partial new trial

7/29/2019 Partial New Trial

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11 Fed. Prac. & Proc. Civ. 2814 (3d ed.)Federal Practice & ProcedureFederal Rules Of Civil ProcedureDatabase updated December 2012The Late Charles Alan Wrighta126, Arthur R. Millera127, Mary Kay Kanea128, Richard L.

Marcusa129

Chapter 8. JudgmentRule 59. New Trial; Altering or Amending a JudgmentC. ProcedureLink to Monthly Supplemental Service

2814 Partial New Trial

Rule 59(a) provides that a new trial may be granted on all or some of the issuesand toany party. Thus it recognizes the court's power to grant a partial new trial.At common law there was no practice of setting aside a verdict in part. 1 In 1931,

however, in the case of Gasoline Products Company v. Champlin Refining Company,

2

the Supreme Court held that the all-or-nothing approach of the common law was not oneof the features of the common-law right to trial by jury that is put beyond change by theSeventh Amendment.Lord Mansfield, in applying the common-law rule where the verdict, correct as to oneissue, was erroneous as to another, said: For form's sake we must set aside the wholeverdict. Edie v. East India Co., 1 W.B1. 295, 298. But we are not now concernedwith the form of the ancient rule. It is the Constitution which we are to interpret; and theConstitution is concerned, not with form, but with substance. All of vital significance intrial by jury is that issues of fact be submitted for determination with such instructionsand guidance by the court as will afford opportunity for that consideration by the jury

which was secured by the rules governing trials at common law. Beyond this, theSeventh Amendment does not exact the retention of old forms of procedure. It doesnot prohibit the introduction of new methods for ascertaining what facts are in issue ,or require that an issue once correctly determined, in accordance with the constitutionalcommand, be tried a second time, even though justice demands that another distinct issue,because erroneously determined, must again be passed on by a jury.3

Rule 59 was written in the light of the Gasoline Products case and of state practicesallowing a partial new trial.4

It therefore now may be regarded as settled that if an error at the trial requires a

new trial on one issue, and this issue is separate from the other issues in the case and

the error did not affect the determination of the other issues, the scope of the new

trial may be limited to the single issue.5 Perhaps the most common example is the

grant of a new trial limited to damages when liability has been properly

determined,6 but there also may be a new trial on liability with the prior

determination of damages allowed to stand.7 There also may be a new trial on some

elements of liability but not all,8 on comparative negligence,9 or on any other

separable matters.10 A partial new trial will not be granted to try a new issue that

was not litigated at the first trial,11 however.


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The Gasoline Products case stated an important limitation on the power to grant a partialnew trial that must be kept in mind.Where the practice permits a partial new trial, it may not properly be resorted to unless itclearly appears that the issue to be retried is so distinct and separable from the others thata trial of it alone may be had without injustice. Here the question of damages on the

counterclaim is so interwoven with that of liability that the former cannot be submitted tothe jury independently of the latter without confusion and uncertainty, which wouldamount to a denial of a fair trial.12

Thus, if the issues are sufficiently interwoven, a partial new trial is inappropriate.13 Forexample, a new trial on damages only is not proper if there is reason to think that theverdict may represent a compromise among jurors with different views on whetherdefendant was liable14 or if for some other reason it appears that the error on the damageissue may have affected the determination of liability.15

The court must consider the totality of the circumstances in determining realisticallywhether all issues need to be retried even though the immediate impact of the errorcomplained of was on a particular issue.16 If a new trial is required because the jury's

determination of no liability resulted from an error at the trial, it may well be thought thatthe new trial should be on all issues, since the jury's determination of damages, after ithad found no liability, is in an unreal and academic atmosphere.17 If a verdict iserroneously directed for one defendant, requiring a new trial, it may be more desirable onthe facts of a particular case to require retrial for all defendants, since the jury may havereached a different result than it would have had all the defendants been before it.18

Conversely, if there has been a verdict against several defendants but it cannot standagainst one of them, the interest of justice may require that the other defendants be givena new trial.19

