Ramon Cuevas v. Wentworth Group(075077) ( 2016 )

SYLLABUS
(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
interest of brevity, portions of any opinion may not have been summarized).
Ramon Cuevas v. Wentworth Group (A-30-14) (075077)
Argued March 15, 2016 -- Decided September 19, 2016
ALBIN, J., writing for a unanimous Court.
At issue is whether the trial court properly denied defendants’ remittitur motion.
Plaintiffs Ramon and Jeffrey Cuevas are brothers who were employees of defendant Wentworth Property
Management Corporation (Wentworth). In May 2005, Michael Mendillo, president and chief executive officer of
Wentworth, hired Ramon to serve as a regional vice president -- the only one of Hispanic descent. In December 2005,
Wentworth hired Ramon’s brother Jeffrey as a portfolio manager. Jeffrey was promoted to executive director in July
2007. In the new position, Jeffrey reported directly to defendant Arthur Bartikofsky, Wentworth’s executive vice
president of operations. Ramon also reported to Bartikofsky.
Plaintiffs claim that they encountered racial discrimination and a hostile work environment while under
Bartikofsky’s supervision. Many of the degrading remarks directed at Ramon occurred at senior executive meetings,
where Mendillo, Bartikofsky, Alan Trachtenberg (in-house counsel), other executives, and regional vice presidents were
present. For example, Ramon recalled that when lunch was served, Bartikofsky, and others, would comment about the
lack of “Mexican restaurants in the area” and the inability to “get burritos or tacos.” When Ramon talked about his cat,
someone quipped, “I figured you had a little Taco Bell Chihuahua dog.” Jeffrey corroborated most of his brother’s
account. When Jeffrey complained to Trachtenberg, he replied that Jeffrey should “calm down” and that the remarks
should not be taken “so seriously.”
Within the next month, both Ramon and Jeffrey were terminated. Plaintiffs filed an action under New Jersey’s
Law Against Discrimination (LAD) claiming that they were victims of race-based discrimination, a hostile work
environment, and retaliatory firings. Ramon also claimed that Wentworth failed to promote him based on his race. In
its defense, Wentworth contended that plaintiffs were terminated for poor work performance. Mendillo and
Bartikofsky, as well as other Wentworth employees, testified that they neither made nor heard any racially inappropriate
remarks concerning plaintiffs. The case was tried before a jury, which returned a verdict against defendants on all
claims other than Ramon’s failure-to-promote claim. The jury awarded overall damages in the amount of $2.5 million
to the two brothers, including $800,000 in emotional-distress damages to Ramon and $600,000 in emotional-distress
damages to Jeffrey. The trial court rejected defendants’ post-trial motions to vacate the jury’s verdict and the damages
award. In particular, the court denied defendants’ motion for a remittitur of the emotional-distress damages. In doing
so, the court distinguished the comparable cases and verdicts selected by defendants. In the court’s view, the award fell
far short of one that would be shocking to the conscience. The trial judge also stated that she would refrain from
applying her own feel for the case under He v. Miller, 207 N.J. 230 (2011).
Defendants appealed. In an unpublished opinion, a panel of the Appellate Division affirmed the emotional-
distress damages awards essentially for the reasons expressed by the trial court. The panel rejected defendants’
argument that, in a LAD case, only nominal damages may compensate for emotional distress when there is no
independent corroborative proof or a showing of resulting physical or psychological symptoms. It maintained that, in a
discrimination case, a plaintiff may recover damages for emotional distress and mental anguish damages arising out of
embarrassment, humiliation, and other intangible injuries without accompanying medical proof. The Court granted
defendants’ petition for certification limited to the issue of whether the trial court erred in denying defendants’ request
for remittitur. 220 N.J. 266 (2015).
HELD: A judge should not rely on personal knowledge of other verdicts or comparative-verdict methodology when
deciding a remittitur motion. In this case, the trial judge did not rely on personal knowledge of other verdicts or
comparable verdicts presented by the parties in deciding the remittitur motion, but rather on the record before her. The
denial of remittitur here conforms to the deferential standard of review of a jury’s award of damages.
1. When a court is persuaded that a new trial must be granted based solely on the excessiveness of the jury’s damages
award, it may enter a remittitur reducing the award to the highest amount that could be sustained by the evidence. The
plaintiff may either accept the award as remitted by the court or proceed with a new damages trial before another jury.
Courts must exercise the power of remittitur with great restraint because the jury is charged with the responsibility of
deciding the merits of a civil claim and the quantum of damages to be awarded. Determining an award that properly
compensates an accident victim for pain and suffering or the victim of racial discrimination for emotional distress is not
susceptible to scientific precision. A permissible award may fall within a wide spectrum of acceptable outcomes. (pp.
22-24)
2. A jury’s verdict is cloaked with a presumption of correctness. That presumption 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, the court must give due regard to the opportunity of the jury to pass upon the credibility of the
witnesses. A court must view the evidence in the light most favorable to the plaintiff. The standard for reviewing a
damages award that is claimed to be excessive is the same for trial and appellate courts, with one exception -- an
appellate court must pay some deference to a trial judge’s “feel of the case.” That is because it 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. (pp. 24-26)
3. Here, the trial judge said she would refrain from applying her own feel of the case. Apparently, she was reluctant to
assess whether the jury returned an excessive damages award based on her personal experiences as a practicing attorney
or as a judge. The trial judge made the right decision by not injecting her own experiences as a benchmark for
evaluating the damages award. She observed that the jurors were attentive throughout the trial, understood their charge,
and carefully apportioned and set the amount of punitive damages. She concluded that the jury had the opportunity to
assess the testimony of all witnesses and that the jury evidently found plaintiffs to be more credible. The Court agrees
with defendants that the trial judge’s findings are not entitled to any special deference, but also agrees with the trial
judge that the jury’s findings must be accorded deference. (pp. 26-27)
4. In He, supra, the Court expressed approval of a trial judge relying on his own experience with personal-injury
verdicts as a litigator and judge in determining whether a pain-and-suffering award returned by a jury shocked the
judicial conscience. That approach may have been suggested by prior case law. However, the Court now concludes
that a trial judge’s reliance on her personal experiences as a practicing attorney or jurist in deciding a remittitur motion
is not a sound or workable approach. The shock-the-judicial-conscience standard is objective and transcends any
individual judge’s personal experiences. If the trial judge’s personal experiences as a private practitioner and jurist
were to be given weight in deciding a remittitur motion, then the same collective experiences of the appellate judges and
Supreme Court Justices engaged in a de novo review would likewise be given weight. If that standard applied, then,
arithmetically, the experiences of seven members of this Court would always outweigh those of a single trial judge.
