11 Fed. Prac. & Proc. Civ. § 2814 (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 C. Procedure Link to Monthly Supplemental Service § 2814 Partial New Trial Rule 59(a) provides that a new trial may be granted “on all or some of the issues—and to any party—….” Thus it recognizes the court's power to grant a partial new trial. At common law there was no practice of setting aside a verdict in part.1 In 1931, however, in the case of Gasoline Products Company v. Champlin Refining Company,2 the Supreme Court held that the all-or-nothing approach of the common law was not one of the features of the common-law right to trial by jury that is put beyond change by the Seventh Amendment. Lord Mansfield, in applying the common-law rule where the verdict, correct as to one issue, was erroneous as to another, said: “ … For form's sake we must set aside the whole verdict. … ” Edie v. East India Co., 1 W.B1. 295, 298. But we are not now concerned with the form of the ancient rule. It is the Constitution which we are to interpret; and the Constitution is concerned, not with form, but with substance. All of vital significance in trial by jury is that issues of fact be submitted for determination with such instructions and guidance by the court as will afford opportunity for that consideration by the jury which was secured by the rules governing trials at common law. … Beyond this, the Seventh Amendment does not exact the retention of old forms of procedure. … It does not prohibit the introduction of new methods for ascertaining what facts are in issue …, or require that an issue once correctly determined, in accordance with the constitutional command, be tried a second time, even though justice demands that another distinct issue, because erroneously determined, must again be passed on by a jury.3 Rule 59 was written in the light of the Gasoline Products case and of state practices allowing a partial new trial.4 It therefore now may be regarded as settled that if an error at the trial requires a new trial on one issue, and this issue is separate from the other issues in the case and the error did not affect the determination of the other issues, the scope of the new trial may be limited to the single issue.5 Perhaps the most common example is the grant of a new trial limited to damages when liability has been properly determined,6 but there also may be a new trial on liability with the prior determination of damages allowed to stand.7 There also may be a new trial on some elements of liability but not all,8 on comparative negligence,9 or on any other separable matters.10 A partial new trial will not be granted to try a new issue that was not litigated at the first trial,11 however.
The Gasoline Products case stated an important limitation on the power to grant a partial new trial that must be kept in mind. Where the practice permits a partial new trial, it may not properly be resorted to unless it clearly appears that the issue to be retried is so distinct and separable from the others that a trial of it alone may be had without injustice. … Here the question of damages on the counterclaim is so interwoven with that of liability that the former cannot be submitted to the jury independently of the latter without confusion and uncertainty, which would amount to a denial of a fair trial.12 Thus, if the issues are sufficiently interwoven, a partial new trial is inappropriate.13 For example, a new trial on damages only is not proper if there is reason to think that the verdict may represent a compromise among jurors with different views on whether defendant was liable14 or if for some other reason it appears that the error on the damage issue may have affected the determination of liability.15 The court must consider the totality of the circumstances in determining realistically whether all issues need to be retried even though the immediate impact of the error complained of was on a particular issue.16 If a new trial is required because the jury's determination of no liability resulted from an error at the trial, it may well be thought that the new trial should be on all issues, since the jury's determination of damages, after it had found no liability, is in an unreal and academic atmosphere.17 If a verdict is erroneously directed for one defendant, requiring a new trial, it may be more desirable on the facts of a particular case to require retrial for all defendants, since the jury may have reached a different result than it would have had all the defendants been before it.18 Conversely, if there has been a verdict against several defendants but it cannot stand against one of them, the interest of justice may require that the other defendants be given a new trial.19 The power to limit a new trial may not be