Present: All the Justices 

ROBERT BALDWIN 

v. Record No. 061050 OPINION BY JUSTICE DONALD W. LEMONS 

 April 20, 2007 

JAMES L. MCCONNELL 

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE 

Randall D. Smith, Judge 

 In this appeal, we consider whether the trial court 

abused its discretion in ordering remittitur of a jury award 

of compensatory and punitive damages. 

I. FACTS AND PROCEEDINGS BELOW 

 For approximately twenty years, Robert Alexander Baldwin 

("Baldwin") and James L. McConnell ("McConnell") were both 

employed at General Electric Company ("GE"). GE had a "zero 

tolerance" policy which provided that any violent behavior at 

the work place would result in termination of employment. 

While employed at GE, a physical altercation occurred between 

McConnell and Baldwin. This incident resulted in both 

parties' employment being terminated under the "zero 

tolerance" policy. Each party blamed the other party for 

causing the altercation. McConnell sued Baldwin, seeking 

compensatory and punitive damages for assault and battery.1

 

 1

 The motion for judgment included other claims and 

included "General Electric Energy" and "General Electric 

Company" as defendants. The only parties and claims relevant 

to this appeal are the allegations of McConnell against 

Baldwin and Baldwin against McConnell, each seeking 

compensatory and punitive damages for assault and battery. 
2

Baldwin filed a counterclaim for assault and battery, seeking 

to recover $100,000 in compensatory damages and $350,000 in 

punitive damages. 

 At trial, Baldwin testified that while McConnell and he 

were in a meeting with other co-workers and a "shop manager," 

McConnell stated that Baldwin "need[ed] a piss test." Coworkers "chuckl[ed]" and "laugh[ed]" at the comment. Baldwin 

felt that McConnell's statements at the meeting had 

"insinuate[d] in front of [his] co-workers and manager that 

[Baldwin was] using illegal controlled substances." Baldwin 

also testified that he was "embarrassed" because McConnell 

"humiliate[d him] in front of management as well as [his] coworkers." 

 The next day, McConnell made a similar comment to 

Baldwin. Baldwin responded, "if anybody needs a piss test 

around here, it's you." Baldwin then decided to leave for the 

day. McConnell asked Baldwin to come over to him, but Baldwin 

walked out the door. After exiting the building, Baldwin 

turned around and came back towards the exit door. "[T]he 

instant that [Baldwin] stepped in front of the door," 

McConnell put his hands on Baldwin's chest and slammed Baldwin 

to the concrete sidewalk, causing Baldwin's cap and safety 

glasses to go "flying." Baldwin hit his head on the concrete, 

and his "tailbone" hit the ground. Consequently, Baldwin 
3

suffered a "knot" on his head and soreness to both his head 

and tailbone. Baldwin also testified that he was humiliated 

knowing that his co-workers saw him get knocked down. More 

specifically, Baldwin felt "it [was] an insult to [his] 

dignity." 

 Additionally, Baldwin testified that McConnell had "hurt 

[his] family" because he had been the "sole provider" for the 

family and that he had lost his job because of the altercation 

with McConnell. During cross-examination, McConnell testified 

that he owned stock in GE worth approximately $343,506.29. 

 The jury denied recovery to McConnell; however, on 

Baldwin's counterclaim, the jury awarded $240,000 in 

compensatory damages and $100,000 in punitive damages. 

Because the compensatory damages award was above Baldwin's ad 

damnum of $100,000, the trial court, without objection, 

reduced the compensatory damages award to $100,000. On a 

motion for remittitur, the trial court found that "the jury's 

verdict shock[ed] the conscience of the [c]ourt," evidenced 

that "the jury misconceived or misconstrued the facts or the 

law," and that the "award [was] so out of proportion to the 

injuries" that "their verdict was not the product of a fair 

and impartial decision." The trial court further reduced the 

compensatory damages award to $1,000, and the punitive damages 

award to $10,000. 
4

Baldwin filed a timely notice of appeal to this Court. 

We granted Baldwin's petition for appeal on three assignments 

of error: 

1. The Trial Court abused its discretion when it failed 

to consider evidence relevant to a reasoned 

evaluation of the damages. 

2. The Trial Court abused its discretion when it failed 

to determine if the jury award was reasonably related 

to the damages disclosed by the evidence. 

