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11 Fed. Prac. & Proc. Civ. 2807 (3d ed.

.) Federal Practice & Procedure Federal Rules Of Civil Procedure Database updated December 2012 The Late Charles Alan Wrighta126, Arthur R. Millera127, Mary Kay Kanea128, Richard L. Marcusa129 Chapter 8. Judgment Rule 59. New Trial; Altering or Amending a Judgment B. Grounds Link to Monthly Supplemental Service 2807 Grounds for New TrialSize of the Verdict A motion under Rule 59 is an appropriate means to challenge the size of the verdict. The court always may grant relief if the verdict is excessive or inadequate as a matter of law,1 but this is not the limit of the court's power. It also may grant a new trial if the size of the verdict is against the weight of the evidence.2 This is merely a special application of the general power of the trial court to set aside a verdict that is against the weight of the evidence and the general principles developed in the preceding section are applicable to a motion on this ground.3 The court is not free to set aside the verdict merely because the judge might have awarded a different amount of damages,4 but it may do so if the proceedings have been tainted by appeals to prejudice5 or if the verdict, in the light of the evidence, is so unreasonable that it would be unconscionable to permit it to stand.6 The phrase shocks the conscience of the court,7 among others,8 is much used in the cases but adds very little by way of guidance. The Supreme Court provided some guidance on how to evaluate whether a punitivedamages award may be so excessive as to violate Due Process in State Farm Mutual Automobile Insurance Company v. Campbell,9 an action arising in the Utah state courts. In that case the jury had made a punitive-damage award of $145 million for an automobile liability insurer's bad-faith failure to settle for the insured's policy limits; compensatory damages were $1 million. The Court, in an opinion by Justice Kennedy, ruled that the award violated the Due Process Clause because it was neither reasonable nor proportionate to the wrong committed. In reaching that conclusion, the Court noted that the harm involved was economic rather than physical; that the jury was allowed to award punitive damages to punish and deter conduct that occurred out-of-state that might be lawful in-state and that bore no relation to the insureds' harm; and that to the extent that the punitive damages were for the distress caused by outrage and humiliation, they were duplicative of compensatory damages.10 The power exists in the trial judge whether the verdict is unreasonably high or unreasonably low. Illustrative cases granting a new-trial motion on the ground that the verdict was too high11 or was too low,12 as well as cases denying a new trial because the verdict was not deemed excessive13 or inadequate14 are set out in the notes below. There is a difference, however, that must be noted. If the court finds that a verdict is unreasonably high, it may condition denial of the motion for a new trial on plaintiff's consent to a remittitur.15 If the verdict is too low, it may not provide for an additur as an alternative to a new trial.16

The Eleventh Circuit has ruled that if the district court determines that an award is unconstitutionally high, it need not offer plaintiff the option of a new trial or a reduced verdict, but simply may set aside the unconstitutional verdict and enter the amount that would satisfy the constitution.17 In doing so, the appellate court ruled that the trial judge is proceeding under Rule 50, rather than Rule 59, and is entering judgment as a matter of law and thus the Seventh Amendment is not implicated. As explained in an opinion by Judge Hill: No one would dispute that the court, not the jury, has the responsibility for determining this constitutional limit. Courts decide questions of law, not juries. The real issue, therefore, is whether the court may enter judgment for a constitutionally reduced award without plaintiff's consent. So put, the question answers itself. Plaintiff's consent is irrelevant if the Constitution requires the reduction.18 The court went on to recognize that some other appellate courts have continued to offer plaintiffs whose verdicts have been found to be constitutionally excessive a choice between a reduced verdict and a new trial, but concluded: While the Constitution does not prohibit this cautious approach, neither does it require [it] .19 Appellate review of the grant or denial of new trial motions challenging the size of the verdict is discussed in a later section.20 Westlaw. 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

a126 Charles Alan Wright Chair in Federal Courts, The University of Texas. a127 University Professor, New York University. Formerly Bruce Bromley Professor of Law, Harvard University. a128 John F. Digardi Distinguished Professor of Law, Chancellor and Dean Emeritus, University of California, Hastings College of the Law. a129 Horace O. Coil (57) Chair in Litigation, University of California, Hastings College of the Law. 1 Matter of law Dunn v. Consolidated Rail Corp., 890 F. Supp. 1262, 1287 (M.D. La. 1995), citing Wright, Miller & Kane. Ordinarily, the question whether refusal of an insurance company to pay a claim is in bad faith within Ga.Code Ann. 56-706 is a question of fact, but if there is no evidence of frivolous or unfounded refusal to pay or if the question of liability is a close one, the court in furtherance of justice should see to it that the verdict, which illegally carries a penalty for bad faith, is not allowed to stand. Albergotti v. Equitable Life Assur. Soc. of U.S., 48 F. Supp. 290 (S.D. Ga. 1942). Storey v. Camper, 401 A.2d 458, 464 (Del. 1979), citing Wright & Miller.

