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Theodore Schaer Obtains Defense Verdict in Bus Case in New Jersey Superior Court

November 12, 2013

Theodore Schaer, shareholder and Co-Chair of the Casualty Defense Department at Zarwin Baum recently returned a ‘no cause’ verdict in Hudson County, NJ, on behalf of a bus driver - in a win that marked the first step to preventing Plaintiffs from ‘double-dipping’ by seeking a separate hedonic damages award.

In the matter of Johnson v. Reed, the Plaintiff alleged that the Defendant driver, while operating his bus, veered into the Plaintiff’s legally parked car. At the time of impact, the Plaintiff was inside of the vehicle. Notwithstanding minimal contact between the bus and the parked car, the Plaintiff claimed to have undergone cervical fusion, lumbar fusion and shoulder surgery. The Plaintiff, aged 43, also claimed total disability and the inability to return to employment in the future. The Plaintiff’s damages included $800,000 in lost wages, $800,000 in lost household management services, roughly $3 million in hedonic damages, as well as pain and suffering, and permanent disability. The Plaintiff’s husband claimed damages for loss of consortium. The Plaintiff’s settlement demand was $3.5 million when the trial commenced.

Schaer successfully argued that due to an emergency situation – an impending collision with a phantom vehicle - the Defendant driver acted reasonably under the circumstances. Following an extensive trial, the jury returned a “no negligence verdict” on behalf of Schaer’s client despite the Judge’s exclusion of a “sudden emergency doctrine” jury charge and the Plaintiff’s allegations of extensive and permanent injuries.

“The jury believed our case that this driver did not act negligently in how he handled the situation before him,” said Schaer. “The failure of the Plaintiff to offer expert testimony on the driver’s reaction to this situation allowed us to argue that they had failed to meet their burden of proof on negligence. Moreover, we had strong arguments on “causation” of the accident to the injuries suffered which further gave the jury pause about the credibility of the Plaintiff’s case.”

The case marked another first as, for the first time in New Jersey, the trial court conducted an evidentiary hearing to determine whether hedonic damages are recoverable in New Jersey – during which Schaer conducted the cross examination of noted hedonic damage expert Stanley Smith. Hedonic damage testimonies are quantitative models for juries to consider in determining financial compensation for non- economic damages including, loss of life’s enjoyment and pleasure resulting from death or injury. From the bench the Judge issued an oral opinion ruling that that hedonic damages are inadmissible in New Jersey. A written opinion is expected shortly.

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