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Remittiturs are often sought but seldom granted. When granted, however, a remittitur requires both the plaintiff and defendant to make critical decisions about their case. As the parties assess their strategies and alternatives, it is essential that they understand their appellate options — options that may vary significantly depending on whether they are in federal or state court. REMITTITUR: MEAGER ROOTS, BUT WIDELY EMBRACED Remittitur traces its birth in U.S. courts to an opinion by Justice Joseph Story in Blunt v. Little, 3 Fed. Cas. 760 (C.C.D. Mass. 1822). Although many commentators have long noted the doctrine’s meager roots, federal and state courts have widely embraced the procedural device for more than 175 years. In 1935, the U.S. Supreme Court reluctantly sanctioned remittitur as constitutional, though in the same decision the court held that its cousin — additur — violated the Seventh Amendment’s prohibition on re-examining facts found by the jury (a provision that is not applicable to the states). Dimick v. Schiedt, 293 U.S. 474 (1935). Although not explicitly mentioned in the Federal Rules of Civil Procedure, a motion for remittitur is one of the many post-verdict motions available in federal courts (and most state courts) when a jury has awarded damages to a party. Generally, a court may grant a remittitur in one of two situations: “(1) where the court can identify an error that caused the jury to include in the verdict a quantifiable amount that should be stricken … and (2) more generally, where the award is intrinsically excessive in the sense of being greater than the amount a reasonable jury could have awarded, although the surplus cannot be ascribed to a particular, quantifiable error.” Trademark Research Corp. v. Maxwell Online Inc., 995 F.2d 326, 337 (2d Cir. 1993) (internal quotations omitted). Appellate courts, as well as trial courts, have authority to grant remittiturs. Cline v. Wal-Mart Stores Inc.,144 F.3d 294 (4th Cir. 1998). Indeed, Justice Story was acting as a circuit judge when he granted the original remittitur of $500 in Blunt. In essence, a request for remittitur is a specialized form of a new-trial motion. When confronted with an excessive verdict, a court can grant either a new trial outright or a remittitur. Gasperini v. Center for Humanities Inc., 518 U.S. 415, 433 (1996). By granting a remittitur, the court compels the verdict winner (in this article, the plaintiff) to accept either a verdict stripped of its excess or a new trial. If the plaintiff agrees to the remittitur, the court enters judgment for the original verdict minus the sum determined to be excessive; the plaintiff is said to give up, or remit, the excess. If, on the other hand, the plaintiff rejects the remittitur, a new trial is automatic. The choice between a reduced damages judgment and a new trial is left entirely to the plaintiff because the Seventh Amendment and most state constitutions prevent a court from reducing a jury verdict without the plaintiff’s consent. Thorne v. Welk Investments Inc., 197 F.3d 1205 (8th Cir. 1999); Best v. Taylor Machine Works, 689 N.E.2d 1057 (Ill. 1997). There may be an important exception to this general rule, however. According to a recent decision by the 11th U.S. Circuit Court of Appeals, if a trial court reduces a punitive damage award as unconstitutionally excessive, the Seventh Amendment does not require the court to offer a new-trial option. Johansen v. Combustion Engineering Inc., 170 F.3d 1320 (11th Cir. 1999). The plaintiff’s consent is irrelevant because it is the court, not the jury, that “has the responsibility of determining this constitutional limit”; the trial court’s corrective action, therefore, is not a remittitur at all, but rather, entry of judgment as a matter of law. Id.at 1331. Other circuits continue to offer plaintiffs a new-trial option in such circumstances, suggesting that the Supreme Court will need to address this issue at some point. Rubinstein v. Administrators, 218 F.3d 392 (5th Cir. 2000); Continental Trend Resources Inc. v. OXY USA Inc., 101 F.3d 634 (10th Cir. 1996). Trial courts usually give plaintiffs a fixed period (typically between 10 and 30 days) within which to accept or reject remittiturs. Generally, the time for appeal does not begin to run until the plaintiff either affirmatively acts on the remittitur or allows the time to expire without action. Ortiz-Del Valle v. National Basketball Association, 190 F.3d 598 (2d Cir. 1999); Conn. Prac. Book � 63-1. Either way, the appellate options available to both parties vary depending on whether a state or federal court issued the remittitur and whether the plaintiff accepted it. FEDERAL RULE IS OFTEN CRITICIZED AS HARSH If the plaintiff rejects the remittitur or allows the time for acceptance to expire, the trial court sets aside the verdict and orders a new trial (which can encompass both liability and damages or damages alone, depending on the circumstances). In federal courts, such an order ordinarily is interlocutory. Allied Chemical Corp. v. Daiflon Inc., 449 U.S. 33, 34 (1980). Absent certification, therefore, a new-trial order after rejection of a remittitur is not immediately appealable in federal court by either the plaintiff or defendant. This is the case even if the new trial will address damages only; a new trial solely on damages “renders an order otherwise denying judgment as a matter of law non-final because the court has implicitly vacated the jury’s damages award leaving the measure of damages undetermined.” Ortiz-Del Valle, 190 F.3d at 599. On appeal after the second trial, the plaintiff may contest the granting of a new trial in the first place, and if the appellate court agrees, it will reinstate the original verdict. Latino v. Kaiser, 58 F.3d 310 (7th Cir. 1995). The defendant is also free to appeal the second verdict, and if the new trial was limited to damages alone, the defendant may challenge both the original liability verdict and the second determination of damages. If the plaintiff accepts a remittitur issued by a federal court, the defendant may appeal the remitted judgment; the plaintiff may not. Often criticized as harsh and inequitable, this federal rule is premised on courts’ unwillingness to allow parties to challenge orders they voluntarily accepted. The remittitur order gave the plaintiff the sole right to choose between a new trial or a reduced judgment; having selected the judgment, the plaintiff cannot then attack it. The federal rule barring plaintiffs from appealing accepted remittiturs was firmly established in Donovan v. Penn Shipping Co., 429 U.S. 648 (1977). There, the plaintiff accepted a $25,000 remittitur “under protest” and expressly reserved his right to appeal. The Supreme Court nonetheless summarily disposed of the appeal in a brief order without oral argument. Noting that “[a] line of decisions stretching back to 1889 ha[d] firmly established that a plaintiff cannot appeal the propriety of a remittitur order to which he has agreed,” the court emphatically rejected the approach taken by some circuits in diversity cases of looking to state practice permitting such appeals. Id.at 649. “[T]o clarify whatever uncertainty might exist,” the court expressly “reaffirm[ed] 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.” Id.at 650 (emphasis added). Federal courts have uniformly interpreted Donovan to bar not only a plaintiff’s direct appeal but also any cross-appeal once the defendant itself challenges the remitted judgment. Nielsen v. Clayton, 62 F.3d 1419 (7th Cir. 1995); Purgess v. Sharrock, 33 F.3d 134 (2d Cir. 1994); but cf. Utah Foam Products Co. v. Upjohn Co.,154 F.3d 1212 (10th Cir. 1998) (plaintiff’s acceptance of remittitur on one count of a complaint does not bar appeal of court rulings on other, distinct counts). A RULE WITH UPSIDE POTENTIAL AND NO RISK The federal rule provides significant advantages to defendants. They have only upside potential and no downside risk: Because the appellate court may not restore the original verdict, a defendant’s damages will never exceed the remittitur-adjusted judgment. By contrast, plaintiffs in federal court have considerable downside risk and no upside potential: They may not obtain reinstatement of the jury’s verdict because they may not challenge a remittitur order they accepted, but they may lose their damage award entirely if the appellate court sides with the defendant. As one might expect, state practice in the wake of a remittitur is varied and, in many cases, quite different from that in federal courts. For example, while some states adhere to the federal rule prohibiting immediate appeal of a new-trial order following rejection of a remittitur, other states allow appeals from new-trial orders by statute or court rules. Compare Creatin v. Ochs, 479 N.W.2d 863 (N.D. 1992), withConn. Gen. Stat. � 52-263. Like their federal counterparts, most state courts prohibit a plaintiff who accepts a remittitur in lieu of a new trial from taking a direct appeal from the remitted judgment. Deans v. Eastern Maine Medical Center, 454 A.2d 835 (Me. 1983); Rush v. Blanchard, 426 S.E.2d 802 (S.C. 1993). However, this rule is by no means universal. Allsup’s Convenience Stores Inc. v. North River Insurance Co.,976 P.2d 1 (N.M. 1998) (listing nine states permitting direct appeals), and some state statutes or court rules expressly authorize plaintiffs to appeal accepted remittiturs. La. C.C.P. Art. 2083; Tenn. Code Ann. � 20-10-102(a). BIG DIFFERENCE BETWEEN STATE AND FEDERAL COURTS The most significant difference between federal and state practice lies in their treatment of cross-appeals by plaintiffs who have accepted remittiturs. Plesko v. Milwaukee, 120 N.W.2d 130 (Wis. 1963) is the seminal state decision. In Plesko, the Wisconsin Supreme Court explicitly rejected the federal rule and allowed a plaintiff to cross-appeal from an accepted remittitur in a case in which the defendant had filed its own direct appeal from the remitted judgment. The court explained that a plaintiff’s underlying objective in accepting a remittitur is to avoid expense, delay and uncertainty. When a defendant appeals from a remittitur-adjusted judgment, these objectives are frustrated. In those circumstances, therefore, “it seems unfair to prevent the plaintiff from having a review of the trial court’s determination leading to the reduction in damages, especially if plaintiff has accepted the same only to avoid the delay and expense attending an appeal.” Id.at 135. Nearly all state courts to have considered the issue follow the “Wisconsin rule” that was enunciated in Plesko, even though these courts, like the federal courts, continue to prohibit plaintiffs from filing direct appeals from accepted remittiturs. Local 1547 v. Alaska Utility Construction Inc., 976 P.2d 852 (Alaska 1999) (collecting decisions). But see Omni-Vest Inc. v. Reichhold Chemicals Inc., 352 So.2d 53 (Fla. 1977); Interagency Inc. v. Danco Financial Corp., 417 S.E.2d 46 (Ga. App. 1992). In many states, a statute or court rule permits a plaintiff to cross-appeal in such circumstances. Neb. Rev. Stat. �� 25-1929, 1936; N.Y. C.P.L.R. 5501(a)(5). The rationale of most state courts is aptly summed up in the following rhetorical question: “Why should defendant get the benefit of the reduced verdict and be able to appeal on all issues without risking a restoration of the jury’s verdict?” Mulkerin v. Somerset Tire Services Inc.,264 A.2d 748, 750 (N.J. Super. Ct. 1970). In short, in most states, what is good for the goose is good for the gander. Because of decisions like Plesko, lawyers representing a defendant in state court (unlike their federal court counterparts) must think twice before appealing a remittitur-adjusted judgment, particularly if the damage reduction is sizable. The appellate court may not only reject the defendant’s appeal; it may also reinstate the original verdict if the plaintiff cross-appeals. A state court plaintiff, on the other hand, can accept a remittitur knowing that if the defendant appeals, the plaintiff will have the opportunity to restore the original damages award by way of a cross-appeal. Understanding appellate options, therefore, can significantly affect the development of client strategies in responding to remittiturs. Mark Kravitz is head of the appellate practice group at Wiggin & Danain New Haven, Conn. Readers can reach him for comments, questions or feedback at [email protected].

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