To the extent possible, judges must administer an objective judicial standard. Accordingly, a judge’s personal
experiences with seemingly similar cases while in practice and on the bench are not relevant in deciding a remittitur
motion. (pp. 27-31)
5. The comparison of supposedly similar verdicts to assess whether a particular damages award is excessive is a futile
exercise that should be abandoned. Courts should focus their attention on the record of the case at issue in determining
whether a damages award is so grossly excessive that it falls outside of the wide range of acceptable outcomes. The
facts and plaintiffs in every personal-injury or LAD case are fundamentally different and therefore a true comparative
analysis is illusory. The accounts of jury verdicts reported in the New Jersey Law Journal and other publications, and
even unreported decisions of the Appellate Division, are just summaries. Summaries cannot compare to what a jury
hears from a witness on the stand. Juries and judges will often have different opinions about what constitutes a
sufficient monetary award to compensate a victim for pain and suffering following a tortious injury. The realization that
a wide range of potential awards is permissible counsels for judicial restraint. At oral argument before this Court,
counsel suggested that attorneys are inundating trial courts with comparable verdicts on remittitur motions. Having trial
courts review snippets of information about cases that are not truly comparable is not a worthwhile use of judicial
resources, nor likely to bring greater justice to either plaintiffs or defendants. Therefore, the Court disapproves of the
comparative-case analysis in deciding remittitur motions. Judges know the nature of emotional distress and the function
of money and that correlating the two to arrive at a fair and reasonable award of damages requires a high order of
human judgment. 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. (pp. 31-39)
6. The Court agrees that the trial court properly denied defendants’ remittitur motion. Because of the special harm
caused by willful discrimination in the workplace, compensatory damages for emotional distress, including humiliation
and indignity, are remedies that require a far less stringent standard of proof than that required for a tort-based
emotional distress cause of action. Plaintiffs in this case were entitled to recover all natural consequences of
defendants’ wrongful conduct, including emotional distress and mental anguish damages arising out of embarrassment,
humiliation, and other intangible injuries. Plaintiffs did not offer expert testimony to buttress their emotional-distress
damages claims, and because they did not do so, the court correctly did not charge the jury on emotional-distress
damages projected into the future. Although both plaintiffs held important positions at Wentworth, they were referred
to as Chihuahuas, Latin lovers, and the “Rico Suave brothers.” The mental anguish and humiliation here were sustained
over a long period, and were not fleeting or insubstantial. Although these awards are probably on the high end, they
were not so wide of the mark that they shock the judicial conscience. (pp. 39-42)
The judgment of the Appellate Division, which upheld the trial court’s denial of defendants’ remittitur motion,
is AFFIRMED.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and
SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE ALBIN’s opinion.
2
SUPREME COURT OF NEW JERSEY
A-30 September Term 2014
075077
RAMON CUEVAS and JEFFREY
CUEVAS,
Plaintiffs-Respondents,
v.
WENTWORTH GROUP, WENTWORTH
PROPERTY MANAGEMENT
CORPORATION, and ARTHUR
BARTIKOFSKY,
Defendants-Appellants.
Argued March 15, 2016 – Decided September 19, 2016
On certification to the Superior Court,
Appellate Division.
John D. North argued the cause for
appellants (Greenbaum, Rowe, Smith & Davis,
attorneys; Mr. North, Paul A. Rowe, Gary K.
Wolinetz, and Maja M. Obradovic, on the
briefs).
Darren J. Del Sardo argued the cause for
respondent Ramon Cuevas (Damico, Del Sardo &
Montanari, attorneys; Mr. Del Sardo and
Jayna B. Patel, on the brief).
John J. Piserchia argued the cause for
respondent Jeffrey Cuevas.
Natalie H. Mantell argued the cause for
amicus curiae New Jersey Defense Association
(Gibbons, attorneys; Ms. Mantell, Christine
A. Amalfe, Suzanne H. Brock, and Mario J.
Delano, of counsel and on the brief).
1
Amos Gern argued the cause for amicus curiae
New Jersey Association for Justice (Starr,
Gern, Davison & Rubin, attorneys; Mr. Gern
and Robert C. Sanfilippo, on the brief).
Richard M. Schall argued the cause for
amicus curiae National Employment Lawyers
Association of New Jersey (Schall & Barasch,
attorneys).
JUSTICE ALBIN delivered the opinion of the Court.
The preeminent role that the jury plays in our civil
justice system calls for judicial restraint in exercising the
power to reduce a jury’s damages award. A court should not
grant a remittitur except in the unusual case in which the
jury’s award is so patently excessive, so pervaded by a sense of
wrongness, that it shocks the judicial conscience.
In He v. Miller, 207 N.J. 230 (2011), this Court restated
familiar principles that animate our remittitur jurisprudence.
The He Court expressed that a jury verdict is presumed to be
correct and entitled to substantial deference, that the trial
record underlying a remittitur motion must be viewed in the
light most favorable to the plaintiff, and that the judge does
not sit as a decisive juror and should not overturn a damages
award falling within a wide acceptable range -- a range that
accounts for the fact that different juries might return very
different awards even in the same case.
At issue in this case are not those fundamental principles
governing remittitur jurisprudence, but rather how those
2
principles found expression in the He decision. The He Court
held that a trial judge could rely on both his personal
knowledge of verdicts as a practicing attorney and jurist and
“comparable” verdicts presented by the parties in deciding a
remittitur motion.
Although this Court’s pre-He decisions may have opened the
door to a judge’s reliance on personal knowledge of other
verdicts and on purportedly comparable verdicts presented by the
parties in deciding whether to remit a pain-and-suffering
damages award, we now conclude that such an approach is not
sound in principle or workable in practice.
A judge’s personal knowledge of verdicts from experiences
as a private practitioner or jurist is information outside the
record and is not subject to the typical scrutiny evidence
receives in the adversarial process. The cohort of cases within
a judge’s personal knowledge may not be statistically relevant
and the reliability of the judge’s knowledge cannot be easily
tested. A judge therefore should not rely on personal knowledge
of other verdicts. The standard is not whether a damages award
shocks the judge’s personal conscience, but whether it shocks
the judicial conscience.
We also disapprove of the comparative-verdict methodology
that allows parties to present supposedly comparable verdicts
based on case summaries. The singular facts and particular
3
plaintiffs in different cases that lead to varying awards of
damages are not easily susceptible to comparison. That is
especially so because the information about other seemingly
similar verdicts is very limited. A true comparative analysis
would require a statistically satisfactory cohort of cases and
detailed information about each case and each plaintiff. That
information is unlikely to be available, and therefore any
meaningful comparative approach would be impracticable to
implement.
With those constraints in mind, remittitur remains a
judicial remedy to correct a grossly disproportionate damages
award, which, if left intact, would constitute a miscarriage of
justice.
In this case, the trial court denied a remittitur motion to
reduce the jury’s award of emotional-distress damages to two
victims of workplace discrimination. The trial judge did not
rely on personal knowledge of other verdicts or comparable
verdicts presented by the parties in deciding the remittitur
motion but rather on the record before her.
The Appellate Division upheld the emotional-distress
damages award, and we affirm. The denial of remittitur here
conforms to the deferential standard of review of a jury’s award
of damages.
I.
4
Plaintiffs Ramon and Jeffrey Cuevas are brothers who were
employees of defendant Wentworth Property Management Corporation
(Wentworth). During their employment at Wentworth, plaintiffs
claim that they were routinely subject to racially disparaging
and humiliating remarks by Wentworth executives, and
particularly by Arthur Bartikofsky, Wentworth’s executive vice
president of operations. They contend that after complaining
about this debasing treatment, they were terminated from their
employment.
Plaintiffs filed an action under New Jersey’s Law Against
Discrimination (LAD), N.J.S.A. 10:5-1 to -49, claiming that they
were victims of race-based discrimination, a hostile work
environment, and retaliatory firings. Ramon additionally
claimed that Wentworth failed to promote him based on his race
in violation of the LAD. Named as defendants in this action are
Wentworth, the Wentworth Group (the parent company), and
Bartikofsky.
