Palenkas v. Beaumont Hosp.

Decision Date07 June 1989
Docket NumberNos. 82083,82087,s. 82083
Citation443 N.W.2d 354,432 Mich. 527
PartiesBrian PALENKAS, Plaintiff-Appellee and Appellant, v. BEAUMONT HOSPITAL, a Michigan nonprofit corporation, Defendant-Cross-Plaintiff-Appellant and Appellee, and James M. Lawson, Defendant-Cross-Defendant. Brian PALENKAS, Plaintiff-Appellant, v. BEAUMONT HOSPITAL, a Michigan nonprofit corporation, Defendant-Cross-Plaintiff-Appellee, and James M. Lawson, Defendant-Cross-Defendant.
CourtMichigan Supreme Court

RILEY, Chief Justice.

We concur in sections I and II of Justice Archer's opinion. However, we disagree with his resolution of the remittitur issue in section III.

Justice Archer's opinion does not make clear whether the Court should review the trial court's decision on remittitur for an abuse of discretion or whether it should review the Court of Appeals decision for clear error. In our view, the question of the excessiveness of a jury verdict is generally one for the trial court in the first instance. The trial court, having witnessed all the testimony and evidence as well as having had the unique opportunity to evaluate the jury's reaction to the proofs and to the individual witnesses, is in the best position to make an informed decision regarding the excessiveness of the verdict. Accordingly, an appellate court must accord due deference to the trial court's decision and may only disturb a grant or denial of remittitur if an abuse of discretion is shown. This standard applies whether the review is by the Court of Appeals or the Supreme Court.

Having examined the record in the instant case and having conferred upon the trial court the requisite deference, we cannot conclude that the court abused its discretion in remitting the jury verdict to $800,000.


A trial court's order of remittitur is governed by MCR 2.611(E)(1):

"If the court finds that the only error in the trial is the inadequacy or excessiveness of the verdict, it may deny a motion for new trial on condition that within 14 days the nonmoving party consent in writing to the entry of judgment in an amount found by the court to be the lowest (if the verdict was inadequate) or highest (if the verdict was excessive) amount the evidence will support." (Emphasis added.)

According to the express language of the court rule, remittitur is justified if the jury verdict is "excessive," i.e., if the amount awarded is greater than "the highest amount the evidence will support." As Justice Archer's opinion exemplifies, however, trial courts, in addition to evaluating whether a jury award is supported by the proofs, have conducted a myriad of other inquiries in determining whether remittitur would be proper in a particular case: 1) whether the verdict "shocks the judicial conscience"; 2) whether the verdict was the result of improper methods, prejudice, passion, partiality, sympathy, corruption, or mistake of law or fact; 3) whether the verdict was within the limits of what reasonable minds would deem just compensation for the injury sustained; 4) whether the amount actually awarded is comparable to awards in similar cases within the state and in other jurisdictions. 22 Am Jur 2d, Damages, Secs. 1021-1025, pp 1067-1075. Precopio v. Detroit, 415 Mich. 457, 465, 330 N.W.2d 802 (1982); Stevens v. Edward C. Levy Co., 376 Mich. 1, 5-6, 135 N.W.2d 414 (1965); Majewski v. Nowicki, 364 Mich. 698, 700, 111 N.W.2d 887 (1961).

The only consideration expressly authorized by MCR 2.611(E)(1), however, is whether the jury award is supported by the evidence. While we agree with the established case law that a trial court, in making a decision on remittitur, should examine a number of factors (such as whether the verdict was induced by bias or prejudice), we believe its inquiry should be limited to objective considerations relating to the actual conduct of the trial or to the evidence adduced.

The "shock the conscience" inquiry is an inappropriate consideration since it merely involves an expression of the trial judge's personal values and subjective beliefs and in no way relates to the actual conduct of the trial. As we have learned in reviewing sentencing issues under People v. Coles, 417 Mich. 523, 339 N.W.2d 440 (1983), what shocks the conscience of one judge does not necessarily shock the conscience of another. Justice Archer's opinion seemingly advocates the continued use of the "shock the conscience" test in remittitur cases. Because we view this inquiry to be one of complete subjectivity, we hold that it is not to be undertaken in any analysis relating to remittitur.

