10 Cyc. of Federal Proc. 34:13 (3rd ed.) Cyclopedia of Federal Procedure Database updated February 2013 Part II.

. Trial Court Practice in Civil Proceedings Generally Chapter 34. New Trials and Rehearings II. Grounds and Showing Required A. In General References Correlation Table 34:13. Verdict contrary to evidence or internally inconsistent West's Key Number Digest West's Key Number Digest, Federal Civil Procedure 2338 to 2342 A court has the power to set aside a verdict that is contrary to the evidence.1 The court is not restricted to instances where, on motion, it should have granted judgment as a matter of law, but, in addition, is entitled to use a certain indefinable range of discretion in the interest of justice.2 The court may weigh the evidence, which it cannot do on a motion for judgment as a matter of law,3 and may disbelieve witnesses.4 A new trial may be appropriate even when a judgment as a matter of law is inappropriate.5 A request to the trial court to determine whether upon the entire evidence and showing of the parties, the verdict is unjust and requires the granting of a new trial, has been said to be a more suitable remedy than an appeal.6 A new trial motion differs from a motion for directed verdict or for judgment as a matter of law under Rule 50.7 If the evidence offered for the party for whom a verdict is rendered, conceding to it the greatest probative force to which it is fairly entitled, is insufficient to support or justify the verdict, it is the duty of the court to set it aside and grant a new trial.8 However, if the verdict is supported by substantial evidence, or based upon conflicting evidence from which different inferences might be drawn, leaving the court doubtful, it will not ordinarily be disturbed.9 On the other hand, where the verdict is clearly against the weight of the evidence and would result in a miscarriage of justice if permitted to stand, a new trial should be granted even though the verdict is supported by substantial evidence.10 On a motion for a new trial, the testimony is considered in the light most advantageous to the prevailing party and all conflicts in the evidence must be resolved in that party's favor.11 It is not a sufficient ground for a new trial that the verdict is against the preponderance of the testimony or that the court might have arrived at a different result.12 The verdict must be manifestly and palpably against the evidence.13 Although the cases are not consistent in usage, some cases using the phrase clear weight and others using the phrase overwhelming weight or overwhelming evidence, it seems clear that the jury's verdict must at least be against the great weight of the evidence before a new trial may be granted.14 It has been held that a new trial may not be granted on the ground that the jury verdict is against the weight of the evidence, unless the verdict is against the great weight, not merely the greater weight, of the evidence.15 There is also authority that while a court can set aside a jury's verdict and grant a new trial if the verdict is against the clear weight of the evidence, a new trial may not be granted on that basis unless the verdict was unreasonable.16 The losing party is not entitled as a matter of right to a new trial even though the evidence would have warranted an opposite verdict and even though

the trial judge, had he or she been sitting without a jury, might have found the facts the other way.17 When the granting of a new trial depends, not on the court's judgment of the sufficiency of the evidence but upon a question of law, and the granting of a new trial would deprive the successful party of the finding of facts in its favor, the court may be inclined to deny the motion in order to preserve rights dependent on the findings and permit the law question to be determined by appeal, and may also be so inclined though it doubts the sufficiency of the evidence as well.18 Where the verdict suggests that the jury was confused and misapplied the law, it is not an abuse of discretion to grant a new trial.19 The fact that there have been two like verdicts does not preclude the court from setting aside the last of them,20 but after successive findings of the jury the same way a verdict will