James Dunlap-Mcculler v. The Riese Organization Mannu Sohi Robert Gladstone Gary Chielmewski ( 1992 )

WALKER, Circuit Judge,

concurring:

I agree that our precedents, most recently Kirschner v. Office of the Comptroller of the City of New York, 973 F.2d 88, 96 (2d Cir.1992), render non-reviewable a district court’s grant of a motion for a new trial based upon a verdict against the clear weight of the evidence. Wright and Miller, criticizing the Second Circuit rule foreclosing appellate review, point out that “[a]p-pellate action in this context protects the role of the jury, as envisioned by the Seventh Amendment_” 11 C. Wright & A. Miller, Federal Practice & Procedure § 2819, at 126 (1973). As my colleagues note, this criticism has led most other circuits to reject our rule and review these nullifications of jury verdicts under an abuse of discretion standard. See Majority Opinion at 158-59. Indeed, some of our sister courts apply “an extremely stringent” standard of review to grants of new trial motions on evidentiary grounds “to protect a party’s right to a jury trial.” Redd v. City of Phenix City, 934 F.2d 1211, 1214 (11th Cir.1991); see, e.g., Digidyne v. Data Gen. Corp., 734 F.2d 1336, 1347 (9th Cir.1984) (same); Shows v. Jamison Bedding, Inc., 671 F.2d 927, 931 (5th Cir.1982) (applying “strict” standard of review).

Because I am bound by Second Circuit precedent, I concur in the majority’s conclusion that plaintiff’s appeal from the grant of a new trial must fail. My difference with my colleagues lies not with the outcome, but with the analysis, unnecessary in my view, of how we would conduct a review if we were applying an abuse of discretion standard.

My colleagues note that “the grant of a new trial on weight of the evidence grounds should be reserved for those occasions where the jury’s verdict was egregious.” See also Redd, 934 F.2d at 1214 (“ ‘new trials should not be granted on evi-dentiary grounds unless, at a minimum, the verdict is against the great, not merely the greater[,] weight of the evidence’ ”) (quoting Conway v. Chemical Leaman Tank Lines, Inc., 610 F.2d 360, 362-63 (5th Cir.1980)); Coffran v. Hitchcock Clinic, Inc., 683 F.2d 5, 6 (1st Cir.) (new trial properly granted on weight of the evidence grounds only where “the verdict is against the clear weight of the evidence, or is based upon evidence which is false, or will result in a clear miscarriage of justice....”) (citation omitted), cert. denied, 459 U.S. 1087, 103 S.Ct. 571, 74 L.Ed.2d 933 (1982). They also recognize that where — as here — witness credibility is involved, “the jury is empowered and capable of evaluating a witness[ ] ... and this evaluation should rarely be disturbed.” Under this standard, I agree with my colleagues that, “[o]n the basis of the cold record on appeal, we would not have granted a new trial....”

However, the majority opinion goes on to conclude that the district court did not abuse its discretion in granting Riese’s new trial motion because “almost all of the evidence presented by Dunlap-McCuller was in the form of his own testimony and this testimony does not preponderate in his favor.” The opinion adds that the credibility determination rests with the district court, to which it defers. It seems to me that this analysis confuses the need to respect the discretion of the trial court with the proper legal test for ruling upon a new trial motion.

A circuit court must accord deference to the district court in matters involving fact finding. However, the legal standard applicable to a new trial motion is the same at the district and circuit court levels. As set forth above, a court should grant a motion for a new trial on evidentiary grounds only where the verdict is contrary to the clear weight of the evidence. The majority asserts that we must defer to the district court and affirm the nullification of a plaintiffs verdict where the record reveals that a case is merely close. I respond that the district court’s discretion is limited by the Seventh Amendment and the governing legal standard. Where the evidence is equivocal or merely fails to preponderate in plaintiffs favor, an appellate court must accord greater deference to the jury than to the district court. See, e.g., Redd, 934 F.2d at 1215 (“When there is some support for a jury’s verdict, it is irrelevant what we or the district court would have concluded.”); Coffran, 683 F.2d at 7 (reversing nullification of jury verdict on evidentiary grounds where case was “factually ... very close and difficult”).

In all other respects, I concur in the majority’s opinion and in the result.