*1 LUMBARD, Before HAYS and FEIN- BERG, Judges. DONOVAN, X.

Francis LUMBARD, Circuit Judge: Plaintiff-Appellant, squarely presents This case for resolution question which procedural has been the subject extended discussion in several CO, PENN INC. and Penn SHIPPING opinions recent of this court. seeking Co., Inc., Defendants-Appellees. Trans $65,000 judgment favor, review of a No. Docket 74-2694. entered in the Southern District on August following day a two before Appeals, United Court of States Judge Gurfein and a Francis X. Dono- Second Circuit. modify that we the well urges van estab- permit rule in this circuit and lished direct Argued April appeal from orders Decided June We protest.” disagree with this suggestion.

Rather, having carefully weighed the competing policy considerations we remain of the soundness of our tradition- convinced objected If Donovan practice. al verdict, jury’s reduction of the Gurfein’s was to proper recourse refuse the remittitur upon the and insist second trial to which he so, was entitled. Had he done the interloc- utory nature of that choice readily would be Having apparent. chosen instead to accede reluctantly, albeit Dono- just van is bound decision as if he a settlement with his had reached adver- accordingly sary. The dismissed. 4, 1970, employed by On June while PennSailor, as a appellees seaman on the SS slipped fell, appellant paint wet fracture suffering a colles wrist *2 chip $65,000 and the dislocation fracture of reduced verdict of plus a ship When the docked two preserve to right purported “right ap elbow. and his to later, in a wait- Donovan was taken peal language hours therefrom.” This adopt was Hospital on to the Marine ing ambulance Werker1 by Judge ed and embodied in the There, wrist Island. the fractured on August 6, entered Staten 1975. Pre reduced, joint into put dictably, the elbow back was after. followed soon Appel- contends, placed right alia, on the arm. a cast inter re Appellant and that the years of his fifty agreed old the time upon lant was mittitur to which was based accident. arithmetic miscalculation and represented judge’s the trial We an abuse of discretion. approxi- Following a convalescence of however, hold, that Donovan’s acceptance months, six Donovan returned to mately precludes at present 1, 1970, having December been work on upon it. tack Brighton duty” by “fit for the declared certifi- Despite this gained by Health Service. what repeating Public Little would cation, appraisal which recently length evidenced medical and at in we so considered resuming appellant capable of Rogers that Reinertsen v. Construc Donovan responsibilities, normal (2d 1975) full and F.2d 531 tion losing at trial that he has Calmar, indicated been Cir., Evans v. F.2d 519 per of since his to 40 hours overtime week 1976). say to that disagree with Suffice as a direct result of his weakened return basic contention appellant’s already that addition, In expert testimony condition. judicial over-extended resources bet would established that Donovan has suf- below by permitting ter be husbanded immediate grip right loss of and a fered a hand orders of appeal from remittitur. Were mobility in wrist and of his diminution available, such a course would agree- general there is elbow. nothing by to lose accepting have a remitti appellees’ in words of law- ment protest,” thereby tur “under guaranteeing wrist has healed “off center.” yer, the verdict, himself a minimum pro and then court of ceeding appeals in an effort compensation for the which he injury In to sum which restore the had been disal incurred, pain experienced which he district by judge.2 lowed The prolifera earnings which he has will be been and tion of be the con inevitable $90,000 denied, awarded Donovan sequence. damages. Appellees promptly then in aside the verdict as excessive. set moved contrast, experience has demonstrated 6, 1974, August opinion rendered In an judicial that the interest administration motion, granted the held the Gurfein Judge is well served practice of reasonably allowa- beyond to be that award treating orders remittitur as interlocuto appellant ordered a new trial unless ble and unappealable. ry and therefore See Wood $25,000. to a remittitur of consented Chesbrough, worth v. nearly year Moore, one mulled his 61 L.Ed. 9 J. Fed appellant For 1203.06, and the case in a eral Practice at 721 remained n. 31. As alternatives Finally, during limbo. submitted appellant argument, Donovan conceded oral state proposed the district now plaintiffs most the remittitur parte ex acceptance necessitating noted his “under which thus second order trial assigned upon Judge is, Werker was to the case papers moreover, to revise these overshad- Ap- elevation to the Gurfein’s Court possible return if the owed peals. We therefore is reinstated. see no merit attorneys operating argument on a contin- that undeniably involved in some cost is 2. While gency would be reluctant fee basis to invest order, appealing a remittitur the incremental energy obtain additional time needed to relatively expense of the fact small view remittitur were an immedi- direct review already parties undoubtedly have appeal permitted. ate prepared of law to and submitted memoranda required court. the district Whatever effort $65,000. recovery appeals, Plaintiff Finality and re- minority of cases. small precisely claiming because that since he achieved pose “[t]he protest,” less than the amount he should have risks order has reduced argue to us that the opportunity the remittitur which . . calculat- recovery are We reducing erred in the verdict. *3 plaintiffs to therefore, only reasonable a must, induce most reach the issue that ed to day,” and call it a Rog Reinertsen v. ago, in year Evans, F.2d at 522. 534 ers Construction 1975), length, at some but did we discussed graphically That such risks are real That necessary to decide.1 issue not find it Reinertsen, where the first in illustrated change judge-made to is whether $75,000, the order a verdict of jury returned way plaintiff challenge can that the $45,000 the award to of remittitur reduced by is first judge’s use of $16,000. just jury granted the second and risk, delay expense of a undergoing the and allowing to the defendant prejudice The majority opinion The holds second trial. the second trial and bypass to plaintiff plaintiff to that burdensome course. I re of the remittitur is direct review obtain dissent, since I believe that the spectfully right The defendant’s to obvious. therefore plaintiff rule that is a seeks “under jury consider the issue of second have a his way preserve right to to reasonable although upon conditioned damages, allegedly undue interference with protest rejected the remitti- having first plaintiff’s by judges. trial jury verdicts a valuable one. It should tur, is nonetheless Furthermore, in disregarded. lightly not be problem majority with the My principal where a second is instances those rare adhering is to the tradition- opinion yet an additional provides it required, rule, gives inadequate consideration to al court of can by which the gauge majority’s all the interests involved. The remittitur. propriety judge the premise appears pri- to be that basic left question answer the We therefore mary efficiency interest of courts is the although and alluded to in Reinertsen open administration. This is not so. judicial Evans, by holding that a decided not one, In civil matters like this courts exist to remittitur, accepts an order of who plaintiff disputes litigants. between When a resolve by is bound qualifications, without with or injured claims that he has plaintiff been challenge may and not later acceptance defendant, of the fault of a because seeking review in the court of the order designed give is to proceeding attempted Donovan’s