Orientale v. Jennings, 239 N.J. 569 (2019). As Justice Albin’s opinion for a unanimous Court today described, remittitur and additur (the ability of a trial judge to reduce or increase a jury verdict that is “so grossly excessive [remittitur] or inadequate [additur] that it shocks the judicial conscience) have been part of American law since a decision by Justice Story in 1822. By 1917, both were fixtures of New Jersey law.
Here is how Justice Albin described the traditional remittitur and additur practice:
Under our common law jurisprudence, when a jury’s damages award is so grossly excessive that it shocks the judicial conscience, the trial judge may,with the consent of the plaintiff, grant a remittitur –the highest award that, in the judge’s view, could be sustained by the evidence. If the plaintiff accepts the remitted amount, the defendant is bound by that judicial finding, subject to the right to appeal. Likewise, when a jury’s damages award is so grossly inadequate that it shocks the judicial conscience, the trial judge may,with the consent of the defendant, grant an additur –an increased award that, in the judge’s view, could be sustained by the evidence. If the defendant accepts the additional amount, the plaintiff is bound by that judicial finding, subject to the right to appeal.
Today’s case came to the Court on an appeal by plaintiff from a $200 jury verdict in a personal injury case. Plaintiff sought a new trial or additur, and the trial judge, finding the jury’s award to be a miscarriage of justice, granted additur in the amount of $47,500. The defendant insurer accepted the additur. Plaintiff did not, but because the defendant had accepted it, the judgment in the additur amount became final. Plaintiff appealed, the Appellate Division affirmed, and plaintiff sought review in the Supreme Court. She contended that the practice of additur unconstitutionally makes a trial judge a “super jury” regarding damages.
The Court granted certification. After doing so, the Justices “determined that any reexamination of whether additur intrudes on the exclusive factfinding prerogative of the jury in our civil justice system must encompass a likeminded reevaluation of remittitur.” The Court invited the parties, amici curiae, and the Conference of Civil Presiding Judges to weigh in on four specific questions regarding additur and remittitur, as discussed here.
Today, the Court issued its opinion. The Justices changed additur in remittitur in two basic ways. First, it will no longer be the case that consent of one party results in the acceptance of an additur or remittitur. Instead, “when a damages award is deemed a miscarriage of justice requiring the grant of a new trial, then the acceptance of a damages award fixed by the judge must be based on the mutual consent of the parties.” Absent such mutual consent, “the court must grant a new trial.”
Second, instead of making the highest (remittitur) or lowest (additur) award that “in the judge’s view, could be sustained by the evidence,” trial judges are to “attempt the difficult task of determining the amount that a reasonable jury, properly instructed, would have awarded.” The jury’s actual verdict, Justice Albin stated, is not entitled to any deference. “That is so because when the jury’s damages award is ‘so wrong’ that the court must grant either a new trial or, alternatively,a remittitur or an additur, the court cannot assume that the jury understood its function or the evidence.”
Justice Albin provided a detailed review of the history of remittitur and additur in the federal system and in New Jersey, respectively. He noted that in the past three years, only eight remittiturs or additurs were granted, and only three were accepted, so the Court did “not expect our ruling to have a substantial impact on the practice in our civil courts.” Nonetheless, it represents an important change.
Today’s decision was based entirely on the Court’s constitutional power over the practices and procedures of the courts, under N.J. Const. Article VI, Section 2, Paragraph 3. The Court declined to address the issue from a constitutional right to jury trial vantage point.
There was no indication that any other state has taken the steps that the Court took today. New Jersey may turn out to be a leader in this regard, but only time will tell.