NOTE TO JUDGE
In Battaglia v. United Parcel Service, Inc., 214 N.J. 518 (2013), the Supreme Court held that it was error for a
court to instruct a jury in an employment law case to consider life expectancy
in connection with emotional distress damages where the plaintiff did not offer
any expert testimony as to the permanency of the emotional distress. The Court held that while an employment law
plaintiff can claim emotional distress damages without expert testimony, such
damages are limited to past emotional distress through the time of trial. For
an employment law plaintiff to claim future emotional distress, he or she must
offer expert testimony as to the permanency of the distress. Id. at
551-55.
The following charge is intended
for use in cases in which the plaintiff has offered expert testimony and is
claiming future emotional distress in addition to emotional distress through
the time of trial.
If you find for plaintiff, (s)he is
entitled to recover fair and reasonable money damages for the full extent of
the harm caused, no more and no less.
A plaintiff who is awarded a verdict is
entitled to fair and reasonable compensation for any emotional distress, which
was proximately caused by the defendant’s [adverse employment action]. “Emotional
distress” includes embarrassment, humiliation, indignity, and other mental
anguish.
The measure of damages is what a
reasonable person would consider to be adequate and just under all the
circumstances of the case to compensate plaintiff for his(her) emotional
distress. You may consider the
plaintiff’s age, usual activities, occupation, family responsibilities and
similar relevant facts in evaluating the probable consequences of the [adverse
employment action] on plaintiff’s emotional state. You should consider the
nature, character, severity and duration of the emotional distress in
determining how much to award, as any award you make must cover the damages
suffered by plaintiff since the [adverse employment action] to the present time
and into the future if you find that plaintiff’s emotional distress has continued
to the present time and can reasonably be expected to continue into the future.
Plaintiff has the burden of proving
his/her damages through credible, competent evidence. To recover damages for
past or present emotional distress, plaintiff does not have to present
corroborating testimony from any witness; the distress need not be permanent;
physical or psychological symptoms are not necessary; and plaintiff need not
have obtained any type of professional treatment.[1]
The plaintiff’s testimony standing alone may be sufficient to support an award
of past or present emotional distress damages.
On the other hand, you are free to disbelieve all or part of the
plaintiff’s testimony and, if you do, you should act accordingly by either
reducing the amount of damages you award or by not awarding any emotional
distress damages at all.
Unlike past or present emotional
distress, the law requires a plaintiff to prove that his/her emotional distress
will continue into the future through evidence of permanence or other likely
duration in the form of expert testimony.
This ensures that the plaintiff will be made whole while preventing an
improper award of damage based on conjecture or speculation.[2]
Therefore, in determining whether plaintiff has suffered emotional distress
that will continue into the future, you should consider the testimony of
plaintiff’s expert in addition to the other evidence presented by the parties. If, after considering all of the evidence,
you find plaintiff’s expert’s testimony on plaintiff’s future emotional
distress credible, you should award plaintiff damages for future emotional
distress. If, after considering all of
the evidence, you do not find plaintiff’s expert’s testimony on plaintiff’s
future emotional distress credible, you should not award future emotional
distress damages. You should keep in
mind that you can award past or present emotional distress damages even if you
do not find that the plaintiff has proven future emotional distress.
The law does not provide you with any table,
schedule or formula by which a person's emotional distress may be measured in
terms of money. The amount is left to
your sound discretion. You are to use your
discretion to attempt to make plaintiff whole, so far as money can do so, based
upon reason and sound judgment, without any passion, prejudice, bias or
sympathy. 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.
You are to exercise sound judgment as to
what is fair, just and reasonable under all the circumstances. You should consider all the evidence
presented by both parties on the subject of plaintiff’s emotional distress,
including the testimony of the doctor(s) who appeared. After considering the evidence, you shall
award a lump sum of money that will fairly and reasonably compensate plaintiff
for his/her emotional distress you find that she/he has proven.