The power to limit a new trial may not be used to deprive a party of the right to a jurytrial on the issues in a case. Unless the circumstances would justify a judgment as amatter of law on an issue, the court, by granting only a partial new trial, cannot excludefrom the jury an issue on which it has not yet passed or on which it has made adetermination against the party seeking the partial new trial.20

The power to limit a grant of a new trial is not restricted to the trial court. The appellatecourt, in reversing and ordering a new trial, may, when appropriate, provide that the newtrial be confined to certain issues.21

If a partial new trial is granted, those portions of the first judgment not set aside becomepart of the judgment entered following the jury verdict at the new trial. Thus, the endresult is a single judgment.22

Westlaw. 2012 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotesa126Charles Alan Wright Chair in Federal Courts, The University of Texas.a127University Professor, New York University. Formerly Bruce Bromley Professor of Law,Harvard University.a128


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John F. Digardi Distinguished Professor of Law, Chancellor and Dean Emeritus,University of California, Hastings College of the Law.a129Horace O. Coil (57) Chair in Litigation, University of California, Hastings College ofthe Law.

1Common law practiceSwain v. Hall, 3 Wils., 45, 95 Eng.Rep. 924 (K.B. 1770).Parker v. Godin, 2 Str. 813, 93 Eng.Rep. 866 (K.B. 1729).Berrington's Case, 3 Salk. 362, 91 Eng.Rep. 874 (K.B. 1706).2Gasoline Products case

283 U.S. 494, 51 S. Ct. 513, 75 L. Ed. 1188 (1931).3Seventh Amendment

283 U.S. at 498, 51 S. Ct. at 514 (per Stone, J.).

4Basis of Rule 59The Advisory Committee Note to Rule 59 when it was originally adopted, which appearsin vol. 12A, said in part: For partial new trials which are permissible under Subdivision(a), see Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494, 51 S. Ct. 513, 75L. Ed. 1188 (1931); Schuerholz v. Roach, 58 F.2d 32 (C.C.A. 4th Cir. 1932); Simmons v.Fish, 210 Mass. 563, 97 N.E. 102 (1912) (sustaining and recommending the practice andciting federal cases and cases in accord from about sixteen states and contra from threestates). The procedure in several states provides specifically for partial new trials.Ariz.Rev.Code Ann. (Struckmeyer, 1928) 3852; Calif.Code Civ.Proc. (Deering, 1937) 657, 662; Ill.Rev.Stat.1937, ch. 110, 216 (par. (f)); Md.Ann.Code (Bagby, 1924)Art. 5, 25, 26; Mich.Court Rules Ann. (Searl, 1933) Rule 47, 2 Miss.Sup.Ct.Rule 12,161 Miss. 903, 905, 1931; N.J.Sup.Ct.Rules 131, 132, 147, 2 N.J.Misc. 1197, 1246 to1251, 1255 (1924); 2 N.D.Comp.Laws Ann., 1913, 7844, as amended by N.D.Laws1927, ch. 214.5Single issue

Eximco, Inc. v. Trane Co., 748 F.2d 287, 290 (5th Cir. 1984), citing Wright & Miller.Davis v. Safeway Stores, Inc., 532 F.2d 489, 491 (5th Cir. 1976), citing Wright &Miller.

Great Coastal Exp., Inc. v. International Broth. of Teamsters, Chauffeurs, Warehousemenand Helpers of America, 511 F.2d 839, 847 (4th Cir. 1975), quoting Wright & Miller.Devine v. Patteson, 242 F.2d 828 (6th Cir. 1957).This rule is to limit any new trial to those issues that are incorrectly decided or notdecided at all. Yates v. Dann, 11 F.R.D. 386 (D. Del. 1951).See also

State Sav. & Loan Ass'n v. Kauaian Development Co., Inc., 62 Haw. 188, 613 P.2d 1315,1320 (1980), citing Wright & Miller.Kojima v. Uyeda, 2 Haw. App. 172, 628 P.2d 208, 211 (1981), citing Wright & Miller.6


