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Sunday, January 24, 2016

JOSEPH A. BERKOWITZ VS. SUSAN J. SOPER A-5273-13T3

JOSEPH A. BERKOWITZ VS. SUSAN J. SOPER 
A-5273-13T3 
Defendant rear-ended plaintiff’s car while stopped at a traffic light. Plaintiff's damages were based on his account of the severity of his back pain and diagnostic tests that showed disc compression and bulges in the lumbar region of his spine. The jury awarded plaintiff $2,000,000 for pain and suffering. The trial court denied defendant's motions for a new trial and for remittitur. 

We reverse. The trial judge committed reversible error when he denied defense counsel’s request to adjourn the trial without applying the standards codified in Rule 4:36-3(b). Reversal is also warranted because plaintiff’s counsel made material misrepresentations in his opening statements, in violation of an attorney’s duty of candor established by our Supreme Court in Passaic Valley Sewerage Comm'rs v. Geo. M. Brewster & Son, Inc., 32 N.J. 595, 605 (1960). Finally, the judge also erred in denying defendant’s motion for a new trial under Rule 4:49-1(a). The jury’s award of compensatory damages shocked our collective judicial conscience, was not supported by the evidence, and constitutes a clear miscarriage of justice.