reservation appeals. opportunity prove plaintiff a fair can not and does not right aof adequate compen- and to obtain contention law. Cf. v. Com- this rule of Sanford alter sation, Conversely, is correct. if he a de- 39, 50-51, missioner, 84 S.Ct. 308 U.S. a fair is afforded chance to meet a fendant L.Ed. The inter- contentions head-on. plaintiff’s Appeal administration, dismissed. courts in efficient est of the important, superior is not to the though FEINBERG, (dissenting): plaintiff or of the defend- interests Therefore, plaintiff’s determination of ant. obtained a X. Donovan Plaintiff Francis depend, now should not right .appeal $90,000 personal injury jury verdict believes, majority apparently solely defendants-appellees. By against action “proliferation would be a then whether there utilizing the device appeals” consequence” as an “inevitable Judge Gurfein District —a comment, Note, (1976) Note”); (“Chicago see L.Rev. 376 Recent law review 1. For recent Courts, Developments, L.Rev. 845 in the Federal Fordham Remittitur Practice Note, Note, Appealability Judgments Remittitur Re- Entered Pur- Colum.L.Rev. Courts, Constitutionality Efficiency Liqui- in Federal suant to Remittiturs view: Cases, Damage (1975) (“Duke Note”). Unliquidated 43 Chi. Duke L.J. 1150 dated and I not shocked. The incidentally, which would formulation reflects an prediction, un easiness over tampering with a make.2 Schiedt, Dimick v. verdict. Cf. compelling A much more consideration (1934).3 79 L.Ed. 603 plaintiff that a cannot the rule whether used, however, When a remittitur even one appeal from a upon coercive effect is very protest,” significant works great. He is offered a reduced verdict hardship on him. It must be unjustifiable right away. refuse, Should in order to ques- that consideration of this emphasized regain the full amount of the verdict he with a who has tion starts recov- undergo the delay must first and trouble of verdict from a ered a substantial sub- trial, perhaps a second obtain a enough to have lower verd stantial been reduced ict,4 try persuade then $90,000 judge (in $65,000). this case from trial judge court that the erred in reducing verdict has a Plaintiff’s *4 the first verdict. It should basis, surprise be no lightly and is not to be constitutional that, majority puts it, as the ignored. Granting plain a new trial unless a “most accept tiffs now the remittitur plaintiff accepts attempt remittitur is an thus necessi tating a only second trial in by judge to reduce verdict because a small minori so,5 extent, ty of cases.” If this is proves feels that it is excessive. To this it appel point, an of the lant’s which is that presumably jury’s it is invasion the sys plaintiff deprives any and the of the tem him of prerogative real opportunity to determination, justified only challenge judge’s and can be its use of a remittitur.6 A limited situations. common formula- analysis, then, On this problem seems judge only should inter- tion is that a trial me more difficult than it does to the jury judgment damages with a fere majority. Why should we allow a plaintiff awarded is if the amount so excessive to be coerced into giving up his chance to that it is the compel the conclusion challenge alleged an invasion of the jury’s passion prejudice result of or or is shock- prerogative? I have difficulty in finding a “judicial conscience.” ing to [Foot- satisfactory answer to question. that I rec- notes omitted.] ognize weight that precedent R., Long Dagnello F.Supp. v. Island R. 193 against plaintiff. The authorities are dis- aff’d, (S.D.N.Y.1960), 289 F.2d 797 in Reinertsen cussed v. Rogers 1961); Taylor cf. (2d Washington v. Construction supra, in which we indi- Co., U.S.App.D.C. Terminal 409 cated our reluctance “to depart from the (1969). 147-49 This statement F.2d traditional rule.” 519 F.2d at 536. Such judges great that are aware of a assumes attitude is not unseemly for an inferior consciences, but, that their many verdicts and as Justice federal pointed Holmes least, easily are not too years ago, this context out over cannot’ be the Logically, “proliferation” plaintiff could if 2. The be in cases secured higher proper by is ordered. Neither ma- where than that deemed the trial judge original jority I can cite hard statistics on the num- nor order of again aside, any year, putting ber of such cases in this circuit in but set it thus plaintiff suggests my experience the total is not on a treadmill until he obtained a low- verdict, accepted great. er the remittitur or settled the Chicago case. See Note at 376. question constitutionality 3. On the Here, too, statistics, my noted: we have no Court hard but guess would be educated the same as the ma- light foregoing In the reflected re- jority’s. English decisions and view of the commenta- tors, it, therefore, may question be that if the 6* See Note at 380: of remittitur were now before us for the first time, it would be decided otherwise. the whole rationale behind the re- is “an uncon- practice pressure Id. For the view that plaintiff mittitur is to injury practice” personal taking actions stitutional than that which into less has one, Chicago Note at 400. like this see awarded him. course, whole answer.7 as we noted in another possibility, namely, Reinertsen, wholly the authorities are not that the court will reduce the Circuit, the way. one The Fifth busiest of But remittitur. consent to all, adopted has the rule that appellant larger remittitur should certainly cov- See, Wiggs Courshon, g., seeks. e. er the smaller. Plaintiff contends F.2d 1281 United States v. 1160.96 policy with the final Land, Acres of 9 J. satisfied, the justice thus interests of will Moore, 1203.06, Federal Practice at 722 by allowing ap- be served an immediate 1975); Wright Miller, ed. 11 C. and A. Fed these peal under circumstances. If the Procedure, 2815, eral Practice and at 105— § succeeds, the be re- & n.10 whole or in part stored in without need There question is also the whether a new parties undergo second trial. Supreme various rule is barred Court fails, there will judg- If the be decisions, Reinertsen, supra, referred to in ment within what the trial judge con- Circuit, F.2d at 534 & n.2.8 The Fifth range to be the sidered reason. however, apparently has assumed that these Therefore, it seems that appellant’s pro- distinguishable or cases have somehow posed rule would not policy offend the many their force in the lost decades since the final rule. they At point, were decided.9 I would willing apparent assump hand, On the other there is the legitimate correct, tion of the Fifth Circuit as at least *5 a interest of defendant to be considered. until such time as we are by higher advised recognized We also in Reinertsen that a authority that it is not. reasonably can argue defendant Another to modifying obstacle prejudiced, if not at least must might present strong rule be the federal wrongheaded, have been and that [he] against piecemeal policy appeals embodied placed not be in a position should where However, judgment” rule. in the “final remittitur is held proper, if the a plaintiff protest” while a remittitur unwilling who is it without an might judgment, not be the traditional final always appeal get the maximum that pointed Fifth has out that allow- jury reasonably a could fix rather than ing plaintiff appeal a that situation to jury what a wiser might in fact award. policy. with federal in accord Although Id. there is some force to this order, If the remittitur was in argument, I do not think it is sufficient to it, agreed to the judgment has justify present rule. If the judge’s final, would be and no new trial would be upheld remittitur is plaintiff’s on a direct required. trial court If the erred in or- appeal, the already is, dering by hypothesis, justifiable a

