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PAINE ON PROCEDURE Remittitur and additur Remittitur was a creature of the common law, available in both Tennessee and federal courts. We have codified our version in Tenn. Code Ann. §§20-10-102 & 103. Here’s how remittitur works in practice. A defendant suffering a plaintiff’s verdict moves for a new trial. The motion contains a ground declaring the verdict too high. If the judge agrees, a remittitur of part of those damages is “suggested.” The plaintiff can reject the suggestion and insist on new trial, but usually the remittitur is accepted “under protest” and appealed. The Court of Appeals can affirm or reject the remittitur and can even suggest a different figure, subject to possible Supreme Court review. Additur is purely statutory; the feds don’t have it. Our statute is Tenn. Code Ann. §20-10-101. This procedure works like remittitur but in reverse. One difference: there can be no appellate additur. Why do not these procedures violate the right to trial by jury protected by the Tennessee Constitution, Article I, Section 6? Because the aggrieved party can always reject a suggested remittitur or additur and demand another jury.[1] How many dollars can a judge subtract from or add to a jury verdict without destroying the verdict? If I were ruler of the world (Wigmore forbid!), the limit either way would be around 10 percent. But the answer is unclear. Let’s sample some reported opinions to see what did and did not pass muster. In Smith v. Shelton, 569 S.W.2d 421 (Tenn. 1978), the jury awarded $11,000 for land condemnation. The trial judge granted an additur of $6,000 (approximately 54 percent). The Supreme Court reversed and remanded for new trial. Jenkins v. Commodore Corporation Southern, 584 S.W.2d 773 (Tenn. 1979), involved a mobile home fire that left a two-year-old boy dead. The jury awarded the parents $250,000. A remittitur of $100,000 (40 percent) was suggested. The plaintiffs accepted the reduced amount without protest. The Supreme Court upheld the reduced $150,000 verdict. In Foster v. Amcon International Inc., 621 S.W.2d 142 (Tenn. 1981), a tenant claimed to have sustained severe electric shock while cooking on the landlord’s stove. The jury gave her only $500. The trial judge granted an additur resulting in $15,000. Holding that a 30-times increase is too much, the Supreme Court reversed and remanded for a new trial. Guess v. Maury, 726 S.W.2d 906 (Tenn. Ct. App. 1986), was a malpractice action where the doctor admitted failing to remove a surgical drain tube. The jury awarded the plaintiff $950,000 and her husband $83,000 for lost consortium. After remittitur the figures were $235,000 and $25,000. That’s in the neighborhood of a 75 percent cut. Too drastic, held the Court of Appeals, reversing and remanding for retrial. A case I wrote about in an earlier issue of the Journal is Steele v. Ft. Sanders Anesthesia Group PC, 897 S.W.2d 270 (Tenn. Ct. App. 1994).[2] Thelmarine Steele awoke from a decompressive surgical laminectomy paralyzed from the neck down. The jury awarded $5,600,810 to her and $2,000,000 lost consortium to her husband Tommy. Only his amount was cut — to $1,200,000. The 40 percent remittitur was upheld by the Court of Appeals. In closing, remittitur and additur are not available to adjust comparative fault percentages. That is the holding of Turner v. Jordan, 957 S.W.2d 815 (Tenn. 1997). • • • Notes
• • • Donald F. Paine is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, Bickers, and Tillman LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, Tennessee Judicial Conference, and University of Tennessee College of Law. He is reporter to the Supreme Court Advisory Commission on Rules of Practice and Procedure. Tennessee Bar Journal
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