3. The Trial Court acted improperly in remitting the 

punitive damages awarded by the jury. 

II. ANALYSIS 

A. Compensatory Damages 

 With regard to remittitur of compensatory damages, we 

stated in Shepard v. Capitol Foundry of Va., Inc., 262 Va. 

715, 720-21, 554 S.E.2d 72, 75 (2001) (quotations and 

citations omitted), that: 

When a verdict is challenged on the basis of 

alleged excessiveness, a trial court is 

compelled to set it aside if the amount awarded 

is so great as to shock the conscience of the 

court and to create the impression that the 

jury has been motivated by passion, corruption 

or prejudice, or has misconceived or 

misconstrued the facts or the law, or if the 

award is so out of proportion to the injuries 

suffered as to suggest that it is not the 

product of a fair and impartial decision. 

Setting aside a verdict as excessive . . . is 

an exercise of the inherent discretion of the 

trial court and, on appeal, the standard of 

review is whether the trial court abused its 

discretion. 
5

Determining whether a trial court abused its discretion in 

ordering remittitur of compensatory damages involves two 

steps: 

First, we must find in the record not only the 

trial court's conclusion that the verdict was 

excessive, but also an explanation 

demonstrating that the court, in reaching its 

conclusion, considered factors in evidence 

relevant to a reasoned evaluation of the 

damages. Second, we must ascertain whether the 

amount of recovery after remittitur bears a 

reasonable relation to the damages disclosed by 

the evidence. 

Both of these steps require an evaluation 

of the evidence relevant to the issue of 

damages. In making that evaluation, the trial 

court, as well as this Court, is required to 

consider the evidence in the light most 

favorable to the party that received the jury 

verdict. 

Id. at 721, 554 S.E.2d at 75 (quotations and citations 

omitted). 

 In this case, the jury awarded Baldwin $240,000 in 

compensatory damages and $100,000 in punitive damages. The 

trial court ultimately reduced Baldwin's damages to $1,000 in 

compensatory damages and $10,000 in punitive damages. In 

remitting the jury's award, the trial court did not 

distinguish between the type of damages and the trial court's 

explanation did not demonstrate that it considered the 

evidence in the light most favorable to Baldwin. 

Instruction number 31 instructed the jury as follows: 
6

If you find your verdict in favor of 

McConnell, Baldwin or both, then in determining 

the damages to which they may be entitled you 

may consider any of the following that you 

believe by the greater weight of the evidence 

was caused by an assault and battery: Any 

shame, humiliation, embarrassment or indignity 

to feelings that he suffered. 

You may also consider in awarding damages 

the insulting character of the injury, the 

reason for the injury and any other 

circumstances which make the injury more 

serious, if any of these things are shown by 

the evidence. 

Your verdict shall be for such sum as will 

fairly and fully compensate the parties for the 

damages sustained as a result of the assault 

and battery. 

(Emphasis added.) The instruction, which was given without 

objection and became the law of the case, permitted the jury 

to consider "[a]ny shame, humiliation, embarrassment or 

indignity" that Baldwin suffered as a result of McConnell's 

assault and battery. The instruction's broad language also 

permitted the jury to consider "the insulting character of the 

injury, the reason for the injury and any other circumstances 

which make the injury more serious. (Emphasis added.) 

However, in remitting the jury's verdict for compensatory 

damages, the trial court did not address the humiliation 

Baldwin suffered, the insulting character of the injury or 

"other circumstances which make the injury more serious." 

 We hold that the trial court abused its discretion in not 

complying with the first step of the analysis required in 
7

Shepard, namely an analysis of the damages awarded by the jury 

upon consideration of the evidence in the light most favorable 

to Baldwin. Additionally, the trial court failed to 

"ascertain whether the amount of recovery after remittitur 

bears a reasonable relation to the damages disclosed by the 

evidence" as required by the second step of the Shepard

analysis. 262 Va. at 721, 554 S.E.2d at 75 (quotation 

omitted); see also Smithey v. Sinclair Refining Co., 203 Va. 

142, 146, 122 S.E.2d 872, 875 (1961) ("In a case where the 

verdict of a jury is attacked on the ground that it is 

excessive, . . . [i]f the verdict merely appears to be large 

and more than the trial judge would have awarded had [he] been 

a member of the jury, it ought not to be disturbed."). 

