Remittitur and Additur: Another Extraordinary Power of the Trial Judge
Published .
A jury returns a verdict. The losing party moves for a new trial. The judge concludes that the damages are simply too high—or too low.
The verdict may not be the last word.
Remittitur permits a trial judge to condition the denial of a new trial upon the plaintiff’s acceptance of a reduced award. Additur addresses the opposite problem—an award the court concludes is inadequately low.
These are extraordinary powers because damages ordinarily belong to the jury. But Maryland gives the trial judge broad discretion in deciding whether a damages verdict should stand.
The Judge Was There
There is no mathematical formula for determining that a verdict is excessive.
The inquiry is necessarily subjective, particularly with noneconomic damages. Pain, disfigurement, embarrassment, altered appearance, and loss of enjoyment of life cannot be precisely priced.
The jury sees the plaintiff and determines what those losses are worth.
But so does the judge.
In Buck v. Cam’s Broadloom Rugs, Inc., 328 Md. 51, 612 A.2d 1294 (1992), the Court of Appeals emphasized the trial judge’s opportunity to “feel the pulse of the trial.”
The judge has observed the plaintiff, heard the testimony live, watched the witnesses, seen the injuries and exhibits, and experienced the case as it unfolded.
An appellate court has a record.
The trial judge was there.
That difference explains the substantial discretion given to the trial judge when deciding whether a verdict is so excessive or inadequate that judicial intervention is warranted.
What Does “Excessive” Mean?
The question is not simply whether the judge would have awarded a different amount.
If that were the standard, the judge could substitute his or her valuation for the jury’s in virtually every case.
Instead, the verdict must be sufficiently excessive to justify disturbing the jury’s determination. Courts sometimes describe such a verdict as one that “shocks the conscience.”
That phrase does not create an objective test.
The judge’s determination necessarily incorporates what the judge personally observed during trial: the nature of the injury, the plaintiff’s demeanor, the medical testimony, demonstrations of limitations, photographs and exhibits, and the overall damages presentation.
That is particularly important with noneconomic damages, where there is no formula for converting an injury into dollars.
Remittitur
When the judge determines that a verdict is excessive, the court may grant a new trial unless the plaintiff agrees to accept a reduced award.
The plaintiff therefore faces a choice:
Take the reduced judgment or give up the verdict and try again.
The next jury may award more.
It may award less.
It may return a defense verdict.
It may not reach a verdict at all.
The original verdict can become a powerful psychological anchor. Once a jury has awarded $500,000, a remittitur to $150,000 may seem intolerably low.
But the real comparison is not necessarily $500,000 versus $150,000.
It may be:
$150,000 now versus an uncertain result after months or years of additional litigation.
Additur
Additur addresses the reverse situation: a verdict the court concludes is inadequately low.
The principle is similar. Instead of requiring another trial, the court may condition relief upon an increase in the award.
The availability and operation of additur can differ depending upon the forum, particularly in federal court. Counsel should therefore determine the governing law rather than assuming that remittitur and additur operate identically.
Remittitur Is Not JNOV
Remittitur and judgment notwithstanding the verdict address different problems.
With remittitur, the plaintiff has established a right to recover, but the judge concludes that the amount awarded cannot stand.
JNOV concerns legal sufficiency—whether the evidence permitted the jury to find for the plaintiff at all.
A remittitur says:
You won, but the damages are too high.
JNOV says:
The evidence was legally insufficient for you to win.
Both demonstrate why a favorable jury verdict does not necessarily end the case.
Deciding Whether to Accept
A plaintiff deciding whether to accept a remittitur should consider more than the difference between the two numbers.
Relevant considerations include:
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why the judge found the verdict excessive;
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whether the verdict can realistically be reproduced;
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the strength of the liability and damages evidence;
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the expense and delay of another trial;
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the possibility of a lower verdict, defense verdict, or hung jury;
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appellate risk; and
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the client’s ability and willingness to continue the litigation.
The decision is therefore not simply about case value.
It is also about risk, expense, delay, uncertainty, and endurance.
