No. 17-1692
`
`
`
`IN THE
`Supreme Court of the United States
`____________________
`MOSTAFA R. AHSAN,
`Petitioner,
`v.
`STAPLES THE OFFICE SUPERSTORE EAST, INC.
`AND STAPLES, INC.,
`
`
`
`
`Respondents.
`____________________
`On Petition for a Writ of Certiorari
`to the United States Court of Appeals
`for the Second Circuit
`____________________
`BRIEF IN OPPOSITION
`____________________
`JEFFREY L. O’HARA
`Counsel of Record
`MATTHEW W. BAUER
`JUSTIN M. VOGEL
`CONNELL FOLEY LLP
`One Newark Center
`1085 Raymond Blvd.
`Newark, NJ 07102
`(973) 435-5800
`johara@connellfoley.com
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`IN THE
`Supreme Court of the United States
`____________________
`MOSTAFA R. AHSAN,
`Petitioner,
`v.
`STAPLES THE OFFICE SUPERSTORE EAST, INC.
`AND STAPLES, INC.,
`
`
`
`
`Respondents.
`____________________
`On Petition for a Writ of Certiorari
`to the United States Court of Appeals
`for the Second Circuit
`____________________
`BRIEF IN OPPOSITION
`____________________
`JEFFREY L. O’HARA
`Counsel of Record
`MATTHEW W. BAUER
`JUSTIN M. VOGEL
`CONNELL FOLEY LLP
`One Newark Center
`1085 Raymond Blvd.
`Newark, NJ 07102
`(973) 435-5800
`johara@connellfoley.com
`
`
`
`
`
`
`
`
`
`
`
`
`i
`QUESTION PRESENTED
`Whether this Court should grant certiorari to de-
`cide whether a federal court of appeals may review a
`district court’s denial of a motion for a new trial
`made on the ground that the verdict is against the
`weight of the evidence, an issue that has no practical
`importance generally, and that certainly could not be
`outcome determinative in this case.
`
`
`
`
`
`
`
`ii
`RULE 29.6 DISCLOSURE
`Staples the Office Superstore East, Inc., now
`known as Office Superstore East LLC, is a wholly
`owned subsidiary of USR Parent Inc., which is not a
`publicly traded corporation.
`Staples, Inc. is a wholly owned subsidiary of Arch
`Parent, Inc., which is not a publicly traded corpora-
`tion.
`
`
`
`
`
`
`
`
`iii
`TABLE OF CONTENTS
`
`
`Page
`STATEMENT OF THE CASE .................................. 1
`REASONS FOR DENYING THE WRIT .................. 3
`A. There Is No Circuit Conflict That Mer-
`its This Court’s Review .................................. 4
`B. This Case Is A Particularly Poor Vehi-
`cle For Consideration Of The Circuit
`Conflict Because The Question Present-
`ed Is Not Outcome Determinative ................. 9
`C. The Decision Below Is Correct ..................... 11
`CONCLUSION ........................................................ 17
`
`
`
`
`
`
`iv
`TABLE OF AUTHORITIES
`
`
`Page(s)
`
`CASES
`Ahern v. Scholz,
`85 F.3d 774 (1st Cir. 1996) .................................. 6
`Arnez v. TJX Cos.,
`644 F. App’x 180 (3d Cir. 2016) ........................... 6
`Bank of America, N.A. v. JB Hanna, LLC,
`766 F.3d 841 (8th Cir. 2014) ................................ 7
`Blu-J, Inc. v. Kemper C.P.A. Grp.,
`916 F.2d 637 (11th Cir. 1990) .............................. 6
`Bravo v. United States,
`532 F.3d 1154 (11th Cir. 2008) ............................ 8
`Chicago B. & Q. R.R. Co. v. Chicago,
`166 U.S. 226 (1897) ............................................ 13
`Cline v. Wal-Mart Stores, Inc.,
`144 F.3d 294 (4th Cir. 1998) .............................. 16
`Dagnello v. Long Island R.R. Co.,
`289 F.2d 797 (2d Cir. 1961) ............................... 14
`E. Air Lines, Inc. v. Union Trust Co.,
`239 F.2d 25 (D.C. Cir. 1956) ................................ 6
`Evans v. Fogarty,
`241 F. App’x 542 (10th Cir. 2007) ....................... 8
`Fairmount Glass Works v. Cub Fork Coal
`Co.,
`287 U.S. 474 (1933) ............................................ 11
`Forrester v. White,
`846 F.2d 29 (7th Cir. 1988) .................................. 5
`Gasperini v. Center of Humanities, Inc.,
`518 U.S. 415 (1996) ................................... 8, 10, 14
`
`
`
`
`
`v
`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`Gentry v. E. W. Partners Club Mgmt. Co.,
`816 F.3d 228 (4th Cir. 2016) ............................ 5, 6
`Georgia-Pacific Corp. v. United States,
`264 F.2d 161 (5th Cir. 1959) ................................ 7
`Goodtitle v. Clayton,
`98 Eng. Rep. 159 4 Burr. 2224 (1768) ............... 13
`Green v. Am. Airlines, Inc.,
`804 F.2d 453 (8th Cir. 1986) ................................ 6
`Grunenthal v. Long Island R.R. Co.,
`393 U.S. 156 (1968) .......................................10, 11
`Hampton v. Dillard Dep’t Stores, Inc.,
`247 F.3d 1091 (10th Cir. 2001) ............................ 6
`Harris v. O’Hare,
`770 F.3d 224 (2d Cir. 2014) ................................. 8
`Hoskins v. Blalock,
`384 F.2d 169 (6th Cir. 1967) .......................... 8, 15
`Industrias Magromer Cueros y Pieles S.A. v.