The case was tried before a jury, which returned a verdict
against defendants on all claims other than Ramon’s failure-to-
promote claim. The jury awarded overall damages in the amount
of $2.5 million to the two brothers, including $800,000 in
emotional-distress damages to Ramon and $600,000 in emotional-
distress damages to Jeffrey. The trial court denied defendants’
motion for a remittitur of the emotional-distress damages, and
5
the Appellate Division affirmed. The only issue before this
Court is whether the trial court properly denied the remittitur
motion.
Judicial review of the correctness of a jury’s damages
award requires that the trial record be viewed in the light most
favorable to plaintiffs. Besler v. Bd. of Educ. of W. Windsor-
Plainsboro Reg’l Sch. Dist., 201 N.J. 544, 577 (2010). We
present the facts in accordance with that deferential standard.
A.
Wentworth is a property-management company, and the
Wentworth Group is the parent entity. Michael Mendillo was the
president and chief executive officer of Wentworth and the owner
of the Wentworth Group. In May 2005, Mendillo hired Ramon to
serve as one of Wentworth’s regional vice presidents -- the only
one of Hispanic descent. In that role, Ramon managed high-rise
buildings and townhouse developments. Over time, Ramon’s role
grew from managing nine to eventually twenty-four properties.
In December 2005, Wentworth hired Ramon’s brother Jeffrey
as a portfolio manager overseeing six Wentworth properties.
Jeffrey’s success in that position led to his promotion to
executive director in July 2007. In that new position, Jeffrey
reported directly to defendant Bartikofsky, who several months
earlier had begun supervising Ramon. According to Ramon,
Wentworth was “thrilled” with the profits and growth that he
6
brought to the company, that is, before Bartikofsky became his
supervisor.
Plaintiffs claim that they encountered racial
discrimination and a hostile work environment during
Bartikofsky’s supervisory reign over them. During this period,
they routinely faced biting remarks that invoked racially
demeaning stereotypes. Many of the degrading remarks directed
at Ramon occurred at senior executive meetings. Present at
those meetings were Mendillo, Bartikofsky, Alan Trachtenberg
(in-house counsel), other executives, and regional vice
presidents.
Ramon recalled that when lunch was served at meetings,
Bartikofsky, and others, would comment about the lack of
“Mexican restaurants in the area” and the inability to “get
burritos or tacos.” At a meeting when music was played, someone
interjected, “Do you think we could get a little Mariachi or
salsa music in the background” -- “something a little more to
Ramon’s taste?” At a conference to discuss entertainment, a
participant chimed in that Ramon should look through his Rolodex
because he might know “a salsa band, a Mariachi band that can
perform.” Although Ramon attempted to deflect these hurtful
comments, he was embarrassed, particularly when they were made
in the company of people he supervised.
7
At one meeting at a restaurant, one of the participants
joked that a Hispanic busboy looked like Ramon’s “twin” brother.
On such an occasion, Bartikofsky stated that if he did not pick
up the check, “Ramon can join his father [in the back] and you
guys can wash dishes.” In such an instance, Ramon explained he
would offer a comeback line, such as “[M]y dad happens to have
his own business,” but if you need help with the check, “I have
my credit card.” On some occasions, however, he did not want to
sound defensive and said nothing, and on other occasions he
said, “Enough.”
The abuse, however, continued. When Ramon came to the
office explaining that he had to fix a flat tire, someone
suggested that if a “Puerto Rican” were observed with a crowbar
kneeling by a car, he might be mistaken as “trying to steal the
car or the hubcaps.” When Ramon talked about his cat, someone
quipped, “I figured you had a little Taco Bell Chihuahua dog.”
After a networking event in Newark, a person stated, “I’m going
to walk with Ramon . . . because he’s with his people, and . . .
I’m sure he has a switchblade[.]” Two former property managers
for Wentworth testified that Bartikofsky made comments that they
would be safe in bad neighborhoods when accompanied by Ramon
because “he’s one of them” and because he was “Spanish.”
Ramon testified that the stream of belittling remarks
“chopped [him] down day by day, month by month,” leaving him
8
“feeling helpless.” Instead of focusing on his accomplishments,
the Wentworth executives turned him into a punch line. He did
not file a formal complaint because the offensive remarks were
made by or in the presence of senior executives in the company,
including the company’s president, the executive vice president,
the human resources officer, and the in-house counsel. Ramon
felt he had nowhere to go and was afraid of losing his
livelihood and insurance coverage.
Jeffrey corroborated much of his brother’s account.
Jeffrey testified that Wentworth executives made many ethnically
disparaging remarks about his Hispanic heritage. According to
Jeffrey, the executives joked that they would have to order
twice as much Mexican food and hire a salsa band because of
plaintiffs. In addition, they referred to Ramon and Jeffrey as
the two Chihuahuas. Jeffrey stated that Bartikofsky called
Ramon and him the “Rico Suave brothers,” and that Darlene
Rasmussen, the director of human resources, referred to them as
“Latin lover[s].”1 To his mind, that last remark was
particularly “grotesque” and demeaning because it came from the
human resources director.
1 “Rico Suave” is a song performed by Gerardo that describes the
tribulations of a “Latin lover.” Gerardo, Rico Suave, on
Mo’Ritmo (Interscope 1991).
9
By November 30, 2007, Jeffrey had reached his boiling
point. On that day, he told Trachtenberg, the in-house counsel,
“I really would like it if those comments at these executive
meetings could stop.” In speaking with Trachtenberg, Jeffrey
described the repetitive offensive remarks as “silly,”
“childish,” and “degrading.” Trachtenberg replied that Jeffrey
should “calm down” and that the remarks were “good[-]natured
ribbing,” not “that big a deal,” and should not be taken “so
seriously.” Jeffrey made it clear that he and his brother took
the matter seriously and wanted the harassing behavior to end,
and warned, “I’d really rather not have to take this to the next
level.”2
Four days later, on December 4, Bartikofsky and Wentworth’s
vice president of business development walked into Jeffrey’s
office and fired him. Shocked, Jeffrey responded that he was
given a performance-based raise of $10,000 just four weeks
earlier. Bartikofsky stated that “the company [was] going in a
different direction” and ordered him to clear out his desk and
leave the premises immediately.
Ramon was “stupefied” to learn of his brother’s firing.
Ramon called Mendillo to complain about the lack of “process” in
the decision to terminate Jeffrey.
2 Trachtenberg denied that Jeffrey ever complained to him.
10
On New Year’s Day 2008, Ramon received a telephone call
from Bartikofsky, who said that they needed to meet at the
Cheesequake Rest Area located off the Garden State Parkway.
Ramon dutifully went there. On his arrival, Bartikofsky,
accompanied by a Wentworth associate, walked up to Ramon and
handed him an envelope. Bartikofsky told Ramon not to “bother
sitting down, you’re terminated.” The letter inside the
envelope indicated that Ramon was fired for losing five accounts
and for soliciting a kickback from one of Wentworth’s vendors.
Ramon denied any involvement in a kickback scheme and indicated
he had never received a reprimand while employed at Wentworth.
Ramon and Jeffrey testified concerning the emotional
distress they suffered as a result of the workplace harassment
and the retaliatory firings.