used to deprive a party of the right to a jury trial on the issues in a case. Unless the circumstances would justify a judgment as a matter of law on an issue, the court, by granting only a partial new trial, cannot exclude from the jury an issue on which it has not yet passed or on which it has made a determination against the party seeking the partial new trial.20 The power to limit a grant of a new trial is not restricted to the trial court. The appellate court, in reversing and ordering a new trial, may, when appropriate, provide that the new trial be confined to certain issues.21 If a partial new trial is granted, those portions of the first judgment not set aside become part of the judgment entered following the jury verdict at the new trial. Thus, the end result is a single judgment.22 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 Common law practice Swain v. Hall, 3 Wils., 45, 95 Eng.Rep. 924 (K.B. 1770). Parker v. Godin, 2 Str. 813, 93 Eng.Rep. 866 (K.B. 1729). Berrington's Case, 3 Salk. 362, 91 Eng.Rep. 874 (K.B. 1706). 2 Gasoline Products case 283 U.S. 494, 51 S. Ct. 513, 75 L. Ed. 1188 (1931). 3 Seventh Amendment 283 U.S. at 498, 51 S. Ct. at 514 (per Stone, J.). 4 Basis of Rule 59 The Advisory Committee Note to Rule 59 when it was originally adopted, which appears in vol. 12A, said in part: “For partial new trials which are permissible under Subdivision (a), see Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 51 S. Ct. 513, 75 L. Ed. 1188 (1931); Schuerholz v. Roach, 58 F.2d 32 (C.C.A. 4th Cir. 1932); Simmons v. Fish, 210 Mass. 563, 97 N.E. 102 (1912) (sustaining and recommending the practice and citing federal cases and cases in accord from about sixteen states and contra from three states). The procedure in several states provides specifically for partial new trials. Ariz.Rev.Code Ann. (Struckmeyer, 1928) § 3852; Calif.Code Civ.Proc. (Deering, 1937) §§ 657, 662; Ill.Rev.Stat.1937, ch. 110, § 216 (par. (f)); Md.Ann.Code (Bagby, 1924) Art. 5, §§ 25, 26; Mich.Court Rules Ann. (Searl, 1933) Rule 47, § 2 Miss.Sup.Ct.Rule 12, 161 Miss. 903, 905, 1931; N.J.Sup.Ct.Rules 131, 132, 147, 2 N.J.Misc. 1197, 1246 to 1251, 1255 (1924); 2 N.D.Comp.Laws Ann., 1913, § 7844, as amended by N.D.Laws 1927, ch. 214.” 5 Single issue Eximco, Inc. v. Trane Co., 748 F.2d 287, 290 (5th Cir. 1984), citing Wright & Miller. Davis v. Safeway Stores, Inc., 532 F.2d 489, 491 (5th Cir. 1976), citing Wright & Miller. Great Coastal Exp., Inc. v. International Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 511 F.2d 839, 847 (4th Cir. 1975), quoting Wright & Miller. Devine v. Patteson, 242 F.2d 828 (6th Cir. 1957). This rule is to limit any new trial to those issues that are incorrectly decided or not decided at all. Yates v. Dann, 11 F.R.D. 386 (D. Del. 1951). See also State Sav. & Loan Ass'n v. Kauaian Development Co., Inc., 62 Haw. 188, 613 P.2d 1315, 1320 (1980), citing Wright & Miller. Kojima v. Uyeda, 2 Haw. App. 172, 628 P.2d 208, 211 (1981), citing Wright & Miller. 6
Damages only District court did not abuse its discretion in ordering new trial in a personal-injury and wrongful-death action against asbestos manufacturer on wrongful death damages alone; issues of liability and damages were separable as to proof required and the relevant time frames, and it was unlikely that the error in the jury award on wrongful-death damages tainted the liability finding. McClain v. Owens-Corning Fiberglas Corp., 139 F.3d 1124 (7th Cir. 1998). Kemp v. Balboa, 23 F.3d 211 (8th Cir. 1994). Improper instruction informing jury that the city would indemnify police officer for compensatory damages awarded in a § 1983 action required a new trial on the issue of damages, but not liability. Larez v. Holcomb, 16 F.3d 1513 (9th Cir. 1994). Mason v. Texaco, Inc., 948 F.2d 1546, 1552, (10th Cir. 1991), quoting Wright & Miller. Worker was entitled to a new trial in a products-liability action that limited the issue to that of damages when the jury originally awarded damages only in an amount equal to medical expenses incurred by the worker; evidence of breach of an implied warranty on the part of the manufacturer was strong, no sign of difficulty in the jury proceedings was presented, and there was no basis for finding the verdict was a result of a compromise on liability which would have required a retrial of all issues. Phav v. Trueblood, Inc., 915 F.2d 764 (1st Cir. 1990). Riquelme Valdes v. Leisure Resource Group, Inc., 810 F.2d 1345, 1356 (5th Cir. 1987), citing Wright & Miller. K-B Trucking Co. v. Riss Intern. Corp., 763 F.2d 1148, 1163 (10th Cir. 1985), quoting Wright & Miller. Digidyne Corp. v. Data General Corp., 734 F.2d 1336, 1347 (9th Cir. 1984), citing Wright & Miller. Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, 729 F.2d 1530, 1548 (5th Cir. 1984), citing Wright & Miller. When jury's findings on questions related to the employer's liability for wrongful discharge were based on sufficient evidence and made in accordance with the law, it was proper for the trial court, in granting a new trial because of insufficiency of evidence to support the jury's verdict as to damages, to limit the new trial to the issue of damages. Hadra v. Herman Blum Consulting Engineers, 632 F.2d 1242 (5th Cir. 1980). When evidence supported liability findings and issues of liability and damages, for which a new trial was required because of improper cumulation of verdicts rendered on alternative theories of liability, were not interwoven, remand was limited to a new trial on the damages issue, with the jury's apportionment of negligence also to be undisturbed. Greenwood Ranches, Inc. v. Skie Const. Co., Inc., 629 F.2d 518 (8th Cir. 1980). When there is no substantial indication that the liability and damage issues are inextricably interwoven, or that the first jury verdict was a result of a compromise of liability and damage questions, a second trial limited to damages is entirely proper. Great Coastal Exp., Inc. v. International Broth. of Teamsters, Chauffeurs, Warehousemen and Helpers of America, 511 F.2d 839, 847 (4th Cir. 1975), quoting Wright & Miller. Brown v. Richard H. Wacholz, Inc., 467 F.2d 18 (10th Cir. 1972). Wagner v. Reading Co., 428 F.2d 289 (3d Cir. 1970).
When proof relating to the loss of future profits for a 16-year period as a result of breach of contract was so speculative that the jury had to rely upon speculation and conjecture in arriving at its verdict, a new trial on the issue of damages would be awarded in an action for breach of contract. Center Chemical Co. v. Avril, Inc., 392 F.2d 289 (5th Cir. 1968). By increasing the verdict in favor of the insurer on its counterclaim for additional premiums, the trial court necessarily ruled that the verdict as returned was, at the least, against the weight of the evidence, and hence judgment would be set aside and a new trial granted but, in view of what the trial court indicated by its action, the new trial should be on damages only. Decato v. Travelers Ins. Co., 379 F.2d 796 (1st Cir. 1967). When the judgment in an action for death of an airplane passenger was based on the erroneous view that liability was limited by the Warsaw Convention and the trial court had submitted the case to the jury on the basis of special interrogatories, a new trial would be granted on the issue of damages alone. Mertens v. Flying Tiger Line, Inc., 341 F.2d 851 (2d Cir. 1965). When a case was not one in which the jury had reduced the amount of damages to offset a doubtful question of liability but was one in which the jury had simply concluded that only nominal damages had been proved, the reviewing court, concluding that it had been prejudicial error to admit evidence that plaintiff's decedent had purchased a bottle of whiskey, would order a new trial as to damages only. Rosa v. City of Chester, Pa., 278 F.2d 876 (3d Cir. 1960). Retrial of the liability issue was not necessary in a new trial on the damages issue in the truck driver's negligence action against the operator of a front-end loader that collided with the truck, and the operator's employer; liability, which defendants had admitted at trial, was a distinct and separable issue from the question of damages. Abel v. Carolina Stalite Co., Ltd. Partnership, 345 F. Supp. 2d 527 (M.D. N.C. 2004). Bonjorno v. Kaiser Aluminum & Chemical Corp., 518 F. Supp. 102, 119 (E.D. Pa. 1981), citing Wright & Miller. When the court was granting a new trial because of the absence of evidence on damages and because of its erroneous failure to give an adverse inference instruction, the new trial could be limited to the issue of damages. McElroy v. Cessna Aircraft Co., 506 F. Supp. 1211, 1220 (W.D. Pa. 1981) citing Wright & Miller. Call Carl, Inc. v. BP Oil Corp., 403 F. Supp. 568, 578, (D. Md. 1975), citing Wright & Miller, aff'd in part, rev'd in part on other grounds, 554 F.2d 623 (4th Cir. 1977). 7 Liability only Issue of manufacturer's liability for injuries to buyer's employee was so separable from the issue of damages that the new trial, necessitated by a failure properly to submit the question of contributory negligence, could be had without injustice on the liability issue only. Dazenko v. James Hunter Mach. Co., 393 F.2d 287 (7th Cir. 1968). In Hutton v. Fisher, 359 F.2d 913 (3d Cir. 1966), a new trial was ordered on the issue of liability only, honoring a stipulation to consider the damages as decided at the first trial as binding. When the jury in an answer to an interrogatory had found that the surgeon was not individually negligent in administering incompatible blood for a transfusion that caused the death of the patient, but there was fundamental error in the charge with regard to the surgeon's vicarious liability under the Pennsylvania law, a new trial would be ordered
