Court Correctly Wielded Authority in Additur and Remittitur Case

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.