Gasperini v. Center For Humanities, Inc. (95-719), 517 U.S. 1102 (1996).
[ Stevens ]
[ Scalia ]
[ Ginsburg ]
HTML version
WordPerfect version
HTML version
WordPerfect version
HTML version
WordPerfect version
HTML version
WordPerfect version

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D.C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.


No. 95-719


on writ of certiorari to the united states court of appeals for the second circuit

[June 24, 1996]

Justice Ginsburg delivered the opinion of the Court.

Petitioner William Gasperini, a journalist for CBS News and the Christian Science Monitor, began reporting on events in Central America in 1984. He earned his living primarily in radio and print media and only occasionally sold his photographic work. During the course of his seven year stint in Central America, Gasperini took over 5,000 slide transparencies, depicting active war zones, political leaders, and scenes from daily life. In 1990, Gasperini agreed to supply his original color transparencies to The Center for Humanities, Inc. (Center) for use in an educational videotape, Conflict in Central America. Gasperini selected 300 of his slides for the Center; its videotape included 110 of them. The Center agreed to return the original transparencies, but upon the completion of the project, it could not find them.

Gasperini commenced suit in the United States District Court for the Southern District of New York, invoking the court's diversity jurisdiction pursuant to 28 U.S.C. § 1332. [n.1] He alleged several state law claims for relief, including breach of contract, conversion, and negligence. See App. 5-6. The Center conceded liability for the lost transparencies and the issue of damages was tried before a jury.

At trial, Gasperini's expert witness testified that the "industry standard" within the photographic publishing community valued a lost transparency at $1,500. See id., at 227. This industry standard, the expert explained, represented the average license fee a commercial photograph could earn over the full course of the photographer's copyright, i.e., in Gasperini's case, his lifetime plus 50 years. See id., at 228; see also 17 U.S.C. § 302(a). Gasperini estimated that his earnings from photography totaled just over $10,000 for the period from 1984 through 1993. He also testified that he intended to produce a book containing his best photographs from Central America. See App. 175.

After a three day trial, the jury awarded Gasperini $450,000 in compensatory damages. This sum, the jury foreperson announced, "is [$]1500 each, for 300 slides." Id., at 313. Moving for a new trial under Federal Rule of Civil Procedure 59, the Center attacked the verdict on various grounds, including excessiveness. Without comment, the District Court denied the motion. See App. to Pet. for Cert. 12a.

The Court of Appeals for the Second Circuit vacated the judgment entered on the jury's verdict. 66 F. 3d 427 (1995). Mindful that New York law governed the controversy, the Court of Appeals endeavored to apply CPLR §5501(c), which instructs that, when a jury returns an itemized verdict, as the jury did in this case, the New York Appellate Division "shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation." The Second Circuit's application of §5501(c) as a check on the size of the jury's verdict followed Circuit precedent elaborated two weeks earlier in Consorti v. Armstrong World Industries, Inc., 64 F. 3d 781, superseded, 72 F. 3d 1003 (1995). Surveying Appellate Division decisions that reviewed damage awards for lost transparencies, the Second Circuit concluded that testimony on industry standard alone was insufficient to justify a verdict; prime among other factors warranting consideration were the uniqueness of the slides' subject matter and the photographer's earning level. [n.2]

Guided by Appellate Division rulings, the Second Circuit held that the $450,000 verdict "materially deviates from what is reasonable compensation." 66 F. 3d, at 431. Some of Gasperini's transparencies, the Second Circuit recognized, were unique, notably those capturing combat situations in which Gasperini was the only photographer present. Id., at 429. But others "depicted either generic scenes or events at which other professional photojournalists were present." Id., at 431. No more than 50 slides merited a $1,500 award, the court concluded, after "[g]iving Gasperini every benefit of the doubt." Ibid. Absent evidence showing significant earnings from photographic endeavors or concrete plans to publish a book, the court further determined, any damage award above $100 each for the remaining slides would be excessive. Remittiturs "presen[t] difficult problems for appellate courts," the Second Circuit acknowledged, for court of appeals judges review the evidence from "a cold paper record." Ibid. Nevertheless, the Second Circuit set aside the $450,000 verdict and ordered a new trial, unless Gasperini agreed to an award of $100,000.

This case presents an important question regarding the standard a federal court uses to measure the alleged excessiveness of a jury's verdict in an action for damages based on state law. We therefore granted certiorari. 516 U. S. __ (1996).

Before 1986, state and federal courts in New York generally invoked the same judge made formulation in responding to excessiveness attacks on jury verdicts: courts would not disturb an award unless the amount was so exorbitant that it "shocked the conscience of the court." See Consorti, 72 F. 3d, at 1012-1013 (collecting cases). As described by the Second Circuit:

"The standard for determining excessiveness and the appropriateness of remittitur in New York is somewhat ambiguous. Prior to 1986, New York law employed the same standard as the federal courts, see Matthews v. CTI Container Transport Int'l Inc., 871 F. 2d 270, 278 (2d Cir. 1989), which authorized remittitur only if the jury's verdict was so excessive that it `shocked the conscience of the court.' " Id., at 1012.

