Ramon Cuevas v. Wentworth Group

Wentworth is a property-management company, and the

Wentworth Group is the parent entity. Michael Mendillo was the

president and chief executive officer of Wentworth and the owner

of the Wentworth Group. In May 2005, Mendillo hired Ramon to

serve as one of Wentworth’s regional vice presidents -- the only

one of Hispanic descent. In that role, Ramon managed high-rise

buildings and townhouse developments. Over time, Ramon’s role

grew from managing nine to eventually twenty-four properties.

In December 2005, Wentworth hired Ramon’s brother Jeffrey

as a portfolio manager overseeing six Wentworth properties.

Jeffrey’s success in that position led to his promotion to

executive director in July 2007. In that new position, Jeffrey

reported directly to defendant Bartikofsky, who several months

earlier had begun supervising Ramon. According to Ramon,

Wentworth was “thrilled” with the profits and growth that he

7

brought to the company, that is, before Bartikofsky became his

supervisor.

Plaintiffs claim that they encountered racial

discrimination and a hostile work environment during

Bartikofsky’s supervisory reign over them. During this period,

they routinely faced biting remarks that invoked racially

demeaning stereotypes. Many of the degrading remarks directed

at Ramon occurred at senior executive meetings. Present at

those meetings were Mendillo, Bartikofsky, Alan Trachtenberg

(in-house counsel), other executives, and regional vice

presidents.

Ramon recalled that when lunch was served at meetings,

Bartikofsky, and others, would comment about the lack of

“Mexican restaurants in the area” and the inability to “get

burritos or tacos.” At a meeting when music was played, someone

interjected, “Do you think we could get a little Mariachi or

salsa music in the background” -- “something a little more to

Ramon’s taste?” At a conference to discuss entertainment, a

participant chimed in that Ramon should look through his Rolodex

because he might know “a salsa band, a Mariachi band that can

perform.” Although Ramon attempted to deflect these hurtful

comments, he was embarrassed, particularly when they were made

in the company of people he supervised.

8

At one meeting at a restaurant, one of the participants

joked that a Hispanic busboy looked like Ramon’s “twin” brother.

On such an occasion, Bartikofsky stated that if he did not pick

up the check, “Ramon can join his father [in the back] and you

guys can wash dishes.” In such an instance, Ramon explained he

would offer a comeback line, such as “[M]y dad happens to have

his own business,” but if you need help with the check, “I have

my credit card.” On some occasions, however, he did not want to

sound defensive and said nothing, and on other occasions he

said, “Enough.”

The abuse, however, continued. When Ramon came to the

office explaining that he had to fix a flat tire, someone

suggested that if a “Puerto Rican” were observed with a crowbar

kneeling by a car, he might be mistaken as “trying to steal the

car or the hubcaps.” When Ramon talked about his cat, someone

quipped, “I figured you had a little Taco Bell Chihuahua dog.”

After a networking event in Newark, a person stated, “I’m going

to walk with Ramon . . . because he’s with his people, and . . .

I’m sure he has a switchblade[.]” Two former property managers

for Wentworth testified that Bartikofsky made comments that they

would be safe in bad neighborhoods when accompanied by Ramon

because “he’s one of them” and because he was “Spanish.”

Ramon testified that the stream of belittling remarks

“chopped [him] down day by day, month by month,” leaving him

9

“feeling helpless.” Instead of focusing on his accomplishments,

the Wentworth executives turned him into a punch line. He did

not file a formal complaint because the offensive remarks were

made by or in the presence of senior executives in the company,

including the company’s president, the executive vice president,

the human resources officer, and the in-house counsel. Ramon

felt he had nowhere to go and was afraid of losing his

livelihood and insurance coverage.

Jeffrey corroborated much of his brother’s account.

Jeffrey testified that Wentworth executives made many ethnically

disparaging remarks about his Hispanic heritage. According to

Jeffrey, the executives joked that they would have to order

twice as much Mexican food and hire a salsa band because of

plaintiffs. In addition, they referred to Ramon and Jeffrey as

the two Chihuahuas. Jeffrey stated that Bartikofsky called

Ramon and him the “Rico Suave brothers,” and that Darlene

Rasmussen, the director of human resources, referred to them as

“Latin lover[s].”1 To his mind, that last remark was

particularly “grotesque” and demeaning because it came from the

human resources director.

1 “Rico Suave” is a song performed by Gerardo that describes the tribulations of a “Latin lover.” Gerardo, Rico Suave, on Mo’Ritmo (Interscope 1991).

10

By November 30, 2007, Jeffrey had reached his boiling

point. On that day, he told Trachtenberg, the in-house counsel,

“I really would like it if those comments at these executive

meetings could stop.” In speaking with Trachtenberg, Jeffrey

described the repetitive offensive remarks as “silly,”

“childish,” and “degrading.” Trachtenberg replied that Jeffrey

should “calm down” and that the remarks were “good[-]natured

ribbing,” not “that big a deal,” and should not be taken “so

seriously.” Jeffrey made it clear that he and his brother took

the matter seriously and wanted the harassing behavior to end,

and warned, “I’d really rather not have to take this to the next

level.”2

Four days later, on December 4, Bartikofsky and Wentworth’s

vice president of business development walked into Jeffrey’s

office and fired him. Shocked, Jeffrey responded that he was

given a performance-based raise of $10,000 just four weeks

earlier. Bartikofsky stated that “the company [was] going in a

different direction” and ordered him to clear out his desk and

leave the premises immediately.

Ramon was “stupefied” to learn of his brother’s firing.

