Additur

Additur is virtually impossible to get from a trial court.  This is where the court awards more than the jury did finding the verdict given is inadequate.  I have seen a case sometime back where a party was able to get a new trial on damages where there was no question on liability and the jury awarded zero in damages.  In case you need it, here is the rundown on the law of additur.

An additur may be awarded when (1) " the damages are ... inadequate for the reason that the jury or trier of the facts was influenced by bias, prejudice, or passion," or (2) " the damages awarded were contrary to the overwhelming weight of credible evidence." Miss.Code Ann. § 11-1-55 (Rev.2002). In determining whether the jury was influenced by bias, passion, or prejudice, the appellate review focuses on whether the verdict is so " inadequate as to shock the conscience...." Walker v. Gann, 955 So.2d 920, 931-32 (¶ 38) (Miss.Ct.App.2007) (quoting Wal-Mart Stores, Inc. v. Johnson, 807 So.2d 382, 392 (¶ 27) (Miss.2001)).  The standard of review for a denial of an additur is abuse of discretion. Thompson, 86 So.3d at 237 (¶ 18).

The evidence is viewed in the light most favorable to the nonmoving party, giving " him or her the benefit of all favorable inferences reasonably drawn therefrom." Id. " If that evidence is contradicted, we will defer to the jury, which determines the weight and worth of testimony and the credibility of the witness at trial." Scott Prather Trucking, Inc. v. Clay, 821 So.2d 819, 821-22 (¶ 10) (Miss.2002) (internal quotation omitted). The jury's award of damages will be taken as conclusive if it is " not contradicted by positive testimony or circumstances, and is not inherently improbable, incredible, or unreasonable...." A & F Props., LLC v. Lake Caroline, Inc., 775 So.2d 1276, 1282 (¶ 17) (Miss.Ct.App.2000) (quoting Lucedale Veneer Co. v. Rogers, 211 Miss. 613, 635, 53 So.2d 69, 75 (1951)).

Of course, the flip side of this, remittitur (jury awarded too much) is largely judged by the same standard.  I will discuss it briefly tomorrow most likely.