not be disturbed except for weighty reasons.21 Although a special finding by a jury is against the weight of the evidence, that fact does not afford ground for setting aside its general verdict, where there is ample evidence to sustain the general verdict.22 The answers to postverdict interrogatories do not alone warrant a new trial after a jury has returned an unambiguous verdict.23 The fact that a verdict is inconsistent with respect to different parties whose rights or liabilities relate to substantially the same state of facts does not necessarily require a new trial.24 However, in a case involving two causes of action, if it is determined that a judgment notwithstanding the verdict should have been granted on one claim, and the damage award appears to be contrary to the weight of the evidence on the surviving claim alone, a new trial is required.25 If an inconsistency of a jury verdict escapes notice until after jury has disbanded, the proper thing to do is to hold a new trial.26 CUMULATIVE SUPPLEMENT Cases: Where a general verdict or special verdict question encompasses multiple claims or multiple theories of liability, one of which is unsupported by the evidence or otherwise defective, a new trial is usually warranted; however, this rule is by no means rigid, and the Court of Appeals applies a generous harmless error analysis in order to determine whether it is reasonably likely that the jury in fact relied on a theory with adequate evidentiary support. Rodriguez-Garcia v. Miranda-Marin, 610 F.3d 756 (1st Cir. 2010), cert. denied, 131 S. Ct. 1016 (2011). District court may find that award is unsupported by evidence and thus that motion for new trial should be granted, even if there was enough evidence in record to justify sending issue to jury in first instance. Fed Rules Civ.Proc.Rules 50, 59, 28 U.S.C.A. Smart Marketing Group v. Publications Intern. Ltd., 624 F.3d 824 (7th Cir. 2010). New trials because the verdict is against the weight of the evidence are proper only when the record shows that the jury's verdict resulted in a miscarriage of justice or where the verdict, on the record, cries out to be overturned or shocks the reviewing court's conscience. Finjan, Inc. v. Secure Computing Corp., 626 F.3d 1197 (Fed. Cir. 2010). Under Third Circuit law, when faced with inconsistent jury verdicts and the evidence would support either of the inconsistent verdicts, the district court must order a new trial. Comaper Corp. v. Antec, Inc., 596 F.3d 1343 (Fed. Cir. 2010). The trial court may grant a motion for a new trial on grounds that verdict was against weight of evidence, even if there is substantial evidence to support the jury verdict; court is also free to weigh evidence independently, rather than in light most favorable to the

prevailing party, but the court should rarely disturb a jury's evaluation of a witness's credibility. Fed.Rules Civ.Proc.Rule 59, 28 U.S.C.A. Stowe v. National R.R. Passenger Corp., 793 F. Supp. 2d 549 (E.D. N.Y. 2011). [END OF SUPPLEMENT] Westlaw. 2013 Thomson Reuters. No Claim to Orig. U.S. Govt. Works.

Footnotes
1 Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996); Pleasants v. Fant, 89 U.S. 116, 22 L. Ed. 780, 1874 WL 17425 (1874); Ahern v. Scholz, 85 F.3d 774, 44 Fed. R. Evid. Serv. 687 (1st Cir. 1996); U.S. v. Landau, 155 F.3d 93 (2d Cir. 1998); Crowley Beverage Co., Inc. v. Miller Brewing Co., 862 F.2d 688 (8th Cir. 1988). 2 U. S. for Use and Benefit of Weyerhaeuser Co. v. Bucon Const. Co., 430 F.2d 420 (5th Cir. 1970); Pennsylvania Thresherman & Farmers' Mut. Cas. Ins. Co. v. Crapet, 199 F.2d 850 (5th Cir. 1952); Lack Industries, Inc. v. Ralston Purina Co., 327 F.2d 266 (8th Cir. 1964); McCormick v. City of Wildwood, 439 F. Supp. 769 (D.N.J. 1977); Wilson v. NuCar Carriers, Inc., 158 F. Supp. 127 (M.D. Pa. 1958), judgment aff'd, 256 F.2d 332 (3d Cir. 1958). Unlike motion for judgment as matter of law, motion for new trial may be granted even if there is substantial evidence to support jury's verdict. Caruolo v. John Crane, Inc., 226 F.3d 46, 55 Fed. R. Evid. Serv. 851 (2d Cir. 2000). A motion for new trial on the basis that the verdict is against the weight of the evidence is committed to the court's sound discretion. Alpha Display Paging, Inc. v. Motorola Communications and Electronics, Inc., 867 F.2d 1168, 27 Fed. R. Evid. Serv. 628 (8th Cir. 1989). 