NJAJ PRESENTS MY FIRST TRIAL JURY INSTRUCTIONS VERDICT

NJAJ PRESENTS - MY FIRST TRIAL JURY INSTRUCTIONS VERDICT FORMS WHAT YOU NEED TO KNOW AVOIDING TRAPS AND PITFALLS Daniel E. Rosner, Esq. – Certified Civil Trial Attorney drosner@rosnerlaw. net K. Raja Bhattacharya, Esq. kbhattacharya@benditeinstock. com

What You Need to Know • Know the Law • Know the Applicable Model Jury Charges • Know the Verdict Sheets

Q Ten Frequently Asked Questions 1. What is the best resource for us to find jury instructions and verdict sheets? the www. judiciary. state. nj. us/civil/civindx. ht m Can Google “NJ Model Civil Jury charges”

Model Jury Charges

Q Ten Frequently Asked Questions 2. Are there any damage thresholds to overcome in order to be able to recover any monetary awards in NJ?

Damage Thresholds 5. 33 B LIMITATION ON LAWSUIT OPTION: 1. 2. 3. 4. 5. 6. Death; Dismemberment; Significant disfigurement or significant scarring; Displaced fracture; Loss of a fetus; A permanent injury within a reasonable degree of medical probability, other than scarring or disfigurement.

Damage Thresholds 5. 33 B Limitation On Lawsuit Option: 1. Death

Damage Thresholds 5. 33 B Limitation On Lawsuit Option: 2. Dismemberment;

Damage Thresholds 5. 33 B Limitation On Lawsuit Option: 3. Significant disfigurement or significant scarring;

Damage Thresholds 5. 33 B Limitation On Lawsuit Option: 4. Displaced fracture;

Damage Thresholds 5. 33 B Limitation On Lawsuit Option: 5. Loss of a fetus;

Damage Thresholds Permanent Injury (Type 6) • An injury shall be considered permanent when the body part or organ, or both; • has not healed to function normally; • and will not heal to function normally with further medical treatment.

Permanent Injury (Type 6) • Plaintiff must prove this claim through objective, credible medical evidence. • Objective proof means the injury must be verified by physical examination or medical testing and cannot be based solely upon the plaintiff’s subjective complaints. • Credible evidence is evidence you find to be believable. 13

Damage Thresholds TORT CLAIMS ACT THRESHOLD To recover damages for pain and suffering in this case, the plaintiff must prove by a preponderance (greater weight) of the evidence that he/she sustained injury that fits into one of the following categories: 1) Permanent loss of bodily function, and/or 2) Permanent disfigurement or dismemberment

Proving The Threshold • Must prove causation + =

Q Ten Frequently Asked Questions 3. What are Pain and Suffering damages? 16

Pain And Suffering The goal of non-economic damages is to try to make a person whole through monetary compensation for the harms and losses they sustained.

Pain And Suffering The law does not provide jurors with any table, schedule or formula by which a person’s pain and suffering disability, impairment, loss of enjoyment of life may be measured in terms of money. (MJC 8. 11 E)

Q Ten Frequently Asked Questions 4. What types of economic damages are recoverable?

Economic Damages The most common types of damages recoverable in this category are past and future and reimbursable medical expenses and past and future lost wages. Generally, see MJC 8. 11 A for non-auto cases, MJC 8. 20 for auto cases, and MJC 8. 11 I for future medical expenses.

TEN TIPS Economic Damages in Auto Cases CASELAW: Wise v. Marienski, 425 N. J. Super. 110 (L. Div. 2011) – Holds N. J. S. A. 39: 6 A-12 does not bar the introduction of medical expenses in excess of the applicable PIP limits. Kimble v. Lavista, 2014 WL 2533779 (N. J. Sup. Ct. App. Div. June 6, 2014) – Unpublished appellate division case following Wise decision.

Three. Expert Testimony Types of Legal Reports Wage loss proofs: Medical/Expert opinion needed for past and future wage loss and loss of earning capacity over a patient’s life time. Set-off for collateral benefits. This is critical in permanent disability cases, but also important for people who have to change jobs due to their muskuloskeletal injuries. 22

VERDICT SHEET 23

Q Ten Frequently Asked Questions 5. Are there any defenses or reductions available to the defendant?