See also D. Siegel, Practice Commentaries C5501:10, reprinted in 7B McKinney's Consolidated Laws of New York Ann., p. 25 (1995) ("conventional standard for altering the verdict was that its sum was so great or so small that it `shocked the conscience' of the court").

In both state and federal courts, trial judges made the excessiveness assessment in the first instance, and appellate judges ordinarily deferred to the trial court's judgment. See, e.g., McAllister v. Adam Packing Corp., 66 App. Div. 2d 975, 976, 412 N. Y. S. 2d 50, 52 (3d Dept. 1978) ("The trial court's determination as to the adequacy of the jury verdict will only be disturbed by an appellate court where it can be said that the trial court's exercise of discretion was not reasonably grounded."); Martell v. Boardwalk Enterprises, Inc., 748 F. 2d 740, 750 (CA2 1984) ("The trial court's refusal to set aside or reduce a jury award will be overturned only for abuse of discretion.").

In 1986, as part of a series of tort reform measures, [n.3] New York codified a standard for judicial review of the size of jury awards. Placed in CPLR §5501(c), the prescription reads:

"In reviewing a money judgment . . . in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation." [n.4]

As stated in Legislative Findings and Declarations accompanying New York's adoption of the "deviates materially" formulation, the lawmakers found the "shock the conscience" test an insufficient check on damage awards; the legislature therefore installed a standard-invit[ing] more careful appellate scrutiny." Ch. 266, 1986 N. Y. Laws 470 (McKinney). At the same time, the legislature instructed the Appellate Division, in amended §5522, to state the reasons for the court's rulings on the size of verdicts, and the factors the court considered in complying with §5501(c). [n.5] In his signing statement, then Governor Mario Cuomo emphasized that the CPLR amendments were meant to rachet up the review standard: "This will assure greater scrutiny of the amount of verdicts and promote greater stability in the tort system and greater fairness for similarly situated defendants throughout the State." Memorandum on Approving L. 1986, Ch. 682, 1986 N. Y. Laws, at 3184; see also Newman & Ahmuty, Appellate Review of Punitive Damage Awards, in Insurance, Excess, and Reinsurance Coverage Disputes 1990, p. 409 (B. Ostrager & T. Newman eds. 1990) (review standard prescribed in §5501(c) "was intended to . . . encourage Appellate Division modification of excessive awards").

New York state court opinions confirm that §5501(c)'s "deviates materially" standard calls for closer surveillance than "shock the conscience" oversight. See, e.g., O'Connor v. Graziosi, 131 App. Div. 2d 553, 554, 516 N. Y. S. 2d 276, 277 (2d Dept. 1987) ("apparent intent" of 1986 legislation was "to facilitate appellate changes in verdicts"); Harvey v. Mazal American Partners, 79 N. Y. 2d 218, 225, 590 N. E. 2d 224, 228 (1992) (instructing Appellate Division to use, in setting remittitur, only the "deviates materially" standard, and not the "shock the conscience" test); see also Consorti, 72 F. 3d, at 1013 ("Material deviation from reasonableness is less than that deviation required to find an award so excessive as to `shock the conscience.' "); 7 J. Weinstein, H. Korn, & A. Miller, New York Civil Practice, ¶5501.21, p. 55-64 (1995) ("Under [§5501(c)'s] new standard, the reviewing court is given greater power to review the size of a jury award than had heretofore been afforded . . . .").

Although phrased as a direction to New York's intermediate appellate courts, §5501(c)'s "deviates materially" standard, as construed by New York's courts, instructs state trial judges as well. See, e.g., Inya v. Ide Hyundai, Inc., 209 App. Div. 2d 1015, 1015, 619 N. Y. S. 2d 440, 440 (4th Dept. 1994) (error for trial court to apply "shock the conscience" test to motion to set aside damages; proper standard is whether award "materially deviates from what would be reasonable compensation"); Cochetti v. Gralow, 192 App. Div. 2d 974, 975, 597 N. Y. S. 2d 234, 235 (3d Dept. 1993) ("settled law" that trial courts conduct "materially deviates" inquiry); Shurgan v. Tedesco, 179 App. Div. 2d 805, 806, 578 N. Y. S. 2d 658, 659 (2d Dept. 1992) (approving trial court's application of "materially deviates" standard); see also Lightfoot v. Union Carbide Corp., 901 F. Supp. 166, 169 (SDNY 1995) (CPLR 5501(c)'s "materially deviates" standard "is pretty well established as applicable to [state] trial and appellate courts."). Application of §5501(c) at the trial level is key to this case.