The other inquiries set forth above are significantly more objective than the "shock the conscience" test. Each consideration is potentially verifiable in the written record and, therefore, provides at least some basis for appellate review.


As Justice Archer's opinion explains, it is well established in Michigan case law that an appellate court may not disturb a trial court's order of remittitur unless it determines that there has been an abuse of discretion. Hines v. Grand Trunk W.R. Co., 151 Mich.App. 585, 391 N.W.2d 750 (1985); Jenkins v. Southeastern Michigan Chapter, American Red Cross, 141 Mich.App. 785, 369 N.W.2d 223 (1985).

Although no Michigan court has so stated, other jurisdictions have expressly held that once the issue of the excessiveness of a jury verdict has been squarely presented to a trial judge, who heard and considered the evidence, neither the state's highest nor its intermediate appellate court may substitute its judgment on excessiveness for that of the trial judge unless the latter is shown to be an abuse of discretion. Davis v. Graviss, 672 S.W.2d 928, 933 (Ky.,1984); Marquardt v. Kansas C.S.R. Co., 358 S.W.2d 49, 58 (Mo., 1962) (an appellate court should be more reluctant to reduce the amount of damages awarded to a plaintiff in a personal injury action where the trial court has already acted by reducing the jury's verdict by remittitur).

An appellate court reviewing a trial court's grant or denial of remittitur must afford due deference to the trial judge since the latter haspresided over the whole trial, has personally observed the evidence and witnesses, and has had the unique opportunity to evaluate the jury's reaction to the witnesses and proofs. Accordingly the trial judge, having experienced the drama of the trial, is in the best position to determine whether the jury's verdict was motivated by such impermissible considerations as passion, bias, or anger. Deference to the trial judge simply reflects the recognition that the trial judge has observed live testimony while the appellate court merely reviews a printed record.

In granting remittitur in the instant case, the trial court considered each of the aforementioned factors on the record and concluded that the verdict was beyond the range of evidence:

"Lastly, the Court, in reviewing this matter reviewed its notes and does not take this matter lightly.

"I have indicated that, because Kenneth Gibcan, communicated to counsel some of which has apparently come back in the form of briefs and pleadings. It's not a matter of substituting my judgment. The Court has never done that before, but in this situation, the Court could only, upon what it saw and heard in the court, cannot say an award in this Court's opinion was within the range of evidence.

"It did shock the judicial conscious [sic]. The Court believes that this jury was inflamed and was angry. Perhaps it was because the hospital really offered no other witnesses other than the attending doctor. The doctor was not on trial, but the jury was angry.

"The jury, I believe in my opinion, listening to that doctor found him arrogant and conceited and listening to him was inflaming the jury.

"Beyond that, the Court heard the evidence. The Court finds that plaintiff's counsel has accurately quoted much of the evidence. The Court found that the plaintiff did suffer severe, acute pains at the time he had the surgeries. Some of the surgeries which, obviously, had to be performed to begin with based on other matters totally unrelated to the hospital or hospital doctor.

"The Court finds that he did satisfy the jury as to the point that he suffered then. But as to plaintiff's claim that he has suffered a severe disfigurement and disability, this Court observed that young man and he's not the kind of young man who has his face all scarred up or anything.

"As a matter of fact, he is a good-looking young man. He's got a slight flattening of the jaw on one side at the most, but we are not dealing with a situation where he burned his face or somebody that if anyone looked at, would grimace.

"I heard him testify. He talked fine. He was functioning fully. He attends school. He works [sic]. He has a very full day. This is not [a] situation of a disabled individual that can no longer function in society. He functions completely and is not the kind of person that anyone would turn their heads and might say, what happened to him. He would just blend right in with any crowd.

"With regards to continuing pain, the doctors described that what he is suffering right now is a chronic type of discomfort that goes along with malocclusions. It's a nuisance problem is what they testified to.

"With these...

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