Academic journal article The University of Memphis Law Review

A Distinction without a Difference: Revisiting the Constitutionality of Additur in Federal Courts

Academic journal article The University of Memphis Law Review

A Distinction without a Difference: Revisiting the Constitutionality of Additur in Federal Courts

Article excerpt

I. Introduction

Kimberly Connelly, a plaintiff in a personal injury action, was just nineteen years old when an intoxicated driver struck the car in which she was riding.1 Todd Willey, who had consumed five beers and was driving under the influence of alcohol, disregarded a stop sign, pulled onto a highway on a dark and rainy night, and hit the car in which plaintiff was a passenger.2 The accident destroyed five of Connelly's teeth, and she underwent approximately fifty treatments at her dentist's office after the accident.3 Specifically, Connelly had a four-hour surgery in which an oral surgeon hammered a metal plate into her mouth to anchor her artificial teeth.4 The surgeon ground down her remaining teeth to fit the appliance and wired her jaw shut for 3 months.5 Connelly proved all of this at trial and offered testimony of the incredible pain, inconvenience, discomfort, and loss of enjoyment of life due to her extensive facial injuries.6

Through expert testimony, Connelly showed at trial that her future dental bills would total approximately $19,000, considering her future life expectancy of 56.5 years.7 Connelly also presented evidence that all of her dental bills had been paid, save for $7,000 that remained for payment toward future expenses.8 The jury ultimately awarded Connelly $12,000 in compensatory damages, in response to which she motioned for a new trial based on the inadequacy of damages.9 The jury accepted the $19,000 figure for future dental expenses and subtracted $7,000 remaining under the no-fault insurance plan of Connelly to reach the $12,000 total in damages.10 On appeal, the Delaware Appellate Court found that the $12,000 award "strongly suggest[ed] the jury totally ignored the unrefuted evidence of pain, suffering and inconvenience that plaintiff has already experienced and will continue to experience for the rest of her life."11

In viewing all of the evidence in a light most favorable to the defendant, the appellate court concluded as a matter of law that Connelly proved her substantial pain and suffering.12 Because the jury ignored the unrefuted evidence of pain and suffering and awarded no damages in that category, the court found that the jury's award of damages was grossly inadequate, and it granted Connelly's motion for a new trial.13

Although the appellate court ultimately ruled in her favor, Connelly had to file an appeal and retry an issue that a jury of her peers had already decided. She spent even more of her own money and time (as well as more of the judicial system's time) for a second jury to come to a decision that had, essentially, already been made. Most importantly, the trial court could have corrected the jury's verdict through additur, a type of jury-award modification.14 The trial court's inability to use additur ultimately delayed Connelly's ability to enjoy the purpose behind damages in tort: to put the claimant, so far as money can, back into the position she would have been in had the accident not occurred.15

Connelly could have avoided the issues in her suit if the judge had used additur. Additur is the practice of a trial judge adding damages to the original amount that the jury awarded when the judge finds that the damages are inadequate in light of the evidence presented.16 Remittitur, conversely, is a ruling by a judge, usually upon motion of the defendant, to reduce a jury verdict because it is excessive in light of the presented evidence.17 While the Supreme Court of the United States ("Supreme Court" or "the Court") has upheld the practice of remittitur in federal courts as constitutional, the Court determined that additur was an unconstitutional exercise of a federal court's power in the 1935 case of Dimick v. Schiedt.18

Although additur and remittitur are essentially mirror-images of the court's inherent power, federal courts continue to treat them differently. This differential treatment gives an advantage to defendants, who can use their litigation position to force plaintiffs to accept a lower damage award in lieu of retrying the case. …

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