Additur and remittitur should be used in line with the basic notions of fair play and equity, Supreme Court says

Taking an approach recommended in the New Jersey State Bar Association's (NJSBA's) amicus curiae brief, the Supreme Court held that the use of remittitur and additur should be based on the mutual consent of the parties "to give the competing parties the greatest incentive to reach agreement." In Orientale v. Jennings, decided last week, the Court held that the plaintiff is entitled to a new trial on damages because the trial court declared that the damages award was so grossly inadequate that it shocked the judicial conscience and because Orientale did not consent to the court's additur. The NJSBA brief was written by trustees Craig Hubert and William H. Mergner Jr. and members Thomas J. Manzo and Brandon C. Simmons. Manzo argued the matter on behalf of the NJSBA.

"Going forward, in those rare instances when a trial judge determines that a damages award is either so grossly excessive or grossly inadequate that the grant of a new damages trial is justified, the judge has the option of setting a remittitur or an additur at an amount that a reasonable jury would award given the evidence in the case," said the Supreme Court. "Setting the figure at an amount that a reasonable jury would award—an amount that favors neither side—is intended to give the competing parties the greatest incentive to reach agreement. If both parties accept the remittitur or additur, then the case is settled; if not, a new trial on damages must proceed before a jury."

In Orientale, the Appellate Division upheld the trial judge's additur of $47,300 following the jury's award of $200 to the plaintiff. 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."

The NJSBA argued that this issue was one of importance because 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 recommending that the damages be an amount reasonably supported by the record, it urged the Court to instruct trial courts that, "in choosing a number they should be guided by the laudable purposes of additur and remitter, to avoid the costs of re-trial where substantial injustice can be attained on the basis of the first trial record."

After a careful examination of the history of additur and remittitur, the Supreme Court held that a revision of these doctrines was warranted "to make our civil system of justice fairer—placing plaintiffs and defendants on a level playing field after a judge grants a motion for a new damages trial and, as an alternative, sets a remittitur or an additur." The Court recognized that this approach suggests settlement figures by the trial court. In support of this approach, the Court commented that "[l]ogic suggests that the parties are most likely to mutually agree to a remittitur or an additur that is a fair and reasonable award."

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