The grant or denial of a new trial is within the discretion of the trial court.53 In exercising its discretion, the court may weigh the evidence and pass on its credibility.54 The central concern is whether the movant suffered some prejudice resulting in the denial of a fair trial55 or whether allowing the verdict to stand would otherwise result in a miscarriage of justice.56  This standard gives recognition to the exclusive province of the jury as established by the Delaware Constitution,56.1 while preserving the separate common law function of the motion for a new trial where all of the evidence can be reviewed from the unique standpoint of the judge.56.2

The burden is on the moving party to establish such prejudice or injustice.57 Because of the importance of the role of the jury in our judicial system, courts will be very reluctant to interfere with or set aside a jury verdict.58 Where prejudicial error has occurred during trial, however, the fact that the evidence supported the verdict will not justify denying a motion for a new trial.59

There are a variety of grounds upon which a motion for a new trial may be granted,60 including:

Trial Errors. Any party can request a new trial due to prejudicial errors during trial, such as improper arguments, erroneous introduction or exclusion of evidence or incorrect or omission of jury instructions.61 To be entitled to rely on such error on a motion for a new trial, the moving party must have objected to the same conduct at trial.62

In order to determine whether a new trial is called for in connection with improper comments, the trial court must determine whether the improper comments prejudicially affected substantial rights of the plaintiffs. In doing so, the court should consider: (1) the closeness of the case, (2) the centrality of the issue affected by the improper comments, and (3) the steps taken in mitigation.62.1

Verdict Against The Weight Of The Evidence. On a motion for a new trial on the ground that the verdict is contrary to the evidence, it is not sufficient that the verdict is merely against the preponderance of the evidence or that the court may have arrived at a different result. Rather, the trial judge may set aside a verdict only when, in the court’s judgment, the verdict is against the great weight of the evidence. In other words, the trial court should not set aside a jury verdict unless, on a review of the evidence, the evidence preponderates so heavily against the jury verdict that no reasonable jury could have reached that result.63

Newly Discovered Evidence. Because of the risk that a disgruntled litigant may fabricate the new evidence, motions for new trials on the grounds of newly discovered evidence are not favored. As such, motions for new trials made on this ground are subject to strict scrutiny.64 The movant must establish that the claimed newly discovered evidence is such that (i) it would probably change the result of the trial; (ii) it has been discovered since the trial and could not have been discovered before the trial by the exercise of due diligence; (iii) it is material to an issue in the case; and (iv) it is not merely cumulative of the trial evidence or does not merely tend to impeach or contradict the trial evidence.65

It is the movant’s burden to establish that the new evidence is credible. To enable the court to determine the probable existence of the evidence, the reasonable likelihood of its being produced in the event of a new trial, its materiality and relevance and the degree of due diligence exercised, the movant should make a full disclosure of the source of the evidence. The movant should show when and by whom the information came to his or her attention and the surrounding circumstances. The new evidence should be described distinctly and specifically, and the names of any new witnesses, their addresses and the facts .to which they are expected to testify should be stated clearly and precisely. The movant should also offer strict affirmative proof of his or her diligence in seeking out the evidence, and the facts constituting the exercise of diligence should be stated.  If the newly discovered evidence consists of new witnesses, the movant should provide an affidavit by the witnesses stating their expected testimony or else satisfactorily explain why such affidavit is not included.66

In one case, a tax liability that was incurred at the time of the trial but not yet assessed was deemed to constitute newly-discovered evidence.66.1

Jury Misconduct. A motion for a new trial may be granted where there is evidence that some improper external influence affected the jury’s decisionmahng,67 such as unjustified contact with a juror by a party.68 A motion for a new trial may also be granted where the verdict indicates that some jurors compromised on the issue of liability in exchange for other jurors compromising on the issue of damages, resulting in the defendant being denied the right to have the issue of liability determined, on its own merits without regard to the issue of damages.69

A motion for a new trial based on an assertion that the jury’s deliberations were so brief that a fair and impartial verdict could not be obtained has been denied where the evidence presented was adequate to support the jury’s verdict.70

Excessive Verdict. On a motion for a new trial on the ground that the damage award is too high, a judge will not set aside the verdict unless it is so clearly excessive as to indicate that the verdict was the result of passion, prejudice, partiality or corruption or that it was manifestly the result of disregard of the evidence or the applicable rules of law. A verdict will not be set aside merely because it is excessive in the mind of the court, but only when it is so grossly excessive as to shock the court’s sense of justice and the impropriety of allowing it to stand is clear.71 Whether or not a verdict  is excessive depends on the facts of each case. Consideration should be given to the changing purchasing power of a dollar and, if feasible, to uniformity of recent verdicts. Ultimately, however, there is no standard other than the conscience of the court. Where there is any margin for a reasonable difference of opinion in the matter, however, the court should always yield to the verdict of the jury.72