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Damages only

District court did not abuse its discretion in ordering new trial in a personal-injury andwrongful-death action against asbestos manufacturer on wrongful death damages alone;issues of liability and damages were separable as to proof required and the relevant timeframes, and it was unlikely that the error in the jury award on wrongful-death damages

tainted the liability finding. McClain v. Owens-Corning Fiberglas Corp., 139 F.3d 1124(7th Cir. 1998).Kemp v. Balboa, 23 F.3d 211 (8th Cir. 1994).Improper instruction informing jury that the city would indemnify police officer forcompensatory damages awarded in a 1983 action required a new trial on the issue ofdamages, but not liability. Larez v. Holcomb, 16 F.3d 1513 (9th Cir. 1994).Mason v. Texaco, Inc., 948 F.2d 1546, 1552, (10th Cir. 1991), quoting Wright &Miller.Worker was entitled to a new trial in a products-liability action that limited the issue tothat of damages when the jury originally awarded damages only in an amount equal tomedical expenses incurred by the worker; evidence of breach of an implied warranty on

the part of the manufacturer was strong, no sign of difficulty in the jury proceedings waspresented, and there was no basis for finding the verdict was a result of a compromise onliability which would have required a retrial of all issues. Phav v. Trueblood, Inc., 915F.2d 764 (1st Cir. 1990).Riquelme Valdes v. Leisure Resource Group, Inc., 810 F.2d 1345, 1356 (5th Cir. 1987),citing Wright & Miller.K-B Trucking Co. v. Riss Intern. Corp., 763 F.2d 1148, 1163 (10th Cir. 1985), quotingWright & Miller.Digidyne Corp. v. Data General Corp., 734 F.2d 1336, 1347 (9th Cir. 1984), citingWright & Miller.Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, 729 F.2d 1530, 1548 (5th Cir. 1984),citing Wright & Miller.

When jury's findings on questions related to the employer's liability for wrongfuldischarge were based on sufficient evidence and made in accordance with the law, it wasproper for the trial court, in granting a new trial because of insufficiency of evidence tosupport the jury's verdict as to damages, to limit the new trial to the issue of damages.Hadra v. Herman Blum Consulting Engineers, 632 F.2d 1242 (5th Cir. 1980).When evidence supported liability findings and issues of liability and damages, for whicha new trial was required because of improper cumulation of verdicts rendered onalternative theories of liability, were not interwoven, remand was limited to a new trial onthe damages issue, with the jury's apportionment of negligence also to be undisturbed.Greenwood Ranches, Inc. v. Skie Const. Co., Inc., 629 F.2d 518 (8th Cir. 1980).When there is no substantial indication that the liability and damage issues areinextricably interwoven, or that the first jury verdict was a result of a compromise ofliability and damage questions, a second trial limited to damages is entirely proper. GreatCoastal Exp., Inc. v. International Broth. of Teamsters, Chauffeurs, Warehousemen andHelpers of America, 511 F.2d 839, 847 (4th Cir. 1975), quoting Wright & Miller.Brown v. Richard H. Wacholz, Inc., 467 F.2d 18 (10th Cir. 1972).Wagner v. Reading Co., 428 F.2d 289 (3d Cir. 1970).


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When proof relating to the loss of future profits for a 16-year period as a result of breachof contract was so speculative that the jury had to rely upon speculation and conjecture inarriving at its verdict, a new trial on the issue of damages would be awarded in an actionfor breach of contract. Center Chemical Co. v. Avril, Inc., 392 F.2d 289 (5th Cir. 1968).By increasing the verdict in favor of the insurer on its counterclaim for additional

premiums, the trial court necessarily ruled that the verdict as returned was, at the least,against the weight of the evidence, and hence judgment would be set aside and a new trialgranted but, in view of what the trial court indicated by its action, the new trial should beon damages only. Decato v. Travelers Ins. Co., 379 F.2d 796 (1st Cir. 1967).When the judgment in an action for death of an airplane passenger was based on theerroneous view that liability was limited by the Warsaw Convention and the trial courthad submitted the case to the jury on the basis of special interrogatories, a new trialwould be granted on the issue of damages alone. Mertens v. Flying Tiger Line, Inc., 341F.2d 851 (2d Cir. 1965).When a case was not one in which the jury had reduced the amount of damages to offseta doubtful question of liability but was one in which the jury had simply concluded that

