This is a status report provided by the New Jersey State Bar
Association on recently passed and pending legislation, regulations,
gubernatorial nominations and/or appointments of interest to lawyers, as well
as the involvement of the NJSBA as amicus in appellate court
Court to review doctrines of additur,
Upon invitation by the Supreme Court, the New Jersey State
Bar Association submitted supplemental briefing in response to specific
questions on the propriety and application of additur and remittitur.
In the matter of Orientale v. Jennings,
Docket No. A-43-17, the Supreme Court invited amici, which includes the NJSBA, to submit supplemental briefing to
address four questions:
Should both parties have the right
to object to a trial court’s additur,
or should only the defendant have that right?
Should both parties have the right
to object to a trial court’s remittitur,
or should only the plaintiff have that right?
In additur, should the court set the damages amount as the lowest
reasonably supported by the record, or a reasonable amount supported by the
In remittitur, should the court set the damages amount as the highest
amount reasonably supported by the record, or a reasonable amount supported by
The NJSBA highlighted the issue as one of importance because
of the underlying implication that the Court is substituting its judgment
regarding the proper quantum of damages to be awarded for that of the jury and
the necessity of identifying the appropriate limitations and procedures to do
so. In addition to the recommendation that both plaintiffs and defendants must
be given the right to object to a trial court’s entry of additur or remittitur and
insist on a new trial on damages, the association also set forth additional parameters
“If the law of additur
and remittitur is modified, the NJSBA
submits that the proper quantum of damages a trial court should award, in both
the additur and remittitur contexts, is a reasonable amount supported by the record,”
said the association. “Finally, this Court should instruct trial courts that,
in choosing a number they should be guided by the laudable purposes of additur and remittitur, to avoid the costs of a re-trial where substantial
justice can be attained on the basis of the first trial record.” The brief was
authored by NJSBA Trustees Craig Hubert and William H. Mergner Jr. and state
bar members Thomas J. Manzo and Brandon C. Simmons.
In Orientale, the
Appellate Division upheld the trial judge’s additur
of $47,300 following the jury’s award of $200 to the plaintiff and no money in
a loss of consortium claim by her husband.
The verdict was ultimately molded to a no cause for action
because the amount did not exceed the $100,000 obtained from the negligent
driver. The trial judge found the jury’s award a “miscarriage of justice” and
an additur of $47,300 appropriate
pursuant to Rule 4:49-1(a), using the “lowest verdict that a reasonable jury
could have reached based on the proofs of this case.” Orientale v. Jennings, 2017 WL 3137736, *1 (App. Div. 2017).
After oral argument on Oct. 9, 2018, the Supreme Court
invited supplemental briefing to address the four questions. In addition to the
New Jersey Association for Justice, which was already amicus in the case, the New Jersey Business and Industry
Association, New Jersey Defense Association and Trial Attorneys of New Jersey
also submitted supplemental briefs. Responses are due by today, and the Supreme
Court will determine the extent of any additional proceedings.