VERDICT SHEET

Comparative Negligence A plaintiff found more than fifty percent at fault is entitled to no recovery.

Comparative Negligence A plaintiff who is found to be fifty percent or less at fault is entitled to a recovery, but any award of damages is diminished by the percentage of negligence attributed to them (N. J. S. A. 2 A: 15 -5. 1)

VERDICT SHEET 28

Duty to Mitigate Damages A plaintiff has a duty to mitigate damages by seeking out reasonable medical care and treatment. The burden is shifted onto the defendant in order prove this. See MJC 8. 11 B

Seatbelt Defense To Damages The defendant has the burden to show the lack of seatbelt use was negligence by the plaintiff and increased the extent and severity of the injuries. See MJC 8. 21.

Q Ten Frequently Asked Questions 6. Are there any caps on damages?

Defense Caps To Damages No, there are generally no caps on awardable damages in a typical tort case, although the courts can in some cases change a jury award by way of Remittitur or Additur. If the award, shocks the judicial conscious of the trial judge, and certain requirements are met, a Judge can lower or increase the amount of money awarded by a Jury. Ming Yu He v. Miller, 207 N. J. 230 (2011), 24 A. 3 d 251.

Q Ten Frequently Asked Questions 7. Are there any derivative claims available to other plaintiffs?

Per Quod Claims Yes. There are several common types of derivative claims. The most common claim is for losses incurred as a result of injury or death to a spouse or a child. This is commonly called a loss of consortium claim or a Per Quod claim. A spouse is entitled to recover for the loss of a spouse’s services, society and consortium. Household duties, companionship and comfort, and “consortium” or marital relations. You can claim for a worsening of their quality. Therefore, a spouse does not need to prove a total loss of injured the spouse’s society and assistance, it is enough if a partial loss or impairment is shown. This includes past and future loss. (Schuttler v. Reinhardt, 17 N. J. Super 480 (App. Div. 1952); See MJC 8. 30 B. In addition, a parent may recover for the loss of a child’s services and earnings. See MJC 8. 30 C.

Q Ten Frequently Asked Questions 8. What types of damages are recoverable in a Wrongful Death case and who is entitled to recover?

Wrongful Death Claims MJC 8. 43 is a 13 page charge that states in detail what the plaintiff can recover on behalf of the survivors of the decedent. The charge makes it clear that grief damages, or emotional loss of the survivors are not recoverable. 8. 43 WRONGFUL DEATH (3/10) The plaintiff brings this lawsuit as the representative of the survivors of the decedent, [insert decedent’s name]. On behalf of the survivors, the plaintiff asserts that the defendant was responsible for the decedent’s death and seeks money damages from the defendant for the actual financial losses the survivors have suffered, and will suffer in the future, as a result of the decedent’s death. What Is Not Recoverable A. In this category of damages, you are not to consider any physical injuries or suffering that the decedent may have sustained, such as pain and suffering or disability. B. You are also not to consider any emotional distress, anguish or grief the survivors may have suffered as a result of the decedent’s death, or any loss of emotional satisfaction the survivors may have derived from the society and companionship of the decedent. These matters, although very real and distressing, cannot be considered in determining the extent of the financial loss suffered by the survivors.

Wrongful Death Claims Financial losses of the survivors not only include the actual monies that the decedent would have contributed to each survivor, but also the reasonable value of the services, assistance, care, training, guidance, advice, counsel and companionship that the survivors would have received from the decedent had he or she lived. See Green v. Bittner, 85 N. J. 1, 6 (1980)

Q Ten Frequently Asked Questions 9. What is a Survivorship claim and who is entitled to recover these damages?

Survival Actions In a survival action, the administrator as plaintiff is seeking damages for the decedent's hospital and medical expenses, loss of earnings as well as any disability and impairment, loss of enjoyment, and pain and suffering which the decedent sustained between this accident and his/her death. Under the law, he/she is entitled to recover the damages which the decedent sustained during this period of time, and funeral expenses. MJC 8. 42.