Mahler v. Johns Hopkins Hospital: A Real-World Example
I represented the plaintiff in Mahler v. Johns Hopkins Hospital, Inc., 170 Md. App. 293, 907 A.2d 276 (2006), an informed-consent case arising from elective facial surgery.
He was an accomplished artist who painted in the Old Master tradition and was related to composer Gustav Mahler. He had an unusually strong aesthetic sensibility.
Following the surgery, his lower lip was visibly dropped. He also experienced numbness and other facial problems.
Because of the dropped lip, he wore a supportive device we called a “chin bra” to keep it elevated. The device wrapped around his head and was visually conspicuous.
He was also a challenging client.
On one occasion he appeared with the chin support and a white laboratory coat. I sent him out of the courtroom, told him to remove the regalia, and instructed him to return appropriately dressed.
During testimony on another occasion, he suddenly announced:
“I NEED TYLENOL!”
The point is not merely that these things happened.
The trial judge saw them happen.
That is precisely why Buck matters.
The Verdict and Remittitur
The jury found for the plaintiff and awarded:
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$50,000 in economic damages; and
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$500,000 in noneconomic damages.
Total: $550,000.
Hopkins moved for a new trial or remittitur.
Judge Allen L. Schwait concluded that the verdict was excessive and shocked his conscience. His assessment included matters he had personally observed during the trial, including the plaintiff’s presentation and appearance before the jury in the chin-support device.
The court reduced the economic award to $12,500 and the noneconomic award to $100,000.
The choice was:
Accept $112,500 or have another trial.
We rejected the remittitur.
At the time, the decision was understandable. A jury had just valued the case at $550,000, and I believed the case could be presented even more effectively at another trial.
What followed was years of additional litigation, another trial, an appeal, and ultimately the prospect of trying the case a third time.
Before that occurred, the case settled for less than the $112,500 remittitur.
Those later procedural events are important for another reason: a new trial does not necessarily mean starting the case over. That issue warrants separate treatment.
For present purposes, Mahler demonstrates the risk inherent in rejecting a remittitur.
The decision must be judged based upon what is known when it is made—not what becomes obvious years later.
The Malpractice-Reform Backdrop
The case also became part of Maryland’s medical-malpractice reform debate.
Rick Kidwell of Johns Hopkins attended the trial and publicly discussed the litigation. The case was used as a “poster child” for the argument that malpractice verdicts demonstrated the need for legislative reform.
The $550,000 figure, however, was not a settlement demand or a lawyer’s valuation. It was the amount awarded by the jury that heard the evidence.
An individual case can sometimes acquire a public significance quite different from the dispute being tried.
Bottom Line
Remittitur places unusual power in the hands of the trial judge because the decision cannot be separated from what happened in the courtroom.
Buck v. Cam’s Broadloom Rugs explains why.
The judge was there.
The judge saw the plaintiff, heard the testimony, observed the witnesses, and developed impressions that cannot be completely reproduced from a transcript.
Mahler demonstrates the practical consequence.
The jury awarded $550,000.
The judge reduced it to $112,500 or another trial.
We chose another trial.
Years later, the case settled for less than the remittitur.
That does not prove the decision was wrong when it was made.
It demonstrates why the choice is so consequential:
The jury’s number is known. The judge’s number is known. What happens if you reject it is not.
Related Maryland Cases and Authorities
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Buck v. Cam’s Broadloom Rugs, Inc., 328 Md. 51, 612 A.2d 1294 (1992) — explains the broad discretion afforded a trial judge when ruling on matters dependent upon what the judge personally observed during trial and the importance of the opportunity to “feel the pulse of the trial.”
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Mahler v. Johns Hopkins Hospital, Inc., 170 Md. App. 293, 907 A.2d 276 (2006) — addresses the litigation following rejection of the remittitur and illustrates the consequences that can follow an election to proceed to another trial.
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Banegura v. Taylor, 312 Md. 609, 541 A.2d 969 (1988) — addresses judicial review of jury damage awards and trial-court discretion concerning excessive verdicts.
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Maryland Rule 2-533 — motions for new trial.
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Maryland Rule 2-534 — motions to alter or amend a judgment.