Court Tackles Obstacles To Tort Suits

The jurists clearly understood the importance of voir dire in ensuring a fair trial even if it requires the expenditure of valuable time and resources:

Experience can never trump the considered and thoughtful selection of jurors whose impartiality and fairness must be beyond reproach. The extra time necessary to impanel twelve dispassionate jurors in this case would have been a small price to pay for the assurance of a fair trial.

The remedy for the trial court’s failure to explore this issue completely during voir dire was a new trial.

In the era of talk radio, cable news and Court TV, the need to conduct careful questioning of jurors deciding personal injury cases, medical malpractice claims and products liability cases against multinational corporations is greater than ever. There are far too many dogmatic people that are ready to make their decisions without bothering to listen to the evidence or follow the charge on the law. It takes vigorous questioning and follow-up to detect people with these attitudes. Experience teaches us that every single one of these prospective jurors will tell the inquiring judge that they can be fair. Judges have to be prepared to follow up on responses that reflect possible bias by a member of the panel. Trial lawyers should be given the opportunity to do the follow-up or ask case specific questions. This is not a time to reduce the number of peremptory challenges. Voir dire cannot be effective if it is reduced to the delivery of perfunctory questions streamlined to fit into the appendix to the New Jersey Court Rules next to the standard interrogatories. Judges and lawyers need to be empowered to conduct careful, searching voir dire to ensure that cases are decided fairly on the merits. Fortin sends a strong signal that the Supreme Court is not interested in curtailing voir dire because doing so will undermine the right to a fair trial.

In Juries We Trust, Sometimes

The New Jersey Supreme Court regularly proclaims its reverence for the jury system but it has also expressed reservations about the ability of trial lawyers and juries to adequately perform their responsibilities when it comes to resolving liability and damages in tort cases. In some rulings, our High Court has expressed complete confidence in the ability of juries to do the right thing, yet in others it feels the need to tie the hands of lawyers and keep the jury in the dark about the consequences of its decision making.

The classic example is the Botta Rule that prevents plaintiff and defense lawyers from arguing specific dollar amounts for damage awards to juries during the trial of tort cases. In the modern era, when jury verdicts receive wide publicity, there is little justification for this limitation. If a plaintiff’s lawyer makes the mistake of asking for too much money or the defense lawyer too little, the most effective control is the worthy adversary who can disassemble the argument and turn it to his client’s advantage. Allowing lawyers to present dollar specific positions on damages would structure the process for juries charged with awarding damages for pain and suffering who get little guidance on how to approach the problem from the standard jury charge. Does anyone really believe that the Time Unit Rule is a legitimate and honest way of presenting an argument?

Another example of the Court’s lack of confidence in juries is the ridiculous method of trying UM and UIM cases. Trial courts are not permitted to advise the jury about the real identity of the defendant insurance company or to explain what the claim is really about. The lawyers and parties are forced to pretend that they are trying the original tort case against the responsible driver. Does anyone in the system really believe that juries are going to award damages to a plaintiff only because an insurance company is the real party in interest? Is forcing lawyers to engage in a charade good practice?

If the Justices had complete confidence in the system they lead, full jury disclosure would be the norm, so that everyone could deal with the claim in a straightforward manner.

The disconnect between rhetoric and practice becomes most pronounced in the Supreme Court’s holdings on ultimate outcome charges. When our High Court decided, in Roman v. Mitchell, 82 N.J. 336 (1980), to inform jurors that a finding of less than 50 percent responsibility against defendants in a tort case was actually a no cause, the rationale was that “a jury informed of the legal effect of its findings as to percentages of negligence in a comparative negligence trial is better able to fulfill its fact finding function.” This confidence in the process led the courts to expand ultimate outcome charges to require an explanation that there is a trebling of damages in consumer fraud cases and to outline what the impact of ascribing responsibility to a pre-existing condition in a loss of a chance case in medical malpractice cases. However the Court refused to sanction a charge outlining the statutory limitation of damages that a hospital is required to pay under the Charitable Immunity Act, Weiss v. Goldfarb, 154 N.J. 468 (1998), because “it might induce a jury to shift to other defendants some percentage of negligence that the jury though should rightfully be assessed against the hospital.”