Ramon stated that, while working at Wentworth, he felt
“beaten down,” “despondent,” and a loss of self-confidence. He
was too “embarrassed” to discuss the daily humiliations with his
wife, and he became edgy, and the two would fight. Just months
after Wentworth fired him, his wife filed for divorce. After
his termination, he became depressed and worried about his
financial security and the effect the firing would have on his
reputation. Ramon, however, never received treatment from a
mental health professional.
11
Jeffrey testified that the shabby treatment he received at
Wentworth was “extremely degrading,” affected his “psyche,” and
ruined his “self-confidence.” He questioned whether people
would judge him based on his skills and ability or merely based
on his nationality and skin color. He expressed that the firing
tarnished his reputation and that he felt as though he was
“limping” his way through life. He described the firing as “so
humiliating, so embarrassing” and recalled the pain of returning
home to his wife and daughter, just weeks before Christmas,
without a job to support his family. He fell into a depression
but did not seek mental-health counseling.
In its defense, Wentworth contended that plaintiffs were
terminated for poor work performance. Mendillo, however, could
not produce any documents to substantiate his claim that
Wentworth had received client complaints about Ramon. Mendillo
also disputed that Jeffrey’s pay raise -- given just weeks
before his termination -- was performance related. Mendillo
also asserted that Ramon’s termination was based on his
solicitation of a kickback from one of its vendors, Premier
Security. The former vice president of that company testified
that Ramon sought a percentage from Premier’s account for work
with Wentworth.
Mendillo and Bartikofsky, as well as other Wentworth
employees, testified that they neither made nor heard any
12
racially inappropriate remarks concerning plaintiffs. Mendillo
stated that twenty percent of Wentworth’s employees and forty
percent of Wentworth Group’s employees were Hispanic. He denied
that Hispanic employees were subject to discrimination.
B.
The jury returned a verdict in favor of plaintiffs on their
racial discrimination, hostile-work-environment, and retaliation
claims, but found against Ramon on his failure-to-promote claim.
The jury awarded Ramon $632,500 for past lost earnings;
$400,000 for future lost earnings; $800,000 in emotional-
distress damages; and $52,500 in punitive damages ($50,000
allocated to Wentworth and $2500 allocated to Bartikovsky). The
court also awarded Ramon $253,284 in attorneys’ fees and costs.
The jury awarded Jeffrey $150,000 for past lost earnings;
$600,000 in emotional-distress damages; and $32,500 in punitive
damages ($30,000 allocated to Wentworth and $2500 allocated to
Bartikovsky). The court also awarded Jeffrey $276,243 in
attorneys’ fees and costs, and an additional $6213 to account
for the negative tax impact resulting from Jeffrey’s back-pay
award.
The trial court rejected defendants’ post-trial motions to
vacate the jury’s verdict and the damages award. In particular,
the court denied defendants’ motion for a remittitur of the
emotional-distress damages awarded to plaintiffs. In doing so,
13
the court distinguished the “comparable” cases and verdicts
selected by defendants. The court began its analysis with the
presumption of correctness that attaches to a jury verdict. The
court determined that, given the evidence presented, the
emotional-distress damages award did not shock the judicial
conscience and dismissed the notion that this was “a case of a
runaway jury.” In the court’s view, the award fell far short of
one that would be “shocking to the conscience.”
The court observed that the jury was composed of seven
individuals of diverse backgrounds, who were “extremely
attentive throughout the trial” and who “fully understood” their
charge. It pointed out that the jury failed to find in favor of
Ramon’s failure-to-promote claim and acted reasonably in
apportioning and fixing an amount for punitive damages. The
court noted that both the court and the jury “had the
opportunity to observe both plaintiffs and assess their
credibility.” Both plaintiffs, according to the court,
“presented extremely well. They appeared to be genuine,
earnest, and credible in their presentation of their testimony.
They were articulate and extremely well spoken.” According to
the court, the verdict indicated that “the jury found plaintiffs
to be more likely than not credible.”
The trial judge stated that she would “refrain from
applying [her] own feel for the case under He v. Miller.” She
14
explained: “I’ve been a proud member of the judiciary for only
a year and a half, which I believe hardly leaves me in a
position where I can appropriately apply my feel of the case.”
She expressed that she was certainly “qualified to hear this
case” and, in fact, had handled a number of LAD cases as an
attorney practicing in the field of labor and employment law.
Nevertheless, she concluded, “I simply do not think that as a
judge I can apply . . . my feel for the case.”
Defendants appealed.
C.
In an unpublished opinion, a panel of the Appellate
Division affirmed the emotional-distress damages awards
essentially for the reasons expressed by the trial court.3 The
panel rejected defendants’ argument that, in a LAD case, only
nominal damages may compensate for emotional distress when there
is no “independent corroborative proof or a showing of resulting
physical or psychological symptoms.” It emphasized that “the
Legislature intended victims of discrimination to obtain redress
3 The panel also addressed a number of issues that are not
relevant to the appeal before this Court. The panel entered a
judgment in favor of defendants on Jeffrey’s back-pay award,
notwithstanding the verdict. The panel also vacated Ramon’s
back- and front-pay awards and remanded for a new trial on those
claims. Additionally, the panel remanded the issue of counsel
fees and costs to await the outcome of the new trial. The panel
affirmed the punitive-damages award.
15
for mental anguish, embarrassment, and the like, without
limitation to severe emotional or physical ailments,” quoting
Tarr v. Ciasulli, 181 N.J. 70, 81 (2004).
The panel explained that the standard of proof for
recovering emotional-distress damages in discrimination cases is
less stringent than the standard for recovering such damages in
a common-law intentional-infliction-of-emotional-distress case.
It maintained that, in a discrimination case, a plaintiff may
recover damages for “‘emotional distress and mental anguish
damages arising out of embarrassment, humiliation, and other
intangible injuries’ without accompanying medical proof,”
quoting Tarr, supra, 181 N.J. at 82. Thus, according to the
panel, plaintiffs were entitled to a recovery on their
emotional-distress claims, even in the absence of medical or
expert testimony supporting those claims.
Last, the panel noted that, “[d]espite the myriad of cases
cited by defendants where courts reduced damage awards in
discrimination cases, the Supreme Court has cautioned against
engaging in such comparisons and ruled that the Appellate
Division ‘must refrain from merely substituting its differing
opinion without appropriate deference to the trial court[,]’”
quoting He, supra, 207 N.J. at 236. Although the panel
acknowledged that the emotional-distress damages awards were
16
“generous,” the awards were not “so excessive or so high as to
shock the judicial conscience.”
We granted defendants’ petition for certification “limited
to the issue of whether the trial court erred in denying
defendants’ request for remittitur.” Cuevas v. Wentworth Grp.,
220 N.J. 266 (2015).4 We also granted the motions of the New
Jersey Defense Association, the National Employment Lawyers
Association of New Jersey, and the New Jersey Association for
Justice to participate as amici curiae.
II.
A.
Defendants contend that the trial court and Appellate
Division erred in not granting their remittitur motion on the
emotional-distress damages. First, they argue that the
“insensitive” remarks attributed to Wentworth’s personnel were
just “teasing” and “joking” and not “the type of behavior that
constitutes harassment and merits damages.”
