the selection methodology please visit: https://bestlawfirms.usnews.com/methodology.aspx.

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