only nominal damages had been proved, the reviewing court, concluding that it had beenprejudicial error to admit evidence that plaintiff's decedent had purchased a bottle ofwhiskey, would order a new trial as to damages only. Rosa v. City of Chester, Pa., 278F.2d 876 (3d Cir. 1960).Retrial of the liability issue was not necessary in a new trial on the damages issue in thetruck driver's negligence action against the operator of a front-end loader that collidedwith the truck, and the operator's employer; liability, which defendants had admitted attrial, was a distinct and separable issue from the question of damages. Abel v. CarolinaStalite Co., Ltd. Partnership, 345 F. Supp. 2d 527 (M.D. N.C. 2004).Bonjorno v. Kaiser Aluminum & Chemical Corp., 518 F. Supp. 102, 119 (E.D. Pa. 1981),citing Wright & Miller.

When the court was granting a new trial because of the absence of evidence on damagesand because of its erroneous failure to give an adverse inference instruction, the new trialcould be limited to the issue of damages. McElroy v. Cessna Aircraft Co., 506 F. Supp.1211, 1220 (W.D. Pa. 1981) citing Wright & Miller.Call Carl, Inc. v. BP Oil Corp., 403 F. Supp. 568, 578, (D. Md. 1975), citing Wright &Miller, aff'd in part, rev'd in part on other grounds, 554 F.2d 623 (4th Cir. 1977).7Liability only

Issue of manufacturer's liability for injuries to buyer's employee was so separable fromthe issue of damages that the new trial, necessitated by a failure properly to submit thequestion of contributory negligence, could be had without injustice on the liability issueonly. Dazenko v. James Hunter Mach. Co., 393 F.2d 287 (7th Cir. 1968).In Hutton v. Fisher, 359 F.2d 913 (3d Cir. 1966), a new trial was ordered on the issue ofliability only, honoring a stipulation to consider the damages as decided at the first trial asbinding.When the jury in an answer to an interrogatory had found that the surgeon was notindividually negligent in administering incompatible blood for a transfusion that causedthe death of the patient, but there was fundamental error in the charge with regard to thesurgeon's vicarious liability under the Pennsylvania law, a new trial would be ordered


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only as to the issue of the surgeon's vicarious liability. Mazer v. Lipschutz, 327 F.2d 42(3d Cir. 1963).The issue of a bond surety's liability under a principal's claim that it suffered a coveredloss from one or more dishonest or fraudulent acts of employees was sufficientlyseparable from the issue of consequential damages that additional consequential damages

could not be granted in a partial retrial of that claim; the pleadings and the verdictsupported the conclusion that a finding of bad faith in the surety's refusal to providecoverage as to any of the claims was sufficient for the jury to award consequentialdamages up to the claimed amount, and as such, the issues of bad faith and ofconsequential damages were completely determined by the jury in the first trial. OrientalFinancial Group, Inc. v. Federal Ins. Co., Inc., 483 F. Supp. 2d 161 (D.P.R. 2007).8Some elements of liability

When the jury in a private antitrust action brought by a former independent automobiledealer against an automobile manufacturer and its wholly owned subsidiary could notmake a reasoned evaluation of the relevant product market on the basis of the testimony