Second, they maintain that, by failing to consider
comparable verdicts, the trial court did not follow the dictates
of He, supra, 207 N.J. 230. Defendants also fault plaintiffs
for not attempting to distinguish “the numerous decisions cited
4 We declined to grant certification on a number of other issues
raised by defendants in their petition. See Cuevas, supra, 220
N.J. 266. We also denied plaintiffs’ cross-petition for
certification. Cuevas v. Wentworth Grp., 220 N.J. 269 (2015).
17
by Wentworth where [excessive] emotional distress awards were
vacated or remitted” and for not pointing to any comparable LAD
award.
Third, defendants suggest that because the trial judge
refrained from “imparting her ‘feel of the case,’” her ruling
should be accorded less deference. In this light, defendants
insist that “the brevity of the trial judge’s experience [made]
the comparison to similar cases . . . even more important.”
Last, defendants submit that the Appellate Division
disregarded the mandate of He by not mentioning that comparable
cases from the judge’s own experience will provide guidance in
determining whether a damages award shocks the judicial
conscience.5
B.
5 Despite this Court’s limited grant of certification, defendants
have made part of their challenge to the denial of remittitur an
attack on the charge to the jury and plaintiffs’ summations to
which no objections were made at trial. Defendants claim that
the emotional-distress damages award should be vacated because
the court’s instructions and plaintiffs’ summations suggested
that the jury could consider the permanency of the emotional
harm caused to plaintiffs, even though no expert testimony
supported permanent harm. Notably, defendants’ attorney at
trial expressly approved of the court’s charge on emotional-
distress damages: “[T]he court’s emotional distress charge, as
written by the court, accurately indicates to the jury what
exactly they should be looking at when they’re assessing this
concept of emotional distress damages.” Additionally, the
Appellate Division found that any erroneous summation remarks by
plaintiffs’ counsel regarding the scope of emotional-distress
damages were harmless and that the jury charge was correct. In
any event, these issues are not before us.
18
Amicus New Jersey Defense Association submits that a
remittitur analysis must involve a comparison of awards in
similar cases found in reported and unreported opinions and
published in the Law Journal’s Verdict Reports to “safeguard
against excessive verdicts and ensure predictability of damages
in civil litigation.” Amicus contends that an emotional-
distress claim supported by only the testimony of the victim and
family members -- and not by medical testimony -- should be
limited to nominal damages. It describes the emotional-distress
claims in this case as “garden variety,” warranting nothing more
than nominal damages, because plaintiffs did not seek medical
treatment or present expert testimony to support their claims.
C.
Plaintiffs counter that this is not a case of harmless
teasing or offhand comments but of actionable racial harassment
and discrimination and that sufficient credible evidence in the
record supports the jury’s award of emotional-distress damages.
Plaintiffs submit that the trial judge followed the dictates of
He, supra, 207 N.J. 230, by explaining her reasons for not
granting a remittitur of the jury award. Furthermore, according
to plaintiffs, although the trial judge mentioned that she would
not impart her “feel of the case” because of her “limited
judicial experience,” she, in fact, conveyed her “feel of the
case” by commenting on the credibility of plaintiffs’ testimony
19
and on the jury’s attentiveness during the trial. Plaintiffs
urge this Court to accord deference to the trial judge’s
explanation for finding that the damages award did not shock the
judicial conscience.
D.
Amicus National Employment Lawyers Association of New
Jersey asserts that, in amending the LAD to allow recovery for
emotional-distress damages caused by discrimination, the
Legislature intended the remedy plaintiffs received in this
case. Amicus notes that “this Court has repeatedly upheld very
significant emotional distress damage award[s]” in LAD cases,
even when employees victimized by discrimination did not seek
medical or psychological treatment. Last, it argues that this
is not the unusual case envisioned by He that meets the shock-
the-conscience standard.
E.
Amicus New Jersey Association for Justice argues that a
court’s discretion to set aside a supposedly excessive award
should be based on the objective record of the case. Amicus
submits that a judge’s “feel of the case” should be afforded
“minimal weight” and should not serve as an opportunity for a
judge to substitute her observations for those that could
equally be made by the jury.
20
Amicus also proposes that trial judges should not rely on
their personal experiences in considering remittitur motions
because those experiences are outside of the record and cannot
be scrutinized through the adversarial process. It maintains
that the fate of a remittitur motion should not depend on the
fortuity of the personal experiences of the judge sitting on the
case.
Last, amicus urges this Court to abandon the practice of
having trial courts rely on “similar verdicts” to assess the
merits of a remittitur motion. It contends that information
relating to a comparable verdict is not part of the trial record
and is typically based on such limited facts that a proper
comparison is not possible. Amicus states that a grossly
excessive award will often be so glaring and obvious that a
comparative-verdict methodology is unnecessary.
III.
A court has the power to grant a remittitur of a grossly
excessive damages award returned by a jury. Here, we must give
guidance to courts on the standards that will govern review of a
jury’s award of emotional-distress damages in deciding a
remittitur motion. We begin with a brief description of
remittitur.
A.
21
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. Fertile
v. St. Michael’s Med. Ctr., 169 N.J. 481, 500 (2001). 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. Id. at 491. 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. Id.
at 491-92.
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. Johnson
v. Scaccetti, 192 N.J. 256, 279 (2007); see also N.J. Const.
art. I, ¶ 9 (“The right of trial by jury shall remain
inviolate[.]”). 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.” Johnson, supra, 192 N.J. at 279.
22
Determining an award that properly compensates an accident
victim for pain and suffering or the victim of racial
discrimination for emotional distress is “not susceptible to
scientific precision.” See ibid. There is no neat formula for
translating into monetary compensation an accident victim’s pain
and suffering or the mental anguish of a victim of invidious
racial discrimination in the workplace. See id. at 280. In a
case of workplace discrimination in violation of the LAD, jurors
are asked to exercise a high degree of discernment, through
their collective judgment, to determine the proper measure of
damages for emotional distress, which includes “embarrassment,
humiliation, indignity, and other mental anguish.” Model Jury
Charges (Civil) § 2.36, “Past and Future Emotional Distress in
an Employment Law Case” (2014). Our model jury instruction on
emotional-distress damages in discrimination cases recognizes
the inexact nature of calculating such damages. Jurors are
informed:
You each know from your common experience the
nature of emotional distress and you also know
the nature and function of money. The task of
equating the two so as to arrive at a fair and
reasonable award of damages requires a high
order of human judgment. For this reason, the
law can provide no better yardstick for your
guidance than your own impartial judgment and
experience.
[Ibid.]
23
Although a successful plaintiff in a discrimination action
“is entitled to fair and reasonable compensation for any
emotional distress,” ibid., “reasonable people may differ on
what is fair compensation in any particular case,” see Johnson,
supra, 192 N.J. at 280. Because no two juries likely will award
the same damages for emotional distress in a discrimination
case, a permissible award may fall within a wide spectrum of
acceptable outcomes. Within that acceptable broad range, even a
seemingly high award should not be disturbed; only if the award
is one no rational jury could have returned, one so grossly
excessive, so wide of the mark and pervaded by a sense of
wrongness that it shocks the judicial conscience, should a court
grant a remittitur. Johnson, supra, 192 N.J. at 279-83; see
also Jastram v. Kruse, 197 N.J. 216, 235 (2008) (“To be sure . .
. this was a high verdict, but that does not mean it was
excessive.”).
A jury’s verdict, including an award of damages, is cloaked
with a “presumption of correctness.” Baxter v. Fairmont Food
Co., 74 N.J. 588, 598 (1977). 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.” Id. at 596 (quoting R.
