## Facts

- Marlene Fertile was admitted to St. Michael’s Medical Center in labor; physicians determined the fetus was large and labor was not progressing.
- A physician concluded cephalopelvic disproportion and recommended a cesarean section, and the plan was communicated to the attending obstetrician, Dr. Angela Buontempo.
- After reviewing fetal monitoring showing prolonged reduced heart rate and variability, Buontempo later decided a cesarean was no longer appropriate because Fertile was fully dilated and the baby’s head was at the vaginal opening.
- During vaginal delivery, shoulder dystocia occurred; Buontempo employed maneuvers including repositioning, suprapubic pressure, and enlarging the incision to complete delivery.
- The infant, Danialie Fertile, sustained a brachial plexus injury causing permanent impairment and partial paralysis of her right arm and limited use of her right hand.
- Marlene Fertile sustained physical injury associated with the surgical enlargement.
- Plaintiffs’ experts opined that, given the fetal size, labor pattern, and fetal monitoring, proceeding with vaginal delivery deviated from accepted obstetrical standards and a timely cesarean should have been performed.
- Defendants’ expert agreed a cesarean was appropriate earlier but opined that once full dilation and descent occurred, expedited vaginal delivery was the proper course.

## Issues

1. Whether an excessive damages verdict, alone or combined with claimed trial errors, required a new trial on all issues including liability.
2. Whether the trial court properly ordered remittitur reducing damages to amounts supportable by the evidence.

## Decision

- The Supreme Court of New Jersey reversed the Appellate Division’s order granting a new trial on all issues.
- The Court held that excessiveness of the original damages award did not, by itself, show passion or prejudice that tainted the liability verdict.
- The Court held the challenged summation remarks and other alleged trial errors did not warrant a new trial, particularly where no contemporaneous objection was made and no plain error was shown.
- The Court upheld the trial court’s remittitur as a sound exercise of discretion and reinstated the remitted awards.
- The case was remanded for entry of judgment consistent with the remittitur.

## Legal Principles

- Remittitur is an appropriate corrective when damages are excessive but the record does not show passion or prejudice infected the liability determination.
- A trial court ordering remittitur must reduce the award to the highest amount a jury could reasonably have awarded based on the evidence; the standard is whether the verdict “shocks the judicial conscience.”
- Excessive damages do not mandate retrial of liability absent a clear indication that improper influences permeated the entire trial.
- Claims of improper summation remarks not raised by timely objection are reviewed for plain error; a new trial is warranted only if the remarks were clearly capable of producing an unjust result.
- Appellate review of remittitur is deferential and should not disturb the trial court’s decision absent a clear miscarriage of justice.

## Conclusion

The court preserved the jury’s liability finding, rejected a new trial on all issues, and reinstated the trial court’s remittitur because the record did not show that the excessive original award or counsel’s summation tainted the liability verdict, and the reduced damages reflected the highest amounts supported by the evidence.


Fertile v. St. Michael's Med. Ctr., 169 N.J. 481 (2001)