David A. Damico, Esq.
M. Lipman, Esq.
Kendra L. Smith, Esq. Miami, Florida
Burns, White & Hickton and
Pittsburgh, Pennsylvania Geraldine M. Guerin, Esq.
and James A. McKowen, Esq.
Robert Gaudio, Esq. James F. Humphreys & Associates, L.C.
Burns, White & Hickton Charleston, West Virginia
Wheeling, West Virginia Attorneys for Appellee
Attorneys for Appellants
The Opinion of the Court was delivered PER CURIAM.
motion for a new trial is governed by a different standard than a motion for
a directed verdict. When a trial judge vacates a jury verdict and awards a
new trial pursuant to Rule 59 of the West Virginia Rules of Civil Procedure,
the trial judge has the authority to weigh the evidence and consider the credibility
of the witnesses. If the trial judge finds the verdict is against the clear
weight of the evidence, is based on false evidence or will result in a miscarriage
of justice, the trial judge may set aside the verdict, even if supported by
substantial evidence, and grant a new trial. A trial judge's decision to award
a new trial is not subject to appellate review unless the trial judge abuses
his or her discretion. Syllabus Point 3, In re State Pub. Bldg. Asbestos
Litig., 193 W.Va. 119, 454 S.E.2d 413 (1994).
2. 'It takes a stronger case in an appellate court to reverse a judgment awarding a new trial than one denying it and giving judgment against the party claiming to have been aggrieved. Point 1, Syllabus, The Star Piano Co. v. Brockmeyer, 78 W.Va. 780 [, 90 S.E. 338 (1916) ].' Syl. pt. 2, Young v. Duffield, 152 W.Va. 283, 162 S.E.2d 285 (1968). Syllabus Point 1, In re State Pub. Bldg. Asbestos Litig., 193 W.Va. 119, 454 S.E.2d 413 (1994).
3. 'An appellate court is more disposed to affirm the action of a trial court in setting aside a verdict and granting a new trial than when such action results in a final judgment denying a new trial.' Syl. pt. 4, Young v. Duffield, 152 W.Va. 283, 162 S.E.2d 285 (1968). Syllabus Point 2, In re State Pub. Bldg. Asbestos Litig., 193 W.Va. 119, 454 S.E.2d 413 (1994).
This case is before this
Court upon appeal of a final order of the Circuit Court of Putnam County entered
on October 26, 2000. In that order, the circuit court granted a motion by
the appellee and plaintiff below, Frances E. Lamphere, Administratrix of the
Estate of Fred Lamphere,
(See footnote 1) to set aside the verdict
of the jury in favor of the appellants and defendants below, the Consolidated
Rail Corporation and the Penn Central Corporation (hereinafter Conrail
or the railroad), in this action filed pursuant to the Federal
Employers' Liability Act. It was alleged that the railroad failed to provide
Mr. Lamphere a safe place to work and as a result, he developed mesothelioma.
In this appeal, Conrail contends that the circuit court erred by finding that
the verdict was against the clear weight of the evidence and therefore, a
new trial was warranted.
This Court has before it
the petition for appeal, the entire record, and the briefs and argument of
counsel. For the reasons set forth below, the final order of the circuit court
The appellants never disputed
that Mr. Lamphere was suffering from mesothelioma. Instead, the focus of the
trial was on whether the railroad knew or should have known during the period
of Mr. Lamphere's employment that the asbestos-containing products he was working
around had the potential to put him at risk of developing an asbestos-related
disease. In this regard, Mr. Lamphere offered expert testimony and related documents
to show that the railroad had such knowledge and therefore, was negligent and
liable for his injuries.
Conrail presented contradictory
evidence by way of expert testimony. In particular, Conrail offered evidence
that due to the medical, scientific, and industrial knowledge during the time
of Mr. Lamphere's employment, the railroad did not know, nor did it have any
reason to know that the alleged asbestos-containing products Mr. Lamphere
worked around could cause an asbestos-related disease. Conrail further provided
evidence that mesothelioma was not a medically recognized aliment until the
1960s, some twenty years after Mr. Lamphere ceased his employment.
On October 8, 1998, the
jury returned a verdict in favor of Conrail. Shortly thereafter, the appellee
filed a motion for a new trial asserting that the jury's verdict was against
the clear weight of the evidence. The circuit court held hearings regarding
the motion on March 10, 1999 and September 28, 2000. On October 26, 2000,
the trial court entered the final order granting the appellee's motion and setting a new
trial date of November 13, 2000.
(See footnote 4) This appeal followed.
In this case, Conrail contends that the circuit court failed to consider critical evidence which supported the jury's verdict. We disagree. The circuit court's order indicates that its decision to grant a new trial was based on the briefs submitted by the parties, the argument of counsel, and careful consideration of the evidence presented at trial. In addition, the circuit court's order discusses at length the considerable amount of evidence produced at trial.
For example, the circuit court's order states that [t]he evidence presented at trial clearly established that Mr. Lamphere had little, if any, exposure to asbestos apart from his work in the backshops of the New York Central. In addition, the circuit court's order indicates that the great weight of the evidence presented at trial showed that the New York Central did not act with reasonable care to provide Mr. Lamphere with a reasonably safe place to work. The circuit court's order also states that the evidence demonstrated that the New York Central either knew, or should have known of the hazards of asbestos and the means of reducing and preventing asbestos disease, prior to and during Mr. Lamphere's employment. In this regard, the circuit court discussed the documentary evidence presented by Mr. Lamphere concerning meetings of the medical and surgical section of the Association of American Railroads.
Our review of the transcripts of the trial of this case reveals that Conrail did in fact present substantial evidence disputing Mr. Lamphere's claims. However, contrary to the assertions of Conrail, we do not believe that the circuit court ignored this evidence. In In re Pub. Bldg. Asbestos Litig., this Court noted that a trial judge, unlike this Court, is in a unique position to evaluate the evidence. 193 W.Va. at 126, 454 S.E.2d at 420. As further explained by Justice Cleckley in his concurring opinion in In re Pub. Bldg. Asbestos Litig.,
Given the trial court's intimate
familiarity with the proceedings, the trial court may weigh evidence and
assess credibility in ruling on the motion for a new trial. Wilhelm
v. Blue Bell, Inc., 773 F.2d 1429, 1433 (4th Cir.1985), cert. denied,
475 U.S. 1016, 106 S.Ct. 1199, 89 L.Ed.2d 313 (1986). There are many critical
events that take place during a trial that cannot be reduced to record, which
may affect the mind of the judge as well as the jury in forming the opinion
as to the weight of the evidence and the character and credibility of the witnesses.
These considerations can [not] and should not be ignored in determining whether
a new trial was properly granted.
193 W.Va. at 132-33, 454 S.E.2d at 426-27. In other words, the trial judge has unique knowledge of what occurred at trial that no other judge can have. Given such unique knowledge and intimate familiarity with the proceedings, it is perfectly proper for the trial judge to use and consider that peculiar and personal knowledge when weighing the evidence and assessing the credibility in ruling on the motion for a new trial.
In light of the express findings of fact made in the final order, it is apparent that the circuit court considered all of the evidence presented at trial in determining that the jury's verdict was against the clear weight of the evidence. Therefore, the circuit court did not abuse its discretion by vacating the jury verdict and awarding a new trial. Accordingly, for the reasons set forth above, the final order of the Circuit Court of Putnam County entered on October 26, 2000 is affirmed.