3 Magee v. General Motors Corp., 213 F.2d 899 (3d Cir. 1954); Hamilton v. 1st Source Bank, 895 F.2d 159 (4th Cir. 1990), on reh'g, 928 F.2d 86 (4th Cir. 1990); McCracken v. Richmond, F. & P. R. Co., 240 F.2d 484 (4th Cir. 1957); U.S. v. An Article of Drug Consisting of 4,680 Pails, More or Less, Each Pail Containing 60 Packets, Etc., 725 F.2d 976 (5th Cir. 1984); Shows v. Jamison Bedding, Inc., 671 F.2d 927, 10 Fed. R. Evid. Serv. 307 (5th Cir. 1982); Mentor H/S, Inc. v. Medical Device Alliance, Inc., 244 F.3d 1365 (Fed. Cir. 2001); LaBuff v. Texas & N. O. R. Co., 126 F. Supp. 759 (W.D. La. 1954). 4 Brown by Brown v. Syntex Laboratories, Inc., 755 F.2d 668, 17 Fed. R. Evid. Serv. 587, 1 Fed. R. Serv. 3d 28 (8th Cir. 1985); Mentor H/S, Inc. v. Medical Device Alliance, Inc., 244 F.3d 1365 (Fed. Cir. 2001). 5 Rousseau v. Teledyne Movible Offshore, Inc., 812 F.2d 971, 7 Fed. R. Serv. 3d 365 (5th Cir. 1987). 6

Schuchardt v. Allens, 68 U.S. 359, 17 L. Ed. 642, 1863 WL 6621 (1863); Zeller's Lessee v. Eckert, 45 U.S. 289, 4 How. 289, 11 L. Ed. 979, 1846 WL 5696 (1846); Pagan v. Shoney's, Inc., 931 F.2d 334, 20 Fed. R. Serv. 3d 747 (5th Cir. 1991); Booth v. Gilbert, 79 F.2d 790 (C.C.A. 8th Cir. 1935). Where jury was unable to reach a verdict, and district court then gave a charge which it later determined under all the circumstances had the effect of coercing the jury and of causing jury to return an unjust verdict, it became duty of district court to grant a new trial. North Texas Producers Ass'n v. Metzger Dairies, Inc., 348 F.2d 189 (5th Cir. 1965). 7 See Fed. R. Civ. P. 50. Thomas v. Atlantic Coast Line R. Co., 223 F.2d 1 (5th Cir. 1955); Eastern Air Lines, Inc. v. Union Trust Co., 239 F.2d 25 (D.C. Cir. 1956). Upon appeal, the test for a motion for new trial based on the weakness of the evidence is lower than the test used for a directed verdict, but to obtain a new trial the moving party must disparage the evidence and show an abuse of discretion. Poduska v. Ward, 895 F.2d 854 (1st Cir. 1990). Question of sufficiency of evidence to support jury's verdict is not available as ground for new trial in absence of motion for directed verdict. Southern Ry. Co. v. Miller, 285 F.2d 202, 85 A.L.R.2d 842 (6th Cir. 1960). In passing upon motion for new trial and in considering evidence in light most favorable to plaintiff, trial court applied wrong standard which was applicable to motion for directed verdict or judgment n.o.v. Williams v. Nichols, 266 F.2d 389, 2 Fed. R. Serv. 2d 907 (4th Cir. 1959). Failure to move for directed verdict does not preclude motion for new trial on ground that verdict is contrary to greater weight of the evidence, since distinction between the two is well recognized. Citizens Nat. Bank of Lubbock v. Speer, 220 F.2d 889 (5th Cir. 1955). 8 Pleasants v. Fant, 89 U.S. 116, 22 L. Ed. 780, 1874 WL 17425 (1874); Barnsdall Refining Corporation v. Cushman-Wilson Oil Co., 97 F.2d 481 (C.C.A. 8th Cir. 1938); Palmer v. Miller, 60 F. Supp. 710 (W.D. Mo. 1945) (holding matter not governed by local state statute limiting number of new trials); Busam Motor Sales v. Ford Motor Co., 85 F. Supp. 790 (S.D. Ohio 1949). If evidence is so clearly insufficient that party against whom verdict was rendered would be entitled to new trial, or that judge would be obliged to grant new trial or compelled to set aside verdict, denial of motion for new trial would be abuse of discretion, and moreover, when verdict is merely contrary to preponderance of evidence or when trial judge thinks verdict is wrong although supported by some evidence, he may properly exercise his discretion in granting new trial. Thomas v. Atlantic Coast Line R. Co., 223 F.2d 1 (5th Cir. 1955). 9 Atlantic & Pacific Stores, Inc. v. Pitts, 283 F.2d 756 (4th Cir. 1960); City of Richmond v. Atlantic Co., 273 F.2d 902 (4th Cir. 1960); Fireman's Fund Ins. Co. v. Aalco Wrecking Co., Inc., 466 F.2d 179, 16 Fed. R. Serv. 2d 1374 (8th Cir. 1972); Lutz v. McNair, 233 F. Supp. 871 (E.D. Va. 1964), judgment aff'd, 340 F.2d 709 (4th Cir. 1965) (conflicting evidence upon question of negligence and contributory negligence).

