When a meritorious motion for a new trial is brought upon limited issues in a civil action, if those issues are severable from the other issues and no injustice will result from retaining the verdict upon the remaining issues, a court may order a new trial limited to those issues.75 Given the increasing backlog in the courts, the trend is in favor of partial trials.76
The most common basis for a partial new trial is where the motion for a new trial is based upon a claim that the damage award was either excessive or inadequate.77 Such a partial trial is appropriate when evidence of damages is not intertwined with evidence of liability.78 Where the verdict suggests that some jurors compromised on the issue of liability in exchange for other jurors compromising on the issue of damages, however, a partial new trial is inappropriate because the defendant is entitled to have the issue of liability determined on its own merits without reference to the amount of damages.79
A court may also grant a partial new trial limited to liability, while capping damages at the amount awarded in the first trial.79.1
Where there several defendants, a court may order a partial retrial limited to fewer than all of the defendants, provided that the liability issues are not inseparably intertwined and that such retrial will not prejudice the remaining defendants.79.2
75. Furek v. University of Delaware, 594 A.2d 506, 524 (Del. 1991); Massey-Ferguson, Inc. v. Wells, 383 A.2d 640, 644 (Del. 1978); Chrysler Corp. v. Quimby, 144 A.2d 123, 136 (Del. 1958), modified on other grounds and reh’g denied, 144 A.2d 885 (Del. 1958).
76. Chilson v. Allstate Ins. Co., 979 A.2d 1078, 1083-84 (Del. 2009); Furek v. University of Delaware, 594 A.2d 506, 524 (Del. 1991).
77. See, e.g., Mills v. Telenczak, 345 A.2d 424, 426 (Del. 1975); Chrysler Corp. v. Quimby, 144 A.2d 123, 147 (Del. 1958), modified and reh’g denied, 144 A.2d 885 (Del. 1958); Coldiron v. Gaster, 278 A.2d 328, 334 n.4 (Del. Super. 1971), modified on other grounds, 297 A.2d 384 (Del. 1972); Burns v. Delaware Coca-Cola Bottling Co., 224 A.2d 255, 259 (Del. Super. 1966).
78. Chilson v. Allstate Ins. Co., 979 A.2d 1078, 1083-84 (Del. 2009); Furek v. University of Delaware, 594 A.2d 506, 524 (Del. 1991).
79. Lawrence v. State, 253 A.2d 506 (Del. 1969); Chrysler Corp. v. Quimby, 144 A.2d 123, 139 (Del. 1958), modified and reh’g denied, 144 A.2d 885 (Del. 1958); Warburton v. Phoenix Steel Corp., C.A. No. 781, slip op. at 2-3, Christie, J. (Del. Super. June 19, 1975).
79.1. Phipps v. Wendy’s Old Fashioned Hamburgers of New York, Inc., C.A. No. 96C-07-105 RRC, Cooch, J. (Del. Super. June 9, 1999).
79.2. Lupinacci v. The Medical Center of Delaware, 805 A.2d 867, 871-72 (Del. 2002) (denying motion for partial new trial where the claims were not clearly severable and a partial retrial would result in injustice); State ex rel. Brady v. Wellington Homes, Inc., C.A. No. 99C-09-186-JTV, slip op. at 4-5, Vaughn, J. (Del. Super. Nov. 29, 2005), app. dismissed mem., 906 A.2d 807 (Del. 2005).
© 2010 David L. Finger