B. Punitive Damages 

 While we review remittitur of compensatory damage awards 

utilizing "abuse of discretion" as the standard of review, we 

review the remittitur of punitive damage awards de novo upon 

independent review of the record. 

 The jury was instructed in pertinent part: 

 If you find that the plaintiff and or 

defendant Baldwin is entitled to be compensated 

for his damages, and if you further believe by 

the greater weight of the evidence that the 

other party acted with actual malice toward the 

opposing party or acted under circumstances 

amounting to a willful and wanton disregard of 

the parties' rights, then you may also award 

punitive damages to punish that party for his 
8

actions and to serve as an example to prevent 

others from acting in a similar way. 

With regard to remittitur of a jury award of punitive damages, 

we stated in Poulston v. Rock, 251 Va. 254, 263, 467 S.E.2d 

479, 484 (1996) (quotation omitted), that 

in reviewing the order of a trial court 

imposing or refusing to impose a remittitur of 

punitive damages in a defamation action, we 

shall make an independent examination of the 

entire record to determine whether the trial 

court acted properly. In doing so, we will give 

substantial weight to the trial court's action 

and affirm it, unless, from our view of the 

record, the trial court acted improperly. 

Additionally, we stated: 

 Review of the amount of punitive damages 

includes consideration of reasonableness 

between the damages sustained and the amount of 

the award and the measurement of punishment 

required, whether the award will amount to a 

double recovery, the proportionality between 

the compensatory and punitive damages, and the 

ability of the defendant to pay. 

Id. (citations omitted). While Poulston involved punitive 

damages in the context of defamation, the analysis applied in 

Poulston extends beyond defamation actions. 

 Other states confirm this analytical approach. For 

example, in Management Computer Servs. v. Hawkins, Ash, Baptie 

& Co., 557 N.W.2d 67, 70 (Wis. 1996), the Supreme Court of 

Wisconsin addressed claims of breach of contract, conversion, 

and unjust enrichment, and the award of punitive damages. The 

court considered whether the trial court correctly ordered a 
9

new trial on punitive damages unless the prevailing party 

accepted reduction in the award from $1.75 million to $50,000. 

Id. at 74-75, 80. With regard to remittitur, the Supreme 

Court of Wisconsin stated that the trial court "set forth 

conclusory reasons for reducing the jury's punitive damages 

award" and did not "analyze the evidence or set forth its 

reasons for ordering remittitur with particularity." Id. at 

81. Therefore, the Supreme Court of Wisconsin reviewed "the 

entire record ab initio to determine whether the jury's award 

[wa]s excessive, and if it [wa]s, what amount of punitive 

damages [wa]s reasonable." Id. Furthermore, it stated 

in determining whether an award of punitive 

damages is excessive, courts should consider 

the grievousness of the acts, the degree of 

malicious intent, whether the award bears a 

reasonable relationship to the award of 

compensatory damages, the potential damage that 

might have been caused by the acts, the ratio 

of the award to civil or criminal penalties 

that could be imposed for comparable 

misconduct, and the wealth of the wrongdoer. 

. . . 

 In addition, a reviewing court must 

consider the reasonableness of punitive damages 

on a case-by-case basis, considering the 

relevant circumstances in each particular case. 

Id. at 82. 

 In the case at bar, the trial court's explanation for 

granting McConnell's motion for remittitur did not distinguish 

between compensatory and punitive damages. "The general rule 

is that there is no fixed standard for the measure of 
10

exemplary or punitive damages and the amount of the award is 

largely a matter within the discretion of the jury." Worrie 

v. Boze, 198 Va. 533, 544, 95 S.E.2d 192, 201 (1956). Philip 

Morris Inc. v. Emerson, 235 Va. 380, 414-15, 368 S.E.2d 268, 

287 (1988). Furthermore, as we explained in Poulston, 

judicial review of the amount of punitive damages upon motion 

for remittitur requires: 

1. consideration of reasonableness between the damages 

sustained and the amount of the award, 

2. the measurement of punishment required, 

3. whether the award will amount to a double recovery, 

4. the proportionality between the compensatory and 

punitive damages, and 

5. the ability of the defendant to pay. 