To determine whether an award "deviates materially from what would be reasonable compensation," New York state courts look to awards approved in similar cases. See, e.g., Leon v. J & M Peppe Realty Corp., 190 App. Div. 2d 400, 416, 596 N. Y. S. 2d 380, 389 (1st Dept. 1993) ("These awards . . . are not out of line with recent awards sustained by appellate courts."); Johnston v. Joyce, 192 App. Div. 2d 1124, 1125, 596 N. Y. S. 2d 625, 626 (4th Dept. 1993) (reducing award to maximum amount previously allowed for similar type of harm). Under New York's former "shock the conscience" test, courts also referred to analogous cases. See, e.g., Senko v. Fonda, 53 App. Div. 2d 638, 639, 384 N. Y. S. 2d 849, 851 (2d Dept. 1976). The "deviates materially" standard, however, in design and operation, influences outcomes by tightening the range of tolerable awards. See, e.g., Consorti, 72 F. 3d, at 1013, and n. 10, 1014-1015, and n. 14.

In cases like Gasperini's, in which New York law governs the claims for relief, does New York law also supply the test for federal court review of the size of the verdict? The Center answers yes. The "deviates materially" standard, it argues, is a substantive standard that must be applied by federal appellate courts in diversity cases. The Second Circuit agreed. See 66 F. 3d, at 430; see also Consorti, 72 F. 3d, at 1011 ("[CPLR §5501(c)] is the substantive rule provided by New York law."). Gasperini, emphasizing that §5501(c) trains on the New York Appellate Division, characterizes the provision as procedural, an allocation of decisionmaking authority regarding damages, not a hard cap on the amount recoverable. Correctly comprehended, Gasperini urges, §5501(c)'s direction to the Appellate Division cannot be given effect by federal appellate courts without violating the Seventh Amendment's re examination clause.

As the parties' arguments suggest, CPLR §5501(c), appraised under Erie R. Co. v. Tompkins, 304 U.S. 64 (1938), and decisions in Erie's path, is both "substantive" and "procedural": "substantive" in that §5501(c)'s "deviates materially" standard controls how much a plaintiff can be awarded; "procedural" in that §5501(c) assigns decisionmaking authority to New York's Appellate Division. Parallel application of §5501(c) at the federal appellate level would be out of sync with the federal system's division of trial and appellate court functions, an allocation weighted by the Seventh Amendment. The dispositive question, therefore, is whether federal courts can give effect to the substantive thrust of §5501(c) without untoward alteration of the federal scheme for the trial and decision of civil cases.

Federal diversity jurisdiction provides an alternative forum for the adjudication of state created rights, but it does not carry with it generation of rules of substantive law. As Erie read the Rules of Decision Act: [n.6] "Except in matters governed by the Federal Constitution or by Acts of Congress, the law to be applied in any case is the law of the State." 304 U. S., at 78. Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law.

Classification of a law as "substantive" or "procedural" for Erie purposes is sometimes a challenging endeavor. [n.7] Guaranty Trust Co. v. York, 326 U.S. 99 (1945), an early interpretation of Erie, propounded an "outcome determination" test: "[D]oes it significantly affect the result of a litigation for a federal court to disregard a law of a State that would be controlling in an action upon the same claim by the same parties in a State court?" 326 U. S., at 109. Ordering application of a state statute of limitations to an equity proceeding in federal court, the Court said in Guaranty Trust: "[W]here a federal court is exercising jurisdiction solely because of the diversity of citizenship of the parties, the outcome of the litigation in the federal court should be substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in a State court." Ibid; see also Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530, 533 (1949) (when local law that creates the cause of action qualifies it, "federal court must follow suit," for "a different measure of the cause of action in one court than in the other [would transgress] the principle of Erie"). A later pathmarking case, qualifying Guaranty Trust, explained that the "outcome determination" test must not be applied mechanically to sweep in all manner of variations; instead, its application must be guided by "the twin aims of the Erie rule: discouragement of forum shopping and avoidance of inequitable administration of the laws." Hanna v. Plumer, 380 U.S. 460, 468 (1965).

Informed by these decisions, we address the question whether New York's "deviates materially" standard, codified in CPLR §5501(c), is outcome affective in this sense: Would "application of the [standard] . . . have so important an effect upon the fortunes of one or both of the litigants that failure to [apply] it would [unfairly discriminate against citizens of the forum State, or] be likely to cause a plaintiff to choose the federal court"? Id., at 468, n. 9. [n.8]

We start from a point the parties do not debate. Gasperini acknowledges that a statutory cap on damages would supply substantive law for Erie purposes. See Reply Brief for Petitioner 2 ("[T]he state as a matter of its substantive law may, among other things, eliminate the availability of damages for a particular claim entirely, limit the factors a jury may consider in determining damages, or place an absolute cap on the amount of damages available, and such substantive law would be applicable in a federal court sitting in diversity."); see also Tr. of Oral Arg. 4-5, 25; Consorti, 72 F. 3d, at 1011. [n.9] Although CPLR §5501(c) is less readily classified, it was designed to provide an analogous control.

