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NJ Appellate Court Reinstates $1 Million Award for Herniations

December 16, 2009

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Plaintiff Ming Yu He was involved in an auto accident, and filed suit against the owner and operator of the other car in <i>He v. Miller</i>. An MRI of plaintiff revealed four herniated or ruptured discs, which caused ongoing pain. Plaintiff underwent the typical battery of physical therapy, including acupuncture. No surgery was performed, although epidural injections were administered.
Plaintiff’s physician testified she had “chronic and permanent pain” five years after the accident. Plaintiff testified she was unable to perform typical household duties and the like. The defendants’ IME physician opined much of plaintiff’s condition was likely degenerative and preexisting. But a Morris County jury returned an award that included $1 million for pain and suffering.
The trial judge found the award was “shocking to the conscience,” but did not mention similar verdicts in granting remittitur. The Supreme Court ultimately reversed and remanded to have the trial court explain how the award differed from other comparable awards. The trial court subsequently cited to two decisions relating to cases over which he presided, but those cases involved different injuries than those suffered by plaintiff He.
The Appellate Division found that the trial court’s discussion of comparable verdicts was insufficient and that they only provided “superficial support” for the remittitur. The appellate court also expressly rejected the judge’s “feel of the case,” emphasizing that the trial judge is not a “thirteenth and decisive juror.” Notably, the appellate court also stated that the judge was correct in finding the likely range of verdicts for similar injuries was between $40,000 and $200,000, but that in order to set aside the verdict it must be “adequately articulated” that permitting the award to stand would constitute a manifest miscarriage of justice. The verdict was reinstated.
<a href="http://pdfserver.amlaw.com/nj/He-a5685-07-remanded.pdf">http://pdfserver.amlaw.com/nj/He-a5685-07-remanded.pdf</a>

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