SYLLABUS

(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the 

convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the 

interest of brevity, portions of any opinion may not have been summarized).

Ramon Cuevas v. Wentworth Group (A-30-14) (075077)

Argued March 15, 2016 -- Decided September 19, 2016

ALBIN, J., writing for a unanimous Court.

At issue is whether the trial court properly denied defendants’ remittitur motion. 

Plaintiffs Ramon and Jeffrey Cuevas are brothers who were employees of defendant Wentworth Property 

Management Corporation (Wentworth). In May 2005, Michael Mendillo, president and chief executive officer of 

Wentworth, hired Ramon to serve as a regional vice president -- the only one of Hispanic descent. In December 2005, 

Wentworth hired Ramon’s brother Jeffrey as a portfolio manager. Jeffrey was promoted to executive director in July 

2007. In the new position, Jeffrey reported directly to defendant Arthur Bartikofsky, Wentworth’s executive vice 

president of operations. Ramon also reported to Bartikofsky.

Plaintiffs claim that they encountered racial discrimination and a hostile work environment while under 

Bartikofsky’s supervision. Many of the degrading remarks directed at Ramon occurred at senior executive meetings, 

where Mendillo, Bartikofsky, Alan Trachtenberg (in-house counsel), other executives, and regional vice presidents were 

present. For example, Ramon recalled that when lunch was served, Bartikofsky, and others, would comment about the 

lack of “Mexican restaurants in the area” and the inability to “get burritos or tacos.” When Ramon talked about his cat, 

someone quipped, “I figured you had a little Taco Bell Chihuahua dog.” Jeffrey corroborated most of his brother’s 

account. When Jeffrey complained to Trachtenberg, he replied that Jeffrey should “calm down” and that the remarks 

should not be taken “so seriously.” 

Within the next month, both Ramon and Jeffrey were terminated. Plaintiffs filed an action under New Jersey’s 

Law Against Discrimination (LAD) claiming that they were victims of race-based discrimination, a hostile work 

environment, and retaliatory firings. Ramon also claimed that Wentworth failed to promote him based on his race. In 

its defense, Wentworth contended that plaintiffs were terminated for poor work performance. Mendillo and 

Bartikofsky, as well as other Wentworth employees, testified that they neither made nor heard any racially inappropriate 

remarks concerning plaintiffs. The case was tried before a jury, which returned a verdict against defendants on all 

claims other than Ramon’s failure-to-promote claim. The jury awarded overall damages in the amount of $2.5 million 

to the two brothers, including $800,000 in emotional-distress damages to Ramon and $600,000 in emotional-distress 

damages to Jeffrey. 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. In doing 

so, the court distinguished the comparable cases and verdicts selected by defendants. In the court’s view, the award fell 

far short of one that would be shocking to the conscience. The trial judge also stated that she would refrain from 

applying her own feel for the case under He v. Miller, 207 N.J. 230 (2011). 

Defendants appealed. In an unpublished opinion, a panel of the Appellate Division affirmed the emotionaldistress damages awards essentially for the reasons expressed by the trial court. 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 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. The Court granted 

defendants’ petition for certification limited to the issue of whether the trial court erred in denying defendants’ request 

for remittitur. 220 N.J. 266 (2015).

HELD: A judge should not rely on personal knowledge of other verdicts or comparative-verdict methodology when 

deciding a remittitur motion. In this case, the trial judge did not rely on personal knowledge of other verdicts or 

comparable verdicts presented by the parties in deciding the remittitur motion, but rather on the record before her. The 

denial of remittitur here conforms to the deferential standard of review of a jury’s award of damages.

1. When a court is persuaded that a new trial must be granted based solely on the excessiveness of the jury’s damages 

award, it may enter a remittitur reducing the award to the highest amount that could be sustained by the evidence. The 

plaintiff may either accept the award as remitted by the court or proceed with a new damages trial before another jury. 

Courts must exercise the power of remittitur with great restraint because the jury is charged with the responsibility of 

deciding the merits of a civil claim and the quantum of damages to be awarded. 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. A permissible award may fall within a wide spectrum of acceptable outcomes. (pp. 

22-24)

2. A jury’s verdict is cloaked with a presumption of correctness. That presumption is not overcome unless a defendant 

can establish, clearly and convincingly, that the award is a miscarriage of justice. In deciding whether to grant a new 

trial or remittitur, the court must give due regard to the opportunity of the jury to pass upon the credibility of the 

witnesses. A court must view the evidence in the light most favorable to the plaintiff. 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 
2

appellate court must pay some deference to a trial judge’s “feel of the case.” That is because it is the judge who sees the 

jurors wince, weep, snicker, avert their eyes, or shake their heads in disbelief, who may know whether the jury’s verdict 

was motivated by improper influences, and who may be privy to observations that could not have been made by the

jury. (pp. 24-26)