`La. Bayou Furs Inc.,
`293 F.3d 912 (5th Cir. 2002) ................................ 6
`ING Global v. United Parcel Serv. Oasis
`Supply Corp.,
`757 F.3d 92 (2d Cir. 2014) ................................... 7
`Landes Constr. Co. v. Royal Bank of Can.,
`833 F.2d 1365 (9th Cir. 1987) .......................... 5, 6
`Lebron v. United States,
`279 F.3d 321 (5th Cir. 2002) ................................ 8
`Leonard v. Stemtech Int’l Inc.,
`834 F.3d 376 (3d Cir. 2016) ................................. 6
`M.T. Bonk Co. v. Milton Bradley Co.,
`945 F.2d 1404 (7th Cir. 1991) .............................. 6
`
`
`
`
`
`vi
`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`McClain v. Owens-Corning Fiberglas Corp.,
`139 F.3d 1124 (7th Cir. 1998) .............................. 6
`Molski v. M.J. Cable, Inc.,
`481 F.3d 724 (9th Cir. 2007) ................................ 7
`Morales v. Am. Honda Motor Co.,
`151 F.3d 500 (6th Cir. 1998) ................................ 6
`Nanninga v. Three Rivers Elec. Coop.,
`236 F.3d 902 (8th Cir. 2000) ............................ 5, 6
`Neese v. S. Ry. Co.,
`350 U.S. 77 (1955) .........................................10, 11
`Norris v. Freeman,
`95 Eng. Rep. 921 Wils. K.B. 38 (1769) .............. 13
`Stebbins v. Clark,
`5 F. App’x 196 (4th Cir. 2001) ............................. 6
`Stonewall Ins. Co. v. Asbestos Claims Mgmt.
`Corp.,
`73 F.3d 1178 (2d Cir. 1995) ...................... 4, 16, 17
`Thomas v. Tex. Dep’t of Crim. Just.,
`297 F.3d 361 (5th Cir. 2002) .......................... 8, 15
`United States v. Dale,
`991 F.2d 819 (D.C. Cir. 1993) .............................. 5
`United States v. Socony-Vacuum Oil Co.,
`310 U.S. 150 (1940) ........................................ 4, 11
`United States v. Walker,
`393 F.3d 842 (8th Cir. 2005) .............................. 16
`Urti v. Transp. Commercial Corp.,
`479 F.2d 766 (5th Cir. 1973) ................................ 7
`Valm v. Hercules Fish Prods. Inc.,
`701 F.2d 235 (1st Cir. 1983) ................................ 6
`
`
`
`
`
`vii
`TABLE OF AUTHORITIES
`(continued)
`
`Page(s)
`
`Virginian Ry. Co. v. Armentrout,
`166 F.2d 400 (4th Cir. 1948) .......................... 8, 15
`Woolard v. JLG Indus., Inc.,
`210 F.3d 1158 (10th Cir. 2000) ............................ 6
`CONSTITUTIONAL PROVISIONS
`U.S. Const. amend. VII ............................................ 11
`OTHER AUTHORITIES
`3 W. Blackstone, Commentaries on the Laws
`of England (1768) ............................................... 14
`Charles Alan Wright, The Doubtful
`Omniscience of Appellate Courts, 41
`Minn. L. Rev. 751 (1957) ................................... 13
`Weisbrod, Limitations on Trial by Jury in
`Illinois, 19 Chi. Kent L. Rev. 91 (1940) .......12, 15
`Wright & Miller, Federal Practice and
`Procedure (3d ed.) ................................. 6, 8, 16, 17
`
`
`
`
`
`
`
`
`
`STATEMENT OF THE CASE
`Petitioner asks this Court to review a purely aca-
`demic question that, to respondents’ knowledge, has
`never impacted the outcome of any federal case, and
`that indisputably will have no impact on the out-
`come of this one. The petition should be denied.