Ramon called Mendillo to complain about the lack of “process” in

the decision to terminate Jeffrey.

2 Trachtenberg denied that Jeffrey ever complained to him.

11

On New Year’s Day 2008, Ramon received a telephone call

from Bartikofsky, who said that they needed to meet at the

Cheesequake Rest Area located off the Garden State Parkway.

Ramon dutifully went there. On his arrival, Bartikofsky,

accompanied by a Wentworth associate, walked up to Ramon and

handed him an envelope. Bartikofsky told Ramon not to “bother

sitting down, you’re terminated.” The letter inside the

envelope indicated that Ramon was fired for losing five accounts

and for soliciting a kickback from one of Wentworth’s vendors.

Ramon denied any involvement in a kickback scheme and indicated

he had never received a reprimand while employed at Wentworth.

Ramon and Jeffrey testified concerning the emotional

distress they suffered as a result of the workplace harassment

and the retaliatory firings.

Ramon stated that, while working at Wentworth, he felt

“beaten down,” “despondent,” and a loss of self-confidence. He

was too “embarrassed” to discuss the daily humiliations with his

wife, and he became edgy, and the two would fight. Just months

after Wentworth fired him, his wife filed for divorce. After

his termination, he became depressed and worried about his

financial security and the effect the firing would have on his

reputation. Ramon, however, never received treatment from a

mental health professional.

12

Jeffrey testified that the shabby treatment he received at

Wentworth was “extremely degrading,” affected his “psyche,” and

ruined his “self-confidence.” He questioned whether people

would judge him based on his skills and ability or merely based

on his nationality and skin color. He expressed that the firing

tarnished his reputation and that he felt as though he was

“limping” his way through life. He described the firing as “so

humiliating, so embarrassing” and recalled the pain of returning

home to his wife and daughter, just weeks before Christmas,

without a job to support his family. He fell into a depression

but did not seek mental-health counseling.

In its defense, Wentworth contended that plaintiffs were

terminated for poor work performance. Mendillo, however, could

not produce any documents to substantiate his claim that

Wentworth had received client complaints about Ramon. Mendillo

also disputed that Jeffrey’s pay raise -- given just weeks

before his termination -- was performance related. Mendillo

also asserted that Ramon’s termination was based on his

solicitation of a kickback from one of its vendors, Premier

Security. The former vice president of that company testified

that Ramon sought a percentage from Premier’s account for work

with Wentworth.

Mendillo and Bartikofsky, as well as other Wentworth

employees, testified that they neither made nor heard any

13

racially inappropriate remarks concerning plaintiffs. Mendillo

stated that twenty percent of Wentworth’s employees and forty

percent of Wentworth Group’s employees were Hispanic. He denied

that Hispanic employees were subject to discrimination.

B.

The jury returned a verdict in favor of plaintiffs on their

racial discrimination, hostile-work-environment, and retaliation

claims, but found against Ramon on his failure-to-promote claim.

The jury awarded Ramon $632,500 for past lost earnings;

$400,000 for future lost earnings; $800,000 in emotional

distress damages; and $52,500 in punitive damages ($50,000

allocated to Wentworth and $2500 allocated to Bartikovsky). The

court also awarded Ramon $253,284 in attorneys’ fees and costs.

The jury awarded Jeffrey $150,000 for past lost earnings;

$600,000 in emotional-distress damages; and $32,500 in punitive

damages ($30,000 allocated to Wentworth and $2500 allocated to

Bartikovsky). The court also awarded Jeffrey $276,243 in

attorneys’ fees and costs, and an additional $6213 to account

for the negative tax impact resulting from Jeffrey’s back-pay

award.

The trial court rejected defendants’ post-trial motions to

vacate the jury’s verdict and the damages award. In particular,

the court denied defendants’ motion for a remittitur of the

emotional-distress damages awarded to plaintiffs. In doing so,

14

the court distinguished the “comparable” cases and verdicts

selected by defendants. The court began its analysis with the

presumption of correctness that attaches to a jury verdict. The

court determined that, given the evidence presented, the

emotional-distress damages award did not shock the judicial

conscience and dismissed the notion that this was “a case of a

runaway jury.” In the court’s view, the award fell far short of

one that would be “shocking to the conscience.”

The court observed that the jury was composed of seven

individuals of diverse backgrounds, who were “extremely

attentive throughout the trial” and who “fully understood” their

charge. It pointed out that the jury failed to find in favor of

Ramon’s failure-to-promote claim and acted reasonably in

apportioning and fixing an amount for punitive damages. The

court noted that both the court and the jury “had the

opportunity to observe both plaintiffs and assess their

credibility.” Both plaintiffs, according to the court,

“presented extremely well. They appeared to be genuine,

earnest, and credible in their presentation of their testimony.

They were articulate and extremely well spoken.” According to

the court, the verdict indicated that “the jury found plaintiffs

to be more likely than not credible.”

The trial judge stated that she would “refrain from

applying [her] own feel for the case under He v. Miller.” She

15

explained: “I’ve been a proud member of the judiciary for only

a year and a half, which I believe hardly leaves me in a

position where I can appropriately apply my feel of the case.”

She expressed that she was certainly “qualified to hear this

case” and, in fact, had handled a number of LAD cases as an

attorney practicing in the field of labor and employment law.

Nevertheless, she concluded, “I simply do not think that as a

judge I can apply . . . my feel for the case.”

Defendants appealed.

C.

