A rear end hit, a thirty-five year old plaintiff with a history of two prior accidents in a nine year period, alleged bulging disc at L2-L3 with radiculopathy, treatment with physical therapy and four epidural injections, arbitration award of $40,000, rejection of plaintiff’s $30,000 offer of judgment … Middlesex jury award $2 million. What happened? A lot, according to the New Jersey Appellate Division.
The Berkowitz v. Soper trial got off to the wrong start for the defense when the defendant driver was hospitalized two days before the start of the trial due to a heart issue. The trial judge denied the defense counsel’s request for an adjournment.
The plaintiff’s opening statement then stepped over the line of fair comment when he suggested that the defendant might be available to testify and what she might say if she did. In fact, of course, she was not available and, in any event, would not have said what he told the jury. Plaintiff’s counsel also suggested that his client required surgery, despite knowing that he had no expert to testify as to such.
As the trial progressed, the errors accumulated. The plaintiff described a significant impact that jostled him and the contents of his car. As she was in the hospital, the defendant was not available to dispute his account of the accident. If she had been present, she would have told the jury that she had been stopped at a light. After the plaintiff began to move, he stopped abruptly causing the accident. She would have authenticated photos of her car that showed no physical damage.
The plaintiff seemingly testified freely, despite the judge’s admonitions, and offered essentially expert medical testimony about his injury, his treatment, his need for surgery, and his suicidal thoughts. No expert was offered to back up much of his testimony.
The plaintiff’s wife testified about her husband’s conditions. She improperly told the jury that he would have turned down $10,000,000 to not have the kind of pain he had.
The jury deliberated just about 1.5 hours. The judge denied defendant’s motions for a new trial and remittitur. He found that the plaintiff’s age and socioeconomic status warranted the $2 million award.
The appellate division, while recognizing the deference to be given to the trial judge, respectfully disagreed. Painstakingly outlining the numerous trial errors, the appellate court found that the “trial was saturated with incompetent, inadmissible opinion testimony from plaintiff that irreparably tainted the jury’s ability to reach a sustainable verdict.” What will the next jury conclude?
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