Page v. New England Tel. & Tel. Co., 9 Mass. App. Ct. 916, 403 N.E.2d 1201, 1202, (1980), citing Wright & Miller, judgment aff'd, 383 Mass. 250, 418 N.E.2d 1217 (1981). 2 Against weight of evidence Sprague v. Boston and Maine Corp., 769 F.2d 26, 28 (1st Cir. 1985), citing Wright & Miller. Minthorne v. Seeburg Corp., 397 F.2d 237 (9th Cir. 1968). Greyhound Corp. v. Dewey, 240 F.2d 899 (5th Cir. 1957). Siebrand v. Gossnell, 234 F.2d 81 (9th Cir. 1956). Eclov v. Birdsong, 166 F.2d 960 (App. D.C. 1948). Storey v. Camper, 401 A.2d 458, 464 (Del. 1979), citing Wright & Miller. James, Remedies for Excessiveness or Inadequacy of Verdicts: New Trial on Some or All Issues, Remittitur and Additur, 1 Duquesne L.Rev. 143 (1963). 3 General principles See 2806. 4 Judge might have awarded Werthan Bag Corp. v. Agnew, 202 F.2d 119 (6th Cir. 1953). Mere fact that judge believes jury to be unduly generous is not sufficient to warrant new trial or remittitur, when party challenges the size of the jury's verdict as being against the weight of the evidence; rather, the judge must find that no rational jury, acting on the basis of a full evidentiary record, and without being inflamed by passion or prejudice or other improper consideration, could have awarded such a large sum as damages. Henry v. Hess Oil Virgin Islands Corp., 163 F.R.D. 237 (D.V.I. 1995). Although jury verdicts awarding damages can be disturbed when they are subject to mathematical calculations and there is clear error in the calculation, in a case involving disparate mathematical calculations from which the jury may select, it is beyond the discretion of the court to say that the jury might have miscalculated when its final award was within the amount the jury could have properly awarded and there are no apparent miscalculations. Young v. Lukens Steel Co., 881 F. Supp. 962 (E.D. Pa. 1994). Although question of excessiveness of a jury award falls squarely within discretionary powers of district court, the court cannot arbitrarily substitute its judgment for that of the jury, particularly when the amount awarded includes an unspecified compensation for pain and suffering. Cabassa v. American Union Transport, Inc., 58 F.R.D. 200 (D.P.R. 1972). When a party calls into question the collective wisdom of the jury, the court must exercise its power to grant a new trial circumspectly so as not to unduly disregard the limits of its own function and interfere in that which is peculiarly within the province of the jury. Thus, a new trial would not be ordered on the ground of an inadequate damage award when the legitimacy of the need for plaintiff to have extensive medical treatment and household help as well as the extent of her pain and suffering were called into question and the court should not substitute its conclusions for those of the jury. Silhol v. Levengood, 55 F.R.D. 304 (E.D. Pa. 1972). Honaker v. Leonard, 325 F. Supp. 212 (E.D. Tenn. 1971).

General Mills, Inc. v. Calumet Harbor Terminals, Inc., 47 F.R.D. 189 (N.D. Ill. 1969). Wright v. Charles Pfizer & Co., 253 F. Supp. 811 (D.S.C. 1966). Compare Though the court of appeals, in remanding for reconsideration for an award of damages, did not specifically remand for new trial, the district court could not unilaterally determine the damage issue, as judicial reassessment of the prior jury's damage award would be in derogation of the Seventh Amendment right to jury trial. Oiness v. Walgreen Co., 838 F. Supp. 1420 (D. Colo. 1993). 5 Appeals to prejudice Robertson Oil Co., Inc. v. Phillips Petroleum Co., 779 F. Supp. 994, 998 (W.D. Ark. 1991), citing Wright & Miller. When damage to a widowed plaintiff's property, except as to its rental value, was minimal, when the reasonable rental value of the property, if damage had not been inflicted on it by the large corporate defendant was $80 per month, when plaintiff was entitled to recover for a three-year period, and when the law governing the action had been clearly explained to the jury, a grossly excessive award of $6,400 to plaintiff indicated that the jurors either were prejudiced in favor of plaintiff, or acted in reckless disregard of the instruction, or both, so as to entitle defendant to a new trial on the issue of damages rather than to only remittitur of a portion of the award. Wagner v. Burlington Industries, Inc., 47 F.R.D. 146 (E.D. Tenn. 1969). See the cases discussed in Devlin v. Safeway Stores, Inc., 235 F. Supp. 882, 885 (S.D. N.Y. 1964). A new trial was granted on all issues on the ground that the verdict was against the weight of the evidence and was excessive when a statement by plaintiff's counsel had had an improper influence on the jury. Watkins v. Continental Can Co., 225 F. Supp. 449 (M.D. N.C. 1963). No prejudice found Jury award of $107,000,000 for conscious pain and suffering to estates of individuals who died in an airplane crash and $250,000 to an individual's mother for economic loss was not so infected or tainted by prejudice under New York law that it had to be set aside entirely and new trial granted in a products- liability action against an airplane engine manufacturer arising from the crash; rather, the size of award was more likely indicative of jury's belief that the individuals had suffered intensely and that damages should be correspondingly high. Datskow v. Teledyne Continental Motors Aircraft Products, a Div. of Teledyne Industries, Inc., 826 F. Supp. 677 (W.D. N.Y. 1993). 6 Unconscionable to let stand Scagnelli v. Whiting, 554 F. Supp. 77, 82 (M.D. N.C. 1982), citing Wright & Miller. Bush v. Texaco, Inc., 504 F. Supp. 670, 672 (E.D. Tex. 1981), quoting Wright & Miller. Bryant v. TRW, Inc., 487 F. Supp. 1234, 1240, (E.D. Mich. 1980), citing Wright & Miller, judgment aff'd on other grounds, 689 F.2d 72 (6th Cir. 1982). Devlin v. Safeway Stores, Inc., 235 F. Supp. 882, 886 (S.D. N.Y. 1964). This case has a very helpful discussion of the tests announced in earlier cases. 7