Inadequate Verdict. A new trial may be appropriate where the verdict is grossly inadequate or merely nominal and it appears clear that the plaintiff is entitled to substantial damages. But a verdict should not be set aside as inadequate when the facts and attending circumstances relied  upon are not clear and undisputed.73 Although great deference is given to jury verdicts, courts should not be reluctant to set aside a verdict which reflects mere nominal damages where the evidence indicates that the plaintiff is entitled to substantial damages.74

However, where the evidence conclusively establishes the existence of an injury and a causal relationship to the tortuous conduct, however minimal, and the jury fails to award any damages, even nominal damages, such award is deemed to be against the weight of the evidence and it is considered an abuse of discretion to deny a request for a new trial on damages.74.1

In determining whether or not to grant a new trial on the ground that the award of damages was inadequate, the trial judge must limit the review to only the facts that were placed in evidence.  External information should not be considered.74.2

53. Lawrence v. State, 253 A.2d 506, 508 (Del. 1969); Bennett v. Andree, 252 A.2d 100, 103 (Del. 1969); F. H. Simonton, Inc. v. Conestoga Chemical Corp., 247 A.2d 214, 217 (Del. 1968), overruled on other grounds by Pepsico, Inc. v. Pepsi-Cola Bottling Co., 261 A.2d 520 (Del. 1969); Tyndall v. Tyndall, 214 A.2d 124, 126 (Del. 1965); Larrimore v. Homeopathic Hospital Asso., 181 A.2d 573, 579 (Del. 1962); In re Missouri-Kansas Pipe Line Co., 2 A.2d 273, 277 (Del. 1938); Bnnghurst v. Harkins, 122 A. 783, 786-87 (Del. 1923); Philadelphia, B. & W. R. Co. v. Gatta, 85 A. 721, 723 (Del. 1913).

54. Storey v. Camper, 401 A.2d 458, 461 (Del. 1979); McCloskey v. MeKelvey, 174 A.2d 691, 693 (Del. Super. 1961).

55. Eustice v. Rupert, 460 A.2d 507, 514 (Del. 1983). See also Townsend v. Poynter, 130 A. 267, 271 (Del. 1925).

56. Burgos v. Hickok, 695 A.2d 1141, 1145 (Del. 1997); McCloskey v. McKelvey, 174 A.2d 691, 693 (Del. Super. 1961).

56.1. Del. Const., art. IV, § 9.

56.2. Burges v. Hickok, 695 A.2d 1141, 1145 (Del. 1997).

57. Vansant v. Kowalewski, 90 A. 421, 424 (Del. Super. 1914).

58. Burns v. Delaware Coca-Cola Bottling Co., 224 A.2d 255, 256 (Del. Super. 1966); Di Gioia v. Schetrompf, 251 A.2d 569, 570 (Del. Super. 1969).

59. Gillen v. Proth, C.A. Nos. 357 & 1269, slip op. at 4, O’Hara, J. (Del. Super. Jan. 15, 1975), aff’d mem., 364 A.2d 650 (Del. 1976).

60. See Ch. Ct. R. 59(a) (new trial may be granted “for any of the reasons for which rehearings have heretofore been granted in equity”); Super. Ct. Civ. R. 59(a) (new trial may be granted “for any of the reasons for which new trials have heretofore been granted in the Superior Court”); Ct. Comm. Pls. Civ. R. 59(a); Fam. Ct. Civ. R. 59(a); J.P. Ct. Civ. R. 20(c).

61. E.g., Putney v. Rosin, 791 A.2d 902, 906 (Del. Super. 2001) (improper statements during closing argument); Watts v. Delaware Coach Co., 58 A.2d 689, 696 (Del. Super. 1948) (exclusion of evidence); Balderson v. Freeman, C.A. No. 05C-01-222MJB, Brady, J. (Del. Super. May 9, 2007), app. refused mem., 941 A.2d 1018 (Del. 2007) (erroneous instructions); Balaguer v. Otteni, C.A. No. 97C-01-045-JE, Babiarz, J. (Del. Super. Apr. 16, 2002) (admission of prejudicial evidence); Shipman v. Hudson, C.A. No. 88C-JN-2, Lee, J. (Del. Super. Feb. 5, 1993), app. refused mem., 625 A.2d 280 (Del. Apr. 12, 1993) (erroneous instructions); Yocum v. Pugh, C.A. No. 88C.OC-230, Gebelein, J. (Del. Super. Apr. 2, 1991), recons. denied, C.A. No. 88C-OC-230, Gebelein, J. (Del. Super. May 7, 1991) (same); Schmidt v Hobbs, CA. No. 85C-OC-135, Moore, 1. (Del, Super. Oct. 14, 1988), app. refused mem., 553 A.2d 638 (Del. 1989) (same).

