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The Supreme Court's Sept. 23, 2019 opinion in Orientale v Jennings is of great importance to litigators because it fundamentally changes the dynamics of additur and remittitur. Under prior law, when a trial judge found a miscarriage of justice requiring a new trial as to damages, the judge found what s/he considered to be the "amount that could be sustained by the evidence" and offered and adjusted verdict either upward (additur) or downward (remittitur) as an option to avoid a new trial on damages. Only the party adversely affected by the change in the amount of damages—the defendant in case of an additur or the plaintiff in case of a remittitur—had the option to accept or reject. The party aggrieved by the original verdict, who had moved for the new trial, had no say in whether to accept the modified amount or retry the issue of damages. Under Orientale, in contrast, a verdict that shocks the judicial conscience can be modified only if both parties consent to the modified amount. If either declines, there will be a new trial on damages. As a practical matter, this means that the party that moved for a new trial on damages is entitled to receive one unless it agrees to the modified amount.

As a result of Orientale, if the trial court finds either a grossly inadequate or grossly excessive damage award, "the trial court retains the power to declare that a jury's damages award shocks the conscience and to grant a new trial or offer the parties a remittitur or an additur. Going forward, however, unless both parties consent to a remittitur or an additur, the court must grant a new trial." The trial court must therefore calculate additur or remittitur in a way that maximizes the potential that the parties can reach a mutually acceptable settlement. "If the objective is to encourage settlement, then the remittitur or additur must be an amount that both parties would deem reasonable—not the highest or lowest sustainable amount." The trial court must set a "fair damage verdict on the basis of the evidence it saw and heard." The award should be intended to provide an incentive for settlement, and both parties must accept or reject the new figure. If not accepted and settled, a new trial on damages must be granted.

In Orientale plaintiff sustained injuries as a result of an automobile accident and settled the claim for the policy limits of $100,000. Plaintiff then pursued her claim against her carrier under her uninsured motorist (UM) endorsement but the jury found only $200 in damages. As the aggregate award was below the amount of the settlement there was no UM coverage. Finding a miscarriage of justice, the trial judge entered an additur of $47,500. The carrier accepted the additur but because the aggregate award did not meet the policy limits paid in settlement, a judgment of no cause was entered.

On appeal, the Appellate Division found the additur sufficient based on the trial judge's observations and evaluation of the case. The Appellate Division therefore affirmed the judgment. After granting certification and initial argument, the Supreme Court invited additional briefing and argument, decided Orientale and developed the new approach to review of determinations relating to inadequate and excessive damage awards.

We applaud the Supreme Court's approach to the case and concern about evolving and necessary changes to the common law. The decision is based on the court's common law and rule-making power over practice and procedure. While some constitutional issues relating to the right to trial by jury may still remain for consideration in the future, we think Orientale advances the law and is fair to both parties. We express our appreciation for the advance and agreement with the decision.