Francis X. Donovan v. Penn Shipping Co, Inc. And Penn Trans Co., Inc. , 536 F.2d 536 ( 1976 )

LUMBARD, Circuit Judge:

This case squarely presents for resolution a procedural question which has been the subject of extended discussion in several recent opinions of this court. In seeking review of a $65,000 judgment in his favor, entered in the Southern District on August 6, 1975 following a two day trial before Judge Gurfein and a jury, Francis X. Donovan urges that we modify the well established rule in this circuit and permit direct appeal from orders of remittitur accepted “under protest.” We disagree with this suggestion.

Rather, having carefully weighed the competing policy considerations we remain convinced of the soundness of our traditional practice. If Donovan objected to Judge Gurfein’s reduction of the jury’s verdict, his proper recourse was to refuse the remittitur and insist upon the second trial to which he was entitled. Had he done so, the interlocutory nature of that choice would be readily apparent. Having chosen instead to accede to the remittitur, albeit reluctantly, Donovan is bound by his decision just as if he had reached a settlement with his adversary. The appeal is accordingly dismissed.

On June 4, 1970, while employed by the appellees as a seaman on the SS PennSailor, appellant slipped on wet paint and fell, suffering a colles fracture of the right wrist plus a dislocation and chip fracture of the right elbow. When the ship docked two hours later, Donovan was taken in a waiting ambulance to the Marine Hospital on Staten Island. There, the fractured wrist was reduced, the elbow put back into joint and a cast placed on the right arm. Appellant was fifty years old at the time of his accident.

Following a convalescence of approximately six months, Donovan returned to work on December 1, 1970, having been declared “fit for duty” by the Brighton Public Health Service. Despite this certification, which evidenced a medical appraisal that appellant was capable of resuming his full and normal responsibilities, Donovan indicated at trial that he has been losing 35 to 40 hours of overtime per week since his return as a direct result of his weakened condition. In addition, expert testimony below established that Donovan has suffered a loss of grip in his right hand and a diminution in mobility of his right wrist and elbow. Moreover, there is general agreement that, in the words of appellees’ lawyer, the wrist has healed “off center.”

In compensation for the injury which he incurred, the pain which he experienced and the earnings which he has been and will be denied, the jury awarded Donovan $90,000 in damages. Appellees then promptly moved to set aside the verdict as excessive. In an opinion rendered on August 6, 1974, Judge Gurfein granted the motion, held the award to be beyond that reasonably allowable and ordered a new trial unless appellant consented to a remittitur of $25,000.

For nearly one year appellant mulled his alternatives and the case remained in a state of limbo. Finally, Donovan submitted ex parte to the district court a proposed order which noted his acceptance “under protest” of the reduced verdict of $65,000 and purported to preserve his “right to appeal therefrom.” This language was adopted by Judge Werker¹ and embodied in the judgment entered on August 6, 1975. Predictably, this appeal followed soon after. Appellant contends, inter alia, that the remittitur to which he agreed was based upon arithmetic miscalculation and represented an abuse of the trial judge’s discretion. We hold, however, that Donovan’s acceptance of the remittitur precludes his present attack upon it.

Little would be gained by repeating what we so recently and at length considered in Reinertsen v. George W. Rogers Construction Corp., 519 F.2d 531 (2d Cir. 1975) and Evans v. Calmar, 534 F.2d 519 (2d Cir., 1976). Suffice to say that we disagree with appellant’s basic contention that already over-extended judicial resources would better be husbanded by permitting immediate appeal from orders of remittitur. Were such a course available, a plaintiff would have nothing to lose by accepting a remittitur “under protest,” thereby guaranteeing himself a minimum verdict, and then proceeding to the court of appeals in an effort to restore the sum which had been disallowed by the district judge.² The proliferation of appeals would be the inevitable consequence.

In contrast, experience has demonstrated that the interest in judicial administration is well served by the present practice of treating orders of remittitur as interlocutory and therefore unappealable. See Woodworth v. Chesbrough, 244 U.S. 79, 37 S.Ct. 583, 61 L.Ed. 1005 (1917); 9 J. Moore, Federal Practice 1203.06, at 721 n. 31. As appellant conceded during oral argument, most plaintiffs now accept the remittitur thus necessitating a second trial in only a small minority of cases. Finality and repose are achieved precisely because “[t]he risks of a verdict less than the amount to which the remittitur order has reduced the plaintiff’s recovery are . . . calculated to induce most reasonable plaintiffs to accept the remittitur and call it a day,” Evans, 534 F.2d at 522.

That such risks are real was graphically illustrated in Reinertsen, where the first jury returned a verdict of $75,000, the order of remittitur reduced the award to $45,000 and the second jury granted just $16,000. The prejudice to the defendant in allowing the plaintiff to bypass the second trial and obtain direct review of the remittitur is therefore obvious. The defendant’s right to have a second jury consider the issue of damages, although conditioned upon the plaintiff’s having first rejected the remittitur, is nonetheless a valuable one. It should not be lightly disregarded. Furthermore, in those rare instances where a second trial is required, it provides yet an additional gauge by which the court of appeals can judge the propriety of the remittitur.

We therefore answer the question left open in Reinertsen and alluded to although not decided in Evans, by holding that a plaintiff who accepts an order of remittitur, with or without qualifications, is bound by his acceptance and may not later challenge the order by seeking review in the court of appeals. Donovan’s attempted reservation of a right to appeal can not and does not alter this rule of law. Cf. Sanford v. Commissioner, 308 U.S. 39, 50-51, 60 S.Ct. 51, 84 L.Ed. 20 (1939).

Appeal dismissed.

1 . Judge Werker was assigned to the case upon Judge Gurfein’s elevation to the Court of Appeals.

2 . While some cost is undeniably involved in appealing a remittitur order, the incremental expense is relatively small in view of the fact that the parties will undoubtedly have already prepared and submitted memoranda of law to the district court. Whatever effort is required to revise these papers is, moreover, overshadowed by the possible return if the jury verdict is reinstated. We therefore see no merit in the argument that attorneys operating on a contingency fee basis would be reluctant to invest the additional time and energy needed to obtain direct review of the remittitur were an immediate appeal permitted.