`1. This lawsuit arises out of a 2011 incident in a
`store operated by Staples the Office Superstore East,
`Inc., now known as Office Superstore East LLC
`(“Staples”). Pet. App. 7a. Petitioner alleged that he
`was hit by boxes that fell from a shelf, causing him
`to sustain injuries to his head, neck, and shoulder.
`Pet. App. 8a. Staples conceded that its negligence
`caused one or two boxes to fall from a shelf. But
`Staples disputed the nature and extent of plaintiff’s
`injuries, including whether its negligence proximate-
`ly caused plaintiff to sustain any injuries at all, and
`so the parties proceeded to a trial limited to the cau-
`sation and damages issues. Pet. App. 8a.
`The trial spanned six days, and included testimo-
`ny from more than ten witnesses. Pet. App. 12a-28a.
`On the Special Verdict Sheet, the jury was asked to
`determine whether Staples’ “negligence proximately
`cause[d] any of plaintiff’s injuries arising out of the
`incident on September 2, 2011.” The jury returned a
`verdict for Staples, finding that its negligence did
`not proximately cause any injury to plaintiff. Pet.
`App. 8a.
`2. Petitioner then filed a motion for a new trial,
`arguing that the jury’s verdict was against the
`weight of the credible evidence. Pet. App. 8a. The
`district court denied the motion in a detailed, twen-
`ty-seven page opinion that analyzed all of the evi-
`
`
`
`
`
`2
`dence at trial and concluded that the “verdict reflect-
`ed the jury’s assessment of the credibility of the wit-
`nesses, and was not against the weight of the evi-
`dence, egregious, or a miscarriage of justice.” Pet.
`App. 30a.
`In particular, the district court explained that the
`trial turned on credibility determinations and a bat-
`tle of experts, and nothing required the jury to ac-
`cept petitioner’s version of events. In fact, petition-
`er’s argument that he had suffered a variety of seri-
`ous injuries from the falling boxes was impeached
`“with his own inconsistent statements about how the
`accident occurred, his repeated failures to provide
`[his experts] with complete and accurate accounts of
`his pre-existing conditions, and evidence of his post-
`accident activities that seemed inconsistent with the
`injuries and limitations he described.” Pet. App.
`13a. Petitioner’s credibility was also undermined by
`his own experts’ similar testimony “that he repeated-
`ly failed to provide them with accurate information
`about his pre-accident symptoms and complaints,
`and provided inconsistent information about wheth-
`er the boxes struck him on his head when they fell.”
`Pet. App. 29a-30a. And those experts even conceded
`that his claimed injuries could have been “degenera-
`tive or age-related.” Pet. App. 14a.
`3. Petitioner appealed the district court’s denial
`of his motion for a new trial, and the court of appeals
`affirmed in an unpublished opinion. Pet. App. 3a.
`The court explained that, under circuit precedent,
`the district court’s denial of “a motion for a new trial
`made on the ground that the verdict was against the
`weight of the evidence . . . is not reviewable on ap-
`
`
`
`
`
`3
`peal.” Pet. App. 4a. The court of appeals noted that
`it would review a district court’s denial of a motion
`for new trial that challenged “not only the weight of
`the evidence but also its sufficiency.” Id. But even
`construing petitioner as having made a challenge to
`the sufficiency of the evidence, the Second Circuit
`affirmed “substantially for the reasons cited by the
`District Court.” Id.
`4. Petitioner sought rehearing en banc, which
`was denied. Pet. App. 36a.