Shock the conscience In deciding a motion for a new trial or remittitur, the jury's award is inviolate unless it is so excessive that it shocks the judicial conscience and raises an irresistible inference that passion, prejudice, corruption, or other improper cause invaded the trial. Spahr v. Ferber Resorts, LLC, 686 F. Supp. 2d 1214 (D. Utah 2010), aff'd on other grounds, 419 Fed. Appx. 796 (10th Cir. 2011). A verdict shocks the conscience, so as to warrant remittitur, when it bears no rational relationship to the evidence presented at trial. Power Integrations, Inc. v. Fairchild Semiconductor Intern., Inc., 589 F. Supp. 2d 505 (D. Del. 2008). Abrams v. Lightolier, Inc., 841 F. Supp. 584 (D.N.J. 1994), aff'd, 50 F.3d 1204 (3d Cir. 1995). Overseas Private Inv. Corp. v. Metropolitan Dade County, 826 F. Supp. 1564 (S.D. Fla. 1993), aff'd in part, rev'd in part on other grounds, 47 F.3d 1111 (11th Cir. 1995). Garrison v. Mollers North America, Inc., 820 F. Supp. 814 (D. Del. 1993). McKenna v. Pacific Rail Service, 817 F. Supp. 498 (D.N.J. 1993). Actual monetary awards totaling $2,398,150.32 made to husband, who fell from a tractortrailer, and wife were sufficiently excessive to shock the conscience and lead to the belief that the awards were prompted in large measure by sympathy, passion or prejudice, thus warranting grant of a new trial to the manufacturer, which was found to be 75% responsible, since evidence of the individual's psychiatric illnesses substantially impeached the individual's damage claims, since the wife was awarded loss of consortium despite the turbulent nature of the marital relationship, and since the award of $120,000 for future medical expenses greatly exceeded the figure of $40,000 generated by the individual's requested analysis. Rosera v. International Harvester Co., 109 F.R.D. 143 (E.D. Wis. 1986). Damages assessed by a jury are not to be set aside unless shocking to the judicial conscience or so grossly inadequate as to constitute a miscarriage of justice, or unless the jury's award indicates caprice or mistake or a clear abuse of its fact-finding discretion or clear influence of partiality, corruption, passion, prejudice, or a misconception of law. Tann v. Service Distributors, Inc., 56 F.R.D. 593 (E.D. Pa. 1972), aff'd, 481 F.2d 1399 (3d Cir. 1973). The court may not substitute its own judgment as to the amount of damages for the judgment of the jury, and the question on a motion for a new trial is not whether the court would have awarded a smaller sum than was awarded by the jury, or whether the size of the verdict was merely too great, but whether the verdict was brought about by passion and prejudice, whether it is so exorbitant as to shock the conscience of the court, and even whether it is so inordinately large as obviously to exceed the maximum limit of a reasonable range within which the jury may properly operate. Graling v. Reilly, 214 F. Supp. 234 (D. D.C. 1963). A trial court will not set aside or interfere with the verdict, unless it is in such amount as to shock the conscience of the court or to cause the court to believe that it was the result of sympathy, passion, or prejudice, or that the jury in fixing the amount was motivated by factors that should not have been taken into consideration by it in arriving at their verdict. Hogue v. Permanent Mold Die Co., 177 F. Supp. 229 (E.D. Mich. 1959). 8 Other phrases

