The term remittitur refers to an action by a court following a jury trial by which the court reduces the amount of damages awarded by the jury. In a civil case, the defendant may petition to the court to reduce the amount of damages awarded by the jury. Through a remittitur, the court can grant that request and reduce the amount of damages.
Compare with “Additur”
Johansen v. Combustion Engineering, Inc., 170 F.3d 1320, 1328-29 (11th Cir. 1999)
A federal court’s power to “order” a remittitur grew out of this authority to grant a new trial. A court which believes the jury’s verdict is excessive may order a new trial unless the plaintiff agrees to remit a portion of the jury’s award. Dimick v. Schiedt, 293 U.S. 474, 486-87, 55 S.Ct. 296, 79 L.Ed. 603 (1935). This practice dates from Justice Story’s opinion in Blunt v. Little, 3 F.Cas. 760, 761-62 (No. 1578) (C.C.D.Mass.1822) (Story, J.), in which he announced that, because the verdict was not supported by the evidence, unless the plaintiff was willing to remit $500 of his damages, the cause would be submitted to another 1329*1329 jury. Although Justice Story cited no authority whatever, the Supreme Court has “never expressed doubt with respect to this rule.” Dimick, 293 U.S. at 486, 55 S.Ct. 296. See e.g., Linn v. United Plant Guard Workers of America, Local 114, 383 U.S. 53, 86 S.Ct. 657, 15 L.Ed.2d 582 (1966); Arkansas Valley Land & Cattle Co. v. Mann, 130 U.S. 69, 9 S.Ct. 458, 32 L.Ed. 854 (1889); Northern Pac. R. Co. v. Herbert, 116 U.S. 642, 646-47, 6 S.Ct. 590, 29 L.Ed. 755 (1886).
The Seventh Amendment requires, however, that the plaintiff be given the option of a new trial in lieu of remitting a portion of the jury’s award. Hetzel v. Prince William County, Va., 523 U.S. 208, 118 S.Ct. 1210, 1211, 140 L.Ed.2d 336 (1998). In Hetzel, the Supreme Court reversed the Fourth Circuit’s mandamus to the district court to enter judgment for a remittitur without affording the plaintiff the option of electing a new trial. The Court expressly held that no judgment for a remittitur may be entered without the plaintiff’s consent because the Seventh Amendment prohibits the court from substituting its judgment for that of the jury’s regarding any issue of fact. Id. 1212. See also Dimick, 293 U.S. at 474, 55 S.Ct. 296; Gasperini, 518 U.S. at 433, 116 S.Ct. 2211. If the plaintiff does not consent to the remittitur, the court has no alternative but to order a new trial. Id.
Earl v. Bouchard Transportation Co., Inc., 917 F.2d 1320, 1328-32 (2d Cir. 1990)
“Remittitur,” as we have observed, “is the process by which a court compels a plaintiff to choose between reduction of an excessive verdict and a new trial.” Shu-Tao Lin v. McDonnell Douglas Corp., 742 F.2d 45, 49 (2d Cir.1984). There are two principal objectives to consider when comparing the possible standards for calculating a remittitur. The first is to enable the parties to avoid the delay and expense of a new trial when a jury award is intrinsically excessive. See, e.g., Donovan, 536 F.2d at 537-38 (emphasizing judicial economy considerations of remittiturs); Akermanis v. Sea-Land Serv., Inc., 688 F.2d 898, 903 (2d Cir.1982) (same), cert. denied, 461 U.S. 927, 103 S.Ct. 2087, 77 L.Ed.2d 298 (1983), cert. denied, 464 U.S. 1039, 104 S.Ct. 700, 79 L.Ed.2d 165 (1984); Lanfranconi v. Tidewater Oil Co., 376 F.2d 91, 97 (2d Cir.) (same), cert. denied, 389 U.S. 951, 88 S.Ct. 334, 19 L.Ed.2d 361 (1967). The second objective is to minimize the extent of judicial interference with a matter that is otherwise within the jury’s domain. See Akermanis, 688 F.2d at 902 (“Remittitur is a limited exception to the sanctity of jury fact-finding.”); Donovan, 536 F.2d at 539 (Feinberg, J., dissenting) (a remittitur is “an invasion of the jury’s prerogative and the right of the plaintiff to its determination, and can be justified only in limited situations”).
There are at least three possible rules that district courts have adopted for computing a remittitur. See generally 6A Moore’s Federal Practice ¶ 59.08, at 59-192 to -196 (2d ed.1989). See also Shu-Tao Lin, 742 F.2d at 49-50 (reviewing these rules but declining to choose among them). The standard that is most intrusive upon jury awards would “reduce the verdict to the lowest amount that could reasonably be found by the jury.” 6A Moore’s Federal Practice, supra, at 59-193. Under this standard, a plaintiff would typically do better by opting for a second trial than he would by accepting the district court’s remitted judgment. Thus, this standard not only gives the least weight to the jury’s apparent intent to award a generous verdict, but it also encourages plaintiffs to reject the remittitur and opt for a costly second trial. Perhaps not surprisingly, only one published opinion favoring the adoption of the most intrusive standard could be found. See Meissner v. Papas, 35 F.Supp. 676 (E.D.Wis.1940).