In an unpublished opinion, a panel of the Appellate

Division affirmed the emotional-distress damages awards

essentially for the reasons expressed by the trial court.3 The

panel rejected defendants’ argument that, in a LAD case, only

nominal damages may compensate for emotional distress when there

is no “independent corroborative proof or a showing of resulting

physical or psychological symptoms.” It emphasized that “the

Legislature intended victims of discrimination to obtain redress

3 The panel also addressed a number of issues that are not relevant to the appeal before this Court. The panel entered a judgment in favor of defendants on Jeffrey’s back-pay award, notwithstanding the verdict. The panel also vacated Ramon’s back- and front-pay awards and remanded for a new trial on those claims. Additionally, the panel remanded the issue of counsel fees and costs to await the outcome of the new trial. The panel affirmed the punitive-damages award.

16

for mental anguish, embarrassment, and the like, without

limitation to severe emotional or physical ailments,” quoting

Tarr v. Ciasulli, 181 N.J. 70, 81 (2004).

The panel explained that the standard of proof for

recovering emotional-distress damages in discrimination cases is

less stringent than the standard for recovering such damages in

a common-law intentional-infliction-of-emotional-distress case.

It maintained that, in a discrimination case, a plaintiff may

recover damages for “‘emotional distress and mental anguish

damages arising out of embarrassment, humiliation, and other

intangible injuries’ without accompanying medical proof,”

quoting Tarr, supra, 181 N.J. at 82. Thus, according to the

panel, plaintiffs were entitled to a recovery on their

emotional-distress claims, even in the absence of medical or

expert testimony supporting those claims.

Last, the panel noted that, “[d]espite the myriad of cases

cited by defendants where courts reduced damage awards in

discrimination cases, the Supreme Court has cautioned against

engaging in such comparisons and ruled that the Appellate

Division ‘must refrain from merely substituting its differing

opinion without appropriate deference to the trial court[,]’”

quoting He, supra, 207 N.J. at 236. Although the panel

acknowledged that the emotional-distress damages awards were

17

“generous,” the awards were not “so excessive or so high as to

shock the judicial conscience.”

We granted defendants’ petition for certification “limited

to the issue of whether the trial court erred in denying

defendants’ request for remittitur.” Cuevas v. Wentworth Grp.,

220 N.J. 266 (2015).4 We also granted the motions of the New

Jersey Defense Association, the National Employment Lawyers

Association of New Jersey, and the New Jersey Association for

Justice to participate as amici curiae.

II.

A.

Defendants contend that the trial court and Appellate

Division erred in not granting their remittitur motion on the

emotional-distress damages. First, they argue that the

“insensitive” remarks attributed to Wentworth’s personnel were

just “teasing” and “joking” and not “the type of behavior that

constitutes harassment and merits damages.”

Second, they maintain that, by failing to consider

comparable verdicts, the trial court did not follow the dictates

of He, supra, 207 N.J. 230. Defendants also fault plaintiffs

for not attempting to distinguish “the numerous decisions cited

4 We declined to grant certification on a number of other issues raised by defendants in their petition. See Cuevas, supra, 220 N.J. 266. We also denied plaintiffs’ cross-petition for certification. Cuevas v. Wentworth Grp., 220 N.J. 269 (2015).

18

by Wentworth where [excessive] emotional distress awards were

vacated or remitted” and for not pointing to any comparable LAD

award.

Third, defendants suggest that because the trial judge

refrained from “imparting her ‘feel of the case,’” her ruling

should be accorded less deference. In this light, defendants

insist that “the brevity of the trial judge’s experience [made]

the comparison to similar cases . . . even more important.”

Last, defendants submit that the Appellate Division

disregarded the mandate of He by not mentioning that comparable

cases from the judge’s own experience will provide guidance in

determining whether a damages award shocks the judicial

conscience.5

B.

5 Despite this Court’s limited grant of certification, defendants have made part of their challenge to the denial of remittitur an attack on the charge to the jury and plaintiffs’ summations to which no objections were made at trial. Defendants claim that the emotional-distress damages award should be vacated because the court’s instructions and plaintiffs’ summations suggested that the jury could consider the permanency of the emotional harm caused to plaintiffs, even though no expert testimony supported permanent harm. Notably, defendants’ attorney at trial expressly approved of the court’s charge on emotionaldistress damages: “[T]he court’s emotional distress charge, as written by the court, accurately indicates to the jury what exactly they should be looking at when they’re assessing this concept of emotional distress damages.” Additionally, the Appellate Division found that any erroneous summation remarks by plaintiffs’ counsel regarding the scope of emotional-distress damages were harmless and that the jury charge was correct. In any event, these issues are not before us.

19

Amicus New Jersey Defense Association submits that a

remittitur analysis must involve a comparison of awards in

similar cases found in reported and unreported opinions and

published in the Law Journal’s Verdict Reports to “safeguard

against excessive verdicts and ensure predictability of damages

in civil litigation.” Amicus contends that an emotional

distress claim supported by only the testimony of the victim and

family members -- and not by medical testimony -- should be

limited to nominal damages. It describes the emotional-distress

claims in this case as “garden variety,” warranting nothing more

than nominal damages, because plaintiffs did not seek medical

treatment or present expert testimony to support their claims.

C.

Plaintiffs counter that this is not a case of harmless

teasing or offhand comments but of actionable racial harassment

and discrimination and that sufficient credible evidence in the

record supports the jury’s award of emotional-distress damages.

Plaintiffs submit that the trial judge followed the dictates of

He, supra, 207 N.J. 230, by explaining her reasons for not

granting a remittitur of the jury award. Furthermore, according

to plaintiffs, although the trial judge mentioned that she would

not impart her “feel of the case” because of her “limited

judicial experience,” she, in fact, conveyed her “feel of the

case” by commenting on the credibility of plaintiffs’ testimony

20

and on the jury’s attentiveness during the trial. Plaintiffs

urge this Court to accord deference to the trial judge’s

explanation for finding that the damages award did not shock the

judicial conscience.