When a new-trial motion is based primarily on the excessive nature of the damages, the jury's award may be vacated and a new trial granted only if the verdict is monstrously excessive, or if there is no rational connection between the evidence on damages and the verdict. McNabola v. Chicago Transit Authority, 10 F.3d 501 (7th Cir. 1993). 9 State Farm case 538 U.S. 408, 123 S. Ct. 1513, 155 L. Ed. 2d 585 (2003). 10 Factors considered The factors relied upon by the Court were derived from the Court's earlier decision in BMW of North America, Inc. v. Gore, 517 U.S. 559, 116 S. Ct. 1589, 134 L. Ed. 2d 809 (1996). But see In Spencer, Due Process and Punitive Damages: The Error of Federal Excessiveness Jurisprudence, 79 S.Cal.L.Rev. 1085 (2006), the author critiques the Supreme Court's approach to due process and excessiveness of punitive damages, arguing that the dueprocess clause does not require punitive-damages awards to be constrained to a particular level. Rather, he suggests that due process requires only that punitive awards be reserved for wrongdoing beyond simple negligence, that jurors be instructed that any punitive award imposed must be designed to further the states' legitimate interest in punishment of in-state conduct and deterrence, and that judicial review should be available only to check adherence to these requirements. 11 Unreasonably high The district court did not abuse its discretion in ordering a new trial in the former employee's 1983 action against the employer alleging that her termination was in retaliation for the exercise of her First Amendment free-speech right, based on finding that the jury's verdict of $1,555,678.76 was excessive and a product of passion and prejudice; the jury was instructed to base the award only on actual damages, which included lost wages and emotional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life and reputation, and the parties stipulated that the amount of the employee's lost wages was $55,678.76. Dossett v. First State Bank, 399 F.3d 940 (8th Cir. 2005). When the jury was charged with determining damages for mental distress that the employee had suffered for wrongful discharge, but not with determining punitive damages arising from invidious discrimination, it was not an abuse of discretion for the district court to find that verdict awarding employee $250,000 for mental distress was intended to punish defendants and that a new trial was required. Richardson v. Communications Workers of America, AFL-CIO, 530 F.2d 126 (8th Cir. 1976). In light of fact that, with respect to a counterclaim for fraud and violation of the federal securities laws asserted by the buyer of all of the outstanding stock of an insurance company, the counterclaimant's own experts testified that the difference in value of the insurance company because of defects amounted to about $200,000, and that this constituted a major portion of counterclaimant's damages, there was no abuse of discretion in finding that the first verdict of $797,000 was excessive and granting a new

trial. Occidental Life Ins. Co. of North Carolina v. Pat Ryan & Associates, Inc., 496 F.2d 1255 (4th Cir. 1974). New trial on the issue of emotional-distress damages would be ordered, unless the pharmacist prevailing on the claim he was wrongfully terminated agreed to a remittitur of damages from $1.1 million to $200,000; claims that he felt humiliated and became nervous whenever called into the supervisor's office were insufficient to sustain the award, especially as the anxieties also could be attributed to his practice of working without a current license. Liberatore v. CVS New York, Inc., 160 F. Supp. 2d 114 (D.D.C. 2001). The district court would reduce the jury's punitive-damage award to a Jamaican former employee in a Title VII retaliation case from $500,000 to $100,000 since there was no direct evidence to support a finding of reprehensible conduct on the part of the employer; in most instances, the employer did not engage in any of the retaliation, but merely permitted the retaliation to continue. Lafate v. Chase Manhattan Bank (USA), 123 F. Supp. 2d 773 (D. Del. 2000). An award of $1,000,000 in punitive damages in an employee's 1981 action against an employer for termination based on his national origin was excessive, and would be reduced to $350,000, even though the punitive-damages award was only ten times the remitted award of compensatory damages; the employer did not have a history of engaging in illegal discrimination, and the damages would have been limited to $300,000 if the case had been brought under Title VII. Copley v. BAX Global, Inc., 97 F. Supp. 2d 1164 (S.D. Fla. 2000). Jury verdicts for past and future pain and suffering of $225,000 and $150,000, respectively, were excessive under New York law for a woman who suffered from a bulging, rather than herniated, disc arising from injuries she sustained when a vacuum cleaner fell on her at defendant's store; the maximum awards were $100,000 each for past and future pain and suffering, since plaintiff's injuries required neither an extended hospital stay nor surgery, plaintiff was able to perform many of the work and recreation activities she performed prior to the accident, and the jury found that plaintiff's injuries were not permanent in nature. Ragona v. Wal-Mart Stores, Inc., 62 F. Supp. 2d 665 (N.D. N.Y. 1999), judgment aff'd without opinion, 210 F.3d 355 (2d Cir. 2000). Jury verdict of $2,911,297 on a breach-of-contract claim by a shipping agency against Puerto Rico Maritime Shipping Authority (PRMSA) was utterly without support from the evidence adduced at trial, and thus a new trial was warranted, when the shipping agency provided evidence that it had made approximately $71,000 from the agency agreement with PRMSA the year before termination, and even assuming that the jury accepted the shipping agency's argument that they should award damages for ten years of approximately $710,000, the verdict was more than four times that figure, and was similar to figures mentioned in the shipping agency's opening statement regarding breach of contract and the dismissed tortious interference claim. Virgin Island Maritime Service, Inc. v. Puerto Rico Maritime Shipping Authority, 978 F. Supp. 637 (D.V.I. 1997), judgment aff'd without opinion, 162 F.3d 1153 (3d Cir. 1998). Award of $200,000 in compensatory damages for false arrest and assault was excessive based on evidence that plaintiff sustained a bruise and swelling of his right knee, a bruise to his forehead, red marks to his wrists, numbness of hands, and headaches, none of which were permanent, and suffered shame and humiliation in being arrested, placed in a