3. Here, the trial judge said she would refrain from applying her own feel of the case. Apparently, she was reluctant to 

assess whether the jury returned an excessive damages award based on her personal experiences as a practicing attorney 

or as a judge. The trial judge made the right decision by not injecting her own experiences as a benchmark for 

evaluating the damages award. She observed that the jurors were attentive throughout the trial, understood their charge, 

and carefully apportioned and set the amount of punitive damages. She 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. The Court agrees 

with defendants that the trial judge’s findings are not entitled to any special deference, but also agrees with the trial 

judge that the jury’s findings must be accorded deference. (pp. 26-27) 

4. 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. That approach may have been suggested by prior case law. However, the Court now concludes 

that a trial judge’s reliance on her personal experiences as a practicing attorney or jurist in deciding a remittitur motion 

is not a sound or workable approach. The shock-the-judicial-conscience standard is objective and transcends any 

individual judge’s personal experiences. 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 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.

To the extent 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. (pp. 27-31)

5. The comparison of supposedly similar verdicts to assess whether a particular damages award is excessive is a futile 

exercise that should be abandoned. 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. The 

facts and plaintiffs in every personal-injury or LAD case are fundamentally different and therefore a true comparative 

analysis is illusory. 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. 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. The realization that 

a wide range of potential awards is permissible counsels for judicial restraint. At oral argument before this Court, 

counsel suggested that attorneys are inundating trial courts with comparable verdicts on remittitur motions. Having trial 

courts review snippets of information about cases that are not truly comparable is not a worthwhile use of judicial 

resources, nor likely to bring greater justice to either plaintiffs or defendants. Therefore, the Court disapproves of the 

comparative-case analysis in deciding remittitur motions. 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. 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. (pp. 31-39)

6. The Court agrees that the trial court properly denied defendants’ remittitur motion. 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. 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. 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. Although both plaintiffs held important positions at Wentworth, they were referred 

to as Chihuahuas, Latin lovers, and the “Rico Suave brothers.” 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, they 

were not so wide of the mark that they shock the judicial conscience. (pp. 39-42)

The judgment of the Appellate Division, which upheld the trial court’s denial of defendants’ remittitur motion, 

is AFFIRMED.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, FERNANDEZ-VINA, and 

SOLOMON; and JUDGE CUFF (temporarily assigned) join in JUSTICE ALBIN’s opinion. 
1

SUPREME COURT OF NEW JERSEY

A-30 September Term 2014

075077

RAMON CUEVAS and JEFFREY 

CUEVAS,

Plaintiffs-Respondents,

v.

WENTWORTH GROUP, WENTWORTH 

PROPERTY MANAGEMENT 

CORPORATION, and ARTHUR 

BARTIKOFSKY,

Defendants-Appellants.

Argued March 15, 2016 – Decided September 19, 2016

On certification to the Superior Court, 

Appellate Division.

John D. North argued the cause for 

appellants (Greenbaum, Rowe, Smith & Davis, 

attorneys; Mr. North, Paul A. Rowe, Gary K. 

Wolinetz, and Maja M. Obradovic, on the 

briefs).

Darren J. Del Sardo argued the cause for 

respondent Ramon Cuevas (Damico, Del Sardo & 

Montanari, attorneys; Mr. Del Sardo and 

Jayna B. Patel, on the brief).

John J. Piserchia argued the cause for 

respondent Jeffrey Cuevas.

Natalie H. Mantell argued the cause for 

amicus curiae New Jersey Defense Association 

(Gibbons, attorneys; Ms. Mantell, Christine 

A. Amalfe, Suzanne H. Brock, and Mario J. 

Delano, of counsel and on the brief).
2

Amos Gern argued the cause for amicus curiae

New Jersey Association for Justice (Starr, 

Gern, Davison & Rubin, attorneys; Mr. Gern

and Robert C. Sanfilippo, on the brief).

Richard M. Schall argued the cause for 

amicus curiae National Employment Lawyers 

Association of New Jersey (Schall & Barasch, 

attorneys).

JUSTICE ALBIN delivered the opinion of the Court.

The preeminent role that the jury plays in our civil 

justice system calls for judicial restraint in exercising the 

power to reduce a jury’s damages award. A court should not 

grant a remittitur except in the unusual case in which the

jury’s award is so patently excessive, so pervaded by a sense of 

wrongness, that it shocks the judicial conscience.

In He v. Miller, 207 N.J. 230 (2011), this Court restated

familiar principles that animate our remittitur jurisprudence. 

The He Court expressed that a jury verdict is presumed to be 

correct and entitled to substantial deference, that the trial 

record underlying a remittitur motion must be viewed in the 

light most favorable to the plaintiff, and that the judge does 

not sit as a decisive juror and should not overturn a damages

award falling within a wide acceptable range -- a range that

accounts for the fact that different juries might return very

different awards even in the same case. 