only as to the issue of the surgeon's vicarious liability. Mazer v. Lipschutz, 327 F.2d 42 (3d Cir. 1963). The issue of a bond surety's liability under a principal's claim that it suffered a covered loss from one or more dishonest or fraudulent acts of employees was sufficiently separable from the issue of consequential damages that additional consequential damages could not be granted in a partial retrial of that claim; the pleadings and the verdict supported the conclusion that a finding of bad faith in the surety's refusal to provide coverage as to any of the claims was sufficient for the jury to award consequential damages up to the claimed amount, and as such, the issues of bad faith and of consequential damages were completely determined by the jury in the first trial. Oriental Financial Group, Inc. v. Federal Ins. Co., Inc., 483 F. Supp. 2d 161 (D.P.R. 2007). 8 Some elements of liability When the jury in a private antitrust action brought by a former independent automobile dealer against an automobile manufacturer and its wholly owned subsidiary could not make a reasoned evaluation of the relevant product market on the basis of the testimony presented on the market issue, but, assuming that relevant product market consisted only of the same make of automobile sold by the dealer in question, evidence would be sufficient for the jury on the issue whether the manufacturer and subsidiary attempted to monopolize the relevant market, new trial of that issue on remand would be “just under the circumstances.” Coleman Motor Co. v. Chrysler Corp., 525 F.2d 1338 (3d Cir. 1975). Though new trial was ordered on liability and damages, the issue of causation, established by a special verdict in the former trial, need not be retried. Pritchard v. Liggett & Myers Tobacco Co., 370 F.2d 95 (3d Cir. 1966). New trial was ordered on the vicarious liability of defendant even though a finding that he was not individually liable was allowed to stand. Mazer v. Lipschutz, 327 F.2d 42, 52 (3d Cir. 1963). New trial was limited to the single issue whether two defendants were jointly liable. Gallo v. Crocker, 321 F.2d 876 (5th Cir. 1963). New trial as to certain aspects in which defendant was claimed to have been negligent but not as to others was ordered in Furr v. Herzmark, 206 F.2d 468 (D.C. Cir. 1953). In a cross action against a stevedore by a shipowner against whom the longshoreman brought an action for injuries sustained when the ship's boom fell, the trial judge's submission of an interrogatory relating to whether the shipowner breached any of its duties under its contract with the stevedore without including in that interrogatory an instruction as to whether any such failure was a proximate cause of injuries sustained by the longshoreman required a grant of partial new trial limited to the issue of whether the longshoreman's injuries were caused, in part, by the shipowner's breach of contract with the stevedore. Dunn v. Ove Skou Rederi A/S, 45 F.R.D. 18 (E.D. Pa. 1968). 9 Comparative negligence A new trial as to damages only can be ordered in an FELA case. The negligence of defendant must be regarded as adjudicated, and cannot be an issue. The railroad will carry the burden of proving contributory negligence, in mitigation of damages, and plaintiff can meet this with any admissible evidence, including testimony of the railroad's negligence. That evidence, if any, will be introduced not to prove that the railroad was
negligent, but to prove that the claim of contributory negligence is hollow and without substantial weight. Cromling v. Pittsburgh & L. E. R. Co., 327 F.2d 142, 152–153 (3d Cir. 1963). District court may retry specific issues such as plaintiff's comparative negligence when it clearly appears that issue is sufficiently distinct and separable from others and that trial of that issue alone may be had without injustice. Liriano v. Hobart Corp., 949 F. Supp. 171 (S.D. N.Y. 1996). A new trial on damages only was ordered in a comparative negligence case in which the jury, by special verdict, had found that plaintiff had not been guilty of any negligence. Schottka v. American Export Isbrandtsen Lines, Inc., 311 F. Supp. 77 (S.D. N.Y. 1969). Compare When the doctrine of comparative negligence was involved and the amount of a longshoreman's damages was related to the issue of his contributory negligence, the trial court did not abuse its discretion in ordering a retrial of all the issues after the longshoreman did not consent to remittitur. Cosentino v. Royal Netherlands S. S. Co., 389 F.2d 726 (2d Cir. 1968). Case would not be remanded for new trial on the damage issue only under Jones Act, when the libelant's conduct and credibility was attacked both with respect to liability and damages, the trial of the case took only two days, and the issues of liability were not sufficiently complicated to render their redetermination a burdensome undertaking. Korbut v. Keystone Shipping Co., 380 F.2d 352 (5th Cir. 1967). 