patrol car, and exhibited before eyewitnesses. Mendoza v. City of Rome, N.Y., 872 F. Supp. 1110 (N.D. N.Y. 1994). Award of $14,500,000 against designer/manufacturer of soft top/door system of motor vehicle for future economic loss suffered by 13-year-old girl who incurred serious brain damage and quadriplegia when she was thrown from the vehicle upon impact shocked the conscience of the court, constituted a denial of justice, and was against the clear weight of the evidence requiring a new trial. Slade v. Whitco Corp., 811 F. Supp. 71 (N.D. N.Y. 1993), aff'd, 999 F.2d 537 (2d Cir. 1993). Award of $80,000 was excessive for pain and suffering of a longshoreman in connection with fatal elevator accident that lasted a maximum of three minutes, and new trial would be ordered on the damage issue if plaintiff heirs did not agree to remit all damages for longshoreman's conscious pain and suffering prior to his death in excess of $25,000. De Thomas v. Delta S. S. Lines, Inc., 58 F.R.D. 335 (D.P.R. 1973). In a civil-rights case, the jury's verdict is entitled to more weight than in an ordinary case, because of the inherent difficulty in giving such rights a dollar value, but the judge still has discretion to set aside a verdict as excessive if it shocks the judicial conscience. Collum v. Butler, 288 F. Supp. 918 (N.D. Ill. 1968), judgment aff'd, 421 F.2d 1257 (7th Cir. 1970). $13,500 award to one whose only permanent residual disability was about five percent to the elbow, who had no loss of earnings or of future earning capacity, was excessive and a new trial would be ordered. Bell v. Cincinnati, N. O. & T. P. Ry. Co., 205 F. Supp. 781 (E.D. Tenn. 1962). 12 Unreasonably low When the verdict in a personal-injury case reflected the exact amount of medical and hospital outlay though plaintiff suffered severe injury in which damages were substantial, the award was on its face inadequate and under Colorado law, established the failure and refusal on part of jury to award compensation for pain and suffering and permanent disability. Brown v. Richard H. Wacholz, Inc., 467 F.2d 18 (10th Cir. 1972). When undisputed evidence established a repair cost of $73,349.03, the verdict of $36,473.71, returned without apparent reason for that amount, required a new trial on the issue of damages alone. New Orleans & N. E. R. Co. v. Hewett Oil Co., 341 F.2d 406 (5th Cir. 1965). Jury's verdict awarding port authority employee $25,000 for future pain and suffering shocked the judicial conscience and constituted a denial of justice in an action seeking damages under the FELA for personal injuries the employee sustained when his left arm became caught between a stanchion and a 200-pound galvanized steel pipe that fell while being unloaded at a port authority facility; the employee's injuries were painful, required two surgeries that involved significant pain both during and after the procedures, the surgeries were followed by restricted activities and painful therapy, the employee would likely be required to undergo a third surgery, and the award was substantially inadequate in light of verdicts in similar recent cases. Kmec v. Port Authority Trans Hudson Corp., 818 F. Supp. 2d 553 (E.D. N.Y. 2011). Peoples Bank & Trust Co. of Mountain Home v. Globe Intern., Inc., 786 F. Supp. 791, 801 (W.D. Ark. 1992), quoting Wright & Miller, judgment aff'd and remanded, 978 F.2d 1065 (8th Cir. 1992).