When assessing the sufficiency of evidence to support a verdict in favor of the plaintiff, the role of the court of appeals is to determine whether, viewing the evidence in the light most favorable to the plaintiff, there was any combination of circumstances from which a rational inference may have been drawn in favor of the plaintiff. DaSilva v. American Brands, Inc., 845 F.2d 356, 25 Fed. R. Evid. Serv. 413 (1st Cir. 1988). 10 Ahern v. Scholz, 85 F.3d 774, 44 Fed. R. Evid. Serv. 687 (1st Cir. 1996); Rousseau v. Teledyne Movible Offshore, Inc., 812 F.2d 971, 7 Fed. R. Serv. 3d 365 (5th Cir. 1987); Scaggs v. Consolidated Rail Corp., 6 F.3d 1290, 38 Fed. R. Evid. Serv. 63, 26 Fed. R. Serv. 3d 1337 (7th Cir. 1993); Brown by Brown v. Syntex Laboratories, Inc., 755 F.2d 668, 17 Fed. R. Evid. Serv. 587, 1 Fed. R. Serv. 3d 28 (8th Cir. 1985); Oltz v. St. Peter's Community Hosp., 861 F.2d 1440 (9th Cir. 1988). A trial judge may order a new trial even where the verdict is supported by substantial evidence. Jennings v. Jones, 587 F.3d 430, 75 Fed. R. Serv. 3d 43 (1st Cir. 2009). District court may grant a new trial, even though the verdict is supported by substantial evidence, if the verdict is contrary to the clear weight of the evidence, or is based upon evidence which is false, or to prevent, in the sound discretion of the trial court, a miscarriage of justice. Mentor H/S, Inc. v. Medical Device Alliance, Inc., 244 F.3d 1365 (Fed. Cir. 2001). 11 Pagan v. Shoney's, Inc., 931 F.2d 334, 20 Fed. R. Serv. 3d 747 (5th Cir. 1991). But see Shows v. Jamison Bedding, Inc., 671 F.2d 927, 10 Fed. R. Evid. Serv. 307 (5th Cir. 1982) (no need to take view of evidence in light most favorable to verdict winner). 12 Aetna Cas. & Sur. Co. v. Reliable Auto Tire Co., 58 F.2d 100 (C.C.A. 8th Cir. 1932); National Equipment Rental, Limited v. Stanley, 177 F. Supp. 583 (E.D. N.Y. 1959), judgment aff'd, 283 F.2d 600 (2d Cir. 1960); Creagh v. United Fruit Co, 178 F. Supp. 301 (S.D. N.Y. 1959); Marchant v. American Airlines, Inc., 146 F. Supp. 612 (D.R.I. 1956), judgment aff'd, 249 F.2d 612, 75 A.L.R.2d 843 (1st Cir. 1957). A motion for a new trial based on evidentiary grounds should not be granted unless the verdict is against great weight, not merely preponderance of the evidence. Pagan v. Shoney's, Inc., 931 F.2d 334, 20 Fed. R. Serv. 3d 747 (5th Cir. 1991). 13 Pagan v. Shoney's, Inc., 931 F.2d 334, 20 Fed. R. Serv. 3d 747 (5th Cir. 1991); Locke v. Atchison, T. & S. F. Ry. Co., 309 F.2d 811 (10th Cir. 1962) (denial of motion not abuse of discretion); Weed v. Lyons Petroleum Co., 294 F. 725 (D. Del. 1923), aff'd, 300 F. 1005 (C.C.A. 3d Cir. 1924); Dunlap v. U.S., 43 F.2d 999 (D. Idaho 1930). Only in extreme and unusual case is appellate court justified in concluding that trial court committed abuse of discretion in denying new trial on ground that verdict for defendant in personal injury case was so decidedly against the evidence as to shock the conscience. Peterman v. Indian Motorcycle Co., 216 F.2d 289 (1st Cir. 1954). Willful disregard of testimony of unimpeached witness is ground for new trial. U.S. v. 2,049.85 Acres of Land, More or Less, in Nueces County, Tex., 49 F. Supp. 20 (S.D. Tex. 1943). 14