At issue in this case are not those fundamental principles

governing remittitur jurisprudence, but rather how those 
3

principles found expression in the He decision. The He Court

held that a trial judge could rely on both his personal 

knowledge of verdicts as a practicing attorney and jurist and 

“comparable” verdicts presented by the parties in deciding a 

remittitur motion. 

Although this Court’s pre-He decisions may have opened the 

door to a judge’s reliance on personal knowledge of other 

verdicts and on purportedly comparable verdicts presented by the 

parties in deciding whether to remit a pain-and-suffering 

damages award, we now conclude that such an approach is not 

sound in principle or workable in practice. 

A judge’s personal knowledge of verdicts from experiences 

as a private practitioner or jurist is information outside the 

record and is not subject to the typical scrutiny evidence 

receives in the adversarial process. The cohort of cases within 

a judge’s personal knowledge may not be statistically relevant 

and the reliability of the judge’s knowledge cannot be easily 

tested. A judge therefore should not rely on personal knowledge 

of other verdicts. The standard is not whether a damages award 

shocks the judge’s personal conscience, but whether it shocks

the judicial conscience.

We also disapprove of the comparative-verdict methodology 

that allows parties to present supposedly comparable verdicts 

based on case summaries. The singular facts and particular 
4

plaintiffs in different cases that lead to varying awards of 

damages are not easily susceptible to comparison. That is 

especially so because the information about other seemingly 

similar verdicts is very limited. A true comparative analysis

would require a statistically satisfactory cohort of cases and 

detailed information about each case and each plaintiff. That 

information is unlikely to be available, and therefore any 

meaningful comparative approach would be impracticable to 

implement.

With those constraints in mind, remittitur remains a 

judicial remedy to correct a grossly disproportionate damages 

award, which, if left intact, would constitute a miscarriage of 

justice.

In this case, the trial court denied a remittitur motion to 

reduce the jury’s award of emotional-distress damages to two 

victims of workplace discrimination. The trial judge did not 

rely on personal knowledge of other verdicts or comparable 

verdicts presented by the parties in deciding the remittitur 

motion but rather on the record before her. 

The Appellate Division upheld the emotional-distress 

damages award, and we affirm. The denial of remittitur here 

conforms to the deferential standard of review of a jury’s award 

of damages. 

I.
5

Plaintiffs Ramon and Jeffrey Cuevas are brothers who were 

employees of defendant Wentworth Property Management Corporation 

(Wentworth). During their employment at Wentworth, plaintiffs 

claim that they were routinely subject to racially disparaging 

and humiliating remarks by Wentworth executives, and 

particularly by Arthur Bartikofsky, Wentworth’s executive vice 

president of operations. They contend that after complaining 

about this debasing treatment, they were terminated from their 

employment.

Plaintiffs filed an action under New Jersey’s Law Against 

Discrimination (LAD), N.J.S.A. 10:5-1 to -49, claiming that they 

were victims of race-based discrimination, a hostile work 

environment, and retaliatory firings. Ramon additionally 

claimed that Wentworth failed to promote him based on his race

in violation of the LAD. Named as defendants in this action are 

Wentworth, the Wentworth Group (the parent company), and 

Bartikofsky. 

The case was tried before a jury, which returned a verdict 

against defendants on all claims other than Ramon’s failure-topromote claim. The jury awarded overall damages in the amount 

of $2.5 million to the two brothers, including $800,000 in

emotional-distress damages to Ramon and $600,000 in emotionaldistress damages to Jeffrey. The trial court denied defendants’

motion for a remittitur of the emotional-distress damages, and 
6

the Appellate Division affirmed. The only issue before this 

Court is whether the trial court properly denied the remittitur 

motion.

Judicial review of the correctness of a jury’s damages

award requires that the trial record be viewed in the light most 

favorable to plaintiffs. Besler v. Bd. of Educ. of W. WindsorPlainsboro Reg’l Sch. Dist., 201 N.J. 544, 577 (2010). We 

present the facts in accordance with that deferential standard.

A.

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 emotionaldistress 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 emotionaldistress 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 shockthe-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 
31

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 firsthand 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-andsuffering damages and the plaintiff-husband $100,000 in loss-ofconsortium 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-andsuffering 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 emotionaldistress 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. 
36

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

(upholding emotional-distress damages of $187,128 in LAD genderdiscrimination 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 emotionaldistress 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 emotionaldistress 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 “selfconfidence,” 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).

V.
43

For the reasons expressed, we affirm the judgment of the 

Appellate Division, which upheld the trial court’s denial of 

defendants’ remittitur motion.

CHIEF JUSTICE RABNER; JUSTICES LaVECCHIA, PATTERSON, 

FERNANDEZ-VINA, and SOLOMON; and JUDGE CUFF (temporarily 

assigned) join in JUSTICE ALBIN’s opinion.