N.J. Distress Awards More Likely to Stick After Ruling

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By Jay-Anne B. Casuga

Sept. 23 — New Jersey employers defending discrimination cases may have a tougher time lowering emotional distress jury awards, under a recent ruling by the state’s high court, attorneys told Bloomberg BNA.

The New Jersey Supreme Court’s ruling in Cuevas v. Wentworth Group is “hugely important” because it “changed the landscape” for how courts in the state are to consider motions to lower jury awards, known as motions for remittitur, attorney Richard M. Schall of Schall & Barasch in Moorestown, N.J., told Bloomberg BNA Sept. 23 ( Cuevas v. Wentworth Grp. , 2016 BL 311167, N.J., No. 075077, 9/19/16 ).

Schall is a member of the National Employment Lawyers Association of New Jersey, which submitted an amicus brief in the case.

“As a result, we’re going to see far fewer motions for remittitur,” Schall said, explaining that the ruling affects not only employment law cases but other areas of civil litigation, such as personal injury and products liability.

In Cuevas, the court upheld a $1.4 million jury award for emotional distress damages to Ramon and Jeffrey Cuevas, Hispanic brothers who worked as regional vice president and executive director, respectively, for Wentworth Property Management Corp.

Executives Called ‘Chihuahuas.’

The brothers alleged they were called “chihuahuas,” “Latin lovers” and the “Rico Suave brothers,” referring to a 1990s Latin rap song. They sued Wentworth for racial discrimination and harassment in violation of the New Jersey Law Against Discrimination.

Attorney Darren J. Del Sardo of Del Sardo & Montanari in Woodland Park, N.J., who represented one of the employees in Cuevas, told Bloomberg BNA Sept. 23 that he agrees that the ruling clarifies the law on remittitur and the standards that should be applied when reviewing each individual case.

The ruling is also “very favorable for employees” because it holds that emotional distress damages can be awarded to employees regardless of whether they received medical treatment from a psychologist or psychiatrist, Del Sardo said.

Attorneys representing Wentworth and the New Jersey Defense Association, which filed an amicus brief in the case, didn’t immediately respond to Bloomberg BNA’s requests for comment. The New Jersey Association of Justice, another amicus curiae in the case, also didn't immediately respond to a request for comment.

Ruling Will ‘Streamline’ Cases

Attorney John J. Piserchia, who represented one of the Cuevas brothers in the case, told Bloomberg BNA that the court’s ruling that emotional distress damages can be granted absent evidence of medical treatment will help “save money” and “streamline” the litigation process.

If the court had ruled that medical experts are necessary, that would have “driven up litigation costs” and make trials longer, he said.

“The ruling’s very helpful in that regard,” Piserchia said.

No Personal Experience, Comparative Analyses

The state high court “made it very clear from here on going forward” that trial judges are not to use their own personal experiences in deciding whether to lower a jury award, Schall said.

The court also prohibited judges from conducting comparative analyses of other jury verdicts in similar cases, he added.

Previously, plaintiffs were concerned about judges lowering awards to match verdict amount averages in other cases, Schall said.

“What they are now saying is that every case is different,” he said. “You cannot compare one case to another. Every case must be evaluated based on its own facts.”

In so ruling, the court overturned its 2011 decision in He v. Miller, 24 A.3d 251 (N.J. 2011). He was a personal injury case in which the high court approved of a trial judge’s reliance on his experience as a litigator and judge with personal-injury verdicts to determine whether a jury award needed to be reduced because it “shocked the judicial conscience.”

“It’s not that often that the New Jersey Supreme Court will reverse one of its earlier decisions, particularly when that earlier decision is only a few years older,” Schall said. “The justices were concerned that trial judges needed clarification as to what factors they should be considering on remittitur motions and they felt that their prior decision in He v. Miller was really wrongly decided.”

John D. North, Paul A. Rowe, Gary K. Wolinetz and Maja M. Obradovic of Greenbaum, Rowe, Smith & Davis in Iselin, N.J., represented Wentworth. Natlie H. Mantell, Christine A. Amalfe, Suzanne H. Brock , and Mario J. Delano of Gibbons in Newark, N.J., represented the New Jersey Defense Association as amicus curiae. Amos Gern and Robert C. Sanfilippo of Starr, Gern, Davison & Rubin in Roseland, N.J., represented the New Jersey Association for Justice as amicus curiae.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editor responsible for this story: Susan J. McGolrick at smcgolrick@bna.com

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