`REASONS FOR DENYING THE WRIT
`The question presented is whether a federal ap-
`pellate court has authority to review a district
`court’s denial of a motion for new trial made on
`weight-of-the-evidence grounds. The divergence in
`how appellate courts approach such denials has ab-
`solutely no practical importance. Petitioner does not
`cite a single case in which an appellate court has ev-
`er found that a district court abused its discretion by
`denying a motion for a new trial made on weight-of-
`the-evidence grounds, and respondents have not lo-
`cated any such case. And even if the question pre-
`sented could have an effect in some theoretical case,
`petitioner does not even attempt to argue that the
`question presented could conceivably have any im-
`pact on the outcome of this case. Finally, the deci-
`sion below is correct.
`The petition should be denied.
`
`
`
`
`
`4
`A. There Is No Circuit Conflict That Merits
`This Court’s Review
`1. The Second Circuit rule petitioner asks this
`Court to review is very narrow. The Second Circuit
`will review a trial court’s denial of a post-trial mo-
`tion challenging the legal sufficiency of the evidence,
`Stonewall Ins. Co. v. Asbestos Claims Mgmt. Corp.,
`73 F.3d 1178, 1199 (2d Cir. 1995), as it did in this
`case, Pet. App. 4a. That court will also review a trial
`court’s grant of a new trial motion on the basis that
`the verdict was contrary to the weight of the evi-
`dence. Stonewall, 73 F.3d at 1199. But the Second
`Circuit holds that the denial of a challenge based on
`the weight of the evidence alone “is one of those few
`rulings that is simply unavailable for appellate re-
`view.” Id. Thus, “the loser’s only appellate recourse
`is to challenge the legal sufficiency of the evidence.”
`Id. The Second Circuit has long followed that rule,
`in reliance on longstanding precedent of this Court.
`See, e.g., United States v. Socony-Vacuum Oil Co.,
`310 U.S. 150, 248 (1940).
`2. Petitioner correctly notes that other courts of
`appeals have asserted the authority to review deni-
`als of motions for a new trial based on the weight of
`evidence. But this theoretical conflict has absolutely
`no practical importance, because these courts never
`actually reverse such denials based on the weight of
`evidence. That is because the courts of appeals that
`permit appellate review of the denial of a weight-of-
`the-evidence challenge are extremely deferential to
`district courts’ analysis of the evidence.
`a. The standard of review in appeals of district
`court denials of new-trial motions on weight-of-
`
`
`
`
`
`5
`evidence grounds is all but insurmountable. The
`Eighth Circuit, for example, has made clear that
`when a district court denies a motion for a new trial
`“based on its conclusion that the verdict is not con-
`trary to the weight of the evidence, its holding is vir-
`tually unassailable.” Nanninga v. Three Rivers Elec.
`Coop., 236 F.3d 902, 908 (8th Cir. 2000) (quotation
`omitted; emphasis added). Many other courts have
`similarly emphasized the limited nature of review,
`indicating that they would reverse in only the most
`“exceptional circumstances.” Forrester v. White, 846
`F.2d 29, 31 (7th Cir. 1988); see also, e.g., United
`States v. Dale, 991 F.2d 819, 838 (D.C. Cir. 1993)
`(scope of review is “particularly narrow” when the
`court’s decision accords with the jury’s); Gentry v. E.
`W. Partners Club Mgmt. Co., 816 F.3d 228, 241 (4th
`Cir. 2016) (court “will not reverse such a decision
`save in the most exceptional circumstances” (quota-
`tion omitted)). And the Ninth Circuit will not make
`any attempt to weigh the evidence itself or judge the
`credibility of witnesses, and instead will reverse only
`for a legal error in ruling on such a motion. Landes
`Constr. Co. v. Royal Bank of Can., 833 F.2d 1365,
`1372 (9th Cir. 1987).
`b. Because of this extremely deferential standard
`of review, there is no case in which a court of appeals
`has actually reversed a district court’s denial of such
`a new-trial motion based on the weight of the evi-
`dence. At least respondents are not aware of any
`such case, and the petition does not purport to iden-
`tify one. Rather, every single case the petition cites
`
`
`
`
`
`6
`involving review of such orders affirms the district
`court.1
`The Wright & Miller treatise that petitioner re-
`peatedly cites does report that “[a]ctual cases of re-
`versal because the verdict is against the weight of
`the evidence are extremely few,” and identifies four
`cases from the past 60 years as having reversed dis-
`trict courts on this ground. Wright & Miller, 11 Fed-
`eral Practice and Procedure § 2819 (3d ed.). But
`each of these reversals was actually on the ground
`that there was no legally sufficient evidence to sup-
`port the verdict—a ground for reversal also available
`in the Second Circuit.