New York's Legislature codified in §5501(c) a new standard, one that requires closer court review than the common law "shock the conscience" test. See supra, at 6-7. More rigorous comparative evaluations attend application of §5501(c)'s "deviates materially" standard. See supra, at 7-9. To foster predictability, the legislature required the reviewing court, when overturning a verdict under §5501(c), to state its reasons, including the factors it considered relevant. See CPLR §5522(b); supra, at 7. We think it a fair conclusion that CPLR §5501(c) differs from a statutory cap principally "in that the maximum amount recoverable is not set by statute, but rather is determined by case law." Brief for City of New York as Amicus Curiae 11. In sum, §5501(c) contains a procedural instruction, see supra, at 9, but the State's objective is manifestly substantive. Cf. S. A. Healy Co. v. Milwaukee Metropolitan Sewerage Dist., 60 F. 3d 305, 310 (CA7 1995).

It thus appears that if federal courts ignore the change in the New York standard and persist in applying the "shock the conscience" test to damage awards on claims governed by New York law, [n.10] " `substantial' variations between state and federal [money judgments]" may be expected. See Hanna, 380 U. S., at 467-468. [n.11] We therefore agree with the Second Circuit that New York's check on excessive damages implicates what we have called Erie's "twin aims." See supra, at 11. [n.12] Just as the Erie principle precludes a federal court from giving a state created claim "longer life . . . than [the claim] would have had in the state court," Ragan, 337 U. S., at 533-534, so Erie precludes a recovery in federal court significantly larger than the recovery that would have been tolerated in state court.

CPLR §5501(c), as earlier noted, see supra, at 8, 9, is phrased as a direction to the New York Appellate Division. Acting essentially as a surrogate for a New York appellate forum, the Court of Appeals reviewed Gasperini's award to determine if it "deviate[d] materially" from damage awards the Appellate Division permitted in similar circumstances. The Court of Appeals performed this task without benefit of an opinion from the District Court, which had denied "without comment" the Center's Rule 59 motion. 66 F. 3d, at 428. Concentrating on the authority §5501(c) gives to the Appellate Division, Gasperini urges that the provision shifts fact finding responsibility from the jury and the trial judge to the appellate court. Assigning such responsibility to an appellate court, he maintains, is incompatible with the Seventh Amendment's re examination clause, and therefore, Gasperini concludes, §5501(c) cannot be given effect in federal court. Brief for Petitioner 19-20. Although we reach a different conclusion than Gasperini, we agree that the Second Circuit did not attend to "[a]n essential characteristic of [the federal court] system," Byrd v. Blue Ridge Rural Elec. Cooperative, Inc., 356 U.S. 525, 537 (1958), when it used §5501(c) as "the standard for [federal] appellate review," Consorti, 72 F. 3d, at 1013; see also 66 F. 3d, at 430.

That "essential characteristic" was described in Byrd, a diversity suit for negligence in which a pivotal issue of fact would have been tried by a judge were the case in state court. The Byrd Court held that, despite the state practice, [n.13] the plaintiff was entitled to a jury trial in federal court. In so ruling, the Court said that the Guaranty Trust "outcome determination" test was an insufficient guide in cases presenting countervailing federal interests. See Byrd, 356 U. S., at 537. The Court described the countervailing federal interests present in Byrd this way:

"The federal system is an independent system for administering justice to litigants who properly invoke its jurisdiction. An essential characteristic of that system is the manner in which, in civil common law actions, it distributes trial functions between judge and jury and, under the influence--if not the command--of the Seventh Amendment, assigns the decisions of disputed questions of fact to the jury." Ibid. (footnote omitted).

The Seventh Amendment, which governs proceedings in federal court, but not in state court, [n.14] bears not only on the allocation of trial functions between judge and jury, the issue in Byrd; it also controls the allocation of authority to review verdicts, the issue of concern here. The Amendment reads:

"In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re examined in any Court of the United States, than according to the rules of the common law." U. S. Const., Amdt. 7.

Byrd involved the first clause of the Amendment, the "trial by jury" clause. This case involves the second, the "re examination" clause. In keeping with the historic understanding, [n.15] the re examination clause does not inhibit the authority of trial judges to grant new trials "for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States." Fed. Rule Civ. Proc. 59(a). That authority is large. See 6A Moore's Federal Practice 59.05§2], pp. 59-44 to 59-46 (2d ed. 1996) ("The power of the English common law trial courts to grant a new trial for a variety of reasons with a view to the attainment of justice was well established prior to the establishment of our Government."); see also Aetna Casualty & Surety Co. v. Yeatts, 122 F. 2d 350, 353 (CA4 1941) ("The exercise of [the trial court's power to set aside the jury's verdict and grant a new trial] is not in derogation of the right of trial by jury but is one of the historic safeguards of that right."); Blunt v. Little, 3 F. Cas. 760, 761-762 (Case No. 1,578) (CC Mass. 1822) (Story, J.) ("[I]f it should clearly appear that the jury have committed a gross error, or have acted from improper motives, or have given damages excessive in relation to the person or the injury, it is as much the duty of the court to interfere, to prevent the wrong, as in any other case."). "The trial judge in the federal system," we have reaffirmed, "has . . . discretion to grant a new trial if the verdict appears to [the judge] to be against the weight of the evidence." Byrd, 356 U. S., at 540. This discretion includes overturning verdicts for excessiveness and ordering a new trial without qualification, or conditioned on the verdict winner's refusal to agree to a reduction (remittitur). See Dimick v. Schiedt, 293 U.S. 474, 486-487 (1935) (recognizing that remittitur withstands Seventh Amendment attack, but rejecting additur as unconstitutional). [n.16]