D.

Amicus National Employment Lawyers Association of New

Jersey asserts that, in amending the LAD to allow recovery for

emotional-distress damages caused by discrimination, the

Legislature intended the remedy plaintiffs received in this

case. Amicus notes that “this Court has repeatedly upheld very

significant emotional distress damage award[s]” in LAD cases,

even when employees victimized by discrimination did not seek

medical or psychological treatment. Last, it argues that this

is not the unusual case envisioned by He that meets the shock

the-conscience standard.

E.

Amicus New Jersey Association for Justice argues that a

court’s discretion to set aside a supposedly excessive award

should be based on the objective record of the case. Amicus

submits that a judge’s “feel of the case” should be afforded

“minimal weight” and should not serve as an opportunity for a

judge to substitute her observations for those that could

equally be made by the jury.

21

Amicus also proposes that trial judges should not rely on

their personal experiences in considering remittitur motions

because those experiences are outside of the record and cannot

be scrutinized through the adversarial process. It maintains

that the fate of a remittitur motion should not depend on the

fortuity of the personal experiences of the judge sitting on the

case.

Last, amicus urges this Court to abandon the practice of

having trial courts rely on “similar verdicts” to assess the

merits of a remittitur motion. It contends that information

relating to a comparable verdict is not part of the trial record

and is typically based on such limited facts that a proper

comparison is not possible. Amicus states that a grossly

excessive award will often be so glaring and obvious that a

comparative-verdict methodology is unnecessary.

III.

A court has the power to grant a remittitur of a grossly

excessive damages award returned by a jury. Here, we must give

guidance to courts on the standards that will govern review of a

jury’s award of emotional-distress damages in deciding a

remittitur motion. We begin with a brief description of

remittitur.

A.

22

When a court is persuaded that a new trial must be granted

based solely on the excessiveness of the jury’s damages award,

it has the power to enter a remittitur reducing the award to the

highest amount that could be sustained by the evidence. Fertile

v. St. Michael’s Med. Ctr., 169 N.J. 481, 500 (2001). The

plaintiff has the choice either to accept the award as remitted

by the court or to proceed with a new damages trial before

another jury. Id. at 491. A damages award that is so grossly

excessive that it shocks the judicial conscience cannot stand,

and therefore remittitur allows the parties the option of

avoiding the unnecessary expense and delay of a new trial. Id.

at 491-92.

Courts, however, must exercise the power of remittitur with

great restraint. That is so because in our constitutional

system of civil justice, the jury -- not a judge -- is charged

with the responsibility of deciding the merits of a civil claim

and the quantum of damages to be awarded a plaintiff. Johnson

v. Scaccetti, 192 N.J. 256, 279 (2007); see also N.J. Const.

art. I, ¶ 9 (“The right of trial by jury shall remain

inviolate[.]”). The drafters of our Constitution placed their

“trust in ordinary men and women of varying experiences and

backgrounds, who serve as jurors, to render judgments concerning

liability and damages.” Johnson, supra, 192 N.J. at 279.

23

Determining an award that properly compensates an accident

victim for pain and suffering or the victim of racial

discrimination for emotional distress is “not susceptible to

scientific precision.” See ibid. There is no neat formula for

translating into monetary compensation an accident victim’s pain

and suffering or the mental anguish of a victim of invidious

racial discrimination in the workplace. See id. at 280. In a

case of workplace discrimination in violation of the LAD, jurors

are asked to exercise a high degree of discernment, through

their collective judgment, to determine the proper measure of

damages for emotional distress, which includes “embarrassment,

humiliation, indignity, and other mental anguish.” Model Jury

Charges (Civil) § 2.36, “Past and Future Emotional Distress in

an Employment Law Case” (2014). Our model jury instruction on

emotional-distress damages in discrimination cases recognizes

the inexact nature of calculating such damages. Jurors are

informed:

You each know from your common experience the nature of emotional distress and you also know the nature and function of money. The task of equating the two so as to arrive at a fair and reasonable award of damages requires a high order of human judgment. For this reason, the law can provide no better yardstick for your guidance than your own impartial judgment and experience.

[Ibid.]

24

Although a successful plaintiff in a discrimination action

“is entitled to fair and reasonable compensation for any

emotional distress,” ibid., “reasonable people may differ on

what is fair compensation in any particular case,” see Johnson,

supra, 192 N.J. at 280. Because no two juries likely will award

the same damages for emotional distress in a discrimination

case, a permissible award may fall within a wide spectrum of

acceptable outcomes. Within that acceptable broad range, even a

seemingly high award should not be disturbed; only if the award

is one no rational jury could have returned, one so grossly

excessive, so wide of the mark and pervaded by a sense of

wrongness that it shocks the judicial conscience, should a court

grant a remittitur. Johnson, supra, 192 N.J. at 279-83; see

also Jastram v. Kruse, 197 N.J. 216, 235 (2008) (“To be sure . .

. this was a high verdict, but that does not mean it was

excessive.”).

A jury’s verdict, including an award of damages, is cloaked

with a “presumption of correctness.” Baxter v. Fairmont Food

Co., 74 N.J. 588, 598 (1977). The presumption of correctness

that attaches to a damages award is not overcome unless a

defendant can establish, “clearly and convincingly,” that the

award is “a miscarriage of justice.” Id. at 596 (quoting R.