Award that was either in the exact amount of plaintiff's special damages, or that allowed only $1,020 in addition to special damages although plaintiff had a 35% permanent partial disability of his shoulder, was inadequate and a new trial on damages only was ordered. Schiek v. Duluth Heating & Sheet Metal Supply Co., 53 F.R.D. 401 (D. Minn. 1971). New trial on damages only was ordered since a verdict of $2000 for a wife's severe whiplash injuries and of less than $200 for the husband's loss of consortium was patently inadequate in view of the testimony as to the force of the collision and the fact that medical and hospital expenditures were in excess of $2800. Gardner v. Vogel, 237 F. Supp. 119 (E.D. Pa. 1964). Award of $5000, including medical and hospital expenses of $2697, for personal injuries to a 60-year-old woman who sustained numerous fractures and who was left with a permanent disability of 40% of her body was grossly inadequate and to let it stand would shock the conscience of the court, and a new trial on damages only was awarded. Ries v. Sanders, 34 F.R.D. 468 (N.D. Miss. 1964). 13 Not excessive Jury's award of $175,000 in compensatory and $5,000 in punitive damages to an airline passenger, in the passenger's action against the city and a city police officer, alleging that the officer used unreasonable force in arresting him at the airport, was not excessive, as would support the officer's entitlement to a new trial; the jury found that the officer used unreasonable force against the passenger, which the passenger testified was primarily applied to his testicles, and medical evidence supported that claim, and the passenger also testified that the incident caused him excruciating pain, humiliated him, and caused him ongoing embarrassment. Tortu v. Las Vegas Metropolitan Police Dept., 556 F.3d 1075 (9th Cir. 2009). Jury verdict in the amount of $152,792 to a radiologist on a breach-of-contract claim against a hospital was not excessive; the jury award, far from excessive, was actually lower than what the radiologist would have received had he been paid the 35 percent of the net income of the radiology department after subtracting operational expenses to the gross revenue, as provided for by the contract. Franceschi v. Hospital General San Carlos, Inc., 420 F.3d 1 (1st Cir. 2005). In a medical-malpractice action stemming from severe neurological injuries sustained by an infant during childbirth, a jury award of $5.5 million, of which the hospital was responsible for $2.585 million, did not shock the conscience, as required for remittitur of the award; evidence demonstrated that the infant's life-care plan alone had a cost of approximately $1.9 million, that the infant's loss of potential income was approximately $350,000, and that the infant and her parents suffered severe pain and anguish as a result of her neurological injuries. Marcano Rivera v. Turabo Medical Center Partnership, 415 F.3d 162 (1st Cir. 2005). Jury's award of $1,150,000 damages for value of lost future earnings to injured railroad worker whose arm was amputated as a result of an accident was supported by evidence; all witnesses agreed the worker would be unable to return to work as a switchman as a result of the accident, and expert testimony estimated the amount of money the worker would need today to replace earnings as a switchman for the rest of his work life

expectancy as between $1,083,635 and $1,235,966. DeBiasio v. Illinois Cent. R.R., 52 F.3d 678 (7th Cir. 1995). Award of $1,087,000 in damages, including $437,000 in lost future profits, to a construction company in an action against a paint supplier for breach of express and implied warranties and for violation of the New Hampshire Consumer Protection Act was supported by evidence that the construction company was at a break-even point and had shown strong growth for six years before the paint failure, that the cost of repairing decks covered with paint would be approximately $267,000, and that lost profits were $383,000 based on expert testimony that the company had a growth rate of 15% and a profit margin of 23%, and testimony that it would take three years to rebuild the business. Eastern Mountain Platform Tennis, Inc. v. Sherwin-Williams Co., Inc., 40 F.3d 492 (1st Cir. 1994). There was a rational connection between a remitted damages award of $265,756.81 and evidence, and award was not monstrously excessive, and thus a new trial was not warranted on the issue of damages in a 1983 reverse-discrimination action, brought by a white medical examiner who had worked for the public transit authority as a per diem independent contractor until his termination, when the medical examiner testified that in addition to his consulting work, he would still have had time to continue his work for the transit authority after his termination, and that he therefore was entitled to lost wages despite his other income. McNabola v. Chicago Transit Authority, 10 F.3d 501 (7th Cir. 1993). Jury's compensatory damages award of $300,000 in an ADEA action was supported by substantial evidence and did not shock the conscience of the district court, and a new trial or remittitur thus was not warranted, even though the employee continued to work for the employer as an engineer, in that the jury could conclude he suffered humiliation from continuing to work among those who discriminated against him, and mental anguish from being denied his life-long dream of being a test pilot. Goico v. Boeing Co., 358 F. Supp. 2d 1028 (D. Kan. 2005). Punitive-damages award against a restaurant owner of $12,500 per patron, in a 1981 race-discrimination action by four African-American patrons arising from the waiter addressing the patrons with a racial slur and excluding them from a section of the restaurant, was not against the great weight of the evidence nor a miscarriage of justice, and thus a new trial on the punitive-damages issue was unwarranted; the supervisor who witnessed the incident promised the patrons that the waiter would be fired, but he was not, there was evidence that the owner knew of the waiter's discriminatory proclivity, and the amount of the award was not so high as to raise an inference of being the result of passion and prejudice. Sherman v. Kasotakis, 314 F. Supp. 2d 843 (N.D. Iowa 2004). In a 1983 excessive-force action, the jury's award of $300,000 in compensatory damages and $1 million in punitive damages, while generous, was not so grossly excessive or inordinate as to warrant setting it aside, given the evidence of pain and suffering. Diaz ex rel Lopez Claudio v. Vivoni, 301 F. Supp. 2d 92 (D.P.R. 2003). Noneconomic damages of $5,050,000 and $7,800,000 received respectively by two men injured in a helicopter crash, pursuant to jury awards and $50,000 settlements from a former defendant, were not excessive as a matter of Connecticut law, and therefore did not warrant remittitur; both men suffered second-and third-degree burns to several parts of their bodies, and their faces were seriously injured, both men had undergone extensive

