The Multi-Jurisdictional Practitioner ... Explores a Few Trial and Post-Trial Related Issues in the District of Columbia, Maryland, and Virginia. DC Trial, Volume IX, No. 2 (Spring 2009).

THE MULTI-JURISDICTIONAL PRACTITIONER…
…EXPLORES A FEW TRIAL AND POST-TRIAL RELATED ISSUES IN THE DISTRICT OF COLUMBIA, MARYLAND, AND VIRGINIA

This article originally appeared in DC Trial, Volume IX, No. 2 (Spring 2009).

This article will review four trial and post-trial related issues commonly encountered by trial lawyers in the District of Columbia, Maryland, and Virginia: For trial procedures, the law regarding jury instructions and motions for a directed verdict/judgment are explored. For post-trial procedures, the availability of jury polling, additur, and remittitur are reviewed.

I. NON-STANDARD JURY INSTRUCTIONS

Bar groups in the District of Columbia, Maryland, and Virginia each have promulgated standardized jury instructions to ease judicial resolution of jury instructions in civil cases. [1] Though none of the standardized instructions are binding on the courts of each jurisdiction, many trial judges refuse to accept non-standardized instructions when the standardized instructions cover the applicable law. [2]

a. District of Columbia

In the District of Columbia, trial judges have broad discretion in fashioning jury instructions. See Psychiatric Institute of Washington v. Allen, 509 A.2d 619, 625 (D.C. 1986). A judge may choose between permissive alternatives exercising discretion, so long as the judge’s determination is “based upon and drawn from a firm factual foundation.” Johnson v. United States, 298 A.2d 354, 362 (D.C. 1979). A refusal to grant a request for a particular instruction is not a ground for reversal “if the court’s charge, considered as a whole, fairly and accurately states the applicable law.” Psychiatric Institute, 509 A.2d at 625.

In reviewing jury instructions, appellate courts “look at the instructions as a whole” to determine whether they constituted “prejudicial error.” Hunt v. United States, 729 A.2d 332 (D.C. 1999). The reviewing court may look to the entire facts of the case, including the underlying applicable law, in determining whether the appealing party suffered prejudicial error. See Chadbourne v. Kappaz, 779 A.2d 293, 297 (D.C. 2001). For example, in Pannu v. Jacobson, the D.C. Court of Appeals rejected an appellant’s claim that the trial judge’s failure to modify the Standardized Civil Jury Instructions for negligence constituted reversible error. 909 A.2d 178, 192-96 (D.C. 2006). In discussing the modification, the Court of Appeals reviewed the applicable law, and determined that the trial judge’s use of the standard instruction correctly stated the law of negligence, and that appellant’s proposed language may have confused the jury as to how it was to determine the appropriate standard of care. Id. at 193-96.

b. Maryland

Maryland trial judges are similarly given “wide latitude” in instructing a jury on civil charges. See Planning Research Corp. v. Elford, 114 Md. App. 138, 143, 689 A.2d 619, cert. denied, 246 Md. 240, 695 A.2d 1229 (1997). In reviewing a trial court’s jury instruction, appellate courts look to whether “(1) the requested instruction was a correct exposition of the law, (2) that law was applicable in light of the evidence presented to the jury, and (3) the requested instruction was fairly covered by the instructions actually given. See Wegad v. Howard St. Jewlelers, Inc., 326 Md. 409, 414, 605 A.2d 123 (1992).

In Jacobs v. Flynn, the Court of Special Appeals upheld a trial court’s instruction on a challenge that the instruction erroneously informed the jury on the legal concept of apparent agency. 131 Md. App. 342, 381-84, 749 A.2d 174, 195-97 (2000). In its review, the court compared the trial judge’s instruction with the proposed instruction, and reviewed the underlying substantive law regarding agency theory in Maryland. Finding that the instruction adequately informed the jury on apparent agency despite the appellant’s contention to the contrary, the court upheld the trial judge’s instruction, finding “no error” in the instruction. Id., 749 A.2d at 195-97.