4:49-1(a)). In deciding whether to grant a new trial or
remittitur based on a purportedly excessive damages award, the
24
court must give “due regard to the opportunity of the jury to
pass upon the credibility of the witnesses.” He, supra, 207
N.J. at 248 (quoting R. 4:49-1). 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.” Baxter, supra, 74 N.J. at 598 (quoting Dolson v.
Anastasia, 55 N.J. 2, 6 (1969)).
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.”
Johnson, supra, 192 N.J. at 281 (quoting Taweel v. Starn’s
Shoprite Supermarket, 58 N.J. 227, 236 (1971), overruled on
other grounds by Fertile, supra, 169 N.J. 481).
B.
The standard for reviewing a damages award that is claimed
to be excessive is the same for trial and appellate courts, with
one exception -- an appellate court must pay some deference to a
trial judge’s “feel of the case.” Id. at 282 (quoting Baxter,
supra, 74 N.J. at 600). That is so because “[i]t is the judge
who sees the jurors wince, weep, snicker, avert their eyes, or
shake their heads in disbelief,” Jastram, supra, 197 N.J. at
230, who may know “whether the jury’s verdict was motivated by
improper influences,” He, supra, 207 N.J. at 250 (quoting
Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 58 (2009)), and who
25
may be privy to observations that could not have been made by
the jury, He, supra, 207 N.J. at 255. Under the guise of “feel
of the case,” however, a trial judge cannot overthrow the jury’s
credibility determinations and findings of fact and then
substitute her own. Ultimately, the jury’s “feel of the case”
controls the outcome of the issues in dispute. 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. Baxter, supra, 74
N.J. at 600.
In the present case, the trial judge expressed that she
would “refrain from applying [her] own feel for the case under
He v. Miller.” By that comment, the trial judge apparently
meant that she was reluctant to assess whether the jury returned
an excessive damages award based on her personal experiences as
a practicing attorney in the field of employment law or as a
judge with eighteen months’ service on the bench. For reasons
we will discuss, the trial judge made the right decision by not
injecting her own professional experiences as a benchmark for
evaluating the correctness of the damages award.
Although eschewing the term “feel of the case,” the trial
judge observed that the jurors were “extremely attentive
throughout the trial,” “fully understood” their charge, and
carefully apportioned and set the amount of punitive damages.
26
She also remarked that plaintiffs “presented extremely well,”
appearing “genuine, earnest, and credible.” Most importantly,
perhaps, the judge concluded that the jury had the opportunity
to assess the testimony of all witnesses and that the jury
evidently found plaintiffs to be more credible.
We agree with defendants that the trial judge’s findings
are not entitled to any special deference. That would be so
even had the trial judge characterized her findings as “feel of
the case.” But we also agree with the trial judge that the
jury’s findings must be accorded deference.
We now turn to the issue of whether the trial judge’s
personal experiences with seemingly comparable cases should play
any role in deciding a remittitur motion.
C.
In He, supra, the Court expressed approval of a trial judge
relying on his own experience with personal-injury verdicts as a
litigator and judge in determining whether a pain-and-suffering
award returned by a jury shocked the judicial conscience. 207
N.J. at 256, 258-59. Although that approach may have been
suggested by prior case law, see, e.g., Johnson, supra, 192 N.J.
at 281 (“[T]he court may rely on its knowledge of other injury
verdicts[.]”), we now conclude that a trial judge’s reliance on
her personal experiences as a practicing attorney or jurist in
27
deciding a remittitur motion is not a sound or workable
approach.
As already mentioned, a jury’s damages award should not be
overturned unless it “shock[s] the judicial conscience.”
Johnson, supra, 192 N.J. at 281. An award that shocks the
judicial conscience is one that is “wide of the mark,” “pervaded
by a sense of wrongness,” ibid. (quoting Baxter, supra, 74 N.J.
at 598-99), and “manifestly unjust to sustain,” ibid. The
shock-the-judicial-conscience standard is objective in nature
and transcends any individual judge’s personal experiences. See
Baxter, supra, 74 N.J. at 597-98. That is a notion that Chief
Justice Hughes conveyed in addressing this subject:
[A]ll judges, whether trial or appellate, are
human and . . . the judgment of each is
inevitably affected by subjective prejudices
or predispositions relating to properties or
specific tendencies of the individual mind, as
distinguished from general or universal
experience. These natural subjective
inclinations derive from the particular
background or experience of the individual
judge, whether from tenure on the bench in
examining or recalling other cases, from
previous activity in law practice in diverse
fields or, for that matter, from any human
experience, such as a youthful background of
poverty or wealth or the like. Such
individuality of approach extends of course to
the field of admeasuring damages flowing from
injuries caused by negligence, as in the
present case, or other wrong. It is for the
merging of such individualized propensities of
mind into an amalgam of common judicial
experience related to the doing of justice
that judges are admonished to resist the
28
natural temptation to substitute their
judgment for that of the jury.
[Id. at 596-97 (footnote omitted).]
A number of practical reasons caution against a trial judge
injecting personal experiences of other verdicts into a
remittitur analysis -- a caution followed by the judge in the
present case. The trial judge’s personal experiences, as a
litigator or on the bench, are not part of the record. Those
experiences are not subject to testing through the adversarial
process. The judge cannot be examined to determine whether her
recollection is accurate, whether the facts are sufficiently
similar to the unique circumstances of the case tried, or
whether the cohort of cases in the judge’s mind is a
statistically significant number from which to draw any
definitive judgment. In short, “the process of using these
personal experiences defies greatly valued attributes of our
judicial system, namely, a party’s right to discovery and the
right to confront and cross-examine information used to
adjudicate the dispute.” Mickens v. Misdom, 438 N.J. Super.
531, 540-41 (App. Div.), certif. denied, 221 N.J. 287 (2015).
If the trial judge’s personal experiences as a private
practitioner and jurist were to be given weight in deciding a
remittitur motion, then the same collective experiences of the
appellate judges and Supreme Court Justices engaged in a de novo
29
review would likewise be given weight. If that standard
applied, then, arithmetically, the experiences of seven members
of this Court would always outweigh those of a single trial
judge. Such an idiosyncratic approach is the antithesis of the
objective approach articulated by Chief Justice Hughes in
Baxter, supra, 74 N.J. at 597.
Moreover, trial judges, believing that their personal
experiences matter in deciding a remittitur motion, have
disclosed their curriculum vitae as evidence of their ability to
render a judgment. In He, supra, the trial judge, who had been
on the bench less than a year, announced that he had practiced
personal injury law for twenty-two years and had been a
Certified Civil Trial Attorney. 207 N.J. at 244. In Mickens,
supra, the trial judge related that he had practiced as a trial
attorney for twenty-nine years; that during twenty of those
years he had handled almost exclusively personal-injury cases
and tried 100 civil jury trials; that he had been a Certified
Civil Trial Attorney, served on several Supreme Court
committees, lectured, and written two books on personal-injury
law; and, that as a civil trial judge in the last year, he had
presided over forty-one trials. 438 N.J. Super. at 542-43. The
trial judge in the present case disclosed that she practiced in
the field of labor and employment law, even though she did not
30
rely on her personal experience in denying the remittitur
motion.
