668 S.E.2d 189
A trial judge is not merely a referee but is vested with
discretion in supervising verdicts and preventing miscarriages
of justice, with the power and duty to set a jury verdict aside and
award a new trial if it is plainly wrong even if it is supported by
some of the evidence, and when a trial judge so acts, his
decision, being in discharge of his power and duty to pass upon
the weight of the evidence to that limited extent, is entitled to
peculiar weight and will not be disturbed on appeal unless
Syl. Pt. 1, Cook v. Harris, 159 W.Va. 641, 225 S.E.2d 676 (1976) (emphasis supplied). Consequently, a trial judge's determination that a new trial should be awarded based on one of the three grounds this Court identified for setting aside a jury verdict in Asbestos Litigation (See footnote 1) is not to be taken lightly.
In this case, an experienced, well-respected trial judge engaged in the weighing of the evidence required by a motion for a new trial and reached the determination that the jury's verdict was against the clear weight of the evidence. Appellants attempt to discredit the trial court's weighing of the evidence primarily by taking issue with the trial court's statement in its ruling that [i]t was not disputed at trial that the door had fallen on the Plaintiff and no party offered any evidence to explain the cause of the fall. Maintaining that the issue of whether the door came off its hinges and fell on Ms. Neely was in fact heavily disputed at trial, Appellants argue that this incorrect finding supports its position that the trial judge erred in ruling that the verdict was against the clear weight of the evidence.
Rather than arguing that the door injury did not occur at all, the tack taken by Appellants at trial was to question the extent to which the door came off its hinges and to accordingly question the amount of damages sustained by Ms. Neely related to the incident. Assuming then that the jury was considering the degree to which the door came loose from its hinges and whether the Plaintiff suffered any resulting harm from that alleged disengagement, the trial judge may have inartfully selected the words by which he sought to express a lack of dispute at trial that the door in question somehow fell on or struck Ms. Neely. Clearly, there was evidence suggesting that an injury resulted when the door came loose in some fashion from its hinges and struck Ms. Neely on the leg. The store employees, after examining the leg of Ms. Neely immediately after the incident and espying both some redness and some swelling on one of her legs, encouraged her to seek medical treatment, which she did.
Having been in that unique position of hearing all the evidence adduced at trial and being witness to issues of credibility, the trial judge was convinced that the jury reacted to a possibly exaggerat[ed] presentation of damages by deciding not to award her any of the damages to which she might be entitled. As the trial judge observes in his order, the correct result would be to reduce the damages to a level that the jury believed would fairly compensate the Plaintiff, but it would not be correct to find against the Plaintiff on the issue of liability because she presented a questionable case on damages. Having determined that the Plaintiff successfully put on a prima facie case of negligence, which the trial court noted was largely unchallenged by any Defendant, the trial court came to the conclusion that the issue was one of damages and not liability.
In overturing the trial court's decision to grant a new trial the majority has wrongly engaged in a reweighing of the evidence. This is the very object which this Court has long sought to avoid by limiting the occasions in which a grant of a new trial should be overturned. Accordingly, I most respectfully dissent.
I am authorized to state that Justice Starcher joins in this dissenting opinion.