4:49-1(a)). In deciding whether to grant a new trial or

remittitur based on a purportedly excessive damages award, the

25

court must give “due regard to the opportunity of the jury to

pass upon the credibility of the witnesses.” He, supra, 207

N.J. at 248 (quoting R. 4:49-1). A “judge may not substitute

his judgment for that of the jury merely because he would have

reached the opposite conclusion; he is not a . . . decisive

juror.” Baxter, supra, 74 N.J. at 598 (quoting Dolson v.

Anastasia, 55 N.J. 2, 6 (1969)).

Because a jury’s award of damages is presumed to be

correct, when considering a remittitur motion, a court must view

“the evidence in the light most favorable to the plaintiff.”

Johnson, supra, 192 N.J. at 281 (quoting Taweel v. Starn’s

Shoprite Supermarket, 58 N.J. 227, 236 (1971), overruled on

other grounds by Fertile, supra, 169 N.J. 481).

B.

The standard for reviewing a damages award that is claimed

to be excessive is the same for trial and appellate courts, with

one exception -- an appellate court must pay some deference to a

trial judge’s “feel of the case.” Id. at 282 (quoting Baxter,

supra, 74 N.J. at 600). That is so because “[i]t is the judge

who sees the jurors wince, weep, snicker, avert their eyes, or

shake their heads in disbelief,” Jastram, supra, 197 N.J. at

230, who may know “whether the jury’s verdict was motivated by

improper influences,” He, supra, 207 N.J. at 250 (quoting

Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 58 (2009)), and who

26

may be privy to observations that could not have been made by

the jury, He, supra, 207 N.J. at 255. Under the guise of “feel

of the case,” however, a trial judge cannot overthrow the jury’s

credibility determinations and findings of fact and then

substitute her own. Ultimately, the jury’s “feel of the case”

controls the outcome of the issues in dispute. A judge’s “feel

of the case” based on observing a party or a witness in the

courtroom is entitled to minimal weight if the jury had the same

opportunity to make similar observations. Baxter, supra, 74

N.J. at 600.

In the present case, the trial judge expressed that she

would “refrain from applying [her] own feel for the case under

He v. Miller.” By that comment, the trial judge apparently

meant that she was reluctant to assess whether the jury returned

an excessive damages award based on her personal experiences as

a practicing attorney in the field of employment law or as a

judge with eighteen months’ service on the bench. For reasons

we will discuss, the trial judge made the right decision by not

injecting her own professional experiences as a benchmark for

evaluating the correctness of the damages award.

Although eschewing the term “feel of the case,” the trial

judge observed that the jurors were “extremely attentive

throughout the trial,” “fully understood” their charge, and

carefully apportioned and set the amount of punitive damages.

27

She also remarked that plaintiffs “presented extremely well,”

appearing “genuine, earnest, and credible.” Most importantly,

perhaps, the judge concluded that the jury had the opportunity

to assess the testimony of all witnesses and that the jury

evidently found plaintiffs to be more credible.

We agree with defendants that the trial judge’s findings

are not entitled to any special deference. That would be so

even had the trial judge characterized her findings as “feel of

the case.” But we also agree with the trial judge that the

jury’s findings must be accorded deference.

We now turn to the issue of whether the trial judge’s

personal experiences with seemingly comparable cases should play

any role in deciding a remittitur motion.

C.

In He, supra, the Court expressed approval of a trial judge

relying on his own experience with personal-injury verdicts as a

litigator and judge in determining whether a pain-and-suffering

award returned by a jury shocked the judicial conscience. 207

N.J. at 256, 258-59. Although that approach may have been

suggested by prior case law, see, e.g., Johnson, supra, 192 N.J.

at 281 (“[T]he court may rely on its knowledge of other injury

verdicts[.]”), we now conclude that a trial judge’s reliance on

her personal experiences as a practicing attorney or jurist in

28

deciding a remittitur motion is not a sound or workable

approach.

As already mentioned, a jury’s damages award should not be

overturned unless it “shock[s] the judicial conscience.”

Johnson, supra, 192 N.J. at 281. An award that shocks the

judicial conscience is one that is “wide of the mark,” “pervaded

by a sense of wrongness,” ibid. (quoting Baxter, supra, 74 N.J.

at 598-99), and “manifestly unjust to sustain,” ibid. The

shock-the-judicial-conscience standard is objective in nature

and transcends any individual judge’s personal experiences. See

Baxter, supra, 74 N.J. at 597-98. That is a notion that Chief

Justice Hughes conveyed in addressing this subject:

[A]ll judges, whether trial or appellate, are human and . . . the judgment of each is inevitably affected by subjective prejudices or predispositions relating to properties or specific tendencies of the individual mind, as distinguished from general or universal experience. These natural subjective inclinations derive from the particular background or experience of the individual judge, whether from tenure on the bench in examining or recalling other cases, from previous activity in law practice in diverse fields or, for that matter, from any human experience, such as a youthful background of poverty or wealth or the like. Such individuality of approach extends of course to the field of admeasuring damages flowing from injuries caused by negligence, as in the present case, or other wrong. It is for the merging of such individualized propensities of mind into an amalgam of common judicial experience related to the doing of justice that judges are admonished to resist the

29

natural temptation to substitute their judgment for that of the jury.

[Id. at 596-97 (footnote omitted).]