c. Virginia

A trial judge’s jury instructions in Virginia are also subject to an abuse of discretion standard, so long as the instruction “fully and fairly” covers a principle of law. See Stockton v. Commonwealth, 227 Va. 124, 145, 314 S.E.2d 371, 384 (Va. 1984). This principle recognizes that many different jury instructions potentially are available to litigants; so long as the given instructions correctly state the law as it pertains to the facts of the case, there is no reversible error. See Schlimmer v. Poverty Hunt Club, 268 Va. 74, 78, 597 S.E.2d 43, 45 (2004). Nonconformity with a model jury instruction “shall not” keep a proposed jury instruction, which constitutes an “accurate statement of the law applicable to the case,” from the jury. VIRGINIA CODE § 8.01-379.2 (2008). Conversely, where a driver's proffered jury instructions were confusing, not a correct statement of the law, and/or not supported by the evidence, the instructions were properly refused. Honsinger v. Egan, 266 Va. 269, 585 S.E.2d 597 (2003). Similarly, the Supreme Court “will approve a trial court's decision not to give an instruction that is duplicative of instructions already given.” Id. at 274, 585 S.E.2d 600; see, e.g., Poliquin v. Daniels, 254 Va. 51, 59, 486 S.E.2d 530, 535 (1997); Cox v. Mabe, 214 Va. 705, 709, 204 S.E.2d 253, 257 (1974).

In Holmes v. Levine, a medical malpractice case, the administrator of a decedent’s estate alleged that a delay in a diagnosis of cancer by a physician violated the standard of care owed to the patient, and proximately caused the her death. 273 Va. 150, 639 S.E.2d 235 (Va. 2007). The judge instructed the jury to find for the plaintiff if the delay in diagnosis was “the” proximate cause of cancer. Id. at 158-60, 639 S.E.2d at 239-40. The Supreme Court of Virginia noted that the settled law in Virginia that there may be more than one proximate cause of an event, and therefore the indefinite article “a” should have been used in the jury instruction to read that the negligence of the doctor was “a” proximate cause of death, and not “the” proximate cause. Id. at 159-60, S.E.2d at 239-40. Finding reversible error in this misstatement of the law, the court remanded the case for a new trial. Id. at 160, 639 S.E.2d at 240.

II. DIRECTED VERDICTS

a. District of Columbia

Courts in the District of Columbia grant directed verdicts only in the “unusual case, in which only one conclusion could reasonably drawn from the evidence.” Homan v. Goyal, 711 A.2d 812, 817-18 (D.C. 1998). It is the responsibility of the jury, and not the judge, to weigh the evidence and judge the credibility of witnesses. Rich v. District of Columbia, 410 A.2d 528, 532 (D.C. 1991). If the triers of fact could reasonably find the plaintiff’s evidence sufficient, “the case may not be taken from the jury.” Finkelstein v. District of Columbia, 593 A.2d 591, 594 (D.C. 1991). In considering a directed verdict, the evidence must be viewed “in the light most favorable to the [non-moving party], who is entitled to every inference therefrom. Etheredge v. District of Columbia, 635 A.2d 908, 915 (D.C. 1993).

An appellate court reviewing a trial judge’s disposition of a directed verdict reviews the grant or denial de novo, applying the same standards as the trial court. See Breezevale Ltd. v. Dickinson, 759 A.2d 627 (D.C. 2000), op. adopted, 783 A.2d 573 (D.C. 2001) (en banc). For example, in Doe v. Medlantic Health Care Group, Inc., the D.C. Court of Appeals reversed a trial judge’s granting of a motion for judgment notwithstanding the verdict when the judge ignored the jury’s plausible interpretation of the facts when confronted with conflicting testimony, and failed to view the facts most favorable to the non-moving party in ruling on the motion. 814 A.2d 929, 947-49 (D.C. 2003).

b. Maryland

In accordance with Maryland Rule 2-519(a), a party may move for judgment on any or all issues at the close of the evidence offered by the opposing party, and in a jury trial at the close of all of the evidence. The trial judge must consider the evidence, “including the inferences reasonably and logically drawn therefrom, in the light most favorable to the party against whom the motion is made.” Tate v. Bd. of Ed. of Prince George’s County, 155 Md. App. 536, 545, 843 A.2d 890 (Md. App. 2004) (emphasis in original). If there is any evidence legally sufficient to generate a jury question, no matter how slight, the judge must deny the motion. Id. The facts must be uncontroverted, as opposed to merely uncontradicted. Alexander v. Tingle, 181 Md. 464, 30 A.2d 737 (Md. 1943).