Poulston, 251 Va. at 263, 467 S.E.2d at 484. 

 The jury awarded $240,000 in compensatory damages. But 

for the ad damnum clause, the amount would not have been 

reduced to $100,000 before remittitur. We will consider the 

jury's punitive damages award in light of the original award 

of $240,000. 

There was ample evidence of actual malice and willful and 

wanton behavior on the part of McConnell. Additionally, with 

regard to the punishment required for such behavior and 

consideration of the deterrent effect upon others who may act 
11

in similar fashion, we cannot say that the jury award is 

excessive. 

The award of punitive damages according to the jury 

instructions was based upon malice and willful and wanton 

conduct while the compensatory award was based upon actual 

injury sustained as well as "shame, humiliation, embarrassment 

or indignity to feelings." According to instructions to the 

jury, the compensatory damages were also based upon "the 

insulting character of the injury, the reason for the injury 

and any other circumstances which made the injury more 

serious." Given the clear determination of the basis for each 

award and the ample evidence supporting each award, our 

independent review of the record does not suggest double 

recovery in this case. 

The relationship between the award of $240,000 in 

compensatory and $100,000 in punitive damages is not 

unreasonable or strikingly out of proportion. We note that 

the punitive damage award approved in Poulston was two and 

one-half times (250%) the compensatory award while here the 

punitive damage award is less than one-half (41%) of the 

jury's compensatory award.2

 2

 See Philip Morris USA v. Williams, ___ U.S. ___, ___, 

127 S.Ct. 1057, 1061-62 (2007) (suggesting that punitive 

damages two, three or four times the size of the compensatory 

damage award accord with "longstanding historical practice" 

and that punitive damages which multiply the compensatory 
12

McConnell's financial condition is relevant on the issue 

of punitive damages and was properly considered by the jury. 

Hamilton Dev. Co. v. Broad Rock Club, 248 Va. 40, 44, 445 

S.E.2d 140, 143 (1994). The jury was permitted to consider 

the value of McConnell's stock, an indication of his ability 

to pay, in determining the amount of the punitive damages. 

In this case, our independent review of the punitive 

damages award leads us to conclude that the award should not 

have been set aside.3

 Poulston, 251 Va. at 263, 467 S.E.2d at 

484. We cannot say that a punitive damages award of $100,000 

shocks the conscience of the Court or is otherwise 

inappropriate in light of McConnell's egregious conduct. 

Accordingly, we hold that the jury's award of $100,000 in 

punitive damages was not excessive as a matter of law. 

III. CONCLUSION 

 

award by "single digits" are more likely to comport with due 

process than higher punitive awards), citing State Farm Mut. 

Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003).

3

 We acknowledge that many courts analyze punitive damages 

awards and remittitur based on due process concerns because 

"punitive damages are quasi-criminal punishment." Pacific 

Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 54 (1991). See

Philip Morris USA, ___ U.S. at ___, 127 S.Ct. at 1061-62; 

State Farm, 538 U.S. at 425; BMW of North America, Inc. v. 

Gore, 517 U.S. 559, 575-85 (1996). In this case, however, 

there has been no challenge to the award of punitive damages 

based upon denial of due process. See generally Schneckloth 

v. Bustamonte, 412 U.S. 218, 235-36 and nn. 16-17 (1973). See

also Nusbaum v. Berlin, 273 Va. 385, 406, 641 S.E.2d 494, 505 

(2007) (appellate review of due process arguments waived by 

failure to raise the constitutional issue below); Westvaco 
13

 Because the trial court did not conduct the analysis 

required by Shepard for remittitur of an award of compensatory 

damages, we hold that the trial court abused its discretion. 

Upon a de novo review of the record using the analysis 

required by Poulston for remittitur of an award of punitive 

damages, we hold that the trial court erred in remitting the 

punitive damage award. Accordingly, we will reverse the 

judgment of the trial court, reinstate the jury verdict as 

reduced to the ad damnum clause of plaintiff's pleading, in 

the amount of $100,000 as to compensatory damages and $100,000 

as to punitive damages, and enter final judgment for Baldwin. 

Reversed and final judgment. 

 

Corp. v. Columbia Gas of Virginia, Inc., 230 Va. 451, 459, 339 

S.E.2d 170, 174 (1986) (same).