The Virginia Defamation Law Blog
As I wrote on this blog last month, if a trial judge gives the jury faulty instructions in a defamation case regarding liability issues, the parties are entitled to a new trial. Juries are there to weigh evidence and determine the facts, not decide what the law should be. Today, I’m writing about the appropriate remedy when a jury awards the plaintiff an outrageously large sum of monetary damages after having been instructed properly regarding the law. Sometimes juries will understand what the trial judge has asked them to do but for reasons such as passion, prejudice, sympathy, or simply because of a rush to reach a consensus and go home, decide to award an amount of money having no bearing on the injuries actually suffered. When this happens, the unlucky defendant can ask for remittitur.
“Remittitur” is a process by which the trial court orders a new trial unless the plaintiff accepts a reduction in an excessive jury award. Compensatory damages must bear a reasonable relationship to the damages disclosed by the evidence. Although a judge may not arbitrarily substitute her opinion for that of the jury, she has both the power and the duty to correct a verdict so excessive as to “shock the conscience” of the court. (See Hogan v. Carter, 226 Va. 361, 372 (1983)). Under Virginia Code § 8.01-383.1, a trial court may give the plaintiff the option of remittitur of the excessive verdict in lieu of a new trial, permitting him or her to accept judgment for a reduced sum. In setting this reduced amount, the court should consider factors in evidence relevant to a reasoned evaluation of the damages, and set the damages at an amount that bears a “reasonable relation to the damages disclosed by the evidence.” (See Bassett Furniture, 216 Va. 897, 911-12 (1976)).
For a real-world example, take a look at the opinion in Thomas v. Psimas, decided January 17, 2019, by the Circuit Court for the City of Norfolk. Jesse Andre Thomas was the city auditor for Portsmouth, Virginia, reporting to the City Council. Evidence at trial showed that he had occasionally made presentations to City Council updating them regarding his work. Elizabeth Psimas was a member of the City Council who was not satisfied with the auditor’s work product. In a discussion with a WAVY-TV news reporter, she made the following statements:
What is the auditor doing? Where are the finished products? Where are the audits? I don’t have anything. You know, if I had to put my hand on a Bible and tell you what he was working on I couldn’t, because I don’t know. … Regular updates at least. You know. Monthly, quarterly, bi-monthly, something. I got nothing. I got nothing for two years.
Based on these statements, the auditor sued for defamation and won a fat verdict of $775,000. The court decided this was a situation in which remittitur would be appropriate as the verdict was so excessive that it did indeed “shock the conscience” of the court.
For one thing, the WAVY-TV interview with Psimas was not the first time the auditor had been criticized. The court recounted numerous other examples of unflattering comments about his performance made in the Virginian-Pilot. By contrast, the defendant’s comments on camera took roughly ten seconds. The court was skeptical that the plaintiff’s damaged reputation was solely due to that 10-second interview. He didn’t even
present any witnesses who had actually seen the broadcast.
Next, the court characterized the plaintiff’s testimony on damages as “unremarkable.” He said he was frustrated by the comments and concerned about “public humiliation,” but didn’t offer much more than that in terms of the effect the defamatory statements had on him. He testified that “it hurts” and “it stings,” but acknowledged that those emotions may have been caused as much by his firing than by the WAVY-TV comments. He testified that he believed his reputation had been damaged, but did not corroborate that belief in any way.
In light of the above, the court found that the $775,000 award was out of proportion to the actual injuries suffered and “compels the conclusion that the verdict was the product of passion or prejudice or some misunderstanding of the facts or the law.” Noting that Virginia law does not provide much guidance to trial courts regarding the amount by which excessive verdicts should be reduced, the court decided to grant remittitur by knocking $625,000 off of the amount awarded by the jury:
The Court requires Plaintiff to accept remittitur and judgment in the amount of $75,000 in compensatory damages and $75,000 in punitive damages, for a total judgment of $150,000, or to submit to a new trial on the issue of damages pursuant to Virginia Code § 8.01-383.1. Plaintiff shall file a pleading communicating his decision within 21 days.
The court found that $75,000 in compensatory damages–though higher than the judge would have awarded had she been on the jury–was not so much as to shock her conscience. And after considering numerous factors, she felt that the punitive award should also be reduced to $75,000.