Risko v. Thompson Muller Automotive Group, Inc.

Justice RIVERA-SOTO,

concurring in part and dissenting in part.

The majority “conclude[s] that a new trial on damages is warranted based on the ‘cumulative’ effect of the summation notwithstanding the final instructions to the jury.” Ante at 520, 20 A.3d at 1132-33. It limits the relief to be afforded defendant “because defendant has not demonstrated that the summation concerning damages somehow affected the findings as to liability.” Ibid. Because that conclusion is based in equal parts on an incorrect recital of the trial court’s determination and an inappropriately expansive view of the scope of appellate review applicable here, I must dissent from so much of the majority’s opinion that grants a new trial limited to damages only. In my view, the better and more correct result is the one reached by the trial court: the grant of a new trial on both liability and damages.

After the unnecessary flights of rhetoric contained in plaintiffs summation, the trial court’s palpably adverse reaction thereto, the later self-admitted failure of the trial court to address those concerns, and the return of the jury’s verdict in plaintiffs favor, all as described in the majority’s opinion, ante at 513-15, 20 A.3d at 1127-29, defendant moved for a new trial. The trial judge, after explaining he was granting defendant’s motion for a new trial based on two independent but intertwined reasons—the comments *526 of plaintiffs counsel in summation, and the trial court’s failure to address them through a contemporaneous limiting instruction— engaged in the following exchange with plaintiffs counsel:

[PLAINTIFF’S COUNSEL]: You’re ordering a new trial on all issues?

THE COURT: Yes.

[PLAINTIFF’S COUNSEL]: And the reason for the new trial on the liability issue would be?

THE COURT: I think the entire process was tainted. And obviously I can’t go to that jury now and find out how they were influenced, that’s something we don’t do, so I have to assume that all of it was tainted. I don't want to. I would love to be able to cut this down, but I don’t think I can....

[ (emphasis supplied).]

In making that determination, the trial judge, as he is duty-bound to do, clearly was relying on “the intangible ‘feel of the case’ which he has gained by presiding over the trial.” Dolson v. Anastasia, 55 N.J. 2, 6 , 258 A.2d 706 (1969); see also Pellicer ex rel. Pellicer v. St. Barnabas Hosp., 200 N.J. 22, 58 , 974 A.2d 1070 (2009) (explaining that “[o]rdinarily we rely on trial courts and their firsthand ‘feel of the case’ as it bears on an analysis of whether the jury’s verdict was motivated by improper influences. Baxter [ v. Fairmont Food Co.], 74 N.J. [588, ]600[, 379 A.2d 225 (1977) ] (acknowledging trial court’s ‘feel of the case’ is advantageous as compared with appellate court’s dependence on cold record); see Fritsche v. Westinghouse Elec. Corp., 55 N.J. 322, 330 [ 261 A.2d 657 ] (1970) (‘[a]n appellate court ... lacks the opportunity to observe and hear the witnesses who appear before the trial judge and jury’)”).

In Dolson, supra, this Court explained that the relevant question on a motion for a new trial is “ ‘whether the result strikes the judicial mind as a miscarriage of justice,’ ” 55 N.J. at 6, 258 A.2d 706 (quoting Kulbacki v. Sobchinsky, 38 N.J. 435, 459 , 185 A.2d 835 (1962) (Weintraub, C.J., and Jacobs and Francis, J.J., dissenting)), and that “[t]he standard governing an appellate tribunal’s review of a trial court’s action on a new trial motion is essentially the same as that controlling the trial judge.” Id. at 7, 258 A.2d 706 (citing Hager v. Weber, 7 N.J. 201, 212 , 81 A.2d 155 (1951)); *527 see also City of Long Branch v. Liu, 203 N.J. 464, 492 , 4 A.3d 542 (2010) (noting that “[a]n appellate court’s review of a trial court’s ruling on ... a motion for a new trial is similarly limited. See Jastram v. Kruse, 197 N.J. 216, 230 , 962 A.2d 503 (2008) (noting that appellate ‘inquiry requires employing a standard of review substantially similar to that used at the trial level, except that the appellate court must afford due deference to the trial court’s feel of the case’ (citation and internal quotation marks omitted))”).

In light of those authorities, then, the majority’s opinion begs the question of how one can reach the conclusion it does—granting a new trial on damages only—without referencing and of necessity deferring to the trial judge’s unequivocal “feel of the case,” one which compelled him, albeit most reluctantly, to grant a new trial on both liability and damages. In the context of this appeal, there is no reason to second-guess the trial judge, particularly one who no doubt was haunted by his failure to deal contemporaneously with what everyone agrees are inappropriate summation comments. Therefore, respecting the deference appellate courts owe to a trial judge in these circumstances, I would reverse the judgment of the Appellate Division in its entirety and reinstate the order of the trial court that granted a new trial on both liability and damages. To the extent, then, that the majority reverses the judgment of the Appellate Division only insofar as to granting a new damages trial but not as to liability, I respectfully dissent.

For affirmance in part/reversal in part/remandment—Chief Justice RABNER, Justices LONG, LaVECCHIA, ALBIN, HOENS and Judge STERN (temporarily assigned)—6.

For concurrence in part/dissent in part—Justice RIVERA-SOTO—1.