A number of practical reasons caution against a trial judge

injecting personal experiences of other verdicts into a

remittitur analysis -- a caution followed by the judge in the

present case. The trial judge’s personal experiences, as a

litigator or on the bench, are not part of the record. Those

experiences are not subject to testing through the adversarial

process. The judge cannot be examined to determine whether her

recollection is accurate, whether the facts are sufficiently

similar to the unique circumstances of the case tried, or

whether the cohort of cases in the judge’s mind is a

statistically significant number from which to draw any

definitive judgment. In short, “the process of using these

personal experiences defies greatly valued attributes of our

judicial system, namely, a party’s right to discovery and the

right to confront and cross-examine information used to

adjudicate the dispute.” Mickens v. Misdom, 438 N.J. Super.

531, 540-41 (App. Div.), certif. denied, 221 N.J. 287 (2015).

If the trial judge’s personal experiences as a private

practitioner and jurist were to be given weight in deciding a

remittitur motion, then the same collective experiences of the

appellate judges and Supreme Court Justices engaged in a de novo

30

review would likewise be given weight. If that standard

applied, then, arithmetically, the experiences of seven members

of this Court would always outweigh those of a single trial

judge. Such an idiosyncratic approach is the antithesis of the

objective approach articulated by Chief Justice Hughes in

Baxter, supra, 74 N.J. at 597.

Moreover, trial judges, believing that their personal

experiences matter in deciding a remittitur motion, have

disclosed their curriculum vitae as evidence of their ability to

render a judgment. In He, supra, the trial judge, who had been

on the bench less than a year, announced that he had practiced

personal injury law for twenty-two years and had been a

Certified Civil Trial Attorney. 207 N.J. at 244. In Mickens,

supra, the trial judge related that he had practiced as a trial

attorney for twenty-nine years; that during twenty of those

years he had handled almost exclusively personal-injury cases

and tried 100 civil jury trials; that he had been a Certified

Civil Trial Attorney, served on several Supreme Court

committees, lectured, and written two books on personal-injury

law; and, that as a civil trial judge in the last year, he had

presided over forty-one trials. 438 N.J. Super. at 542-43. The

trial judge in the present case disclosed that she practiced in

the field of labor and employment law, even though she did not

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rely on her personal experience in denying the remittitur

motion.

The grant or denial of a remittitur motion cannot depend on

the happenstance of the personal experiences of the trial or

appellate judges assigned to a particular case. To the extent

humanly possible, judges must administer an objective judicial

standard. Accordingly, a judge’s personal experiences with

seemingly similar cases while in practice and on the bench are

not relevant in deciding a remittitur motion.

We next address the claim that the trial judge erred in not

considering the purportedly comparable verdicts defendants

presented in support of the remittitur motion.

D.

We conclude that the comparison of supposedly similar

verdicts to assess whether a particular damages award is

excessive is ultimately a futile exercise that should be

abandoned. Rather, courts should focus their attention on the

record of the case at issue in determining whether a damages

award is so grossly excessive that it falls outside of the wide

range of acceptable outcomes.

Although He, supra, 207 N.J. at 256-57, endorsed the use of

comparable verdicts in remittitur motions, we had already opened

the door to an analysis of comparable awards in remittitur

cases. See Johnson, supra, 192 N.J. at 281 (“Although the court

32

may rely on its knowledge of other injury verdicts, if it does

so, it must give a factual analysis of how the award is

different or similar to others to which it is compared.”

(internal citation omitted)); Jastram, supra, 197 N.J. at 234

(same); Fertile, supra, 169 N.J. at 501 (upholding trial court’s

grant of remittitur, which was based, in part, on court’s

“experience with other injury verdicts”). What we have come to

learn, perhaps too slowly, is that the facts and plaintiffs in

every personal-injury or LAD case are fundamentally different

and therefore a true comparative analysis is illusory.

Here, the trial judge did not find “comparable” cases and

verdicts selected by defendants to have sufficient factual

similarities to plaintiffs’ case to allow for a true comparison.

However, if the court found a true comparable case, the next

question would be, which jury conferred the right monetary

award? Any true comparative analysis would require a

statistically satisfactory class of cases, and the class would

have to be composed of not only factually similar cases but also

similarly constituted plaintiffs. Then, the court would have to

announce the broad range of acceptable emotional-distress

awards, given that no two juries would likely return the same

award. Stating the issue suggests the futility of that process.

The jury in the case before us sat through days of trial

and heard the testimony of many witnesses. The jury presumably

33

made credibility assessments and determined the extent of the

emotional injuries suffered by plaintiffs, including how long

those injuries afflicted their lives and damaged their

relationships. The accounts of jury verdicts reported in the

New Jersey Law Journal and other publications, and even

unreported decisions of the Appellate Division, are just

summaries. Summaries cannot compare to what a jury hears from a

witness on the stand; to the timbre of a voice that recalls the

emotional cuts and slashes felt from racially animated

discrimination; to in-depth descriptions of daily workplace

humiliations that mentally beat down an employee; and to first

hand accounts of mental anguish -- anguish that leads to

depression and frays personal relationships. The Appellate

Division, in Mickens, supra, moreover, expressed concern over

the use of jury-verdict summaries in the New Jersey Law Journal

and similar publications because they “are based on hearsay or

multiple levels of hearsay” and often times are “one-sided.”

438 N.J. Super. at 543 n.9.

The unique nature of each case and the suffering of each

plaintiff is the reason why juries are told that, in fixing a

monetary amount for emotional-distress damages, there is “no

better yardstick for your guidance than your own impartial

judgment and experience.” Model Jury Charges (Civil) § 2.36,

34

“Past and Future Emotional Distress in an Employment Law Case”

(2014).

Juries and judges will often have different opinions about

what constitutes a sufficient monetary award to compensate a

victim for pain and suffering following a tortious injury.

