New Jersey court rules specifically permit a plaintiff to “suggest” to a jury that unliquidated damages can be calculated on a time unit basis without reference to a specific sum. In other words, a plaintiff may argue to the jury that it can consider what an hour’s worth of pain is worth and then multiply it by the number of hours in a day, then in a week, and in a year over a life expectancy. To balance this argument when a plaintiff chooses to make it, the court is directed to instruct the jury that the analysis is argument only and should not be considered as evidence.
But what if a plaintiff elevates the “suggestion” to “scientific” analysis in his argument? In Shoemaker v. Chinappi the plaintiff’s attorney did just this when he told the jury that this computation would be a “rather scientific way” to calculate damages. The trial judge disagreed with the injection of science into what was otherwise just permissible argument. Needless to say counsel was none too happy when the judge clarified for the jurors that the requested computation was in fact “not a scientific approach” but rather just a suggestion.
The Appellate Division was not persuaded by counsel’s argument that he merely meant to imply that “scientific” was “logical” and agreed with the trial judge’s corrective instruction.
See Shoemaker v. Chinappi, http://www.judiciary.state.nj.us/opinions/a2027-09.pdf
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