Partial New Trials

Partial New Trials

Rule 59(a)(1) lets a court grant a new trial on all or some of the issues, and to any party.¹ Those words let the judge size the do-over to the defect. The court may retry a single claim, a single defense, one element of liability, or only the amount of damages, and every other finding in the verdict stays in place. The remedy works this way because a new trial, unlike judgment as a matter of law, rejects the verdict without deciding the case as a matter of law.² A full retrial would repeat evidence the first jury handled correctly, burden the parties and the court with a second trial, and discard findings no one has shown to be wrong. A plaintiff with a sound liability case would lose it because of a flaw elsewhere. The power has a limit, and most of this section explains where that limit falls and why.

The most familiar partial new trial is limited to damages. When the jury's finding of liability is clearly supportable but the damages greatly exceed the losses the evidence reflects, the judge may order a new trial on damages only.³ The same logic works claim by claim. A weight-of-the-evidence challenge that succeeds against one of several claims or defenses can support a new trial confined to that claim or defense.⁴ The damages-only form matters most for awards that are too small. Additur is unavailable in federal court, so a new trial is the only federal remedy for an inadequate award, and a retrial limited to the amount lets the plaintiff keep a liability finding that was sound.⁵

The power to retry part of a case reaches only the parts that can be pulled out cleanly. A court may order a new trial on just damages, just liability, or even just one element of liability, provided the issue to be retried is distinctly and fairly separable from the remaining issues.⁶ The reason lies in how a partial retrial works. The second jury decides only the issue sent back to it, and the first jury's other findings are taken as settled. That arrangement produces a coherent result only if the retried issue does not depend on the same evidence, or the same reasoning, as the findings left standing. When the issues overlap, the second jury must decide one piece of a story whose other pieces it never heard, and the combined verdict could rest on findings that no single jury would have reached together. Separability is therefore a question about the evidence and about how the first jury likely reasoned. The label attached to the issue does not answer it.

The damages-only retrial in Wheatley v. Beetar shows the clean case. A jury found the defendants liable for beating the plaintiff, and in a separate trial on damages awarded him only $1, despite medical evidence of fresh welts on his neck and side and a perforated eardrum. The court found the damages verdict unsupported by the evidence and ordered a new trial on damages alone, reasoning that nothing justified depriving the plaintiff of the separate verdict he had won on liability.⁷ The separate damages trial made the issue severable. The jury that decided who beat the plaintiff had finished its work before any evidence of his injuries was heard, so a new jury could weigh the injuries without reopening anything it had not been asked to decide.

A damages-only retrial can go wrong in two ways, and both appear in the cases. The first is evidentiary overlap. In Trivedi, a hostile work environment case, liability and damages had been tried together to one jury, and the defendants resisted a damages-only retrial on the ground that the two were so interlinked that both had to be retried together. Damages on that claim turned on the same evidence as liability: the causal link between the supervisor's conduct and the plaintiff's injuries, the extent of the harassment, and the recovery it warranted.⁸ When a retrial of damages would cover the same ground as liability, limiting it to damages is unfair to the defendant, who would face a new jury that hears only half the story. The second is compromise. Courts have reasoned that when an inadequate award suggests the jury's uncertainty about liability led it to compromise on the amount, the only fair remedy is a new trial on all issues.⁹ A jury unsure whether the defendant is liable may resolve its doubt by finding liability and then awarding too little, so the small figure carries information about the liability finding itself. A retrial confined to damages would leave the plaintiff holding a liability finding that rests partly on a bargain among jurors, and it would leave the defendant bound by that finding.

An exam answer that meets every inadequate award with a damages-only retrial by reflex skips the separability inquiry. The size of the award is evidence the judge must read for signs of compromise, and the answer depends on what the record shows about how contested liability was.

Separability also operates at the level of a single element of liability. Suppose an employer is sued on a respondeat superior theory, under which an employer is liable for torts its employees commit within the scope of their employment. The jury returns a special verdict finding that the employees beat the plaintiff, that they were acting within the scope of their employment, and that the plaintiff is entitled to $100,000. If the court thinks the scope-of-employment finding is clearly erroneous but the finding that the employees beat the plaintiff is sound, it need not retry the beating. The scope question may turn on a job description and on the time and place of the events, so it may be separable, and depending on any actual evidentiary overlap the new trial could be limited to that one issue.¹⁰ Courts have likewise limited retrials to causation, vicarious as opposed to individual liability, joint liability, and a plaintiff administrator's capacity to sue, so a partial new trial can be very partial indeed.¹¹ The words to any party extend the same flexibility across defendants. A judge who finds the verdict against one defendant clearly supported and the verdict against another unsupported may order a new trial solely on the claims against the second.¹²

The Seventh Amendment poses no obstacle to dividing a case this way. The Supreme Court has listed new trials restricted to the determination of damages among the procedures it regards as compatible with that Amendment, even though they do not conform to common law practice when the Amendment was adopted, and it cited Gasoline Products Co. v. Champlin Refining Co. for the point.¹³ The Court has also said that the Amendment preserves jury trial in its most fundamental elements, not the mass of procedural forms and details.¹⁴ A partial retrial respects that core, because the first jury's sound findings remain the jury's findings and a jury, not the judge, decides the part that is retried.