could set aside the one. A and order defend- ant, plaintiff, that a be entered on the like a is entitled to no more new Again, verdict. no would be than that. the present practice necessary to conclude the litigation. concerning remittiturs already favors de- fendants. A Courshon, defendant Wiggs supra, may v. immediately 485 F.2d at 1283. Reinertsen, 535, supra, appeal 519 F.2d from the trial judge’s at we refusal to or- was, noted that there remittitur, see, der a new trial or a g., e. revolting “It 751, 7. to have no better reason for a Wilson, S.Ct. 39 L.Ed. 889 Lewis v. rule of law than that so was laid down in the 551, 419, 151 U.S. S.Ct. 38 L.Ed. 267 Holmes, Henry time of IV.” The Path of the Gilmer, 22, 696, v. Kennon 131 U.S. 9 S.Ct. Law, 457, (1897). 10 Harv.L.Rev. 33 L.Ed. 110 79, Chesbrough, 8. Woodworth v. 244 U.S. 377-81; 9. See Note at Duke Note at 583, (1917); Koenigsberger S.Ct. 61 L.Ed. 1005 1155-61. Co., 41, Mining v. Richmond Silver R., supra,10or Long Island R. v. Dagnello inadequacy of even from America, Appellee, UNITED STATES accepted.11 But granted and