presented on the market issue, but, assuming that relevant product market consisted onlyof the same make of automobile sold by the dealer in question, evidence would besufficient for the jury on the issue whether the manufacturer and subsidiary attempted tomonopolize the relevant market, new trial of that issue on remand would be just underthe circumstances. Coleman Motor Co. v. Chrysler Corp., 525 F.2d 1338 (3d Cir. 1975).Though new trial was ordered on liability and damages, the issue of causation,established by a special verdict in the former trial, need not be retried. Pritchard v.Liggett & Myers Tobacco Co., 370 F.2d 95 (3d Cir. 1966).New trial was ordered on the vicarious liability of defendant even though a finding thathe was not individually liable was allowed to stand. Mazer v. Lipschutz, 327 F.2d 42, 52(3d Cir. 1963).New trial was limited to the single issue whether two defendants were jointly liable.Gallo v. Crocker, 321 F.2d 876 (5th Cir. 1963).New trial as to certain aspects in which defendant was claimed to have been negligent butnot as to others was ordered in Furr v. Herzmark, 206 F.2d 468 (D.C. Cir. 1953).In a cross action against a stevedore by a shipowner against whom the longshoremanbrought an action for injuries sustained when the ship's boom fell, the trial judge'ssubmission of an interrogatory relating to whether the shipowner breached any of itsduties under its contract with the stevedore without including in that interrogatory aninstruction as to whether any such failure was a proximate cause of injuries sustained bythe longshoreman required a grant of partial new trial limited to the issue of whether thelongshoreman's injuries were caused, in part, by the shipowner's breach of contract withthe stevedore. Dunn v. Ove Skou Rederi A/S, 45 F.R.D. 18 (E.D. Pa. 1968).9Comparative negligence

A new trial as to damages only can be ordered in an FELA case. The negligence ofdefendant must be regarded as adjudicated, and cannot be an issue. The railroad willcarry the burden of proving contributory negligence, in mitigation of damages, andplaintiff can meet this with any admissible evidence, including testimony of the railroad'snegligence. That evidence, if any, will be introduced not to prove that the railroad was


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negligent, but to prove that the claim of contributory negligence is hollow and withoutsubstantial weight. Cromling v. Pittsburgh & L. E. R. Co., 327 F.2d 142, 152153 (3dCir. 1963).District court may retry specific issues such as plaintiff's comparative negligence when itclearly appears that issue is sufficiently distinct and separable from others and that trial of

that issue alone may be had without injustice. Liriano v. Hobart Corp., 949 F. Supp. 171(S.D. N.Y. 1996).A new trial on damages only was ordered in a comparative negligence case in which thejury, by special verdict, had found that plaintiff had not been guilty of any negligence.Schottka v. American Export Isbrandtsen Lines, Inc., 311 F. Supp. 77 (S.D. N.Y. 1969).Compare

When the doctrine of comparative negligence was involved and the amount of alongshoreman's damages was related to the issue of his contributory negligence, the trialcourt did not abuse its discretion in ordering a retrial of all the issues after thelongshoreman did not consent to remittitur. Cosentino v. Royal Netherlands S. S. Co.,389 F.2d 726 (2d Cir. 1968).

Case would not be remanded for new trial on the damage issue only under Jones Act,when the libelant's conduct and credibility was attacked both with respect to liability anddamages, the trial of the case took only two days, and the issues of liability were notsufficiently complicated to render their redetermination a burdensome undertaking.Korbut v. Keystone Shipping Co., 380 F.2d 352 (5th Cir. 1967).10Other separable matters

Any new trial in physician's West Virginia law action against a hospital for breach of anemployment contract, following the court of appeals' determination that the physiciancould not seek consequential damages without requiring proof of loss of identifiableprofessional opportunities, would be limited to the issue of consequential damages,inasmuch as that issue was distinct and separable from questions related to the directbreach-of-contract damages, and a retrial of both damages issues would endanger theaward of damages for direct breach, which the hospital had forfeited its right tochallenge. Rice v. Community Health Ass'n, 203 F.3d 283, 290 (4th Cir. 2000), citingWright, Miller & Kane.

Ryan by Ryan v. McDonough Power Equipment, Inc., 734 F.2d 385, 388 (8th Cir. 1984),citing Wright & Miller.