`In three of the four cases Wright & Miller cites,
`the court of appeals expressly emphasized that it
`was reversing the district court because there was no
`evidence supporting the jury’s verdict. See Molski v.
`
`1 See Leonard v. Stemtech Int’l Inc., 834 F.3d 376, 386-88
`(3d Cir. 2016); Arnez v. TJX Cos., 644 F. App’x 180, 183 (3d Cir.
`2016); Gentry, 816 F.3d at 241; Industrias Magromer Cueros y
`Pieles S.A. v. La. Bayou Furs Inc., 293 F.3d 912, 924-25 (5th
`Cir. 2002); Hampton v. Dillard Dep’t Stores, Inc., 247 F.3d
`1091, 1110 (10th Cir. 2001); Stebbins v. Clark, 5 F. App’x 196,
`201 (4th Cir. 2001); Woolard v. JLG Indus., Inc., 210 F.3d 1158,
`1168 (10th Cir. 2000); Nanninga, 236 F.3d at 908; McClain v.
`Owens-Corning Fiberglas Corp., 139 F.3d 1124, 1126 (7th Cir.
`1998); Ahern v. Scholz, 85 F.3d 774, 780 (1st Cir. 1996); Mo-
`rales v. Am. Honda Motor Co., 151 F.3d 500, 506 (6th Cir.
`1998); M.T. Bonk Co. v. Milton Bradley Co., 945 F.2d 1404,
`1407 (7th Cir. 1991); Blu-J, Inc. v. Kemper C.P.A. Grp., 916
`F.2d 637, 643 (11th Cir. 1990); Green v. Am. Airlines, Inc., 804
`F.2d 453, 455 (8th Cir. 1986); Landes Constr., 833 F.2d at 1372;
`Valm v. Hercules Fish Prods. Inc., 701 F.2d 235, 237 (1st Cir.
`1983); E. Air Lines, Inc. v. Union Trust Co., 239 F.2d 25, 30
`(D.C. Cir. 1956).
`
`
`
`
`
`7
`M.J. Cable, Inc., 481 F.3d 724, 731 (9th Cir. 2007)
`(noting that “the record contains no evidence in sup-
`port of the verdict”) (emphasis added); Urti v.
`Transp. Commercial Corp., 479 F.2d 766, 767-68
`(5th Cir. 1973) (“We hold that there is no evidence in
`the record tending to show contributory negligence
`and that the district court erred as a matter of law in
`denying a new trial.”) (emphasis added); Georgia-
`Pacific Corp. v. United States, 264 F.2d 161, 165 (5th
`Cir. 1959) (agreeing with appellant that there “was a
`complete lack of evidence to support the verdict”)
`(emphasis added). The only case that even arguably
`rested on a weight-of-evidence ground is Bank of
`America, N.A. v. JB Hanna, LLC, 766 F.3d 841 (8th
`Cir. 2014). But that case also ultimately turned on
`the lack of sufficient evidence as a matter of law; the
`court of appeals endorsed the district court’s obser-
`vation that had it “known that the facts were going
`to be as they ultimately came out at trial, [it] would
`have granted summary judgment on the plaintiff’s
`case.” Id. at 851. Thus, the appellant in each of
`these cases could have gotten relief in the Second
`Circuit.
`In fact, the Second Circuit’s rule that denials of
`new trial motions made on weight-of-the-evidence
`grounds are unreviewable is of such little conse-
`quence that even the Second Circuit does not always
`follow it. In at least two published cases, the Second
`Circuit has stated that it will review the denial of
`such a motion for abuse of discretion, before affirm-
`ing the trial court’s decision in short order. See ING
`Global v. United Parcel Serv. Oasis Supply Corp.,
`757 F.3d 92, 99 (2d Cir. 2014); Harris v. O’Hare, 770
`
`
`
`
`
`8
`F.3d 224, 233 (2d Cir. 2014). No one appears ever to
`have noticed this intra-circuit conflict, presumably
`because it has no practical consequence whatever.
`2. Contrary to petitioner’s suggestion, Pet. 26-27,
`the Court’s grant of certiorari in Gasperini v. Center
`of Humanities, Inc., 518 U.S. 415 (1996), does not
`remotely suggest that the question presented here is
`worthy of this Court’s review. Unlike the question
`presented here, the question at issue in Gasperini—
`i.e., whether appellate courts may review the exces-
`siveness of a jury award—does have substantial
`practical significance. Courts do reverse district
`court rulings on new-trial motions based on the ex-
`cessiveness of jury awards, as cases cited in the peti-
`tion demonstrate. Pet. 12-13 (citing Virginian Ry.