In contrast, appellate review of a federal trial court's denial of a motion to set aside a jury's verdict as excessive is a relatively late, and less secure, development. Such review was once deemed inconsonant with the Seventh Amendment's re examination clause. See, e.g., Lincoln v. Power, 151 U.S. 436, 437-438 (1894); Williamson v. Osenton, 220 F. 653, 655 (CA4 1915); see also 6A Moore's Federal Practice ¶59.08[6], at 59-167 (collecting cases). We subsequently recognized that, even in cases in which the Erie doctrine was not in play--cases arising wholly under federal law--the question was not settled; we twice granted certiorari to decide the unsettled issue, but ultimately resolved the cases on other grounds. See Grunenthal v. Long Island R. Co., 393 U.S. 156, 158 (1968); Neese v. Southern R. Co., 350 U.S. 77, 77 (1955). [n.17]

Before today, we have not "expressly [held] that the Seventh Amendment allows appellate review of a district court's denial of a motion to set aside an award as excessive." Browning Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 279, n. 25 (1989). But in successive reminders that the question was worthy of this Court's attention, we noted, without disapproval, that courts of appeals engage in review of district court excessiveness determinations, applying "abuse of discretion" as their standard. See Grunenthal, 393 U. S., at 159. We noted the Circuit decisions in point, id., at 157, n. 3, and, in Browning Ferris, we again referred to appellate court abuse of discretion review:

"[T]he role of the district court is to determine whether the jury's verdict is within the confines set by state law, and to determine, by reference to federal standards developed under Rule 59, whether a new trial or remittitur should be ordered. The court of appeals should then review the district court's determination under an abuse of discretion standard." 492 U. S., at 279. [n.18]

As the Second Circuit explained, appellate review for abuse of discretion is reconcilable with the Seventh Amendment as a control necessary and proper to the fair administration of justice: "We must give the benefit of every doubt to the judgment of the trial judge; but surely there must be an upper limit, and whether that has been surpassed is not a question of fact with respect to which reasonable men may differ, but a question of law." Dagnello v. Long Island R. Co., 289 F. 2d 797, 806 (CA2 1961) (quoted in Grunenthal, 393 U. S., at 159). All other Circuits agree. See, e.g., Holmes v. Elgin, Joliet & Eastern R. Co., 18 F. 3d 1393, 1396 (CA7 1994); 11 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2820, p. 209 (2d ed. 1995) ("[E]very circuit has said that there are circumstances in which it can reverse the denial of a new trial if the size of the verdict seems to be too far out of line."); 6A Moore's Federal Practice ¶59.08[6], at 59-177 to 59-185 (same). [n.19] We now approve this line of decisions, and thus make explicit what Justice Stewart thought implicit in our Grunenthal disposition: "[N]othing in the Seventh Amendment . . . precludes appellate review of the trial judge's denial of a motion to set aside [a jury verdict] as excessive." 393 U. S., at 164 (Stewart, J., dissenting) (internal quotation marks and footnote omitted). [n.20]

In Byrd, the Court faced a one or the other choice: trial by judge as in state court, or trial by jury according to the federal practice. [n.21] In the case before us, a choice of that order is not required, for the principal state and federal interests can be accommodated. The Second Circuit correctly recognized that when New York substantive law governs a claim for relief, New York law and decisions guide the allowable damages. See 66 F. 3d, at 430; see also Consorti, 72 F. 3d, at 1011. But that court did not take into account the characteristic of the federal court system that caused us to reaffirm: "The proper role of the trial and appellate courts in the federal system in reviewing the size of jury verdicts is . . . a matter of federal law." Donovan v. Penn Shipping Co., 429 U.S. 648, 649 (1977) (per curiam); see also Browning Ferris, 492 U. S., at 279 ("[T]he role of the district court is to determine whether the jury's verdict is within the confines set by state law . . . . The court of appeals should then review the district court's determination under an abuse of discretion standard.").

New York's dominant interest can be respected, without disrupting the federal system, once it is recognized that the federal district court is capable of performing the checking function, i.e., that court can apply the State's "deviates materially" standard in line with New York case law evolving under CPLR §5501(c). [n.22] We recall, in this regard, that the "deviates materially" standard serves as the guide to be applied in trial as well as appellate courts in New York. See supra, at 8.