Verdict for one plaintiff could stand even though errors required new trial for otherparties. Lowery v. Clouse, 348 F.2d 252 (8th Cir. 1965).In an action to recover total permanent-disability benefits under a government life policyproviding that the total permanent-disability benefits may relate back to a date notexceeding six months prior to the receipt of due proof of disability, the issue of backbenefits under the policy was clearly separable from the issue of future benefits and fromother issues and the issue of back benefits could be properly the subject of partial newtrial, when neither the verdict nor the judgment determined the date upon which dueproof was offered by the insured. U. S. v. Calvey, 110 F.2d 327 (C.C.A. 3d Cir. 1940).When a breach-of-contract claim by a station manager who was a shareholder of theseller was entirely distinct from the television buyer's claims of breach of the mergeragreement and fraud, and the claims involved a separate contract and separate conduct,


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partial new trial on several of the buyer's claims would not result in confusion anduncertainty so as to require a new trial on the manager's breach-of-contract claims. FleetNat. Bank v. Anchor Media Television, Inc., 831 F. Supp. 16 (D.R.I. 1993), judgmentaff'd, 45 F.3d 546 (1st Cir. 1995).When plaintiff, in a death action under the Federal Employers' Liability Act, failed to

prove his right to maintain an action as decedent's administrator, a new trial was grantedon the specific issue of plaintiff's capacity to sue for the benefit of decedent's survivinghusband. McGlothan v. Pennsylvania R. Co., 72 F. Supp. 176 (E.D. Pa. 1947).11New issue

When a complaint for cancellation of a deed from parent to child sought relief on theground of fraud, plaintiff was not entitled to a new trial after an adverse adjudication forpurpose of presenting evidence to show a right to relief on the theory that the child hadrefused or failed to furnish support in conformity with the condition of the conveyancewhen no allegations were made in the complaint to support the evidence to be presented.Popovitch v. Kasperlik, 76 F. Supp. 233 (W.D. Pa. 1947).

12Power limited283 U.S. at 500501, 51 S. Ct. at 515.13Issues interwoven

The court held that a partial new trial as to only one count of a copyright-infringementaction as a result of incorrect jury instructions would not be proper. Although the twocounts of the action ostensibly involved infringement of separately copyrighted material,the court would not grant a new trial on one count and not the other because the twocounts were sufficiently interwoven and intertwined to require a new trial on both counts.Bateman v. Mnemonics, Inc., 79 F.3d 1532 (11th Cir. 1996).Nissho-Iwai Co., Ltd. v. Occidental Crude Sales, 729 F.2d 1530, 1539 (5th Cir. 1984),citing Wright & Miller.

14Compromise verdict

Stanton by Brooks v. Astra Pharmaceutical Products, Inc., 718 F.2d 553, 576 (3d Cir.1983), quoting Wright & Miller.Following the first trial in a products-liability action brought by parents and a childagainst the manufacturer of Bendectin, a nausea drug whose ingestion by the motherduring pregnancy allegedly caused the child to be born with birth defects, the districtcourt did not abuse its discretion by ordering a new trial on all issues, instead of anadjudication solely for the purpose of assessing the amount of the child's damages, sincethe unique circumstances disclosed of record provided abundant indicia that the jurycompromised the issues of liability and damages, thus rendering them inseparable.Mekdeci By and Through Mekdeci v. Merrell Nat. Laboratories, a Div. of Richardson-Merrell, Inc., 711 F.2d 1510 (11th Cir. 1983).When the jury repeatedly found that defendant failed to establish its affirmative defenses,which was the only basis on which defendant could escape liability, and when the soleindication of a jury compromise was the low amount of damages and the jury requiredonly two to three hours to reach the verdict after a long, protracted trial, and when the


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award could only be explained by reference to use of the term damages on specialinterrogatories, a compromise verdict was not indicated and the district court did notabuse discretion in ordering a new trial only on issue of damages. Burger King Corp. v.Mason, 710 F.2d 1480 (11th Cir. 1983).National R.R. Passenger Corp. v. Koch Industries, Inc., 701 F.2d 108, 110 (10th Cir.

