Court tosses $2M award for victim in minor fender-bender

Appeals court decries "excessive" award

OLD BRIDGE -- Describing it as a "clear miscarriage of justice" and an award that "shocks our collective judicial conscience," an appeals court Wednesday threw out a $2 million judgement in favor of a Lakewood man who was rear-ended when he stopped at a red light on Rt. 18 more than six years ago.

(File photo) 

In November 2009, Joseph Berkowitz was struck by South Amboy resident Susan Soper. Neither vehicle was damaged and Berkowitz did not immediately seek medical attention, according to court documents, but he later went to a hospital after he said his back began to hurt.

The examination at Kimball Medical Center in Lakewood did not reveal any evidence of injury and Berkowitz was discharged that night. Berkowitz later testified that he was able to continue working as a wine salesman but was unable to play with his children or fulfill religious obligations because of the pain. The pain was so bad Berkowitz even contemplated suicide, he also said, adding that he continued to seek treatment from various physicians.

Berkowitz, who had previously been involved in two other car accidents that injured his back, filed a lawsuit two years later, which was referred to arbitration. He was awarded $40,000 but received nothing for pain and suffering. The case then went before Superior Court Judge Barry Weisberg.

But days before the trial, in May 2014, Soper, the defendant, suffered a "serious medical emergency" and asked for a postponement. Weisberg, stating he lacked the authority to delay the trial, allowed it to proceed.

During the trial, Berkowitz's attorney said in an opening statement that his client had been recommended for surgery, even though no expert witnesses testified on that point. The appeals court found that those comments, and comments about the adverse effect the accident had on Berkowitz's health made by Berkowitz himself, should not have been allowed because they were unsubstantiated by expert testimony.

The appeals court also faulted the judge for failing to grant the delay and for upholding the multimillion dollar judgment, which a jury awarded after just a few hours of deliberation.  

"Given the excessiveness of the jury's compensatory award, it is reasonable to conclude the jury may have been influenced by the one-sided account of the severity of the collision. Had defendant been permitted to testify, her account may have provided the balance necessary for the jury to produce a reasonably sustainable verdict," the appeals court wrote.

The appeals court also ordered a new trial.