62. E.g., H. v. H., 314 A.2d 420, 422 (Del. Super. 1973); Greenplate v. Lowth, 199 A. 659, 663 (Del. Super. 1938).

62.1. Putney v. Rosin, 791 A.2d 902, 905 (Del. Super. 2001).

63. James v. Glazer, 570 A.2d 1150, 1156 (Del. 1990); Storey v. Camper, 401 A.2d 458, 461.65 (Del. 1979); McCloskey v. McKelvey, 174 A.2d 691 (Del. Super. 1961).

64. In re Missouri-Kansas Pipe Line Co., 2 A.2d 273, 277 (Del. 1938); Chandler v. Miles, 193 A. 576, 582 (Del. Super. 1937).

65. In re Missouri-Kansas Pipe Line Co., 2 A.2d 273, 278 (Del. 1938); Bringhurst v. Harkins, 122 A. 783, 787 (Del. 1923); Doochack v, Hobbs, No. 322, 1993, slip op. at 10-11, Holland, J. (Del. May 18, 1994) (ORDER), disposition reported at 645 A.2d 568 (Del. 1994) (TABLE); Haas v. Jones, 93 A.2d 915, 918 (Del. Super. 1953); Chandler v. Miles, 193 A. 576, 582 (Del. Super. 1937).

66. In re Missouri-Kansas Pipe Line Co., 2 A.2d 273, 278-79 (Del. 1938).

66.1. Wellman v. Wellman, No. CN91-10076, slip op. at 7-10, James, J. (Del. Fam. June 13, 1994).

67. See § 27:8 for a discussion of the ability of jurors to impeach their own verdict.

68. Johnson v. Porter, 2 Del. 325, 2 Harr. 325, 326 (Del. Super. 1837).

69. Lawrence v. State, 253 A.2d 506, 508 (Del. 1969).

70. Rezae v. Zurkow, C.A. No. 91C-07-034, slip op. at 5, Steele, J. (Del. Super. Aug. 26, 1993).

71. Gannett Co. v. Re, 496 A.2d 553, 558 (Del. 1985); Yankanwich v. Wharton, 460 A.2d 1326, 1332 (Del. 1983); Stewart v. Genesco, Inc., 406 A.2d 25, 26 (Del. 1979); Delmarva Power & Light v. Stout, 380 A.2d 1365, 1368 (Del. 1977); Mills v. Telenczak, 345 A.2d 424, 426 (Del. 1975); Storey v. Castner, 314 A.2d 187, 193 (Del. 1973); Riegel v. Aastad, 272 A.2d 715, 718 (Del. 1970); Larrimore v. Homeopathic Hospital Asso., 181 A.2d 573, 578 (Del. 1962); Burns v. Delaware Coca-Cola Bottling Co., 224 A.2d 255, 257-58 (Del. Super Ct. 1966); Lacey v. Beck,  161 A.2d 579, 580.81 (Del. Super. 1960); Spahn v. People’s R. Co., 92 A. 727, 731 (Del. Super. 1912).

72. Lacey v. Beck, 161 A.2d 579, 581 (Del. Super. 1960).

73. Di Gioia v. Schetrompf, 251 A.2d 569, 570 (Del. Super. 1969); Campbell v. Brandenburger,  162 A. 354, 356 (Del. Super. 1932); Fulmele v. Forrest, 86 A. 733, 736 (Del. Super. 1913). See also Mills v. Telenezak, 345 A.2d 424, 426 (Del. 1975).

74. Wells v. Massey-Ferguson, Inc., C.A. No. 430, slip op. at 4-5, Walsh, J. (Del. Super. Oct. 7, 1976), aff’d, 383 A.2d 640 (Del. 1978); Zaret v. Almart Stores, Inc., CA. No. 457, slip op. at 2, Walsh, J. (Del, Super. May 26, 1976); Rutherford v. Delate, C.A. No. 1031, slip op. at 2, Walsh, J. (Del. Super. June 25, 1975).

74.1. Amalfitano v. Baker, 794 A.2d 575, 577 (Del. 2001); Maiaer v. Santucci, 697 A.2d 747, 749 (Del. 1997).

74.2. Young v. Frase, 702 A.2d 1234, 1237-38 (Del. 1997).

© 2010  David L. Finger