1983), citing Wright & Miller.Lucas v. American Mfg. Co., 630 F.2d 291, 294 (5th Cir. 1980), citing Wright & Miller.Vizzini v. Ford Motor Co., 569 F.2d 754, 760 (3d Cir. 1977), quoting Wright & Miller.Vidrine v. Kansas City Southern Ry. Co., 466 F.2d 1217 (5th Cir. 1972).Under the circumstances, including the circumstances that the issues of liability anddamages were tried together and that a small verdict returned by the jury could wellindicate that the jurors were not unanimous in their finding of negligence and that theverdict represented a compromise on that issue, it would be unjust to defendants torestrict a new trial to the issue of damages after reversal because of improper instructionson that issue. Caskey v. Village of Wayland, 375 F.2d 1004 (2d Cir. 1967).15

Affected liabilityNew trial on the issues of both liability and damages, rather than a new trial on damagesonly or remittitur, was appropriate in a former employee's 1983 action against anemployer alleging that her termination was in retaliation for the exercise of her FirstAmendment free-speech right, when the district court found the jury's verdict of$1,555,678.76 was a product of passion and prejudice. Dossett v. First State Bank, 399F.3d 940 (8th Cir. 2005).K-B Trucking Co. v. Riss Intern. Corp., 763 F.2d 1148, 1163 (10th Cir. 1985), quotingWright & Miller.Issue of damages was not so distinct and separable from the issue of liability that a newtrial limited to damages only was justified, when, after nine hours of deliberation, the juryreturned a verdict for plaintiff on the strict-liability count, but after nearly two full days ofdeliberation on damages, the jury could not agree on a verdict, indicating that the jury'sdeliberations on damages may have been influenced by its views on liability or that juryconfused its responsibilities in one or both phases of trial, so that it appeared thatproblems that led to a mistrial in the damages portion of the trial also affected the liabilityphase. Vizzini v. Ford Motor Co., 569 F.2d 754 (3d Cir. 1977).Rivera v. Farrell Lines, Inc., 474 F.2d 255, 259, (2d Cir. 1973).Hatfield v. Seaboard Air Line R. Co., 396 F.2d 721 (5th Cir. 1968).When the jury was erroneously instructed that it was their duty to bring in a verdict forboth compensatory and punitive damages, in view of the fact that the evidence relating towillful misconduct was so inextricably tied up with the evidence relating to primarynegligence that a fair trial upon primary negligence required trial of both issues together,on remand, the trial could not properly be limited to the question of punitive damagesonly, even though no error was found in the amount of compensatory damages, but a newtrial on all issues was necessary in the interest of justice. Atlantic Coast Line R. Co. v.Bennett, 251 F.2d 934 (4th Cir. 1958).New trial on both issues of liability and damages sustained in a motorcycle-automobilecollision, rather than a new trial solely on the damages issue, was ordered when theoriginal decision to bifurcate was based on a close question of liability, the court had no


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way of fathoming what motivated the single jury to render a patently insufficientdamages verdict, except that the verdict could have been the result of passion, prejudiceor misconception of law, tainted with elements of compromise or the result of the jury'smisunderstanding or disobeying instructions not only as to damages but also as toliability. Feinberg v. Mathai, 60 F.R.D. 69 (E.D. Pa. 1973).

CompareMinneapolis, St. P. & S. S. M. Ry. Co. v. Moquin, 283 U.S. 520, 51 S. Ct. 501, 75 L. Ed.1243 (1931).But see

There is a quite remarkable holding that when a verdict was so inadequate as to indicate itwas the result of passion and prejudice, a new trial on damages only would be awarded.Gardner v. Vogel, 237 F. Supp. 119 (E.D. Pa. 1964).16Totality of circumstances

Davidson Oil Country Supply Co., Inc. v. Klockner, Inc., 917 F.2d 185, 187 (5th Cir.1990), citing Wright & Miller.

Slater v. KFC Corp., 621 F.2d 932, 938 (8th Cir. 1980), citing Wright & Miller.Dunlap v. G. & C. Towing, Inc., 613 F.2d 493, 497 (4th Cir. 1980), citing Wright &Miller.