The grant or denial of a remittitur motion cannot depend on
the happenstance of the personal experiences of the trial or
appellate judges assigned to a particular case. To the extent
humanly possible, judges must administer an objective judicial
standard. Accordingly, a judge’s personal experiences with
seemingly similar cases while in practice and on the bench are
not relevant in deciding a remittitur motion.
We next address the claim that the trial judge erred in not
considering the purportedly comparable verdicts defendants
presented in support of the remittitur motion.
D.
We conclude that the comparison of supposedly similar
verdicts to assess whether a particular damages award is
excessive is ultimately a futile exercise that should be
abandoned. Rather, courts should focus their attention on the
record of the case at issue in determining whether a damages
award is so grossly excessive that it falls outside of the wide
range of acceptable outcomes.
Although He, supra, 207 N.J. at 256-57, endorsed the use of
comparable verdicts in remittitur motions, we had already opened
the door to an analysis of comparable awards in remittitur
cases. See Johnson, supra, 192 N.J. at 281 (“Although the court
31
may rely on its knowledge of other injury verdicts, if it does
so, it must give a factual analysis of how the award is
different or similar to others to which it is compared.”
(internal citation omitted)); Jastram, supra, 197 N.J. at 234(same); Fertile, supra, 169 N.J. at 501 (upholding trial court’s
grant of remittitur, which was based, in part, on court’s
“experience with other injury verdicts”). What we have come to
learn, perhaps too slowly, is that the facts and plaintiffs in
every personal-injury or LAD case are fundamentally different
and therefore a true comparative analysis is illusory.
Here, the trial judge did not find “comparable” cases and
verdicts selected by defendants to have sufficient factual
similarities to plaintiffs’ case to allow for a true comparison.
However, if the court found a true comparable case, the next
question would be, which jury conferred the right monetary
award? Any true comparative analysis would require a
statistically satisfactory class of cases, and the class would
have to be composed of not only factually similar cases but also
similarly constituted plaintiffs. Then, the court would have to
announce the broad range of acceptable emotional-distress
awards, given that no two juries would likely return the same
award. Stating the issue suggests the futility of that process.
The jury in the case before us sat through days of trial
and heard the testimony of many witnesses. The jury presumably
32
made credibility assessments and determined the extent of the
emotional injuries suffered by plaintiffs, including how long
those injuries afflicted their lives and damaged their
relationships. The accounts of jury verdicts reported in the
New Jersey Law Journal and other publications, and even
unreported decisions of the Appellate Division, are just
summaries. Summaries cannot compare to what a jury hears from a
witness on the stand; to the timbre of a voice that recalls the
emotional cuts and slashes felt from racially animated
discrimination; to in-depth descriptions of daily workplace
humiliations that mentally beat down an employee; and to first-
hand accounts of mental anguish -- anguish that leads to
depression and frays personal relationships. The Appellate
Division, in Mickens, supra, moreover, expressed concern over
the use of jury-verdict summaries in the New Jersey Law Journal
and similar publications because they “are based on hearsay or
multiple levels of hearsay” and often times are “one-sided.”
438 N.J. Super. at 543 n.9.
The unique nature of each case and the suffering of each
plaintiff is the reason why juries are told that, in fixing a
monetary amount for emotional-distress damages, there is “no
better yardstick for your guidance than your own impartial
judgment and experience.” Model Jury Charges (Civil) § 2.36,
33
“Past and Future Emotional Distress in an Employment Law Case”
(2014).
Juries and judges will often have different opinions about
what constitutes a sufficient monetary award to compensate a
victim for pain and suffering following a tortious injury.
There is no better example than He itself. In He, supra, the
first jury awarded the plaintiff-wife $1,000,000 in pain-and-
suffering damages and the plaintiff-husband $100,000 in loss-of-
consortium damages. 207 N.J. at 239. The trial judge granted
the remittitur motion, reducing the wife’s award to $200,000 and
her husband’s award to $20,000. Ibid. The plaintiffs chose a
new trial rather than accede to the remittitur. Mickens, supra,
438 N.J. Super. at 537 n.3 (citation omitted). The second jury
awarded the plaintiff-wife $500,000 for her pain and suffering
and her husband $100,000 for loss of consortium. Ibid.
(citation omitted). The second trial judge found that the jury
award was not excessive and denied the remittitur, and the
Appellate Division affirmed. Ibid.
Two different juries in He decided that the husband was
entitled to $100,000 in loss-of-consortium damages. The first
trial judge found that amount excessive, the second trial judge
did not. The first jury awarded the plaintiff-wife pain-and-
suffering damages in the amount of $1,000,000, the second jury
in the amount of $500,000. The first trial judge set the
34
remittitur at $200,000, the second trial judge found the
$500,000 award not excessive.
The two trials in He suggest that different juries and
judges may have different views on the issue of adequate
compensation for pain and suffering -- all reasonable and
falling within a broad range of acceptable outcomes.
In LAD cases, courts have remitted or vacated emotional-
distress awards. See, e.g., Abrams v. Lightolier, Inc., 841 F.
Supp. 584, 594 (D.N.J. 1994) (remitting $100,000 award to
$2500), aff’d in part and rev’d in part on other grounds, 50
F.3d 1204 (3d Cir. 1995); Grasso v. W. N.Y. Bd. of Educ., 364
N.J. Super. 109, 115 (App. Div. 2003) (upholding trial court’s
remittitur of emotional-distress award from $110,000 to
$11,000), certif. denied, 179 N.J. 312 (2004); Spragg v. Shore
Care, 293 N.J. Super. 33, 62-63 (App. Div. 1996) (vacating
$42,500 emotional-distress award in LAD gender-discrimination
wrongful-termination case).
On the other hand, courts have upheld assertedly high
emotional-distress LAD awards, even in the absence of expert
testimony from mental-health professionals. See, e.g., Rendine
v. Pantzer, 141 N.J. 292, 311-13 (1995) (affirming trial court’s
denial of remittitur and upholding jury’s emotional-damages
awards of $105,000 and $125,000 for two plaintiffs in LAD
gender-discrimination wrongful-termination case); Quinlan v.
35
Curtiss-Wright Corp., 409 N.J. Super. 193, 217 (App. Div. 2009)
(upholding emotional-distress damages of $187,128 in LAD gender-
discrimination failure-to-promote case), rev’d on other grounds,
204 N.J. 239 (2010); Lockley v. Turner, 344 N.J. Super. 1, 12-14
(App. Div. 2001) (upholding $750,000 emotional-damages award
where “[p]laintiff and his wife were excellent credible
witnesses on the effect of sexual harassment on their marriage
and family life, and the emotional distress that the marital
tensions caused the plaintiff” (alteration in original)), aff’d
in part and modified in part on other grounds, 177 N.J. 413(2003).
The cases cited above may reveal nothing more than that the
unique circumstances of each case must guide the outcome. The
realization that a wide range of potential awards is permissible
counsels for judicial restraint. That is why the remittitur
standard is set so high -- a jury award must be so grossly
excessive that it shocks the judicial conscience.
A number of states do not allow a collateral attack on a
jury’s damages award for pain and suffering or emotional
distress through the use of purportedly comparable cases. See,
e.g., McKissick v. Frye, 876 P.2d 1371, 1388 (Kan. 1994)
(“[T]here is no provision in current law for comparison of one
plaintiff’s recovery with another’s to serve as the basis for
overturning a jury’s verdict.”); Seltzer v. Morton, 154 P.3d
36561, 588 (Mont. 2007) (“[W]e reject the notion that a
compensatory award for emotional distress upheld in one case is
in any way relevant to the propriety or size of an emotional
distress award in another case.”); Allied Concrete Co. v.