Within the federal system, practical reasons combine with Seventh Amendment constraints to lodge in the district court, not the court of appeals, primary responsibility for application of §5501(c)'s "deviates materially" check. Trial judges have the "unique opportunity to consider the evidence in the living courtroom context," Taylor v. Washington Terminal Co., 409 F. 2d 145, 148 (CADC 1969), while appellate judges see only the "cold paper record," 66 F. 3d, at 431.

District court applications of the "deviates materially" standard would be subject to appellate review under the standard the Circuits now employ when inadequacy or excessiveness is asserted on appeal: abuse of discretion. See 11 Wright & Miller, Federal Practice and Procedure §2820, at 212-214, and n. 24 (collecting cases); see 6A Moore's Federal Practice ¶59.08[6], at 59-177 to 59-185 (same). In light of Erie's doctrine, the federal appeals court must be guided by the damage control standard state law supplies, [n.23] but as the Second Circuit itself has said: "If we reverse, it must be because of an abuse of discretion. . . . The very nature of the problem counsels restraint. . . . We must give the benefit of every doubt to the judgment of the trial judge." Dagnello, 289 F. 2d, at 806.

It does not appear that the District Court checked the jury's verdict against the relevant New York decisions demanding more than "industry standard" testimony to support an award of the size the jury returned in this case. As the Court of Appeals recognized, see 66 F. 3d, at 429, the uniqueness of the photographs and the plaintiff's earnings as photographer--past and reasonably projected--are factors relevant to appraisal of the award. See, e.g., Blackman v. Michael Friedman Publishing Group, Inc., 201 App. Div. 2d 328, 328, 607 N. Y. S. 2d 43, 44 (1st Dept. 1994); Nierenberg v. Wursteria, Inc., 189 App. Div. 2d 571, 571-572, 592 N. Y. S. 2d 27, 27-28 (1st Dept. 1993). Accordingly, we vacate the judgment of the Court of Appeals and instruct that court to remand the case to the District Court so that the trial judge, revisiting his ruling on the new trial motion, may test the jury's verdict against CLPR §5501(c)'s "deviates materially" standard.

It is so ordered.


1 Plaintiff Gasperini, petitioner here, is a citizen of California; defendant Center, respondent here, is incorporated, and has its principal place of business, in New York.

2 See Blackman v. Michael Friedman Publishing Group, Inc., 201App. Div. 2d 328, 328-329, 607 N. Y. S. 2d 43, 44 (1st Dept. 1994) (award reduced from $1,000 to $400 per transparency in the absence of evidence to establish uniqueness); Nierenberg v. Wursteria, Inc., 189 App. Div. 2d 571, 571-572, 592 N. Y. S. 2d 27, 27-28 (1st Dept. 1993) (award reduced from $1,500 to $500 per slide because evidence showed photographer earned little from slide sales); Alen MacWeeney, Inc. v. Esquire Assocs., 176 App. Div. 2d 217, 218; 574 N. Y. S. 2d 340, 341 (1st Dept. 1991) (award reduced from $1,500 to $159 per transparency because evidence indicated that images were generic; court distinguished prior ruling in Girard Studio Group, Ltd. v. Young & Rubicam, Inc., 147 App. Div. 2d 357, 536 N. Y. S. 2d 790 (1st Dept. 1989), permitting an award reduced from $3,000 to $1,500 per slide where evidence showed that "the lost slides represented classics from a long career").

3 The legislature sought, particularly, to curtail medical and dental malpractice, and to contain "already high malpractice premiums." Legislative Findings and Declaration, Ch. 266, 1986 N. Y. Laws 470 (McKinney).

4 In full, N. Y. Civ. Prac. Law and Rules (CPLR) §5501(c) (McKinney 1995) provides:

"The appellate division shall review questions of law and questions of fact on an appeal from a judgment or order of a court of original instance and on an appeal from an order of the supreme court, a county court or an appellate term determining an appeal. In reviewing a money judgment in an action in which an itemized verdict is required by rule forty one hundred eleven of this chapter in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation."

5 CPLR §5522(b) provides:

"In an appeal from a money judgment in an action . . . in which it is contended that the award is excessive or inadequate, the appellate division shall set forth in its decision the reasons therefor, including the factors it considered in complying with subdivision (c) of section fifty five hundred one of this chapter."

6 Originally Section 34 of the Judiciary Act of 1789, the Rules of Decision Act, now contained in 28 U.S.C. § 1652 reads: "The laws of the several states, except where the Constitution or treaties of the United States or Acts of Congress otherwise require or provide, shall be regarded as rules of decision in civil actions in the courts of the United States, in cases where they apply."