that was plain judge orders when the PAYDEN, Defendant-Appellant. Donald given opportunity. the same is not now tiff Furthermore, a trial can reduce Docket No. 76-1114. by the remitti device of Court Appeals, United States tur; however, cannot use additur judge, Circuit. Second Sehiedt, su it. Dimick v. to increase See Argued May J., (Stone, pra, U.S. rule to present dissenting). Changing June Decided a remittitur “un appeal allow a the imbalance.12 will reduce

der then, balance, persuasive I no find

On except rule for

justification judicial effort stressed

economy of We cannot even be sure of

majority. have no hard statistics as to how rejected, thereby remittiturs

many trial. We do know that in

causing a second proposed Reinertsen the

eases like have avoided the second trial. More-

over, above, indicated we do not know many additional will result

how allowing plaintiff, accepting after

from protest, from the

remittitur under of the verdict. And such

judge’s reduction number, their would not

appeals, whatever *6 expenditure enormous

usually require judges, al- by lawyers or

time and effort

though exceptions. there will be event, I think that do not should, judicial administration

interest instance, controlling. I would appeal by rule and allow an

change the up gives who to a new accepts pro- a remittitur “under Otherwise, being he is coerced for

test.” into giving up reason

insufficient justifiable. bemay

Therefore, I dissent. Carrington, Judges collected in 10. See also authorities Cf. the Power of District Responsibility Appeals, Note at 381 n.22. and the of Courts of (1969) (“ Ga.L.Rev. . . . the dubi- Corp. proc- E.g., ous and one-sided character of the whole Princemont Construction Smith, regulating ”). U.S.App.D.C. ess of the size of verdicts . . 1970). (D.C.Cir.