The same standard applies to judgments notwithstanding the verdict. See Smith v. Miller, 71 Md. App. 273, 525 A.2d 245 (1987). Appellate courts review the disposition of such a motion under the same analysis as the trial court. Moore v. Myers, 161 Md. App. 349, 362, 868 A.2d 954 (2005).

c. Virginia

Under VIRGINIA CODE § 8.01-680, a trial court is empowered to set aside a verdict that is “plainly wrong or without evidence to support it.” If there is conflict in the testimony, “or if reasonable [persons] may differ in their conclusions of fact to be drawn from the evidence,” the trial judge cannot substitute his opinion for that of the jury. Lane v. Scott, 220 Va. 578, 581, 260 S.E.2d 238 (Va. 1979). The weight of a jury’s verdict, when there is credible evidence to support it, “is not overborne by the trial judge’s disapproval.” Commonwealth v. McNeely, 204 Va. 218, 222 (Va. 1963). When multiple inferences can be drawn from the evidence, a judge must adopt those most favorable to the non-moving party, unless the inferences are “strained, forced, or contrary to reason. See Williams v. Chesapeake Bay Bridge, 208 Va. 714, 717, 160 S.E.2d 573, 575-76 (Va. 1968); see also Lane, 220 Va. at 582.

In Lane, one of the leading cases on directed verdicts, the administratrix of Eugene Scott’s estate sued two men, Lane and Colvin, in a wrongful death case. 220 Va. at 238-39. Much of the facts came from statements by Lane, who alleged self-defense. Id. The first jury found for Lane, but the trial judge granted a motion for judgment notwithstanding the verdict, holding Lane liable as a matter of law, and impaneled a second jury for damages, which awarded Scott $18,000. Id. The Virginia Court of Appeals reversed and reinstated the first jury’s verdict for Lane, quoting the trial judge as ruling that this was “a proper case for the jury.” Id. at 240. Because many of the facts were speculative, it was not proper for the trial judge to find the first jury’s verdict “plainly wrong or without credible evidence to support it.” Id. Moreover, all inferences on the motion to set aside the verdict should have been drawn in Lane’s favor, which they clearly were not. Id. at 240-41.

III. JURY POLLING

Polling the jury refers to the practice through which jurors are asked individually whether the verdict returned is his or her verdict, in order to ensure that the announced verdict is supported by the individual jury members. 89 C.J.S. Trial § 839 (2008); see Humphries v. District of Columbia, 174 U.S. 190, 194 (1899). Polling the jury allows each juror an opportunity to express his or her true convictions, and to ascertain with certainty that each juror approves of the verdict, and that no juror was “coerced or induced to agree to a verdict to which he or she does not actually assent.” 89 C.J.S. Trial § 839.

a. District of Columbia

Though trial judges in the District of Columbia may poll the jury either sua sponte or by request of the parties, no case law or statute requires courts to do so (with the exception of criminal cases, see D.C. SUPERIOR COURT RULE 31 (2008)). D.C. courts recognize a presumption in favor of jury verdicts, and note that it is not the trial judge’s role to second-guess the jury.

D.C. courts may recognize an exception when the jury qualifies its verdict, though this exception has not been applied by the Court of Appeals to this author’s knowledge. In Mozie v. Sears Roebuck & Co., 623 A.2d 607 (D.C. 1993), the Court of Appeals cited approvingly Kingsport Util. Inc. v. Lamson, 257 F.2d 553 (6th Cir. 1958), in which the jury foreman stated when returning the verdict that the jury agreed to award damages “rather than have a mistrial.” The trial judge in that case immediately polled the jury, and, finding that there had not been a compromise verdict, accepted the foreman’s award. Kingsport Util. Inc., 257 F.2d at 559. In Mozie, the D.C. Court of Appeals affirmed an award to the plaintiff when a juror stated in an affidavit that there had been a compromise verdict because one juror was not certain on liability. 623 A.2d at 613-15. The court stated that a jury poll was not necessary in that case because there had been no qualification given at the time by the jury, but left open the possibility that polling may have been required had the jury qualified its verdict, as done in Kingsport. See id.

b. Maryland

Maryland explicitly mandates the polling of jurors in both civil and criminal cases, when requested to do so by a party. MD. RULE § 2-522(b) (2008) (civil cases); MD. RULE § 4-327(e) (criminal cases). A judge may also poll jurors sua sponte if circumstances deem necessary. See Applied Indus. Technologies v. Ludemann, 148 Md. App. 272, 290, 811 A.2d 845, 855 (Md. App. 2002) (judge did not abuse discretion in polling jurors on their wish to continue the trial immediately following news of the September 11, 2001 terrorist attacks). The author has found no case law providing that a judge’s failure to poll the jury timely absent a request to do so by a party constitutes reversible error.

c. Virginia

Virginia, like D.C., explicitly provides for the polling of jurors in criminal trials. VIRGINIA SUPREME COURT RULE 3A:17 (2009). Mandatory polling of jurors in civil cases is not provided for by statute; moreover, the Supreme Court of Virginia explicitly declined to extend Rule 3A:17 to civil cases in Cooper Industries, Inc. v. Melendez. 260 Va. 578, 591-92, 537 S.E.2d 580, 596-98 (Va. 2000).