`Co. v. Armentrout, 166 F.2d 400, 407-08 (4th Cir.
`1948); Hoskins v. Blalock, 384 F.2d 169, 171-72 (6th
`Cir. 1967); Evans v. Fogarty, 241 F. App’x 542, 562
`(10th Cir. 2007)). In fact, such cases abound. See
`Wright & Miller § 2820 n.38 (identifying 13 cases in
`which appellate courts ordered remittitur or new tri-
`al from the 1980s and 1990s alone); id. n.11 (identi-
`fying 11 additional cases of reversal based on size of
`verdict); see also, e.g., Bravo v. United States, 532
`F.3d 1154, 1169 (11th Cir. 2008); Lebron v. United
`States, 279 F.3d 321, 327 (5th Cir. 2002); Thomas v.
`Tex. Dep’t of Crim. Just., 297 F.3d 361, 367 (5th Cir.
`2002). In contrast to the question presented in
`Gasperini, the question presented here is unlikely
`ever to make any difference to anyone.
`
`
`
`
`
`9
`B. This Case Is A Particularly Poor Vehicle
`For Consideration Of The Circuit Con-
`flict Because The Question Presented Is
`Not Outcome Determinative
`1. Even if the alleged division between the cir-
`cuits could make a difference in theory, it plainly
`makes no difference in this case because there is no
`plausible argument that the district court abused its
`discretion in denying petitioner’s motion for a new
`trial based on the weight of the evidence.
`Trial in this matter lasted for six days, with tes-
`timony from more than ten witnesses presented by
`the parties. In denying petitioner’s new-trial motion,
`the district court painstakingly recounted in a
`lengthy opinion all of the evidence and testimony
`concerning whether Staples caused petitioner’s inju-
`ry. See Pet. App. 12a-30a. The court summarized
`the relevant testimony and its reasoning as follows:
`Plaintiff’s claims of injuries were impeached
`. . . with his own inconsistent statements
`about how the accident occurred, his repeat-
`ed failures to provide treating physicians
`complete and accurate accounts of his pre-
`existing conditions, and evidence of his post-
`accident activities that seemed inconsistent
`with the injuries and limitations he de-
`scribed. The doctors who treated plaintiff
`and testified on his behalf at trial were cross-
`examined about plaintiff’s prior injuries and
`complaints and ultimately acknowledged at
`least some uncertainty about the degree to
`which plaintiff’s injuries were caused by the
`accident in the Staples store. Finally, de-
`
`
`
`
`
`10
`fendant’s medical experts testified that
`plaintiff’s medical records did not include
`any objective findings indicating that plain-
`tiff suffered traumatic, as opposed to degen-
`erative or age-related, injures. Defendant’s
`experts also called into serious question the
`theory proposed by plaintiff’s expert to ex-
`plain how plaintiff sustained a brain injury
`as a result of the falling boxes. The jury ap-
`parently chose to credit the testimony and
`other evidence indicating that any injuries
`plaintiff sustained or symptoms he suffered
`were caused by circumstances other than the
`falling Staples boxes, and it was reasonable
`and within its province to do so.
`Pet. App. 13a-14a. The district court considered the
`full trial record, and its ruling that the jury’s verdict
`was not against the weight of the evidence is unas-
`sailable. Indeed, petitioner does not even attempt to
`explain how the district court possibly could be held
`to have abused its discretion in refusing to set aside
`the jury’s verdict based on the weight of evidence.