7 Concerning matters covered by the Federal Rules of Civil Procedure, the characterization question is usually unproblematic: It is settled that if the Rule in point is consonant with the Rules Enabling Act, 28 U.S.C. § 2072 and the Constitution, the Federal Rule applies regardless of contrary state law. See Hanna v. Plumer, 380 U.S. 460, 469-474 (1965); Burlington Northern R. Co. v. Woods, 480 U.S. 1, 4-5 (1987). Federal courts have interpreted the Federal Rules, however, with sensitivity to important state interests and regulatory policies. See, e.g., Walker v. Armco Steel Corp., 446 U.S. 740, 750-752 (1980) (reaffirming decision in Ragan v. Merchants Transfer & Warehouse Co., 337 U.S. 530 (1949), that state law rather than Rule 3 determines when a diversity action commences for the purposes of tolling the state statute of limitations; Rule 3 makes no reference to the tolling of state limitations, the Court observed, and accordingly found no "direct conflict"); S. A. Healy Co. v. Milwaukee Metropolitan Sewerage Dist., 60 F. 3d 305, 310-312 (CA7 1995) (state provision for offers of settlement by plaintiffs is compatible with Federal Rule 68, which is limited to offers by defendants).

8 Hanna keyed the question to Erie's "twin aims"; in full, Hanna instructed federal courts to ask "whether application of the [state's] rule would make so important a difference to the character or result of the litigation that failure to enforce it would unfairly discriminate against citizens of the forum State, or whether application of the rule would have so important an effect upon the fortunes of one or both of the litigants that failure to enforce it would be likely to cause a plaintiff to choose the federal court." 380 U. S., at 468, n. 9.

9 While we have not specifically addressed the issue, courts of appeals have held that district court application of state statutory caps in diversity cases, post-verdict, does not violate the Seventh Amendment. See Davis v. Omitowoju, 883 F. 2d 1155, 1161-1165 (CA3 1989) (re examination clause of Seventh Amendment does not impede federal court's post-verdict application of statutory cap); Boyd v. Bulala, 877 F. 2d 1191, 1196 (CA4 1989) (post verdict application of statutory cap does not violate Seventh Amendment right of trial by jury).

10 Justice Scalia questions whether federal district courts in New York "actually appl[y]" or "ought" to apply the "shock the conscience" test in assessing a jury's award for excessiveness. Post, at 19-20 (collecting various formulations of review standard). If there is a federal district court standard, it must come from the Court of Appeals, not from the over 40 district court judges in the Southern District of New York, each of whom sits alone and renders decisions not binding on the others. Indeed, in Ismail v. Cohen, the authority upon which Justice Scalia relies, the Second Circuit stated that district courts test damage awards for excessiveness under the "shock the conscience" standard. See 899 F. 2d 183, 186 (1990) ("A remittitur, in effect, is a statement by the court that it is shocked by the jury's award of damages."); see also Scala v. Moore McCormack Lines, Inc., 985 F. 2d 680, 683 (CA2 1993) ("[I]n the federal courts, a judgment cannot stand where the damages awarded are so excessive as to shock the judicial conscience.") (internal quotation marks and citation omitted).

11 Justice Scalia questions whether application of CPLR §5501(c), in lieu of the standard generally used by federal courts within the Second Circuit, see supra, at 5, will in fact yield consistent outcome differentials, see post, at 19, 20. The numbers, as the Second Circuit believed, are revealing. See 66 F. 3d 427, 430 (1995). Is the difference between an award of $450,000 and $100,000, see supra, at 4, or between $1,500 per transparency and $500, see supra, at 3-4, n. 2, fairly described as insubstantial? We do not see how that can be so.

12 For rights that are state created, state law governs the amount properly awarded as punitive damages, subject to an ultimate federal constitutional check for exorbitancy. See BMW of North America, Inc. v. Gore, 517 U. S. __, __ (1996) (slip op., at 7); Browning Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257, 278-279 (1989). An evenhanded approach would require federal court deference to endeavors like New York's to control compensatory damages for excessiveness. See infra, at 19, n. 18.

13 The defendant argued in Byrd that although the personal injury plaintiff was employed by an independent contractor, the work plaintiff was engaged to perform was the same as work done by defendant's own employees. Therefore, defendant maintained, the plaintiff ranked as a "statutory employee" whose sole remedy was under the State's workers' compensation law. The sameness of the work plaintiff and defendant's own employees performed presented a fact question, but in state court, a jury trial would not have been available to resolve it.

14 See Walker v. Sauvinet, 92 U.S. 90, 92 (1876).

15 See 6A Moore's Federal Practice ¶59.05[1], pp. 59-38 to 59-40 (2d ed. 1996) (common law origin of trial court power to grant or deny a new trial).

16 Inviting rethinking of the additur question on a later day, Justice Stone, joined by Chief Justice Hughes, and Justices Brandeis and Cardozo, found nothing in the history or language of the Seventh Amendment forcing the "incongruous position" that "a federal trial court may deny a motion for a new trial where the plaintiff consents to decrease the judgment to a proper amount," but may not condition denial of the motion on "the defendant's consent to a comparable increase in the recovery." Dimick v. Schiedt, 293 U. S., at 495.