10 Other separable matters Any new trial in physician's West Virginia law action against a hospital for breach of an employment contract, following the court of appeals' determination that the physician could not seek consequential damages without requiring proof of loss of identifiable professional opportunities, would be limited to the issue of consequential damages, inasmuch as that issue was distinct and separable from questions related to the direct breach-of-contract damages, and a retrial of both damages issues would endanger the award of damages for direct breach, which the hospital had forfeited its right to challenge. Rice v. Community Health Ass'n, 203 F.3d 283, 290 (4th Cir. 2000), citing Wright, Miller & Kane. Ryan by Ryan v. McDonough Power Equipment, Inc., 734 F.2d 385, 388 (8th Cir. 1984), citing Wright & Miller. Verdict for one plaintiff could stand even though errors required new trial for other parties. Lowery v. Clouse, 348 F.2d 252 (8th Cir. 1965). In an action to recover total permanent-disability benefits under a government life policy providing that the total permanent-disability benefits may relate back to a date not exceeding six months prior to the receipt of due proof of disability, the issue of back benefits under the policy was clearly separable from the issue of future benefits and from other issues and the issue of back benefits could be properly the subject of partial new trial, when neither the verdict nor the judgment determined the date upon which due proof was offered by the insured. U. S. v. Calvey, 110 F.2d 327 (C.C.A. 3d Cir. 1940). When a breach-of-contract claim by a station manager who was a shareholder of the seller was entirely distinct from the television buyer's claims of breach of the merger agreement and fraud, and the claims involved a separate contract and separate conduct,
partial new trial on several of the buyer's claims would not result in confusion and uncertainty so as to require a new trial on the manager's breach-of-contract claims. Fleet Nat. Bank v. Anchor Media Television, Inc., 831 F. Supp. 16 (D.R.I. 1993), judgment aff'd, 45 F.3d 546 (1st Cir. 1995). When plaintiff, in a death action under the Federal Employers' Liability Act, failed to prove his right to maintain an action as decedent's administrator, a new trial was granted on the specific issue of plaintiff's capacity to sue for the benefit of decedent's surviving husband. McGlothan v. Pennsylvania R. Co., 72 F. Supp. 176 (E.D. Pa. 1947). 11 New issue When a complaint for cancellation of a deed from parent to child sought relief on the ground of fraud, plaintiff was not entitled to a new trial after an adverse adjudication for purpose of presenting evidence to show a right to relief on the theory that the child had refused or failed to furnish support in conformity with the condition of the conveyance when no allegations were made in the complaint to support the evidence to be presented. Popovitch v. Kasperlik, 76 F. Supp. 233 (W.D. Pa. 1947). 12 Power limited 283 U.S. at 500–501, 51 S. Ct. at 515. 13 Issues interwoven The court held that a partial new trial as to only one count of a copyright-infringement action as a result of incorrect jury instructions would not be proper. Although the two counts of the action ostensibly involved infringement of separately copyrighted material, the court would not grant a new trial on one count and not the other because the two counts were sufficiently interwoven and intertwined to require a new trial on both counts. Bateman v. Mnemonics, Inc., 79 F.3d 1532 (11th Cir. 1996). Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, 729 F.2d 1530, 1539 (5th Cir. 1984), citing Wright & Miller. 14 Compromise verdict Stanton by Brooks v. Astra Pharmaceutical Products, Inc., 718 F.2d 553, 576 (3d Cir. 1983), quoting Wright & Miller. Following the first trial in a products-liability action brought by parents and a child against the manufacturer of Bendectin, a nausea drug whose ingestion by the mother during pregnancy allegedly caused the child to be born with birth defects, the district court did not abuse its discretion by ordering a new trial on all issues, instead of an adjudication solely for the purpose of assessing the amount of the child's damages, since the unique circumstances disclosed of record provided abundant indicia that the jury compromised the issues of liability and damages, thus rendering them inseparable. Mekdeci By and Through Mekdeci v. Merrell Nat. Laboratories, a Div. of RichardsonMerrell, Inc., 711 F.2d 1510 (11th Cir. 1983). When the jury repeatedly found that defendant failed to establish its affirmative defenses, which was the only basis on which defendant could escape liability, and when the sole indication of a jury compromise was the low amount of damages and the jury required only two to three hours to reach the verdict after a long, protracted trial, and when the
