In West v. Epiphany Salon & Day Spa, LLC, No. E2016-01860-COA-R3-CV (Tenn. Ct. App. April 25, 2017), the Court of Appeals affirmed a large remittitur in a negligence case, reducing the jury’s award by over 61%.
Plaintiff had gone to defendant salon for a facial treatment in 2012. According to her testimony, her “face began burning upon application of the treatment” and she “rushed home in pain.” She filed this negligence action, alleging that her face never recovered from the treatment.
In its answer, the salon admitted liability, so the only issue at the jury trial was damages. Plaintiff testified at trial that she had suffered “major lifestyle changes” due to the changes to her face. She stated that it took her longer to do her makeup, she had had to go to many doctor and lawyer appointments, she had purchased many skin products in the years since the treatment, and that she now had to wear a higher SPF sunscreen, a hat and sunglasses when in the sun. Plaintiff testified that she had spent $6,605 in face products, and her treating dermatologist testified that she had undergone three laser procedures and been billed $2,008 by his office.
At the conclusion of the trial, the jury returned a verdict for $125,000 for plaintiff. Defendant moved for a remittitur, or in the alternative a new trial, and the trial court suggested remittitur, reducing the award to $47,800. Plaintiff accepted the remittitur under protest, and this appeal followed.
In its opinion, the Court of Appeals quoted over three pages from the trial court’s order. Notably, the trial court found that:
- Plaintiff’s economic damages were at most $8,613, which made up only 7% of the jury award.
- Some of plaintiff’s claimed economic damages were questionable, since four of the products on the list she claimed as damages were products she was already purchasing prior to the incident and accounted for $2,300 of her claimed damages.
- Regarding past physical pain and suffering, the only evidence was plaintiff’s testimony that “she felt a burning sensation on her face for three to four hours,” and that the subsequent laser procedures were painful and lasted 30-45 minutes each.
- Regarding past mental suffering, “Plaintiff testified that she did not go to many work and social events during the first two years following the incident. However, this testimony was largely neutralized by pictorial evidence of Plaintiff engaged in a variety of social and work activities throughout that time period, countering her testimony about how concerned she was about her appearance.”
- Regarding disfigurement, the trial court noted that plaintiff’s dermatologist testified that there was no textural damage to plaintiff’s face; that “the dilation of Plaintiff’s facial capillaries is permanent,” but that the testifying experts had used magnifying devices to examine plaintiff; and that in court, plaintiff testified that she was not wearing makeup and “the Court was unable to identify any disfigurement.”
- Regarding loss of enjoyment of life, that “the only changes are that Plaintiff now spends 30 minutes every morning applying makeup, that she has to wear a higher SPF sunscreen, sunglasses, and a hat when spending time out in the sun.”
Based on these findings, the trial court ruled that “the jury verdict award of $125,000 was excessive,” and that “the upper limit of reasonableness for a verdict award in this case is $47,800.” The Court of Appeals affirmed the suggested remittitur.
When analyzing whether a remittitur was proper, the Court of Appeals follows a three-step analysis. First, the Court “examines the reasons for the trial court’s action since adjustments are proper only when the court disagrees with the amount of the verdict.” (internal citation and quotation omitted). Here, the Court found that the trial court “gave extensive and detailed reasons” for its remittitur, and that the trial court “found the award rendered by the jury to be in excess of what the evidence supported.”
Next, the Court must examine “whether the suggested remittitur totally destroyed the jury’s verdict.” In this case, the Court noted that the remittitur was large, representing a 61.8% reduction of the jury award. Interestingly, though, plaintiff failed to argue this point in her appellate brief, and the Court noted that it was “loathe to decide an issue that [plaintiff] did not even raise.” Even so, the Court pointed out that “there is no precise number beyond which a jury verdict is totally destroyed.” The Court held that “in the absence of any compelling argument from [plaintiff]…and, given the wide range in which even large remittiturs historically have been affirmed, we decline to find, without being requested to do so, that the jury’s verdict was totally destroyed by the Trial Court’s suggested remittitur.”
Finally, the Court must determine “whether the evidence preponderates against…the adjustment in light of the proof of damages.” Here, the Court found that the evidence did support the adjustment, and the remittitur was affirmed.
One take-away here is to carefully argue the issues in your appellate briefs. The Supreme Court has prescribed a three-part test for appellate courts to use when analyzing remittiturs. The prong on which plaintiff could have likely made her strongest argument, that such a large remittitur would destroy the jury’s verdict, was completely left out of her brief. It’s impossible to know whether such an assertion would have made a difference in the final result, but plaintiff should have at least included this argument.
One final point: under the “what-is-good-for-goose-is-good-for-the-gander” rule of jurisprudence, plaintiff’s counsel should remember this and other cases when arguing that an appellate court should affirm an addittur.