17 Dissenting from the Court's professed refusal to answer the question presented in Grunenthal v. Long Island R. Co., Justices Harlan and Stewart observed that in Grunenthal itself, this Court indeed had reviewed the refusal of the district court to set aside a jury verdict for excessiveness. 393 U. S., at 163 (Harlan, J., dissenting); id., at 164-165 (Stewart, J., dissenting). Justice Harlan commented: "Like my Brother Stewart, I am at an utter loss to understand how the Court manages to review the District Court's decision and find it proper while at the same time proclaiming that it has avoided decision of the issue whether appellate courts ever may review such actions." Id., at 163.

18 Browning Ferris concerned punitive damages. We agree with the Second Circuit, however, that "[f]or purposes of deciding whether state or federal law is applicable, the question whether an award of compensatory damages exceeds what is permitted by law is not materially different from the question whether an award of punitive damages exceeds what is permitted by law." Consorti, 72 F. 3d, at 1012.

19 Justice Scalia disagrees. Ready to "destroy the uniformity of federal practice" in this regard, cf. post, at 20, he would render a judgment described as "astonishing" by the very authority upon which he relies. Compare post, at 13, with 11 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2820, p. 212 (2d ed. 1995) ("it would be astonishing if the Court, which has passed up three opportunities to do so, should ultimately reject" the unanimously held view of the courts of appeals).

20 If the meaning of the Seventh Amendment were fixed at 1791, our civil juries would remain, as they unquestionably were at common law, "twelve good men and true," 3 W. Blackstone, Commentaries *349; see Capital Traction Co. v. Hof, 174 U.S. 1, 13 (1899) (" `Trial by jury,' in the primary and usual sense of the term at the common law and in the American constitutions . . . is a trial by a jury of twelve men[.]"). But see Colgrove v. Battin, 413 U.S. 149, 160 (1973) (six member jury for civil trials satisfies Seventh Amendment's guarantee). Procedures we have regarded as compatible with the Seventh Amendment, although not in conformity with practice at common law when the Amendment was adopted, include new trials restricted to the determination of damages, Gasoline Products Co. v. Champlin Refining Co., 283 U.S. 494 (1931), and Federal Rule of Civil Procedure 50(b)'s motion for judgment as a matter of law, see 9A C. Wright & A. Miller, Federal Practice and Procedure §2522, pp. 244-246 (2d ed. 1995). See also Parklane Hosiery Co. v. Shore, 439 U.S. 322, 335-337 (1979) (issue preclusion absent mutuality of parties does not violate Seventh Amendment, although common law as it existed in 1791 permitted issue preclusion only when there was mutuality).

21 The two trial rule posited by Justice Scalia, post, at 21, surely would be incompatible with the existence of "[t]he federal system [as] an independent system for administering justice," Byrd v. Blue Ridge Rural Elec. Cooperative, Inc., 356 U.S. 525, 537 (1958). We discern no disagreement on such examples among the many federal judges who have considered this case.

22 Justice Scalia finds in Federal Rule of Civil Procedure 59 a "federal standard" for new trial motions in " `direct collision' " with, and " `leaving no room for the operation of,' " a state law like CPLR §5501(c). Post, at 21-22 (quoting Burlington Northern R. Co., 480 U. S., at 4-5). The relevant prescription, Rule 59(a), has remained unchanged since the adoption of the Federal Rules by this Court in 1937. 302 U.S. 783. Rule 59(a) is as encompassing as it is uncontroversial. It is indeed "Hornbook" law that a most usual ground for a Rule 59 motion is that "the damages are excessive." See C. Wright, Law of Federal Courts 676-677 (5th ed. 1994). Whether damages are excessive for the claim in suit must be governed by some law. And there is no candidate for that governance other than the law that gives rise to the claim for relief--here, the law of New York. See 28 U.S.C. § 2072(a) and (b) ("Supreme Court shall have the power to prescribe general rules of . . . procedure"; "[s]uch rules shall not abridge, enlarge or modify any substantive right"); Browning Ferris, 492 U. S., at 279 ("standard of excessiveness" is a "matte[r] of state, and not federal, common law"); see also R. Fallon, D. Meltzer, & D. Shapiro, Hart and Wechsler's The Federal Courts and the Federal System 729-730 (4th ed. 1996) (observing that Court "has continued since [Hanna v. Plumer, 380 U.S. 460 (1965)] to interpret the federal rules to avoid conflict with important state regulatory policies," citing Walker v. Armco Steel Corp., 446 U.S. 740 (1980)).

23 If liability and damage control rules are split apart here, as Justice Scalia says they must be to save the Seventh Amendment, then Gasperini's claim and others like it would be governed by a most curious "law." The sphinx like, damage determining law he would apply to this controversy has a state forepart, but a federal hindquarter. The beast may not be brutish, but there is little judgment in its creation.