This is a status report provided by the New Jersey State Bar Association on recently passed and pending legislation, regulations, gubernatorial nominations and/or appointments of interest to lawyers, as well as the involvement of the NJSBA as amicus in appellate court matters. To learn more, visit njsba.com.

Supreme Court to review doctrines of additur, remittitur

Upon invitation by the Supreme Court, the New Jersey State Bar Association submitted supplemental briefing in response to specific questions on the propriety and application of additur and remittitur. In the matter of Orientale v. Jennings, Docket No. A-43-17, the Supreme Court invited amici, which includes the NJSBA, to submit supplemental briefing to address four questions:

  • Should both parties have the right to object to a trial court's additur, or should only the defendant have that right?
  • Should both parties have the right to object to a trial court's remittitur, or should only the plaintiff have that right?
  • In additur, should the court set the damages amount as the lowest reasonably supported by the record, or a reasonable amount supported by the record?
  • In remittitur, should the court set the damages amount as the highest amount reasonably supported by the record, or a reasonable amount supported by the record?

The NJSBA highlighted the issue as one of importance because of the underlying implication that the Court is substituting its judgment regarding the proper quantum of damages to be awarded for that of the jury and the necessity of identifying the appropriate limitations and procedures to do so. In addition to the recommendation that both plaintiffs and defendants must be given the right to object to a trial court's entry of additur or remittitur and insist on a new trial on damages, the association also set forth additional parameters regarding same.

“If the law of additur and remittitur is modified, the NJSBA submits that the proper quantum of damages a trial court should award, in both the additur and remittitur contexts, is a reasonable amount supported by the record,” said the association. “Finally, this Court should instruct trial courts that, in choosing a number they should be guided by the laudable purposes of additur and remittitur, to avoid the costs of a re-trial where substantial justice can be attained on the basis of the first trial record.” The brief was authored by NJSBA Trustees Craig Hubert and William H. Mergner Jr. and state bar members Thomas J. Manzo and Brandon C. Simmons.

In Orientale, the Appellate Division upheld the trial judge's additur of $47,300 following the jury's award of $200 to the plaintiff and no money in a loss of consortium claim by her husband.

The verdict was ultimately molded to a no cause for action because the amount did not exceed the $100,000 obtained from the negligent driver. The trial judge found the jury's award a “miscarriage of justice” and an additur of $47,300 appropriate pursuant to Rule 4:49-1(a), using the “lowest verdict that a reasonable jury could have reached based on the proofs of this case.” Orientale v. Jennings, 2017 WL 3137736, *1 (App. Div. 2017).

After oral argument on Oct. 9, 2018, the Supreme Court invited supplemental briefing to address the four questions. In addition to the New Jersey Association for Justice, which was already amicus in the case, the New Jersey Business and Industry Association, New Jersey Defense Association and Trial Attorneys of New Jersey also submitted supplemental briefs. Responses are due by today, and the Supreme Court will determine the extent of any additional proceedings.