award could only be explained by reference to use of the term “damages” on special interrogatories, a compromise verdict was not indicated and the district court did not abuse discretion in ordering a new trial only on issue of damages. Burger King Corp. v. Mason, 710 F.2d 1480 (11th Cir. 1983). National R.R. Passenger Corp. v. Koch Industries, Inc., 701 F.2d 108, 110 (10th Cir. 1983), citing Wright & Miller. Lucas v. American Mfg. Co., 630 F.2d 291, 294 (5th Cir. 1980), citing Wright & Miller. Vizzini v. Ford Motor Co., 569 F.2d 754, 760 (3d Cir. 1977), quoting Wright & Miller. Vidrine v. Kansas City Southern Ry. Co., 466 F.2d 1217 (5th Cir. 1972). Under the circumstances, including the circumstances that the issues of liability and damages were tried together and that a small verdict returned by the jury could well indicate that the jurors were not unanimous in their finding of negligence and that the verdict represented a compromise on that issue, it would be unjust to defendants to restrict a new trial to the issue of damages after reversal because of improper instructions on that issue. Caskey v. Village of Wayland, 375 F.2d 1004 (2d Cir. 1967). 15 Affected liability New trial on the issues of both liability and damages, rather than a new trial on damages only or remittitur, was appropriate in a former employee's § 1983 action against an employer alleging that her termination was in retaliation for the exercise of her First Amendment free-speech right, when the district court found the jury's verdict of $1,555,678.76 was a product of passion and prejudice. Dossett v. First State Bank, 399 F.3d 940 (8th Cir. 2005). K-B Trucking Co. v. Riss Intern. Corp., 763 F.2d 1148, 1163 (10th Cir. 1985), quoting Wright & Miller. Issue of damages was not so distinct and separable from the issue of liability that a new trial limited to damages only was justified, when, after nine hours of deliberation, the jury returned a verdict for plaintiff on the strict-liability count, but after nearly two full days of deliberation on damages, the jury could not agree on a verdict, indicating that the jury's deliberations on damages may have been influenced by its views on liability or that jury confused its responsibilities in one or both phases of trial, so that it appeared that problems that led to a mistrial in the damages portion of the trial also affected the liability phase. Vizzini v. Ford Motor Co., 569 F.2d 754 (3d Cir. 1977). Rivera v. Farrell Lines, Inc., 474 F.2d 255, 259, (2d Cir. 1973). Hatfield v. Seaboard Air Line R. Co., 396 F.2d 721 (5th Cir. 1968). When the jury was erroneously instructed that it was their duty to bring in a verdict for both compensatory and punitive damages, in view of the fact that the evidence relating to willful misconduct was so inextricably tied up with the evidence relating to primary negligence that a fair trial upon primary negligence required trial of both issues together, on remand, the trial could not properly be limited to the question of punitive damages only, even though no error was found in the amount of compensatory damages, but a new trial on all issues was necessary in the interest of justice. Atlantic Coast Line R. Co. v. Bennett, 251 F.2d 934 (4th Cir. 1958). New trial on both issues of liability and damages sustained in a motorcycle-automobile collision, rather than a new trial solely on the damages issue, was ordered when the original decision to bifurcate was based on a close question of liability, the court had no
