Hughes Justice Complex. Photo by Carmen Natale

The New Jersey Supreme Court won't consider reinstating a $166 million verdict against the state in the case of an infant who was severely abused by his father after child-welfare authorities declined to remove him from the home.

The jury award came in 2013 in the case of Jadiel Velesquez, who at the age of 4 months was left blind and cognitively disabled after his father violently shook him to stop him from crying.

The verdict, believed to have been the largest ever against the state, was later reduced to $102 million by a trial judge and overturned last June by a state appeals court.

Attorney General Christopher Porrino said in an email, “The appellate division decision in this tragic case, and the Supreme Court's refusal to review it, correctly recognized what we were arguing all along: That liability for the plaintiff's injuries
properly rested with the perpetrator of the criminal misconduct [w]ho caused those injuries, not with the State employees who were acting in good faith.”

The plaintiffs' attorney, David Mazie of Roseland's Mazie Slater Katz & Freeman, didn't provide a comment by press time.

Jadiel's maternal grandmother, Neomi Escobar, who filed the suit, claimed the Division of Youth and Family Services—now called the Division of Child Permanency and Placement—was negligent for failing to remove the infant from his parents.

The $166 million verdict was delivered in December 2013, after a two-week trial and about two hours' deliberation, the Law Journal previously reported. Porrino at the time was Division of Law director. Essex County Superior Court Judge James Rothschild Jr. refused to vacate the award but granted the state's motion for remittitur. He reduced the damages for future medical expenses and assigned some fault to the father, against whom the jury apportioned zero liability at trial. The judge reduced the $105 million award for future medical care to $75.9 million. He then assigned 25 percent of the fault to the father, dropping the total recovery to $102 million. He left untouched awards of $57.7 million for pain and suffering, $1.9 million for a relative's caretaking services, and $1.4 million for future lost wages.

On the state's appeal, Appellate Division Judges Jose Fuentes, Ellen Koblitz and John Kennedy said that, under agency rules, DYFS lacked a basis to remove the infant, given what was known at the time the abuse incident took place. The panel said the two DYFS employee defendants in the case were entitled to statutory and qualified immunity because their actions in the case were reasonable. And based on the immunity of the individual defendants, the appeals court declined to hold DYFS or the state liable under a respondeat superior theory of liability.

The panel cited Delbridge v. Schaeffer, a 1989 Law Division ruling finding DYFS caseworkers not liable in a case where a father was accused of sexual abuse of his 4-year-old daughter. Delbridge spoke of a “catastrophic” chilling effect on child abuse investigators if the defendants in that case were found liable.

“Here, the devastating physical injuries … were caused by the criminal conduct of his biological father, not by a division caseworker's good faith efforts to carry out his statutory responsibilities,” Fuentes wrote for the Escobar panel.

After the ruling, Mazie warned that the appeals court decision ”will effectively immunize the state of New Jersey and its employees for even the most egregious dereliction of duties.”

According to court documents, Escobar contacted DYFS when she suspected Jadiel was being abused. A hospital examination found the child had bruises on his neck and face, and bloodshot eyes.

The agency ordered that Jadiel could not be left alone with his father, Joshua Velesquez, who allegedly was bipolar and not using legitimate medication for that condition, but instead was using illicit drugs. But on July 16, 2009, a relative left the child with his father after obtaining permission from the boy's mother, Vanessa Merchan, then 18. Jadiel was assaulted a short time later, according to the documents.

Joshua Velesquez was convicted of second-degree aggravated assault and fourth-degree child abuse in connection with the incident—which left the child unable to walk or talk, plagued by daily seizures and in need of full-time care. The elder Velesquez shook the infant with great force, and Jadiel slipped from his father's hands and struck his head, according to the documents.

Several health care providers involved in Jadiel's case settled claims against them for a total of roughly $7 million, but that amount is not sufficient to care for the child, who is fed through a tube in his abdomen, Mazie previously said.