Rousseau v. Teledyne Movible Offshore, Inc., 812 F.2d 971, 7 Fed. R. Serv. 3d 365 (5th Cir. 1987); Shows v. Jamison Bedding, Inc., 671 F.2d 927, 10 Fed. R. Evid. Serv. 307 (5th Cir. 1982); Fireman's Fund Ins. Co. v. Aalco Wrecking Co., Inc., 466 F.2d 179, 16 Fed. R. Serv. 2d 1374 (8th Cir. 1972); Digidyne Corp. v. Data General Corp., 734 F.2d 1336 (9th Cir. 1984); Karns v. Emerson Elec. Co., 817 F.2d 1452, 23 Fed. R. Evid. Serv. 122 (10th Cir. 1987). See Wassell v. Adams, 865 F.2d 849 (7th Cir. 1989) (clear weight). A motion for new trial on the basis that the verdict is against the weight of the evidence should only be granted when the verdict is against the clear weight, overwhelming weight, or great weight of the evidence. McBryde v. Carey Lumber Co., 819 F.2d 185 (8th Cir. 1987). 15 J & H Auto Trim Co., Inc. v. Bellefonte Ins. Co., 677 F.2d 1365 (11th Cir. 1982). 16 Nolan v. Memphis City Schools, 589 F.3d 257, 251 Ed. Law Rep. 533 (6th Cir. 2009). 17 Peterman v. Indian Motorcycle Co., 216 F.2d 289 (1st Cir. 1954); Bevevino v. Saydjari, 574 F.2d 676 (2d Cir. 1978) (motion denied despite apparently inadequate defense by malpractice insurer). 18 Norfolk Southern Ry. Co. v. Davis Frozen Foods, 195 F.2d 662 (4th Cir. 1952); U.S. v. Alpha Portland Cement Co, 257 F. 432 (E.D. Pa. 1919). 19 DeLong Equipment Co. v. Washington Mills Electro Minerals Corp., 990 F.2d 1186 (11th Cir. 1993), order amended on other grounds, 997 F.2d 1340, 26 Fed. R. Serv. 3d 383 (11th Cir. 1993). 20 Morse v. St. Paul Fire & Marine Ins. Co., 129 F. 233 (C.C.D. Me. 1904); Hodge v. Lehigh Val. R. Co., 56 F. 195 (C.C.D. N.J. 1893). Two verdicts, assessing the value of lands taken for public use at different sums, cannot be considered as two concurring verdicts on a motion for a new trial. U.S. v. Taffe, 78 F. 524 (C.C.D. Or. 1897). 21 Clark v. Barney Dumping Co., 109 F. 235 (C.C.S.D. N.Y. 1901), aff'd, 112 F. 921 (C.C.A. 2d Cir. 1901); Joyce v. Charleston Ice-Mfg. Co., 50 F. 371 (C.C.D. S.C. 1892), aff'd, 54 F. 332 (C.C.A. 4th Cir. 1893). After two concurring verdicts, the court will not grant another new trial, unless the jury have manifestly disregarded the law as given them by the court. Milliken v. Ross, 9 F. 855 (C.C.E.D. La. 1881). 22 Baker v. New York, N.H. & H.R. Co., 101 F. 545 (C.C.S.D. N.Y. 1900). Where special finding on period of disability was clearly against weight of evidence and reflected a compromise on that issue, it could not be determined whether the finding tainted the other issues submitted to jury and hence motion to set aside verdict would be granted as to all the issues and new trial ordered. Dixon v. Pacific Mut Life Ins Co, 151 F. Supp. 106 (S.D. N.Y. 1957).

23 Postverdict interrogatories may imply that the jury's verdict is unjustified and may cause the jury to answer the interrogatories in a manner inconsistent with the verdict. Jacobs Mfg. Co. v. Sam Brown Co., 19 F.3d 1259 (8th Cir. 1994). 24 Bernstein v. Olian, 77 F. Supp. 672 (S.D. N.Y. 1948), rev'd on other grounds, 174 F.2d 880 (2d Cir. 1949). Defects in verdict, generally, see 34:19. 25 Grant v. Preferred Research, Inc., 885 F.2d 795, 15 Fed. R. Serv. 3d 503 (11th Cir. 1989). 26 Gallick v. Baltimore & O. R. Co., 372 U.S. 108, 83 S. Ct. 659, 9 L. Ed. 2d 618 (1963); Timm v. Progressive Steel Treating, Inc., 137 F.3d 1008 (7th Cir. 1998). 34:13. Verdict contrary to evidence or internally inconsistent, 10 Cyc. of Federal Proc. 34:13 (3rd ed.)