Verdict Set Aside/New Trial Ordered, as Defendants' Expert's Opinion Was Speculative and Contrary to the Weight of the Evidence

In Montesione, et al v. Newell Rubbermaid, Inc. (Index No. 71324/14, decided on March 3, 2021), the Appellate Division, Second Department ordered that a trial judgment be reversed, on the law and facts, pursuant to a plaintiff's motion pursuant to CPLR 4404(a) - which requested to set aside a jury verdict as contrary to the weight of the evidence, and for a new trial to occur.  The case arose when the plaintiff claims to have sustained injuries after a step stool, manufactured by the defendant, collapsed while she stood on it during work.  She thereafter commenced a lawsuit against the defendant, and the case eventually went to trial.  

At the liability stage of the trial, the defendant's expert testified, over the plaintiff's objection, that the injured plaintiff's accident may have occurred because she slipped and fell onto the step stool.  Over the plaintiff's objection, the jury was asked the question, "Did the subject step stool collapse under the [injured] plaintiff while she was standing on it [on the incident date] causing the [injured] plaintiff's accident?"  The jury answered, "No" - thereby finding in favor of the defendant on the ground that the accident did not occur as the injured plaintiff said it did.  Thereafter, the plaintiff moved pursuant to CPLR 4404(a) to set aside the jury verdict as contrary to the weight of the evidence and for a new trial - and the Supreme Court denied the motion.  The plaintiff thereafter appealed, including arguing that the defendant's expert should not have been permitted to testify that the accident may have occurred when the injured plaintiff fell onto the step stool.

The Appellate Division, however, reversed the lower court's determination, holding the following: "CPLR 4404(a) states...that a court may set aside a jury verdict and...'order a new trial...where the verdict is contrary to the weight of the evidence.'  A jury verdict should not be set aside as contrary to the weight of the evidence unless the 'evidence so preponderate[s] in favor of the [moving party] that the jury could not have reached the verdict by any fair interpretation of the evidence'...In reviewing a judgment of Supreme Court, the Appellate division has the power to determine whether a particular factual question was correctly resolved by the trier of facts...It is settled and unquestioned law that opinion evidence must be based on facts in the records or personally known to the witness...He [or she] cannot reach his [or her' conclusion by assuming material facts not supported by evidence...'[A]n expert's opinion not based on facts is worthless'..."

The Appellate Court further holds: "We agree with the plaintiffs that the evidence so preponderates in favor of the plaintiffs on the issue of whether the subject step stool collapsed as the injured plaintiff stood on it causing her accident, that the jury could not have reached the verdict it did by any fair interpretation of the evidence...Moreover, the testimony of the defendant's expert that the accident may have happened because the injured plaintiff fell onto the step stool was speculative, lacked support in the record, and should not have been admitted in evidence...Therefore, the Supreme Court should have granted plaintiffs' motion pursuant to CPLR 4404(a) to set aside the verdict as contrary to the weight of the evidence and for a new trial."

Salvatore R. Marino, Esq.