reparative and plastic surgery, and their injuries had a substantial effect on their ability to carry out the activities in which they engaged prior to the accident. Densberger v. United Technologies Corp., 125 F. Supp. 2d 585 (D. Conn. 2000), judgment aff'd on other grounds, 297 F.3d 66 (2d Cir. 2002). Remittitur would not be ordered following a jury award of compensatory damages of $125,000 to one minority couple, following a jury determination that the home mortgagee discriminated against them on the basis of race in violation of the Fair Housing Act, and an award of $250,000 for a second couple found to have sustained similar discrimination; the award was within the range of awards in other cases involving racial discrimination in mortgages. Edwards v. Flagstar Bank, 109 F. Supp. 2d 691, 695 (E.D. Mich. 2000), quoting Wright, Miller & Kane, aff'd in part, rev'd in part and remanded on other grounds sub nom., 295 F.3d 565. Paschal v. Flagstar Bank, 295 F.3d 565 (6th Cir. 2002), Surety was not entitled to remittitur on damages awarded to a subcontractor for lost profits resulting from the surety's actions which allegedly prevented the subcontractor from obtaining the bonds necessary to perform additional bonded work when the jury's award was not a result of a clear and identifiable error, but rather, represented a compromise between figures offered by both parties' experts. Cahill v. TIG Premier Ins. Co., 47 F. Supp. 2d 87 (D. Mass. 1999). Jury's punitive damages award of $20,000 to sexual harassment plaintiff was not so high that it could have been the product only of passion or sympathy, but rather, the award was rationally connected to evidence of ongoing sexual harassment causing plaintiff to feel humiliated, degraded, and embarrassed. Sassaman v. Heart City Toyota, 879 F. Supp. 901 (N.D. Ind. 1994). Total damages award of $4,383,000 for pedestrian who was injured by a truck at a construction site and who suffered pain and loss of work fell reasonably within the range of evidence and within the limits of what reasonable minds would deem just compensation for that injury. Donahoo v. Turner Const. Co., 833 F. Supp. 621 (E.D. Mich. 1993). Awards of $3 million for past pain and suffering for a ten-year period between the date of an automobile accident and the date of the jury verdict, and $3 million for future pain and suffering, in a products-liability action against the designer/manufacturer of soft top/door system of a motor vehicle to a 13-year-old girl who suffered serious brain damage and quadriplegia when thrown from the motor vehicle during an accident did not shock conscience of court. Slade v. Whitco Corp., 811 F. Supp. 71 (N.D. N.Y. 1993), aff'd, 999 F.2d 537 (2d Cir. 1993). Jury verdict in employers' liability case awarding railroad employee over $1 million in lost earnings and medical expenses but no damages for pain and suffering, loss of enjoyment of life, or fear of future did not entitle employer to new trial; employer was not prejudiced by failure to award additional damages, and award was not necessarily inconsistent, since jury's decision not to award pain and suffering was clearly within the scope of the evidence presented. Manes v. Metro-North Commuter R.R., 801 F. Supp. 954 (D. Conn. 1992), aff'd, 990 F.2d 622 (2d Cir. 1993). Dixon v. Maritime Overseas Corp., 490 F. Supp. 1191, 1194, (S.D. N.Y. 1980), citing Wright & Miller, aff'd without opinion, 646 F.2d 560 (2d Cir. 1980). 14 Not inadequate