`2. This Court’s experience before Gasperini illus-
`trates the wisdom of foregoing review of a vehicle
`this poor. Before Gasperini, this Court “twice grant-
`ed certiorari to decide the unsettled issue” of the
`scope of appellate review of “a federal trial court’s
`denial of a motion to set aside a jury’s verdict as ex-
`cessive,” but “ultimately resolved the cases on other
`grounds.” Gasperini, 518 U.S. at 434 (citing Grunen-
`thal v. Long Island R.R. Co., 393 U.S. 156 (1968),
`and Neese v. S. Ry. Co., 350 U.S. 77 (1955)). In both
`cases, this Court concluded there was no need to re-
`
`
`
`
`
`11
`solve the question presented because there was no
`doubt that the district courts had not, in fact, abused
`their discretion. See Grunenthal, 393 U.S. at 163
`(Harlan, J., dissenting) (explaining that majority de-
`clined to decide the question presented, “preferring
`to rest its decision upon the alleged correctness of
`the District Court’s action in the circumstances of
`the case”); Neese, 350 U.S. at 77 (refusing to answer
`question because “[e]ven assuming such appellate
`power to exist under the Seventh Amendment, we
`find that the Court of Appeals was not justified, on
`this record, in regarding the denial of a new trial,
`upon a remittitur of part of the verdict, as an abuse
`of discretion”). There would similarly be no reason
`to address the question presented if certiorari were
`granted here.
`C. The Decision Below Is Correct
`The Second Circuit’s rule is in any event required
`by the Seventh Amendment and comports with
`sound practical considerations.
`1. The Seventh Amendment’s “re-examination
`clause” provides that “no fact tried by a jury, shall be
`otherwise re-examined in any Court of the United
`States, than according to the rules of the common
`law.” This Court has held in a “long and unbroken
`line of decisions” that appellate courts may not “re-
`view the action of a federal trial court in granting or
`denying a motion for a new trial for error of fact.”
`Fairmount Glass Works v. Cub Fork Coal Co., 287
`U.S. 474, 481 (1933) (involving a trial court’s denial
`of a motion for new trial); Socony-Vacuum, 310 U.S.
`at 248 (“Certainly, denial of a motion for a new trial
`on the grounds that the verdict was against the
`
`
`
`
`
`12
`weight of the evidence would not be subject to re-
`view.”).
`That precedent is correct. An appellate court
`plainly must “re-examine” the facts found by the jury
`in order to conclude that the trial court clearly erred
`in finding the verdict not against the weight of the
`evidence.
`Contrary to petitioner’s contention, Pet. 16-22,
`“the rules of the common law” did not permit appel-
`late tribunals to order a new trial on the ground that
`the verdict was against the weight of the evidence.
`As petitioner notes, at common law, most civil suits
`were initiated before panels of judges sitting en banc
`at Westminster, but were actually heard by so-called
`nisi prius judges—single judges traveling to the loca-
`tion of the controversy to oversee the trial. Pet. 16-
`17. Disappointed litigants could then make motions
`for a new trial to the en banc court. But, crucially,
`the en banc courts never actually granted any such
`motion made on the ground that the verdict was con-
`trary to the weight of the evidence unless the nisi
`prius judge himself certified that in his view the
`verdict should be set aside. As one widely-cited arti-
`cle put it: “An exhaustive examination of the early
`English cases has revealed not a single case where
`an English court at common law ever granted a new
`trial, as being against the evidence, unless the judge
`or judges who sat with the jury stated in open court,
`or certified, that the verdict was against the evi-
`dence and he was dissatisfied with the verdict.”
`Weisbrod, Limitations on Trial by Jury in Illinois, 19
`Chi. Kent L. Rev. 91, 92 (1940); see also Charles
`Alan Wright, The Doubtful Omniscience of Appellate
`
`
`
`
`
`13
`Courts, 41 Minn. L. Rev. 751, 762 n.50 (1957) (“I do
`not find in the literature any disagreement with this
`conclusion, nor have I found any case contrary to the
`rule Weisbrod states.”).
`Perhaps recognizing that difficulty, petitioner
`purports to identify two English cases in which an en
`banc court ordered a new trial on weight of the evi-
`dence grounds absent the certification of the nisi
`prius judge. Pet. 19. But neither case fits that de-
`scription. The first ordered a new trial because a
`crucial witness was excluded from the trial, not be-
`cause the verdict was against the weight of the evi-
`dence. Norris v. Freeman, 95 Eng. Rep. 921, 921, 3
`Wils. K.B. 38, 39 (1769). And the second, while less
`clear cut, focuses on the en banc Justices’ view that
`witnesses at trial “ought not to have been admitted
`to give evidence against their own attestation” as to
`the validity of a will. Goodtitle v. Clayton, 98 Eng.
`Rep. 159, 160; 4 Burr. 2224, 2225 (1768). Both cases
`therefore fall within the long-recognized rule that
`appellate courts may set aside a verdict “for some
`error of law which intervened in the proceeding.”