Some courts have employed the least intrusive standard, holding that the remitted amount should reduce the verdict only to the maximum that would be upheld by the trial court as not excessive. Indeed, this was the standard employed by Judge Weinstein in the present case. The benefits of this standard are significant. Compared to the alternatives, it is the most faithful to the jury’s verdict. Moreover, the plaintiff is unlikely under this standard to opt for a second trial. Once the remittitur is calculated, the plaintiff becomes fully informed of the maximum award that the district court would permit any jury to return in that particular case. From the plaintiff’s perspective, therefore, the only objective that might be served by opting for another trial would be to obtain a right to an appeal. A plaintiff can appeal a reduced verdict only after he or she has rejected the remittitur and after a second trial is complete. Donovan, 536 F.2d at 538 (Feinberg, J., dissenting). But, for two reasons, a plaintiff’s incentive to appeal (and, hence, to obtain a second trial) would be weaker 1329*1329 under the least intrusive standard than it would be under the most intrusive standard. First, the remitted award would be largest under the least intrusive standard, so there is less to gain from a successful appeal. Second, an appellate court should be more willing to defer to a district court’s remittitur the more the district court’s standard for calculating the remittitur was faithful to the jury’s apparent intent. “[L]ess appellate deference need be accorded to a ruling of the trial judge which is opposed to the verdict than to a ruling which is in support of it….” Reinertsen v. George W. Rogers Constr. Corp., 519 F.2d 531, 532 (2d Cir.1975). For these reasons, the least intrusive standard, which Judge Weinstein employed, seems clearly superior to the most intrusive standard.
But defendant urges upon us Professor Moore’s argument in favor of an “intermediate” standard. The intermediate standard reduces the excessive jury award to what the trial court believes a “properly functioning jury, acting free of suggestions by counsel, would have awarded….” Uris v. Gurney’s Inn Corp., 405 F.Supp. 744, 747 (E.D.N.Y.1975) (citing 6A Moore’s Federal Practice, supra, at 59-196). Professor Moore argues that
[t]his intermediate position gives the defendant the benefit of the full supervisory power of the trial court, and yet the plaintiff still has his option to refuse to remit. And it moderately serves the function of remittitur aimed at avoiding the judicial waste of a new trial, for the plaintiff still has a strong incentive to remit. If, on the other hand, the trial court fixes the residue at the lowest amount that it would permit a verdict to stand, this constitutes a considerable intrusion upon the jury’s function and the plaintiff’s incentive in remitting is reduced to a minimum. True, if the court adopts the other extreme position and orders a remittitur of only that amount which exceeds the very maximum of recovery that it would uphold, the plaintiff has a very strong incentive to accept the option of remittitur. But the defendant, who has no option, does not have the benefit of the trial court’s seasoned judgment as to an amount that is ample and yet thoroughly fair. The intermediate position effects a fair and practicable adjustment.
6A Moore’s Federal Practice, supra, at 59-196.
This argument in favor of the “intermediate” standard is not altogether persuasive, despite the surface plausibility of any option that seems to avoid “extreme” positions. First, it is not clear that the plaintiff’s “option to refuse to remit” is a particularly valuable option to the plaintiff. By refusing to remit, a plaintiff must undergo the delay and expense of a second trial. Indeed, a plaintiff is not able to appeal the remittitur order that followed the first trial until after the second trial has concluded. See Part IV, infra. The use of a remittitur therefore has a powerful “coercive effect upon a plaintiff.” Donovan, 536 F.2d at 539 (Feinberg, J., dissenting); see also Note, Remittitur Practice in the Federal Courts, 76 Colum.L.Rev. 299, 311-13 (1976).
Professor Moore also expresses concern that a defendant “has no option.” It should be remembered, however, that, regardless of whether a plaintiff “elects” the remittitur or “elects” to have a second trial, the plaintiff is made worse off and the defendant is made better off relative to the situation where the jury verdict is permitted to stand. Thus, although it has been said that a defendant in these circumstances “has no option,” it does not follow that a defendant is therefore entitled to special consideration. Moreover, the defendant does have an option. If the plaintiff accepts the remitted award, the defendant can appeal — as the defendants did in this case. That is an option that the plaintiff does not have. Donovan v. Penn Shipping Co., 429 U.S. 648, 650, 97 S.Ct. 835, 837, 51 L.Ed.2d 112 (1977) (per curiam) (“reaffirm[ing] the longstanding rule that a plaintiff in federal court, whether prosecuting a state or federal cause of action, may not appeal from a remittitur order he has accepted”); see also Part IV, infra.
Professor Moore argues further that under the least intrusive standard the “defendant 1330*1330 … does not have the benefit of the trial court’s seasoned judgment as to an amount that is ample and yet thoroughly fair. The intermediate position effects a fair and practicable judgment.” But that conclusion begs the question. To obtain a “fair” judgment on damages in a case such as this, the law has traditionally deferred to the decision of a jury of laymen drawn from the community at large, and not to the “seasoned judgment” of the trial judge. Cf. Dagnello v. Long Island R.R. Co., 193 F.Supp. 552, 553 (S.D.N.Y.1960) (Weinfeld, J.) (“The primary responsibility for the assessment of damages rests upon the jury, which is allowed a wide area of discretion…. Even were the Court to disagree with the amount of the award, it would not be justified in substituting its judgment for that of the combined experience of twelve jurors unless it `conscientiously [believed] that the jury has exceeded the bounds of propriety.'” (citation omitted)), aff’d on other grounds, 289 F.2d 797 (2d Cir.1961). And because the least intrusive standard for calculating a remittitur is — for the reasons discussed above — relatively unlikely to lead to a second trial, it would seem to be the most “practicable” standard.