Berkowitz v. Soper, 443 N.J. Super. 391 (App. Div. 2016). In this auto accident case, defendant was unexpectedly hospitalized for a “heart issue” two business days before trial was to begin. Defendant sought to adjourn the trial briefly so that she could testify there, or at least be present. That was her first request for an adjournment. The Law Division denied that request, believing that only the Presiding Judge of the Civil Division could grant an adjournment so late in the game. As a result, defendant was unable to appear at trial or to have her deposition taken de bene esse for use at the trial.
After a three-day trial, in which plaintiff obtained a directed verdict on liability, and defendant’s lone witness was a doctor who testified only about the nature and extent of plaintiff’s injuries, the jury deliberated for 96 minutes and then awarded plaintiff $2 million in compensatory damages for pain and suffering. The trial judge denied defendant’s motions for a new trial or remittitur, and tacked on attorneys’ fees because defendant had not accepted plaintiff’s offer of judgment for $30,000.
Defendant appealed, complaining of the denial of the requested trial adjournment, erroneous evidence rulings, and the excessiveness of the verdict. In an opinion by Judge Fuentes, the Appellate Division agreed with defendant and reversed, finding a “clear miscarriage of justice.”
Judge Fuentes first addressed the trial adjournment issue. Rule 4:36-3(b) provides that “[a]n initial request for an adjournment for a reasonable period of time to accommodate … the unavailability of … a party … shall be granted if made timely in accordance with this rule…. Requests for adjournment should be made as soon as the need is known ….” Nothing in that rule gives exclusive adjournment power to the Presiding Judge, Civil. Judge Fuentes cited another rule that expressly gives certain power only to a Presiding Judge, and noted the telling contrast with Rule 4:36-3(b), which does not contain such language.
The trial judge’s mistaken view that only the Presiding Judge could grant defendant’s emergent motion for an adjournment was error. That error caused serious prejudice to defendant, since she “was the only witness who could have provided the jury with an alternative account of what caused the accident, and more particularly, the severity of the impact.”
There were photos that showed that the impact was a relatively minor one, but without defendant available to authenticate the pictures, they could not be put into evidence. Given what Judge Fuentes found was the excessiveness of the verdict, as discussed below, he found it “reasonable to conclude the jury may have been unduly influenced by the one-sided account of the severity of the collision.”
The denial of the trial adjournment was not the only error, however. Plaintiff’s counsel’s opening statement told the jury what defendant would say “if she testifies.” But it was already known that defendant was hospitalized and would not testify. Moreover, plaintiff’s counsel’s version of what defendant would say went against what defendant, who had not been deposed, said in answers to interrogatories.
Plaintiff’s counsel also talked about what doctors had said about plaintiff’s need for surgery, while knowing “with absolute certainty” that no doctor would testify on that subject. Such “deliberate misrepresentation of the evidence he expected to produce at trial constitutes a violation of the duty of candor an attorney is bound to follow in an opening statement.” All this was compounded by improper opinion testimony that plaintiff offered on medical issues when he was not an expert and had no right to so testify.
Finally, Judge Fuentes ruled that the amount of the verdict was clearly excessive. He carefully laid out the very deferential standard of review that applies to a jury’s decision “to equate damages with dollars,” and to a trial judge’s “feel of the case” in ruling on post-trial motions seeking remittitur.
But the trial judge had not followed the directives of He v. Miller, 207 N.J. 230 (2011), in ruling on remittitur, and the “trial was saturated with inadmissible opinion testimony from plaintiff that irreparably tainted the jury’s ability to reach a sustainable verdict.” Defendant’s absence only compounded the problem. Accordingly, the verdict was reversed, and the case was remanded for a new trial on both liability and damages.