There is no better example than He itself. In He, supra, the

first jury awarded the plaintiff-wife $1,000,000 in pain-and

suffering damages and the plaintiff-husband $100,000 in loss-of

consortium damages. 207 N.J. at 239. The trial judge granted

the remittitur motion, reducing the wife’s award to $200,000 and

her husband’s award to $20,000. Ibid. The plaintiffs chose a

new trial rather than accede to the remittitur. Mickens, supra,

438 N.J. Super. at 537 n.3 (citation omitted). The second jury

awarded the plaintiff-wife $500,000 for her pain and suffering

and her husband $100,000 for loss of consortium. Ibid.

(citation omitted). The second trial judge found that the jury

award was not excessive and denied the remittitur, and the

Appellate Division affirmed. Ibid.

Two different juries in He decided that the husband was

entitled to $100,000 in loss-of-consortium damages. The first

trial judge found that amount excessive, the second trial judge

did not. The first jury awarded the plaintiff-wife pain-and

suffering damages in the amount of $1,000,000, the second jury

in the amount of $500,000. The first trial judge set the

35

remittitur at $200,000, the second trial judge found the

$500,000 award not excessive.

The two trials in He suggest that different juries and

judges may have different views on the issue of adequate

compensation for pain and suffering -- all reasonable and

falling within a broad range of acceptable outcomes.

In LAD cases, courts have remitted or vacated emotional

distress awards. See, e.g., Abrams v. Lightolier, Inc., 841 F.

Supp. 584, 594 (D.N.J. 1994) (remitting $100,000 award to

$2500), aff’d in part and rev’d in part on other grounds, 50

F.3d 1204 (3d Cir. 1995); Grasso v. W. N.Y. Bd. of Educ., 364

N.J. Super. 109, 115 (App. Div. 2003) (upholding trial court’s

remittitur of emotional-distress award from $110,000 to

$11,000), certif. denied, 179 N.J. 312 (2004); Spragg v. Shore

Care, 293 N.J. Super. 33, 62-63 (App. Div. 1996) (vacating

$42,500 emotional-distress award in LAD gender-discrimination

wrongful-termination case).

On the other hand, courts have upheld assertedly high

emotional-distress LAD awards, even in the absence of expert

testimony from mental-health professionals. See, e.g., Rendine

v. Pantzer, 141 N.J. 292, 311-13 (1995) (affirming trial court’s

denial of remittitur and upholding jury’s emotional-damages

awards of $105,000 and $125,000 for two plaintiffs in LAD

gender-discrimination wrongful-termination case); Quinlan v.

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Curtiss-Wright Corp., 409 N.J. Super. 193, 217 (App. Div. 2009)

(upholding emotional-distress damages of $187,128 in LAD gender

discrimination failure-to-promote case), rev’d on other grounds,

204 N.J. 239 (2010); Lockley v. Turner, 344 N.J. Super. 1, 12-14

(App. Div. 2001) (upholding $750,000 emotional-damages award

where “[p]laintiff and his wife were excellent credible

witnesses on the effect of sexual harassment on their marriage

and family life, and the emotional distress that the marital

tensions caused the plaintiff” (alteration in original)), aff’d

in part and modified in part on other grounds, 177 N.J. 413

(2003).

The cases cited above may reveal nothing more than that the

unique circumstances of each case must guide the outcome. The

realization that a wide range of potential awards is permissible

counsels for judicial restraint. That is why the remittitur

standard is set so high -- a jury award must be so grossly

excessive that it shocks the judicial conscience.

A number of states do not allow a collateral attack on a

jury’s damages award for pain and suffering or emotional

distress through the use of purportedly comparable cases. See,

e.g., McKissick v. Frye, 876 P.2d 1371, 1388 (Kan. 1994)

(“[T]here is no provision in current law for comparison of one

plaintiff’s recovery with another’s to serve as the basis for

overturning a jury’s verdict.”); Seltzer v. Morton, 154 P.3d

37

561, 588 (Mont. 2007) (“[W]e reject the notion that a

compensatory award for emotional distress upheld in one case is

in any way relevant to the propriety or size of an emotional

distress award in another case.”); Allied Concrete Co. v.

Lester, 736 S.E.2d 699, 708 (Va. 2013) (“Although a trial court

may grant remittitur on the grounds that the award is

disproportionate to the injuries suffered, we have specifically

rejected comparing damage awards as a means of measuring

excessiveness.” (internal citation omitted)).

At oral argument before this Court, counsel suggested that

attorneys are inundating our trial courts with comparable

verdicts on remittitur motions. We do not believe that having

our trial courts review snippets of information about cases that

are not truly comparable is a worthwhile use of judicial

resources or likely to bring greater justice to either

plaintiffs or defendants. We therefore disapprove of the

comparative-case analysis in deciding remittitur motions.

We are confident that the instances in which a remittitur

should be granted will be glaring and obvious from the record.

For example, in Besler, supra, a school board president violated

the civil rights of the plaintiff, a child’s parent, by not

allowing him to complete a statement critical of the board at a

public meeting. 201 N.J. at 555. The plaintiff offered

evidence of only “transient embarrassment and humiliation as a

38

consequence of the abrupt manner in which he was prevented from

completing his remarks.” Ibid. We vacated the $100,000

emotional-distress award because it was based on “de minimis

mental anguish, or fleeting embarrassment, or mere shock and

bewilderment.” Id. at 580.

Ultimately, a damages award cannot stand if it is so

grossly disproportionate to the injury suffered that it shocks

the judicial conscience. We cannot envision here the various

scenarios that may call for the application of remittitur.

