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is returned. Moreover, a JMOL motion is not the preferred mechanism for chal- lenging the excessiveness of a jury’s damages award, because the Seventh Amendment does not permit a court to enter “judgment” reducing the amount of damages if it finds the verdict excessive; rather, it must afford the plaintiff the op- tion of a new trial. Hetzel v. Prince William County, 523 U.S. 208, 210 (1998) (per curiam).4

The panel decision’s holding that this Court was precluded from undertaking the evidentiary analysis traditionally made under the “grossly excessive” standard is, moreover, irreconcilable with settled law. In keeping with the requirement that an appellate court must “‘make a detailed appraisal of the evidence bearing on damages,’” Chem. Distribs., Inc. v. Exxon Corp., 1 F.3d 1478, 1486 (5th Cir. 1993) (citation omitted), this Court has expressly applied the “grossly excessive” stan- dard to review the denial of a new trial motion, even when “defendants did not make any 50(a) motion during trial,” and has held that appellate courts may—and, indeed, have an “obligation” to—conduct such evidentiary review of the exces- siveness of the verdict. Shockley v. Arcan, Inc., 248 F.3d 1349, 1357-58 (Fed. Cir. 2001). Shockley reversed the denial of a motion for new trial because the verdict “was based on evidence derived from speculative assumptions” and “runs counter to the great weight of record evidence.” Id. at 1364. Fifth Circuit law is no differ- ent. See Cozzo v. Tangipahoa Parish Council—President Gov’t, 279 F.3d 273, 294 (5th Cir. 2002) (jury’s award will be set aside “when ‘it is so large as to shock

4 A court can, of course, enter JMOL on damages-related issues other than exces- siveness, such as when the evidence is insufficient as a matter of law to support any award of damages (or a particular category thereof, such as lost profits).


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