Nevertheless, Virginia courts do recognize polling jurors in civil cases by motion of a party. See, e.g., Cooper, 260 Va. at 582-83, 537 S.E.2d at 582-83 (trial court polled jurors by request of defendant following $5 million verdict in products liability suit); see also Baltimore & O. R. Co. v. Polly, Woods, & Co., 55 Va. (14 Gratt) 447 (1858) (“The jury may be polled by the court, and ought to be if requested by either party, for the purposes of ascertaining, with certainty, whether all the jurors understand and agree in the verdict.”). However, this author has found no case law suggesting any standard by which an appellate court should measure a trial judge’s decision whether to poll a jury on request by a party or sua sponte.

IV. ADDITUR AND REMITTITUR

Remittitur refers to the procedure through which a judge reduces a jury’s award of damages. Additur, on the other hand, refers to the procedure through which a judge increases the jury’s award of damages, usually through a determination that the jury did not believe the plaintiff’s factually-accurate testimony, or in the presence of outrageous conduct by the defendant.

a. District of Columbia

Courts in the District of Columbia give great weight to jury verdicts, reflecting an unwillingness to interfere with the jury’s calculation of damages unless there is “firm support” for such action. Finkelstein v. District of Columbia, 593 A.2d 591, 596 (D.C. 1991) (en banc). Thus, while a trial court may grant a new trial subject to a remittitur, it can do so only if the verdict “is so large that ‘it is beyond all reason or is so great as to shock the conscience.’” Sigal Construction Corp. v. Stanbury, 586 A.2d 1204, 1220 (D.C. 1991) (citing Phillips v. District of Columbia, 458 A.2d 722, 724 (D.C. 1983)). Appellate courts review the trial judge’s decision under an “abuse of discretion” standard, and will reverse “only where the quantum of damages found by the jury was clearly within the maximum limit of a reasonable range.” Finkelstein, 593 A.2d at 596 (emphasis in original). For example, in George Washington University v. Lawson, a medical malpractice case, the trial court awarded defendants a new trial subject to a remittitur reducing the jury’s award of $2.75 million to $1 million, where the plaintiff sued for pain and suffering after doctors negligently amputated a small portion of her ring finger. 745 A.2d 323, 330-31. An award of $2.75 million “shock[ed] the court’s conscience,” as the plaintiff’s injuries were not so substantial that she could not gain meaningful employment and was no longer in any pain. Id.

This author has been unable to find case law on additur in the District of Columbia. A Westlaw search for “additur” provided only three D.C. court cases, but in each the court did not squarely address the issue of additur. [3] As such, whether a D.C. court would allow additur remains unclear, as the courts have neither explicitly rejected the practice (as Maryland has) nor affirmatively expressed approval. [4] Regardless of whether additur would be at least allowed as practice, a trial judge would still be subject to the Finkelstein obligation to defer to the jury’s determination on damages absent “firm support” to the contrary.

b. Maryland

Maryland judges are given wide discretion in determining whether to grant a party’s motion for remittitur or, if the remitting party refuses, to grant a new trial. Conversely, Maryland courts have rejected the practice of additur entirely.

As a matter of law, Maryland gives trial judges wide discretion in the granting or denial of a motion for remittitur, or, alternatively, a new trial. See Kirkpatrick v. Zimmerman, 257 Md. 215, 218, 262 A.2d 531, 532 (Md. 1970). In 1988, the Court of Appeals in Banegura v. Taylor stated it knew of “no case where this Court has ever disturbed the exercise of the lower court’s discretion in denying a motion for [a] new trial because of the inadequacy of . . . [compensatory] damages.” 312 Md. 609, 541 A.2d 969, 976 (Md. 1988). Appellate courts review the trial court’s decision on remittitur on an abuse of discretion standard. Owen-Illinois, Inc. v. Zenobia, 325 Md. 420, 449, 601 A.2d 633, 647 (1992).