Lester, 736 S.E.2d 699, 708 (Va. 2013) (“Although a trial court
may grant remittitur on the grounds that the award is
disproportionate to the injuries suffered, we have specifically
rejected comparing damage awards as a means of measuring
excessiveness.” (internal citation omitted)).
At oral argument before this Court, counsel suggested that
attorneys are inundating our trial courts with comparable
verdicts on remittitur motions. We do not believe that having
our trial courts review snippets of information about cases that
are not truly comparable is a worthwhile use of judicial
resources or likely to bring greater justice to either
plaintiffs or defendants. We therefore disapprove of the
comparative-case analysis in deciding remittitur motions.
We are confident that the instances in which a remittitur
should be granted will be glaring and obvious from the record.
For example, in Besler, supra, a school board president violated
the civil rights of the plaintiff, a child’s parent, by not
allowing him to complete a statement critical of the board at a
public meeting. 201 N.J. at 555. The plaintiff offered
evidence of only “transient embarrassment and humiliation as a
37
consequence of the abrupt manner in which he was prevented from
completing his remarks.” Ibid. We vacated the $100,000
emotional-distress award because it was based on “de minimis
mental anguish, or fleeting embarrassment, or mere shock and
bewilderment.” Id. at 580.
Ultimately, a damages award cannot stand if it is so
grossly disproportionate to the injury suffered that it shocks
the judicial conscience. We cannot envision here the various
scenarios that may call for the application of remittitur.
Suffice it to say, remittitur remains a judicial remedy to
correct miscarriages of justice caused by grossly excessive
damages awards.
To guide judges in carrying out their duties in deciding
remittitur motions, we can give no better instruction than the
one given to juries in the model jury charge. See Model Jury
Charges (Civil) § 2.36, “Past and Future Emotional Distress in
an Employment Law Case” (2014). Judges know the nature of
emotional distress and the function of money and that
correlating the two “to arrive at a fair and reasonable award of
damages requires a high order of human judgment.” Ibid. Judges
also know that, among different juries, there will be a wide
range of acceptable damages awards. In determining whether a
particular award shocks the judicial conscience, judges must
38
rely on that “amalgam of common judicial experience related to
the doing of justice.” Baxter, supra, 74 N.J. at 597.
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.
IV.
Based on our de novo review of the record, we agree with
the Appellate Division that the trial court properly denied
defendants’ remittitur motion. The jury returned a verdict
finding that defendants violated New Jersey’s Law Against
Discrimination by discriminating against plaintiffs on the basis
of race, by subjecting plaintiffs to a hostile-work environment,
and by firing them in retaliation for their complaints about
their treatment.
In passing the LAD, the Legislature specifically found that
victims of discrimination “suffer personal hardships” among
which are “physical and emotional stress”; “severe emotional
trauma”; “anxiety”; and “career, . . . family and social
disruption.” N.J.S.A. 10:5-3. The Legislature understood the
psychological toll that discrimination may have on victims.6
6 Following the dictates of the LAD, this Court found that a
singularly vile and vulgar remark made by a chief executive to
39
Indeed, “the Legislature intended victims of discrimination
to obtain redress for mental anguish [and] embarrassment,” even
when their emotional and physical ailments cannot be
characterized as severe. Tarr, supra, 181 N.J. at 81. Because
of the special harm caused by willful discrimination in the
workplace, “compensatory damages for emotional distress,
including humiliation and indignity . . . , are remedies that
require a far less stringent standard of proof than that
required for a tort-based emotional distress cause of action.”
Id. at 82. Specifically, in a LAD case, a plaintiff is not
required to provide “expert testimony or independent
corroborative evidence . . . to support [an] award of emotional
distress damages.” Id. at 79 (citing Rendine, supra, 141 N.J.
at 312). Plaintiffs in this case were entitled to “recover all
natural consequences of [defendants’] wrongful conduct,
including emotional distress and mental anguish damages arising
out of embarrassment, humiliation, and other intangible
injuries.” Id. at 82; cf. Ostrowski v. Azzara, 111 N.J. 429,
438 (1988) (“[D]efendant must take plaintiff as he finds him.”
(internal quotation marks omitted) (quoting Frame v. Kothari,
212 N.J. Super. 498, 501 (Law Div. 1985), aff’d in part and
an employee injected such hostility into the working environment
and so altered the conditions of employment that it gave rise to
a cause of action under the LAD. Taylor v. Metzger, 152 N.J.
490, 506 (1998).
40
rev’d in part, 218 N.J. Super. 537 (App. Div. 1987), aff’d, 115
N.J. 638 (1989)).
Plaintiffs did not offer expert testimony to buttress their
emotional-distress damages claims, and because they did not do
so, the court correctly did not charge the jury on emotional-
distress damages projected into the future. See Battaglia v.
United Parcel Serv., Inc., 214 N.J. 518, 554 (2013) (holding
that, without expert testimony, emotional-distress damages are
limited to past emotional-distress damages through time of
trial). The jury was permitted to quantify the emotional-
distress damages suffered by plaintiffs up to the time of trial.
Plaintiffs detailed in their testimony a nine-month period
of racial harassment and hostility in the workplace carried out
by and in the presence of the highest-ranking officers of
Wentworth. Plaintiffs were subjected to crude and degrading
remarks that invidiously stereotyped them and their heritage --
remarks that cast them in an inferior light and that made
plaintiffs feel that they were judged by their appearance and
race rather than by their talents and skills. Although both
plaintiffs held important positions at Wentworth, they were
referred to as Chihuahuas, Latin lovers, and the “Rico Suave
brothers.” They were the subject of repeated disparaging
Hispanic stereotypes from food and music to busboys and stealing
hubcaps.
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Ramon testified that he felt “chopped down day by day,
month by month,” “helpless,” “despondent,” and “exhausted.” He
was beset by anxiety over his financial security and his
professional reputation, particularly after the retaliatory
firing. Jeffrey described how Wentworth’s degrading conduct
toward him affected his “psyche” and ruined his “self-
confidence,” how humiliated he was to be fired several weeks
before Christmas for complaining about discriminatory treatment,
how anxious he became about whether he could support his family,
and how he fell into a depression.
The jury returned an award of $800,000 for Ramon and
$600,000 for Jeffrey in emotional-distress damages suffered from
April 2007, when the harassment began, until July 2011, the time
of trial. The mental anguish and humiliation here were
sustained over a long period, and were not fleeting or
insubstantial. Although these awards are probably on the high
end, like the trial court and the Appellate Division, we cannot
say that they are so “wide of the mark,” so “pervaded by a sense
of wrongness,” so “manifestly unjust to sustain,” that they
shock the judicial conscience. See Johnson, supra, 192 N.J. at
281 (quoting Baxter, supra, 74 N.J. at 598-99).
V.
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For the reasons expressed, we affirm the judgment of the
Appellate Division, which upheld the trial court’s denial of
defendants’ remittitur motion.
CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON,
FERNANDEZ-VINA, and SOLOMON; and JUDGE CUFF (temporarily
assigned) join in JUSTICE ALBIN’s opinion.
43