Civil Practice & Procedure

Affirming judgment granting a new trial based on long-standing standard of review that a grant of a new trial on the ground that the verdict is against the weight of the evidence will generally not be disturbed as long as the Plaintiff made a submissible case; Defendant-Appellant's constitutional challenge to that standard is rejected. Forester v. Clarke, No. 30105 (Mo. App. S.D., January 12, 2011), Bates, J.
Held:  The court of appeals affirmed the trial court's grant of a new trial following a defense verdict in medical malpractice action.  Under the "long-standing standard of review" that applies to an appeal from a decision to grant a new trial on the basis that the verdict is against the weight of the evidence, the court explained that the trial court "has nearly unfettered discretion in deciding whether or not to grant a new trial" in such circumstances.  Opinion at 2 (quoting Stehno v. Sprint Spectrum, L.P., 186 S.W.3d 247, 250 (Mo. Banc, 2006)).
Defendant-Appellant challenged the standard of review set forth in Stehno as unconstitutional and argued that the court should adopt a different standard used in other jurisdictions, which require a trial court to uphold a jury's verdict if it is supported by a preponderance of the evidence.  Noting that it is constitutionally bound to follow the most recent controlling decision of the Missouri Supreme Court, the court affirmed the trial court's grant of a new trial given that Defendant-Appellant did not argue he was entitled to relief under the existing standard of review.

The Missouri Bar Courts Bulletin, 11-Feb