When the court did not know whether the jury found for the piping contractor against theplant owner on the basis of termination of the contract without cause or on the basis ofbreach of a subsequent settlement agreement, the court, which had determined the verdictto be excessive no matter which of the two theories provided the basis for liability, couldnot calculate a maximum recovery on which to base a remittitur and could not avoid afull trial on remand by ordering a partial new trial limited to damage issues. Jamison Co.,Inc. v. Westvaco Corp., 526 F.2d 922 (5th Cir. 1976).Williams v. Slade, 431 F.2d 605, 609 (5th Cir. 1970).17Academic atmosphere

O'Neill v. U. S., 411 F.2d 139 (3d Cir. 1969).When the jury had made findings as to the amount of damages and also had made afinding of no liability after receiving certain erroneous instructions on the negligenceissues, it was not sound judicial policy to let the damage findings stand and there wouldbe an entire new trial of case. Romer v. Baldwin, 317 F.2d 919 (3d Cir. 1963).Compare

When instructions which were given after an erroneous direction of verdict on liabilitycould have had the effect of impermissibly influencing the jury's award of damages, anew trial was required as to damages as well as to liability. Camalier & Buckley-Madison, Inc. v. Madison Hotel, Inc., 513 F.2d 407 (D.C. Cir. 1975).18Directed verdict for one

In a case in which a verdict had been erroneously directed for one defendant and the juryfound for the other defendant, there should be a new trial against both defendants.Williams v. Slade, 431 F.2d 605 (5th Cir. 1970).19Verdict erroneous for one


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In an action against three defendants, in which judgment against two of them wasreversed for insufficiency of the evidence against them, the remaining defendant shouldbe given a new trial since it could not fairly be assumed that the jury would have awardedthe same amount of damages against the remaining defendant alone. Washington Gas-Light Co. v. Lansden, 172 U.S. 534, 19 S. Ct. 296, 43 L. Ed. 543 (1899).

20Cannot exclude issueWhen the jury returned a verdict for one defendant, the court could not grant a new trialon damages only as to that defendant, since this would amount to a directed verdictagainst that defendant on liability and such a directed verdict cannot be granted in theabsence of a timely motion therefor. Tsai v. Rosenthal, 297 F.2d 614 (8th Cir. 1961).Jury's finding that defendant was negligent in furnishing badly ventilated quarters on itsvessel to plaintiff, who at the beginning of the voyage was infected with activetuberculosis, in the absence of an additional finding that defendant's negligence was thecause of the aggravation of plaintiff's disease, did not permit a new trial on the issue ofdamages alone upon reversal of a judgment for defendant because of an instruction

denying plaintiff's right to recover for aggravation of active tuberculosis. Hiltz v. AtlanticRefining Co., 151 F.2d 159 (C.C.A. 3d Cir. 1945).21Appellate court

Improper jury instruction on damages did not require reversal of the liability finding;liability and damages were not so interwoven that one could not be determined withoutthe other. Murray v. Ross-Dove Co., Inc., 72 F.3d 1 (1st Cir. 1995).Maxey v. Freightliner Corp., 727 F.2d 350, 352 (5th Cir. 1984), citing Wright & Miller.Davis v. Safeway Stores, Inc., 532 F.2d 489, 491 (5th Cir. 1976), citing Wright &Miller.

Brown v. Richard H. Wacholz, Inc., 467 F.2d 18 (10th Cir. 1972).Compare

When the court of appeals noted in its opinion that a new trial was necessary onlybecause of the exclusion of certain evidence, thus implying that proceedings on remandneed go no further than to expand the record by admitting that evidence, the trial court onremand properly limited the scope of the proceedings to the introduction of that evidenceonly. U.S. v. 63.04 Acres of Land, More or Less, Situate at Lido Beach, City of LongBeach, Town of Hempstead, Nassau County, N Y, 257 F.2d 68 (2d Cir. 1958).22Single judgment

Weymouth v. Colorado Interstate Gas Co., 34 F.R.D. 4 (N.D. Tex. 1963), judgment aff'don the merits, 367 F.2d 84 (5th Cir. 1966).End of Document 2013 Thomson Reuters. No claim to original U.S. GovernmentWorks.

2814 Partial New Trial, 11 Fed. Prac. & Proc. Civ. 2814 (3d ed.)

partial new trial

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