Whether a new trial upon the ground of excessive or inadequate damages should be granted or refused, or whether the verdict should be reduced, rests in the sound judicial discretion of a trial court.
Plaintiff patient consented to an operation on her right ear. However, during the operation, defendant surgeon determined that her left ear was in a more serious condition and decided to perform an operation on the left ear only. The patient sued the surgeon for the tort of assault and battery based on a lack of consent. The trial court awarded damages to the patient. The trial court granted the surgeon's motion for a new trial on the ground that the patient's damages award was excessive, appearing to have been given under the influence of passion and prejudice. The trial court denied the surgeon's motion for judgment notwithstanding the verdict. On appeal, the court upheld the grant of a new trial.
Did the trial court err in granting defendant's motion for new trial?
The court did not abuse its discretion in granting defendant's motion for a new trial. The suggestion of counsel for plaintiff, that this court now reduce the verdict to a proper amount for there is no verdict upon which such an order could act, cannot be upheld. It was set aside by the trial court.