Orientale vs. Jennnings
The Supreme Court heard oral argument in Orientale v. Jennings on April 24, 2019 – a case that could lead to new rules regarding remittitur and additur. The New Jersey Civil Justice Institute (as well as several other organizations) submitted an amicus curiae brief addressing specific issues raised by the Court.
One of the Court’s main concerns is the standard the trial court should apply in setting the damages when granting a remittitur or additur – should the damages amount be the highest amount reasonably supported by the record (for remittitur), the lowest amount reasonably supported by the record (for additur); or a reasonable amount supported by the record in both contexts? The parties and the various amici presented differing views on these questions. NJCJI argued that the goal should be to arrive at a fair and reasonable award of damages for both remittitur and additur. It highlighted that the alternative approach of awarding the “highest” or “lowest” amount, purportedly to comport with the intention of the jurors, is flawed; it is anomalous to attribute a rational, permissible motive to a jury’s damages award that, by definition, is “one no rational jury could have returned, . . . so wide of the mark and pervaded by a sense of wrongness that it shocks the judicial conscience.” Cuevas v. Wentworth Group, 226 N.J. 480, 500 (2016). Questioning from some of the Justices indicated they were sensitive to this concern.
Ultimately, the Court appears most concerned with developing standards that will lead to the fairest results for the litigants, while at the same time advancing remittitur/additur’s salutary aims of avoiding the time, expense and uncertainty of retrials in cases where the verdict was patently wrong.
Contributed by David Swerdlow, Partner at Windels Marx Lane & Mittendorf, LLP in New Brunswick, NJ. NJCJI wants to express our thanks for your help on the case.