Q Ten Frequently Asked Questions 10. What are the rules for closing argument for Damages in NJ?

Argument of Damages Risko v. Thompson Muller Automotive Group, 206 NJ 506, 20 A. 3 d 1123 (2011) • In summation, Plaintiff’s counsel stated that if any juror said that they did not believe they could award damages of a million dollars in this case, then they should knock on the door and be reported immediately to the judge. • Counsel argued that the plaintiff experienced torture as a result of the severe pain and that the 8 th Amendment of the US Constitution prevents torture even to terrorists. Although he said Defendant did not intend to inflict torture on to the plaintiff they still have to pay for this. • Defendant never objected on the record but still a $1. 75 Million jury verdict was reversed.

Argument of Damages Szczecina v. PV Holding Corp. 414 N. J. Super. 173 (App. Div. June 2010) • $1, 000 verbal threshold jury verdict. • Plaintiff, age 56, sustained temporary injuries to left hand neck and claimed permanent injuries to her back requiring three epidural injections. • Plaintiff’s counsel repeatedly referred to the defense’s “game plan” of acquiring a “spokesman” and “spin doctors” to “muddy up the waters” and asked the jury to “send a message” during opening and closing. • Plaintiff’s counsel referred to “spin doctors” 38 times; “paid agreers” 4 times; called defense counsel “spokesman” 13 times; and used the term “game plan’ on 7 occasions; and referred to medical defense witnesses (Noble and Willner) as a “tag team” and “hired guns” and accused them of intentionally muddying up the waters.

Argument of Damages Golden Rule:

Argument of Damages Golden Rule: An attorney is not permitted to urge jurors to award damages based upon what the jurors would want if they were similarly injured. (Botta v. Brunner, 26 N. J. 82, 94 (N. J. 1954)

Golden Rule • $250, 000 verbal threshold jury verdict. • Defendant appealed $ 250, 000. 00 verdict alleging that counsel violated the “golden rule” during closing argument. • Holding: Use of Golden rule here about comparing the memory of the plaintiff to the jurors of events that occurred 20 years ago did not emotionally inflame or prejudice them.

Time Unit Rule Units of time are allowed under the court rules. R. 1: 7 -1(b) Be careful of your choice of what units to use. Make sure you tell your adversary and the judge at the charging conference before closing argument so the appropriate instruction can be read to the jury.

Units of Time to Consider Past + Future = Total + 33. 16 yrs = 37. 32 yrs. Years: 4. 16 yrs Months: 50 months + 398 months = Days: 1, 546 days + 12, 103 days = Hours: 37, 104 hours + 290, 472 hours = 448 months 13, 649 days 327, 576 hours

Time Unit Rule • It is permissible to suggest that the jury consider “a fair damage amount” for a particular unit of time - such as a day, an hour, a minute or a year • May suggest that such an amount be multiplied by the number of units of that time period in the plaintiff’s expected life. • Counsel cannot mention a specific dollar amount to use for the unit of time. (N. J. Court Rule 1: 1 -7; MJC 8. 11 G Life Expectancy)

Time Unit Rule Cuccurullo v. Galinsky et. al. 2010 WL 2089669 (Unpublished, App Div 2010) • $625, 000. 00 jury verdict. • As part of a time unit argument, Plaintiff’s counsel used the analogy of plaintiff’s pain and suffering to the experiences of jury in a dentist’s chair and that Plaintiff’s loss of enjoyment of life is to be equated with the jurors’ and “everyone’s” democratic freedoms. • Concurring Opinion: Judge Ashrafi found error with Plaintiff’s counsel’s comments. Had Defense counsel objected, it would have been sustained with an instruction to the jury. However, the comments did not satisfy the requirement of plain error (clearly capable of producing an unjust result), and therefore a new trial is not warranted, even though plaintiffs argument was improper.

NJAJ Boardwalk 2016 My First Trial JURY INSTRUCTIONS VERDICT FORMS WHAT YOU NEED TO KNOW AVOIDING TRAPS AND PITFALLS THE END Daniel E. Rosner, Esq. and K. Raja Bhattacharya, Esq.