Testimony of plaintiff's expert witness establishing a range of damages in a death action from $193,795 plus funeral and medical expenses to $283,603 plus medical and funeral expenses did not prove that the wife of the deceased had an indisputable pecuniary value at the lower range of testimony, and an award of $35,000 was not plainly unjust, monstrous or shocking. Novak v. Gramm, 469 F.2d 430 (8th Cir. 1972). It was within the discretion of the trial court to grant or deny plaintiff's motion for a new trial on the question of the inadequacy of the $6,000 damages awarded for a lower-back injury, and the trial court did not abuse its discretion in denying the motion when the question of whether the accident was the cause of the injury was disputed throughout the trial and there was nothing in the evidence to indicate that the jury awarded damages substantially less than those unquestionably proven by plaintiff who produced medical and hospital bills totaling $2,067. Taylor v. Bennett, 323 F.2d 607 (7th Cir. 1963). An award of damages in the amount of $10,002 for one county jail detainee and $45,802 in damages for another detainee was not so inadequate as to shock the conscience, as would warrant the grant of the detainees' motion for a new trial on the issue of damages, in a civil-rights action brought against a jail officer who conducted illegal strip searches and visual body-cavity searches; there was no evidence that the detainees were subjected to repeated violations of their Fourth Amendment rights, or that the illegal searches were conducted in a violent or mocking way, and the detainees' own descriptions of their emotional distress was not compelling. McCabe v. Mais, 602 F. Supp. 2d 1025 (N.D. Iowa 2008). Award of $1.00 in nominal damages to an inmate who suffered a homosexual rape by his cellmate did not shock the conscience so as to warrant a new trial on the issue of damages, when there were legitimate credibility issues concerning the inmate's behavior and his claim for damages. James v. Tilghman, 194 F.R.D. 408 (D. Conn. 1999). Inmate who was awarded one dollar in compensatory damages in a civil-rights suit against a corrections officer was not entitled to a new trial on the damages issue; although the jury found liability on a conspiracy claim it also found the officer not liable for having carried through on the conspiracy to violate the inmate's Eighth Amendment rights, and thus the jury's conclusion that the officer was not liable for more than one dollar in compensatory damages could not be deemed a miscarriage of justice. Candelaria v. Coughlin, 181 F.R.D. 278 (S.D. N.Y. 1998). Fact that the jury found liability on the part of the railroad in an FELA wrongful-death action but did not award damages for pain and suffering did not necessitate a new trial on damages; possible explanation for the verdict was that the jury had simply declined to make an additional award for pain and suffering beyond the amount it had awarded for pecuniary loss to the employee's widow and loss of guidance and counsel to the minor daughter. Zarow-Smith v. New Jersey Transit Rail Operations, Inc., 953 F. Supp. 581 (D.N.J. 1997). Jury's damage awards of $20,000 for pedestrian's injuries sustained in fall down a stairway and $3,000 for his wife's injuries sustained in observing the accident were not against the clear weight of the evidence so as to warrant a new trial as to damages; there was evidence that the pedestrian underwent medical treatment for a broken wrist for approximately four months and suffered no further consequences, and that the wife never sought professional medical or psychological treatment for the mental anguish she allegedly suffered. Rosado v. Plaza Las Americas, Inc., 172 F.R.D. 15 (D.P.R. 1997).

Jury award of only $8 million in damages to a cement buyer which claimed that it suffered $67 million in damages and $16 million for litigation expenses as a result of the cracking of railroad ties which were made with the cement was supported by evidence that a large part of the settlement and litigation expenses was not the result of the cement seller's breach of warranty but, rather, was due to the buyer's poor production practices. In re Lone Star Industries Inc., Concrete R.R. Cross Ties Litigation, 882 F. Supp. 482 (D. Md. 1995). Jury's award of $1,000 in damages in attorneys' action against client seeking unpaid fees in connection with arbitration in amount of $105,523.40 was supported by evidence that the client came to the attorneys with a claim for severance benefits against the employer which he valued at $50,000, the attorneys and the client agreed to a limit of $10,000 on fees, attorneys persuaded the client that he had additional claims which complicated arbitration but were unproductive, and that the client paid attorneys $26,710.60 plus disbursements of $16,574.80. Liddle, O'Connor, Finkelstein & Robinson v. Mehling, 157 F.R.D. 208 (S.D. N.Y. 1994). Jury's finding of total damages of $1,925,000 after an accident in which a worker came in contact with electrical wires, resulted in severe shock and burns that required amputation of both arms, while low, was not irrational or the product of prejudice or passion and, thus, did not warrant a new trial. Winningham v. Sexton, 820 F. Supp. 338 (S.D. Ohio 1993), aff'd, 42 F.3d 981 (6th Cir. 1994). Verdict of $4,000 plus medical bills in favor of a personal- injury plaintiff, who suffered soft tissue injuries to the neck and back, including aggravation of a previously dormant but congenital lower back abnormality, as well as some stomach distress, but who was complaint-free four months after accident, and had no lost earnings, was not subject to being set aside as inadequate. Tann v. Service Distributors, Inc., 56 F.R.D. 593 (E.D. Pa. 1972), aff'd, 481 F.2d 1399 (3d Cir. 1973). 15 Remittitur See 2815. 16 Additur Dimick v. Schiedt, 293 U.S. 474, 55 S. Ct. 296, 79 L. Ed. 603 (1935). See 2816. See also Allen v. Beddingfield, 118 N.C. App. 100, 454 S.E.2d 287, 289, (1995), citing Wright, Miller & Kane. 17 Eleventh Circuit Johansen v. Combustion Engineering, Inc., 170 F.3d 1320 (11th Cir. 1999). 18 Consent irrelevant 170 F.3d at 1331. 19 Caution not required 170 F.3d at 1332. 20

Appellate review See 2820. 2807 Grounds for New TrialSize of the Verdict, 11 Fed. Prac. & Proc. Civ. 2807 (3d ed.)