The tension between trust and mistrust surfaced again this term in Brodsky v. Grinnell Haulers, Docket No. A-46, 2004 N.J. LEXIS 943, where the court had to decide whether or not to inform jurors that a finding of liability against a defendant over 60 percent triggers joint and several liability. In Brodsky, a horrific motor vehicle accident caused the death of one driver and serious injuries to his passenger. A lawsuit was filed against both culpable drivers. One of the two defendants did not have insurance, went into bankruptcy and was dismissed from the legal action. To maximize their damages with the single insured defendant, the plaintiffs had to keep the bankrupt defendant off the verdict sheet or persuade a jury that the remaining defendant was at least 60 percent liable for joint and several liability to apply, N.J.S.A. 2A:15-5.2d. Defendant wanted to shift the blame to the missing defendant and limit their exposure to only their percentage of liability.

At the time of trial, the jury was not told why the bankrupt defendant was not participating as a party. Jurors were simply told that they should not concern themselves or speculate why the other driver was not a party. This instruction probably made the subject the hottest topic in deliberations. Plaintiff lost out when the trial court ruled that the bankrupt defendant would go on the verdict sheet for an allocation of responsibility.

Plaintiff now had to persuade the fact finders to hold the defendant at least 60 percent responsible in order to collect all of the damages awarded. In the opening statement, plaintiff’s counsel argued to the jury that the empty chair had little responsibility for the accident, “maybe a small fraction, 5 percent, 8 percent, maybe 10 percent.” Defense counsel’s objection to these comments was sustained and the trial court instructed the jury to disregard the specific percentage suggestions and not to consider them in determining percentage allocation. The trial judge believed that the Botta Rule prohibited this argument. The court also ruled, over defendant’s objection, that the jury would be charged about the ultimate outcome of the apportionment of responsibility, including the fact that “a defendant found to be 60% or more responsible for the total damages is liable to the plaintiff for the total amount of the award.” The charge appeared in the Model Jury Charges and the court delivered it verbatim. Defendant argued that providing the information about the consequences of the finding would improperly influence jurors to fix the percentage of the defendant’s liability at 60 percent or higher to provide the plaintiffs full compensation.

The jury returned a large verdict and assigned 60 percent of the fault to the solvent defendant. After defendant’s post-verdict motions for a new trial were denied, it appealed, arguing that the ultimate outcome charge should not have been presented because it unfairly brought about the inevitable result: 60 percent. Plaintiffs cross-appealed, arguing that the bankrupt party’s responsibility should not have been assessed and that their attorney should be able to take a specific position on the percentage of liability for each driver in opening and closing statements. The Appellate Division held that the bankrupt party should be subject to an assessment of fault, that plaintiff’s counsel cannot communicate what the percentage of liability against a defendant should be and that the ultimate outcome charge should not have been given. The case was remanded for a new trial solely on the issue of comparative fault between the two drivers. Plaintiff’s petition for certification was granted.

Plaintiff argued that it was improper to include the bankrupt defendant for an assessment of fault because plaintiffs were foreclosed from collecting against it by the discharge issued by the bankruptcy court. The appellant analogized the situation to keeping the employer off the verdict sheet in a third party liability case due to the worker’s compensation bar. The High Court rejected this argument and adopted the defendant’s position that inclusion of the defendant was mandated by the Comparative Negligence Statute that did not provide an exception for a party that became bankrupt. The ruling does not provide for listing entities on the verdict sheet that went bankrupt before they were joined as parties.

The High Court also ruled that an ultimate outcome charge should not be given about the consequences of a verdict that is above or below 60 percent. The Justices believed that the explanation was irrelevant to the Jury’s deliberations on the defendants’ relative responsibility for the accident and delivery of it was prejudicial “because it may have led the jury to the forty-sixty allocation, shifting a percentage of fault from [one defendant] to [another defendant] in order to assure plaintiffs a full recovery of their damages”

The Justices were sensitive to the plaintiff’s argument that this result was incompatible with prior rulings that mandated ultimate outcome charges in order to assure that jurors were not acting under false assumptions regarding the operation of the law allowing them to render just verdicts. The plaintiff’s sharpest debating point was: do you trust juries? The answers was: yes, most of the time. While uncomfortable with the charge of inconsistency, the Court did not flinch from concluding that the charge should not be given in this case:

Our Court in addressing at various times whether an ultimate outcome charge is appropriate in a particular case has not attempted to bridge that philosophical divide by adopting an overarching theory to apply to all statutes and all circumstances. Instead, we have evaluated whether the purpose of the particular statute of law in question as well as the interest of justice would be advanced in each case by either giving or not giving an ultimate outcome charge. Such an individualized approach may appear inconsistent when applied over a wide spectrum of cases. But individual cases arise in different settings and under different statutes and present unique challenges and problems.