EX POST FACTO (CASE) LAW FOR THE OCCASION:
Supreme Court to trial judges: If you follow existing law and grant a new trial in the interests of justice, you may be abusing your discretion. If you did not know, we are telling you now.
Suggestion for bench and bar: Keep in mind how the Supremes would feel about Defendants having a favorable verdict taken from them! And also be nice to the Defense. Don't ask for, and don't grant, default judgment just because the defendant's lawyer went AWOL after the jury was selected.
SUPREME COURT CRACKS DOWN ON JUDGES WHO GRANT NEW TRIALS
Under Texas law, the decision to grant a new trial has long been reserved to the discretion of the trial court judge, who may do so in the interest of justice. No more. Mere justice, without more, will no longer suffice as a reason, after last week's Supreme Court decision in In Re Columbia Medical Center of Las Colinas, No. 06-0416 (Tex. Jul. 3, 2009)(Johnson).
Trial judges must now justify themselves, lest they be found guilty of abuse by higher authority.
UNWITTING ABUSE OF DISCRETION
In this case, and in two others decided the same day, the trial court judge followed established precedent in granting a new trial “in the interest of justice” following jury verdicts favorable to the health care providers (and an asbestos defendant in another case).
What were the Supremes to do to assure the “right” outcome for the favorite constituencies when current law does not permit it? The answer is simple: Change the law.
Existing law gave trial judges much discretion in deciding to grant a new trial after a jury verdict “in the interest of justice” No rule or statute required the trial judge to explain the specific reasons why doing so was necessary. Nor would a request for findings of facts and conclusions of law have been appropriate under such circumstances. After all, this type of order is anything but an order disposing of all claims and parties with a final judgment. For the same reason, the ruling for a new trial could not be appealed. Nor is there a statutory basis for an interlocutory appeal from an order granting a new trial.
But not to worry. Where there is power, there is a way.
Existing precedents favoring plaintiffs? So it be. Who says that precedent cannot be made more favorable when med-mal and asbestos defendants suffer the indignity of having the fruits of a favorable jury verdict taken away from them (a fate the Supremes inflict with regularity on tort Plaintiffs and their lawyers). Who says we can't set new precedent?
And so they did. Five of Nine. And that suffices.
Justice O'Neill, joined by Chief Jefferson, Medina, and Green, dissented in jurisprudential disgust at the majority's disrespect for precedent and bewailed the majority's attack on the integrity of the judges below.
SUPREME LAWMAKERS AT WORK
Acknowledging that the type of order at issue could not immediately be appealed because no statutory authorization existed for interlocutory appellate review, much less by the Supreme Court, the majority - spearheaded by Johnson – invokes its discretionary mandamus powers instead as a basis to intervene in the pending proceedings below. The extraordinary writ is necessary, it reasons, because otherwise the defendants would not have a remedy.
The majority, in effect, finds that the trial judges who had ruled against the defendants in the three cases, had abused their discretion by not including specific reasons in their new trial orders, something they had no obligation to do until the majority established such a duty by fiat last Friday.
The lesson: With us, you can't win. If the law is on your side, we will just change the law. If a rule we would like to use to produce the desired outcome does not exists, we'll just create it. And if the legislature has not provided for us to get immediately involved when defendants are unjustly deprived of the courtroom victory they undoubtedly deserve (by authorizing interlocutory appeal), we'll just expand our mandamus powers to call the trial judge to task, and hold them accountable.
So what is the new standard for articulating a sufficient reason for setting aside a jury verdict and granting a new trial? None. The Supremes keep the trial courts guessing. But the message is clear. If you grant a new trial after the defense has had its way with the jury, be prepared to be charged with - and found guilty of - abuse of discretion. And we'll put your name in the written opinion for the whole world to see. After all, we are mandamusing you. We get to meddle with you and how you run your court, but you don't get to mess with us.
The ultimate irony: Mandamus is a remedy to be issued against a specific judge to correct an error. But in at least two of the cases at issue, the original judge is no longer in office. The mandamus goes against successor judges who did not preside over the jury trials. How are they to devine the reasons why their predecessors concluded that something serious enough went awry in those trials to warrant a new trial “in the interest of justice”? How are they to fill the void created by the Supreme's newly established duty to deliver a written justification?
And how are the judges who left office ever to clear themselves of the allegations of abuse with respect to the propriety of their ruling?
SUPREME COURT ORDERS TRIAL COURTS TO EXPLAIN WHY THEY GRANTED NEW TRIALS: "In the Interest of Justice" WILL NO LONGER BE GOOD ENOUGH
In Re Columbia Medical Center of Las Colinas, No. 06-0416 (Tex. Jul. 3, 2009)(Johnson) (mandamus
granted) (jury trial, reasons for trial court judge disregarding jury verdict and granting new trial required)
(mandamus granted to order trial court to state specific reasons for setting aside jury verdict and granting a
new trial)
IN RE COLUMBIA MEDICAL CENTER OF LAS COLINAS, SUBSIDIARY, L.P. D/B/A LAS COLINAS MEDICAL
CENTER, ANTONETTE CONNER, AND ANNA MATHEW; from Dallas County; 5th district (05-06-00611-CV, ___ SW3d ___, 05-12-06 Opinion of the Dallas Court of Appeals) as reinstated; stay order issued August 29, 2008, lifted. The Court conditionally grants in part and denies in part the petition for writ of mandamus.
Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined. [pdf]
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice
Green joined.
AFTER MANDAMUS PETITION-ABATEMENT PING-PONG INVOLVING THREE DIFFERENT TRIAL COURT JUDGES, SUPREMES ORDER THE LAST ONE TO COME UP WITH A VALID EXPLANATION WHY NEW TRIAL WAS GRANTED.
In Re Baylor Medical Center at Garland, No. 06-0491 (Tex. Jul 3, 2009) (mandamus granted)(Johnson)
(trial judge granted new trial and then resigned, mandamus abatement, current judge ordered to provide
reasons for granting new trial)
IN RE BAYLOR MEDICAL CENTER AT GARLAND; from Dallas County;
5th district (05-05-01663-CV, ___ SW3d ___, 01-04-06 Opinion of the Dallas Court below)
as reinstated, stay order issued August 29, 2008, lifted. The Court conditionally grants in part and denies in part the petition for writ of mandamus.
Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined.
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice
Green joined.
TRIAL JUDGE ORDERED TO FURNISH EXPLANATION FOR GRANTING NEW TRIAL
In Re E.I. Du Pont de Nemours and Co., No. 08-0625 (Tex. Jul. 3, 2009)(Johnson) (mandamus granted: trial court's grant of new trial following jury verdict requires specific explanation)
IN RE E.I. DU PONT DE NEMOURS AND COMPANY; from Jefferson County;
9th district (09-08-00318-CV, ___ SW3d ___, 07-24-08 Opinion of the Ninth Court of Appeals)
Pursuant to Texas Rule of Appellate Procedure 52.8(c), without hearing oral argument, the Court
conditionally grants in part and denies in part the petition for writ of mandamus.
Justice Johnson delivered the opinion of the Court, in which Justice Hecht, Justice Wainwright, Justice Brister, and Justice Willett joined.
Justice O'Neill delivered a dissenting opinion, in which Chief Justice Jefferson, Justice Medina, and Justice
Green joined.
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