way of fathoming what motivated the single jury to render a patently insufficient damages verdict, except that the verdict could have been the result of passion, prejudice or misconception of law, tainted with elements of compromise or the result of the jury's misunderstanding or disobeying instructions not only as to damages but also as to liability. Feinberg v. Mathai, 60 F.R.D. 69 (E.D. Pa. 1973). Compare Minneapolis, St. P. & S. S. M. Ry. Co. v. Moquin, 283 U.S. 520, 51 S. Ct. 501, 75 L. Ed. 1243 (1931). But see There is a quite remarkable holding that when a verdict was so inadequate as to indicate it was the result of passion and prejudice, a new trial on damages only would be awarded. Gardner v. Vogel, 237 F. Supp. 119 (E.D. Pa. 1964). 16 Totality of circumstances Davidson Oil Country Supply Co., Inc. v. Klockner, Inc., 917 F.2d 185, 187 (5th Cir. 1990), citing Wright & Miller. Slater v. KFC Corp., 621 F.2d 932, 938 (8th Cir. 1980), citing Wright & Miller. Dunlap v. G. & C. Towing, Inc., 613 F.2d 493, 497 (4th Cir. 1980), citing Wright & Miller. When the court did not know whether the jury found for the piping contractor against the plant owner on the basis of termination of the contract without cause or on the basis of breach of a subsequent settlement agreement, the court, which had determined the verdict to be excessive no matter which of the two theories provided the basis for liability, could not calculate a maximum recovery on which to base a remittitur and could not avoid a full trial on remand by ordering a partial new trial limited to damage issues. Jamison Co., Inc. v. Westvaco Corp., 526 F.2d 922 (5th Cir. 1976). Williams v. Slade, 431 F.2d 605, 609 (5th Cir. 1970). 17 Academic atmosphere O'Neill v. U. S., 411 F.2d 139 (3d Cir. 1969). When the jury had made findings as to the amount of damages and also had made a finding of no liability after receiving certain erroneous instructions on the negligence issues, it was not sound judicial policy to let the damage findings stand and there would be an entire new trial of case. Romer v. Baldwin, 317 F.2d 919 (3d Cir. 1963). Compare When instructions which were given after an erroneous direction of verdict on liability could have had the effect of impermissibly influencing the jury's award of damages, a new trial was required as to damages as well as to liability. Camalier & BuckleyMadison, Inc. v. Madison Hotel, Inc., 513 F.2d 407 (D.C. Cir. 1975). 18 Directed verdict for one In a case in which a verdict had been erroneously directed for one defendant and the jury found for the other defendant, there should be a new trial against both defendants. Williams v. Slade, 431 F.2d 605 (5th Cir. 1970). 19 Verdict erroneous for one
In an action against three defendants, in which judgment against two of them was reversed for insufficiency of the evidence against them, the remaining defendant should be given a new trial since it could not fairly be assumed that the jury would have awarded the same amount of damages against the remaining defendant alone. Washington GasLight Co. v. Lansden, 172 U.S. 534, 19 S. Ct. 296, 43 L. Ed. 543 (1899). 20 Cannot exclude issue When the jury returned a verdict for one defendant, the court could not grant a new trial on damages only as to that defendant, since this would amount to a directed verdict against that defendant on liability and such a directed verdict cannot be granted in the absence of a timely motion therefor. Tsai v. Rosenthal, 297 F.2d 614 (8th Cir. 1961). Jury's finding that defendant was negligent in furnishing badly ventilated quarters on its vessel to plaintiff, who at the beginning of the voyage was infected with active tuberculosis, in the absence of an additional finding that defendant's negligence was the cause of the aggravation of plaintiff's disease, did not permit a new trial on the issue of damages alone upon reversal of a judgment for defendant because of an instruction denying plaintiff's right to recover for aggravation of active tuberculosis. Hiltz v. Atlantic Refining Co., 151 F.2d 159 (C.C.A. 3d Cir. 1945). 21 Appellate court Improper jury instruction on damages did not require reversal of the liability finding; liability and damages were not so interwoven that one could not be determined without the other. Murray v. Ross-Dove Co., Inc., 72 F.3d 1 (1st Cir. 1995). Maxey v. Freightliner Corp., 727 F.2d 350, 352 (5th Cir. 1984), citing Wright & Miller. Davis v. Safeway Stores, Inc., 532 F.2d 489, 491 (5th Cir. 1976), citing Wright & Miller. Brown v. Richard H. Wacholz, Inc., 467 F.2d 18 (10th Cir. 1972). Compare When the court of appeals noted in its opinion that a “new trial” was necessary only because of the exclusion of certain evidence, thus implying that proceedings on remand need go no further than to expand the record by admitting that evidence, the trial court on remand properly limited the scope of the proceedings to the introduction of that evidence only. U.S. v. 63.04 Acres of Land, More or Less, Situate at Lido Beach, City of Long Beach, Town of Hempstead, Nassau County, N Y, 257 F.2d 68 (2d Cir. 1958). 22 Single judgment Weymouth v. Colorado Interstate Gas Co., 34 F.R.D. 4 (N.D. Tex. 1963), judgment aff'd on the merits, 367 F.2d 84 (5th Cir. 1966). End of Document © 2013 Thomson Reuters. No claim to original U.S. Government Works. § 2814 Partial New Trial, 11 Fed. Prac. & Proc. Civ. § 2814 (3d ed.)