`Chicago B. & Q. R.R. Co. v. Chicago, 166 U.S. 226,
`246 (1897) (quotation omitted); see also id. (“The only
`modes known to the common law to re-examine such
`facts are the granting of a new trial by the court
`where the issue was tried, or to which the record was
`properly returnable, or the award of a venire facias
`de novo by an appellate court, for some error of law
`
`
`
`
`
`14
`which intervened in the proceedings.”) (quotation
`omitted).2
`2. Petitioner emphasizes this Court’s holding in
`Gasperini that appellate courts have authority to re-
`view a trial court’s denial of a motion for a new trial
`on the ground that a jury’s monetary award is exces-
`sive. But assuming Gasperini is correct (something
`respondent reserves the right to dispute if the Court
`were to grant certiorari), it is readily distinguisha-
`ble.
`Gasperini relied on the Second Circuit’s own ex-
`planation in 1961 that, in considering trial court ex-
`cessiveness rulings, courts “must give the benefit of
`every doubt to the judgment of the trial judge; but
`surely there must be an upper limit, and whether
`that has been surpassed is not a question of fact with
`respect to which reasonable men may differ, but a
`question of law.” Gasperini, 518 U.S. at 435 (quoting
`Dagnello v. Long Island R.R. Co., 289 F.2d 797, 806
`(2d Cir. 1961)). As Justice Stevens put it in his sep-
`arate opinion in Gasperini, the question whether the
`amount of a jury verdict is excessive does not involve
`re-weighing facts found by the jury, but rather asks
`a reviewing court to “determine whether, on the
`facts as found below, the legal standard has been
`met.” Id. at 443 (Stevens, J., dissenting on other
`grounds).
`
`
`2 See also 3 W. Blackstone, Commentaries on the Laws of
`England 387 (1768) (grounds for new trial include “if it appears
`by the judge’s report, certified to the court, that the jury have
`brought in a verdict without or contrary to evidence, so that he
`is reasonably dissatisfied therewith”) (emphasis added).
`
`
`
`
`
`15
`The question whether a verdict is excessive is
`therefore directly analogous to “reversal for refusal
`to direct a verdict for insufficiency of evidence,”
`which is undoubtedly a true question of law. Armen-
`trout, 166 F.2d at 408. Petitioner cites this same
`passage from Armentrout as if it supports appellate
`review of weight of the evidence denials, failing to
`appreciate that Armentrout, like Gasperini, did not
`address a weight-of-the-evidence challenge, but ra-
`ther concerned appellate review of an excessiveness
`ruling. Pet. 12. The same is true of the only other
`case that petitioner believes provides a substantive
`explanation for his proposed rule. Pet. 12-13 (citing
`Hoskins, 384 F.2d at 171). Indeed, in practice, the
`question whether a verdict is excessive “boils down
`to” whether the plaintiff provided “evidence suffi-
`cient to support” an award of a specific amount.
`Thomas, 297 F.3d at 368 (asking whether plaintiff
`presented
`“evidence sufficient
`to support
`the
`$100,000 award for future emotional harm”).
`In contrast to the question whether a jury verdict
`is excessive, there is no practical way to identify a
`“legal question”—let alone a legal error—in the trial
`court’s inherently discretionary decision that the ev-
`idence is not only legally sufficient to support the
`verdict, but also not so contrary to the verdict that a
`new trial is warranted.3 The standard guiding the
`trial court’s determination of such motions is so nec-
`
`3 The Seventh Amendment permits district courts them-
`selves to re-examine a jury’s fact finding and set aside a verdict
`as against the weight of the evidence because “the rules of the
`common law” allowed the judge or judges who oversaw the trial
`to do so. See Weisbrod, supra, at 93.
`
`
`
`
`
`16
`essarily vague and dependent upon credibility and
`weight determinations that it “may be doubted
`whether there is any verbal formula that will be of
`much use to trial courts in passing on” them. Wright
`& Miller § 2806. There is simply no way for an ap-
`pellate court to identify a legal error in such an in-
`herently discretionary decision.
`Proving the point, some appellate courts assert-
`ing authority to conclude that a trial court commit-
`ted clear error in finding a verdict not against the
`weight of the evidence openly claim the authority to
`themselves “weigh the evidence and consider the
`credibility of witnesses.” Cline v. Wal-Mart Stores,
`Inc., 144 F.3d 294, 301 (4th Cir. 1998); see also Unit-
`ed States v. Walker, 393 F.3d 842, 848 (8th Cir. 2005)
`
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