Post-Trial Motions (New Trial, Additur & Remittitur)

A new trial may be granted on the ground the verdict is contrary to the evidence. A party may also request that the trial court grant a new trial because the award is either too low or excessive. Va. Code 8.01-383. The options available to the parties include asking for a new trial on liability and damages, damages only, or a motion that the trial court either add to the jury verdict (additur) or reduce the jury verdict (remittitur). The procedures for additur and remittitur are set forth in the Virginia Code 8.01-383.1.

1. New Trial on Liability and Damages

The trial court may grant a new trial where the verdict is plainly wrong or without credible evidence to support it. A judge is not permitted to substitute his judgment for that of the jury merely because he would have reached a different result. Jenkins v Pyles, 269 Va. 383,388, 611 S.E.2d 404,407 (2005). In determining whether an damage award claimed to be excessive requires a new trial on all issues, a new trial limited to damages, an order of remittitur, or a judgment confirming the award, a trial judge is vested with broad discretion, and the Supreme Court will not reverse his ruling unless the record plainly shows an abuse of discretion. Ford Motor Co. v. Bartholomew, 224 Va. 421, 297 S.E.2d 675 (1982). Before a new trial is granted and limited only to the amount of damages, it should be reasonably clear that the misconception of the jury has not extended to its determination of the question of liability as well as to its determination of the amount of damages. Rutherford v. Zearfoss, 221 Va. 685, 272 S.E.2d 225 (1980).

2. New Trial on Claim of Inadequate Verdict or Additur

A motion for a new trial on damages, or additur is founded on a claim that the jury verdict is inadequate as a matter of law. Where the evidence overwhelmingly favored the plaintiff on the issue of liability (fault), the sole issue before the court is whether to grant plaintiff a new trial on the issue of damages or order additur. Glass v. Pender Grocery Company, 147 Va. 196, 5 S.E.2d 478 (1940).

Unfortunately for the plaintiff, case law has made is very difficult to seek a new trial or additur unless the jury awards the exact amount of the special damages. A jury award of the exact amount of uncontroverted special damages (medical bills and wage loss) without anything for pain and suffering (non-economic damages) will result in granting a motion for a new trial on damages. Jenkins v. Pyles, 269 Va. 383, 390, 611 S.E. 2d 404, 408 (2005); Bowers v. Sprouce, 254 Va. 428, 492 S.E. 2d 637 (1997). Anything other than an award of the exact amount of the uncontroverted special damages will likely result in a denial of the claim for a new trial. Hundley v. Osborne, 256 Va. 173; 500 S.E.2d 810 (1998). (Osborne's evidence regarding future medical expenses and loss of wages was not uncontroverted and was not so complete that no rational fact-finder could disregard it. Id. at 487, 362 S.E.2d at 720). See also: Walker v. Mason, 257 Va. 65 (1999). (jury entitled to conclude that plaintiff not injured as severely as claimed based on conflicting testimony regarding impact "pretty hard" versus "light bump"). A jury verdict for less than the specials (and in exact amount of lost wages only) was upheld on appeal and trial court's additur was overturned. Richardson v. Braxton-Bailey, 257 Va. 61, 64 (1999). When the evidence permits a jury to conclude that only some of the damages claimed resulted from the accident, a verdict in an amount less than or approximating a portion of the special damages does not justify the conclusion that the jury failed to consider other damage elements such as pain, suffering, and inconvenience. Id.

A new trial on damages or additur, is available when the court finds as a matter of law that the damages awarded by the jury are inadequate. If either the plaintiff or the defendant declines to accept such additional award, the trial court shall award a new trial. If additur is accepted by either party under protest, it may be reviewed on appeal. Va. Code 8.01-383.1(B).

3. New Trial on Claim of Excessive Verdict or Remittitur

A defendant may also seek a new trial on damages or request remittitur.

A new trial on the claim the damages are excessive is granted only where the award is so great as to shock the conscience of the court and to create the impression that the jury was motivated by passion, corruption or prejudice, or has misconceived or misconstrued the facts or the law. Shepard v Capitol Foundry of Va., Inc., 262 Va. 715, 720-21, 554 S.E.2d 72,75 (2001).

Should the trial court require a plaintiff to remit a part of his jury verdict, or else submit to a new trial, such plaintiff may remit and accept judgment for the reduced sum under protest. As with additur, if remittitur is accepted under protest, the judgment of the court in requiring him to remit may be reviewed by the Supreme Court upon an appeal. Va. Code 8.01-383.1(A).

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