The Lawletter Vol 38 No 5
Paul Ferrer, Senior Attorney, National Legal Research Group
"Remittitur" is defined as "[a]n order awarding a new trial, or a damages amount lower than that awarded by the jury, and requiring the plaintiff to choose between those alternatives." Black's Law Dictionary "remittitur" (9th ed. 2009). In essence, if the trial court determines that the jury's award is grossly excessive, then it "may condition a denial of the motion for a new trial upon the filing by the plaintiff of a remittitur in a stated amount," thereby giving the plaintiff "the option of either submitting to a new trial or of accepting the amount of damages that the court considers justified." 11 Charles A. Wright, Federal Practice and Procedure § 2815 (3d ed. & Westlaw database updated Apr. 2013).
In federal court, this practice goes all the way back to 1822, when Justice Story, sitting at circuit, decided that if the jury committed a "gross error" in awarding excessive damages, the trial court, in an "exercise of discretion full of delicacy and difficulty," could either grant a new trial or remit the award. Blunt v. Little, 3 F. Cas. 760, 761‑62 (C.C.D. Mass. 1822) (Story, C.J.). If the plaintiff were to accept the remittitur, then "the court ought not to interfere farther." Id. at 762. The practice was thereafter accepted by the full Court and applied in the lower federal courts. See, e.g., N. Pac. R.R. v. Herbert, 116 U.S. 642, 646‑47 (1886); 11 Wright, supra, § 2815 (collecting representative cases).
The states have also permitted their trial courts to exercise their "inherent discretion" in remitting jury awards deemed to be excessive, but that discretion is not without its limits. Allied Concrete Co. v. Lester, 736 S.E.2d 699, 707 (Va. 2013). In that case, Mr. Lester was driving his wife, Jessica, to work when a loaded concrete truck lost control and landed on Mr. Lester's vehicle, killing his wife and injuring him. Mr. Lester brought one action against the concrete company and its driver, seeking compensatory damages for his personal injuries, as well as a second action for wrongful death on behalf of his wife's estate, in which her parents, the Scotts, were also named as statutory beneficiaries. The two actions were consolidated for trial, at the conclusion of which the jury awarded Mr. Lester $6,227,000 on the wrongful death action and $2.35 million on his personal injury action. The jury also awarded each of the Scotts $1 million on the wrongful death action.
But the trial court ordered remittitur of $4,127,000 of Mr. Lester's wrongful death award, leaving him with an award of $2.1 million. The trial court explained that the jury's award to Mr. Lester was "grossly disproportionate" to the $1 million awarded to each of the Scotts. Id. at 704. In addition, the trial court, citing the "theatrics" of Mr. Lester's counsel, found that the amount of the verdict was so excessive on its face as to suggest that it had been motivated by bias, sympathy, passion, or prejudice rather than by a fair and objective consideration of the evidence. Id. at 708. The trial court did not modify Mr. Lester's personal injury award or the Scotts' award of $1 million each.
On appeal, the Virginia Supreme Court reversed and reinstated the jury's full award in favor of Mr. Lester. The court outlined its two-part test for determining whether a trial court has abused its discretion in granting remittitur. First, the court must find in the record both (1) the trial court's conclusion that the verdict was excessive, and (2) its analysis demonstrating that it had considered factors in evidence relevant to a reasoned evaluation of the damages in drawing that conclusion. Second, the court must then determine whether the remitted award is reasonably related to the damages disclosed by the evidence. In evaluating the evidence relevant to analyzing both parts of th, relatiois test, the court must consider that evidence in the light most favorable to the plaintiff. If there is evidence, viewed in that light, to sustain the jury verdict, then remitting the verdict is error.
Turning to the case at bar, the court noted that the trial court had not examined the damages specific to Mr. Lester or the Scotts; instead, the court had simply reduced Mr. Lester's award to match the Scotts' individual awards and then added the economic loss he suffered as a result of his wife's death, a calculation that failed to take into account the inherent differences in the relationships between husband and wife versus parent and child. The trial court thus provided no basis for the court to ascertain "whether the amount of recovery after remittitur bears a reasonable relation to the damages disclosed by the evidence." Id. at 708 (internal quotation marks omitted). Accordingly, the court held that the trial court had abused its discretion in granting remittitur, and it reinstated the jury's damages award.
This new standard appears to impose a considerable burden on trial courts to justify a remittitur by reviewing the evidence in some depth so that the appellate court can determine for itself whether the remitted award is reasonably related to the evidence reviewed by the trial court. Indeed, the dissenting opinion viewed this burden as being so substantial as to constitute "the last nail in the coffin of remittitur" in Virginia. Id. at 711.