Additur, on the other hand, is not recognized as trial procedure in Maryland. See Goldman, Skeen, & Wadler, P.A. v. Cooper, Beckman, & Tuerk, 122 Md. App. 29, 56, 712 A.2d 1, 14 (Md. App. 1998). If a party deems the damages award inadequate, the sole remedy is a motion for a new trial. Millison v. Clarke, 32 Md. App. 140, 143, 359 A.2d 127, 129 (Md. App. 1976) (citing Havens v. Shaffer, 217 Md. 323, 325, 142 A.2d 824, 825 (Md. 1958)).

c. Virginia

Virginia is unique among the three jurisdictions in that it explicitly provides for both remittitur and additur by statute. VA. CODE ANN. § 8.01-383.1 (2009). In any action at law, a trial court can require a plaintiff to remit, or else submit to a new trial. Id. § 8.01-383.1(A). The plaintiff can, however, accept the remittal subject to an appeal. Id. Like Maryland, Virginia appellate courts review decisions to require a plaintiff to submit to remittitur under an “abuse of discretion” standard. Poulston v. Rock, 251 Va. 254, 258-59, 467 S.E.2d 479, 482 (Va. 1996). To determine whether a trial court abused its discretions, Virginia courts look first to the record for a trial court’s explanation demonstrating that the court considered “factors in evidence relevant to a reasoned evaluation of damages.” Bassett Furniture v. McReynolds, 216 Va. 897, 912, 224 S.E.2d 323, 332 (Va. 1976). Second, courts determine whether the amount of recovery after remittitur bears a “reasonable relation to the damages disclosed by the evidence.” Id. Thus, in Shepard v. Capitol Foundry of Virginia, the Supreme Court of Virginia reversed a trial court’s order of remittitur where the trial court reviewed only the evidence that tended to favor the defendant, and failed to view all evidence in the light most favorable to the plaintiff as required by Bassett. 262 Va. 715, 721-22, 554 S.E.2d 72, 75-76 (2001).

Similarly, the Virginia Code provides trial courts with the authority to require the defendant to pay an amount in excess of the amount of the jury verdict, or, alternatively, to award the plaintiff a new trial. VA. CODE ANN. § 8.01-383.1(B). A defendant can accept the additur under protest, and seek its reversal. Id. Unlike remittitur, a trial court can only award extra damages when a plaintiff’s evidence “is uncontroverted and so complete that no rational fact-finder could disregard it . . . it must be considered as a fixed, constituent part of the verdict. Bradner v. Mitchell, 234 Va. 483, 487, 362 S.E.2d 718, 720 (Va. 1987). However, if the plaintiff’s evidence is controverted or doubtful as to nature and extent, then neither the circuit court nor an appellate court can disturb the verdict on a claim of inadequacy. Id. at 488, 362 S.E.2d at 720-21. See Hundley v. Osborne, 256 Va. 173, 177, 500 S.E.2d 810, 813 (Va. 1998) (affirming a rejection of plaintiff’s request for additur where plaintiff’s medical bills and future loss of earnings were not demonstrably proven at trial).

Copyright © 2009, Eric N. Stravitz.


[1] In the District of Columbia, the Bar Association of the District of Columbia created the STANDARDIZED CIVIL JURY INSTRUCTIONS (2008 ed.); the Maryland State Bar Association fashioned the MARYLAND CIVIL PATTERN JURY INSTRUCTIONS (2008 ed.); and the Model Jury Instructions Committee for Virginia drafted the VIRGINIA MODEL JURY INSTRUCTIONS (2009 ed.).

[2] This section reviews the case law of standardized instructions for civil cases only, and does not attempt to provide guidance in criminal matters in any way.

[3] For example, in one such case the party requested additur or, alternatively, a new trial in a post-trial motion, but dropped the issue on appeal. Waggaman v. Forstmann, 217 A.2d 310, 312 (D.C. App. 1966). In another, the D.C. Court of Appeals increased the trial court’s determination of damages, but characterized the increase as correcting the jury’s miscalculation of damages, and specifically not additur. Vector Realty Group, Inc. v. 711 Fourteenth Street, Inc., 659 A.2d 230, 234 fn. 9 (D.C. 1994).

[4] Additionally, in Walker v. Independence Federal Savings & Loan Association, the D.C. Court of Appeals stated that “[i]n the absence of appellate or other authority in this jurisdiction, the Court may be guided by Maryland common law.” 555 A.2d 1019, 1022 (D.C. 1989). Therefore, because there is no precedent on additur, a party could argue that it should follow the Maryland practice of rejecting the practice. The author is not aware of any party having made such an argument, however.