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After 'Feel of the Case' Repeal, Supreme Court Seeks Amici on Additur and Remittitur

Richard J. Hughes Justice Complex, seat of the New Jersey Supreme Court. (Courtesy photo)

Richard J. Hughes Justice Complex (Courtesy photo)

The New Jersey Supreme Court has issued a call for amicus briefs in the pending appeal of an auto injury case that could generate new rules for additur and remittitur.

The court said in a notice to the bar issued Wednesday that it is inviting motions for amicus participation in Orientale v. Jennings, A-43-17. The court will accept briefs through Dec. 17 that are submitted with amicus motions on specific questions concerning computation of additur and remittitur.

The court has invited supplemental briefing on four questions:

  • Should both parties have the right to object to a trial court's additur, or should only the defendant have that right?
  • Should both parties have the right to object to a trial court's remittitur, or should only the plaintiff have that right?
  • In additur, should the court set the damages amount as the lowest amount reasonably supported by the record, or a reasonable amount supported by the record?
  • In remittitur, should the court set the damages amount as the lowest amount reasonably supported by the record, or a reasonable amount supported by the record?

The injured plaintiff in the case, Barbara Orientale, received a $200 verdict from a Middlesex County jury on her underinsured motorist claim against Allstate New Jersey Insurance Co. after the other driver paid her his $100,000 policy limit.

The trial judge, Phillip Paley of Middlesex County Superior Court, found the $200 award was a miscarriage of justice and determined that $47,500 was the lowest verdict a reasonable jury could have returned, given the proofs, so he added $47,300 to the $200. Paley's decision was guided by He v. Miller, a 2011 state Supreme Court case which held that a trial judge deciding a remittitur motion should rely on the judge's feel of the case, based on personal knowledge of verdicts from private practice, as well as comparable verdicts submitted by the parties.

Orientale appealed, claiming the judge should have based the additur on the comparable verdicts she supplied. But the Appellate Division affirmed Paley's award, finding he properly relied on the feel of the case.

In September 2016, while the appeal was pending at the Supreme Court, the justices issued another decision on remittitur, Cuevas v. Wentworth Grp., which repealed the feel of the case doctrine from He v. Miller.

At the Supreme Court, Orientale asserts that a trial judge cannot give an additur under Cuevas when there were multiple injuries to multiple body parts requiring multiple surgeries because then the trial judge would have to become the fact-finder.

Christina Vassiliou Harvey of Lomurro, Munson, Comer, Brown & Schottland in Freehold, argued for Orientale at the Supreme Court on Oct. 9.

The justices did not seek litigants' permission before putting out a call for amicus input, Harvey said. But she believes the procedure will be helpful.

Harvey said in a brief to the Supreme Court that the justices should follow prior Appellate Division rulings and impose the highest reasonable verdict when calculating an additur.

But the attorney for the respondents, Darrin Jennings and Allstate, said the Appellate Division correctly affirmed that additur was the proper remedy. The respondents argued that a careful review of Cuevas reveals that the fundamental principles governing additur and remittitur were not rejected, contrary to Orientale's claim. The trial court properly utilized additur following the verdict, they argue in a Supreme Court brief.

Frederic Regenye of Kenneth Lipstein's office in Westfield, who represents Jennings and Allstate before the Supreme Court, did not return a call for comment.