Suffice it to say, remittitur remains a judicial remedy to

correct miscarriages of justice caused by grossly excessive

damages awards.

To guide judges in carrying out their duties in deciding

remittitur motions, we can give no better instruction than the

one given to juries in the model jury charge. See Model Jury

Charges (Civil) § 2.36, “Past and Future Emotional Distress in

an Employment Law Case” (2014). Judges know the nature of

emotional distress and the function of money and that

correlating the two “to arrive at a fair and reasonable award of

damages requires a high order of human judgment.” Ibid. Judges

also know that, among different juries, there will be a wide

range of acceptable damages awards. In determining whether a

particular award shocks the judicial conscience, judges must

39

rely on that “amalgam of common judicial experience related to

the doing of justice.” Baxter, supra, 74 N.J. at 597.

In the end, a thorough analysis of the case itself; of the

witnesses’ testimony; of the nature, extent, and duration of the

plaintiff’s injuries; and of the impact of those injuries on the

plaintiff’s life will yield the best record on which to decide a

remittitur motion.

IV.

Based on our de novo review of the record, we agree with

the Appellate Division that the trial court properly denied

defendants’ remittitur motion. The jury returned a verdict

finding that defendants violated New Jersey’s Law Against

Discrimination by discriminating against plaintiffs on the basis

of race, by subjecting plaintiffs to a hostile-work environment,

and by firing them in retaliation for their complaints about

their treatment.

In passing the LAD, the Legislature specifically found that

victims of discrimination “suffer personal hardships” among

which are “physical and emotional stress”; “severe emotional

trauma”; “anxiety”; and “career, . . . family and social

disruption.” N.J.S.A. 10:5-3. The Legislature understood the

psychological toll that discrimination may have on victims.6

6 Following the dictates of the LAD, this Court found that a singularly vile and vulgar remark made by a chief executive to

40

Indeed, “the Legislature intended victims of discrimination

to obtain redress for mental anguish [and] embarrassment,” even

when their emotional and physical ailments cannot be

characterized as severe. Tarr, supra, 181 N.J. at 81. Because

of the special harm caused by willful discrimination in the

workplace, “compensatory damages for emotional distress,

including humiliation and indignity . . . , are remedies that

require a far less stringent standard of proof than that

required for a tort-based emotional distress cause of action.”

Id. at 82. Specifically, in a LAD case, a plaintiff is not

required to provide “expert testimony or independent

corroborative evidence . . . to support [an] award of emotional

distress damages.” Id. at 79 (citing Rendine, supra, 141 N.J.

at 312). Plaintiffs in this case were entitled to “recover all

natural consequences of [defendants’] wrongful conduct,

including emotional distress and mental anguish damages arising

out of embarrassment, humiliation, and other intangible

injuries.” Id. at 82; cf. Ostrowski v. Azzara, 111 N.J. 429,

438 (1988) (“[D]efendant must take plaintiff as he finds him.”

(internal quotation marks omitted) (quoting Frame v. Kothari,

212 N.J. Super. 498, 501 (Law Div. 1985), aff’d in part and

an employee injected such hostility into the working environment and so altered the conditions of employment that it gave rise to a cause of action under the LAD. Taylor v. Metzger, 152 N.J. 490, 506 (1998).

41

rev’d in part, 218 N.J. Super. 537 (App. Div. 1987), aff’d, 115

N.J. 638 (1989)).

Plaintiffs did not offer expert testimony to buttress their

emotional-distress damages claims, and because they did not do

so, the court correctly did not charge the jury on emotional

distress damages projected into the future. See Battaglia v.

United Parcel Serv., Inc., 214 N.J. 518, 554 (2013) (holding

that, without expert testimony, emotional-distress damages are

limited to past emotional-distress damages through time of

trial). The jury was permitted to quantify the emotional

distress damages suffered by plaintiffs up to the time of trial.

Plaintiffs detailed in their testimony a nine-month period

of racial harassment and hostility in the workplace carried out

by and in the presence of the highest-ranking officers of

Wentworth. Plaintiffs were subjected to crude and degrading

remarks that invidiously stereotyped them and their heritage --

remarks that cast them in an inferior light and that made

plaintiffs feel that they were judged by their appearance and

race rather than by their talents and skills. Although both

plaintiffs held important positions at Wentworth, they were

referred to as Chihuahuas, Latin lovers, and the “Rico Suave

brothers.” They were the subject of repeated disparaging

Hispanic stereotypes from food and music to busboys and stealing

hubcaps.

42

Ramon testified that he felt “chopped down day by day,

month by month,” “helpless,” “despondent,” and “exhausted.” He

was beset by anxiety over his financial security and his

professional reputation, particularly after the retaliatory

firing. Jeffrey described how Wentworth’s degrading conduct

toward him affected his “psyche” and ruined his “self

confidence,” how humiliated he was to be fired several weeks

before Christmas for complaining about discriminatory treatment,

how anxious he became about whether he could support his family,

and how he fell into a depression.

The jury returned an award of $800,000 for Ramon and

$600,000 for Jeffrey in emotional-distress damages suffered from

April 2007, when the harassment began, until July 2011, the time

of trial. The mental anguish and humiliation here were

sustained over a long period, and were not fleeting or

insubstantial. Although these awards are probably on the high

end, like the trial court and the Appellate Division, we cannot

say that they are so “wide of the mark,” so “pervaded by a sense

of wrongness,” so “manifestly unjust to sustain,” that they

shock the judicial conscience. See Johnson, supra, 192 N.J. at

281 (quoting Baxter, supra, 74 N.J. at 598-99).